1909657 (Refugee)

[2024] AATA 2688

1909657 (Refugee) [2024] AATA 2688 (12 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Hassan Izadnia (MARN: 1571846)

CASE NUMBER:  1909657

COUNTRY OF REFERENCE:                   Iran

MEMBER:Jane Marquard

DATE:12 March 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958 (Cth).

Statement made on 12 March 2024 at 6:30am

CATCHWORDS
REFUGEE – protection visa – Iran – religion and political – agnostic from non-strict Muslim family and anti-government opinions – war service at young age and fellow students killed – convicted and lashed for drinking alcohol – sexually assaulted by Basij – accused of attempted rape by relative-in-law – brother attacked – mental health and suicide attempts – no political activity – credible evidence, supporting statement and hospital records – treatment in Australia – country information – government’s recent activities against dissidents – alcohol and mental health may draw attention – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
AGA16 v MIBP [2018] FCA 628
Chan v MIEA (1989) 169 CLR 379
MIAC v Khadgi (2010) 190 FCR 248
MIEA v Guo (1997) 191 CLR 559

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant has sought review of a decision made by a delegate of the Minister for Home Affairs on 28 February 2018 to refuse to grant him a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a citizen of Iran. He was born in [Year] in Iran.  He first arrived in Australia [in] May 2013.

3. He applied for the protection visa on 31 October 2016. He claimed persecution for reasons of his religious beliefs, his status as a failed asylum seeker and health issues. He also claims to fear the family of a woman who had accused him of attempted rape.

4. The delegate of the Department of Home Affairs (the Department) was not satisfied that there was a real chance of serious harm, or a real risk of significant harm, based on the applicant’s profile.

5. The matter is now before the Administrative Appeals Tribunal (the Tribunal) for review.

   SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW

6. The applicant has applied for a Safe Haven Enterprise Visa (SHEV). Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Act.

7. Australia acceded to the 1951 Convention relating to the Status of Refugees[1] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[2] in 1973, thereby undertaking to apply their substantive provisions. For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[3]

   [1] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (‘Convention’).

   [2] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).

   [3] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’.

8. 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). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.

9. An applicant must establish that he or she:

   ·is a refugee (the refugee criterion);[4] or

   ·qualifies for complementary protection[5] (the complementary protection criterion); or

   ·is a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds[6] (family member criterion).

   [4] Section 36(2)(a) of the Act.

   [5] Section 36(2)(aa) of the Act.

   [6] Sections 36(2)(b) and (c) of the Act.

   Refugee criterion

10. Section 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

11. A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of their country of nationality: s 5H(1)(a) of the Act.

12. Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.

13. A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J(2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)).

14. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-5LA of the Act, which are extracted in Attachment A to this decision.

    Complementary protection criterion

15. If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) of the Act.

16. The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B) of the Act, which are extracted in Attachment A to this decision.

    EVIDENCE CONSIDERED IN THIS REVIEW

17. The Tribunal has taken into consideration the application for the visa and supporting documents provided to the Department, and new evidence to this Tribunal. The Tribunal has also considered independent country information about Iran.

18. The documents considered include:

    ·Application for the SHEV dated 17 October 2016 including a Statement (SHEV Application).

    ·Copy of driver’s licence for the applicant issued 2005, translated.

    ·Letter from [Dr A], dated 8 February 2018.

    ·Submissions dated 20 February 2018 (2018 Submissions).

    ·Submissions from the representative, Regal Migration Services, dated 23 January 2024 (2024 Submissions).

    ·Letter from psychologist, [Mr B], dated 19 January 2023.

    ·Medical report from [Dr C], dated 23 November 2023.

19. The applicant appeared before the Tribunal on 30 January 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages. The applicant was represented in relation to the review and his representative appeared by video link.

20. The evidence and material before the Tribunal is referred to where relevant in the findings. The findings incorporate reference to information that the Tribunal has found to be material to the determination of the issues in the case.[7]

    FINDINGS AND REASONS

    [7] The Tribunal notes that it is not required to make explicit reference to every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.

    Nationality

21. For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’.

22. For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.

23. In his application, the applicant said that a people smuggler had taken his passport. He claimed to be a citizen of Iran. He provided a copy of his driver’s licence, military service card, birth certificate and national identity card.

24. The Tribunal is satisfied based on this evidence that the applicant is a citizen of Iran and that Iran is the receiving country for the purposes of the legislation.

    Facts not in dispute

25. The Tribunal accepts the information provided about the applicant’s background and family, which has been provided consistently.

26. The applicant was born in Tehran in [Year] and lived in a house with his parents, [sisters and brothers].

27. At the time of application for this visa, his parents and [some] sisters were living in Saveh City, Markazi. [The] other sisters and [brothers] were living in Tehran. He also had a nephew and niece-in-law in Tehran.

28. The applicant told the Tribunal that when he was growing up his father had a fruit cart, and his mother was a housewife. His father has now passed away and his mother is elderly and living in Tehran with his brother and sister. His brother is [an Occupation 1] at [a Workplace 1]. His sister works at [a Workplace 2]. His other sisters live nearby. Two are housewives. His eldest brother lives in [Country], but he has not heard from him for some time. The applicant keeps in contact with his mother and the brother and sister residing with her. He talks to his other siblings when they are visiting his mother.

29. His grandparents have passed away. He has other relatives such as uncles, aunts and cousins but he is not in contact with them now, although he had contact with them when living in Iran.

30. The applicant lived in Tehran from [Year] until he left for Australia in 2013. He finished school in [Year] and completed his military service in [Year]. Between [Year] and [Year] he was unemployed and helped out with family tasks. From [Year] until [Year] he worked as [an apprentice]. From [Year] until [Year] he worked in [a factory]. From [Year] to [Year] he worked in a family business, called [Business name].

31. From [Year] to [Year] he worked in his own [Product] store, which went bankrupt in 2011. After this, until he travelled to Australia, he was unemployed and was ‘organising my trip to Australia’. He said, ‘I wasn’t doing much as I had severe depression’. In Australia, he has worked in [Workplaces]. He said that he has had problems with mental health and with discs in his spine which has impacted his ability to work.

32. The applicant is from [a Tribe] tribe and was raised as a Shi’a Muslim. The Tribunal accepts this evidence as the majority of people in Iran are Shi’a Muslims.[8]

    [8] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2023’, 24 July 2023.

