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

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).
The applicant is a citizen of Iran. He was born in [Year] in Iran. He first arrived in Australia [in] May 2013.
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.
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.
The matter is now before the Administrative Appeals Tribunal (the Tribunal) for review.
SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW
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.
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…

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 1909657 (Refugee)

Details

AGLC: 1909657 (Refugee) [2024] AATA 2688
Case: [2024] AATA 2688
Decision Date: 12 March 2024

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a citizen of Iran. The applicant claimed to be an agnostic from a non-strict Muslim family, who held anti-government opinions. He also alleged he had experienced war service at a young age, witnessed fellow students being killed, was convicted and lashed for drinking alcohol, sexually assaulted by the Basij, falsely accused of attempted rape by a relative-in-law, and that his brother had been attacked. The applicant also reported significant mental health issues, including suicide attempts. The Tribunal was required to determine whether the applicant faced a real risk of significant harm if returned to Iran, considering his stated beliefs, past experiences, and current mental health condition, in light of country information regarding the Iranian government's activities against dissidents.

The Tribunal's reasoning focused on assessing the credibility of the applicant's claims and the potential risks he faced. It accepted the applicant's evidence regarding his background, family, and mental health, noting consistency and supporting documentation, including hospital records. The Tribunal considered country information indicating that the Iranian government's recent activities against dissidents, coupled with the applicant's issues with alcohol and mental health, could draw adverse attention. Despite the applicant not engaging in overt political activity, the Tribunal found that his circumstances, including his religious and political beliefs and his past experiences, were material to the assessment of risk.

Ultimately, the Tribunal found that the applicant had provided credible evidence supporting his claims and that the cumulative effect of his experiences and circumstances presented a real risk of significant harm. Consequently, the Tribunal remitted the decision for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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 The Tribunal accepts the information provided about the applicant’s background and family, which has been provided consistently. The applicant was born in Tehran in [Year] and lived in a house with his parents, [sisters and brothers]. 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. 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. 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. 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]. 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. 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 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.

Evidence

Evidence Before The Court

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 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. 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. 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. 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 For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’. For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country. 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. 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 The Tribunal accepts the information provided about the applicant’s background and family, which has been provided consistently. The applicant was born in Tehran in [Year] and lived in a house with his parents, [sisters and brothers].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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