1838172 (Refugee)
[2023] AATA 3027
•8 June 2023
1838172 (Refugee) [2023] AATA 3027 (8 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:
CASE NUMBERS: 1838172 and 2013623
COUNTRY OF REFERENCE: Iran
MEMBER:Jane Marquard
DATE:8 June 2023
PLACE OF DECISION: Sydney
DECISION:For case number 1838172: the Tribunal remits the decision to refuse the applicant a Safe Haven Enterprise visa for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
For case number 2013623: The Tribunal sets aside the decision to refuse the applicant a Safe Haven Enterprise Visa and substitutes it with a decision that the visa application made on 9 April 2020 was not valid.
Statement made on 08 June 2023 at 7:57am.
CATCHWORDS
REFUGEE – Protection Visa – Iran – criminal conviction – political opinion – fear of the Basij militia – religion – conversion to Christianity – tattoos – has genuinely taken an interest in Christianity – returnee asylum seeker status – appearance – mental health issues – generally anti-regime and anti-Islamic views – effective protection measures are not available to the applicant –applicant’s second visa application is invalid – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATIONS FOR REVIEW
This decision relates to two separate applications for review.
The first is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 18 July 2017 to refuse to grant the applicant an XE-Safe Haven Enterprise Visa (Subclass 790) under s 65 of the Migration Act 1958 (Cth) (the Act). This is matter number 1838172.
The second is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 April 2020 to refuse to grant the applicant a protection visa under s 65 of the Act. This is matter number 2013623.
The applications have been heard jointly by this Administrative Appeals Tribunal (the Tribunal) with the consent of the applicant as the claims and evidence are the same in each. The background to the applications is explained further later in this decision.
OVERVIEW OF APPLICANT’S CIRCUMSTANCES
Personal circumstances
The applicant is a [age]-year-old man from Ardebil in Iran. His family (parents and [siblings]) live in Iran. The applicant has a [age]-year old son in Australia from a former relationship. The applicant was attacked and stabbed in a criminal attack in Australia in 2019, suffering a serious injury which has resulted in loss of vision in one eye.
The applicant’s criminal matters
NSW Police Force documents show that the applicant has been convicted of a number of criminal offences including driving offences, custody of a knife in a public place, possessing counterfeit money, and failure to stop in a police pursuit. On [date] October 2019 the applicant reported to [a] Police Station in regard to charges of failing to stop for police and he was detained under s 189 of the Act and taken to Villawood Immigration Detention Centre (Villawood), where he remained until [date] September 2020. The charges resulted in cancellation of his bridging visa.
On 7 August 2020 the applicant was charged with Aggravated Sexual Assault and Aggravated Indecent Assault. On 18 September 2020 a Criminal Justice Stay Certificate was issued so the applicant could remain in Australia for the purpose of the administration of justice. He was convicted of the offences on [date] February 2023 and sentenced on [date] May 2023 to 9 years and 3 months imprisonment, expiring [in] April 2032 with a non-parole period of 6 years and 3 months.
The Tribunal notified the applicant at the Tribunal hearing that it had seen the police documents relating to his criminal matters. The Tribunal explained to the applicant that the criminal charges were not relevant to the question of whether he met the refugee or complementary criteria for the visa, but were only relevant for context as to why he had been in detention, and for issues such as his Christian practice while in detention. He was invited to comment on the documents. The applicant confirmed the convictions and charges, but said that he has an explanation for them all. He said that ‘it all happened when my eye got damaged. There were some before that as well’. He said that in relation to one of the incidents, someone called him and bought him a whisky. He said that he did not want to have any as he was driving but he did have a sip, and then had a blood alcohol test. He said that ‘even a soft drink has alcohol’. He said that he lost his licence as he was a provisional driver. He said that on another occasion he was carrying a fruit knife and was charged. He said that he has not beaten anyone up and most of the charges are trivial.
In relation to the most recent charges of Aggravated Sexual Assault and Aggravated Indecent Assault, the applicant said that ‘this is a lie’. He said that ‘all the evidence points to the woman lying’. He said that this has ‘affected my life a lot’. He said that he does not know the victim and he has been wronged. He also said that the judge is lying. He said that ‘they have taken my life from me’. He said that the woman who accused him should go to gaol as he is an ethical person and he ‘will put it all on the news’. He said that he is not going to continue to ‘let them take advantage of me’. He said that there were no other outstanding criminal matters besides the Aggravated Sexual Assault and Aggravated Indecent Assault matters.
The Tribunal has not taken these criminal charges or convictions into consideration in respect of the applicant’s credibility as to his claims for protection, or as to whether the applicant meets the refugee or complementary protection criteria. Matters of character are not considered by this Tribunal although character may be an issue for the Department of Home Affairs (Department) to consider. The documents relating to the applicant’ criminal charges and convictions are only relevant to issues such as the applicant’s background and why he has been in prison or detention, and the opportunities he has had for Christian practice during these times. The Tribunal also makes no findings in regard to his claims of being targeted by the police or judiciary given that the Tribunal has no additional evidence about this. The Tribunal does accept that he feels frustrated and hostile towards authorities in Australia.
BACKGROUND TO THE DECISIONS BY THE DEPARTMENT TO REFUSE THE FIRST AND SECOND APPLICATIONS
The applicant first arrived in Australia on [date] May 2013 by boat from Indonesia without a visa. He arrived at the Territory of Ashmore and Cartier Islands, a remote reef located between Western Australia and Indonesia. He was classified by the Department as an ‘unauthorised maritime arrival’ as defined in s 5AA of the Act, based on arrival method. The applicant was taken into Darwin Immigration Detention Centre on [date] June 2013 where he was interviewed by a Departmental officer.
In 2018, in DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Act). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant him a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.
On 25 July 2013 the applicant was granted a Temporary Safe Haven (Subclass UJ 449-Humanitarian Stay) visa. At the time this was thought to trigger a statutory bar in s 91K of the Act, which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined in 2021 by the full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.
The applicant applied for an XE - Safe Haven Enterprise Visa (Subclass 790) on 9 November 2016. The applicant initially claimed protection based on fear of the Basij militia. He claimed he would be targeted because of his tattoos, allegations of Satanism, and his conversion to Christianity. This application was refused by the Department on 18 July 2017 and is the first application being reviewed by this Tribunal. The applicant was advised of his right to seek review of the decision of the Department dated 18 July 2017 to this Tribunal under Part 7 of the Act. The applicant then applied for review by this Tribunal of the decision dated 18 July 2017 to refuse the XE - Safe Haven Enterprise Visa (Subclass 790).
The background of the second application for review is as follows. The then Minister purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further protection visa application in Australia. The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on subsections 5H(2), 36(1B), or (1C) or paragraphs 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act. Following this, the applicant purported to make a second application for a Safe Haven Enterprise visa on 9 April 2020 (the second visa application). However, the applicant’s first visa application was not invalid due to the operation of s 91K (see CBW20). This means that the s 48A bar was not lifted for the applicant because they were not within the class of persons specified in the then Minister’s s 48B determination.
This second application was refused by the Department on 3 September 2020. This is the decision the subject of the second application for review.
FINDINGS IN RELATION TO THE DECISION OF THE DEPARTMENT TO REFUSE THE SECOND APPLICATION
The second visa application is, and always was, barred under s 48A, for the reasons set out above. The s 48A bar had not been lifted because the applicant was not in the scope of the Minister’s s48B determination. Accordingly, the second visa application is invalid. The Tribunal has no option other than to set aside the delegate’s refusal of the second visa application and substitute it with a decision that the second visa application is invalid.
CONSIDERATION OF THE DECISION OF THE DEPARTMENT TO REFUSE THE FIRST APPLICATION
In the first application, the delegate of the Department, in a decision dated 18 July 2017, did not accept that the applicant had genuinely converted to Christianity, even though he may have attended church occasionally. The delegate also did not accept that he would practise Christianity if he returned to Iran nor that he would be perceived as a Christian. The delegate was not satisfied that the applicant had a profile with the Basij or Iranian authorities due to his tattoos or the evidence of a video about Satanism.
EVIDENCE
The Tribunal has considered evidence before the Department and Tribunal including the following:
· Certified copy of Islamic Republic of Iran national identity card/certificate.
· Certified copy of Islamic Republic of Iran military service completion card.
· Baptism Certificate dated [date] August 2013 from [Church 1].
