1903818 (Refugee)

1903818 (Refugee) [2023] AATA 2270 (28 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Bernie Carrick
CASE NUMBERS:  1903818 and 2112695
COUNTRY OF REFERENCE:                   Iran
MEMBER:Jane Marquard
DATE:28 March 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 28 March 2023 at 11:32am
CATCHWORDS
REFUGEE – protection visa – Iran – review of Safe Haven Enterprise visa refusal – review of SHEV visa refusal – imputed political opinion – anti-regime – renounced Islam – encountered problems with the Basij due to appearance, drinking, smoking – harassment from ex-girlfriend’s parents – detained for leaving army – attended protests in Australia and holds anti-regime views – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 91L(1), 36, 46A, 48, 65, 91K
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133,
Chan v MIEA (1989) 169 CLR 379
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
MIEA v Guo (1997) 191 CLR 559
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
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 decision of the Administrative Appeals Tribunal (the Tribunal) relates to two 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 5 January 2017 to refuse to grant the applicant a Safe Haven Enterprise (Subclass 790) visa (SHEV) under s 65 of the Migration Act 1958 (Cth) (the Act). This is application number 1903818.
The second is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 September 2021 to refuse to grant the applicant a SHEV under s 65 of the Act. This is application number 2112695.
The applications have been considered jointly with the consent of the applicant as the claims and evidence are the same in each. The background to the applications is explained below.
BACKGROUND TO REVIEW AND OVERVIEW OF APPLICANT’S CIRCUMSTANCES
The applicant is [an age]-year-old man from Tehran, Iran. His father, sister, brother, aunts and uncles reside in Iran. His brother had an accident as a child and suffers a number of physical and mental problems. The applicant’s mother has passed away since he has been in Australia. The applicant has two cousins in Australia.
The applicant is of Persian ethnicity and speaks Farsi, as well as [another language] and English. He was born in Tehran and lived there until he came to Australia.
He first arrived in Australia [in] May 2013 by boat without a visa. He arrived at the Territory of Ashmore and Cartier Islands (Ashmore Reef), a remote reef located between Western Australia and Indonesia, and was classified as an ‘unauthorised maritime arrival’ by the Department of Home Affairs (under a former name) (the Department). Unauthorised maritime arrivals were defined in s 5AA of the Act, based on arrival method, and he was defined in this way as he arrived without a visa. He was taken to immigration detention in Darwin. He attended an Entry Interview on 1 June 2013. At the Entry Interview he claimed that he left Iran because of social problems and unemployment. He said that the principal reason was ‘lack of economic opportunity’. He said that he was not involved in any political groups or activity and had not attended protests. He said that there was ‘no social life’ in Iran. He said that he had never been arrested or detained.
Unauthorised maritime arrivals were barred from applying for visas under s 46A of the Act unless this bar was lifted by the Minister. Following the lifting of the bar, on 11 July 2013 he was granted a Humanitarian Stay (Temporary) (Subclass UJ-449) visa. At the time it was thought that the effect of this type of visa was to bar the making of other types of visa applications under s 91K of the Act (because at that time the applicant was believed to be an unauthorised maritime arrival). The bar on making a visa application under s 46A of the Act was lifted and the applicant was invited in writing to apply for a Temporary Protection Safe Haven Enterprise (Subclass 790) visa on 15 July 2016. In that letter it was explained to him that the Minister had exercised its power under s 46A(2) of the Act to allow him to make a valid application.
The applicant applied for an XE-790 Safe Haven Enterprise Visa (SHEV) on 31 October 2016. He claimed that he could not find employment in Iran as he had a criminal record. He also claimed that he did not agree with the enforced dress code or having to live his life as a Muslim and abide by rituals such as fasting for Ramadan. He said that he had attended a protest seven years prior and a person next to him was shot. He said that in 2007 at a stadium he was arrested for drinking alcohol and convicted for public disturbance. In 2010/11 he was again arrested for spending time with his girlfriend and a restraining order was issued. He feared his ex-girlfriend’s parents would harass him and he also feared the authorities would harass him for being a traitor as he had been outside Iran.
This SHEV application was refused by the Department on 5 January 2017. The delegate was not satisfied that lack of employment amounted to persecution or that his girlfriend’s parents would harm him. As he had no political profile the delegate was not satisfied that he would be harmed by the authorities.
After the application was refused by the Department, it was referred to the Independent Assessment Authority (IAA) for review under Part 7AAA of the Act because at that time the applicant was considered to be an unauthorised maritime arrival and therefore a ‘fast track’ applicant and such decisions were reviewable by the IAA. The IAA affirmed the decision [in] March 2017. The matter was taken to judicial review and dismissed [in] October 2017. The applicant applied for further judicial review and the Minister withdrew [in] November 2019. The applicant’s case was impacted by the decision in DBB16 v MIBP (2018) 260 FCR 447 in which the court determined that Ashmore Reef is not an excised offshore place and therefore the applicant was not an ‘unauthorised maritime arrival’ through the act of entering Australia by sea at Ashmore and Cartier Islands. This meant that the applicant was not a ‘fast track applicant’, as defined in s 5(1) of the Act and the subsequent decision to refuse to grant the applicant a visa was not a ‘fast track decision’. As a result, he was able to apply to this Tribunal for review of the decision by the Department dated 5 January 2017 to refuse his application for a SHEV. The matter was then referred to this Tribunal for review on 19 February 2019. This is the first application for review.
The background of the second application for review is as follows. Section 91K of the Act provides that a visa application, other than a Temporary Safe Haven visa application, is not valid if, at the time of application, the applicant held a Temporary Safe Haven visa. Prior to 2015, the s 91K bar applied to unauthorised maritime arrivals (as the Department granted them Temporary Safe Haven visas to enliven s 91K). The applicant was granted such a visa on 11 July 2013 and was therefore banned from applying for a permanent protection visa. On 8 April 2019 the Department initiated a s 48B request for Ministerial Intervention which was allowed on 8 November 2019. Additionally, pursuant to the decision in MICMSMA v CBW20 [2021] FCAFC 63, the s 91K bar does not apply.
