1909062 (Refugee) - [2023] AATA 4824

1909062 (Refugee) [2023] AATA 4824 (6 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Dr Nazir Daawar
CASE NUMBER:  1909062 and 2107439
COUNTRY OF REFERENCE:                   Iran
MEMBER:Melissa McAdam
DATE:6 December 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal:
remits matter 1909062 (Temporary Protection visa Enterprise visa, application made on 19 February 2016) with the direction that the applicant satisfies s 36(2)(a) of the Migration Act;a.
and

sets aside the decision in matter 2107439 to refuse the applicant a Safe Haven Enterprise visa, application made on 14 October 2020, and substitutes it with a decision that the visa application was not valid.b.

Statement made on 6 December 2023 at 3:53pm

CATCHWORDS
REFUGEE – protection visa – Iran – race – Faili Kurd – religion – Christian convert – political opinion – arrested and tortured after anti-government protest – large numbers of arrests and mistreatment of detainees in regime’s crackdowns upon protest activity – Kurdish protestors at significantly increased risk of harm – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5AA, 5H, 5J, 5K, 5L, 5LA, 36, 48A, 48B, 65, 91K, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant was represented in relation to the review.
The applicant claims to be a citizen of Iran.
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] November 2012. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.
The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 12 December 2012. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading 1909062 (Refugee)

Details

AGLC: 1909062 (Refugee) [2023] AATA 4824
Case: [2023] AATA 4824
Decision Date: 6 December 2023

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an individual from Iran. The applicant claimed to fear harm in Iran due to his ethnic Kurdish background, his participation in anti-government protests, and his conversion from Islam to Christianity. The court was required to assess whether the applicant met the criteria for a protection visa, considering both the refugee convention and complementary protection obligations.

The legal issues before the court included determining the applicant's credibility regarding his claims of protest activity and detention, and assessing the risk of significant harm he would face upon return to Iran. Specifically, the court had to consider whether his Kurdish ethnicity, past involvement in protests, and pending court proceedings created a real risk of persecution or serious harm. The court also had to consider the impact of his conversion to Christianity on his safety in Iran.

The court accepted the applicant's evidence that he is an ethnic Faili Kurd and that he participated in the 2009 election protests. It also gave him the benefit of the doubt regarding his participation in a 2012 protest in Tehran's Grand Bazaar, noting that while international reports did not mention such a protest, it was plausible that a small, quickly suppressed demonstration would not be widely reported. The court found that the applicant had been detained and subjected to mental torture for approximately 20 days following the 2012 protest. It also considered country information indicating that Kurdish protestors face an increased risk of harm in Iran, and that individuals facing charges or having failed to appear in court may face severe consequences, including long-term imprisonment or execution. The court noted that a person who leaves Iran with pending charges generally remains open to prosecution upon return.

The decision under review was remitted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

If a person who leaves Iran has been sentenced to a penalty such as imprisonment this will remain on the person’s penal record indefinitely until the sentence is implemented. Where a trial is scheduled but has not commenced before the person’s departure then generally the case will remain open until the person’s return. There is also reportedly a high degree of arbitrariness in the Iranian judicial system. For example a court can issue a verdict in absentia for all types of crimes, except for hadd offence convictions.[7][7] Danish Refugee Council and Danish Immigration Service, ‘Iran: Judicial issues’, February 2018.CONSIDERATION OF CLAIMS AND EVIDENCE The applicant submitted copies of his official Iranian identity documents. On the basis of these documents and the applicant’s oral evidence the Tribunal is satisfied he is a citizen of Iran. The Tribunal assesses the applicant’s claims against Iran as his country of nationality and receiving country.Credibility The applicant claims to fear harm in Iran as a Kurdish person who has been involved in anti-regime protest activity in both Iran and Australia, who left Iran while charges were pending against him, and who has converted from Islam to Christianity in Australia.Kurdish Ethnicity The applicant has consistently maintained that he and his family are ethnic Faili Kurds. There is no indication before the Tribunal that the applicant is not an ethnic Faili Kurd. In view of the available evidence the Tribunal accepts that the applicant is an ethnic Kurd.2009 Election Protest The applicant claims to have participated in the 2009 protests about the results of the then Presidential election in Iran. The protests were widespread and popular, attended by many Iranians particularly youths. The applicant has been consistent about his participation in the 2009 protests. He did not appear to exaggerate his involvement. He did not claim any adverse interest from the authorities arising from his participation in the protests. The Tribunal accepts that the applicant participated in the 2009 Election protests in Iran.[Occupation 1] Protest The applicant has also been reasonably consistent about his active participation in a [Occupation 1] protest in the Grand Bazaar in Tehran in [month] 2012, throughout his visa application and review processes. There are reports of large scale economic protests occurring in Tehran’s Grand Bazaar in October 2012 but no reports of any protest gatherings there in [month] 2012. The Tribunal notes that, according to the applicant’s evidence, the [Occupation 1] protest was relatively small and was quickly shut down by the authorities. It is therefore plausible that it was too small and too short-lived to warrant mention in international reports. Further, country information indicates that the factors which the applicant claimed to be the motivation for the protests, did exist at the time. The Tribunal therefore gives the applicant the benefit of the doubt that he did participate in a [Occupation 1] protest in Tehran’s Grand Bazaar in May 2012. Arrest and Detention