· Arrival and Induction Interview notes – [file number] (‘Entry Interview’) dated 23 June 2013.
· Birth Certificate of applicant’s son dated [date].
· Application for Safe Haven Enterprise Visa (SHEV) dated 9 November 2016 (‘2016 SHEV application’).
· Medical documents dated 2016/17 relating to the applicant’s partner.
· Support letter from partner undated.
· Submissions to the Department dated 7 June 2017.
· Information provided by representative dated 10 July 2017 in relation to the applicant’s church.
· Notes of an interview with the pastor of [Church 2], on 11 July 2017.
· Decision of Department dated 18 July 2017 (‘2017 Department decision’).
· Statutory Declarations of the applicant dated 8 and 14 August 2017 (2017 Statutory Declarations).
· Statutory Declaration of the applicant’s partner dated 8 August 2017.
· Report dated 9 September 2017 by [Mr A], psychotherapist and registered psychologist ([Mr A] Psychology Report 2017).
· Christmas family photograph of the applicant’s family in Australia.
· 32 pages of screenshots of the applicant’s [social media] posts and 22 videos of [social media] posts.
· Media reports provided by the applicant.
· IAA decision dated 14 March 2018.
· Detention Client Interview, [29] October 2019.
· Letter from [a named person] at [a] Hospital dated 9 December 2019 stating that the applicant had suffered trauma in his right [eye].
· Notification of incorrect answers, Form 1023, Department of Home Affairs, stating that the applicant was convicted of an offence in Australia and is unable to remember the details.
· Psychological assessment by [Ms B], clinical psychologist [Organisation 1] dated 18 December 2019 ([Ms B] Psychological Report 2019).
· Letter from [Mr C], co-ordinator of Villawood Pastoral Care Group dated 25 March 2020.
· Letter from [Mr D], organiser of bible study classes at Villawood, undated.
· Report by [Ms E], social worker [Organisation 1] dated 29 March 2020 ([Ms E] Social Work Report March 2020).
· Two photographic images of the applicant’s side profile showing tattoos from shoulder to forearm.
· Application for Safe Haven Enterprise Visa dated 9 April 2020 (SHEV application 2020).
· Statements from applicant’s de facto partner dated 21 April 2020 (Partner Statement April 2020).
· Supplementary statement dated 28 April 2020 (April 2020 Statement).
· Copy of a form completed by the applicant on 1 May 2020 requesting from VIDC that bible study classes be reinstated.
· Emergency Department referral [dated] 25 May 2020 referring to applicant having pain in eye and left ear.
· NSW Police Force, District Court Report, dated [May] 2020 outlining applicant’s criminal record.
· Statement from applicant’s former partner dated 1 June 2020.
· Notes of interview with a delegate of the Department dated 2 June 2020.
· Email from former partner dated 2 June 2020 to [a school] accepting offer of enrolment.
· Emergency Department discharge referral dated 15 June 2020 by [a named person], indicating that applicant attended [a] Hospital to request eye surgery.
· Letter by [a named doctor], [a hospital] dated 15 June 2020 stating that the applicant had suffered an eye injury and referring him to neurology or eye clinic.
· Letter from [Pastor A] of [a church] dated 19 June 2020.
· Email from [Mr F], [Church 3].
· Three photographic images of the applicant showing tattoos on his arms.
· A collection of materials used for bible study.
· Summary of treatment reports of [Ms E] of [Organisation 1] dated 29 March 2020 to 29 June 2020. The reports indicate that the applicant had reported symptoms of post-traumatic stress disorder (PTSD) and treatment included focusing on stress reduction, management of thinking and addressing symptoms.
· Letter of support from Pastor [B] from [Church 3] dated 4 July 2020, stating that the applicant was an active and consistent member and had regularly attended [a] compound for Sunday Services and Thursday bible study and invites other detainees to attend.
· Letter from the Department to the applicant dated 10 June 2020.
· Supplementary statement of the applicant 3 July 2020 (Supplementary statement July 2020).
· Photographic images of the applicant and others at bible study.
· Decision of the Department dated 3 September 2020 in relation to matter 2013623 (Department decision September 2020). The delegate did not accept various claims, including that incidents took place at [Venue 1]. The delegate accepted that the applicant was a non-practising Muslim, but due to inconsistent and vague evidence did not accept that he had practised Christianity in Iran or that he was a genuine convert in Australia.
The applicant appeared before the Tribunal on 26 September 2022 to give evidence and present arguments. He was invited to a further hearing on 1 November 2022 but requested a postponement due to illness. The matter was then rescheduled on 14 December 2022, and then again on 19 January 2023. The Tribunal hearings were conducted with the assistance of an interpreter in the Persian and English languages. The applicant was unrepresented. At the hearings the applicant confirmed that he was satisfied with the standard of interpretation.
The Tribunal has also taken into consideration independent country information including information provided by the Department of Foreign Affairs and Trade (DFAT). This information is referred to in the assessment below.
Not all the evidence is referred to in the findings set out below. The findings incorporate reference to the key information that the Tribunal has found to be relevant to the determination of the issues in the case.[1]
[1] The Tribunal notes that it is not required to make explicit reference every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.
SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW
The applicant has applied for XE-Safe Haven Enterprise Visas (Subclass 790).[2] Such visas are issued under the general power to issue visas conferred on the Minister, or his or her delegates, by the operation of s 65 of the Act. If granted it permits the visa holder the right to stay in Australia temporarily for five years.
[2] See Migration Regulations 1994 (Cth), Sch 1.
Australia acceded to the 1951 Convention relating to Status of Refugees[3] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[4] in 1973, thereby undertaking to apply their substantive provisions. For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[5]
[3] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (‘Convention’).
[4] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).
[5] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refers to Australia having protection obligations in respect of a person because they are a ‘refugee’.
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.
An applicant must establish that he or she:
a.is a ‘refugee’ (‘the refugee criterion’);[6] or
b.qualifies for complementary protection (‘the complementary protection criterion’);[7] or
c.is a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (‘family member criterion’).[8]
[6] Migration Act 1994 (Cth), s 36(2)(a).
[7] Migration Act 1994 (Cth), s 36(2)(aa).
[8] Migration Act 1994 (Cth), s 36(2)(b), (c).
Refugee criterion
Section 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of their country of nationality: s 5H(1)(a) of the Act.
Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.
A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J (2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)).
The High Court has found that persecution may be directed against a person as an individual or as a member of a group: Chan v MIEA (1989) 169 CLR 379 at 429 (Mason CJ). The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (Brennan CJ).
Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA of the Act, which are extracted in Attachment A to this decision.
Complementary protection criteria
If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) of the Act.
The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B) of the Act, which are extracted in Attachment A to this decision.
Satisfying the statutory elements
The Tribunal can seek out evidence it requires to make a determination. As s 415(1) of the Act confers on the Tribunal ‘all the powers and discretions’ conferred on the primary decision maker, the Tribunal has the procedural power to obtain information pursuant to s 56 of the Act.
Notwithstanding the inquisitorial nature of the Tribunal’s role, it is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, to seek evidence (ABT16 v Minister for Home Affairs [2019] FCA 836) or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510). In this case, the applicant was unrepresented and impacted by mental health conditions. The Tribunal attempted to assist the applicant in a number of ways, including providing an overview of laws and processes and providing opportunity to give evidence on a number of occasions.
KEY ISSUES FOR DETERMINATION BY THIS TRIBUNAL
In determining whether the applicant meets the refugee or complementary protection criteria, the key issues are:
·Whether the incidents described by the applicant took place in Iran (findings of fact).
·Whether the applicant has genuinely embraced the Christian faith.
·Whether there is a real chance of serious harm or a real risk of significant harm for the applicant for reasons of his religion, political opinion, on the basis of his appearance, on the basis of his family status, as a returnee or on the basis of his mental health or for cumulative reasons.
These issues and other threshold issues are discussed below.
FINDINGS IN RELATION TO THE FIRST APPLICATION FOR REVIEW
Nationality
For the purposes of the refugee criterion, s 5H (1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’.
For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.
The applicant claims that he is a citizen of Iran. He no longer has an Iranian passport, claiming at the Department interview in 2017 that he and the other passengers travelling on the boat to Australia were instructed by people smugglers to throw their passports into the ocean.[9] The Tribunal has been provided with a certified copy of his Islamic Republic of Iran national identity card and national identity certificate, as well as his military service completion card. The Tribunal is satisfied on the basis of this evidence and his testimony that the applicant is a national of Iran, and that Iran is the receiving country for the purposes of the legislation.