    Mental health

33. The Tribunal is satisfied that the applicant has suffered from various mental health conditions, including anxiety and depression, since he was about 20 years old. The Tribunal is also satisfied that he attempted suicide while living in Iran. His evidence about this has been consistent and compelling and he has provided a number of medical reports confirming his diagnoses as well as an admission certificate from the hospital in Iran. The evidence about his mental health is set out below.

34. In his SHEV Application he said that he was treated by a psychologist in Iran for severe depression, and attempted suicide on a number of occasions. He said that ‘on two of those occasions, I was in a coma for four or five days. I did not elaborate on this in the Entry Interview but I did mention that I was taking medication for depression. I was afraid I would be kept in detention for longer if I elaborated on my medical condition’.

35. At the Tribunal hearing he said that he went to doctors many times in Iran. He could not remember when his depression started, but he thought it was when he was about 20 years old. He said that it was not severe at the time, but ‘when the problem with [Ms D] started’, it became more severe, and he locked himself in a room and tried to end his life. He said that from around the age of 20 he saw psychologists and was prescribed sleeping tablets.

36. The applicant said that he also consulted doctors while in detention in Australia. He said that he saw a psychiatrist once or twice ‘when they came from the city’, and they prescribed him antidepressants. When he was released into the community, he consulted psychologists in Brisbane. He said that the medicine helps him control his depression. His general practitioner currently prescribes his medication, on a monthly basis. He has seen a psychologist twice. He is currently stable on the medication provided and ‘is able to feel well if he is working’. He said that he does not feel suicidal when working as work ‘improves his mood’. He said that a family is helping him pay for his medication.

37. He said that he lives alone in Australia and has done so for 11 years. Initially he lived with other Iranians. He said that he cannot live with others as ‘one hour he is ok and another he is not’ due to his depression. He said that he has a couple of Australian friends but none in the Iranian community.

38. Asked how he was feeling on the day of the Tribunal hearing he said that he was ‘ok’. He had taken his antidepressant medication as he does every day and has ‘been doing for a long time’.

39. A letter from [Dr A] dated 8 February 2018 reported that the applicant was suffering from severe anxiety and depression and is prescribed medications which keep him stable.

40. A letter from the applicant’s psychologist, [Mr B], dated 19 January 2023, reports that the applicant has major depressive disorder, generalised anxiety disorder, sleeping difficulties, memory loss, low self-esteem and isolation. He recommended that the applicant is not fit for employment and needs cognitive behavioural therapy.

41. A letter from the applicant’s general practitioner, [Dr C], dated 23 November 2023 states that the applicant is ‘suffering from a number of medical and psychological conditions’ and was on various medication including the antidepressants Seroquel and Endep.

42. In the 2024 Submissions it was submitted that the applicant’s mental health challenges began in the aftermath of [Ms D]’s accusations (discussed later in this decision), which prompted him to isolate at home for two years with severe depression. It was reported that he attempted suicide on multiple occasions. It was submitted that he was also impacted by an experience at the age of [Age] when deployed to the front line where he witnessed approximately 30 of his classmates lose their lives. He sought professional help in Iran from doctors and psychiatrists. According to the 2024 Submissions, he has lived alone since arriving in Australia and has a limited network.

43. A certificate from [Medical Centre] Tehran, stated that on 20 February 2013 the applicant was admitted following ‘decrease in consciousness level following medication consumption for suicide’.

    Is the applicant agnostic as claimed although he was raised as a Shi’a Muslim?

44. The Tribunal accepts the applicant’s claims that he identifies his religious views as agnostic. It is clear from his evidence (set out in more detail below) that his family were not strict Muslims and from an early age he did not participate in Muslim traditions such as Ramadan and had liberal views in regard to drinking alcohol. Later, his agnosticism developed as he witnessed deaths of classmates while in the military and began to develop a political opinion opposed to the Iranian regime, which he associated with Islamic belief. The applicant has been consistent about these views, for example stating in his SHEV Application that his family were Shi’a Muslim but he cannot recall ever having any real attachment or interest in Islam. He has submitted that he believes in an Almighty but not in the Islamic faith, which he associates with war and brutality. In the 2024 Submissions the representative submitted that the delegate of the Department had mis-characterised the applicant as a ‘non-practising Muslim’, when in fact he is agnostic, believing in an Almighty, but renouncing the Islamic faith.

45. The Tribunal accepts that while his parents were committed Muslims, they were not strict adherents and did not follow all Islamic practices. His parents prayed five times a day but only attended mosque for funerals and other important dates. Similarly, he and his siblings did not go to mosque regularly and nor did they follow Ramadan, although his parents fasted. The applicant said it was common for Muslims not to follow all the traditions including refraining from fasting. His school was religious, and he sometimes had religious homework.

46. The applicant also told the Tribunal that when living in Iran, he did not believe in Islam, but ‘was born into it and accepted it at the time’. He explained that his brothers and sisters are conservatives and still consider themselves to be part of the religion, ‘to some extent’, but he said that he does not. He has submitted that he became agnostic over time.

47. He told the Tribunal that when he was [Age] and at school, he was ‘conned’ into going to war. He said 100 students from his school were taken to war on the understanding that they would be on the backline. However, 30 of them were killed. He said that from that point on he lost all his beliefs in Islam. This information about his political/religious transformation was also included in his SHEV Application. He said that he volunteered to fight in the eight-year war and saw many ‘terrible things including chemical bombardment by Iraq. I lost my belief in religion. I just believe in humanity. I believe you should not hurt or harm another human being. I had firmed up this philosophy by the time I was twenty and I still carry that belief in my everyday life’.

48. He told the Tribunal that since being in Australia, he has not been in a mosque, and he does not practise Islam. His housemates are aware of his views. He has also told a few people he has seen in [location] about his views on Islam. These are people he meets in the shopping centre and street. Once he was smoking during Ramadan, and people asked him about this, and he told them his views. He said that some of the people he speaks to are Iranian and Turkish and when he tells them his views, they are not pleased. Some spit at him, and some put their heads down and move away. He said that he has not posted his views on social media.

49. The applicant’s evidence about the gradual evolution of his views towards agnosticism along with his anti-regime views are compelling, in light of his generally open-minded and tolerant views, and his despair after seeing classmates killed at a young age.

    Did the applicant consume alcohol in Iran?

