1908229 (Refugee)

[2023] AATA 4090

1908229 (Refugee) [2023] AATA 4090 (13 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Alireza Majazi Amiri (MARN: 1801203)

CASE NUMBERS:  1908229 and 2111588

COUNTRY OF REFERENCE:                   Iran

MEMBER:Paul Noonan

DATE:13 September 2023

PLACE OF DECISION:  Melbourne

DECISIONS:  The Tribunal:

a.remits the matter for reconsideration in matter 1908229 regarding an XD-785 Temporary Protection visa application made on 17 December 2015 with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

b.sets aside the decision in matter 2111588 to refuse the applicant a Safe Haven Enterprise visa based on an application made on 5 November 2020, and substitutes it with a decision that the visa application was not valid.

Statement made on 13 September 2023 at 10.37am

CATCHWORDS

REFUGEE – protection visa – Iran – arrival by sea – not unauthorised maritime arrival as defined, so statutory bar does not apply – first application not invalid, so second application barred and not valid, and no jurisdiction to review – political opinion – detained, interrogated and beaten after giving friend lift to protest – friend tortured and brain damaged – unhindered departures and previous returns – court summons and judgment containing death sentence, claimed to be genuine when application made, later conceded to be bogus – claims of past harm not credible – membership in anti-regime/pro-monarchist organisations in Australia – documented evidence of protest and social media activities – not solely for purpose of strengthening claim – country information – relationship with Australian resident and two Australian-born children – motor vehicle accident and medical treatment – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5AA, 5F, 5J, 36, 48A, 65, 91K, 427

Migration Regulations 1994 (Cth), Schedule 2

CASES

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

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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 3 October 2016 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Iran applied for the visa on 17 December 2015.

   Initial considerations

3. According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] November 2012. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Act). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant him a Safe Haven Enterprise visa is a Part 7 reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.

4. The applicant was granted a Temporary Safe Haven (Subclass 449 – Humanitarian Stay (Temporary)) visa on 12 December 2012. At the time, this was thought to trigger a statutory bar in s 91K, which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63 (CBW20), s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.

5. The applicant applied for an XD-785 Temporary Protection visa on 17 December 2015 (the first visa application). A delegate of the Minister decided to refuse to grant this visa on 3 October 2016. The then Minister purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further protection visa application in Australia. The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on ss 5H(2), 36(1B) or (1C) or ss 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act. Following this, the applicant purported to make a second application for a Safe Haven Enterprise visa on 5 November 2020 (the second visa application). However, the applicant’s first visa application was not invalid due to the operation of s 91K (see CBW20). This means that the s 48A bar was not lifted for the applicant because he was not within the class of persons specified in the then Minister’s s 48B determination.

6. A valid application for review of the refusal decision in relation to the first visa application was made to the Tribunal on 4 April 2019 (AAT No. 1908229).

7. The second visa application was refused by a delegate on 30 August 2021. An application for review of that decision was made on 1 September 2021 (AAT No. 2111588). However, the second visa application is, and always was, barred under s 48A. Accordingly, the second visa application is invalid. The Tribunal has no option other than to set aside the delegate’s refusal of the second visa application and substitute it with a decision that the second visa application is invalid, and that decision is recorded above.

8. Prior to the hearing the Tribunal wrote to the applicant’s representative on 7 June 2023 to advise that it had determined that, while the first visa application in this matter is valid, the second visa application may be invalid for the reasons set out above in this decision. The Tribunal set out that, despite the second visa application potentially being invalid, all claims and evidence with respect to the invalid visa application, as discussed at hearing, will be considered by the Tribunal in the context of the valid first visa application. The Tribunal invited written submissions on the validity of either visa application, or the proposed course of action by the Tribunal, by 23 June 2023. The applicant’s representative made no submissions on this point. The Tribunal proceeded as proposed.

9. In view of the above circumstances, which have resulted in the applicant having two applications for review of two separate decisions made by delegates of the Minister, the Tribunal decided to combine the two reviews pursuant to s 427(2). Despite the second visa application being invalid, the Tribunal has considered all claims and evidence submitted in relation to that application for the purpose of reviewing the delegate’s decision with respect to the valid first visa application.

