1903163 (Refugee) - [2023] AATA 3604

1903163 (Refugee) [2023] AATA 3604 (8 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBERS:1903163
2104733

COUNTRY OF REFERENCE: Iran
MEMBER:Brendan Darcy
DATE:8 August 2023
PLACE OF DECISION: Melbourne
DECISION:For case number 1903163: The Tribunal affirms the decision made by the delegate of the Minister on 7 February 2018 not to grant the applicant a protection visa.
For case number 2104733: The Tribunal sets aside the decision not to grant the applicant a protection visa and substitutes it with a decision that the visa application made on 6 October 2020 was not valid.

Statement made on 08 August 2023 at 9:44am
CATCHWORDS
REFUGEE – protection visa – Iran – arrived in vicinity of the Territory of Ashmore and Cartier Islands – first visa application valid – adulterous relationship – complaint lodged – summons – credibility issues – no evidence – inconsistencies – involuntary failed asylum seeker or forced returnee – voluntary return – criminal offence in Australia – good behaviour bond – double jeopardy – past punishment during compulsory national service – physical and mental health symptoms – second visa application set aside as invalid – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 46A, 48AA, 48B, 65, 91K, 195A, 425, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
CLS15 v Federal Circuit Court of Australia [2017] FCA 577
DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178
DFO19 v MICMSMA [2023] FCAFC 38
Kopalapillai v MIMA (1998) 86 FCR 547
MICMSMA v CBW20 [2021] FCAFC 63
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is a combined decision for review applications numbered 1903163 and 2104733.
Two separate decisions made by delegates of the Minister for Home Affairs to refuse protection visas under s 65 of the Migration Act 1958 (Cth) (the Act) were made on 7 February 2018 and 8 April 2021. Both decisions pertain to the same applicant for Class XD Subclass 785 protection visas.
The applicant, who claims to be a citizen of the Islamic Republic of Iran (Iran), was born on [date] in Iran’s East Azerbaijan Province.
In relation to the first visa application, on 7 February 2018, the delegate acting on behalf of the Minister did not find credible the applicant’s claims about an extramarital affair or his fears of persecution in Iran for these reasons to be genuine.
In relation to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1903163 (Refugee)

Details

AGLC: 1903163 (Refugee) [2023] AATA 3604
Case: [2023] AATA 3604
Decision Date: 8 August 2023

CaseChat Overview and Summary

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant the applicant a protection visa. The applicant, who arrived in the vicinity of the Ashmore and Cartier Islands in September 2012, claimed to fear persecution in Iran due to an adulterous relationship and associated threats from the woman's husband and potential legal repercussions. The delegate's decision was based on a lack of overall credibility in the applicant's claims.

The court was required to determine whether the applicant had established claims for protection under the *Migration Act 1958* (Cth), specifically whether he met the refugee criterion or the complementary protection criterion. This involved assessing the credibility of his account regarding the relationship, the threats he faced, and the potential consequences of his return to Iran, as well as considering his past experiences, including military service and a conviction for public drunkenness and theft. The court also had to consider the impact of these events on his mental health.

The court considered the applicant's claims in light of the Refugee Convention and the complementary protection provisions of the Act, as well as relevant guidelines and country information. It noted that the applicant's initial visa application had been declared invalid due to a bar under s 91K of the Act, which was subsequently lifted by Ministerial intervention. The court found that the applicant's critical claims regarding the adulterous relationship lacked overall credibility, and therefore, he did not meet the criteria for the grant of a protection visa.

The court affirmed the delegate's decision to refuse to grant the protection visa.