50. The applicant has claimed that he had an open-minded approach to life and consumed alcohol when living in Iran. The Tribunal accepts this evidence which has been provided consistently over the years. It is also not uncommon for young people to consume alcohol despite prohibitions.[9] His evidence that his parents had tried to stop him drinking was persuasive. He said that they concluded that they could not stop him. He has said that his eldest brother also drank sometimes but then he left the country. His sisters did not. He said that some friends of his drank alcohol, but they did not get into trouble as far as he knows. He said ‘if you drink you will sometimes get into trouble’, a comment which accords with sources which suggest that people may be arrested, lashed or fined on occasion for drinking alcohol.[10]

    [9] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2023’, 24 July 2023.

    [10] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2023’, 24 July 2023.

    Was the applicant harmed in Iran due to his religious and/or social views?

1. The Tribunal accepts that the applicant was arrested three times for alcohol consumption and received a punishment of lashes. The Tribunal also accepts that on the first occasion he was arrested he was sexually assaulted by members of the Basij. The Tribunal also accepts that on the third occasion, he stated his views on Islam to the court. This evidence has been consistently related in the various accounts he has given. Furthermore, when recalling the sexual assault, it was clear that this has had a significant impact on him. His experiences about arrests for alcohol also accord with country sources, discussed further below. His evidence is as follows.

2. In his SHEV Application the applicant said that on three separate occasions between the ages of 25 and 35, the court in Tehran ordered that he be punished with 99 lashes after being convicted of drinking alcohol.  He said that the usual sentence was 75 lashes, but he was given the maximum sentence. He said that the judge/mullah told him on the third occasion that they should have hanged him on the second conviction.

3. He said that on the first occasion when he was lashed there were three Sepah officers present and he was sexually assaulted by them. He said that it left him traumatised, resulting in him drinking more because of the humiliation he felt. He said he became addicted and had to leave his job as he was drinking. He then worked as [an Occupation] for four to five years. He then opened a [Business] which was ‘not a good business’ so after two years he changed it to a [Product] business, but this business failed after two years.

4. At the Tribunal hearing the applicant confirmed that he was arrested three times for drinking.  He said that it was difficult to remember the first occasion when he was arrested. He does remember being taken to the basement of the mosque by the Basij, who touched his body and sexually assaulted him and hit him. He said that he cannot remember exactly how long after they arrested him that they took him before a court. He said that while in the basement they pretended to dial a judge, as if they were speaking to a court, and then they did what they wanted to him. He said that they just ‘laid him down’.

5. At the Tribunal hearing the applicant could recall that on the second time he was taken to the court. There was a line-up of people there and he recalls a judge picking up his file. He was not asked anything but was just told of his punishment of 74 lashes.

6. The applicant recalled that the third time he was arrested was when he was between 25 and 30 years old. He was asked questions about why he was drinking and how old he was and if he was a Muslim. He told them he was not a Muslim. Asked by the Tribunal why he would say this as he would have known that he would be punished, he said that he was drunk, and they were hitting him. He said that his parents stayed outside the court. They were fearful as they had tried to stop him drinking but came to the conclusion that they could not stop him. He said to the Tribunal that his statement that he did not believe in Islam, was ‘not looked on favourably’. As a result, he was sentenced to 99 lashes instead of 74. He was told by the judge, that if there was another similar incident, then the possibility of execution was high.

7. The Tribunal accepts his evidence about punishment for drinking alcohol. His evidence does correlate with independent sources about harassment of civilians by the Basij at the time and punishments meted for drinking alcohol.[11] Furthermore, his evidence has been consistently provided, and contains the kind of detail often commensurate with veracity, for example he recalls the Sepah officers pretending to call a judge.

   [11] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 21 April 2016; Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2023’, 24 July 2023.

   Was the applicant accused of adultery/attempted rape?

8. The Tribunal accepts that the applicant was targeted by the family of a woman called [Ms D] after she claimed he attempted to rape her. This evidence has also been provided consistently since 2013. It is also given as the reason he isolated himself for two years with depression before coming to Australia and tried to end his life on a number of occasions.

9. He said in his SHEV Application that his sister’s sister-in-law, [Ms D], was married to a man who was a drug addict and neglected her. She became interested in the applicant and wanted to have an affair, but he told her he was not interested. She then told his family that he had propositioned her and intended to rape her. This accusation had potential for violent reprisals by her family. He said that there was ‘dislocation and bitterness’ between some members of his family. He said that he was held responsible for adultery by his nieces and nephews. At the Tribunal hearing he was asked to describe further why [Ms D] made the claims. He said that her husband was an addict. She came to him and asked him to have a relationship. He refused because of the problems between the families and later she went to her mother-in-law and said that he attempted to rape her.

10. At the Tribunal hearing he confirmed that the incident with [Ms D] happened two years prior to travel to Australia. He said that after the accusations, he was depressed and stayed at home and isolated himself for two years. He said that the accusation was serious and people reacted. He said that if it was true and he had committed adultery, relationships with five families would have collapsed. He tried to end his life a number of times. [Ms D]’s family threatened to take him to court. He feared that they would inform the court that he had rejected Islam. He said that for more than two years he stayed in his room and spoke only to his mother. He said that occasionally his brother and sister would take him to the doctor. He said that in 2013 his family convinced him to leave the country, knowing that he would take his own life. He left Iran for Australia for security and his mental health. He said that he is [Age] years old and not married because of his depression.

11. In the 2024 Submissions it was submitted that [Ms D]’s family explicitly threatened his life and that they would take legal action. He said that in 2021 or early 2022 they assaulted his brother. At the Tribunal hearing he elaborated saying that the brother of [Ms D]’s husband knifed his brother three years ago. His brother went to hospital and had 15 stitches. Asked if he had medical records, he said that they did not make any records ‘because of me’. He was asked what he meant ‘because of me’. He said that due to the differences between the families, they did not follow up with the police. He was asked if they had medical records rather than police records. He said that he had not asked for these records. The Tribunal gave the applicant time to try and locate documentary evidence. Following the hearing he provided a statement from his brother, dated 24 February 2024. His brother said that in the summer of 2020 he heard the sound of breaking glass and he went outside and [Ms D]’s brother-in-law attacked him with a knife. The attacker then fled. The applicant’s brother was then taken to hospital by his family, where he was stitched up. He said that he did not sue them ‘because of his brother’, even though they had ‘done this before’.