10. The applicant appeared before the Tribunal in a joint hearing on 19 July 2023, where he gave evidence and presented arguments about the issues that arise in both cases and the Tribunal took evidence from several witnesses. The hearing was adjourned due to the length of the hearing and a resumed hearing was conducted on 30 August 2023. The applicant was represented in relation to the review. The representative attended the Tribunal hearings. The applicant was advised that the hearings for both cases would be combined in the hearing invitation, and this was explained at hearing: he did not indicate any issues with this approach (nor did his representative, who is the same for both cases). The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

11. The issue in this case is whether there is a real chance that, if the applicant returns to Iran now or in the reasonably foreseeable future, he would be persecuted for one or more of the following reasons: his race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Iran, there is a real risk that he will suffer significant harm.

    CRITERIA FOR A PROTECTION VISA

12. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

13. Section 36(2)(a) 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.

14. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

15. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. 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, which are extracted in the attachment to this decision.

16. 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

17. 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.

18. The most recent DFAT Country Information Report on Iran was issued on 24 July 2023.

    Receiving country

19. Upon arrival in Australia, the applicant presented the Department with a copy of his Iranian birth certificate, driver’s licence, national identity card and military service exemption card. The delegates (in both cases) were satisfied the identity documents provided were not bogus documents and were ultimately satisfied as to the applicant’s claimed identity and nationality. Given these considerations, the Tribunal is satisfied the applicant is a national of Iran and finds that Iran is his receiving country for the purposes of assessing his protection claims.

    Background

20. According to the evidence before it, including the applicant’s oral evidence to the Tribunal at hearing, the applicant is a national of Iran born in Tehran on [date]. He stated that he is a Muslim. Prior to coming to Australia he had previously travelled twice to [Country 1] in 2011 and 2012 and once to [Country 2] in 2009. He has parents and [siblings] in Iran.

    CLAIMS AND EVIDENCE

21. In his initial interview conducted on 8 December 2012 the applicant stated that he had been giving a friend a lift to an anti-government protest when they had been stopped by plain clothes police. He escaped while his friend was arrested. He was later detained and interrogated. He had a laptop in which incriminating evidence was found.

22. In his 2015 application the applicant claimed as follows:

    ·In 2010 there was an incident where the applicant was asked by his friend, [Mr A], for a lift. Both were on a motorbike and headed to Azadi Square. There was a protest close to Azadi Square. The pair were pulled over by plain clothes police (perhaps the Basij or Morality Police) and were searched.

    ·[Mr A] was carrying flyers and CDs that stated ‘Freedom, Freedom’.

    ·[Mr A] was already off the bike. Police drew weapons and he took off on the motorbike he was sitting on. He heard gunshots behind him. He went into hiding at his sister’s house and then his mother’s in the following days.

    ·Approximately six months after this incident, the authorities came to his father’s home in [address]. Authorities searched his room and took his laptop and mobile phone. They told his father they had a search warrant but did not provide his father with any reasons for the search and why they were looking for the applicant.

    ·In the following months he was fearful for his life. He did not work or leave his mother’s house often for fear of harm. He stated people in plain clothes stalked and followed him.

    ·In May 2012 he found work for three to four months as [an Occupation 1]. He was still very fearful of harm. He saved enough money to support himself and then went back into hiding at his mother’s house.

    ·Several days later he was located and arrested by the police. He was beaten and taken to the Intelligence station, the Etelaat, in the trunk of the car. Once there he was forced to sign a paper and his fingerprints were taken. He was handcuffed and had hands placed above his head and secured to a wall where he was beaten.

    ·He was then taken to Court by a police driver. He asked this driver if he could wash the blood from his face and hands. The driver allowed this. There was an altercation with a taser and both took the effects of it and he took the opportunity to flee down the street.

    ·He hid at a friend’s house while his friend gathered his passport from his mother’s house.

    ·He then fled Iran. At the airport the applicant was questioned about where he was travelling, however he was allowed to proceed. He believes this is because the name was incorrectly recorded as [short form] and not [full form] and the short time frame since signing the charge of monafigh (traitor against regime) at the Intelligence station.

    ·His father subsequently received a court order for himself.