Orders

Orders of the court

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Background

Background to the litigation

In relation to the second visa application, on 8 April 2021, the delegate refused to grant the visa on the basis that the applicant’s critical claims about an adulterous relationship lacked overall credibility. Background With any valid visa or official permission, the applicant arrived in the vicinity of Australia’s Ashmore and Cartier Islands territory in the Indian Ocean [in] September 2012 on a boat labelled [name]. The applicant was allocated the alphanumeric identity or ‘Boat ID’ [deleted]. Having been intercepted by Australian officials, the applicant was subsequently taken to Darwin and placed into immigration detention. Later, the applicant was interviewed on 19 October 2012. A copy of the audio file is in the applicant’s Departmental file ([deleted]). According to the record of the arrival interview, the applicant indicated the reason he departed Iran was because his life was in danger as he was in a relationship with a married woman. Asked what the applicant thought would happen to him on return to his country of nationality, the applicant responded that, because of his problem, the authorities would execute him. [In] December 2012, the applicant was granted a Class UJ Subclass 449 (Temporary Humanitarian Stay) visa as a result of a Ministerial intervention outcome under s 195A of the Act. On 13 December 2012, the applicant was granted a bridging visa which was valid until 6 June 2013 and was released from detention. On 7 June 2013, the applicant became an unlawful non-citizen in Australia until he was granted a further bridging visa on 24 June 2013. On 14 August 2013, the applicant lodged a Class XA Subclass 866 Protection visa; however, the application was declared invalid due to the operation of a bar under s 91K of the Act. The applicant became unlawful between 27 December 2013 and 24 June 2014 when the Minister intervened to lift the bar under s 46A. On 4 December 2015, the applicant was invited by the Department to apply for one of the subclasses of temporary protection visa.Background to the first visa application The applicant remained either unlawful or had a bridging visa in the community until he validly applied for a Class XD Subclass 785 (Temporary Protection) visa after a s 46A bar was again lifted through Ministerial intervention. The date of application was 10 August 2016. The applicant was subsequently granted an associated bridging visa on 25 August 2016. On 2 August 2016, the applicant signed a statutory declaration and provided it with his temporary protection visa application. On 12 July 2017, the applicant was interviewed by the Department in relation to his claims for protection. This evidence is outlined later in this decision. On 7 February 2018, a delegate refused to grant the applicant a protection visa. On 13 February 2018 the refusal decision was referred to the Immigration Assessment Authority (IAA). On 30 November 2018, IAA wrote to the applicant indicating that his case (reference number: IAA18/04341) had been referred in error after the IAA had been advised by the Department of Home Affairs following the Federal Court judgment in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178. In that decision it was determined that the applicant did not enter Australia at an ‘excised offshore place’ for the purposes of the Act. As a result, the applicant was not an irregular or unauthorised maritime arrival within the meaning of the Act and the decision for review was not a ‘fast track reviewable decision’.

Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEBackground and claims for protection The applicant claimed to be born in East Azerbaijan on [date]. Copies of identity documents, an unverified scanned copy of the applicant’s Iranian passport, are on the applicant’s Departmental files ([deleted]). Claims raised in the first visa application The applicant’s claims for protection and the evidence were first provided by the applicant in his first visa application. This application included a statutory declaration dated 2 August 2016 detailing his claims for protection. The following is a summary of the claims the applicant has made since his arrival in Australia: · The applicant also claims to be of Azeri or Azeri Turkish ethnicity; that he is a Shi’a Muslim but is not strictly observant and fears persecution as a non-practising Muslim; · The applicant met a woman named [Ms A] in early 2011 while he was shopping. They began a serious relationship. [Ms A] told him she was single, and he thought they intended to get married;· In late 2011, the applicant discovered that [Ms A] was married. While together one day, [Ms A]’s phone rang. He answered the call as she was not in the room. The caller asked who the applicant was and he replied he was a friend of [Ms A] and said that they were in a relationship and they intended to get married. · The applicant asked the caller who he was. The caller said that he was [Ms A]’s husband. · [Ms A]’s husband confronted his wife. She said that she wanted a divorce but her husband would not agree. The applicant then ended his relationship with [Ms A].· The applicant spent the next year living in fear. Over the next six months, [Ms A] would call him at least once a week, telling him that she had applied for a divorce. She told him that her husband did not accept it and would beat her to change her mind and to obtain information about his whereabouts so he could lodge a complaint for adultery. She told him that she refused to give her husband his details. He fears that the authorities would execute him. · As suggested by [Ms A], the applicant paid money to her to give to her husband so that he would give up trying to locate the applicant. The applicant paid a few times but [Ms A]’s husband did not stop looking for him. This happened over about a six-month period following their breakup until early 2012. · Eventually the applicant refused to pay more money. [Ms A] continued to call him until he stopped answering her calls. · Becoming depressed because of the fear and stress from the situation, the applicant left his job as he could not focus on anything. · The applicant feared the law – not just the woman’s husband.· In August 2012, [Ms A] told him by phone that her husband has figured out his identity, where he lived and would take him to court. · [Ms A] said she could no longer bear her mistreatment and would have to give his details to her husband. The applicant had no choice but to flee Iran. · The applicant completed his military service in 1996. He was detained once following his service. While on service, he had permission to take a day off but he took a week off. He was sentenced by a military tribunal to one month’s imprisonment in a military reprimand centre. · About two years ago, he was out drinking with a few friends in the city one night. They went to a restaurant where he found a purse on the ground. He took the purse, wanting to give it to the police but his friend told him to do so the next day. He was on the bus heading home when the police came looking for the purse. They knew because there was a mobile phone in the purse. He was taken to the police station where he stayed for a few hours. He was charged with public drunkenness and theft. He pleaded guilty and was imposed a one-year good behaviour bond. · He suffered from depression because of what happened with [Ms A]. He saw a psychologist once every four weeks and was taking medication. He is much better now but if returned to Iran, his mental health will greatly suffer.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia 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 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) (‘the complementary protection criterion’). 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), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEBackground and claims for protection The applicant claimed to be born in East Azerbaijan on [date]. Copies of identity documents, an unverified scanned copy of the applicant’s Iranian passport, are on the applicant’s Departmental files ([deleted]). Claims raised in the first visa application The applicant’s claims for protection and the evidence were first provided by the applicant in his first visa application. This application included a statutory declaration dated 2 August 2016 detailing his claims for protection. The following is a summary of the claims the applicant has made since his arrival in Australia: · The applicant also claims to be of Azeri or Azeri Turkish ethnicity; that he is a Shi’a Muslim but is not strictly observant and fears persecution as a non-practising Muslim; · The applicant met a woman named [Ms A] in early 2011 while he was shopping. They began a serious relationship. [Ms A] told him she was single, and he thought they intended to get married;· In late 2011, the applicant discovered that [Ms A] was married. While together one day, [Ms A]’s phone rang. He answered the call as she was not in the room. The caller asked who the applicant was and he replied he was a friend of [Ms A] and said that they were in a relationship and they intended to get married. · The applicant asked the caller who he was. The caller said that he was [Ms A]’s husband. · [Ms A]’s husband confronted his wife. She said that she wanted a divorce but her husband would not agree. The applicant then ended his relationship with [Ms A].· The applicant spent the next year living in fear. Over the next six months, [Ms A] would call him at least once a week, telling him that she had applied for a divorce. She told him that her husband did not accept it and would beat her to change her mind and to obtain information about his whereabouts so he could lodge a complaint for adultery. She told him that she refused to give her husband his details. He fears that the authorities would execute him. · As suggested by [Ms A], the applicant paid money to her to give to her husband so that he would give up trying to locate the applicant. The applicant paid a few times but [Ms A]’s husband did not stop looking for him. This happened over about a six-month period following their breakup until early 2012. · Eventually the applicant refused to pay more money. [Ms A] continued to call him until he stopped answering her calls. · Becoming depressed because of the fear and stress from the situation, the applicant left his job as he could not focus on anything. · The applicant feared the law – not just the woman’s husband.· In August 2012, [Ms A] told him by phone that her husband has figured out his identity, where he lived and would take him to court. · [Ms A] said she could no longer bear her mistreatment and would have to give his details to her husband. The applicant had no choice but to flee Iran. · The applicant completed his military service in 1996. He was detained once following his service. While on service, he had permission to take a day off but he took a week off. He was sentenced by a military tribunal to one month’s imprisonment in a military reprimand centre. · About two years ago, he was out drinking with a few friends in the city one night. They went to a restaurant where he found a purse on the ground. He took the purse, wanting to give it to the police but his friend told him to do so the next day. He was on the bus heading home when the police came looking for the purse. They knew because there was a mobile phone in the purse. He was taken to the police station where he stayed for a few hours. He was charged with public drunkenness and theft. He pleaded guilty and was imposed a one-year good behaviour bond. · He suffered from depression because of what happened with [Ms A]. He saw a psychologist once every four weeks and was taking medication. He is much better now but if returned to Iran, his mental health will greatly suffer.