1909732 (Refugee) - [2025] ARTA 1533

1909732 (REFUGEE) [2025] ARTA 1533 (23 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 1909732
Tribunal:General Member R Da Costa
Date:23 May 2025

Place:Sydney
Decision:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 May 2025 at 12:24pm
CATCHWORDS
REFUGEE – protection visa – Iran – arrival by sea – not unauthorised maritime arrival or fast-track applicant as defined – statutory bar does not apply – convicted and lashed for drinking, making and selling alcohol – assaulted by police for Western appearance and tattoos – political opinion – participation in anti-government protests – returned, failed asylum seeker – genuine passport and lawful departure – criminal conviction and imprisonment in Australia – threats by wife’s family and assaults on parents – double jeopardy and reprosecution – mental health – inconsistent claims and evidence – passage of time and effect on memory – not activist or member of organisation – unlikely to return in foreseeable future – no evidence of recent contact with wife’s family – country information – ‘retribution-in-kind’ – reprosecution possible but no recent examples – private consumption of alcohol widespread – low risk of monitoring, mistreatment or discrimination – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AA, 5H(1)(a), 5J(1), (3), 36(2)(a), (aa), (2A), 65, 91K
Migration Regulations 1994 (Cth), r 4.33(b)(iii), Schedule 2
CASES
CPE15 v Minister for Immigration [2017] FCA 591
DBB16 v MIBP (2018) 260 FCR 447
MIAC v SZQRB [2013] FCAFC 33
MICMSMA v CBW20 [2021] FCAFC 63
SZDCD v MIBP [2019] FCA 326
SZTAL v MIBP [2017] HCA 34
IAA16/00435, 17 October 2016
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 March 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who is a national of Iran, applied for the visa on 23 June 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands on [date] April 2013. In DBB16 v Minister for Immigration and Border Protection[1], the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as then defined in s 5AA of the Act). Accordingly, the applicant was not a ‘fast track applicant’ (as then defined in s 5(1)) and a decision refusing to grant him a Safe Haven Enterprise visa was a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal when the review application was lodged on 23 May 2019.
[1] (2018) 260 FCR 447.
The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 23 May 2013. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20[2], s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands. Therefore, the application for a Safe Haven Enterprise visa is not subject to the s 91K bar.
[2] [2021] FCAFC 63.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
CLAIMS AND EVIDENCE
Background
In his protection visa application form, the applicant provided the following relevant information.
In response to question 4 of Part B of the form, which asks questions about Character, the applicant provided details stating, ‘I have been charged with [a crime]’, ‘In Iran I was convicted for drinking alcohol’ and ‘I completed military service in Iran and this included weapons training.’
In Part C of the form, the applicant provided the following relevant information. He is a [Age]-year-old Iranian citizen who was born in Tehran, Iran. He undertook military service in Iran from [Year] to [Year] during which time he was [a military task] in the [military branch]. He speaks, reads and writes Farsi (Persian) and he speaks [Language 1], basic [Language 2], and English. He is a Shia Muslim.
In Iran, he has his parents and two brothers. He speaks with his parents once or twice a month by phone. From birth to [the start of his military service], he lived in Tehran. He lived in [City 1], Hormozgan province from [Year] to [Year], and then returned to Tehran. He lived and worked in [Countries 1 and 2] from 1996 to 2004. He has visited other countries on holiday, including [Countries 3-5]. He returned to live in Iran in 2004 and lived in Tehran. He married in around 2005. In 2010, he moved to [City 2], Hormozgan province, which is where he lived until he departed Iran in March 2013.
After completing military service, he worked for his father in his [business] in Tehran. He worked in [work sector] in [Countries 1 and 2]. After returning to Iran, he worked for his father again from 2004 to 2010. From 2010 to 2013 he was unemployed and stayed home and relied on money from his father. He completed High School and further English studies in Iran.
He departed Iran legally by air from Tehran airport and arrived in Australia in March 2013 by boat as an unauthorised maritime arrival. The smuggler in [Country 5] took away his passport.
[Personal detail]. He is residing in [Correctional Centre 1] in NSW.
Applicant’s criminal background in Australia
[In] November 2018, the applicant was found guilty in the [Court] of [a crime against] his wife in September 2016. The applicant and his wife travelled to Australia from Iran together. The applicant was sentenced to [Number] years in prison with a non-parole period of [Number] years and [Number] months. This non-parole period will expire on [Date]. These matters are not in dispute and explain why the applicant is currently residing in the [Correctional Centre 2].