12. The Tribunal asked the applicant why he was not harmed in the two years after the claims  of attempted rape. He responded that he did not go out in public and stayed at home. He only went out secretly. At the Tribunal hearing he said that [Ms D]’s family members came to the house when he was there, with knives and machetes and shouting insults. They could not get into the house. He was asked why he had not mentioned this incident earlier, and he said that he thought that he had.

13. In his 2024 Submissions the applicant claimed that [Ms D]’s sister had lodged an official complaint when he left the country.

14. The Tribunal accepts the applicant’s evidence about the accusations and repercussions, given that overall, it has found him to be a credible witness[12], and that the incident explains the deterioration of his mental health prior to coming to Iran. Further, he has provided corroborative evidence in the form of a statement from his brother and hospital admission records.

    [12] SZLVZ v MIAC [2008] FCA 1816 at [25].

    Political views

15. The Tribunal accepts that the applicant holds political views in opposition to the Iranian government. These views are closely tied to his rejection of Islam, and his experiences in the military, referred to earlier in this decision. While holding anti-government views, he did not engage in political activities in Iran or publicly express his views, except when in court under the influence of alcohol. He has also not engaged in political activities in Australia.

16. The applicant was asked at the Tribunal hearing what his views are about the Iranian government. He said that it is a ‘murderous regime’. He said that they try to display a good face to the international community, but underneath are ‘rotten’. He was asked if he had ever expressed these views in Australia. He said that he had not, and nor had he used social media to express his views. He said that his mental health situation is poor at times, and he cannot leave the house. He said that he does not have the ability to go to a protest and post on social media, due to depression. He has not attended any political activities or demonstrations in Iran or Australia.

    The refugee criterion

    Does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?

17. A person is a refugee if he or she is outside their country of nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail him or herself of the protection of that country.[13]

    [13] Section 5H(1) of the Act.

18. The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution. The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act, which provides that a person has a well-founded fear of persecution if:

    ·the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    ·there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned above; and

    ·the real chance of persecution relates to all areas of a receiving country.

    Does the applicant fear being persecuted for one of the stated reasons?

19. Section 5J(1)(a) of the Act requires that the person ‘fears being persecuted’ for one of the stated reasons. 

20. The applicant has stated that he fears returning to Iran because of his religious and political views, as a failed asylum seeker, and because he fears [Ms D]’s family.

21. The Tribunal is satisfied that the applicant fears being persecuted for these reasons. Further details are provided in the discussion later in this decision.

    Is there a real chance of serious harm if the applicant returns to his home country?

22. The applicant confirmed to the Tribunal that if he returns as a returnee asylum seeker from the West he will be harmed (killed, arrested or otherwise physically harmed) as a person with anti-government and anti-Islamic views. He said that he will be unable to escape Sepah or the Basij.

23. For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act, provides an objective element to that concept;[14] not only must a person fear persecution, but there must also be a prospect of that fear being realised.

    [14] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <>

    The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[15]

    [15] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p171.

24. The Tribunal is satisfied that the applicant faces a real chance of serious harm from the authorities if he returns to Iran, for the reasons set out in detail below. In sum, the Tribunal is satisfied that the applicant faces a real chance of serious harm on the basis of the combined elements of his profile − his agnostic faith, his anti-regime views, as a returnee asylum seeker from the West and as a person who has mental health issues and is prone to alcohol abuse. The Tribunal is satisfied that the applicant would be persecuted for the essential and significant reasons of his religion and political opinion if he were to return to Iran in the reasonably foreseeable future.

    Apostasy

25. The applicant has submitted that if he returns to Iran, he fears being tortured and imprisoned by the Basij, Etelaat or other authorities. He said that he has rejected Islam and made no secret of it when he was before the court. He said that his record would be on his file. He said that apostasy is punishable by death or a long prison sentence.

26. As referred to earlier in this decision, in the 2024 Submissions it was submitted that he had become agnostic over time. It was submitted that the authorities in Iran hold a presumption that he is a Muslim and the act of leaving Islam exposes him to grave consequences in the form of apostasy charges. He submitted that the death penalty is a potential outcome for blasphemy, as stated in the DFAT Report.[16] It was argued by his representative that he is an ‘outspoken individual, unafraid to express his aversion to the Islamic regime openly’.

    [16] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2023’, 24 July 2023.

27. The Tribunal has accepted earlier in this decision that the applicant has denounced his Islamic views and identifies as an agnostic, rather than being a non-practising Islam, as he said that he still believes in an almighty but denounces Islam. This differentiates him from some of his siblings, who have not suffered harm. He has said that they are more conservative and still believe in Islam, although they are not strict adherents of practice (and who have not been harmed by the authorities). The Tribunal believes the applicant holds strong views, but not that he has outwardly expressed them very often (as he has not posted on social media nor attended protests or participated in political groups), although he has expressed his views in small groups, and in Iran, on one occasion to police officers while under the influence of alcohol.

28. The Tribunal has considered that there are many non-practising Muslims in Iran, and that they are generally tolerated. Independent country information indicates that among the youth in particular, there are many Iranians who are not devout practitioners. The Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD) July 2018 report quotes two different recent sources indicating that ‘it is not uncommon for people to claim that they do not believe’ and that ‘a significant number of young Iranians do not consider themselves Muslims’.[17]

    [17] Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), ‘Iran COI Compilation’, 1 July 2018.

29. A June 2014 Danish Immigration Service fact-finding mission report referred to information from Elam Ministries, who stated that ‘abstaining from Muslim rituals such as not attending mosque … would not necessarily arouse any suspicion as many in Iran do not regularly attend mosques’.[18] Information provided by Mansour Borji, advocacy officer of the Article initiative of the United Council of Iranian Churches, in the same report, stated that ‘Iran is quite a mixed society and that there is both a conservative group of people and a more secular group of people. Some people from the conservative communities pay more attention to public manifestation of religion such as participation in Friday prayers etc., whereas people from the more secular segment do not pay any attention to such public manifestations’.[19] A November 2014 article from The Economist referred to Iran as ‘one of the least religious countries in the Middle East’ and stated that, while ‘Iranians remain a spiritual people who see Islam as part of their identity’, many had moved away from ‘institutionalised religion’.[20] A February 2013 Qantara article stated that ‘in Iran, the people are leaving the mosques in droves’.[21] Having tattoos and dressing inappropriately or having inappropriate hairstyles most commonly result in low-level harassment, such as warnings or fines.[22] A ‘senior research fellow in Iranian studies at a university in Germany’ advised ACCORD in August 2015 that ‘non-practising Muslims form a large part of the population of Iran’s cities. They lead normal daily lives and are rarely called upon to answer direct questions about Muslim religious practice and are rarely pressured to observe Muslim precepts’.[23]

    [18] Danish Immigration Service, ‘Update on the Situation for Christian Converts in Iran’, June 2014.

