1908754 (Refugee)

1908754 (Refugee) [2024] AATA 4029 (5 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Artoniss Ehsani
CASE NUMBERS: 1908754 & 2211381

COUNTRY OF REFERENCE:                   Iran
MEMBER:Meena Sripathy
DATE:5 July 2024
PLACE OF DECISION:  Sydney
CASE NUMBER 1908754 The Tribunal remits the matter for reconsideration with the direction that each of the applicants satisfies s 36(2)(a) of the Migration Act.
CASE NUMBER 2211381  The Tribunal sets aside and substitutes a decision that the Temporary Protection visa application made on 12 October 2020 is invalid.

Statement made on 05 July 2024 at 9:59am
CATCHWORDS
REFUGEE – protection visa – Iran – political opinion – 2009 Green movement protests – particular social group – woman – failed asylum seeker – people with disabilities – religion – conversion to Christianity – illegal departure – detention – physical assault – torture – false passports – access to medical treatment – anti-regime protests in Australia – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 5H, 5J – 5LA, 36, 48, 65, 91, 411, 499
Migration Regulations 1994, Schedule 2
CASES
BMY18 v MHA [2019] FCAFC 189
Chan v MIEA (1989) 169 CLR 379
DBB16 v MIBP (2018) 260 FCR 447
DFQ17 v MIBP [2019] FCAFC 64
MICMSMA v CBW20 [2021] FCAFC 63
MIEA v Guo (1997) 191 CLR 559
MZZJO v MIBP (2014) 239 FCR 436
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZVTC v MIBP [2018] FCA 824
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of two decisions made by delegates of the Minister for Home Affairs on 3 November 2017 (the first protection visa application) and 12 October 2020 (the second protection visa application) to refuse to grant the applicants a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
According to Departmental records, the applicants, citizens of Iran, arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] April 2013. Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447, the applicants are not ‘unauthorised maritime arrivals’ (as was defined in s 5AA of the Act) due to this arrival method. Accordingly, the applicants are not ‘fast track applicants’ (as defined in s 5(1)) and the subsequent decision to refuse to grant them a Safe Haven Enterprise visa is not a ‘fast track decision’ (as defined in s 5(1)). Instead, it is a Part 7-reviewable decision able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411.
The applicants were previously granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 19 April 2016 by the Department, the effect of which was thought to trigger a statutory bar against the making of other types of visa applications in Australia under s 91K of the Act because they were considered to be unauthorised maritime arrivals at that time. However, following the Full Federal Court judgment in MICMSMA v CBW20 [2021] FCAFC 63, where the Court held that the Temporary Safe Haven visa grants in the Ashmore affected cases were invalid, the s 91K bar does not apply to applicants who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.
The applicants first applied for a Safe Haven Enterprise Visa (SHEV) Subclass 790 on 31 January 2017. Following the outcome of the decision in CBW20, it is clear that application was not subject to the s 91K bar and was a valid application.
However, prior to the judgement in CBW20, in November 2019, the Minister purported to lift the s 91K bar and lift the s 48A bar against the making of a further Protection visa application in Australia. The applicants lodged a second Safe Haven Protection visa application on 12 October 2020.
The first protection visa application made on 31 January 2017 was refused by the delegate on 3 November 2017 in respect of all three applicants. The delegate refused to grant this visa on the basis that they were not satisfied any of the applicants was a refugee or that complementary protection provisions applied. On 9 April 2019, prior to the Minister purporting to lift the s 91 K and 48A bars and following a new notification of the decision on 25 March 2019, an application for review of the first protection visa application was made was made to the AAT, however only Applicant 1 was named on the application form.
The second protection visa application made on 12 October 2020 was refused by the delegate on 22 July 2022.
The applicants appeared before the Tribunal on 1 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicants were represented in relation to the review.
The substantive issues arising in in this review are:
·The validity and scope of review of the review applications made to the Tribunal on 9 April 2019 and 5 August 2022 respectively; and
·whether there is a real chance, if any one or all of the applicants return to Iran now or in the reasonably foreseeable future, they would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; or if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of any one or all of the applicants being removed from Australia to Iran, there is a real risk they will suffer significant harm; and if either of the above are answered in the affirmative, whether any of the applicants meet the criteria for protection on the basis of being a member of the same family unit as a person who satisfies the criteria under s36(2)(a) or s36(2)(aa).
For the following reasons, the Tribunal has concluded that the decisions under review in respect of matter 1908754 relating to the first protection visa application made on 31 January 2017 be remitted for reconsideration.
In respect of matter 2211381, the Tribunal sets aside and substitutes a decision that the Temporary Protection visa made on 12 October 2020 is invalid.
CONSIDERATION OF PRELIMINARY ISSUE – VALIDITY AND SCOPE OF REVIEW APPLICATIONS
The Tribunal acknowledges the protracted and complex legal history affecting the current matters before it.
At the hearing the Tribunal discussed preliminary jurisdiction issues arising in these matters. Firstly, it noted that only the first named visa applicant (Applicant 1) appears to be named in the review application in matter 1908754. It indicated that it is open to consider this issue further including whether there is an argument that all applicants made an application despite the second and third (Applicant 2 and Applicant 3) not being included in the form. The second issue relates to the validity of the second visa application in matter 2111381, given the judgement in MICMSMA v CBW20, the consequence of which appears be that the first visa application was in fact valid, and therefore the second protection visa application is invalid. If the Tribunal found this, it would mean that the only decision the Tribunal can make in the second matter is to set aside and substitute the decision that that application is invalid, and it would assess the protection claims against the first visa application.
In a post hearing submission, on the preliminary jurisdiction issue, the representative argued that the applications relating to matter 2211381 were the only valid visa and review applications for the following reasons:
·The review application submitted to the AAT on 9 April 2019 relating to the refusal of the applicants SHEV visa application lodged on 31 January 2017 was made following a re-notification of the delegate’s refusal decision on 25 March 2019. This occurred following, and as a consequence of, the decision of the Federal Court in DBB16. It was acknowledged that, by administrative error in the part of the previous representative, the second and third named visa applicants were not included on the review application form, however there was no intention to leave out the other two visa applicants.
·Subsequently, the Minister exercised his power under s91L to lift the s91K bar and invited the applicants to lodge a new SHEV application. It is submitted that this in effect voided the 9 April 2019 AAT review application.
·The representative argued that the decision of Minister for Immigration, Citizenship, Migrant Services v CBW20 (the CBW20 decision) does not apply in this matter for two reasons: firstly, because it came down after the Minister exercised his power under s91L and, secondly, there is a fundamental difference between this matter and the CBW20 case. That is that unlike in that matter, the applicants did not make a further SHEV application after the DBB16 decision because they were re-notified of the decision and therefore applied to the AAT for review of the first SHEV application. If they had been invited to make a further SHEV application at this time, then the CBW20 decision would apply and make this application invalid. In that case the 9 April 2019 AAT review would remain valid. Because that did not occur, and the further SHEV application was invited to be made after the 2019 AAT application, it is submitted that the 2019 AAT application is invalid because there was no valid visa application to seek review of in the first place as a result of the DBB16 decision.
·For this reason it is submitted that the only valid visa and review application in the present case is the application for review lodged in August 2022 relating to the SHEV application made following the Minister’s intervention under s 91L, which correctly includes all three visa applicants.
The Tribunal has considered the applicant’s representative’s arguments, but respectfully disagrees. It finds that the representative has misconceived the effect and implications of the judgements in both DBB16 and CBW20 for the review applications before it.
Specifically, the Tribunal does not agree with the representative’s argument that the Minister’s purported exercise of power under s91L to lift the s91K bar and invite the applicants to lodge a new SHEV application had the effect of “voiding” the 9 April 2019 AAT review application. The representative has not articulated any legal reasoning as to how the action of the Minister’s purported exercise of power under s91L ‘voided’ or otherwise affected the Tribunal’s jurisdiction in respect of the first review application and the Tribunal finds there was no such effect.
Rather, the implication of the decision in DBB16 v MIBP for the visa applicants is that they are not ‘unauthorised maritime arrivals’ (as defined in s 5AA of the Act) due to their arrival method, at Ashmore reef, and therefore, their 31 January 2017 visa application was not a ‘fast track decision, but rather was reviewable to the AAT under s 411.
Following the decision in DBB16, in November 2019, the Minister purported to lift the bar in s91K to allow Ashmore-affected applicants an opportunity to apply for a Temporary Safe Haven Visa or a Temporary Protection visa because, at that time, there was a question as to whether s91K of the Act operated to invalidate the visa applications made by visa applicants who had previously been granted Temporary Safe Haven visas. This question was answered in the subsequent decision of the Federal Court in MICMSMA v CBW20 in 2021, which held that the Temporary Safe Haven visa grants in the Ashmore affected cases were invalid and therefore the s 91K bar does not apply to applicants who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.
The implication of the judgement of CBW20 for the applicants is that their earlier visa application is in fact a valid visa application. The second visa application made on 12 October 2020 in invalid because the purported lifting of the s 48A bar in November 2019 was not applicable to Ashmore affected applicants following the judgment in CBW20. This is because this bar lift was effected by a Ministerial determination made under s 48B specified to apply to a class of persons. This class related to people listed in a Schedule to the determination, where those people had had a refusal or purported refusal of a protection visa, and where that visa application was not valid due to the operation of s 91K. Because of CBW20, s 91K did not apply to these applicants, and so the s 48B determination is invalid in respect of them. For this reason, the Tribunal finds the s 48A bar was not lifted. Accordingly, the second visa application is, and always was, barred under s 48A and the post bar lift visa application made on 12 October 2020 is invalid, notwithstanding the delegate having made a decision on it.
For these reasons, contrary to the representative’s submission, the Tribunal finds the first visa application, made on 31 January 2017 is valid and the subsequent post bar lift visa application made on 12 October 2020 is invalid.
Notwithstanding that a valid application for review was made on 5 August 2022 in respect of this application, the Tribunal has no option other than to set aside the delegate’s refusal and substitute it with a decision that the second visa application is invalid.
The remaining preliminary issue, that was not directly addressed by the representative in their submission, is whether Applicants 2 and 3 whose names were not included in the review application form lodged on 9 April 2019, have a valid review before the Tribunal.
In respect of this issue, the Tribunal has considered the Department’s notification letter dated 25 March 2019 re-notifying them of the decision to refuse their applications for the SHEV visa lodged on 31 January 2017. Having regard to relevant judicial caselaw authorities relating to notification, and specifically the clarity regarding the time in which a review application can be made[1] the Tribunal finds that the notification of 25 March 2019 was defective in the manner identified in BMY18 v MHA[2] and therefore the time limit for making a valid review application did not commence to run. On the evidence before it now, including their inclusion in the review application lodged on 5 August 2022 and confirmation at the hearing before the Tribunal, it is satisfied that Applicant 2 and 3 intended to seek review of the decision to refuse their protection visa application.
[1] DFQ17 v MIBP [2019] FCAFC 64 and BMY18 v MHA [2019] FCAFC 189.
[2] BMY18 v MHA [2019] FCAFC 189 at [35]–[38] . Specifically, the information about the time the applicant is taken to have received the notification was separated from information about the prescribed period and was located under the heading ‘Financial or case worker assistance’.
Accordingly, the Tribunal is satisfied that the review application made on 9 April 2019 is a valid review application in respect of all three visa applicants and has assessed the protections claims of all three applicants in this review.
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
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-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
Applicant 1 was born in [specified year] in Tehran, Iran and is [age] years of age now. He is a citizen of Iran and no other country and provided various identity documents in support including his birth certificate, national ID card government employment card, drivers licence and military discharge card. No issues were raised about his identity by the delegate. Applicant 2 is the wife of Applicant 1, born in [year] and Applicant 3 is their son, born in [year]. All three applicants made their own claims for protection.
Applicants 1 and 2 married in 1979 and are Shia Muslim. In addition to Applicant 3, they have two sons, [Son A] and [Son B] who reside in Australia and one son in Iran. Other than his travel to Australia, Applicant 1 has travelled to Saudi Arabia in 2001 for the purposes of pilgrimage. He provided his address, employment and education history in Iran and Australia. He lived at various addresses in Tehran before Australia; is educated to [specified] school level only; and last worked as [an occupation 1] before coming to Australia.
Entry interview
Applicant 1 was interviewed on arrival in Australia [in] April 2013. In this interview, among other information, he provided details of his family composition and education and employment history. When asked to say (in one or two sentences) why he left his country he stated that his children were hassled by the Basij. When asked if he was hassled by the Basij also, he said yes, the last time was 7-8 years ago. Apart from this reason he said there was no other reason he came to Australia. He said he believed he would face execution if he returned because he left the country. When asked who made the arrangements for his travel to Australia, he said his son [named] helped him.