The Tribunal notes that at the time the applicant applied for his protection visa at the time the delegate made their decision, he had been charged with [a crime] but not yet convicted. This is relevant to the delegate’s reasoning in respect of some of the applicant’s claims and different from the situation considered by the Tribunal.
Evidence before the Department
Claims for protection
In his protection visa application form and an attached written statement signed and dated 24 November 2017, the applicant makes the following claims for protection:
·     He undertook compulsory military service in Iran from [Year] to [Year]. After that, he worked in [Countries 1 and 2]. He overstayed his visa in [Country 1] and was deported to Iran in 2004. He was questioned by intelligence on his return about what he had been doing, which is standard for people returning from overseas.
·     In Iran, he worked for his father [doing job tasks]. He did this work until he fled to Australia.
·     He left Iran because of problems he had with the government.
·     After returning from [Country 1] in 2004, he was arrested a number of times and experienced harm from the Iranian authorities.
·     About 8 months after returning from Iran, he was arrested by the intelligence police for drinking alcohol in Tehran. He was detained for about one week while waiting for his court case. He was questioned about his Western appearance, including his tattoos. He was charged and sentenced to 74 lashes.
·     In around 2006 or 2007 the police stopped and searched his car at a checkpoint and found alcohol. He was arrested and detained again pending trial. He was charged and sentenced to about 54 lashes.
·     On other occasions he was stopped and assaulted by the police. He believes he was targeted because of his Western appearance and so the police assumed he was anti-government. On one occasion, the police took him in their car and another officer followed on the applicant’s motorbike. The officer damaged the applicant’s motorbike and never paid for the damage. On another occasion, the applicant was driving his car and the police stopped him and asked him why he was playing European music and why it was so loud.
·     He does not like to live like other Iranians. He values his freedom. His father inherited a business, so the applicant has no financial worries. He wants a life where he can drink what he wants and do what he wants.
·     In 2009, he participated in demonstrations in Tehran against the Iranian regime. He was not a member of a particular party. He just wanted the regime to end. He chanted slogans at the protests.
·     In 2010 or 2011, he was arrested for a third time. He was at a party with friends and they were drinking alcohol. They were drunk and worked-up about politics so they went to the Khomeini temple and were swearing and yelling. The Basij caught them. They were taken to a police station and then to a detention centre. The applicant was hit with batons and badly injured by Basij officers. They were kept in filthy conditions. After this, they were taken to prison where the applicant and others were beaten and kept for a few days before going to court.
·     The applicant was charged with drinking alcohol. The judge said that because it was the applicant’s third time, next time he could be hanged under Sharia law. The applicant said he didn’t agree with the law. The applicant was forced to sign an undertaking that if he was caught drinking again, the government would hang him. He was severely punished and received 92 hard lashes.
·     After this, the applicant had to leave Tehran and bought a house in his mother’s name in [City 2].[3] His friends told him the authorities in Tehran might have photos of him from the demonstrations and have a criminal file on him because of his arrests. He felt unsafe.
[3] According to Google Maps, [City 2] is on the Caspian Sea and is around [Distance]km drive from Tehran.
·     While in [City 2], he stayed home most of the time and kept a low profile. He moved there so he could make preparations to leave Iran.
·     The applicant left Iran on a genuine passport and did not have any problems at the airport. Years earlier, he had lost his citizenship card and on his new one, his last name was misspelled. His driver’s licence has the original spelling. He thinks that because he was arrested under the name on his driver’s licence this may have helped him leave the country without trouble.
·     If he returns to Iran he fears serious harm including execution.
·     He will continue to live freely and if he is caught drinking alcohol he will be executed.
·     He cannot live safely anywhere in Iran because records are kept electronically and the authorities will have access to his record.
·     He cannot alter his behaviour because it is an issue relating to freedom of speech.
·     As a person with a profile for drinking alcohol, political activism and who appears pro-Western, he fears he will come to the adverse attention of the authorities.
·     He fears he would be questioned and detained immediately upon arrival at the airport due to his history of arrests in Iran.
·     His wife’s family has sent threats to his family in Iran and to the applicant threatening to kill him. If he returns to Iran, he fears harm from them.