    [19] Danish Immigration Service, ‘Update on the Situation for Christian Converts in Iran’, June 2014.

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

    [21] Qantara, ‘Turning away from Shi’a in Iran’, 7 February 2013.

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

    [23] Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), ‘Iran: Freedom of Religion; Treatment of Religious and Ethnic Minorities COI Compilation’, 1 September 2015, p.31.

30. These reports correspond with the more recent 2023 DFAT Country Information Report on Iran, which states, in regard to non-religious Iranians:

    In-country sources told DFAT many younger and wealthier Iranians, particularly in the major cities, are secular; a majority of the population does not attend mosque. Alcohol consumption is common among the youth. Official sources told DFAT that, despite government laws, religion was a private matter —beyond the expectation that people do not eat in public during the Muslim holy month of Ramadan or hold parties during the mourning months of Muharram and Safar - how one wished to observe Islam was an individual choice and was not a matter for the state. DFAT understands many Iranians do not observe Ramadan strictly, including by eating, drinking liquids and smoking at home. Most restaurants are closed during the day in Ramadan, although many (especially in Tehran) reportedly serve food discreetly. Those caught eating in public during Ramadan run the risk of arrest and prosecution.

    A 2020 study from Utrecht and Tilburg Universities found that atheism was quite common; about 20 per cent of people do not believe in God. The study itself points to Iranians being uncomfortable speaking about religion; discussions about it are not tolerated in Iranian society. Figures about the number of atheists in Iran are, therefore, difficult to verify.[24]

    [24] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2023’, 24 July 2023.

31. These sources were discussed with the applicant at hearing in order to ascertain whether he would be regarded as a non-practising Islam rather than an agnositc. He submitted that Iran had become stricter and more brutal – referring to the killing of Mahsa Amini, a 22-year-old Kurd who had been detained for inappropriate dress. He also referred to the case of a girl who was killed in 2023 because there was a tear in her trousers above the knee.

1. The sources referred to above suggest that there is widespread secularism in Iran. However, the situation is different for those that reject Islam outright and the applicant is correct to state that in the last few years, the state has become more conservative. This is discussed later in the decision.

2. In respect of apostasy, as differentiated from non-practising Muslims, DFAT reports that over 99 per cent of Iranians are Muslim, Islamic beliefs and customs are enshrined into law and it is illegal to be an apostate.[25]. DFAT reports:

   Apostasy is not specifically codified as a crime in Iran, however, is nonetheless a crime under Sharia law, which is enforceable under the constitution. Both moharebeh or ‘enmity against God’ and fisad fil-arz (corruption on earth) are codified in law and can include apostasy, according to the 2021 US Department of State Human Rights Report. According to the Iran Human Rights Documentation Centre, person can be found guilty of the crime of apostasy based on the testimony of two male witnesses, the knowledge of a judge or a confession. The death penalty is a potential punishment but very rare in practice.…[26]

   [25] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2023’, 24 July 2023.

   [26] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2023’, 24 July 2023.

3. There are also charges of the crime of ‘swearing at the Prophet’ (blasphemy) if utterances are made that are deemed derogatory toward the Prophet Mohammed, other Shi’a holy figures or divine prophets.[27]

   [27] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2023’, 24 July 2023.

4. The US Department of State reports that:

   The constitution defines the country as an Islamic republic and specifies Twelver Ja’afari Shia Islam as the official state religion. It states all laws and regulations must be based on “Islamic criteria” and an official interpretation of sharia. The constitution states citizens shall enjoy human, political, economic, and other rights, “in conformity with Islamic criteria.” The penal code provides for hudud punishments (those mandated by sharia), including amputation, flogging, and stoning. It specifies the death penalty for proselytizing and attempts by non-Muslims to convert Muslims as well as for moharebeh (“enmity against God”) and sabb al-nabi (“insulting the Prophet or Islam”). According to the penal code, the application of the death penalty varies depending on the religion of both the perpetrator and the victim. In 2021, parliament amended the penal code to criminalize insulting “divine religions or Islamic schools of thought” and committing “any deviant educational or proselytizing activity that contradicts or interferes with the sacred law of Islam.” Nongovernmental organizations (NGOs) said these new provisions put religious minorities at a higher risk of persecution. The law prohibits Muslim citizens from changing or renouncing their religious beliefs.[28]

   [28] US Department of State, ‘2022 Report on International Religious Freedom: Iran’, 1 May 2023, < Iran - United States Department of State/>.

5. DFAT notes that in most cases people charged with apostasy also faced other charges related to national security and were executed, but apostasy and blasphemy cases are no longer an everyday occurrence in Iran and death sentences are rare. Instead, authorities continue to use religiously based charges (such as ‘insulting Islam’) against a diverse group of individuals, including cases with political undertones.[29] There was a case in March 2017 in which the Supreme Court upheld the decision of a criminal court in Arak (Markazi Province) to sentence a 21-year-old man to death for apostasy. Authorities arrested the man after he made social media posts considered critical of Islam and the Quran while on military service.[30]

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

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

6. More recently, in May 2023, two men were executed for insulting Islam and promoting atheism.[31]

   [31] AI Monitor, ‘Iran executes two men accused of blasphemy for insulting Islam’, 8 May 2023.

7. Although the applicant is not very outspoken about his beliefs, for example he has not posted on social media, and is not part of any group in Australia, he does at times speak about his beliefs to people he comes across in his social circle or neighbourhood. He feels strongly that he should be able to speak out about his religious choice. At the Tribunal hearing the applicant said that he spoke to friends and family about his anti-Islamic views when living in Iran, as it was ‘my right to choose my religion’.