[9] Decision of Department dated 18 July 2017.
Did the incidents in Iran described by the applicant take place as claimed?
Special considerations in asylum cases
When assessing claims the Tribunal must make findings of fact in relation to the claims made and in doing so, assess whether the claims are credible. In this case, the Tribunal must assess whether the applicant was targeted on various occasions in Iran by the Basij and other parties. The Tribunal must also assess whether he became interested in Christianity in Iran and whether he converted in Australia. Credibility is to be assessed by having regard to the individual circumstances of the case and the evidence before the Tribunal.[10]
[10] Department of Home Affairs, PAM 3: ‘Refugee Law Guidelines’, [15.3].
Asylum cases present particular complexities in regard to fact-finding. Applicants may have difficulties presenting evidence due to experiences in their home countries, as expressed by the Full Federal Court in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
These experiences may lead to nervousness and anxiety in presenting evidence to government authorities. Presentation may also be impacted by cultural behaviours, mental health issues or level of education, as well as stress caused by separation from home and family. An applicant may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons.[11]
[11] AAT, ‘Guidelines on the Assessment of Credibility, Migration and Refugee Division’, available on the AAT Website, >
For these reasons, assessment of credibility is inherently difficult and at times can be based on imperfect perceptions of truth.[12] Research in Canada found that refugee decision makers have unreasonable expectations of memory, and that ‘decades of psychological research’ has demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.[13] An Australian study found that tribunal members may rely on assumptions which can be inconsistent with psychological literature.[14]
[12] Fox v Percy (2003) 214 CLR 118.
[13] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469–511, <
[14] Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented’.
The Tribunal is conscious and mindful not to have unreasonable expectations of memory and to acknowledge that there may be factors that consciously or otherwise influence decisions.[15] The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia[16]. As a threshold principle, in the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably. The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries. As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
The Tribunal has also taken into consideration the Tribunal’s Guidelines on the Assessment of Credibility,[17] which reinforce that the Tribunal should be mindful of the various factors which may impact on evidence and should approach the assessment with an open mind.
Impact of the length of time in Australia and medical issues on the applicant’s evidence
[15] H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9.
[16] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
[17] AAT, ‘Guidelines on the Assessment of Credibility, Migration and Refugee Division’, available on the AAT Website, >
At the Tribunal hearing on 26 September 2022, the Tribunal acknowledged that the applicant had been before numerous decision makers since he first arrived in Australia. The Tribunal also noted the length of time since he arrived in Australia (2013). The Tribunal acknowledged to the applicant that it was aware that this may impact on the presentation of his evidence, and would take this into account in assessing his evidence.
The applicant claimed in his 2017 Statutory Declaration that he had received blows to his head from [a sport] in Iran, which he believes has affected his capacity to remember details and gives him ‘confused thoughts’. He said that he had also been prescribed with the anti-[depressant]. He said that ‘sometimes I just can’t think and can’t answer’. In the [Mr A] Psychology Report 2017 it was reported that the applicant did not have a history of mental health issues but was anxious about his protection claims. The practitioner did not provide any medical assessment as to mental health issues or depression.
In the [Ms B] Psychological Report 2019, based on a two hour assessment, a clinical psychologist for [Organisation 1] found that the applicant had experienced traumatic events in Iran and Australia and had intrusion symptoms, intense psychological distress, marked physiological reactions and symptoms associated with hyperarousal including nervousness, heart palpitations and headaches, efforts to avoid distressing memories, feelings of worthlessness and helplessness, sleep disturbances, less interest in daily activities and low mood. Two psychometric measures were used to assess his well-being. A conclusion was reached from the assessment that he experienced symptoms associated with anxiety and depression. He was also assessed as having symptoms associated with PTSD.
A further report − [Ms E] Social Work Report March 2020 was provided following four sessions. It was concluded that the applicant needs ongoing psychological treatment to assist in the management of symptoms relating to anxiety, depression, PTSD and adjustment issues relating to the ‘disabling injuries from physical assaults’. A further report in May 2020 from the same social worker referred to four sessions of consultation. She said that he had ‘angry, frustrated mood and anxious affect’. He reported being constantly in pain from his eye injuries and had feelings of worry, sadness, anger, frustration, despair, hopelessness, helplessness, injustice, poor sleep, irritability and intrusive thoughts of past traumatic and distressing experiences. Supportive counselling and containment was suggested, including use of motivational interviewing techniques, cognitive restructuring and reframing, psychoeducation and visualisation.
A further report from [Organisation 1] dated June 2020 was also provided, produced by the same social worker, following four sessions of attendance. The applicant had reported worsening facial nerve pain which was affecting his ability to eat, sleep, talk and focus. Continuous psychological treatment was recommended for his ‘worsening psychological state’. Reference was made to anger at the insignificant compensation payment he had received and lack of support for his medical treatment.
The applicant in his April 2020 Statement claimed that he had a limited education and had difficulty remembering things. He said that he believed that his memory and ability to think clearly was affected by his multiple concussions [received]. He said that he finds it hard to remember dates.
At the Tribunal hearing on 26 September 2022, the Tribunal referred to the medical reports in 2019 and 2020 which indicated that he has symptoms of PTSD, anxiety and depression, and adjustment issues. The applicant was asked at the Tribunal hearing if he was experiencing any mental health or physical symptoms at the time of the hearing. He said that his nose is broken, and his teeth and eye have been damaged in assaults on him. He said that he has pain in his nose and eye but is not getting any medical assistance for this. He said that mentally, he has ‘been under pressure’ as, since 2019 when he has been in the community, he has ‘had no assistance from the government’. He repeated that he has had ‘no help from the government or Centrelink’ despite being the victim of three attacks. He said that two of the attacks were from the same perpetrators and one was by someone else with ‘the same country of origin’ as the other perpetrators. He said that on the first occasion he was knifed and on the third occasion, someone tried to shoot him with a shotgun. The applicant told the Tribunal that the case against the perpetrators of the knife attack was dismissed and then ‘they came after me with a gun’. Asked if he reported it to the police, he said that he did but ‘they do nothing’. He said that he was near his house when the attack occurred. He said that the perpetrator shot the gun, but it did not work, although it was loaded. The police arrested the perpetrators and the case against the offenders is still continuing. He was asked why he was attacked. He said that he does not know and the perpetrators are ‘criminals’.
The applicant told the Tribunal at the hearing that he has depression and pain. He confirmed that he is on medication for depression and pain. He said that side effects of these medications are ‘pain in the bone’. He said that notwithstanding his depression and pain, he felt capable of giving evidence at the hearing.
At the second Tribunal hearing on 19 January 2023 the Tribunal asked the applicant if he had seen any medical practitioners regarding his mental health or medical issues since the previous hearing. He said that ‘nothing had changed’ since last time and he was unable to afford medical treatment. Asked how his mental health had been since then, he said that he ‘just keeps thinking’. Asked if he meant that there were many thoughts overwhelming him, he said ‘no, the lies that the Australian government in particular the police had been giving’. He said that on 5 August 2022, three people beat him up. They broke his nose and left eye (and he nearly went blind). He said that he wanted to give police a statement but ‘they are not accepting it’ and he does not know why. He said that the police officer asks him what he wants from them, and he said that he wants to give them a statement, but they say he is lying. He said that when he first asked to give a statement, he recorded his conversation with the police, and they said that they would come the next day and take a statement but instead they arrested him. He still has the recording. He said that they told him a police officer had gone on holiday and he would have to wait. Once she returned, they said that he had told them that he was not going to give a statement. He was asked if he had made a complaint to the Police Complaints Unit. He said that he did, and they heard the recording, but they ‘are all colleagues and support each other’. He was asked if he knew who was responsible for the criminal attacks, and he said he recorded the attack. The police gave him an event number. They then said that the hearing was finished. He said that the police ‘are playing with him’. He was asked if the people who were responsible for the attacks on him were convicted, and he said that they have not been arrested. He said that there were two attacks in 2019. In one he was stabbed in his face. He said that in 2022 another criminal wanted to take a shot at him.