The interview with the delegate and post-interview submissions
On 17 January 2018, the applicant participated in an interview with the delegate to discuss his claims for protection. He elaborated on his claims, including the problems he experienced with the Iranian authorities connected to alcohol and political protests, and his fear of harm from his wife’s family. The applicant made the following additional claims in the interview, as reflected in the delegate’s decision:
·     he was forced to leave Tehran because he had been manufacturing and selling alcohol for about one and a half years and he and his wife managed to escape shortly before the police raided his house;
·     he relocated to [City 2] where he lived for a year or two before coming to Australia and his father supported him financially while he lived there;
·     he was involved in every Green Movement demonstration;
·     he has not been politically active in Australia;
·     his wife’s brother went to his parents’ house and assaulted his parents twice and have made threats against him to his parents;
·     he is stressed and there are things he can’t remember.
The Tribunal has listened to a recording of the interview. Where relevant, the applicant’s evidence is referred to below.
Following the interview, the applicant’s then-representative made written submissions. It is submitted that the applicant fears persecution in Iran for the following reasons:
· actual and imputed political opinion due to his Western appearance and values (including alcohol consumption and production) and his participation in the anti-government Green Movement demonstrations;
· membership of a particular social group of failed asylum seekers who sought asylum in a non-Muslim country and will therefore be perceived to be anti-regime, and men who breach religious/cultural norms.
It is submitted that the applicant is depressed and has limited psychological support in prison. His mental health accounts for the apathetic nature of some of his responses to questions and difficulty remembering certain details, and it took a few sessions for the representative to obtain the information contained in the applicant’s application and written statement. It is submitted that these circumstances should be taken into account in assessing the applicant’s credibility, in accordance with UNHCR guidance on this matter.
The written submissions refer to country information, including the DFAT Country Information Report Iran 21 April 2016, about the current political atmosphere in Iran and how protesters are being negatively treated by the authorities. It is submitted there is a real chance the applicant will come to the attention of the authorities at the airport due to his previous offences involving alcohol and involvement in the Green Movement, or as a result of his Western appearance and, as a result, there is a real chance he will face serious harm. The submissions refer to the additional claim the applicant made in the interview that as well as consuming alcohol, he also produced alcohol on a small scale and sold it to friends and his house was raided as a result, but he managed to evade the authorities.
It is submitted that in the current sensitive political environment, as reported by news outlets such as Al Jazeera, the applicant’s past involvement in the Green Movement would contribute to him being of interest to the authorities. It is also submitted that if he returned to Iran, the applicant would suffer harm in the form of qesas (retribution-in-kind) under Iran’s Islamic Penal Code from his wife’s family. The submissions refer to country information from sources such as Human Rights Watch and Amnesty International about a victim’s survivors retaining the right to retribution against the guilty party and it is submitted there is a real chance of the applicant being sentenced to death under this principle. The submissions dispute information the delegate put to the applicant in the interview about an offender serving a sentence outside Iran and not being retried on return to Iran.
It is also submitted that as a failed asylum seeker in the West who has already come to the attention of the authorities in Iran in the past, he would be of adverse interest upon return which would expose him to a real chance of serious harm. It is submitted that the airport in Tehran is a particular ‘pinch point’ at which this could occur, and the submissions cite an Immigration Assessment Authority decision from 2016 which discusses this.[4] It is submitted that the Iranian authorities are not willing and able to provide the applicant with effective protection in any part of Iran.
[4] IAA16/00435, 17 October 2016, [57] – [59]. Extracts of the decision are contained in the written submission.
In relation to complementary protection, it is submitted that punishments for violations of the morality code in Iran are disproportionate to the crimes and amount to significant harm and that prison conditions in Iran are extremely harsh and also amount to significant harm, and the exceptions under the Act do not apply.
The Tribunal has considered these written submissions and, where relevant, refers to them below.
The delegate’s decision
On 28 March 2018, the delegate made their decision. The delegate was satisfied of the applicant’s identity and nationality. The delegate accepted some, but not all, aspects of the applicant’s claims. The delegate found the applicant would not face harm on the basis of being a failed asylum seeker returning from a Western country, that he was not of interest to the authorities after his second arrest for alcohol consumption in 2008, that the applicant has a political opinion in support of alcohol but he did not manufacture alcohol, that the laws against the consumption of alcohol are laws of general application and do not discriminate against the applicant’s political beliefs, that the applicant attended the Green Movement protests but this did not cause him to be of adverse attention to the authorities, he does not have a broader political profile that would be of concern if he returned, that the laws criminalising [crime] in Iran are laws of general application and do not discriminate against the applicant, and that the applicant would not face a real chance of serious harm due to his Western appearance or his tattoos. The delegate found that considering the applicant’s claims individually and cumulatively, he would not face a real chance of serious harm or a real risk of significant harm if he returned to Iran now or in the foreseeable future. The delegate also found that based on country information, there is not a real risk the applicant would face criminal liability on return to Iran in respect of the [crime against] his wife.