On 24 September 2020 the applicant was notified by the Department that his SHEV application was invalid and therefore could not be considered because he had previously been granted a Subclass 449 temporary safe haven visa and was therefore barred from applying. Subsequently, that bar was lifted. On 16 October 2020 the Department wrote to the applicant, providing a notice under s 91L(1) and s 48B(1) of the Act, notifying him that the s 91K bar and s 48A bar were lifted on 8 November 2019. The applicant was notified that he had seven working days from the date of receiving the notice, to lodge a valid application for a visa. Following these events, the applicant applied for a SHEV on 30 October 2020 (matter number 2112695), relying on the same submissions as in the first application. An interview was held on 17 June 2021. He confirmed that he departed Iran primarily due to the poor economic situation and has not participated in political activities. He said that he maintained the pretence of being a devout Muslim but did not fast or participate in Ashura. He also smoked and drank but he was not arrested or seriously punished for this. He feared harm as he did not have a passport and because he is a westernised man. He fears being imprisoned, beaten and flogged. The Department refused the visa on 10 September 2021. The delegate of the Department was not satisfied that there was a real risk of serious or significant harm on the basis of being a non-practising Muslim, a westernised person or a failed asylum seeker. The delegate generally accepted his evidence but found that there was no real chance of serious harm or real risk of significant harm if he were to return.
These matters, being the application dated 31 October 2016 (refused 5 January 2017) and the application dated 30 October 2020 (refused 10 September 2021) are considered here concurrently, with the consent of the applicant, as the claims and evidence relate to both matters.
SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW
The applicant has applied for a SHEV.[1] 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 gives the visa-holder the right to stay in Australia temporarily for five years.
[1] See Migration Regulations 1994 (Cth), Sch 1
Australia acceded to the 1951 Convention relating to Status of Refugees[2] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[3] in 1973, thereby undertaking to apply their substantive provisions.[4] 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]
[2] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
[3] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
[4] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
[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 refer 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). 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 (the family member criterion).[8]
[6] Migration Act 1958 (Cth) (the Act), s 36(2)(a)
[7] Section 36(2)(aa) of the Act
[8] Section 36(2)(b), (c) of the Act
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–5LA of the Act, which are extracted in Attachment A to this decision.
Complementary protection criterion
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
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.
EVIDENCE CONSIDERED IN THIS REVIEW
The Tribunal has considered evidence in the Department files and evidence before this Tribunal. The Tribunal has also considered independent country information about Iran.
The evidence considered includes the following documents:
·Irregular Maritime Arrival and Induction Interview dated 1 June 2013 (the Entry Interview)
·Application for a SHEV dated 31 October 2016
·Statutory Declaration declared by the applicant on 26 October 2016
·Decision of the Department dated 5 January 2017
·Submissions of the representative (various)
·Notice of Intention to Marry dated 2007
·Medical certificate
·Driver’s licence
·Birth certificate
·National identification card
·Record of results and Certificate I in [course] at [TAFE]
·Iranian Military Service certificate
·Application dated 30 October 2020
·Decision of the Department dated 10 September 2021
·Statutory Declaration dated 17 February 2023
·Submissions dated 23 February 2023
·Photographs provided to the Tribunal in February 2023.
The applicant appeared before the Tribunal on 28 February 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant confirmed that he could understand the interpreter. The applicant was represented in relation to the review.
The evidence of the applicant is referred to in the findings below. Not all the evidence is referred to in the findings as they incorporate reference to the key information that the Tribunal has found to be relevant to the determination of the issues in the case.[9]
[9] The Tribunal notes that it is not required to make explicit reference to 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
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 renounced the Islamic faith.
·Whether there is a real chance of serious harm or a real risk of significant harm for the applicant as a person who has renounced Islam, or on the basis of his appearance, political opinion or as a returnee.
These issues and other threshold issues are discussed below.
FINDINGS
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 to be an Iranian citizen and confirmed that he had an Iranian passport which he said was taken by the people smugglers on arrival in Indonesia. The Tribunal is satisfied on the basis of this evidence, his language and his testimony that the applicant is a national of Iran, and that Iran is the receiving country for the purposes of the legislation.
Findings of fact
Assessing credibility
The Tribunal must assess the credibility of the applicant’s claims about what took place in Iran. In doing so, the Tribunal acknowledges that 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.[10] As discussed with the applicant at the Tribunal hearing, the fact that he has been in Australia since 2013 would no doubt have impacted on the presentation of his evidence, given that memory becomes more fallible over time.
[10] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT website, < type="1">
Assessment of credibility is inherently difficult and at times can be based on imperfect perceptions of truth.[11] 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’.[12] An Australian study found that tribunal members may rely on assumptions which can be inconsistent with psychological literature.[13]
[11] Fox v Percy (2003) 214 CLR 118
[12] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010), International Journal of Refugee Law, Volume 22, Issue 4, 469-511, < 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 that there may be factors that influence how evidence is presented and assumptions which may consciously or otherwise influence decisions.[14] The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia.[15] 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.
[14] H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9
[15] 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 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