He was asked if these three attacks were by the same criminals. He said that two were related and the other was ‘someone from the same country’. He said that the police ‘just dismiss the cases saying there was no evidence’. He said that the police told his wife that he is a bad person and they are trying to separate him and his child. He said he has told police he is a victim and they should support him. He said he feels like it is a Hollywood movie. He said that ‘for no reason they arrested me after 5 August, and they said that they had a reason but the case was dismissed. They had not reason for arresting me’. Asked by the Tribunal what the charges were against him, he said he told the police he had no Medicare and needed help. He said that he ‘had a fight with my wife a long time ago. They told her she had to appear in court or they would arrest her’. He said that when he was arrested the police told the paramedics that he was dangerous.
Without current medical reports, it is difficult to assess the applicant’s current mental health, but from observation there is no doubt that he is feeling agitated and angry. He feels that he has been unjustly treated and targeted. His evidence was often rambling and appeared confused. The Tribunal accepts that it is possible that concussions [affected] his memory, as claimed by him, although there is no medical evidence about this. Regarding his claims about his mental health, there is no psychiatric report or recent report from a clinical psychologist in this matter. The [Organisation 1] report was provided by a social worker. Social workers have a relevant degree and have a variety of skills and training but usually have not had extensive medical or psychological training. In Australia a counsellor/social worker/psychologist cannot prescribe medication.[18] Nonetheless the Tribunal accepts that social workers from [Organisation 1] do have extensive experience with people who have experienced trauma, and in this case, the Tribunal accepts the evidence in 2019 and 2020 from [Organisation 1] that the applicant experienced a number of symptoms as described in the reports, and that these symptoms relate to traumatic experiences in Iran and Australia, anxiety about the migration process and physical violence in Australia. The Tribunal accepts that he experienced symptoms of PTSD, depression, anxiety and adjustment to physical injuries. The reports from [Organisation 1] did not suggest that he was incapable of giving evidence and nor did it express particular concerns about his memory.
[18] The Royal Australian and New Zealand College of Psychiatrists website, October 2016.
At the first Tribunal hearing the applicant presented generally as lucid although he also expressed frustration and anger and frequently said that he could not remember details. On one occasion he said please ‘forgive me for the way I talked. My brain is somewhere else and I cannot decide what to do’. He may have been referring to the fact that on many occasions, when asked questions, he said that he had forgotten things. This included questions about significant events. However, he was able to answer other questions and recall details. At the second hearing he presented as angry and somewhat erratic and his answers at times were rambled. The Tribunal accepts his word that he was capable of giving evidence at the hearings, given that he was generally clear, if at times appearing to be somewhat confused, paranoiac and hostile. As discussed there were no current medical reports indicating he was unable to give evidence or that he had significant problems with memory. Notwithstanding that there was no medical commentary on his memory, the Tribunal acknowledges that mental health may impact on memory and the presentation of evidence. The reports did indicate that he had symptoms of PTSD, depression, anxiety and adjustment disorder. Clearly the violence that has been inflicted on him in Australia would have adversely affected his mental state. The Tribunal has made allowances for this in the assessment of the evidence.
The Tribunal’s Guidelines on Vulnerable Persons[19] (the Guidelines) state that a person with PTSD may suppress aspects of a traumatic event or in rare occasions not remember what happened. The Guidelines also state that persons who have undergone trauma may have poor attention, concentration and distractibility, and there may be hesitancy to disclose due to shame, guilt or anger.[20] The Tribunal recognises that psychological research on memory of trauma[21] suggests that inconsistencies, fragmentation of memory, lapses in memory, lack of specificity and overgeneralisations do not necessarily reflect lack of veracity in relation to recalled events. The Tribunal has taken care in assessment of the evidence to acknowledge that not all memory deficit correlates with lack of veracity, as research demonstrates that accurate human recollections of all kinds can be disrupted in unpredictable ways following trauma.[22] In particular, a want of detail where detailed knowledge may be expected, may have psychological explanations, such as lack of concentration or reduced production, caused by many mental disorders.[23]
[19] Guideline on Vulnerable Persons, AAT, available on the AAT website,
[20] Guideline on Vulnerable Persons, AAT, available on the AAT website,
[21] M Conway, ‘Episodic Memories’ (2009) 47 Neuropsychologia 2305; J Herlihy, L Jobson, and S Turner, ‘Just tell us what happened to you: autobiographical memory and seeking asylum’ (2012) 26 Applied Cognitive Psychology 661; C Brewin, ‘The nature and significance of memory disturbance in posttraumatic stress disorder’ (2011) 7 Annual Review of Clinical Psychology 203.
[22] H E Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law 469.
[23] UNHCR, Guidance Note on the Psychologically Vulnerable Applicant in the Protection Visa Assessment Process, November 2017.
As mentioned the applicant stated on numerous occasions during the Tribunal hearing that he could not remember incidents in the past. For example, when asked what age he was when his family moved to Tehran he said that he could not remember. The Tribunal asked him if he could provide a rough age, for example under or over 10 years old. He said that he did not know. He also said that he did not know why his family moved to Tehran. He also told the Tribunal that he did not know what job his father had. He also could not remember if his mother went to work. He said that the criminal attacks on him in Australia had caused loss of memory. As referred to earlier, the Tribunal acknowledges the impact of the criminal attacks and other mental health issues on his evidence. But given that he could recall some matters, the Tribunal found it difficult to believe that he would not remember information such as whether his mother worked, given that this did not require significant detail and was not a traumatic memory. It did at times appear, particularly in the beginning of the Tribunal hearing, that he was attempting to display that he had complete memory loss, by saying he had forgotten details such as this. However, the Tribunal does not accept that he has complete memory loss or memory loss to a significant extent, as at other times he was entirely lucid and had good recollection. The Tribunal concluded from this that his memory loss appeared to be at times selective. For example, when the Tribunal questioned him about matters which were adverse, such as the discrepancies in his evidence, he said that he could not remember anything. As mentioned he also said he was unable to recall small personal details, for example, his father’s job. However, he knew his brother’s job, because he wished to emphasise that his brother was powerful and therefore could harm him. The UNHCR Guidance Note on the Psychologically Vulnerable Applicant[24] in regard to memory deficit suggests that the most common pattern in the recollection of trauma over time is that the central elements of the experience are relatively stable but contextual details vary, including precise times and dates, sequence of events, visual and spatial details and the number of people present and who did what.[25] While the Tribunal is cognisant that he may not remember specific dates and details of events, given the time since the events and the impact of trauma, the Tribunal does not accept, when considering these guidelines, that the applicant would not remember core elements of his experiences and some personal details. This is particularly the case as he could give lucid evidence about certain matters, and given the absence of medical reports suggesting that he has significant memory deficit. This is discussed in more detail later in this decision.
[24] UNHCR, Guidance Note on the Psychologically Vulnerable Applicant in the Protection Visa Assessment Process, November 2017.
[25] UNHCR, Guidance Note on the Psychologically Vulnerable Applicant in the Protection Visa Assessment Process, November 2017.
Impact of interpretation on evidence
The applicant requested a Farsi interpreter for the Tribunal hearing. The applicant confirmed at the Tribunal hearing that his first language is Farsi, although his ethnicity is Azeri. He said that he feels comfortable speaking in Farsi. In submissions from the applicant’s representative in 2017 it was claimed that his mother tongue is Azeri and there are sometimes language difficulties with Persian. At the first Tribunal hearing he said that he could not remember saying this. At the Tribunal hearings he indicated that he was satisfied with the interpreters.
The Tribunal is satisfied on the basis of this evidence and the lack of complaint about the interpretation, that the interpretation has been satisfactory.
Matters on which the Tribunal is satisfied – applicant’s family, background and criminal attacks in Australia
It is not in dispute that the applicant is from Ardabil in Iran where he lived from birth until May 1996. Ardabil is located in the north close to the Caspian Sea. The Tribunal accepts that he lived in the capital, Tehran from 1996 until he travelled to Australia in 2013. It is also not in dispute that he is of Azeri ethnicity and came from a Muslim family. Up to 99% of the population of Iran are Muslim.[26] The Tribunal also accepts that the applicant’s parents, three brothers, [Mr G], [Mr H] and [Mr I] and one sister [continue] to reside in Iran, that he completed [a grade] in high school in 2005 and underwent his military service from [May] 2009 to [November] 2010. Although at the Tribunal hearing he said that he could not remember what job his father had, when asked by the Tribunal member later if his father had a [shop] as set out in the Entry Interview he said that is correct. The Tribunal accepts this evidence. The Tribunal also accepts his evidence that in high school he was involved in many sports, but particularly [a specified sport], and as stated in his 2016 SHEV application he was in ‘advanced level sports’ [and] entered three competitions. The Tribunal accepts his evidence that ‘I was successful in both my job and sports’. The Tribunal accepts that after he finished his military service, from 2008, he [worked]. The Tribunal accepts that he worked for a ‘well-known company’. All these personal details have been provided consistently in his evidence.