Other documents
On the Department file there is a printout of an online news article from [News source] dated [November] 2018 reporting on the applicant being sentenced and jailed, as well as a copy of Justice [A]’s sentencing remarks of the same date in the [Court]. These documents post-date the delegate’s decision. The Tribunal has taken their content into account in making its decision insofar as they contain information which is relevant to the applicant’s claims about why he fears harm if he returns to Iran.
Evidence before the Tribunal
The applicant lodged his application for review of the delegate’s decision with the Tribunal on 23 April 2019. He has not had representation since he lodged his application for review or provided further documents to the Tribunal in support of his case. The Tribunal has sent him information about seeking legal assistance, but the applicant remains unrepresented at the time of decision.
The hearing
The applicant appeared before the Tribunal on 13 March 2025 to give evidence and present arguments. As the applicant is in custody and located several hundred kilometres from Sydney, the hearing was conducted by videoconference using the Microsoft Teams videoconference platform. The Tribunal appreciates the assistance of the correctional centre in arranging the remote hearing, and the technology worked smoothly. The applicant was alone in a quiet, private room for the hearing.

The applicant speaks good English and the Tribunal hearing was conducted in English, which was the applicant’s choice. An interpreter in the Persian (Farsi) and English languages was present in the hearing by video and was available to the applicant if he required assistance. The applicant only used the interpreter on one occasion referred to below. The Tribunal is satisfied the applicant had a meaningful opportunity to participate in the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In the hearing, the Tribunal discussed with the applicant his family and relationship background, his residential and employment history, his travel and migration history, his health, his political opinions and activities, claimed events in Iran and events in Australia and why he claims to fear harm if he returns to Iran. The Tribunal has concerns about aspects of the applicant’s claims and evidence. There are various significant differences in the evidence the applicant has given over time about key aspects of his claims, including about his residential and employment history, his consumption and manufacture of alcohol in Iran and his dealings with the Iranian authorities. These differences raise doubts about the reliability and credibility of the applicant’s evidence in relation to these claims, and more broadly. In addition, current independent country information does not support aspects of the applicant’s claims about the serious harm he claims he would face if he returned to Iran. The Tribunal has made different findings from the delegate in respect of some of the applicant’s claims, which is in part due to updated country information and in part due to changes in the applicant’s evidence. The Tribunal discusses its concerns and findings in detail below.
The applicant’s mental health
The applicant has not provided any independent medical evidence to the Tribunal or Department about his mental health.
In the interview with the delegate, the applicant said he had lost everything since being in jail and was stressed, found it difficult to remember things and his mental condition was not good. In his post-interview written submissions dated 31 January 2018, in response to concerns raised by the delegate in the interview about aspects of the applicant’s evidence, it is submitted that due to the applicant’s circumstances, including being charged with [a crime] and facing the prospect of indefinite detention, the applicant ‘lacked the mental and emotional energy to keenly engage with the assessment of his protection obligations’ and was unable to remember various details about when particular incidents happened. The submissions state that it took a number of sessions to get from the applicant the detail contained in his protection visa application form and written statement. The submissions say the applicant informed his representative that he has depression and takes three tablets per day. He has seen a counsellor or psychologist a couple of times in prison but could not remember their name. The representative states that they were attempting to obtain a report, but this was difficult in prison and they had not been able to contact the counsellor or psychologist.
In this context, the Tribunal notes that the sentencing remarks of the judge refer to the applicant having been interviewed by a psychiatrist in December 2017 and a report being produced. The sentencing remarks refer to some of the things the applicant told the psychiatrist, which the judge does not accept, and that the psychiatrist diagnosed the applicant with an adjustment disorder and various other things including depressed mood and alcohol dependence. Given the Tribunal has not seen a copy of the psychiatrist’s report and the references to parts of the psychiatrist’s report in the sentencing remarks reflect the judge’s view and use of that report specifically in the context of sentencing the applicant, the Tribunal gives the information in the sentencing remarks about the applicant’s mental health and other matters no weight in terms of assessing the applicant’s claims for protection.