    ·He fears arrest, harm, torture, imprisonment and death based on imputed political opinion by the authorities of Iran. A further summons has been received and he fears he will be killed if returned as he is now known as a threat to national security.

    ·He submitted his friend, [Mr A], has gone mad. He has received news through [Mr A]’s father to his own father that he has been in trouble since his arrest at Azadi Square. He believes [Mr A] was so severely tortured that he is brain damaged.

    ·He has visible tattoos on his [body parts] which he submits increase his risk of harm as they are un-Islamic and contribute further to his imputed and actual political opinion against the Iranian regime.

    ·He submits he will be harmed as he is not a follower or believer of Shai Muslim. If he is forced to return, he will be accused of apostasy.

23. Upon review in 2016 the delegate found:

    ·The applicant’s account of the incident on the motorbike with his friend implausible and contradictory noting that he was able to see the protest material, yet police were not able to see his bike licence plate and he was able to get away and without being hit by bullets fired at close range.

    ·The applicant did not submit in his written application that he had attended previous protests of the Green Movement but did so at interview. His knowledge and understanding of the Green Movement is superficial and did not explain why he would take such risks.

    ·There were significant inconsistencies in the applicant’s submission such as dates and that he did not know of the protest on the day or of other political demonstrations and why authorities would allow his father to be so uncooperative and then take a laptop and phone from the property that one would assume would be essential and with the applicant and not left at a place he was not actually residing at.

    ·There were significant inconsistencies in the applicant’s account of ‘hiding out’ for instance how was his bike licence renewed [in] December 2011 which would have exposed him to arrest and also in considering the long duration of time police took to pursue him.

    ·The applicant had no difficulty leaving Khomeini Airport which was highly implausible if the authorities did find the applicant a person of interest. The summons and court documents provided are in the applicant’s full correct name.

    ·The applicant’s story of his escape from custody was wholly implausible and fabricated given the site and controls of intelligence authorities.

    ·The applicant was able to leave Iran freely as he has no problem with the authorities. He has no political understanding or contacts and the court documents supplied are counterfeit given the lack of security features and laser printing.

    ·It is implausible as to why [Mr A] would be free now albeit with ‘brain damage’ and the applicant would be sentenced to death for his role in the incident.

    ·The applicant’s tattoos were not visible at the interview.

    ·The applicant is not an active participant in Islam, however, this did not create a significant risk of harm given there is no evidence anyone is aware of his views.

24. In 2020 the applicant lodged a further claim which stated that:

    ·He has freely criticised and denounced the Iran leader and regime ideology in public protests and on social media during his time in Australia.

    ·There is no place safe for the applicant in Iran. He fears harm based on his adverse profile.

    ·He concedes Iranian court summons and the judgment containing a death sentence against him are fake documents. He submits he thought they were real at the time as he received them from a friend in Iran.

    ·He now submits he was also threatened with a charge of adultery when he was detained.

    ·He has now married an Australian permanent resident and has two Australian children (birth certificates not provided at time of decision).

    ·His earlier temporary protection visa application claims were reiterated.

25. The second delegate refused the visa on similar grounds to the first delegate. The delegate found that his recent protest activities were undertaken solely for the purpose of strengthening his refugee claims and must be disregarded for that reason. The applicant would not be persecuted on grounds of atheism or as a failed asylum seeker and the delegate did not accept he was detained, arrested, tortured or would be of adverse interest to Iranian authorities for reason of his political opinion or subject to significant harm for reason of his political protest activity in Australia.

1. In his submissions to the Tribunal the applicant noted in respect to his recent history that he was in a severe motor vehicle accident in recent times and is under medical treatment for back injuries funded by the Transport Accident Commission and is also receiving psychological care. He is also in a long-term relationship with an Australian resident and he has two Australian born children stemming from this relationship.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Political opinion

2. In the initial hearing the Tribunal took evidence from several witnesses called by the applicant. These witnesses all attested to the applicant’s active and ongoing support for the monarchist movement associated with the exiled Crown Prince Reza Pahlavi. There has been recent widespread reporting of the Crown Prince taking a leading role in discourse outside Iran with respect to coordinating efforts to overthrow the current theocratic Islamic Republic regime in Iran.[1]

   [1] Could a democracy movement 'led' by Iran's exiled prince Reza Pahlavi help free the country? - ABC News (accessed 7 September 2023)

3. The applicant also presented significantly more documented evidence of his protest activities undertaken in Australia than was previously before the delegates. This included photographs of him attending several public protests prominently holding a picture of the Crown Prince and a flag symbolic of and associated with the previous Pahlavi monarchical dynasty containing the lion and sun.[2] This also included further social media posts made by the applicant critical of the theocratic Islamic Republic regime.