Applicant 2 was interviewed on the same date. In response to why she left her country she said she came here for her children, nothing personally happened to her. She said her children were detained by the authorities (Seppah) while demonstrating against the regime. She said the last time her son, [Applicant 3], participated in the demonstrations was 8 years ago.
Applicant 3 was interviewed on 27 April 2013. He referred to having been involved in a fight in the protest where he was hit in the head with a baton, and the authorities ran after his brothers, and they were after his father to arrest him. He referred to scars on his face which were caused by the Basij cutting him with glass during the protest. He said these events occurred 5-6 years ago. He was protesting because of inflation and the rising prices, and they could not do what they wanted and had no job opportunities.
The applicants were invited to apply for a temporary protection visa and lodged the first protection visa application on 31 January 2017.
Claims in first protection visa application.
Applicant 1’s claims for protection were provided in a statement dated 18 November 2016 lodged with his application:
·He fears arrest and execution if returned to Iran because he was of interest to the Basij and was detained and tortured by them.
·In 2010 his sons, [Son A] and [Son B] fled for their lives to Australia. They had participated in the 2009 Green Revolution along with his other son, [Applicant 3]. [Applicant 3] stayed behind because he developed [medical condition 1] and brain damage after being beaten for participating in the demonstrations, and he was reliant on the applicant for care. This son came with the applicant to Australia and continues to be under their care.
·Applicant 1 was beaten and tortured by the Basij about 30-40 times between 2010 and 2013. He was arrested every 2-3 months. He was working as [an occupation 1] and moving around many places in Iran. When he returned to Tehran between trips the Basij would visit his house. There were 2-3 of them in plain clothes and car. They told him they were from the Basij. They arrested him and covered his head and took him somewhere, one time he overheard a guard asking for directions and found out they were going to [a named location].
·He was beaten with his eyes covered. He was beaten so badly he lost hearing in his right ear and had surgery on his right hand. They knocked out his front teeth. They beat him to get the location of his sons. He did not tell them because he knew he had to protect his family. This period was terrifying for him.
·It was unbearable to live like this and his life was in danger so he decided to flee with his wife and son. He presumed he would be on a blacklist and never be issued a passport so he did not apply.
·He asked his brother-in-law who worked in [Agency 1] to get them false passports, and he booked their flights and took them to the airport and facilitated their exit.
Applicant 2 submitted a Part C of her own claiming to fear return to Iran and made the following claims in a Statement dated 16 November 2016:
·Her husband and sons were badly treated by the Basij because of her son’s involvement in the 2009 Green Revolution protests. Her son [Applicant 3] was so badly beaten he has [medical condition 1] and brain damage. He came with them to Australia, and they must care for him. Their life was extremely difficult in Iran, and they felt they had no option but to flee Iran.
·She fears if she returned to Iran her husband and her could be killed. She is first worried for her sons and husband. She also feels there is no safety for her because she could be interrogated for leaving Iran illegally.
Applicant 3 submitted a Part C of his own claiming to fear return to Iran and made the following claims in a Statement dated 16 November 2016:
·He fears arrest and execution if returned to Iran because he was of interest to the Basij and was detained and tortured by them and severely injured that left him with ongoing effects.
·In 2009 along with his brothers [and] [Son B], he participated in the 2009 Green Revolution. His brothers fled Iran in 2010. He was badly beaten and now has [medical condition 1] and brain damage and is under the constant care of his parents.
·His father brought him and his mother to Australia because he was persecuted by the Basij. They were beating him and torturing him because they wanted to know the whereabouts of his brothers.
Applicants 1 and 2 were each interviewed, separately, by an officer of the Department in relation to the application on 27 September 2017. Applicant 3 was not interviewed. A copy of the audio recording is included in the documents provided to the Tribunal and the Tribunal has listened to this. At the interview both applicants confirmed their claims that they departed Iran because of harassment Applicant 1 was facing from the authorities due to their sons’ participation in the 2009 Green movement protests, and they left on false passports. Applicant 1 clarified his claim about being detained and beaten by the authorities, he said this occurred 3 or 4 times not 30 or 40 as stated in his written statement. He said that they may have come to the house that many times but he was not always there because he was away working. In response to a question why he fears harm upon return to Iran now given passage of time since the 2009 Green Movement, he said 7 or 8 months ago his son told him they came around looking for him. He fears harm because of this, and also that he will be considered anti regime and he left the country illegally and stayed in a strangers’ land.
On 9 October 2017 the applicants’ representative provided a post interview submission. The submission addressed the case officer’s concerns regarding inconsistencies in Applicant 1’s evidence about the method of obtaining passports and manner of departure, the ongoing harassment of the applicant between 2011 and 2013, and nature and frequency of the harassment and torture and made reference to relevant country information on these issues and the protection claims generally. The submission makes reference, under consideration of the applicant’s well founded fear of persecution, to the applicant’s son, [Son B] having renounced Islam and converted to Christianity, posting material on [social media] that could be accessed by the authorities consistent with his conversion which could likely place the family in further danger when they are interviewed on return. No evidence in support of this additional claim was provided. The Tribunal observes it was also not included in the summary of each applicant’s claims earlier set out in the submission.
The delegate refused the applications for each of the applicants on 3 November 2017, providing separate decision records for each applicant. The delegate rejected Applicant 1’s claims that he was abducted, beaten and questioned by the Basij in relation to his sons’ whereabouts or for any reason; that the family departed Iran on false passports; and that they had any profile of interest to the authorities prior to departing Iran; but accepted that they would be considered failed asylum seekers. The delegate was not satisfied that any of the applicants faced a real chance of serious harm for any reason set out in s5J(1) and did not therefore meet the definition of refugee in s5H(1); or that there was a real risk any of them would suffer significant harm upon return.
On 23 January 2018 the refusal was affirmed in a decision of the Immigration Assessment Authority. A copy of the IAA decision is included in the documents provided to the Tribunal. The decision record of the IAA indicates that Applicant 3 was interviewed by the reviewer on 10 January 2018. A copy of the audio recording of that interview was not provided to the Tribunal. It has considered the information recorded in the decision record of the IAA only.
The decision record refers to new information provided in the course of the IAA review regarding Applicant 3’s health, specifically discharge summaries from hospitals in Queensland dated October 2014 and December 2014 and February 2017 and radiology and other reports which also predate the delegate’s decision record, which refer, among other things, to the applicant’s [medical condition 1] and head trauma and a laceration on his face. Further details in the IAA decision record indicate that the medical records state Applicant 3 has been a known [medical condition 1] sufferer since around the age of [age]; the hospital admission report in October 2014 refers to a head trauma suffered 10 years prior (ie. around 2004) and refers to a laceration on his forehead which was treated in around 2017. The Tribunal has not sighted these documents as they were not provided to the Tribunal.
The IAA decision record makes reference to information contained in the October 2017 submissions to the delegate that the applicant’s risk of serious harm in Iran is heightened because [Son B], being the son of Applicants 1 and 2 and brother of Applicant 3, has renounced Islam and converted to Christianity, posting material on his [social media] account which could be accessed by the Iranian authorities. This was discussed with Applicant 3 at interview, and he initially incorrectly stated when asked which bother had converted, his other brother [Son A], only later changing it when informed of the information contained in the submission.
Second protection visa application.
Applicants 1, 2 and 3 lodged the second protection visa application on 12 October 2020.
The following claims were made by the applicants in this application.
Applicant 1’’s claims in his application and additional written statement (undated)
·He and his wife grew up in conservative Muslim families but they were not interested in the Islamic regime and were strongly against the way they imposed rules on Iranian people and because of this the family was continuously harassed and beaten by the authorities and Basij of the Republic.
·He and his wife and sons attended the 2009 protests and Basij people beat them up to the point that their son [Applicant 3] still suffers brain damage and [medical condition 1] and cannot function a normal life without them.
·They were fearful of their future and believed they would face significant harm so had no choice but to leave Iran
·In early 2018, they were introduced to a Christian church where they were warmly welcomed. Their friends and families in Iran know about their conversion and he is certain the Iranian authorities would have also known about their conversion. He will not be able to live in another city and practice Christianity freely or to live in peace if he is blacklisted.
·His family has been strongly opposed to the Islamic regime. They would take every opportunity to express their disdain by attending protests.
·For a number of years, the authorities have beaten and tortured him because of his participation in the protests. On one occasion, he was beaten so badly that he lost hearing on his right ear and his right hand was badly injured, requiring surgery.
·He fears he would be further harmed on return because of his history with the authorities and abuse he faced. He fears harm because he sought asylum in Australia and would be imputed with anti-regime opinions as a result.
·His son suffers from [medical condition 1] and requires around the clock care. He is accustomed to life in Australia because of how long he has lived here and it would be difficult and unsafe for him to return. He fears harm to his physical and mental well-being.
Applicant 2’s claims in her application and additional written statement (undated)
·   She and the applicant grew up in conservative Muslim families but they were not interested in the Islamic regime.
·   They strongly opposed the Iranian rules and for this reason, the authorities and the Basij continually harassed her family.
·   She, the applicant and her sons attended the 2009 protests and the Basij beat them to the point that her son [Applicant 3] suffers from brain damage and [medical condition 1] and could not function normally.
·   In early 2018, they were introduced to a Christian church where they were warmly welcomed. Their friends and families in Iran know about their conversion and she is certain the Iranian authorities would know about it, too.
·   Her husband lost hearing in one ear and underwent surgery for his hand for injuries sustained from the Basij.
·   She faces discrimination and harm from the authorities and the wider public as a woman. Her risk is heightened due to her husband and her sons’ involvement in the protests.