The written submissions also refer to UNHCR guidance on the assessment of credibility in respect of asylum seekers.[5] In particular, they refer to a section of the guidance which discusses the way that memories and stories can change over time due to various factors including the way a question is asked, the purpose of the questioning and the audience, and that these variations do not necessarily indicate a lack of credibility. It was submitted that the Department should not discredit the applicant’s claims about certain matters on the basis that he gave different responses at different times during the interview.
[5] May 2013 (accessed 13 May 2025).
In the hearing, the applicant told the Tribunal that he had recently found out from a friend that his brother had passed away and mentally he was not feeling good after this. The Tribunal asked him whether he received any help for his mental health and he responded that he is in jail and they don’t care. He confirmed he does not have any medical problems and he is not currently on any medication.
The Tribunal is prepared to find that the applicant’s circumstances over a number of years have had an adverse impact on his mental health. However, based on the evidence before it, the Tribunal finds that the applicant does not currently have a medically diagnosed mental health condition. The Tribunal is prepared to accept that the applicant’s experiences and the passage of time have affected his memory to an extent.
The Tribunal finds that the applicant had capacity to participate in the hearing and that he did so in a meaningful way. The Tribunal found the applicant to be lucid and engaged in the process, and the Tribunal communicated effectively with him without the assistance of the interpreter. The applicant claimed a number of times that he could not remember certain details, dates or timeframes, which the Tribunal considers to be normal in the circumstances and not of particular concern. There were some discrepancies in the applicant’s evidence over time which he was able to clarify for the Tribunal in the hearing, such as where he lived during his military service. Of more concern than the details the applicant could not remember, are the differences in key aspects of the applicant’s evidence given in the hearing compared to evidence about the same matters he has given in the past. This is discussed further below.
The Tribunal notes that as the hearing progressed and the Tribunal started to raise some concerns with the applicant about aspects of his evidence, the applicant began to get quite agitated and angry and said words to the effect of ‘nothing he could say would change the Tribunal’s mind.’ The Tribunal reminded the applicant several times of the purpose of the hearing and what it had explained to him in its opening remarks about asking him questions in order to understand his case and what it had to decide. The Tribunal also explained clearly that it needed to explain its potential concerns to him so that he understood them and had the opportunity to respond, and reiterated that this certainly did not mean the Tribunal had already made up its mind. The applicant’s level of agitation increased as the hearing went on and the discussion focussed more on the hypothetical prospect of him returning to Iran, including how he might behave and where he would live, to the extent that he got out of his chair and threatened to leave the hearing before it was finished. However, the applicant remained until the end and apologised to the Tribunal in Persian at the conclusion through the interpreter (the only time he used the interpreter), which the Tribunal considers was an acknowledgment by the applicant that he had become very worked up.
The Tribunal has taken into account the potential impact of the applicant’s background, mental health, incarceration, and the passage of time, on the quality of his evidence, as well as the information contained in the UNHCR guidance about how and why asylum seekers’ stories can change over time. The Tribunal has also taken into account the fact that the applicant’s written statement was prepared from prison over the phone with the assistance of his representative at the time and that the interview with the delegate was conducted by phone with the applicant in prison. Based on the audio recording of the interview, there was background noise which may have been distracting for the applicant. By contrast, the Tribunal hearing was conducted by video with the applicant in a quiet, private room. However, even taking all these factors into account, for the reasons explained below, they do not overcome the Tribunal’s concerns about the reliability and credibility of aspects of the applicant’s claims and evidence.
The applicant’s biographical information in Iran
There are a number of differences in the applicant’s biographical information that he has provided over time relating to his residential and employment history in Iran. The Tribunal has set out those which are relevant to its analysis of the applicant’s claims.
In his protection visa application form and written statement, the applicant says he moved from Tehran to [City 2] in around 2010 or 2011, which is where he lived until he departed Iran. In the interview with the delegate, as reflected in the delegate’s decision, he also said that he was living in Tehran and moved to [City 2] a year or two before coming to Australia (which was in 2013). However, in the hearing, the applicant said that he was living in Tehran and then moved to live in the city of Karaj[6] for a year or so (he could not remember what year), and then he moved to [City 2] and lived there for a couple of years before coming to Australia. For the reasons discussed below, this new claim that the applicant lived in Karaj for a period of time is relevant to his claims for protection and raises concerns about the reliability and credibility of his claims and evidence.