The Tribunal has taken into consideration the Tribunal’s Guidelines on the Assessment of Credibility,[16] 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. 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.[17] A similar approach is taken in the Department’s Refugee Law Guidelines[18] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[19] which provides useful guidance for this Tribunal.

[16] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT website, < SZLVZ v MIAC [2008] FCA 1816 at [25]

[18] Policy – Refugee and humanitarian – Refugee Law Guidelines, Department of Home Affairs, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)

[19] UNHCR Handbook, re-issued February 2019 at [203]–[204]

The Tribunal accepts the personal particulars and background information provided

The Tribunal accepts the following information about the applicant’s background, as it has been consistently provided and there is no reason to doubt the information.

The applicant was born in Tehran and lived there until he came to Australia. His mother passed away while he has been in Australia, but his father is still living in Iran. His father is working for [an employer] although he retired from his job in [a workplace] 10 years ago. His mother was a housewife. His sister is married with children and does not work, but she does look after their brother, who has a number of physical and mental problems. He also has uncles, aunts and cousins in Iran, and two cousins in Australia.

The applicant completed middle school in [year] and then withdrew from two high schools in [year range]. He then did his compulsory military service, where he was [in a certain role], from January [year] to July [year]. After this he worked as [an Occupation 1] from 2010 to 2013. He also worked in his friend’s business installing [equipment] but it was ‘too risky’ so he stopped, as the police prevented people from installing [that equipment]. This was only a side business, in which he helped his friend about 10 times. His friend taught him how to do the installations.

He had a girlfriend in Iran prior to departure but her family took out a restraining order against him. He was arrested in 2010/11 and spent 12 days in detention in relation to this restraining order.

He departed Iran as he was unable to find a job. He said that he knew that Australia had freedoms and his cousin lived in Australia and had just done some research. He said also that he came ‘mostly looking for freedom’.

He lives by himself in Australia.

When living in Iran, did the applicant renounce Islam and encounter some problems from the Basij due to his appearance, drinking and smoking?

The Tribunal accepts that when the applicant was living in Iran, he rejected Islam and identified with atheism. He has been consistent about this evidence and the ways in which he rejected Islamic traditions. He said that he was ‘forced to live as a Muslim’ and was not free to express himself how he wished. He has consistently stated that he felt like an outsider to the religion and only practised because it was compulsory to do so, also failing to comply with all the Islamic traditions. He said that he did not want to fast or pray or attend Ashura festival and often did not do so. In his interview with the Department, he explained that his family were not particularly religious although they believed in God, and his mother prayed a lot ‘for his brother’ but did not go to mosque although she fasted at Ramadan. He said that his father never pressured him to be religious, but rather ‘to be a good person and believe in God’. His sister and her family, and his aunts, uncles and cousins were not particularly religious either, particularly the ones in his age group.

He has also explained his beliefs saying that he does not belong to any religion, particularly the Muslim faith. He said that he is a ‘happy person and wanted to celebrate with friends’ but could not because of the Basij. He also claimed in his application that he did not have the freedom to grow his hair or wear what he wanted. He said that he does not go to the mosque in Australia and ‘does not really’ consider himself a Muslim as it is ‘too hard’ to be a real Muslim. Asked if he considers himself as having religion, he again said that he ‘is not of any religion’.

The Tribunal is also persuaded by his evidence as his experience accords with independent country information which indicates that among the youth in particular, there are many Iranians who are not devout practitioners. ACCORD’s July 2018 report quotes two different recent sources indicating that ‘it is not uncommon for people to claim that they do not believe’ and that ‘a significant number of young Iranians do not consider themselves Muslims’.[20]

[20] Austrian Centre for country of Origin and Asylum Research and Documentation, ‘Iran COI Compilation’, 1 July 2018

The Tribunal accepts that the applicant’s family did not encounter difficulties from the Basij for not being devout, because they ‘did not show themselves off’. He explained that people did not know they were not fully engaged in the religion, because they were ‘careful around neighbours’. Country sources do suggest that there are many Muslims who have rejected institutionalised religion[21] and that it is primarily those who actively denounce Islam that are charged or arrested.[22]

[21] The Economist, ‘Religion: take it or leave it’, 1 November 2014

[22] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020

The Tribunal also accepts that the applicant encountered a number of problems from the Basij when living in Iran, including being harassed because he was eating and drinking during Ramadan. In evidence he said that he was not being obvious about his rejection of Islam, but someone may have told the Basij. He said when the Basij caught him, they ‘slapped him in the face’ and threatened him once or twice (he later said it was only once). On another occasion the Basij came to the park and hit him on the head, as he had long hair, and said to him that his hair looked like a girl’s, and they cut it with their scissors. He said that this felt ‘shameful in front of his friends’. The Tribunal noticed that there were some inconsistencies in his evidence about the arrests and discussed these with him at the Tribunal hearing. In his Entry Interview he said that he had never been arrested. In his first application he claimed that he had been arrested twice, once in 2007 for public nuisance, for drinking in a stadium for which he got a criminal conviction. At the Tribunal hearing he was asked if there were any times he was arrested or detained. He said that he was returning from a stadium and all of the people in the bus were taken by the police and detained for one night. This was because there were ‘two crazy people in the bus throwing things out of the bus’. When the bus stopped the two crazy people jumped out of the bus, but the police came on the bus and arrested everyone, from children to old people. His father came to the police station and he was released. When it was put to him that at the Entry Interview, he said that he was never arrested, he said that when he was in the detention centre he was unprepared and did not complete full statements about what took place in Iran. The Tribunal accepts that this may have been the case as Department entry interviews were generally fairly brief and took place soon after the applicants had completed a difficult boat journey when they may not have fully explained everything that happened to them.

The Tribunal accepts his evidence about being harassed by the Basij as he has been consistent about his anti-Islamic views and activities (such as drinking and smoking) and continues to hold those views. Further, his evidence does correlate with independent sources about harassment of civilians by the Basij at the time.[23]

[23] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 21 April 2016

Did the applicant face harassment from his ex-girlfriend’s parents?