Decision

Reasons for decision

The following is a summary of the information provided by the applicant in his Department interview:a.The applicant had a genuine passport in Iran in his own name. He obtained it to leave Iran. The smuggler told him to throw his passport into the ocean.b.His mother is Iranian and his father was born in Iraq but became an Iranian citizen. The applicant’s father had an Iraqi Birth Certificate but in his time it was easier to obtain Iranian citizenship.c.The applicant has [number] brothers including a stepbrother, and [number] sisters. They are all in Iran. [Some] of his brothers and [sisters] are in Tehran. d.He is of Faili Kurd ethnicity. His mother tongue is Arabic but he can speak Persian as well. The scripts are the same but the pronunciation or accent is different. People in Iran know the applicant is Kurdish because they will ask where he is from. e.He cannot get public sector work in Iran because he is Faili Kurd. The education provided was low level. He applied for public sector jobs but could not get them. Persians could get the jobs easily. He was told he is Kurdish and was not needed.f.He did not study beyond his university preparation course because of discrimination and he did not have enough money. He saw his Faili Kurd friends with qualifications and they could not get jobs in their qualification so they ended up selling things on the street.g.For his military service the applicant served in [named section] at a low level. He would [perform specified tasks].h.He participated in the 2009 election protests. He was on the street chanting slogans. There were no consequences for him as a result.i.After his military service he went back to his village for a year. Then he went to Tehran and worked as a [Occupation 1]. He wanted a job in the public sector but could not obtain one. Some of his friends were [Occupation 1]s so he became one too. He eventually set up a store of his own with a friend. Initially they did well but the economy went bad and his [business] got worse. The Iranian government wasn’t controlling inflation so each day the value of his stock would decrease.j.The applicant joined the [Occupation 1] union just before he opened his own business. His friends had joined or linked him to the union on his behalf. It helped give him networking opportunities as he established himself as an accredited and skilled [Occupation 1]. The union did not do much else, it did not have meetings. It did arrange a pilgrimage for its members each year but the applicant was not interested in this. k.He left Iran because he talked to a lot of people to tell them they should defend their rights against the government. The bad economic policies of the government motivated the applicant to talk to others about how these were harming them and they should defend their rights. He wanted to talk to the government about their poor management and ask why they were not supporting their own people and producers instead of helping other countries such as Lebanon and Palestine.l.The [Occupation 1] demonstration was in [month] 2012. He was detained for 20 days. The protest was against the bad economic policies of the government. The protest didn’t last more than 30 minutes. The security forces came and arrested people. Some of the people arrested disappeared. He doesn’t know what happened to some of them. His family in Iran have told the applicant that they have not heard from a few of the demonstrators.m.The police took them and pushed them into a van. They were blindfolded and driven to a place. They were taken out of the van and punched really hard. They were pushed into an underground floor. There were about 10 of them. They were all pushed into a cell of about 3 by 4 metres. It was dark and really dirty. It had a toilet in the corner. No one came to talk to them or ask them questions while they were there.n.After 20 days some of the people had been released. Somehow his family became aware that the applicant was there and they contacted people to get the applicant released on bail. He was told he had to go to court in three or four months’ time. He does not know what he was accused of. They did not tell him. They made him sign a piece of paper. It may have been ‘disturbing the peace’ or ‘disturbing the economy’ or’ being a foreign agent’, it depends on the judge. As a Kurd he would be punished harshly. He was told he would receive a letter but he didn’t receive a letter because he left the country.o.He decided to leave Iran because he and his friends were scared of what would happen in court.p.He thinks he is on a watch list because he did not go to the court. He will face life imprisonment and execution if he returns to Iran. He was the person who helped arrange the demonstration.q.Iranian government policies haven’t changed so he will still be at risk even though some years have passed. Anyone who believes in freedom of speech is ‘disappeared’.r.He and his family would have to go long distances to get medical treatment in Iran. If they had better medical access his father may still be alive.Delegate’s Decision