[6] According to Google Maps, Karaj is the capital of Alborz province, which neighbours Tehran province
In his written statement, the applicant says that after leaving Tehran, he bought a house in [City 2] in his mother’s name, which is where he lived until he left Iran. In the interview with the delegate, as reflected in the delegate’s decision, he said he purchased the house in [City 2] himself by going to a real estate agent and paid with his own money. In response to concerns expressed by the delegate, he changed his evidence about whether this house was purchased in his own name or that of his mother, and whether it was purchased with his own money from his own bank account or that of his mother. In the hearing, the applicant gave evidence that his friend bought a house for him in [City 2] using the applicant’s own money and this is where the applicant lived until he left Iran and came to Australia. The differences in the applicant’s evidence over time about the details surrounding the purchase of the house in [City 2] raises concerns about the reliability and credibility of his claims and evidence.
In his protection visa application form, the applicant states that after returning to Iran from [Country 1] in 2004, he worked for his father until 2010. From 2010 to 2013 he was unemployed and stayed home and relied on money from his father. In his written statement, the applicant says that in Iran, he worked with his father [doing job tasks] and he did this up until he fled to Australia (which was in 2013). In the interview with the delegate, as reflected in the delegate’s decision, the applicant’s work history was not discussed with him in detail, but he said that while living in [City 2] he did not work and his father supported him financially. In the hearing, the applicant said that in Tehran, he worked with his father as [an occupation] in his father’s business. Then he and his wife moved to Karaj after a problem with his family and he could not stay in Tehran. They stayed in Karaj for about one year, where the applicant manufactured and sold moonshine to make money, and then they moved to [City 2]. When they lived in [City 2] the applicant did not work and supported himself through his savings and wife’s income. These differences in the applicant’s evidence about his work history and sources of income over time raise concerns about the reliability of his claims and evidence.
The Tribunal put its concern to the applicant in the hearing about changes in his evidence over time and he responded that there are no differences. The Tribunal does not accept this response and finds that the differences in aspects of his evidence over time raise concerns about the reliability of his evidence and the credibility of his claims.
The applicant’s alcohol consumption in Iran
In his written statement, the applicant claims that after returning to Iran from [Country 1] in 2004, he was arrested a number of times, including for alcohol consumption. He claims:
·about eight months after he returned from [Country 1] he was caught drinking alcohol and was arrested and detained for about one week while he waited for his court case. He was charged and sentenced to 74 lashes;
·in around 2006 or 2007, his car was stopped by police, they found alcohol and he was arrested again. He was detained pending trial, charged and sentenced to 54 lashes;
·in about 2010 or 2011, he was arrested for a third time with friends when they were drinking alcohol and went to party at the Khomeini temple and were caught swearing and yelling against the government. The applicant was taken to a police station, and then to a detention centre where he was beaten. Then he was taken to a prison where he was beaten again. After a few days, he was taken to another prison before going to court. He was charged with drinking alcohol and because it was his third time, the judge told him that under Sharia law he could be killed if he is caught again. The applicant said he did not agree with Islam but signed an undertaking that if he was caught drinking again the government would hang him. He received 92 very hard lashes.
In the interview with the delegate, as reflected in the delegate’s decision, the applicant said he was arrested three times for consuming alcohol and punished for this. The third time he signed a declaration and received a lashing. The delegate did not explore these incidents in detail with the applicant.
In the hearing, the applicant gave evidence that he married his wife in around 2004 after he returned from [Country 1]. In the context of asking the applicant why he left Tehran, the applicant referred to several reasons, including that he received lashes three times for being caught drinking alcohol. He was taken to court and the judge told him to sign a document, the effect of which was that if he was caught again ‘anything can happen’. The Tribunal asked the applicant where he was living when he was caught drinking alcohol and he said it was in Tehran. Because there was some confusion around the timeframes the applicant was talking about in relation to events in Tehran, the Tribunal tried to clarify this and asked the applicant whether he was already married when he was caught drinking. He said he was not. The Tribunal confirmed with him that he was saying this happened before he was married and he confirmed that the lashes happened before he was married. The Tribunal asked him whether he stopped drinking alcohol after the lashes and he said he did not and he used to stay home and drink. He said he was never caught again and he reduced his alcohol consumption after that because he was in danger. He said he used to drink alcohol sometimes while living in [City 2].
The Tribunal also asked the applicant whether he was ever arrested or detained in Iran. He said he was arrested but not detained. The Tribunal reconfirmed this with him to be clear. He confirmed his answer and said that he had not been in prison.