·   She became accustomed to the Australian way of life. She faces culture shock if returned to Iran.
·   She has an active role in caring for her son, [Applicant 3] who relies on her care and support and faces the risk of being separated from him.
Applicant 3’s claims in his application and additional written statement (undated)
·   He grew up in a family who is strongly opposed to the regime, and they would attend protests.
·   In the 2009 Revolution, he was tortured and beaten and suffered serious life-changing injuries. He has permanent brain damage and suffers chronic [medical condition 1]. His father also sustained injuries resulting from being beaten by the Basij.
·   He fears being harmed by the authorities because they abused him before.
·   He will be imputed with anti-regime opinions for seeking asylum in the West.
·   He requires round the clock care due to his brain injury and relies entirely on his parents for his care.
·   He and his family have been in Australia for a significant amount of time and he would not be able to readjust if returned to Iran and would be vulnerable as a result.
·   He fears significant harm to his physical and mental wellbeing.
·   He submits a Hospital Discharge Summary from [Hospital 1] dated 26/05/2021.
All three applicants were interviewed, separately, by an officer of the Department in relation to the application on 28 February 2022. The audio recordings are included in the documents provided to the Tribunal and the Tribunal has listened to them. An account of the information provided at interview is recorded in the delegate’s decision statement. Significantly, information about the applicant’s conversion to Christianity contained in the application was referred to by the delegate and it was noted that this was not included in his protection claims. The applicant confirmed he converted to Christianity about 4 years ago, at the same time as his son [Son B], who is still in detention. The applicant confirmed that he is now Christian but he is making no protection claims relating to this. The delegate asked Applicants 2 and 3 specifically about this also. Both Applicant 2 and Applicant 3 confirmed they did not convert to Christianity and are making no protection claims relating to this.
In a post hearing submission dated 4 April 2022, the Applicants’ agent submitted they had serious concerns about the quality of the interpretation throughout the interviews of each of the applicants, stating that the translations were not clear, nor coherent.
On 22 April 2022 the Department requested further information and supporting documents relating to Applicant 1’s claims of Christian conversion, details of the claims in the agent’s post hearing submission about serious concerns about the quality of interpretation during the applicants’ interview, and evidence relating to Applicant 2’s depression and Applicant 3’s [medical condition 1] and brain damage.
In a response dated 30 May 2022, Applicant 1 provided information about his conversion to Christianity. He stated that it has been four years since he was baptised at [Church 1] [in] September 2018 with his son. He continues to attend church when he can. He is certain that information about his attendance at a [church] would have been passed through to the authorities. He submitted a letter from [Pastor A] dated 20 June 2018 referring to his interactions with the applicant and his family and that he baptised him [in] June 2018 in Brisbane; baptism certificate of [Son B] dated [in] May 2017 at [Church 2] and a letter from [Pastor B] dated 9 December 2018 stating that the applicant was baptised by immersion [in] September 2018. No other information addressing the interpretation concerns or medical documentation was provided.
Evidence before the Tribunal
On 29 January 2024 the Tribunal received a submission from the applicant’s representative summarising the claims of each the applicants named in the visa application lodged on 12 October 2020 as follows:
Applicant 1 is [an age]-year-old man born in Iran. He has little education. Currently he is [an occupation 1] and is the main breadwinner of the family. He claims:
·he participated in the 2009 Green Movement Protests.
·he attended Church in Australia and was baptised (date). (sic)
·he fears significant harm because of his Christian activity and that he will be imputed with anti-regime sentiments.
·a significant time as passed since he arrived in Australia and therefore will not be able to readjust to life in Iran if he were to return.
Applicant 2 is [an age]-year-old woman born in Iran. She also has little education and left school. Currently she is caring for her son, Applicant 3 on a full-time basis. She claims:
·she fears harm for being a woman.
·a significant time as passed since she arrived to Australia and therefore will not be able to readjust to life in Iran if she were to return.
Applicant 3 is [an age]-year-old man born in Iran. He was never employed. He has little to no education and suffers from [medical condition 1] which has affected his development. He requires constant care. He claims:
·he will face harm by not being able to access adequate medical treatment and that his [medical condition 1] would worsen,
·a significant time as passed since he arrived to Australia and therefore will not be able to readjust to life in Iran if he were to return.
Submissions are made addressing the applicants’ specific claims and relevant country information. In respect of Applicant 1’s Christianity claim, the submission states
However, taking into account the Applicant’s age and limited education, he does not hold much of an insight into Christianity, or rather any comprehensive knowledge of any religion. However, his participation in Christian activity and connection with the Church can still put him at risk of harm by the Authorities of the regime. His association with participating in activity that is contrary to the laws of the Islamic Regime of Iran would make him a target and therefore vulnerable to harm that would be a danger to his physical and mental wellbeing. Because converting to Christianity and participating in church is illegal in Iran, it would also be expected that he would be imputed with anti-regime beliefs, and also become more vulnerable to harm as a result.
With regard to Applicant 2’s gender-based claim relating to Islamic dress codes, the submission refers to the changed country circumstances in Iran following the killing of Mahsa Amini and the Islamic Regime’s crack down on enforcing the compulsory hijab and provides further supporting country information.
In respect of Applicant 3’s claims relating to his condition of [medical condition 1], the submissions refers to a 29 October 2019 Human Rights Watch report relating to the serious and damaging effect of US sanction on the healthcare system in Iran[3] and an earlier 2014 report on the strain that sanctions were causing to obtain medicine and raw materials[4]. Reference is made to information in the Human Rights Watch report that indicated amongst those who were more vulnerable to the effects of the sanctions were those with [medical condition 1].
Tribunal hearing
Evidence from Applicant 1
[3] Human Rights Watch, Maximum Pressure: Economic Sanctions Harm Iranians’ Rights to Health, 29 October 2019 Accessed:
[4] Ali Gorji, ‘Sanctions against Iran: The Impact on Health Services, (2014) 43(3) Iran J Public Health, 381 type="1">
He gave his current address and prior address history. He lives with his wife and son, the other two applicants, and has been living with them since they came to Australia. Apart from his wife and son, he has two other sons in Australia, [and specified family members]. One son lives in Brisbane with his wife and child, and the other is in immigration detention. The other relatives all came before them to Australia. He works as [an occupation 1] in Australia, [working] in Brisbane. He [travels for his work].
Before he came to Australia he lived in an apartment he owned in Tehran and used the money from this to fund the travel to Australia. He worked as [an occupation 1] in Iran. For the 4 years prior to Australia he worked for a company called [name]. He worked full time covering numerous shifts for their workforce. Sometimes he did [private jobs] also.
The applicant confirmed that he was educated to [grade] level only. Prior to Australia he had only travelled once, on a pilgrimage to Mecca with his wife. He used the same passport as he used to come to Australia for that travel. He did not travel anywhere else. When asked about [two international destinations] as indicated in his wife’s application he said that he did not go with her on these trips. He was busy working. She went to these places with her family members.
The applicant confirmed that he travelled to Australia on his own passport. He had no issues at the airport using this passport. He confirmed that his wife and son also travelled on their own passports and experienced no problems.
The Tribunal asked why he left Iran in 2013. He said he could not cope with the regime. There were many problems. His sons also had problems. When asked what he meant by there were many problems, he said it was the way the regime operated, there were problems for his wife with the hijab. They could not stay. The Tribunal asked if he experienced any problems himself. He said he did not.
The Tribunal asked if he participated in any protests. He said he did on two occasions. The first one was in [a street], near [a location], and the other one was in Tehran. They were both around the time of the Green movement in 2009. He said he attended on his own, he was out driving and parked his car and joined the demonstrations. Nothing happened to him either time, he was able to escape unharmed, though others were chased.
His sons participated a lot in the 2009 protests, especially [Son A]. He continues to be active in protests here in Australia.
Apart from these sons, the applicant has a son in Iran, [named]. He is married and with one child. The applicant is in regular contact with him and he is generally fine, but he is not happy with the situation in Iran and would like to join his family here in Australia. He prefers to do it lawfully and is talking to a lawyer about that. He prefers to get a visa.
The Tribunal asked whether any of his sons were hurt during the 2009 protests. He said he is not sure exactly what happened, but he heard afterwards that [Applicant 3] was hit with a baton to his head. Ever since then his situation has become worse. The Tribunal asked if he had medical issues prior to that. He said he did have [specified symptoms] before and when he was at school they asked him not to continue because of that. He left school in around [a specified year]. Then he tried to get work but nobody wanted to employ him because of his [symptoms].
The Tribunal put to the applicant that he appears to be saying [these symptoms] [Applicant 3] experienced pre-dated the 2009 protests. He confirmed that he did have [symptoms] before that but his situation became much worse after the blow to his head experienced during the demonstrations. The Tribunal asked if there were any hospital records of visits he made to hospitals after this time. He said they took him to hospitals, but they never did anything to help him. After he came to Australia his [symptoms] have been much less frequent, but the circumstances of his behaviour has not changed.
The Tribunal asked how he knows that [Applicant 3] was hit in the head at the demonstration if he was not with him. He said his friends told the family. He was not there with his brothers, only his friends.
The Tribunal asked if anything happened to him after 2009 and before he came to Australia, did he experience any problems arising from the protests. He said he did not participate in any other demonstrations. He was busy with work and nothing else happened to him. When asked if anything happened to his sons, he said he does not know because he was working.
The applicant told the Tribunal that he does not know whether his sons had any problems with the authorities or anyone. If they did no one told him. The Tribunal asked if he had problems with the authorities because of his sons. He said no.
When asked why he left Iran, the applicant said he was not happy with the government and the way things operated in Iran. The economy was not good. He did not like the rules about the hijab. When asked if he or his wife or son experienced any problems personally because of this he said no.