The Tribunal accepts the applicant’s evidence that his ex-girlfriend’s parents harassed him as they did not like his relationship with their daughter. He said in his Departmental interview, and confirmed at the Tribunal hearing, that they had been together for five years, but her family did not approve because he had not finished his military service and did not have a job. He said that he took his father’s car, and they ran away together and when they got back the parents were not happy. They no longer wanted them to marry. He then felt depressed and left the military and went to see her. The parents found out and called the police and took out an order against him, saying he was a nuisance to the family. He was then arrested at the end of 2010 for being in public with his (ex) girlfriend. The applicant claims to have spent 12 days imprisoned after this, where he was beaten up by other prisoners. After his release, he was ordered to not go within 10 metres of his (ex) girlfriend’s house. His account of this relationship contained the kind of detail commensurate with truth and he also provided a copy of a Notice of Intention to Marry in 2007 to corroborate his story.

Was the applicant detained as punishment for leaving the army?

The Tribunal accepts that the applicant was detained for one week for trying to leave his military service. This evidence has been consistently provided. The applicant claimed in his SHEV application that he served a period of three years in the Iranian Military, where he tried to escape and was detained for one week as punishment. He served a total of around three years in service in [military department]. He was punished with one week’s detention for leaving the army. Asked to elaborate on this at the Tribunal hearing, he said that he did not want to continue in the military because he wanted to be with his girlfriend. However, the army found him and captured him, and he then completed his service. The Tribunal accepts this evidence, given that overall it has found his evidence to be credible.

Has the applicant attended protests in Australia, and does he hold anti-regime views?

The Tribunal accepts that the applicant is a member of a [group] of Iranians in [City 1, Australia] and that he joined the group prior to the recent diaspora protests. He said that a person needs to make a request to the administrators to join, which he did as the group is an information group for Iranians in [City 1, Australia]. The group organises concerts and social events such as new year festivals, which he has attended. He explained that the group ‘became political’ and organised activities once the events of 2022 took place in Iran. He said that people in the [group] organise events and protests, but he does not know them personally and does not have time to be an organiser. He said that the administrators of the Iranian [group] advise everyone when there is an event or protest taking place.

The Tribunal also accepts that the applicant has attended three or four protests in Australia over the few months prior to the Tribunal hearing, given his persuasive evidence about the reasons for the protests and the importance of the demonstrations. He explained that they take place every Saturday and he attended because he wants the Iranian government to stop killing people in his home country and to bring freedom to Iran. He said that the protests begun after ‘a young girl who was not wearing the hijab correctly’ was killed by the government. He said he supports her right to wear ‘what she believes is right for her’. He said that some of the protests have been about women’s rights, about having the freedom to dress and express themselves. He said that the objectives of the protests are freedom for all citizens of Iran. He said that he feels that it is important that people protest as it is the only option they have to express themselves. He said that in Australia, there is freedom of speech and police take care of the protestors but in Iran, ‘it is the opposite’, they are imprisoning thousands of people and have executed two or three people every month in the morning. The applicant also provided photographs of himself at a protest in [City 1, Australia]in [2022] to corroborate his claims. He said that the [group] informed people a few days ahead of the event on [social media]. He said that there were [number range] protestors present, both women and men. They gave out flags and he held one. There was a speaker, but he does not know who it was, and they called for a halt on executions and to give women freedom. He was asked if they called for the Australian government to take action. He said that he was not sure.

While the applicant’s knowledge of political affairs is not sophisticated, he does appear to have general knowledge about what is happening in Iran, and was able to describe the protests and his reasons for attendance. Media articles reflect his evidence that protests in [City 1, Australia] took place in [2022].[24]

[24] [Source deleted].

The applicant was not politically active in the past, either in Iran or Australia, and had only participated in protests over the last year, in close proximity to the Tribunal hearing. As this might suggest he only became involved for the purposes of bolstering his refugee claim, the Tribunal asked him why he had not participated in the past. He said that the incident involving the young woman only took place four months ago, and there were no protests before that. While there have been some smaller scale protests in Australia in the past relating to Iran, it is true that the protests in Australia and globally in the last year have been of unprecedented scale and intensity.[25] Sources suggest a new-found unity of purpose for the Iranian diaspora: ‘from those who fled in the 1980s after Iran’s 1979 Islamic Revolution to a younger generation of Iranians born and raised in Western capitals, many in the diaspora community say they feel an unprecedented unity of purpose and affinity with the demonstrations at home sparked by the death of a 22-year-old woman detained by Iran’s morality police’.[26] Similar sentiments were expressed by the applicant at the Tribunal hearing, where he said that the protests are for the people of Iran to gain freedom and do not relate to his application for review.

[25] See for example Associated Press, 12 October 2022, <Protests and marches worldwide bring together Iranians living abroad | PBS NewsHour>

[26] Associated Press, 12 October 2022, <Protests and marches worldwide bring together Iranians living abroad | PBS NewsHour>

The Tribunal accepts that the applicant has posted photographs of himself on social media attending the protests. He said that he had not shared anti-regime articles however, as he fears spies in Australia, otherwise he would post this material, to ‘do my share for my people’. He said that one of his friends posted anti-regime material on social media and then his [social media] account was hacked. He said that he is not in close contact with this person but has seen him at protests and this person told him to be careful about what he posted. The Tribunal accepts this evidence, given country sources referred to later in this decision. The Tribunal also accepts his evidence that he expresses his anti-regime views when he is with people he trusts, as this does reflect his decision to attend protests and post photographs of this on social media.