8. The Tribunal is satisfied that similarly in Iran he may speak openly to friends and acquaintances and draw attention to his agnostic beliefs and his belief that ‘Islam curtails individual freedom’. Given that he feels passionately about his views, if under stress from his mental health conditions or if he has consumed alcohol, he may speak more publicly, and draw significant adverse attention to himself, as he did when arrested for drinking alcohol. When considered with his inclination to drink alcohol, his mental health issues, his returnee status and his political views, discussed in more detail below, the Tribunal is satisfied that this may lead to serious harm. Furthermore, during court proceedings relating to his alcohol use, he made derogatory statements towards Islam, Prophet Mohammad and the Islamic regime. This led to an escalation in his sentence, the imposition of 99 lashes, and there may be a record of this if his name is searched in databases kept by the Basij.

9. The applicant’s political beliefs and alcohol consumption are discussed in more detail below.

   Political views/ returnee asylum seeker from the West

10. It was submitted in the 2018 Submissions that if the applicant returned to Iran, he would be harmed for his political opinion as he holds anti-Islamic views, which he has previously voiced to the Iranian government. It was submitted that he is opposed to the ‘brutal, oppressive and authoritarian’ government of Iran. The Tribunal has accepted earlier in this decision that the applicant holds anti-regime views although he has not been involved in political groups or activities.

11. The applicant has also submitted that he fears being detained, interrogated and tortured as he had sought asylum in a Western country.

12. There has been a change in government since the Department decision. President Raisi took power in June 2021. His government is conservative, with a very poor human rights record.[32] The applicant was not involved in political groups while in Iran. Although the country sources have suggested that the Iranian authorities are not interested in returnee asylum seekers unless they were activists prior to departure from Iran, conclusions about returnee asylum seekers need to be revisited in light of recent developments in Iran, as well as monitoring of Iranians in Australia. This is explained in more detail below.

    [32] New York Times, ‘A new president takes office in Iran: solidifying hard line control’, 5 August 2021.

13. DFAT in its most recent report states that it is not aware of any legislative or social barriers to voluntary returnees finding work or shelter in Iran, nor any specific barriers to prevent voluntary returnees from returning to their home region.[33] According to reports prior to 2022, authorities in Iran have usually paid little attention to failed asylum seekers on their return to Iran.[34] Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. DFAT reported that those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are travelling on a laissez-passer. Questioning usually takes between 30 minutes and one hour but may take longer where the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history on the part of the returnee. DFAT stated that arrest and mistreatment are not common during this process.[35]

    [33] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2023’, 24 July 2023.

    [34] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2023’, 24 July 2023.

    [35] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2023’, 24 July 2023.

14. DFAT assesses that, unless returnees were the subject of adverse official attention prior to departing Iran (such as for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination.[36] Other sources prior to the 2022 protests in Iran reached similar conclusions. Academics consulted by the Immigration and Refugee Board of Canada also stated that treatment of returnees depended on the profile of the activists, with those who were well-known facing higher risk.[37] Various sources prior to the current protests in Iran suggest that if an individual was critical of the Iranian government whilst abroad, the possible repercussions upon return would depend on the content and scope of those activities, and, especially, the level of activism upon return.[38]

    [36] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2023’, 24 July 2023.

    [37] Immigration and Refugee Board of Canada, ‘IRN200457. E-Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019-February 2021)’, 22 February 2021.

    [38] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2020’, 14 April 2020, p.70; Immigration and Refugee Board of Canada, ‘IRN200133. E-Iran: Treatment by Iranian authorities of failed refugee claimants and family members of persons who have left Iran and claimed refugee status’ (2017-February 2020), 09 March 2020; Danish Immigration Service and Danish Refugee Council, ‘Issues concerning persons of ethnic minorities, Kurds and Ahwazi Arabs’, February 2018, p.6; Danish Immigration Service and Danish Refugee Council, ‘Iran: House Churches and Converts’, February 2018, p.8; UK Home Office, ‘Iran: Christians and Christian converts’, March 2018, pp.5, 29–32, OG9EF767914.

15. As discussed above, the applicant did not have a political profile prior to departure and has not been politically active in Australia and therefore according to the above sources, there would be a low risk of adverse interest in him from authorities.

16. In contrast to the sources quoted above, in 2014, the Danish Immigration Service cited an unnamed source from Elam Ministries (a Persian-language Christian missionary service) that noted that those who spent extended periods out of Iran are more likely to be suspected of spying upon return.[39] In February 2021 a representative of Human Rights Activists News Agency (HRANA) stated that there had been multiple reports of dissidents being arrested upon their return and ‘even lured into returning to Iran’ to then be arrested.[40] The UK Home Office also refers to some examples of failed asylum seekers being prosecuted and/or punished for political or other activities upon return; however again these appear to have obtained a profile whilst abroad or else had a criminal record in Iran before leaving.[41]

    [39] Danish Immigration Services, ‘Update on the Situation for Christian Converts in Iran’, June 2014.

    [40] Immigration and Refugee Board of Canada, ‘IRN200457. E-Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019-February 2021)’, 22 February 2021, 20210315091836.

    [41] UK Home Office, < May 2022.

17. While the reports predominantly point to low risk on return, with some exceptions, there have been significant changes in Iran in recent years which increase the risk to the applicant.

100.   In September 2022, protests erupted across Iran over the death of Mahsa Amini, a 22-year-old Kurd who had been detained for inappropriate dress. The demonstrations, the largest in many years, evolved into calls for the ouster of the supreme leader, and an end to the Islamic Republic. The security forces responded with deadly force.[42] An ABC article claimed that the Human Rights Activist News Agency said 410 protestors had been killed in total and 17,251 people arrested.[43] A report of the Human Rights Activist News Agency also documented the use of batons, electric shocks, pepper spray, tear gas, pellets, plastic bullets and handguns. The Basij is referred to as the key body used to suppress protestors.[44] Protests involved all classes of Iranians, including lower, middle and upper classes and different ethnic groups and religions.[45] Human Rights Watch reports that in the aftermath of protests related to Mahsa Amini’s death, Iranian security apparatus arrested hundreds human rights defenders, students, women’s rights activists, lawyers, journalists, and summoned and interrogated dozens of actors, athletes, and other public figures in connection to their expressed supports of the demands of the protestors.[46]

[42] United States Institute of Peace, News, < 21 November 2022.

[44] Human Rights Activists News Agency, < September/October 2022.

[45] Human Rights Activists News Agency, < September/October 2022.

[46] Human Rights Watch, World Report 2023 – Iran, < World Report 2023: Iran | Human Rights Watch (hrw.org)>.