The Tribunal put to the applicant in his application and to the department previously he has referred to being detained and tortured numerous times because of his sons’ involvement in the 2009 protests which is very different to his evidence to the Tribunal now. He said he swore to tell the truth today and he is telling the truth. What was provided previously is not true.
The Tribunal explained that it is assessing in this application whether he faces a real chance of serious or significant harm upon return to Iran. It asked if he fears harm on return for any reason. He said he does not. Then he said the only thing is his conversion to Christianity. All his friends and family know about this now and it may cause problems for him if he returns.
The Tribunal asked him about his Christianity. He provided the following evidence. He was born into a Muslim family but as soon as he grew he began to recognise he did not like what he saw about Islam and its beliefs. It did not fit with his inner beliefs. When he came to Australia he was encouraged by friends to go to a church.
The Tribunal noted he had travelled to Mecca for pilgrimage and put to him that this may not be consistent with his claim to be disillusioned with Islam. He said he did go to Mecca but this was at the initiative of his wife, he was going more for religious tourism and the opportunity to travel outside Iran and see the house of God.
The Tribunal asked him to explain the process of his conversion. He said he was keen to ‘exit’ Islam. He was told about Christianity by a man called [Mr A] who came to his son’s [shop] when he was in Brisbane. From there he started going to church. Initially the applicant said [Mr A] gave him a bible to read, then changed his evidence and said he received the bible at church. This was 6-7 years ago in Brisbane. He attended the church once a week, and there was an Iranian translator to help him understand. When asked the name of the church he could not recall. The Tribunal asked what he means by ‘becoming a Christian’ he said he went to church in Brisbane and when he moved to Sydney he started to go to church here. When asked again what he meant by ‘becoming a Christian’ he referred to the kindness and honesty he saw there which was something different to Islam. The Tribunal asked if he did anything to ‘become a Christian’. He referred to his belief in Christ, and that his sins were forgiven, and he is reborn. When asked again if there was a process he underwent, he said it was going to church, bible study and then they gave him a date to be baptised. After he was baptised he became a Christian.
The Tribunal noted that he has provided documents indicating he was baptised twice, in Brisbane and again in Sydney and asked why. He said when he came to Sydney they told him to get baptised again so he did. He does not know why. When asked how often he attends church he said he was going regularly, but now because of his work he does not attend regularly. The last time was around 2 months ago. However, he believes if two Christians talk about Christ that is a church.
The Tribunal asked if his wife and son followed his conversion to Christianity. He said he has tried as part of his duty to preach to them, but his wife is not interested. His son in detention has converted because he encouraged him. He converted first and then his son converted. He said he tries to teach many people about Christianity, but his wife discourages him.
When asked what he would do in terms of his religious beliefs in Iran he said he cannot do anything because all avenues are closed.
The Tribunal noted that he did not mention in his protection claims and statements in either of his application processes that he feared harm on return to Iran because he had converted to Christianity. It noted he was specifically asked this by the delegate at the last interview and he confirmed he was not making protection claims on the basis of his religion. He said if he even opens his mouth and says anything about his religion he will be arrested and does not know what will happen to him. He does not recall being asked about this at the interview.
The Tribunal put to him that under the Migration Act, it must disregard any conduct engaged in Australia solely to strengthen a protection claim, and given the timing of, and his evidence about his conversion it may find that he has engaged in this conduct to strengthen his protection claims. In response the applicant adamantly disagreed with this. He said he is Christian in his heart. If not for work, he would be at church every Sunday.
When asked how anyone in Iran would know about his conversion, he said he has told his relatives and in laws. They don’t accept it.
When asked to describe how he practices his religion, he said he reads the Bible at home with other people and talks about it at any opportunity he gets. He gave an example of talking with his wife’s brother, who is Muslim and interested in the topic of religion.
The Tribunal asked the applicant what he fears upon return to Iran. He said he is afraid as soon as he gets to the airport, they will raise his religion as an issue. He is age] years old and is afraid he will not get a job. He is afraid his conversion will make it harder also. These are the fears he has about problems he will face. The applicant agreed he had no previous adverse history with the police or authorities.
It asked if he has participated in any other activities or protests in Australia. He said he has attended a few demonstrations in Brisbane and Sydney in support of the Women, Life Freedom movement. He went with his son [Son A] who is very active on these issues. He is aware they are against the actions of the government killing people over the hijab issue. He believes there is no freedom in his country for women, even for men, if he wears a short sleeve shirt he can be harassed. The Tribunal noted many thousands of people are attending these demonstrations so why would he have any problems because of it, noting also he previously attended demonstrations in Iran and suffered no adverse consequences. He said he does not know if he will.
The applicant said he is concerned about returning to Iran because he cannot live there and survive. Life is difficult there. His family and children are here. He has become used to life here.
Evidence from Applicant 2
The applicant confirmed her address and that she lives with her husband and son, the other named applicants. She has [other specified family members] in Australia as well as two other sons. She does not work in Australia. In Iran she worked long ago in a [business] and as [an occupation 2].
Her son [Applicant 3] does not work in Australia. He suffers from a health condition, [medical condition 1] and has frequent [symptoms]. It started when he was [age range]. It was the reason he left school there, and though he tried to find work he could never keep a job because of this. He went to many doctors and hospitals in Iran, but they did not help him. He was on medication, but it was not until he came to Australia that his condition has improved. Apart from his diagnosis of [medical condition 1] there is no other medical diagnosis for him.
The Tribunal noted that a claim that he suffers from brain damage or brain injury has been submitted previously but there is no medical evidence to support this. She said ever since he had an injury to his head when he was at the demonstration in Iran in 2009 his circumstances have been worse and therefore, they assumed the head injury from that incident caused it. She agreed there was no medical diagnosis to confirm this in Iran or here.
The witness confirmed she travelled to Mecca and [Country 1] for pilgrimages and to [Country 2] for a holiday before coming to Australia. She travelled to Mecca with her husband, but the other two trips were not with him. She confirmed that her husband was never interested in religion. It was members of her side of the family who initiated the idea of going for pilgrimage.
The Tribunal asked why she came to Australia. She had her two sons here and they suggested [Applicant 3] and they would be better off here. Their country was in a mess and so they decided to come. The Tribunal asked if her husband or son had any problems with authorities before they came. She said no.
It asked if anyone attended the Green Movement protests in 2009. She said her sons did. Her husband also went a few times. [Applicant 3] went twice, once when he was hit in the head and another time with his father.
The Tribunal noted in her application she referred to fearing discrimination as a woman and asked if she experienced any adverse incidents herself. She said nothing happened to her but she witnessed other women who had their hair showing and were taken away. In the past they would be warned to not let it happen, but now who knows what they would do. She confirmed that she was never taken in over the hijab in the past. She observed the hijab and covering rules. In Australia however she is not veiled. She would prefer not to and only did it in Iran because they have no choice. She said she would wear it if she returned because she has no choice from her family or the government.
The Tribunal asked if she has engaged in any demonstrations about this issue in Australia. She said she has not because of her health issues, she would have liked to if not for this. She has problems with both her knees and is waiting for a knee operation.
The Tribunal asked about her religious practice. She said she is Muslim but does not observe any practices. She does not pray regularly and does not fast. Regarding her husband’s religious beliefs, she said in Iran he did not follow or believe in the religion and often had difficulties with people because of his views. She confirmed he never had problems with the authorities. He was always busy working. In Australia he fell in love with Christianity and got baptised. She went to church with him a few times but until now she has not converted. When asked why she said it was because of her family and relatives.
The Tribunal put to her its concern that her husband’s Christian activities are solely to strengthen his application. She disagreed she said he did it because he is interested in the religion. She was also a bit surprised given he was not religious in Iran, but he is very committed and serious about it. He told her Jesus says he cannot lie and so now he only wants to tell the truth. She confirmed he used to go to church more often but now not so often because of work. She cannot recall the last time he went.
The Tribunal asked if she has any reason she fears return to Iran. She said she is concerned about the government’s actions against people who participated in the Women Life Freedom movement. She is not afraid for herself, but perhaps for her sons. She agreed that [Applicant 3] cannot go out because of his health conditions, though he did go to a demonstration about this issue with her brother.
She is worried for [Applicant 3] in Iran because he has access to better health care here and his situation has improved. She is worried if his [medical condition 1] gets worse again it may cause the veins in is brain to explode.
The Tribunal put to her in her previous statement she referred to her husband suffering ill treatment from authorities due to her sons’ involvement in protests, but she has not mentioned that today. She confirmed nothing happened to her husband.
Evidence from Applicant 3
He lives with his parents and has always lived with them in Australia and in Iran. He does not work because of his health conditions.
In Iran he attended school until [a specified] year of [school]. They asked him to stop attending because of his illness. The principal told him he cannot continue because it scares the other children. The Tribunal asked what he did after that. He said he stayed at home, he tried to get work but after 1-2 days they told him to leave. The applicant became visibly distressed, and trembled, when talking about this. He said it makes him upset when he thinks about this time.
The Tribunal asked about his involvement in the 2009 protests in Iran. He said he went to a demonstration once. He doesn’t remember exactly what happened, but he understands he was hit with a baton to his head and since then his condition has been much worse. He has been to hospitals so many times and had many tests. After this he did not participate in any protests or demonstrations.