The Tribunal put to the applicant its concern about differences in his evidence over time and that this might raise concerns about whether he has told the truth about events in Iran. The applicant said there are no differences. The Tribunal has considered his response but does not accept it. In his written statement, the applicant set out quite clear timeframes in respect of the three times he claims to have been caught drinking alcohol, arrested, detained and punished as a result. The time period ranges from about 2004 to 2011. In the hearing, the applicant gave a very different timeframe. He said that all the times he was caught drinking, and when he was lashed, happened before he was married and he was not caught drinking again after that. He has given consistent evidence over time that he married in around 2004 which is not in dispute. He also gave evidence in the hearing that he had been arrested but never detained or spent time in prison, which is very different from what he said in his written statement, which is that he was arrested and detained three times and kept in prison.

The Tribunal considers the discrepancies in the applicant’s evidence about his alcohol consumption and the consequences of this are significant. The Tribunal does not accept that if the applicant was speaking about events that truly took place, he would be mistaken about whether he was arrested, detained and lashed three times between around 2004 to 2011, or whether this all took place before he was married in around 2004, or that he would be mistaken about whether he was only ever arrested rather than also detained, or whether he had spent time in prison in Iran. These discrepancies in his evidence cast doubt on the reliability and credibility of his claims and evidence relating to his claims about alcohol consumption and the consequences, as well as more broadly.
Based on the Tribunal’s concerns set out above, the Tribunal does not accept that the applicant was ever caught, charged, arrested, detained, sentenced, lashed, otherwise punished or imprisoned by the authorities for consuming alcohol in Iran. As a result, the Tribunal does not accept the applicant was arrested with friends while drunk for swearing and yelling against the government at the Khomeini temple and then imprisoned and taken to court. The Tribunal does not accept that the applicant told a judge he didn’t agree with Islam or that he signed a declaration for the court acknowledging that if he was caught consuming alcohol again he could be executed. As the Tribunal also does not accept that the claimed events took place, the Tribunal finds the applicant was not known to, or a person of interest to, the Iranian authorities in connection with alcohol consumption in Iran. The Tribunal is prepared to accept that the applicant sometimes drank alcohol privately in his own home and finds he never faced any problems as a result of this.
The applicant’s alcohol production in Iran
In his written statement, the applicant claims to have consumed alcohol in Iran but he does not claim that he manufactured alcohol or that his house was raided by the authorities, or that this is part of the reason why he left Tehran and moved to [City 2].
In the interview with the delegate, which took place around two months after the applicant signed his written statement, as set out in the delegate’s decision, the applicant claimed for the first time that in addition to consuming alcohol he also manufactured alcohol in Iran. He gave evidence that he manufactured alcohol in his home in Tehran for about one and half years before his house was raided by the authorities. He claimed his wife noticed someone was watching the house and she told him they had to leave, so they gathered some things and escaped by car. About one hour after he and his wife left, the authorities raided his house and found the alcohol and equipment. He knows this because he asked a friend to go and see what was going on and the friend told him. The people who were watching the house didn’t follow him in his car. The applicant gave evidence that after he left Tehran he doesn’t know if the authorities were looking for him or not, but they didn’t inquire with his family or friends about his whereabouts. He and his wife fled to [City 2] where they bought a house. The applicant wasn’t working after this and stayed inside in [City 2] hiding. This all happened about a year or two before the applicant came to Australia.
In the hearing, the applicant told a different story. The applicant gave evidence that he met his wife, who worked in a shop, when they were both living in Tehran. They married in around 2004. They lived together in various different rented places in Tehran. The applicant gave evidence that while living in Tehran, he worked with his father in his father’s business. Later, he and his wife moved to the city of Karaj. When asked why he moved to Karaj, the applicant said he had a problem with his family. The Tribunal asked him what kind of problem and he said it was a family problem and everyone has a problem with their family. The Tribunal asked him why that meant he had to move away and he said it was because he couldn’t stay in Tehran. He said he moved to Karaj and started making moonshine. Then the authorities found him in Karaj and raided his place when he wasn’t home. As a result, he had to move to [City 2] where he stayed for a couple of years. A friend arranged a house for him to live in there which the friend bought for the applicant with the applicant’s money.