The Tribunal also accepts his assertion that if he returned to Iran, he would get involved with the protests ‘for sure’. He emphasised that he would have to participate as Iranians are seeking freedom. He said that he is participating currently, although he did not do so in the past, because there are many Iranians who have joined in for the first time, because there has been an opportunity to do so. This is credible evidence, as there is no doubt that recent events in Iran have politicised and unified Iranians in the diaspora in an unprecedented manner.[27]

[27] Associated Press, 12 October 2022, <Protests and marches worldwide bring together Iranians living abroad | PBS NewsHour>

On the basis of this evidence considered cumulatively the Tribunal is satisfied that the applicant has participated in political activities in Australia for genuine concern for the people of Iran rather than for the purpose of bolstering his refugee claim (s 5J(6)).
Does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?
A person is a refugee if he or she is outside their country of nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail him or herself of the protection of that country.[28]
[28] Section 5H(1) of the Act
The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution. The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act, which provides that a person has a well-founded fear of persecution if:
·the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·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 above; and
·the real chance of persecution relates to all areas of a receiving country.
Does the applicant fear being persecuted for one of the stated reasons?
Section 5J(1)(a) of the Act requires that the person ‘fears being persecuted’ for one of the stated reasons.
The Tribunal is satisfied that the applicant fears being persecuted for reasons of his political opinion, given the current suppression of opposition in Iran and his generally anti-Islamic values.
Is there a real chance of serious harm if the applicant were to return to Iran in the reasonably foreseeable future?
For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act, provides an objective element to that concept;[29] not only must a person fear persecution, but there must also be a prospect of that fear being realised.
[29] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <>
The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the 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 per cent 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.[30]
[30] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p171
The applicant has submitted that he will be targeted, fined, physically punished and might be sent to prison if he returns to Iran for reasons of his political opinion and being a member of the particular social groups of ‘people who are culturally western’ and ‘people who are involuntarily returned to Iran’. He claims he does not want to practise the Muslim faith in Iran. He does not want to fast during Ramadan. He also fears being arrested for smoking or drinking as well as eating. He fears drawing adverse attention for having long hair, tattoos or not complying with the dress code. He submitted that he had lived in Australia for ten years and has a wide circle of Australian friends. He said that he speaks good English, and his family has told him that he has an accent in Farsi. He said that in his appearance, his mannerisms, his speech and in his attitudes to life, religion, work, government and a host of other matters, he is Australian. It was submitted that even prior to leaving Iran, he was somewhat westernised, participating in religious activities reluctantly, drinking and smoking and having a relationship with a woman that was not socially accepted. As a result he was arrested, imprisoned and subjected to verbal abuse, beatings and floggings. In Australia he has become more westernised. The applicant in recent submissions to the Tribunal claimed that he feared ‘prolonged solitary confinement, beatings, floggings, stress positions, forced administration of chemical substances and electric shocks’.
The applicant’s representative submitted that:
Iran has been home to widespread and, thus far, enduring anti-government protests since September 2022. The Iranian regime considers these protests to be unlawful and has responded with the use of excessive force and harsh measures. Although popular protests and harsh responses from the authorities have been seen before in Iran, there are some significant differences in the government’s response to the current uprisings.
The death of Mahsa Amini has been described as a ‘fracturing point’, leading to protests that while initially and ostensibly focused on women’s rights, in fact are a response to a wider dissatisfaction with the current regime and its stringent restrictions on Iranian citizens’ rights and freedoms.
As mentioned above, the regime’s response to these protests has gone further than their responses in the past. Firstly, heavy sentences including death sentences are being handed down and carried out in numbers not previously seen. Secondly, it I not only protest leaders who are receiving harsh treatment but ordinary protestors.
According to the BBC as of 7 January 2023, at least 516 protesters had been killed, including 70 children, and 19,262 others arrested. Norway-based Iran Human Rights (IHRNGO) has reported that at least 100 people have been charged with offences that carry the death penalty. During trials, accused persons are routinely denied access to lawyers, with coerced confessions (often obtained by torture) frequently used as evidence. To date, four people have been executed, as a result of the protests.
The UN Human Rights Chief Volker Türk has stated that this is not a legitimate use of domestic law: ‘The weaponization of criminal procedures to punish people for exercising Iran has been home to widespread and, thus far, enduring anti-government protests since September 2022. The Iranian regime considers these protests to be unlawful and has responded with the use of excessive force and harsh measures. Although popular protests and harsh responses from the authorities have been seen before in Iran, there are some significant differences in the government’s response to the current uprisings.
… when the authorities learn that (the applicant) has sought asylum in the West, it will strengthen their belief that he has political views that the state condemns and seeks to suppress, particularly when viewed in conjunction with (the applicant’s) anti-regime political views and activism, and Westernised identity and appearance.
The Tribunal is satisfied that there is a real chance of serious harm for reasons of the applicant’s political opinion, for the reasons set out below.
Firstly, the Tribunal is satisfied that the applicant’s political activity – that is expressing his views, participating in an [Iranian] group, attending protests and posting photographs on social media, may have created a political profile for him with the authorities or will do so when they find out about it after his return. The applicant showed photographs of himself at a protest carrying a flag. It is possible that the authorities have also been provided with photographs of the protests, and that he could be identified, given the Iranian government’s recent interest in the diaspora.
The applicant was asked why the authorities would be interested in him as a grassroots supporter of the protest movement and given that neither he nor his family members were involved in political groups in Iran and he departed Iran freely on a genuine passport. He responded that the regime ‘captures people at random and it can be anyone so could include me, they don’t just look for leaders’. The country sources support this proposition. Human Rights Watch has found that the authorities used ‘excessive and lethal force’ in the clampdown on nationwide protests in 2022.[31] Human Rights Watch documented security forces using a variety of weapons against protestors in largely peaceful and crowded settings. As of November 2022 there were at least 340 deaths of protestors including 52 children.[32] The Guardian has reported that at least 529 people have been killed in demonstrations and about 20,000 detained[33] although the regime recently pardoned many of those. As discussed later in this decision, those who have expressed anti-regime opinions locally or abroad face arrest and other ill-treatment.
[31] Human Rights Watch, ‘World Report 2022 Iran’, March 2023
[32] Human Rights Watch, ‘World Report 2022 Iran’, March 2023
[33] The Guardian, 17 February 2023, <Iran protests flare in several cities amid continuing unrest | Iran | The Guardian>