101.   The reports also refer to protests globally following Amini’s death and since, with one report referring to an unprecedented solidarity between Iranians in the diaspora and Iranians within the country.[47] This report referred to the ‘international community’ becoming the ‘voice of the Iranian people in an unprecedented way, and by disseminating information and taking various actions, they have drawn attention to what is going on in Iran’.[48] There is no doubt that the Iranian government is aware of this movement. Human Rights Watch has reported that in October 2022, a ranking Iranian judicial figure threatened legal action against two UK-based Persian news outlets, accusing them of inciting ‘terrorist acts’ for their reports on the protests over Mahsa Amini’s death.[49]

[47] Human Rights Activists News Agency, < September/October 2022.

[48] Human Rights Activists News Agency, < September/October 2022.

[49] Human Rights Watch, World Report 2023 – Iran, < World Report 2023: Iran | Human Rights Watch (hrw.org)>.

102.   Australian Iranians have also become active, calling on the government to sanction the government.[50] An article in The Australian quotes academic Kylie Moore-Gilbert, who spent more than 800 days in Iran’s Evin prison, who states that Iranian Australians were calling for tangible action from the Australian government including sanctioning officials, listing the Islamic Revolutionary Guard Corps as a terrorist organisation and addressing Iranian government infiltration domestically.[51] A Melbourne lawyer and anti-regime activist is also quoted in the article. He said that he had direct knowledge of six Australian Iranians whose relatives had been arrested or interrogated since the protest movement began. The article also refers to the head of Britain’s MI5 intelligence agency claiming recently that Iran was plotting to kill or kidnap 10 British residents.[52]

[50] The Australian, < 11 November 2022.

[51] The Australian, < 11 November 2022.

[52] Sydney Morning Herald, ‘Iran cracks down on family of Australian protestors’, 16 January 2023,  The Australian Federal Police has urged Iranians in Australia to report harassment or surveillance by Tehran authorities to the national security hotline, including monitoring of social media.[53]

[53] The Guardian, ‘AFP urges Iranians in Australia to report harassment by Tehran authorities as anti-government protests escalate’, 21 December 2022.

104.   A report in the Sydney Morning Herald in 2023[54] quotes Iranian democracy protestors in Australia who claim family members have been arrested in retaliation for their actions. One protestor has said that his mother has been arrested and asked questions about them in Australia. While the reports are unverified, they have been widely accepted by academics in Australia, including Kylie Moore-Gilbert who said that she had heard direct reports from other Iranian Australians whose relatives had been harassed and questioned about them. She also claimed that there was a lot of fear in the Australian community due to the involvement of agents and informers in Australia, recording protests, sending threatening messages and letting people know they are being watched.[55]

[54] 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 Australian Home Affairs Minister, Clare O’ Neill has singled out Iran as an offending government in respect of foreign interference, revealing ASIO had disrupted an operation on Australian soil targeting an Australian-Iranian critic of the regime.[56]

[56] SBS News, ‘They tried many times to corrupt me’, Australians speak out against foreign spies’, 29 February 2024.

106.   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.[57] 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.[58]

[57] SBS News, ‘They tried many times to corrupt me’, Australians speak out against foreign spies’, 29 February 2024.

[58] SBS News, ‘They tried many times to corrupt me’, Australians speak out against foreign spies’, 29 February 2024.

107.   The SBS News Article also refers to comments by Professor Dara Conduit, a Middle East Specialist at the University of Melbourne, who said that most foreign interference from Iran is centrally organised through official government bodies and the Islamic Revolutionary Guard Corps.[59]

[59] SBS News, ‘They tried many times to corrupt me’, Australians speak out against foreign spies’, 29 February 2024.

108.   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.[60]

[60] Iran International, 17 January 2024, < Australia ‘Concerned’ By Iranian Espionage Activities | Iran International (iranintl.com)>.

109.   As to the level of suppression in Iran, articles 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.[61] 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.[62]

[61] OCHR, 23 January 2024, <UN experts urge Iran to respect international law and stop horrific executions of protesters | OHCHR>.

[62] United Nations Human Rights Council, ‘Situation of Human Rights in the Islamic Republic of Iran’, 24 February 2024.

110.   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’. Human Rights Watch states:

Security forces’ impunity is rampant, with no government investigations into their use of excessive and lethal force, torture, sexual assault, and other serious abuses.[63]

[63] Human Rights Watch, < World Report 2024: Iran | Human Rights Watch (hrw.org)>.

111.    In regard to the death penalty, Human Rights Watch states:

Iran remains one of the world’s top practitioners of the death penalty, applying it to individuals convicted of crimes committed as children and under vague national security charges; occasionally, it is also used for non-violent offenses. Iranian law deems actions like “insulting the prophet,” “apostasy,” same-sex relations, adultery, alcohol consumption, and certain non-violent drug-related offenses to be punishable by death.[64]

[64] Human Rights Watch, < World Report 2024: Iran | Human Rights Watch (hrw.org)>.

112.   The Special Rapporteur in 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’.[65]

[65] United Nations Human Rights Council, ‘Situation of Human Rights in the Islamic Republic of Iran’, 24 February 2024.

113.   In the elections held on 1 March 2024 candidates had to be vetted by the ruling party, and the only reformist party refused to participate.[66] Other moderate and reformist figures were disqualified from standing.[67]There is therefore not expected to be change in governance, with most of the winning candidates considered to be staunchly loyal to the Islamic ruling system and opposed to political or social freedoms.[68] Election results indicate that conservative parties will dominate, maintaining their hold on the Islamic Consultative Assembly.[69]

[66] Al Jazeera, 29 February 2024, <What to expect as Iran votes to elect parliament, religious leaders | Elections News | Al Jazeera>.

[67] BBC News, 5 March 2024, < Iran elections: Record low turnout in polls as hardliners win - BBC News>.

[68] BBC News, 5 March 2024, < Iran elections: Record low turnout in polls as hardliners win - BBC News>.

[69] Al Jazeera, 4 March 2024, < Low turnout as conservatives dominate Iran parliamentary election | Elections News | Al Jazeera>.