   [2] Iran’s Flag? - NUFDI (nufdiran.org) (accessed 7 September 2023)

4. With respect to the applicant’s claims about past harm in Iran due to his political opinion the Tribunal discussed these claims extensively at hearing and finds that these claims are not credible for the following reasons:

   ·The applicant has admitted to presenting a fraudulent Iranian arrest warrant, summons and court-ordered death sentence. The Tribunal does not accept the applicant’s submission that he had initially thought these documents were genuine as he was told they were by a friend in Iran. It is completely implausible that the applicant would not have been aware of the origins of such documents that he had requested be sent to him in Australia. As the applicant has sought to procure and submit fake documentation in support of his claim to have been of adverse interest to the Iranian authorities this significantly undermines the credibility of this claim.

   ·As discussed at hearing the applicant claimed to have been of active adverse interest to the authorities from 2010 onwards and that his father’s home had been raided six months after he had escaped arrest. However, he had travelled extensively in and out of Iran in that time using the main airport. He also claimed to have escaped arrest by assaulting an officer after being convicted and then again travelled outside the country again using the main airport. As put to the applicant the 2013 DFAT Country Information Report on Iran set out as follows:[3]

   5.20 DFAT assesses that it is possible to leave Iran to flee arrest warrants or charges. This is usually accomplished overland rather than through the main airports. Passport control checks are sophisticated in Iran. An outstanding warrant for arrest would not go undetected at the main airports but it is theoretically possible that an individual could convince an airport officer to allow them to proceed. Some charges—for example national security or media-related charges—result in confiscation or black-listing of passports. However, even in these cases, there are credible reports from a range of sources that many have been able to successfully cross borders overland.

   ·Given the above country information it is entirely implausible that the applicant would have taken the risk of travelling twice to [Country 1] in 2011 and 2012 and then simply exiting the country again after his father’s place was searched and then also after fleeing active arrest in 2012 through the main airport and that this final exit was simply due to a claimed minor name difference. The applicant used a passport and it is implausible that his passport details were not correctly recorded during his arrest and placed on the database used by the airport security checks given the apparent sophistication of these checks at that point in time.

   [3] DFAT Country Information Report, Iran, 29 November 2013, p.25

5. Given the above credibility findings the Tribunal rejects the applicant’s claim to have been of adverse interest to the Iranian authorities at any stage for reason of his past activities within Iran.

6. However, since the applicant has been in Australia, the Tribunal accepts that he has undertaken extensive protest activities against the Islamic Republic regime. As discussed during the hearing s 5J(6) requires activities undertaken in Australia for the sole purpose of strengthening a claim to be a refugee to be disregarded. The applicant submitted that as he has spent a long time in an open secular Western country his understanding of the history of his country and the human rights abuses there has increased. As a part of this process he met and joined up with followers of the anti-regime monarchist movement in Australia and he has become a strong advocate of this cause. The delegate set out that the applicant only started posting anti-regime sentiment at the time he was able to reapply for a protection visa in 2019 and had not done so in the many years prior. The delegate concluded his sole motivation was therefore strengthening his protection claims. In his submissions, dated 6 April 2023, the applicant concedes that his initial actions in this regard were fuelled and initiated by asylum motivations. However he submits that his views in this regard have evolved over time and he is now fervently anti-regime, especially following the events surrounding the recent large-scale protests within Iran against the regime. He has also been strongly influenced by the monarchist movement that is coalescing around Crown Prince Reza Pahlavi to the extent that he has tattooed a large [symbol] on his [body part]. The Tribunal accepts the photographic evidence of this tattoo.