100. The applicant referred to experiences of having [symptoms] outside on the streets and people teasing and laughing at him. He was looked after by his parents at home, and they kept him inside mostly.
101. In Australia he has been on different medication and his condition has been much better.
102. The Tribunal asked what he fears about returning to Iran. He said he does not want to return to the previous state he was in there. Here he has doctors that care for him but in Iran he did not have that level of care. He experienced a lot of difficulties in Iran. He was ridiculed and mocked by people and rejected. Life is much better for him here.
103. The Tribunal asked if he has participated in any activities or demonstrations in Australia. He said he attended twice with his uncle. He saw many people there and he saw that his mother would not be able to live safely in Iran again. He attended the demonstration because his uncle encouraged him to come out with him.
Post hearing submissions
104. On 26 February 2024 the Tribunal received a submission and the following medical reports relating to applicant [Applicant 3]:
·Patient Health Summary printed 5 February 2024.
·Reports of consultations with [Doctor A], Director, [Specialist Unit] [Hospital 2], dated 9/4/2021, 21/4/2021, 6/6/2021, 6/7/2021, 28/2/2023 and 16/8/2023.
·Hospital Discharge Summaries for various hospital admissions: [Hospital 1] 29 December 2020- 4 January 2021; [Hospital 3] 25 March 2021, [Hospital 4] 3 - 4 February 2021 relating to admissions for [symptomatic] activity.