[26] SBS, ‘Cultural Atlas’, < Iranian Culture - Religion — Cultural Atlas (sbs.com.au)>
The Tribunal finds that the applicant has had a generally close relationship with his family. At the Tribunal hearing, he said that his childhood was sometimes happy and sometimes not. He said that his parents owned their house and they were ‘middle of the road’ demographically. He confirmed that he got on well with his brothers and sisters as a child, and they played together. While his grandparents passed away when he was a child, he had uncles, aunts and cousins in the area, and they spent a lot of time together as an extended family. When asked at the Tribunal hearing what he and his family did together on weekends, he said that his brothers and wives came over and they had dinner together. In general he has claimed that he has been in contact with his family members and that they are close. In his SHEV application 2020 he said that he speaks to his mother weekly and his sisters intermittently. He also mentioned that his family has continued to support him, but he has not told them about the attacks on him in Australia as he does not want to make them worried. He said that he talks to them often, except for his brother [Mr I]. He speaks to his mother every day via SMS or [social media]. He talks to other family members every few days or weeks. One brother is also [working in the same field] and is married with children. Another is a [occupation], also married with children. He does not know if his sister [is] working. She is married with children. Considering his evidence cumulatively, he has described a generally functional and supportive family.
The Tribunal accepts that the applicant was attacked in 2019 in a criminal attack in Australia and suffered a serious eye injury which led to him losing the sight in one eye. Medical reports have been provided.
Was the applicant harassed by Basij while living in Iran?
The applicant claimed in his Entry Interview that ‘I did not have any promotion in Iran…they used to interfere in our daily life… Baseej and police forces. Because of these tattoos I could not have short sleeves. Because of the tattoos they used to pick on me and say that I am a terrorist… I started when I was [age] years of age then I put some more…I love them… only for beauty, no meaning’. He said that he started getting tattoos at the age of [age] because he ‘loves them for their beauty’. He said that he has tattoos on his left and right arms. He also stated in his Entry Interview that ‘I was under pressure and harassment. Everything was forced on us, I used to go to work and go to the gym but I could not fix my hair the way I wanted’.
At his Entry Interview the applicant claimed that he was detained on one occasion about two years prior to travel to Australia. He was heading down the road and was detained because of his tattoos. He claimed that he was taken to the Ershad headquarters, beaten and then released. He said that ‘I was going down the road, for my tattoos they took me to the headquarters, beat me and then left me…. The Ershad group’. In the April 2020 Statement he confirmed this evidence.
In his 2016 SHEV application, he reiterated that he left the country because of problems he had with the Basij and the police. He said that he faced persecution from the Basij and ‘it was all about my tattoos’. He said that he had a tattoo of [details deleted]. He said that he loved the tattoos which were ‘part of my growth from adolescence’.
Asked at the Tribunal hearing why he left the country he again mentioned that he was harassed by the Basij because of his tattoos. He said that he liked tattoos, and could not remember if his friends had them, but ‘everyone had tattoos on their bodies’.
The Tribunal accepts the applicant’s evidence that he was subject to harassment from the Basij because of his tattoos, including being taken and beaten on one occasion. This evidence was provided soon after his arrival in Australia and provided as the reason for his fear of returning to Iran and has been provided consistently since. The Tribunal notes further that the applicant also reported incidents of harassment in the [Mr A] Psychology Report 2017. He told the practitioner that he attracted attention of authorities who did not like his tattoos, and they would ‘repeatedly’ take him to the police station and question him. He told her that the harassment was due to his non-traditional appearance and he could not express his views openly. This consistency of evidence suggests that these incidents did take place.
His evidence is also supported by independent information. Country sources demonstrate that there were restrictions on ability to dress freely and on tattoos from 2010. In 2010 the Iranian authorities imposed a stricter dress code that included a list of acceptable hairstyles for men and a ban on certain types of clothing and tattoos at some universities.[27] As reported by Al Jazeera and Radio Free Europe/Radio Liberty, and referenced by the Immigration and Refugee Board of Canada in a report, ‘the enforcement of the dress code is intended to combat Western cultural influences’.[28] There were reports of 70,000 police officers being deployed in Tehran to enforce the dress code.[29] Those found violating the dress code may have been fined, arrested, or even have their car impounded if occupants are dressed improperly.[30] The 2010 United States Department of State (USDS) report citing media sources indicates that ‘more than two million citizens had been stopped or detained by the morality police for inappropriate dress or hairstyle’.[31]
[27] Canada: Immigration and Refugee Board of Canada (IRB), ‘The enforcement of dress codes’, 20 December 2011.
[28] Canada: Immigration and Refugee Board of Canada (IRB), ‘The enforcement of dress codes’, 20 December 2011.
[29] ‘Iran’s fashion police are back on the summer streets and looking for un-Islamic bling’, Associated Press (AP), 23 June 2011.
[30] United States, Department of State (USDS), Country Reports on Human Rights Practices for 2010, for Iran, 8th April 2011, as referenced in Canada: Immigration and Refugee Board of Canada (IRB), ‘The enforcement of dress codes’, 20 December 2011.
[31] United States, Department of State (USDS), Country Reports on Human Rights Practices for 2010, for Iran, 8th April 2011.
The Tribunal also accepts that the applicant was banned from accepting a [medal] on stage [at] [Venue 1] in November 2012 (2016 SHEV application) for the same reasons. He has been consistent about this evidence.
There are other aspects of the applicant’s claims which the Tribunal does not accept, discussed further below. The Tribunal is not required to accept uncritically any and all of the allegations made by an applicant (Randhawa v MILGEA (1994) 52 FCR 437). In this case, there were a number of contradictory accounts provided in various accounts of the evidence. At times the evidence was incoherent. More detail about this is provided below. Where necessary, the Tribunal put the inconsistencies to the applicant under the natural justice provisions in the legislation,[32] explaining that subject to comments by the applicant they might lead the Tribunal to conclude that the evidence was not based in truth, but rather had been fabricated for the purpose of a refugee claim.
[32] Section 424AA of the Act.
The applicant claimed in his 2016 SHEV application that he objected to the ban on his award (as referred to earlier), and was told to leave [Venue 1], which he did. He said that ‘they followed me to the door with a camera man insulting me all the way to the exit’. The Tribunal does not accept this evidence as it was not mentioned in his Entry Interview, and there were discrepancies in later evidence. In June 2017 in written submissions, he said that in his Entry Interview he was told to be very brief in his answers. Even if this were the case, in the interview with the Department in 2020 he said that at the [competition] he went to fetch his medal and a man named [Mr J] was wanting to interview him and he fled. He said that later the Basij and Etela’at were after him wanting to know the meaning of his tattoos. This evidence is very different in key elements to the evidence in his 2016 SHEV application about what took place at [Venue 1].
Further claims were made in his 2016 SHEV application that two months after the incident in which he was not awarded his [medal] (about January or February 2013) the Basij came to the applicant’s gym to enquire about his tattoos, clothes, religion, Islam and the incident at [Venue 1]. He said that they had two cameras. He said that ‘they also asked me some irrelevant questions about my hair style, religious beliefs, Islam and Satanism. I was confused and afraid because I was watching Mohabbat TV on satellite at the time. I thought maybe somehow they found out about it. If they accused me of exiting Islam, I would have been easily killed by the Iranian Islamic Court’. He said that they used rude language and insulted him and said that his appearance indicated that he followed Satanism. He said that after they left the ‘boys in the gym supported me’ and told him to stay away from them. When he left the training he received a call from the gym manager [who] said that the people were from [media]. The manager advised him to ‘find a connection’ to get the videos deleted as it would otherwise cause trouble for him. The show was about young people deceived by Satanism and who had left Islam. The applicant said that he had no idea what Satanism was about. He said that the show had a political purpose. He said that he tried to find the people through the local Basij base, and through [name], who was a distant relative and was influential in the Etela’at organisation. [He] contacted some people on his behalf who said that the video was taken out of the archive but the applicant is still not sure that it was taken out. He said that in 2015 he was told by a friend in Iran that the interview had been shared ‘by Bluetooth on the phones’.