7. With respect to the recent history of Iran cited by the applicant above as motivation for his protest activities the Tribunal notes DFAT assesses that:[4]

   2.106 On 16 September 2022, a significant protest movement began following the death of 22-year-old Kurdish-Iranian woman, Mahsa Amini, while in the custody of Iran’s morality police. Amini was arrested in Tehran for breaching the strict Islamic dress code by allegedly not wearing the hijab appropriately. The protests, initially led by women and girls, took place across the country. Over the succeeding weeks, the protests garnered broad support, particularly among young people and students, and a range of celebrities and public figures. They have evolved into broader protests against the regime.

   2.107 The government response to protest action has been harsh. Iran Human Rights Group estimated that, as at 3 April 2023, at least 537 people including 68 children and 48 women, died during the protests. While the death toll and the causes of death cannot be verified, reports indicate that the vast majority of deaths have been at the hands of security forces either by firearms or beatings. The government has imposed severe sentences on those arrested, including significant jail time, and in some instances, the death penalty. The response by security forces has been particularly harsh in majority Kurdish and Baluch regions.

   2.108 While the exact number of death sentences imposed on protesters is difficult to determine, as at 13 January 2023, Iran Human Rights Group estimated at least 109 protesters were at risk of execution. DFAT understands at least 15 death sentences have been confirmed – two of which were carried out in early December 2022, with a further two in early January 2023 and three in May 2023.

   2.109 While there are no official figures, as at 10 January 2023, reliable sources indicated around 20,000 people had been arrested since the protests began. Many have been released either without charge, or pending court hearings. DFAT is aware of harsh sentences being handed to many protesters, including long jail sentences. As at 19 December 2022, DFAT understood 400 protesters had been sentenced to jail, 160 of whom were sentenced to between five and 10 years in prison, 80 sentenced to two to five years, and 160 people to up to two years. Trials have occurred quickly without due process and in secret. DFAT has been told that many of those prosecuted have either had no legal representation or ineffective court-appointed lawyers. As at the time of publication, the government’s harsh response had significantly curtailed, but not stopped, protest activity. Social media activity reflects ongoing anger against the regime. These are the biggest and longest running protests in the history of the Islamic Republic. They differ from previous protests in their overt call for social change and the overthrow of the regime.

   [4] DFAT Country Information Report, Iran, 24 July 2023, pp.24–25

8. The Tribunal accepts the applicant’s motivational submissions as reasonably plausible, given the significant upheavals stemming from the Mahsa Amini protests, and the widespread reporting in Australia of the ensuing atrocities perpetrated by the regime on a large scale against the Iranian people. The Tribunal therefore accepts that the applicant’s protests have for some time not been motivated by the sole purpose of strengthening his protection claims. This is because it is entirely plausible that he has been strongly influenced by his subsequent exposure to the views of the Crown Prince Reza Pahlavi anti-regime campaign and his exposure to free and open Western reporting of the regime’s response to the Mahsa Amini protests and that these factors have for some time been a factor in motivating his ongoing protest activities, in conjunction with his continued desire to obtain protection in Australia. As such the Tribunal cannot disregard the applicant’s protest activity undertaken in Australia when considering the real chance of serious harm to the applicant for reason of his political opinion.

9. DFAT assesses generally with respect to political opinion in Iran (actual or implied) as follows:[5]

   2.103 The constitution protects freedom of belief for all Iranians at article 23, freedom for the media at article 24, freedom of association at Article 26 and freedom of assembly at Article 27. These freedoms are conditioned by the requirement that they are not ‘detrimental to the principles of Islam’. Topics deemed sensitive by the government include women’s rights, LGBTI rights, criticism of the regime, relations with the United States and Israel.

   2.104 Opposition political parties can exist in theory. In practice, they must be licenced and only parties which hold views consistent with the government’s theocratic ideology will be granted a licence. The 2020 legislative election and the 2021 Presidential elections both saw mass disqualification of opposition candidates by the Guardian Council. According to the US Department of State’s 2021 Human Rights Report on Iran, opposition political parties do exist, however tend not to have wide reach and may be centred around an individual. Political parties which comply with the system and do not offend the government’s ideology generally operate without interference. However, members of political groups whose ideology opposes the state can be subject to arrest, intimidation and bureaucratic harassment.