105. In post hearing submissions regarding the applicant’s claims for protection, the representative submitted:
·all three applicants gave consistent, honest and credible evidence to the Tribunal at hearing. Applicant 1 demonstrated his genuine remorse for providing false information in the past. Applicant 2 gave evidence of the fear and difficulties that she would face returning to Iran as a woman, given the freedom she has experienced in Australia and her fears about not wearing the hijab were she to return as well as her fears for her husband due to his Christian faith. Applicant 3 gave evidence of the difficult experiences he faced in Iran because of his health conditions including the bullying, exclusion and inadequate medical care he received and the measurable improvements to his condition since he has been in Australia and receiving proper medical care.

·Applicant 1 has been exploring new cultures and beliefs since being in Australia and is a member of [Church 1] and a passionate Christian. Applicants 1 and 3 have also participated in the Women Life Freedom protests in Australia and all three applicants have now been living in Australia for over 10 years and have established their lives here. It is submitted that the applicants will face significant harm if returned to Iran.

FINDINGS AND REASONS
Nationality
106. The applicants do not have, and did not arrive with, passports. When they first arrived and initially in their first application, they claimed to have travelled to Australia on false passports. At the interview with the delegate relating to the second visa application, and in their evidence to the Tribunal, the applicant confirmed that they all travelled on their own genuine passports but were told by the smugglers to dispose of these at sea. The applicants each provided other identification documents to the Department including their Iranian birth certificates and National ID cards to establish their identity. Since their arrival they have been interviewed by the Department on three occasions, submitted two written applications, and had a face-to-face hearing before the Tribunal. In all of these interactions the Tribunal is satisfied they have provided substantially consistent written and oral evidence about their family composition, place and date of birth. No concerns about their identity or nationality have been raised by the Department at any time.
107. On the basis of the consistency of their evidence and the identity documents before it, and in the absence of any specific concerns raised about these matters, the Tribunal accepts the applicants are nationals of Iran and considers Iran is the country of nationality and the receiving country for the purpose of assessing their claims against the refugee and complementary protection criteria respectively.
Consideration of applicant’s claims
108. The Tribunal takes the following principles into consideration in making its findings below. Assessing claims made by an applicant requires the Tribunal to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant. When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.
109. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. 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, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; and Prasad v MIEA (1985) 6 FCR 155 at 169-70.
110. In their oral evidence before the Tribunal Applicants 1 and 2 made substantial concessions regarding claims previously made. Applicant 1 expressed his remorse for incorrect information previously given and told the Tribunal is now speaking truthfully. All three applicants were straightforward and candid in their evidence to the Tribunal. They answered questions directly and spontaneously. They acknowledged, frankly and with candour, information previously given that was not correct, and did not appear to embellish or exaggerate the claims on which they relied.
111. Although the Tribunal is troubled by the extent of misinformation and exaggeration of claims made by the applicants since their arrival in Australia, and does not condone their past conduct, the Tribunal accepts the concessions made and finds the evidence given to the Tribunal to be generally credible and truthful.
112. Taking all of this into account, the Tribunal, below, has considered all claims that have arisen in the course of the applications for protection visa that are the subject of the present review and makes the following findings of material facts.
Personal background
113. The Tribunal accepts Applicants 1, 2 and 3 were all born in Tehran, Iran and were/are Muslim from birth. It accepts that Applicants 1 and 2 have one son in Iran, who is married and has one child. They have two sons in Australia, one living in Brisbane with his wife and child and one who is presently in immigration detention. Applicant 2 told the Tribunal she has two brothers in Australia and two nieces, and the Tribunal is prepared to accept this as correct.
Departing Iran on false passports
114. Applicant 1 gave evidence to the delegate in the interview relating to his second protection visa application that, contrary to the claim previously made that he and the second and third applicants, travelled to Australia on false passports, they travelled here on their own genuine Iranian passports. In his evidence to the Tribunal at hearing, he confirmed that they departed on their own passports and had no problems exiting Iran. Applicant 2 also confirmed this in her evidence to the Tribunal.
115. On the basis of the evidence and concessions made by Applicants 1 and 2 to the Tribunal, it finds all three applicants departed Iran on their own passports without issue. Accordingly, the claim that they departed Iran on false passports no longer being pressed, there is no basis that any of them will face serious or significant harm for this reason upon return in the reasonably foreseeable future.
Claims regarding Applicant’s 1 and 2 participation in 2009 Green Movement
116. In the first visa application Applicant 1 claimed he feared arrest and execution by the Basij due to his sons’ involvement in the 2009 Green Movement in Iran. He claimed he was arrested, beaten and tortured on numerous occasions by authorities due to his son’s participation in the protests. In his second visa application the applicant claimed that he and his wife and applicant son attended the 2009 protests and faced harassment and mistreatment, including beatings so serious he lost hearing in one ear and injury to his right hand requiring surgery, at the hands of the authorities for this reason.
117. Before the Tribunal Applicant 1 and 2 gave significantly different evidence and did not press these claims. Applicant 1 told the Tribunal he had no history of adverse attention from, or treatment by, the authorities. He stated he participated in the 2009 green movement protests on two occasions but suffered no harm as a result. He was not of interest to the authorities before, during or after the demonstrations.
118. When invited to comment on the contradictory claims he had provided previously of adverse interest and mistreatment of him relating to his participation and his sons’ involvement in Green Movement protests, Applicant 1 confirmed that these claims were untrue, what he is now saying is the truth. The Tribunal takes from this that he no longer presses these claims.
119. Having abandoned claims previously made of participation in the 2009 Green Movement protests and harassment and mistreatment by the basij consequent on this, the Tribunal finds there is no basis to find that Applicant 1 will face serious or significant harm for this reason upon return in the reasonably foreseeable future.
Claims relating to Applicant 3’s [medical condition 1], including ill-treatment and discrimination suffered in Iran
120. The Tribunal accepts Applicant 3 suffers from [medical condition 1] and that he has had this condition from a young age. This is supported by information in various medical reports provided to the Department and Tribunal and oral evidence to the Tribunal. All three applicants gave oral evidence to the Tribunal that Applicant 3 experienced [symptoms] when he was at school, and that he was asked to leave school for this reason. Applicant 2 and Applicant 3 told the Tribunal he was also unable to keep a job for this reason in Iran.
121. The Tribunal found Applicant 3’s evidence about how he was treated in Iran because of his health conditions to be genuine, credible and authentic. He spoke of the humiliation and discrimination he experienced when he suffered frequent [symptoms] in public including exclusion from schooling and the difficulties of holding down a job. He was visibly affected as he recounted these experiences to the Tribunal at hearing.
122. His experiences are consistent with country information that indicates societal understanding of people with disabilities in Iran is generally low and many face social stigma and encounter obstacles and barriers in accessing education and employment.[5]
[5] DFAT Country Information Report Iran 24 July 2023, paragraph 2.21
123. The Tribunal accepts Applicant 3 experienced discrimination and degrading and humiliating treatment as a result of his disabilities in the past in Iran.
Claims relating to Applicant 3’s participation in the 2009 Green Movement protests and suffering a head injury during a demonstration
124. It was claimed by all three applicants that Applicant 3 participated in a Green Movement demonstration in 2009 and suffered a beating that caused or exacerbated his [medical condition 1] condition to the point that he requires to this date constant care. Applicant 3 first raised this in his entry interview on 27 April 2013 but there are various discrepancies in the dates given about these events. At her entry interview, Applicant 2 referred to the last time he was involved in demonstrations was 8 years ago (which would have been around 2005), whereas Applicant 3 said it was around 5-6 years ago (2007 or 2008). Applicant 1, in his entry interview, referred to the last time he or his sons were hassled by the Basij was 7-8 years ago. The claim was made again in the first and second protection visa applications by Applicant 2 and 3, each time claiming that it caused his [medical condition 1] and also brain damage.
125. Before the Tribunal, Applicant 1 abandoned his claims about his own participation in the 2009 protests, discussed above, but maintained that Applicant 3 suffered a head injury at the 2009 protests. Applicant 2 and 3 also maintained this claim in their oral testimony.
126. Above, the Tribunal has accepted Applicant 3 suffers from [medical condition 1], from a young age. Therefore, this condition was not caused by a blow to his head at a demonstration. Given the consistency and maintenance of this claim from the time of arrival to date in the face of other claims being abandoned, the Tribunal is prepared to accept that it is possible Applicant 3 suffered a head injury in the context of attending a demonstration which may have exacerbated an existing [medical condition 1] condition.
127. However, the Tribunal is not satisfied, in the absence of medical evidence to support it, that the applicant incurred or suffers brain damage as a result of this incident or otherwise. It is noted there were numerous opportunities given by the Department and Tribunal to provide evidence in support of this claim. Other than unsubstantiated references to ‘intellectual disability’ and ‘low baseline intellectual function’ and ‘underlying cognitive syndrome’ in various of the hospital discharge reports and medical reports submitted, there is no evidence before the Tribunal of a diagnosis by an appropriate medical professional. Applicant 2 confirmed at hearing that they have not obtained any such diagnosis to date. In the absence of evidence the Tribunal is unable to make a determinative finding that Applicant 3 suffers brain damage or has an intellectual disability as claimed. This does not, ultimately, impact the decision finally reached by the Tribunal.
Applicant 3’s claims relating to access to medication
128. Applicant 3 claims that he benefited from superior heath care in Australia that he would be unable to access in Iran and he fears that his medical condition would deteriorate substantially as a result. In support of this claim, patient health summaries for periods between 2020-2024 were submitted as evidence of the medication regime he is presently on.
129. The Tribunal accepts, on this medical evidence and the applicants’ oral evidence at hearing that Applicant 3’s health has improved since he has been in Australia. It accepts on the evidence of the patient health summaries provided that his [symptomatic] activity has decreased on the current combination of medication, including several medications that are not indicated on the list of [medical condition 1] medications available according to (2017) MedCOI.[6]
[6] [Deleted].
130. In considering this claim the Tribunal has considered the independent information cited by the delegate in the decision record relating to the second visa application, specifically Country Policy and Information Note – Iran Medical and Healthcare issues[7] but has also considered the following other sources, including information that refers to the impact of US economic sanctions on healthcare, referred to by the applicants’ representative.
[7] Country Policy and Information Note Iran: Medical and healthcare issues, UK Home Office, November 2019, id.
131. A 2019 Human Rights Watch report found that US economic sanctions, despite the humanitarian exemptions, are causing unnecessary suffering to Iranian citizens afflicted with a range of diseases and medical conditions. The report highlighted that some of the worst-affected are Iranians with rare diseases and/or conditions that require specialized treatment who are unable to acquire previously available medicines or supplies, including among numerous conditions mentioned, [medical condition 1].[8] The report stated that the consequences for these individuals can be catastrophic and referred to individuals with [medical condition 1] who are resistant to common treatments and unable to access foreign-made medicines may suffer frequent [symptoms] that risk injury and result over time in severe, permanent brain damage.[9] The report referred to:
[8] [Source deleted.]
[9] ibid
[Deleted].[10]
[10] [Source deleted.]

132. Based on Applicant 3’s medical evidence and the above country information, the Tribunal accepts that [his medical condition 1] medication is among the health conditions that are adversely impacted by US economic sanctions. Below it will consider the implications of these findings for the risk of future harm to Applicant 3.
Applicant 1’s Christian claims
133. Applicant 1 claims he has converted to Christianity in Australia and his friends and family know about this and it may cause him problem if he returns. Applicant 2 nor 3 confirmed in their evidence to the Tribunal that they have not converted their religion and do not fear harm on this basis.
134. Applicant 1’s Christian claim appears to have evolved and changed in the course of the protection visa applications. Christianity was first raised on his behalf in a 9 October 2017 post interview submission, in the context of a claim that Applicant 1’s son [Son B] had renounced Islam and converted to Christianity and had posted material on [social media] which could place the family in danger. Subsequently, in the second protection visa application Applicant 1 and Applicant 2 included in their written claims that they were introduced to a Christian church in early 2018 and their friends, family and the authorities would be aware of this, placing them in danger. At the Department interview in February 2022, Applicant 1 referred to his Christian conversion, and claimed he converted at the same time as his son [Son B], but said he was not seeking protection on this basis. In a post interview submission however, he again asserted the Christian conversion claim, and submitted various documents in support, including letters from [Pastor A] dated 20 June 2018 and [Pastor B] dated [in] September 2018 referring to two separate baptisms in 2018 and a certificate confirming baptism for his son [Son B] in October 2017.
135. In his oral evidence to the Tribunal in February 2024, Applicant 1 did not initially mention Christianity when discussing his claims. He only raised it when prompted by the Tribunal as to any other reason he feared harm upon return. The Tribunal has considered the evidence he then gave about what led him towards Christianity and his practice of the religion and intentions upon return to Iran. He spoke of his lack of belief in Islam, and interest in ‘exiting’ Islam and consequent openness to go to a church when this was suggested to him in Australia. The Tribunal observed the apparent contradiction in having travelled to Mecca for pilgrimage, but is prepared to accept his explanation that this was at the initiative of his wife and ‘religious tourism’ for him. He was unable to give details about where he attended church, what steps led to his baptism or why he undertook baptism on two occasions, and what being a Christian meant to him. He told the Tribunal that after his conversion, he encouraged his son, who is currently in detention, to convert. This contradicts both his earlier evidence to the Department that he and his son converted together and the document he submitted, indicating [Son B’s] baptism in 2017 at a different church. He told the Tribunal, he has not convinced any others to convert, and despite being twice baptised he is not a regular churchgoer because of his work commitments. When asked what he would do in terms of religious beliefs upon return to Iran he said he would be unable to do anything because all avenues are closed. Applicant 1 claimed that his commitment to telling the truth at this hearing reflects his Christian faith and the oath he took on the bible this day.
136. Mindful of the difficulty of assessing genuineness of religious faith,[11] and acknowledging the Applicant 1’s candour and concessions that he has made to the Tribunal, it is prepared to accept for the purposes of the present assessment, that Applicant 1 was Muslim by birth but not a strong believer or practitioner of Islam in Iran and was open to ‘exit’ the religion and in that context he was willing to be introduced to Christianity in Australia. It accepts he has been baptised on two occasions and has attended church on occasions over the years. Based on his oral evidence to the Department previously and the Tribunal at hearing, it is satsified he did not engage in this conduct solely to strengthen his protection claims (taking into consideration that he did not raise it until prompted before both the delegate and the Tribunal). On the evidence before it, however the Tribunal is not satisfied that he is, or has been, a regular or especially committed church goer. Apart from the generic letter from [Pastor B] dated December 2018, indicating specific numbers of attendances up to the date of the letter, he has not claimed nor submitted other evidence of ongoing or current religious practice and nor was this suggested or indicated by the substance or content of his oral evidence.