114.   In this context, where overseas Iranians including Australians have been active in protests, and the government monitors Australian Iranians, and there has been increased political repression in Iran the Tribunal is satisfied that the applicant will be extensively questioned at the airport, given his long absence from Iran. The Tribunal is satisfied that there is a real chance, which may be less than 50 per cent but is a substantial chance[70] that the authorities would become aware of his religious and political views, either through this questioning or when he is in the community. The applicant has had issues with alcohol use as well as a number of mental health issues, and if under the influence of alcohol or if his depression flares up, it is more likely that he will expose himself as an agnostic or having anti-regime views, as he has done in the past. The issue of alcohol consumption and mental health issues are discussed further below.

[70] Chan v MIEA (1989) 169 CLR 379.

Alcohol consumption/mental health issues/issues with [Ms D]’s family

115.   It was submitted in the 2024 Submissions that the DFAT Report states that alcohol use can be punished by 80 lashes and upon multiple convictions, death.[71] The applicant said that he had struggled with alcohol addiction, which he managed to restrain in Australia, but a recent job loss prompted him to return to alcohol use. He said when his mental health deteriorates, he tends to drink more. He claimed that the Iranian government executed a person in 2020 for three offences of drinking.

116.   Under Iran’s Penal Code, consumption of alcohol is punishable by 80 lashes and if convicted and sentenced three times, the punishment is death.[72] Arrests for consuming alcohol are not common and are usually resolved with the payment of a fine.[73]  There are reports of flogging sentences.[74] In July 2020 a man was executed on the basis of this provision.[75] This had not happened for 30 years.[76] In February 2021 a 73 year old man was sentenced to death after being arrested for the fourth time for drinking although he was later acquitted.[77]

117.   The Tribunal has accepted the applicant’s evidence that he was accused by [Ms D]’s family of attempted rape, and that members of her family attacked his brother in 2020, as corroborated by his brother. The Tribunal is satisfied that [Ms D]’s family may continue to harass the applicant if he were to return to Iran. This may contribute to a worsening of his mental health. The Tribunal notes that for two years in Iran he stayed at home with depression, and during this time he attempted suicide, as corroborated by medical reports. In Australia his mental health has fluctuated and there are ongoing issues. The psychologist, [Mr B], said in 2023 that the applicant’s mental health had deteriorated, and he regularly experienced hopelessness, helplessness, focused on negatives and that he could not engage effectively in daily duties or responsibilities. While some of this may be the result of his migration issues in Australia, the Tribunal notes that he has experienced mental health issues since his early 20’s and it is likely to continue given his medical history.

118.   The applicant has also turned to alcohol in times of difficulty and when his depression flares. He already has convictions for alcohol consumption, and although arrests for alcohol are not common currently, the Tribunal is satisfied that his use of alcohol and his mental state may contribute to him more openly exposing his political and religious views and drawing adverse attention to himself from the authorities. The Tribunal also accepts that there is the possibility that [Ms D]’s family would alert authorities of his views, as claimed by him, given the history between them.

Summary of findings on well-founded fear of persecution

119.   The Tribunal is satisfied that there is a real chance of serious harm for this applicant if he returns to Iran in the reasonably foreseeable future, given the widespread and brutal suppression of opposition currently taking place in Iran and arbitrary targeting of those who denounce Islam or are agnostics, as well as impunity of those in power. While the applicant is not an activist, the Tribunal is satisfied that he will be of interest because of his long time outside Iran (since 2013), his prior convictions, and the fact that the applicant has mental health issues and consumes alcohol when his mental health deteriorates, which may draw attention to him. The Tribunal is satisfied that the chance of serious harm for reasons of his political opinion and religion is substantial, as opposed to remote or a far-fetched possibility (Chan v MIEA (1989) 169 CLR 379) given the current conduct of the regime. 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.

120.   In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or if is mere speculation’. The Tribunal is satisfied that the fear is well-founded, and more than speculation, given the current environment, where the diaspora has taken an active role in anti-government protests, including in Australia, and it is conceivable that the authorities would be observing returnee asylum seekers more closely than they have in the past. The applicant has been in Australia since 2013, such that there may be particular interest in why he has been out of the country for so long.

121.   Section 5J(2) of the Act provides that a person does not have a well-founded fear of persecution if effective protection is available. As the harm would be from the authorities, the Tribunal is not satisfied that effective protection would be available.

122.   Section 5J(3) of the Act provides that a person does not have a well-founded fear of persecution if they could take steps to modify their behaviour. The behaviour that is expression of political opinion is an exception as a person is not required to alter or conceal political beliefs.

123.   The Tribunal is satisfied that the applicant faces a real chance of serious harm for the essential and significant reason of his religion and political opinion (s 5J(4)(a)), and that his returnee status and mental health would exacerbate the risks to him. In AGA16 v MIBP [2018] FCA 628 the Court accepted the appellant’s proposition that in assessing the seriousness of harm, it is necessary to have regard to personal attributes and vulnerabilities. The Tribunal is satisfied that the applicant’s depression and anxiety could lead to an inability to recall events and present matters to authorities in an articulate manner, which is likely to heighten the harm he would suffer. His mental health may also mean that he reacts more acutely to threats and physical harm.

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

[72] Amnesty International, ‘Iran: man executed for drinking alcohol’, 10 July 2020.

[73] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Iran’, 24 July 2023.

[74] Iran Human Rights Monitor, ‘Iranian Prisoner flogged 75 times for possessing alcohol’, 1 January 2022; Iran Human Rights Monitor, ‘prisoner died after being flogged for drinking alcohol in Iran’, 2 September 2021; Iran Human Rights Monitor, ‘Political prisoner lashed 80 times in Evin prison before going on leave’, 11 July 2021.

[75] Amnesty International, ‘Iran: man executed for drinking alcohol’, 10 July 2020.

[76] Iran Human Rights, ‘Annual Report on the death penalty in Iran 2020’, 30 March 2021.

[77] Iran Human Rights Monitor, ‘73 year old retired pilot facing death penalty acquitted of alcohol consumption’, 25 February 2021.

1. The Tribunal is satisfied that the harm would involve serious harm (s 5J(4)(b)) as it is described in s 5J(5) of the Act, as it is likely to involve deprivation of liberty or physical ill-treatment. The Tribunal is satisfied, given the conduct of the regime in recent times towards political opponents, that the harm would involve systematic and discriminatory conduct (s 5J(4)(c)).

125.   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.

CONCLUDING PARAGRAPH

126. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

DECISION

127. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958 (Cth).

Jane Marquard
Member

ATTACHMENT A  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…