Secondly, the harm to him may well be exacerbated by his appearance, values and culture, which are now westernised, including embracing concepts of tolerance and democracy. In submissions to the Tribunal he said that he considers himself Australian after living in Australia for 10 years. He said that he has enjoyed working in a factory and believes he is a valuable member of Australian society. He believes that his telephone would be checked, and the authorities would see photographs of him integrated into Australian life, going to clubs, dressing like an Australian and smoking and drinking. He said that he would not be able to abide by the rules of Iranian culture even though he misses his family greatly. He said that if the Basij see your hair long they might cut it with scissors. They do this at schools. He said that you cannot drink or go to bars and clubs. He said that he dresses like an Australian and has many Australian friends who have helped him integrate. He said that he no longer practises Islam and cannot ever imagine practising it again. At the Tribunal hearing he said that he feels respected in Australia and not like a stranger, he has the same values as his Australian friends. He said he appreciates that Australia has an easy-going culture and he likes that women can choose their relationship and do not have to have permission, whereas in Iran women do not have rights and must have permission for relationships. He said that in Australia, homosexuality is not an issue but in Iran you can go to prison. He said that his views on religion are more like those in Australia in that no one cares about religion or faith, ‘spying on you, checking on you or forcing you’.
A June 2014 Danish Immigration Service fact-finding mission report referred to information from Elam Ministries, who stated that ‘abstaining from Muslim rituals such as not attending mosque…would not necessarily arouse any suspicion as many in Iran do not regularly attend mosques.’[34] Information provided by Mansour Borji, advocacy officer of the Article initiative of the United Council of Iranian Churches, in the same report, stated that ‘Iran is quite a mixed society and that there is both a conservative group of people and a more secular group of people. Some people from the conservative communities pay more attention to public manifestation of religion such as participation in Friday prayers etc., whereas people from the more secular segment do not pay any attention to such public manifestations.’[35] A November 2014 article from The Economist referred to Iran as ‘one of the least religious countries in the Middle East’ and stated that, while ‘Iranians remain a spiritual people who see Islam as part of their identity’, many had moved away from ‘institutionalised religion’.[36] A February 2013 Qantara article stated that ‘in Iran, the people are leaving the mosques in droves.’[37] Having tattoos and dressing inappropriately or having inappropriate hairstyles most commonly result in low-level harassment, such as warnings or fines.[38] A ‘senior research fellow in Iranian studies at a university in Germany’ advised ACCORD in August 2015 that ‘non-practising Muslims form a large part of the population of Iran’s cities. They lead normal daily lives and are rarely called upon to answer direct questions about Muslim religious practice and are rarely pressured to observe Muslim precepts.’[39] The 2020 DFAT Country Information Report on Iran states, in regard to non-religious Iranians:
Local sources told DFAT that secularism is widespread, particularly in the major cities and among younger and wealthier Iranians. A significant proportion of the population does not attend mosque or pray on a regular basis, and alcohol consumption is common. Official sources told DFAT that religion was a private matter — that, beyond the expectation that people do not eat in public or hold parties during the holy Muslim month of Ramadan, how one wished to observe Islam was an individual choice, and was not a matter for the state. DFAT heard anecdotally that many Iranians do not observe Ramadan strictly, including by eating, drinking liquids and smoking at home. Most restaurants are closed during Ramadan, although many (especially in Tehran) reportedly serve food discreetly. Those caught eating in public during Ramadan run the risk of arrest and prosecution.[40]
[34] Danish Immigration Service, ‘Update on the Situation for Christian Converts in Iran’, June 2014
[35] Danish Immigration Service, ‘Update on the Situation for Christian Converts in Iran’, June 2014
[36] The Economist, ‘Religion: take it or leave it’, 1 November 2014
[37] Qantara, ‘Turning away from Shi’a in Iran’, 7 February 2013
[38] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 21 April 2016
[39] Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), ‘Iran: Freedom of Religion; Treatment of Religious and Ethnic Minorities COI Compilation’, 1 September 2015’, p.31
[40] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020
On the basis of these sources, it appears that there is widespread secularism in Iran. The Tribunal is satisfied that the applicant’s atheistic views or Western dress and hair, may not on their own lead to harm from the authorities. The Tribunal notes that even when living in Iran, he was rejecting aspects of Islamic culture, by eating during Ramadan and having long hair, for example, and that this led to instances of harassment by the Basij. It is likely therefore that his values and attitude, along with his atheism, are integral to who he is, and that they would create adverse attention if he returned. The Tribunal is satisfied that this would exacerbate the chance of harm when authorities become aware of the applicant’s political activities in Australia, albeit they have been at a low level.
In the past, country information on the overseas monitoring capabilities of the Iranian government indicated that the authority’s main interest was in higher profile anti-government activists but emphasised that agents were sent to overseas countries. The Immigration and Refugee Board of Canada reported, in February 2021:
When asked whether Iran monitors overseas anti-government activities, the retired Professor[41] responded that Iran’s government "sends people as agents to other countries" (Retired Professor 25 Jan. 2021). The Assistant Professor[42] indicated that the government "will try to find [anti-government activists] inside and outside of the country" and that the intelligence agency will help gather information (Assistant Professor 23 Jan. 2021). The same source noted that Iran uses refugees to monitor other refugees outside of the country (Assistant Professor 23 Jan. 2021). A December 2019 Associated Press (AP) article reports that in December 2019 an Iraqi man was charged with spying and was sentenced to two and a half years in prison for collecting information about Iranian refugees in Sweden, Denmark, Belgium, and the Netherlands (AP 20 Dec. 2019).
The Assistant Professor explained that people are "forced and coerced into working with Iranian security authorities" and that authorities will use personal information to pressure them (Assistant Professor 23 Jan. 2021). The same source indicated that "sometimes" prisoners are promised that they will be released if they collaborate (Assistant Professor 23 Jan. 2021). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
The Assistant Professor also noted that Iran's government monitors political opponents abroad to find out about their activities (Assistant Professor 23 Jan. 2021). The same source noted that the authorities "usually focus on important people, but they are interested in any information that they can use to put pressure on people," such as information about a person's consumption of alcohol or romantic relationships (Assistant Professor 23 Jan. 2021). The retired Professor indicated that Iran's government spies on the opposition and Iranians abroad (Retired Professor 25 Jan. 2021).
…
The Assistant Professor stated that the authorities will "hack" for information on a "mid-rank" activist and will monitor "an ordinary Iranian," "because any information is useful" (Assistant Professor 23 Jan. 2021). Based on a report by the cybersecurity company Check Point, a February 2021 article by Arab News, an English-language newspaper published in Saudi Arabia (Arab News n.d.), reports that "Iran is running two surveillance operations in cyberspace, using various methods to spy on more than 1,000 dissidents" and that "[p]eople in Iran, the UK, the US and 10 other countries have been tracked by Iranian hackers" (Arab News 9 Feb. 2021).[43]
[41] This refers to information provided to the IRB on 25 January 2021 by ‘a retired professor at York University, who has published books and articles in English and Persian on the leftist movement in Iran, religious fundamentalism, secularism, multiculturalism, and the diaspora’: ‘IRN200457.E – Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019–February 2021)’, < IRB, 22 February 2021, 20210315091836
[42] This refers to information provided to the IRB on 23 January 2021 by ‘an assistant professor of political science at the University of Tennessee at Chattanooga, who studies authoritarian regimes with a focus on the Middle East and North Africa and has written about Iran’: ‘IRN200457.E – Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019–February 2021)’, < IRB, 22 February 2021, 20210315091836
[43] Canadian Immigration and Refugee Board, ‘IRN200457.E – Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019–February 2021)’, 22 February 2021, <>
DFAT, in its April 2020 Country Information Report for Iran, played down the monitoring activities of the Iranian regime, except in respect of activists:
3.113 DFAT assesses that the authorities do not comprehensively monitor Iranians’ online activities. Individuals with a public profile (including with large social media followings, particularly on Instagram), who are politically active, advocate for greater human rights, have connections to foreigners and are otherwise perceived as threats to the Islamic Republic are more likely to have their social media monitored – and, concomitantly, face a higher risk of arrest or harassment – than other Iranians.[44]
[44] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020, Sections 3.111 and 3.113, pp.44–45.