[56] The Australian, < 11 November 2022
[57] 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, < The Guardian, ‘AFP urges Iranians in Australia to report harassment by Tehran authorities as anti-government protests escalate’, 21 December 2022.
181. An SBS article in 2024 refers to the case of an Iranian Australian pro-democracy activist, who found a body of a decapitated chicken outside her front door.[60] That same week relatives in Iran were taken for questioning and asked if she liked the ‘surprise on her doorstep’. The article refers to members of the Iranian-Australian community who had told SBS News that incidents of foreign interference had rapidly escalated since the protests in Australia. According to activists the Iranian regime’s spy networks are strong and active and take multiple photographs openly at protests.[61] Iran International has also reported on concerns by the Australian government of espionage by Iran in Australia, and the targeting of Iranians living in Australia.[62]
[60] SBS News, ‘They tried many times to corrupt me’, Australians speak out against foreign spies’, 29 February 2024.
[61] SBS News, ‘They tried many times to corrupt me’, Australians speak out against foreign spies’, 29 February 2024.
[62] Iran International, 17 January 2024, < Australia ‘Concerned’ By Iranian Espionage Activities | Iran International (iranintl.com)>.
182. Meanwhile, reports relating to the level of suppression in Iran in 2024 have pointed to a spate of executions in 2023 and 2024 often with spurious charges and unfair trials. There were 834 executions in 2023.[63] The United Nations Special Rapporteur said in his February 2024 report that he remains deeply concerned at the spike in death penalty sentences and executions observed during the reporting period. According to information received there was a 43 per cent increase in 2023 compared to 2022, when at least 582 persons were executed.[64]
[63] OCHR, 23 January 2024, <UN experts urge Iran to respect international law and stop horrific executions of protesters | OHCHR>.
[64] United Nations Human Rights Council, ‘Situation of Human Rights in the Islamic Republic of Iran’, 24 February 2024.
183. Human Rights Watch in its 2024 report, refers to the fact that scores of activists, including members of religious minorities remain in prison on vague national security charges or are serving sentences after ‘grossly unfair charges’.[65]
[65] Human Rights Watch, < World Report 2024: Iran | Human Rights Watch (hrw.org)>.
184. The February 2024 Report of the Human Rights Council stated that: ‘the Special Rapporteur is concerned by reports of continuing arbitrary arrests and the frequent use of torture or other cruel, inhuman or degrading treatment or punishment, including kicking, flogging and beating with batons and cables, prolonged solitary confinement, deliberate denial of health care, electric shocks and mock executions. In addition, psychological torture methods reported by victims include degrading insults and profanities, death and rape threats, and threats to harm the family members of detainees’.[66]
[66] United Nations Human Rights Council, ‘Situation of Human Rights in the Islamic Republic of Iran’, 24 February 2024.
185. Commentators have indicated that the sudden and expected death of Ebrahim Raisi in a helicopter accident on 19 May 2024 is unlikely to disrupt the direction of Iranian policy or jolt the Islamic Republic in any consequential way.[67] While his death has sparked a mixed reaction from Iranians, including celebrations by some, there are already reports the authorities are cracking down on families of dissidents with threats and arrests.[68]
[67] Iran crash: What next for Iran after President Ebrahim Raisi's death (bbc.com)
[68] Raisi’s Death: Iran Harasses Dissidents to Stifle Celebrations | Iran International (iranintl.com)
186. The country information above indicates that what tolerance there may have been for public discourse critical of the Iranian government and regime has diminished considerably since the September 2022 death of Mahsa Amini and large-scale protests. These protests, as observed in the DFAT report, have been the biggest and longest-running protests in the history of the Islamic Republic, and differ from previous protests in their overt call for social change and the overthrow of the regime.[69] The government response has been extremely harsh with hundreds dying during the protests, tens of thousands arrested, and death sentences and long jail terms handed to many protesters, often without due process.
[69] DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 23 July 2023, p24
187. In this context of increased political repression in Iran and active involvement in protests by overseas Iranians including Australians, who the Iranian government are monitoring, the Tribunal cannot be confident Applicant 1 will not be extensively questioned at the airport, given his long absence from Iran and that the authorities would not become aware of his religious and political views, either through this questioning or when he is in the community. Given Applicant 1’s connections to close family members in Australia who have been participating in anti-regime demonstrations here, the Tribunal cannot be confident that the authorities will not take an ongoing interest in him upon return.
188. Therefore, the Tribunal is satisfied there is a real chance, as opposed to remote or a far-fetched possibility (Chan v MIEA (1989) 169 CLR 379) that Applicant 1 will face serious harm on return to Iran for one or more of the reasons mentioned in s5J(1)(a), being his religion and political opinion. It is satisfied that those reasons are the essential and significant reasons for the harm feared.
189. Having regard to the country information above, regarding arbitrary arrests and the frequent use of torture or other cruel, inhuman or degrading treatment or punishment in the context of the conduct of authorities towards opponents of the regime, the Tribunal is satisfied that the harm would involve serious harm as described in s 5J(5) of the Act, as it is likely to involve deprivation of liberty or physical ill-treatment.
190. The Tribunal is satisfied, given the conduct of the regime in recent times towards political opponents, that the harm would involve systematic and discriminatory conduct (s 5J(4)(c)).
191. The Tribunal is satisfied that the chance of harm relates to all areas of the country, as the harm he fears is from the authorities.
192. As the harm Applicant 1 fears is from the authorities, the Tribunal is not satisfied that effective protection would be available as required by 5J(2) of the Act.
193. The Tribunal is satisfied that there is no permissible reasonable steps Applicant 1 can take to modify his behaviour, as required by s5J(3) of the Act.
194. In conclusion, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for the reason of his political opinion and religion were he to return to Iran in the reasonably foreseeable future.
195. 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).
196. There is no information before the Tribunal to indicate Applicant 1 has a right to enter or reside in any country apart from Iran and therefore s36(3) does not apply.
Risk of future harm for Applicant 2
197. The Tribunal has considered the risk of harm to Applicant 2 from authorities based on her profile as a woman and as a failed asylum seeker who has lived in a western country for over a decade. The Tribunal has also taken into consideration, as factors which heighten the risk to her, her association with a Christian convert husband who has anti-government political views, and close relatives (son and brother) who participated in anti-government protests in Australia.
198. Above the Tribunal found Applicant 2 does not wear a veil in Australia and would only comply with the dress code upon return because it is mandated.
199. The Tribunal is satisfied that Applicant 2’s fears of persecution fall within the reasons of membership of particular social groups of ‘women’ and ‘returnee asylum seekers following prolonged period in the West’.
200. The Tribunal is satisfied that ‘women’ comes within the definition of a particular social group in s 5L, in that the characteristic of being a woman is shared by the group and the applicant, and it distinguishes the group from society and is not a fear of persecution. It is also satisfied that the group ‘returnee asylum seekers following prolonged period in the West’ meets the requirements for a particular social group in s 5L of the Act because each of the characteristics of being a returnee from the west and a failed asylum seeker, are characteristics shared by the group and by the applicant and distinguishes the group from society, and the characteristics are not a fear of persecution.
201. The country information above (paragraphs 152-155) indicates that the Iranian government under the presidency of Ebrahim Raisi in mid-2021, has increased its focus on enforcing dress code laws and imposing restrictions on women, often using excessive force. Also as described in the information above, following the death in custody of Mahsa Amini for dress code violations, protests erupted across the country, and the authorities responded to these protests with lethal force.
202. For the same reasons set out above regarding Applicant 1, the Tribunal finds Applicant 2’s failed asylum status is likely to be known to authorities upon their return. Based on independent information (referred to earlier) it accepts she will come to the attention of the authorities upon arrival in Iran in the context of applying for a passport or otherwise having temporary travel documents issued. It accepts in that context she would be questioned by Immigration Police at the airport about the circumstances of her departure from Iran, and her activities since that time.
203. The Tribunal has considered the risk of harm to the applicant having regard to the current political and religious environment in Iran dominated by conservative hardliners, the greater focus and restrictions on women, and the heightened environment of repression generally by the Iranian authorities, as discussed earlier in this decision. The Tribunal cannot be confident the applicant, given her cumulative profile (as a woman, whose husband professes Christian faith, whose husband, sons and brother have attended anti regime demonstrations in recent years in Australia, and who is returning from an extended period overseas having claimed asylum) will not attract the adverse attention of authorities in the context of post arrival immigration questioning and/or lead to harsher or stricter enforcement of the dress code more generally. It cannot be confident, if she were to come to the attention of the authorities, that she would not by her above referenced family affiliations also be imputed to have anti-regime views and be treated more harshly for that reason.
204. Having lived in Australia more freely for the last 5 years, where she has not been required, and therefore has not worn, a veil, the Tribunal finds the risk of her falling foul of the mandatory hijab rules is not remote or far-fetched. Given the country information about the unpredictability and harshness of authorities in this context, the Tribunal considers there is a real chance she could be arrested, detained and face punishment including beatings and sexual violence.
205. In reaching this conclusion the Tribunal has considered DFAT’s assessment (paragraph 2.144[70]) that most women in Iran face a moderate societal discrimination and threat of gender-based violence including ‘honour crimes’ and street violence and women perceived by authorities to be pushing Iran’s moral and religious boundaries face a high risk of official discrimination in the form of arrest, punishment and violence. This assessment is supported and consistent with information from a wide range of other sources also considered by the Tribunal as set out above.
[70] DFAT Country Information Report - Iran', Department of Foreign Affairs and Trade, 24 July 2023
206. It accepts that the feared harm is for reasons of her actual or implied political opinion, and membership of a particular social group (woman and/or returnee asylum seeker following prolonged period in the West’) which are reasons specified in s5J(1)(a).
207. The Tribunal finds that the harm feared by the applicant constitutes serious harm in the form of beatings, sexual abuse, cruel, inhuman or degrading treatment, either in street violence or detention if she is imprisoned for any period of time.
208. The harm, including potentially torture or cruel, inhuman or degrading treatment would be systematic and discriminatory because such treatment is very clearly part of the regime’s response to dissenters or those perceived as dissenters and ‘detrimental to the principles of Islam’ and women who transgress Iran’s moral and religious boundaries. It finds that the essential and significant reasons for the harm are her membership of the articulated social groups (women and/or returnee asylum seeker following prolonged period in the West’).
209. As the Iranian regime exercises effective control over Iran, the Tribunal finds the real chance relates to all areas.
210. The Tribunal is satisfied there is no effective protection available to the applicant, nor is there any modification of her behaviour she could reasonably undertake to avoid the real chance of harm.
211. For the reasons given above, the Tribunal is satisfied that Applicant 2 is a person in respect of whom Australia has protection obligations under s 36(2)(a).
212. There is no information before the Tribunal to indicate Applicant 2 has a right to enter or reside in any country apart from Iran and therefore s36(3) does not apply.
Does Applicant 3 have a well founded fear of persecution on return in the reasonably foreseeable future?
213. The Tribunal has considered the risk of harm to Applicant 3 based on his health condition and his fear of serious harm if his medical condition deteriorates because he is unable to access adequate healthcare upon return to Iran. The Tribunal has also considered the heightened risk of harm to Applicant 3 on the basis of his cumulative profile as a person with disability, with a family association to a Christian convert, who has a brother and uncle living overseas, who has (with those family members) attended anti-regime demonstrations in Australia, and would be returning to Iran as a failed asylum seeker who has lived in a western country for over a decade.
214. The Tribunal is satisfied that Applicant 3’s fears of persecution fall within the reasons of membership of particular social groups of ‘persons with health condition/disability’ and ‘returnee asylum seekers following prolonged period in the West’ and actual or imputed political opinion.
215. The Tribunal is satisfied that ‘persons with health condition/disability’ comes within the definition of a particular social group in s 5L, in that the characteristic of disability/health condition is shared by the group and the applicant, and it distinguishes the group from society and is not a fear of persecution. It is also satisfied that the group ‘returnee asylum seekers following prolonged period in the West’ meets the requirements for a particular social group in s 5L of the Act because each of the characteristics of being a returnee from the west and a failed asylum seeker, are characteristics shared by the group and by the applicant and distinguishes the group from society, and the characteristics are not a fear of persecution.
Harm due to his [medical condition 1] condition/disability
216. Above, the Tribunal found Applicant 3 suffers from [medical condition 1] and experienced past discrimination, humiliation and exclusion from education and employment because of his condition. It also found Applicant 3 has benefited from health care in Australia such that his [symptoms have] decreased significantly, and he may not be able to access all the medication he is currently taking upon return to Iran. The Tribunal accepted, based on country information referred to earlier that [the required] medication is among the health conditions adversely impacted by US economic sanctions.
217. Based on these findings and information the Tribunal is satisfied there is a real chance that Applicant 3 will not be able to maintain his current medication regime upon return to Iran and because of this his health condition will deteriorate and he will once again experience [symptoms] at a higher frequency. Above, the Tribunal accepted Applicant 3 experienced discrimination, degrading and humiliating treatment in the past due to his [symptoms] and that he was, for this reason, excluded from education and unable to sustain employment.
218. Sources considered by the Tribunal indicate that people with disabilities in Iran have to deal not only with an unacceptably low level of services and facilities, but also with abuse and discrimination in education, at their places of work, and in their pursuits of job and economic opportunities.[71] In a 2018 report entitled “‘I Am Equally Human’: Discrimination and Lack of Accessibility for People with Disabilities in Iran”[72], Human Rights Watch observed that people with disabilities regularly face stigma and discrimination from government social workers, healthcare workers, and others. Many remain trapped in their homes, unable to live independently and participate in society on an equal basis with others.
[71] Campaigners: People with Disabilities in Iran Being Left Behind (iranwire.com)
[72]“Centre for Human Rights in Iran and Human Rights Watch, I Am Equally Human” Discrimination and Lack of Accessibility for People with Disabilities in Iran Microsoft Word - iran0618 (hrw.org) June 2018
219. Studies undertaken identifying adverse experiences, including stigmatization, of patients with [medical condition 1] in Iran, concluded that Iranian patients with [medical condition 1] experience significant deprivation.[73]
220. The above information is consistent with and supports Applicant 3’s claims of past harm suffered, which the Tribunal accepted earlier, and on the basis of this information and his past experience, the Tribunal is satisfied that there is a real chance he will experience discrimination, degrading and humiliating treatment of a similar nature and barriers to access employment and services.
221. The Tribunal is satisfied that the harm feared, including denial of access to basic services and denial of capacity to earn a livelihood such that the denial threatens his capacity to subsist constitute serious harm as that term is contemplated in s5J(5).
222. With regard to effective protection measures, the Tribunal has considered the passage by parliament of the Law to Protect the Rights of the Disabled[74] in 2018, which aimed to assist and support people with disabilities by enabling their access to crucial services. However, reports before the Tribunal indicate the legislation has been criticised for its charity-based approach, lack of human rights framework and used of discriminatory, harmful language to describe people with disabilities including “disabled” and “incapable, although it is acknowledged that it does attempt to address major shortcomings in the previous legislation.[75] Reports indicate it that took President Rouhani’s government 19 months to allocate a budget for its implementation.[76] This same article reports that as Iran continues to be engulfed by a vast range of economic and social crises, people with disabilities are quickly becoming the most voiceless minority in the country and are increasingly being pushed to the margins of society and is an issue the government ignores and the media fails to cover adequately.[77] Having regard to this information the Tribunal is not satisfied that there are effective protection measures to protect Applicant 3 against the persecution he fears.