   [5] Ibid, p.24

10. With respect to returnees to Iran DFAT assesses that:[6]

    2.203 In general, authorities pay little attention to failed asylum seekers on their return to Iran. DFAT understands their actions (including social media posts about sur place activities) are not routinely investigated by authorities. Iranians with a public profile in Australia (or elsewhere) may have activities visible on social media tracked by the Iranian government. (See also Media.) Iranians have left the country in large numbers since the 1979 revolution, and authorities accept many will seek to live and work overseas for economic reasons. Those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are traveling on a laissez-passer. Questioning usually takes between 30 minutes and one hour, however may take longer if the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history on the part of the returnee. Arrest and mistreatment are not common during this process.

    [6] Ibid, p.40

11. The US State Department assesses that with respect to the Iranian regime it:

    continued to engage in acts of transnational repression to intimidate or exact reprisal against individuals outside of the country’s sovereign borders, including against members of diaspora populations such as political opponents, civil society activists, human rights defenders, and journalists. In its report on transnational repression released in June, Freedom House noted Iranians were among those nationalities subjected to “digital and physical transnational repression while in Turkey” and stated extraterritorial killings “have been a staple of the Iranian regime since the 1979 revolution.” Iran was listed in the report as one of six countries known to be conducting aggressive campaigns against political opponents abroad. Freedom House reported the Iranian regime had an “expansive definition of who constitutes a threat,” labeling dissidents and journalists as terrorists to justify violence and disregard for due process.

    Freedom House reported the regime employs a range of tactics to exert pressure on or exact reprisal against individuals located outside Iran, which “amount to a constant barrage of harassment, intimidation, and surveillance.”

    In February the BBC filed a complaint with OHCHR regarding escalating “extra-territorial threats” against journalists working for the BBC’s Persian language service and their families, both in Britain and other countries. The complaint included reports from staff members of increased harassment of family members in Iran, increased financial pressure including asset freezes, increased intelligence and counterintelligence activity, and increased and continued online attacks. The BBC stated such threats from Iran had continued for more than a decade but worsened since 2021. OHCHR raised these concerns with Iran authorities in May in a communique made public in August. The BBC reported the Iranian government responded with claims that the BBC’s journalism “is aimed at ‘the overthrow of the Islamic Republic’” and complained of “hostile” coverage that had “incited riots.”

    In September cybersecurity firm Mandiant released a report on APT42, an Iranian state-sponsored cyber espionage and surveillance group that employs highly targeted social engineering tactics to target civil society organizations, nonprofits and education organizations, governments, and media in at least 14 countries. The report noted that the group was believed to operate on behalf of the IRGC. In additional to spear-phishing campaigns designed to steal users’ credentials, the group was also believed to conduct surveillance operations targeting the locations and communications of “individuals of interest to the Iranian government, including activists and dissidents.”[7]

    [7] Iran - United States Department of State (accessed 8 September 2023)

12. It is well established that a real chance is one that is not remote.[8] The recent country information reflects that Iranians with a public profile in Australia may have their online activities tracked by the Iranian authorities and that the Iranian authorities are now actively targeting activists and dissidents who reside overseas. This is in a current atmosphere of a substantially ramped up and broad-scale and violent crackdown against dissidents and protestors against the regime within Iran stemming from the commencement of the 2022 protests. Given the applicant has, for many years now, publicly aligned himself with the main overseas dissident political grouping headed by the Crown Prince Reza Pahlavi, both in public demonstrations and in a prolific online campaign, it is plausible that he has already, or would quickly, come to the adverse attention of the Iranian authorities for these reasons, should he return there.