In his interview with the Department as part of his 2016 SHEV application, the applicant said that [Mr J], the manager of the gym had informed him that the relative had not been successful in getting the video back and he left the gym, because they were trying to find him.
As discussed earlier, in the interview with the Department in 2020 he said that at the [competition] he went to fetch his medal and a man named [Mr J] was wanting to interview him and he fled. He said that later the Basij and Etela’at were after him wanting to know the meaning of his tattoos.
The discrepancies in his evidence about these incidents were put to the applicant at the Department interview in 2020. The applicant said that he could not remember, and he said he escaped from the back door when the [media] crew were trying to interview him. He said that he could not remember what other interactions he had with [media], however, they were after him, asking about him at the gym. [Mr J] told him that they came to the gym. Asked at the Tribunal hearing about being accused of Satanism, he said that ‘as you said it I remember’. He was asked if he remembered anything about a [competition] and he said that he did not and said that he could not recall other incidents.
It was put to the applicant by the Tribunal that as described in the 2020 Department Decision, his evidence about the gym and [Venue 1] incidents was inconsistent in regard to when the camera men filmed him and what happened after. This resulted in the delegate not accepting this evidence. The applicant responded to the Tribunal that what he said in 2016 was true and that after this his life was impacted by what happened to him in Australia. He said that he can no longer remember things as he has been under a lot of pressure in 2019 and 2020. He told the Tribunal to decide on what it believes, as he is ‘really tired of the situation’. He said that ‘what has happened to me physically is more important than the visa’. He said that ‘the Australian government said that I can stay but not drink water or use the health system so what do I do? Stay here until I die? I have been harassed by the police. They ask me why I wear a hoodie and why I wear glasses and why I look left and right.’ He said that because of his eye injury he looks around him as he is afraid of being attacked. He said that he is getting tired. He said that the same Departmental case officer in detention that interviewed him questioned him about a different matter. He was told that his application would be refused. He said that an officer recorded him illegally.
At the Tribunal hearing, the applicant was asked why, at the Entry Interview, which was the first opportunity he had to tell the Department why he feared returning to Iran, he did not say that he feared returning because he had been accused of [Satanism], or because of his tattoo about God and watching Mohabat TV. The Tribunal put to it that the Entry Interview was close in time to these incidents, and so it would have been expected that he would have mentioned these incidents, whereas all he mentioned was fear of the Basij because of his tattoos, and his religion. He said that when he first came to Australia, he forgot everything. He said that he is telling the truth, he respects the Tribunal, but he cannot remember.
The Tribunal has carefully considered all the evidence, taking into consideration his mental state and memory as possibly impacted by the assaults in Australia. The court noted in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 that a decision maker can consider inconsistencies in assessing credibility, but it is the evidence as a whole that should be assessed, and the significance of the inconsistency within that context. The Tribunal has considered the evidence in its entirety and not in isolated parts, an approach supported in a number of cases including Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997) and the Migration and Refugee Division ‘Guidelines on the assessment of credibility’.[33] The Guidelines state that the Tribunal must consider all evidence before it assesses whether contradictions, omissions or inconsistencies are material to an applicant’s claims and would lead to an adverse finding of credibility.[34] In this case, the Tribunal has found the inconsistencies to be material, and finds that aspects of his evidence have been inflated to bolster his refugee claim.
[33] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website,
[34] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website,
The Tribunal finds as follows. The Tribunal accepts that the applicant was excluded from getting a [medal], but does not accept that he was filmed, or that the Basij pursued him, or that he was accused of Satanism or that the film was shared after the event. The Tribunal is of the view that if these incidents had happened, they would have been mentioned as a fear, even briefly in the Entry Interview. Furthermore, the Tribunal is satisfied, that, even given memory difficulties, the applicant would have remembered at the Tribunal hearing how the gym manager was involved and when he was intercepted by the cameramen. At the Tribunal hearing the applicant was referred to the incidents in [Venue 1] and at the gym, as referred to in his 2016 SHEV application. He said that they had happened but he does not remember much. He said that even at school, he could not remember much. Asked if he remembered anything, he said that he could not remember anything. As referred to earlier, research on trauma suggests that key events are usually recalled although there may be issues with details. The Tribunal is not satisfied that he would not have been able to recall the key events even though he may have been confused about the details, as he has been able to recall other events. In his April 2020 Statement he said that after the incident in the gym he went to Ardabil for a couple of months as he was afraid of being targeted in Tehran. He said that he did not previously mention this, as he did not think it was important. The Tribunal does not accept that he went to Ardabil through fear of being targeted, given that it has not accepted that the incident in the gym took place.
The Tribunal also does not accept that the Basij contacted family members after the applicant left the country. At the 2017 Department Interview he claimed that since he left the country, unidentified people went to his mother’s home asking about the applicant’s whereabouts. He also claimed that his brother was stopped in the street one day by the Basij and asked where his brother was and for help locating him. The Tribunal is not satisfied that the Basij contacted his mother or brother after he left the country. At the Tribunal hearing he was asked who they approached. He said that he did not remember but he thinks it was his brother [Mr G]. He was asked why the government would be interested in him as he was not a political activist. He said that he does not know. He said the police in Australia are after him and it ‘is the same’. The Tribunal is of the view that this evidence would have been presented earlier if these events had happened, and he would know who was approached. The courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[35] A similar approach is taken in the Department’s Refugee Law Guidelines[36] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (‘UNHCR Handbook’),[37] which provides useful guidance for this Tribunal. In this case, however, the Tribunal has not found that the applicant is generally credible. His evidence has been inconsistent and unsubstantiated.
[35] SZLVZ v MIAC [2008] FCA 1816 at [25].
[36] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines).
[37] UNHCR, re-issued February 2019 at 203-204.
The Tribunal does not accept that the applicant or his family members were involved in political activity in Iran. Although he said at the Entry Interview that in the 2016 SHEV application that his brother, [Mr G], had participated in demonstrations when Ahmadinejad was seeing to be president, when asked about this at the Tribunal hearing he said that he does not remember saying this and his brother was not involved. He said that he said a lot of things but because of his damage to his eye, nose and teeth in Australia he has forgotten a lot of things. He said that he had been ‘stranded by the government’ and ‘they are not doing anything’ for him. He said that he was in the community without work and without Medicare and gets no assistance. He said that his memory was impacted by the assault. Although the Tribunal acknowledges that he may have memory loss caused by assaults on him, the Tribunal is of the view that if his brother was involved in demonstrations, he would have claimed this consistently throughout his evidence.
Is the applicant a Christian as claimed?
Applicant’s religion in Iran
The Tribunal accepts, for reasons discussed earlier in this decision, that the applicant grew up in a Muslim family. The Tribunal does not accept that the applicant’s family was particularly devout (as he has recently claimed). There was no suggestion in any of his earlier applications or interviews that his family was very religious, until the most recent application when he claimed that he feared his brother, [Mr G], and his cousin. Furthermore, his evidence about them being devout did not hold up at the Tribunal hearing. He was asked by the Tribunal if the family attended a mosque when he was growing up. He said that they ‘did not attend that many times’. He said that they would not go every week but would go to commemorations and his elder brother is ‘more into these things’. He was asked in what other ways they practised their religion as a family. He said that he respected Islam, but ‘did not do much’. He said that his mother would pray all the time. He said that in Iran you cannot say to the government that you are not religious. They did not go to a religious school but in their school they had to go to a ‘Quran class’. He said that they prayed at home but did not go regularly to a mosque. The applicant said in his Department interview in June 2020 that when he grew up he participated in the morning ritual and went to the mosque, along with family members. He said that later he decided it was all lies. Considered cumulatively, this evidence does not indicate a particularly devout family, although his mother and elder brother may have been more religious than other family members.
The Tribunal accepts, as claimed, that the applicant was not very devout when living in Iran. He confirmed at the Tribunal hearing that he attended celebrations such as weddings, but not religious occasions and did not accompany his family to the mosque.