223. On the basis of the above information and findings, the Tribunal is satisfied that there is a real chance, in the sense that it is not far-fetched or remote, that the Applicant 3 will face serious harm in the form of discrimination, degrading and humiliating treatment, including to the extent of denial of access to basic services and denial of capacity to earn a livelihood of any kind, threatening his capacity to subsist, for reasons of his membership of a social group of being a person with a health condition/disability.
Political views/Failed asylum seeker returnee
224. Additionally to this, for the same reasons above in respect of Applicant 1 and Applicant 2, the Tribunal finds Applicant 3 will come to the adverse attention of the authorities upon arrival in Iran in the context of applying for a passport or otherwise having temporary travel documents issued, and would be questioned by Immigration Police at the airport about the circumstances of his departure from Iran, and his activities since that time.
225. For the reasons explained above in the context of Applicant 1, where overseas Iranians including Australians have participated in protests, as Applicant 3 has with his uncle, and the government monitors Australian Iranians, and there has been increased political repression in Iran, the Tribunal is satisfied there is a real chance that Applicant 3 will be extensively questioned at the airport, given his long absence from Iran and that the authorities would impute anti-government views to him from his failed asylum status and association with relatives in Australia. Given Applicant 3’s connections to close family members in Australia who have been granted protection and are participating in anti regime demonstrations here, the Tribunal cannot be confident that the authorities will not take an ongoing interest in him, as with Applicant 1 and 2 upon return. The Tribunal finds that Applicant 3 is additionally susceptible to potential mistreatment and abuse by Iranian authorities for reasons of his disability, in the context of being questioned, detained and monitored.
226. The Tribunal accepts that the feared harm for Applicant 3 is for reasons of his membership of a particular social group (person with health condition/disability and/or returnee asylum seeker following prolonged period in the West’) and/or imputed political opinion which are reasons specified in s5J(1)(a).
227. The Tribunal finds that the harm feared by Applicant 3 constitutes serious harm in the form of beatings, cruel, inhuman or degrading treatment, either in street violence or detention if he is imprisoned for any period of time, or denial of basic services or capacity to earn a livelihood.
[73] [Source deleted.]
[74]
[75] English Translation: Iran's "Law to Protect the Rights of the Disabled" - Center for Human Rights in Iran (iranhumanrights.org)
[76] Campaigners: People with Disabilities in Iran Being Left Behind (iranwire.com)
[77] Ibid.

Such treatment would be for the essential and significant reason of his membership of the particular social group or his imputed political opinion. The harm, including potentially beatings or cruel, inhuman or degrading treatment would be systematic and discriminatory because such treatment is very clearly part of the regime’s response to dissenters or those perceived as dissenters.

229. As the Iranian regime exercises effective control over Iran, the Tribunal finds the real chance relates to all areas.
230. As indicated above, the Tribunal is satisfied there is no effective protection available to Applicant 3, nor is there any modification of his behaviour he could reasonably undertake to avoid the real chance of harm.
231. For the reasons given above, the Tribunal is satisfied that Applicant 3 is a person in respect of whom Australia has protection obligations under s 36(2)(a).
232. There is no information before the Tribunal to indicate Applicant 3 has a right to enter or reside in any country apart from Iran and therefore s36(3) does not apply.
CONCLUDING PARAGRAPH
233. For the reasons given above, the Tribunal is satisfied that all three named visa applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
234. The Tribunal remits the matter for reconsideration with the direction that each of the applicants satisfies s 36(2)(a) of the Migration Act.
Meena Sripathy
Senior 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.
…

[2024] AATA 4029

5 July 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Standing

Statutory Construction

Appeal