DFAT has maintained that the treatment of failed asylum seekers returning to Iran generally depends on their profile (acquired before leaving Iran or whilst abroad) and their actions on return[45] which would suggest that this applicant would not be targeted given he is only involved in grassroots activism.
[45] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020
DFAT reported in April 2020 that as far as it was aware, the authorities do not check the social media accounts of Iranians returning from abroad.[46] According to DFAT, this includes posting social media comments critical of the government (noting that heavy internet filtering means most Iranians will never see them), protesting outside an Iranian diplomatic mission, converting to Christianity or engaging in LGBTI activities. DFAT suggests that in such cases, the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists.[47]
[46] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020
[47] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020
However, there are also reports suggesting that the Iranian authorities do take an interest in returnees. In February 2021, a representative of Human Rights Activists News Agency (HRANA) stated that there had been multiple reports of dissidents being arrested upon their return and ‘even lured into return[ing] to Iran’ to then be arrested.[48] The UK Home Office also provides some examples of failed asylum seekers being prosecuted and/or punished for political or other activities upon return; these appear to have obtained a profile whilst abroad or else had a criminal record in Iran before leaving.[49]
[48] Canadian Immigration and Refugee Board, ‘‘IRN200457.E – Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019–February 2021)’, 22 February 2021, < UK Home Office, ‘Country Policy and Information Notes: Kurds and Kurdish Political groups’, May 2022, <>
DFAT’s Country Information Report on Iran for 2020 is in some respects now somewhat out of date when considering recent events in Iran. In September 2022, protests erupted across Iran over the death of Mahsa Amini, a 22-year-old Kurd who had been detained for inappropriate dress. The demonstrations, the largest in many years, have evolved into calls for the ousting of the supreme leader, and an end to the Islamic Republic. The security forces have responded with deadly force.[50] An ABC article claimed that HRANA said 410 protestors had been killed in total and 17,251 people arrested as at November 2022.[51] The report also documented the use of batons, electric shocks, pepper spray, tear gas, pellets, plastic bullets and handguns. The Basij is referred to as the key body used to suppress protestors.[52] Protests have involved all classes of Iranians, including lower, middle and upper classes, and different ethnic groups and religions.[53]
[50] United States Institute of Peace, < ABC News, 21 November 2022, < Human Rights Activists News Agency, September/October 2022, <
[53] Human Rights Activists News Agency, September/October 2022, <>
One report on the protests said that there had been unprecedented solidarity between Iranians in the diaspora and Iranians within the country.[54] It referred to the ‘international community’ becoming the ‘voice of the Iranian people in an unprecedented way, and by disseminating information and taking various actions, they have attention to what is going on in Iran’.[55] Australian Iranians have also become active, calling on the Australian government to sanction the Iranian government.[56] An article in The Australian quotes academic Kylie Moore-Gilbert, who spent more than 800 days in Iran’s Evin prison, as stating that Iranian Australians were calling for tangible action from the Australian government including the sanctioning of officials, listing the Islamic Revolutionary Guard Corps as a terrorist organisation and addressing Iranian government infiltration domestically.[57]
[54] Human Rights Activists News Agency, September/October 2022, < Human Rights Activists News Agency, September/October 2022, < The Australian, 11 November 2022, < The Australian, 11 November 2022, <>
A recent report in the Sydney Morning Herald[58] quotes Iranian democracy protestors in Australia who claim family members have been arrested in retaliation for their actions. One protestor has said that his mother has been arrested and asked questions about her son in Australia. While the reports are unverified, they have been widely accepted by academics in Australia, including Kylie Moore-Gilbert, who said that she had heard direct reports from other Iranian Australians whose relatives had been harassed and questioned about them. She also claimed that there was a lot of fear in the Australian community due to the involvement of agents and informers in Australia, recording protests, sending threatening messages and letting people know they are being watched. A Melbourne lawyer and anti-regime activist is also quoted in the article. He said that he had direct knowledge of six Australian Iranians whose relatives had been arrested or interrogated since the protest movement began. The article also refers to the head of Britain’s MI5 intelligence agency claiming recently that Iran was plotting to kill or kidnap 10 British residents.[59] In Canada, there have been suggestions of death threats against Iranian Canadians who speak out against the regime.[60] Another article refers to an activist in Australia who was telephoned by his sister in Iran to tell him that their mother had been arrested in Iran.[61] She spent 28 days in prison. He feared it was because of his activism as she had not been politically active. The ABC in the article noted Iranian protestors were wary of providing their names, fearful of informants in Australia. The article referred to threats on the family of an Australian nurse who had been visited by authorities in Iran, who had been told their property would be burnt if she did not stop sharing information online about human rights abuses in Iran.[62] The Australian Federal Police has urged Iranians in Australia to report harassment or surveillance by Tehran authorities to the national security hotline, including monitoring of social media.[63]