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.Arrival Interview, 8 December 2012 The following is a summary of the information the applicant provided during his Arrival Interview with a department officer, recorded on 8 December 2012:a.He was born in [year] in Ilam Province, Iran. He lived in Tehran from 2003 until July 2012. He is single.b.He is of Shia Islam religion and Faili Kurd ethnicity.c.His father and stepmother live in Ilam province. His mother is deceased. She died in a car accident when the applicant was about 12 years old. He has [siblings] who live in Tehran. He has [other siblings] who live in Ilam.d.He has a distant relative who lives in Brisbane, Australia.e.He performed his compulsory military service between [specified years]. He was in the [named] section. He was an ordinary soldier and did only very basic training such as marching and how to load a gun.f.He participated in the 2009 election protests against the government.g.He worked as a [Occupation 1] in Tehran.h.He left Iran because he feared for his life. In [2012], because of the rate of the US dollar he ran out of work. Then he and others in the union of [Occupation 1]s complained to the Iranian Government. He and about [number] other people in the union of [Occupation 1]s gathered together and were shouting at the government. So they got in trouble.i.He was detained by the Basij after the [Occupation 1] protest for about 20 days and mentally tortured. He started to have trouble with the Sepah and the Basij after this.j.He then started making arrangements to leave Iran. He flew to [country] via [another country] in early July 2012, and then came by boat to Australia.Protection visa application, 19 February 2016 The following is a summary of the additional claims and information the applicant provided in his Protection visa application made on 19 February 2016:a.His father is now deceased. His stepmother and siblings are still in Iran. He is not in frequent contact with them.b.He completed high school in Iran.c.He departed Iran legally on his own passport. The smugglers forced him to destroy his passport while he was on the boat.d.He left Iran because he feared for his life. Due to the devaluation of the Iranian currency in 2012 he ran out of work. He was a business owner in partnership in Tehran. He was actively involved in a protest in Tehran’s central bazaar. The protest was a reaction to the currency devaluation to express outrage over rising prices and the government's inability and inefficiency to halt the financial crisis. They were part of the Union of [Occupation 1]. About [number] of them gathered together, shouted and expressed their anger. e.They clashed with police and other security forces. Some protestors were arrested and others managed to escape. The applicant was detained and tortured for about 20 days. Now he is on the list of Iran Intelligence forces for taking part in that rally. f.If he returns to Iran there will be much more serious consequences. On arrival he will be detained, jailed and may be tortured. There could be other serious consequences such as life-time jail or even execution due to his Faili Kurdish background.g.He was always denied government employment or permanent employment because of his Kurdish ethnicity. He was always discriminated against in Iran as a Faili Kurd. h.The government of Iran has put restrictions on freedom of speech and punishes the opponents, dissidents and civilians by beating, torture, rape, and killing. There are numerous reports where Iranian authorities have accused dissidents and demonstrators of being "part of a foreign-backed plot", or "propaganda against government" or "plan to destabilize economy" to hand them more serious sentences including the death penalty and long term jail in remote areas.i.There are countless reports that show Iran's human rights record has deteriorated, in particular after the election in 2009. People who expressed themselves freely on their Facebook page were taken into custody and tortured to death by Iranian intelligence agents.j.He was tortured mentally and physically for about 20 days during his detention by Basij and police forces. Eight people were kept in a small room. They did not receive enough food and were not allowed to contact family or a lawyer. They were not allowed to sleep and were given mental torture.k.He will be arrested on arrival in Iran and detained, tortured and jailed before being handed over for harsher sentencing and punishment.Departmental Interview, 24 June 2016