Applicant’s evidence about practising Christianity in Iran
The applicant first claimed that he converted to Christianity in his Entry Interview in 2016, but said he did so in Australia. At the end of the interview, he stated, ‘I want to say why I changed my religion… in Iran government force you to do everything. For example during Ramadan fasting is compulsory. If they see someone on the road eating something during that month they put him in gaol. They give us slogan regarding the religion but they take other people’s rights or ignore peoples’ rights’. The applicant stated in his Entry Interview that he converted to Christianity when he came to Australia and was told by a Father that ‘things are not compulsory’ which the applicant said that he loved.
In his 2016 SHEV application, his evidence was different, stating that he changed his religion in Iran. He claimed that one of the reasons he left Iran was ‘I also changed my religion and had a strong fear of being prosecuted’. He claimed that after Persian New Year he returned to work and could not tolerate participating in congregational prayer. He said that after the alleged incident when he was filmed in 2012, he became more attracted to Mohabbat Television, which ‘gave me great relief as I really loved tattoos’. He said that in March to April 2013 (Persian New Year) he felt isolated and watched Mohabbat Television. He said that at work he did not relate to being asked to participate in prayer, growing a beard and fasting. He said that he could not reveal his religious beliefs and was lonely so one month after returning to work he decided to leave Iran as he did not want them to realise he had become a Christian, ‘on top of all those video and audio records they made for me about Satanism’. In the 2017 Department decision it was noted that he was unable to name programs he watched other than ‘[program]’.
In his 2017 Statutory Declaration his evidence was that in Iran he was trying to work out his religion and was sometimes an atheist. He said that he started attending the mosque regularly from the age of [age]. The religion, he said ‘was forcefully put on us’. He said that he turned away from Islam ‘because of its brutality’. He said that he participated in the Ghame Ani ritual where he would strike his own head with a sword so that blood would cover his face. He claimed that he witnessed a public execution of a woman by hanging from a crane, when he was aged 14. He also claimed that he witnessed a killing on the street under NAJA (Law Enforcement Force of the Islamic Republic of Iran). He said in the 2017 Statutory Declaration that at times in his life he was an atheist and at times a believer in God and had been trying to work that out.
In the 2017 Department decision it was noted by the delegate of the Department that there was considerable confusion in his testimony as to when he became a Christian. He claimed in his interview with the Department that the conversion started gradually in Iran and continued in Australia. However, he also said his conversion began in Australia. In his Entry Interview he said that his interest began in Australia. In his 2016 SHEV application he said that he became a Christian in Iran. It was noted in the 2017 Department decision that when he was asked about these inconsistencies, he said that the conversion was gradual. He said that he knew he was a Christian as he felt great, he loved his family and attended church and felt peace.
He told the Tribunal that he could not remember watching Mohabbat Television. He later said that when he started appreciating Christianity ‘that is when trouble started for me’. He said that he thinks it was ‘from when I watched TV’. The Tribunal put to him that he had said that he could not remember watching Mohabbat Television. He said that he could not remember. Asked why he became interested in Christianity he said that he could not remember. He was asked by the Tribunal why he would leave his family religion. He said that he liked the family but not the government. He said that he did not like the fact that the government lied. However he has ‘forgotten everything’. He said that Islam treats people contrary to what the religion states. Furthermore, they forced religion on him. He became fond of Jesus Christ through reading about him. He did not have Christian friends or family members in Iran. Asked if there was a specific time he can remember thinking about getting involved in Christianity he said ‘maybe 2012’. He said that he believes that he saw things on satellite television and did not like the approach of the religion of Islam. Asked if there was anything in particular he did not like, he said he did not know then, but he knows a lot more now. He said that he could not remember how he accessed Mohabbat Television and he does not think his father had access to it. He then said that he was living with his family and accessed Mohabbat Television at home. He was asked if he accessed Mohabbat Television via satellite and said he could not remember. Asked if he could describe programs he viewed on Mohabbat Television he said that he could not remember anything about it including any programs. He could not remember if his family watched Mohabbat Television.
At the interview as part of his 2016 SHEV application he said that he had told his mother his faith was Christian and she was upset. He was asked at the Tribunal hearing how his family felt about him converting. He said that they did not know. When asked about his earlier evidence, he said that he had told his mother but could not remember when. He said that his mother is a good person who says that you must help others. She said that he must respect the Australian government. Asked if she accepted his interest in Christianity, he said that he told her he went to church but not that he was a Christian. She just told him to respect the Australian government. He said that his father does not care so he does not tell him. He has told his brother [Mr G] and he got upset. He said that he does not care about him.
Findings on whether the applicant practised Christianity in Iran
The Tribunal is not satisfied that the applicant became interested in Christianity in Iran, after considering the evidence referred to above cumulatively. The Tribunal has found the evidence to be contradictory and confused, leading to a conclusion that it has been fabricated for the purpose of the claims.
The evidence the applicant gave at his Entry Interview was that, although he did not like the authoritarian nature of society in Iran, (which was tied up with religion), he converted only when he got to Australia. This was the first opportunity for the applicant to tell the Department about his life in Iran and his claims for protection, and for this reason the Tribunal gives this evidence significant weight to the fact that he did not suggest that he converted in Iran.
As referred to above, later accounts by the applicant of his interest in Christianity varied between becoming a Christian in Iran (2016 SHEV application) and having an interest in Iran which turned into a gradual conversion (2016 SHEV interview) and becoming interested in Australia (2016 SHEV Interview, different time). In his 2016 SHEV application he attributed Mohabbat Television as a source of his interest but could not describe it and he told the Tribunal he had forgotten watching it. He said in his 2016 SHEV Interview that he had told his mother he was Christian but he told the Tribunal his family did not know, later changing his evidence and saying he had told her and his brother that he went to church. Notably, much of this contradictory evidence was given prior to the assaults in Australia which he has said have impacted on his memory. The Tribunal does not accept that he took an interest in Christianity in Iran or it would be expected that he would have been able to recount significant milestones of his journey towards Christianity, or at least his first experiences of Christianity, given the minority status of the religion in Iran and the fact that he came from a Muslim family such that it would have been fairly significant for him to change his faith. Further it is reasonable to expect that he would be able to recall whether or not he watched television programs which he found persuasive, what attracted him to Christianity and when he told his family. Instead his evidence about watching Christian television varied and was vague and he could not discuss any programs. His evidence about communications with his family was also vague and unpersuasive. The Tribunal does not accept that he watched Christian television in Iran or that he took any interest in Christianity in Iran, based on the very vague and contradictory evidence about these matters.
The Tribunal does accept that he was not particularly religious in Iran and questioned the coercive and compulsory nature of Islam in Iran. He has been consistent about these views, in various accounts that he has provided of his life in Iran.
Applicant’s practice of Christianity in Australia
The Tribunal accepts that a person may become a refugee sur place because of voluntarily participating in activities which would give rise to a well-founded fear of persecution in his or her country of origin. In this case the applicant claims it is his conversion to the Christian faith.
Pursuant to s 5J(6) of the Act, the applicant bears the responsibility or onus of satisfying the Tribunal that conduct engaged in in Australia was otherwise than for the purpose of strengthening his or her claims to be a refugee.[38] In assessing whether he has become a genuine Christian, the Tribunal acknowledges that religious belief, including Christianity, can take many forms and is not dependent on following rituals, such as attending church.
[38] NBKT v MIMA (2006) 156 FCR 419 at [89]; SZKOZ v MIAC [2007] FCA 1798 at [28]–[29]; SZKHD v MIAC [2008] FCA 112 at [31]; SZMZA v MIAC (No 2) [2008] FMCA 1418 at [16]–[17] and SZMPJ v MIAC [2008] FMCA 1640 at [25]–[27].
[106] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2020’, 14 April 2020.
[107] Danish Immigration Service and Danish Refugee Council, ‘Iran: House Churches and Converts’, February 2018, p.8; UK Home Office, ‘Iran: Christians and Christian converts’, March 2018, pp.5, 29–32.
[108] Research Directorate, Immigration and Refugee Board of Canada, ‘Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government’ (2019–February 2021).
[109] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2020’, 14 April 2020.