[58] ‘Sydney Morning Herald, ‘Iran cracks down on family of Australian protestors’, 16 January 2023, < ‘Sydney Morning Herald, ‘Iran cracks down on family of Australian protestors’, 16 January 2023, < Reuters, 20 November 2022,< Canada's spy agency investigating Iranian death threats | Reuters>
[61] ABC, 4 February 2023, < Activists say Iran regime targeting families of Australian protesters - ABC News>
[62] ABC, 4 February 2023, < Activists say Iran regime targeting families of Australian protesters - ABC News>
[63] The Guardian, ‘AFP urges Iranians in Australia to report harassment by Tehran authorities as anti-government protests escalate’, 21 December 2022
In this environment, where the diaspora including Australian Iranians, has connections to the protest movement in Iran, and where there is recent evidence of monitoring and harassment of overseas and Australian activists and their families, it is conceivable that the authorities would be observing returnee asylum seekers much more closely than they have in the past. The applicant has been in Australia since 2013, such that there may be particular interest in why he has been out of the country for so long. As an example of the kind of interest a person who has lived outside the country may experience, a Danish Immigration Service report, citing an unnamed source from Elam Ministries, states that those who spent extended periods outside Iran are more likely to be suspected of spying upon return.[64]
[64] Danish Immigration Service and the Danish Refugee Council, ‘Iran: Christian converts and house churches (1) – prevalence and conditions for religious practise’, February 2018
Additionally, it is reported that within the country the authorities monitor social media.[65] It is likely therefore that the authorities have the tools to monitor social media of Iranians in other countries. In the reported case of ‘AB and Others’ the Upper Tribunal made reference to the opportunistic use of material deemed critical of the Iranian regime and held that:
We do not find it at all relevant if a person had used the internet in an opportunistic way. We are aware of examples in some countries where there is clear evidence that the authorities are scornful of people who try to create a claim by being rude overseas. There is no evidence remotely similar to that in this case. The touchiness of the Iranian authorities does not seem to be in the least concerned with the motives of the person making a claim but if it is interested it makes the situation worse, not better because seeking asylum is being rude about the government of Iran and whilst that may not of itself be sufficient to lead to persecution it is a point in that direction (paragraph 464).[66]
[65] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020
[66] UK Home Office, May 2022, ‘Country Policy and Information Notes: Kurds and Kurdish Political groups’, <
Although the applicant is not a political activist, nor does he have particular influence, the fact that he has been part of a [group] which organises protests, and that he has posted photographs of the protests in [City 1, Australia], may well draw adverse attention, particularly as he is returning after so long and might be regarded as a member of the activist diaspora. As discussed earlier, his ‘Westernised’ appearance and values may increase interest in him. Informants in Australia may also have provided names of those on the[group] or attending protests, to authorities, given the country sources referred to in earlier paragraphs.
Not only is there the possibility that the applicant’s social media has been noticed, but it is likely that if the applicant were to be questioned, the authorities would become aware that he is a failed asylum seeker and suspect or become cognisant of the applicant’s anti-government opinion. The Tribunal is satisfied that the authorities may well arrest and otherwise physically harm him once they become aware of his attendance at protests, and anti-Islamic and anti-regime views. Where a returnee has expressed their opinion against the government, in an environment where the diaspora has had an important role and given the conduct of the authorities towards protestors in the last six months, and to families of Australian activists, the Tribunal is satisfied that there is a real chance of serious harm.
Finally, for reasons set out earlier, the Tribunal is satisfied that the applicant is dedicated to joining the democratic protest movement for change in Iran, and that he will attend protests in Iran. Protestors have been subject to arbitrary arrest over the last six months in Iran.
The Tribunal is satisfied that the chance of harm would be substantial, as opposed to remote or a far-fetched possibility (Chan v MIEA (1989) 169 CLR 379), given the current conduct of the regime and the attitude to the diaspora. The Tribunal is satisfied that persecution would relate to all areas of the country. In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation’. In this case, the Tribunal is satisfied that the chance of harm is more than speculation and amounts to a well-founded fear.
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.
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 is an exception as a person is not required to alter or conceal political 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 (s 5J(4)(a)), and that his religious views and returnee status would exacerbate the risks to him. 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)).
In conclusion, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for the reason of his political opinion.
CONCLUDING PARAGRAPH
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Jane Marquard
Member

Attachment 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.
…

[2023] AATA 2270

28 March 2023

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