    [8] Chan v MIEA (1989) 169 CLR 379; MIEA v Guo (1997) 191 CLR 559

13. The Tribunal has already considered country information reflecting human rights abuses perpetrated against protestors in Iran since the 2022 protests commenced. In addition, the Tribunal notes that DFAT assesses as follows with respect to the consequences to the applicant of such adverse attention from the authorities for reason of his political opinion:[9]

    2.173 A wide range of offences are punishable by death, including murder, rape, drug possession and moral crimes that include adultery and same-sex sexual intercourse. Vaguely defined offences such as ‘insulting the prophet’, ‘enmity against God’ and ‘spreading corruption on earth’ (which can include blasphemy and heresy) (see Religion and Sexual Orientation and Gender Identity) also attract the death penalty. According to Amnesty International, drug-related executions reached about 40 per cent of the total in 2021, a five-fold increase from the previous year. International media reports suggest 109 protestors in 2022-3 were sentenced to death, with seven actually executed at the time of publication.

    2.177 … international human rights organisations report that torture and other mistreatment of detainees occurs in Iranian detention facilities, especially as a means to extract information. The US Department of State 2021 Human Rights Report notes torture is especially practised in pre-trial detention and can include threats of execution or rape, forced vaginal and anal examinations, sleep deprivation, suspension, forced ingestion of chemical substances, deliberate lack of medical care, electric shock (including to the genitals), burnings, use of pressure positions and severe and repeated beatings.

    2.178 Political prisoners are at particular risk of torture, especially those held in pre-trial detention, as torture may be used to extract confessions. Prisons, including unofficial secret prisons, may also be the site of torture, according to human rights groups. People who violate dress codes or drink alcohol face a low risk of torture.

    2.179 DFAT assesses that the authorities use violence or other pressure tactics to extract confessions from defendants, including those charged with security-related offences.

    2.180 Article 39 of the constitution prohibits all affronts to the dignity and repute of detained persons. The law allows for Sharia law punishments that include amputation, flogging, blinding and stoning and the Government does not consider these to breach constitutional provisions.

    2.181 More than 100 offences attract the punishment of flogging, including dress code violations, same-sex sexual activity and alcohol consumption. Flogging has been used in political cases where offences are often vaguely worded, such as ‘propaganda’, ‘defamation’ or ‘rebellion’. Amputations, of the fingers or hands for example, may be applied for property offences such as theft.

    [9] DFAT Country Information Report, Iran, 24 July 2023, pp.34–36

    CONCLUSIONS

14. The Tribunal finds as follows:

    ·For the reasons set out earlier in these Reasons the Tribunal cannot disregard the applicant’s protest activity undertaken in Australia when considering the real chance of serious harm to him for reason of his political opinion.

    ·The applicant fears being persecuted for reason of his actual and imputed political opinion. Given the country information set out in these Reasons, there is a real chance that if the applicant returned to Iran, he would be persecuted for this reason.

    ·Given the agent of persecution is the Iranian authorities the real chance of persecution relates to all areas of Iran, and effective protection measures would not be available to the applicant.

    ·As the applicant’s reason for fearing persecution is his actual and imputed political opinion, he meets the exception set out at s 5J(3)(c) of the Act with respect to the question of behaviour modification.

    ·The applicant’s reasons for fearing persecution are the essential and significant reasons for which he would be persecuted. Given the country information with respect to the prevalence of violence and discrimination perpetrated against persons with an actual or imputed political opinion adverse to the theocratic Islamic Republic regime, and the country information with respect to the widespread and egregious levels of torture perpetrated by the authorities against people held in detention, and the arbitrary and widespread application of the death penalty by the Iranian authorities against political dissidents, the Tribunal finds that the persecution feared would involve serious harm to the applicant as per the instances of serious harm set out at s 5J(5). Further, the Tribunal finds that this persecution involves systematic and discriminatory conduct.

1. There is no information in this matter that may indicate that the applicant has a right to enter and reside in any other country.

2. 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). As the Tribunal has decided the applicant is owed protection due to his political opinion it is not necessary to set out separate considerations with respect to his other claims which were considered extensively at hearing including his tattoos, his agnostic views and his status as a failed asylum seeker.

   DECISIONS

3. The Tribunal:

   a.remits the matter for reconsideration in matter 1908229 regarding an XD-785 Temporary Protection visa application made on 17 December 2015 with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

   b.sets aside the decision in matter 2111588 to refuse the applicant a Safe Haven Enterprise visa based on an application made on 5 November 2020, and substitutes it with a decision that the visa application was not valid.

   Paul Noonan
   Member

   
   

   ATTACHMENT – 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.

   …