190. The most recent psychological report, in 2020, reported that the applicant had symptoms relating to anxiety, depression, PTSD and adjustment issues. He was referred to as having ‘angry, frustrated mood and anxious affect’. The Tribunal’s Guidelines on Vulnerable Persons[110] (the Guidelines) state that a person with PTSD may have poor attention, concentration and distractibility, and there may be hesitancy to disclose due to shame, guilt or anger.[111]As discussed earlier in the decision, the applicant presented at the Tribunal hearings at times as hostile, particularly to authorities, confused and at times incoherent. The Tribunal accepts as claimed by him that this may be caused by impact of [a sport] on his health, and the criminal assaults he has suffered in Australia as well as mental health issues referred to in the medical reports. He repeatedly referred to the criminal attacks on him and appeared to be furious with the Australian government for not assisting him in the ways he believes it should. He also appeared to be somewhat paranoiac about being targeted by criminals, police, the bank and the judiciary in Australia (although there is no medical evidence of paranoia) and his evidence about this was repetitive and constant. There is a real chance that the applicant would draw adverse attention to himself by his confused, rambling and sometimes hostile statements. In turn, there is a real chance that this would draw attention to his interest in Christianity and anti-regime views as well as his criminal history. Since he arrived in Australia, he has made generally antagonistic statements about Iran and Islam. For example at his Entry Interview he said that ‘they give us slogan regarding the religion but they take other people’s rights or ignore peoples’ rights’. He has commented often on Islam being forced on people in Iran. Statements about the coercive nature of Islam and the regime might draw attention to himself if he were to make them at the airport or later, especially if accompanied by the erratic and hostile attitude he displayed at the Tribunal.
[110] Guideline on Vulnerable Persons, AAT, available on the AAT website,
[111] Guideline on Vulnerable Persons, AAT, available on the AAT website,
191. When living in Iran, the applicant was harassed by the Basij on the basis of his non-traditional behaviour and tattoos, and it may be the case that this would also exacerbate interest in him again, although in itself would be unlikely to cause harm. As put to the applicant at the Tribunal hearing sources indicate that tattoos have become more common in Iran.[112] The applicant agreed with the fact that tattoos were quite common but he said that ‘police do what they want’. He said that they ‘use the law as they like’. It was put to him that there would be a fine for a tattoo. He said ‘yes but on top of that is religion’. Instances of an individual being harmed for having a tattoo are rare. There was one tattoo artist who suffered imprisonment and lashes in 2014.[113] In 2015 some political hardliners called for harsher penalties for tattoos, particularly on women.[114] However, members of the Iranian national football team have had tattoos, including one member who has a full ‘sleeve’ and has played for the team for years with little more than chastisement for not covering his tattoos.[115]
[112] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran April 2016’, 21 April 2016.
[113] Deutsche Welle, ‘Passion for tattoos leads to lashings in Iran’, 22 January 2014.
[114] IranWire, ‘Authorities call for Ban on Tattoos’, 28 April 2015.
[115] Radio Zamaneh, ‘Explanations demanded for football players’ tattoos’, 07 September 2015.
192. DFAT considers that there are now many men with a Western-style appearance on the streets of Tehran, and assesses that people in Western dress or with tattoos face a low risk of discrimination.[116]
[116] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2020’, 14 April 2020.
International and domestic observers agree that men are subject to less strict controls on personal appearance than women. DFAT is aware that some men have claimed to have been harassed or discriminated against on the basis of their appearance — for example, for having ‘Western-style’ hairstyles (including through use of hair gel) or clothing styles (including long hair and ripped jeans), visible tattoos or visible hair removal (such as plucked or waxed eyebrows). Notwithstanding such reports, it is common to see young men fitting all of these descriptions on Iranian streets, particularly in larger cities such as Tehran. Tattoos are increasingly popular among young Iranians. Young men with visible tattoos are common in Tehran. DFAT saw some men with tattoos covering nearly the entire length of their arms (‘sleeve tattoos’). DFAT also saw some women with visible – albeit significantly smaller – tattoos than men (for example, on their wrists). Tattooists operate underground, and generate business through word-of-mouth and Instagram. DFAT is not aware of tattooists being targeted by the authorities. Like tattoos, Western-style clothing is common — jeans and short-sleeved t-shirts (including with Western branding) are de rigueur for men in Tehran during summer. DFAT observed a number of men in Tehran with earrings and women with ankle bracelets. DFAT assesses that authorities are far more likely to target women than men for dress code violations. Where there have been incidents of harassment of men for violating the dress code, DFAT assesses these were most likely the result of either over-zealous enforcement by individual security authorities in particular locations (particularly outside of major cities) or because the individual had come to the attention of the authorities for other activities, particularly political activism. DFAT assesses that the estrictions the dress codes place on men do not amount to discrimination. DFAT is not aware of the authorities targeting people on the basis of a ‘Western’ appearance or for having visible tattoos. While such appearances may be frowned upon by more conservative Iranians, DFAT assesses that people of ‘Western’ appearance, including people with visible tattoos, face a low risk of official and societal discrimination.
193. DFAT notes in this report that where the individual has come to the attention of the authorities for other reasons, there have been incidents of harassment for having tattoos. Thus, the applicant’s appearance may exacerbate interest in him if he displays the behaviour and attitude which was apparent at the Tribunal hearings.
194. Furthermore, the applicant’s inability to recall details, as discussed earlier in the decision, may compound interest in him were he to be questioned about his reasons for departure from Iran and this may be regarded as evasive by airport officials or police. For example, he told the Tribunal that he could not recall why he left Iran, later saying it was the government, Basij and religion.
195. Although sources suggest that arrests do not normally take place at the airport unless an asylum seeker is an activist[117], the Tribunal is satisfied that the applicant’s poor memory recall and his behaviour and antagonistic statements may draw attention to his generally anti-regime and anti-Islamic views, exacerbated by his appearance, and that there is a real chance of arrest and harassment at the airport.
[117] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2020’, 14 April 2020.
196. The Tribunal is satisfied that even if he managed to avoid interest at the airport, there is a real chance of drawing attention to himself later in the community through these erratic and hostile statements and behaviour, and Westernised appearance, and that this would lead to adverse interest from the authorities concerning his religion, political opinion and criminal record.
197. The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Refugees Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50% chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[118]
[118] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p171.
198. The Iranian regime in the last few years has arrested numerous citizens who have expressed anti-regime opinions or have converted to Christianity. The Tribunal is satisfied that if the applicant were to return to Iran in the reasonably foreseeable future there is a real chance of serious harm (in the sense of a substantial chance[119] which may be less than 50%[120]) for cumulative reasons of religion and political opinion, compounded by interest in him due to his returnee asylum status, criminal record and appearance. In considering the claims cumulatively, the Tribunal is satisfied that the possibility he will face serious harm is greater than a remote chance, such as to amount to a real chance. The Tribunal is satisfied that the chance of harm is more than assumption or mere speculation (MIEA v Guo (1997) 191 CLR 559).
[119] Chan v MIEA (1989) 169 CLR 379.
[120] Chan v MIEA (1989) 169 CLR 379.
199. Section 5J(1)(c) requires that the persecution relates to all areas of the country. The Tribunal is satisfied that persecution would relate to all areas of the country, given the harm he fears from authorities.
200. Section 5J(2) of the Act provides that a person does not have a well-founded fear of persecution if effective protection is available. As the harm would be from the authorities, the Tribunal is not satisfied that effective protection would be available.
201. Section 5J(3) of the Act provides that a person does not have a well-founded fear of persecution if they could take steps to modify their behaviour. The behaviour that is an expression of political opinion or religious views are exceptions as a person is not required to alter or conceal political beliefs or religious beliefs.
The Tribunal is satisfied that the applicant faces a real chance of serious harm for the essential and significant reason of his political opinion and his religious views considered cumulatively. The Tribunal is satisfied that the harm would involve serious harm (s 5J(4)(b)) as it is described in s 5J(5) of the Act, as it is likely to involve deprivation of liberty or physical ill-treatment. The Tribunal is satisfied, given the conduct of the regime in recent months towards political opponents, that the harm would involve systematic and discriminatory conduct (s 5J(4)(c)).
203. In conclusion, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for the cumulative reasons of his political opinion and religion.
FINDINGS ON FIRST APPLICATION FOR REVIEW
204. The Tribunal is satisfied that the applicant has a well-founded fear of persecution for the cumulative reasons of religion and political opinion. The Tribunal is therefore satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
For case number 1838172: the Tribunal remits the decision to refuse the applicant a Safe Haven Enterprise visa for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
For case number 2013623: The Tribunal sets aside the decision to refuse the applicant a Safe Haven Enterprise Visa and substitutes it with a decision that the visa application made on 9 April 2020 was not valid.
Jane Marquard
MemberATTACHMENT A - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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