In relation to his alcohol manufacture, the applicant gave evidence in the hearing that he started to do it to make money. He had spoken to a friend and decided to give it a try. When his house was raided, the applicant and his wife were out shopping. Previously, his wife had noticed the house was being watched but that day, as they came back in their car, the applicant saw a crowd of people. They drove by and saw their house had been raided so the applicant pushed the accelerator and drove away. He went to the house of a friend called [Mr B] and told him what happened. [Mr B] went to have a look and called the applicant and confirmed the house had been raided and said it was lucky the applicant wasn’t there. After this, the applicant and his wife headed north and ended up in [City 2] and stayed there. The applicant didn’t continue to manufacture moonshine in [City 2]. As set out above, he said that while living in [City 2], he bought a house with his own money and lived off his own savings and his wife’s salary from her work in [City 2]. The authorities never found him. The applicant claimed that [Mr B] was the boss of the moonshine business and the authorities found [Mr B] and executed him. The applicant said the authorities had no idea he (the applicant) was the person manufacturing the moonshine because when they raided the house, nobody was there so they didn’t know who was living there. The Tribunal put to the applicant that it might find this story hard to believe. The Tribunal asked him why, if the authorities didn’t know he was the person who manufactured the moonshine, he was worried about them finding him in [City 2]. He said it was because of his participation in the protests and not because of the moonshine. The applicant’s claims about participating in the protests is considered below.
There are a number of aspects of the applicant’s evidence in relation to this claim that concern the Tribunal. First, the applicant did not mention in his written statement that he was involved in manufacturing alcohol. The Tribunal considers the manufacturing of alcohol to be a significant claim in the context of the applicant’s story, particularly given its relevance to him leaving Tehran or Karaj, depending on his evidence, and moving to [City 2]. The fact that he did not include it in his written statement and only mentioned it for the first time in his interview with the delegate raises a doubt about whether the claim is true.
Secondly, the applicant has given very different versions of events to the delegate and the Tribunal. For example, he told the delegate he was manufacturing alcohol at his home in Tehran and that he and his wife were at home when they decided to flee, and the raid occurred about one hour later. By contrast, he told the Tribunal that he was manufacturing alcohol at the place he was living in Karaj, and that he and his wife were out shopping when the raid occurred and they drove past and saw what was happening so they never went back to that house.
As noted above, in the hearing when the Tribunal put to the applicant its concern about differences in his evidence over time, the applicant responded that there were no differences. The Tribunal does not accept this. In the Tribunal’s view, the differences in the applicant’s evidence about where he was living when he was manufacturing alcohol and the circumstances surrounding the raid, are significant and the Tribunal does not consider that they are the types of details that the applicant would be mistaken about or have forgotten if he was speaking about events that actually took place.
Based on the Tribunal’s concerns set out above, the Tribunal rejects the applicant’s claims about manufacturing and/or selling alcohol in Iran in their entirety. The Tribunal does not accept that the applicant manufactured alcohol in his home in Tehran or Karaj or that he sold alcohol. The Tribunal does not accept that the applicant and his wife moved to Karaj because the applicant had a problem with his family and that he started manufacturing alcohol there to make money. Given the Tribunal does not accept the applicant’s claim about manufacturing alcohol, the Tribunal does not accept the authorities were monitoring his home or that they raided his home in connection with these activities or that his wife told him the home was being monitored. The Tribunal does not accept that the applicant and his wife fled just prior to the raid taking place and a friend told the applicant what happened, or that they fled when they arrived home from shopping and saw the raid going on. As the Tribunal does not accept the applicant’s claim about manufacturing alcohol, the Tribunal does not accept that the applicant’s friend [Mr B] was the boss of the moonshine business or that he was caught and executed by the authorities. The Tribunal finds that the applicant was not a person of interest to the authorities in connection with the manufacture or sale of alcohol in Iran.
The Tribunal is prepared to accept that the applicant and his wife moved to [City 2] a year or two before leaving Iran. The Tribunal accepts that the applicant bought a house there with the assistance of a real estate agent, using his own money. The Tribunal accepts that the applicant did not manufacture alcohol in [City 2]. The Tribunal does not accept that the applicant was in hiding from the authorities or mainly stayed inside out of fear while living in [City 2].
The applicant’s participation in the Green Movement
In his written statement, the applicant claims that in 2009, there was a lot of opposition to the Iranian regime and he participated in demonstrations in Tehran. He was there chanting slogans. He was not a member of a party in particular but just wanted the regime to end. The applicant claims that after the third incident where he was punished for drinking alcohol, some of his friends advised him to leave Tehran because the authorities in Tehran might have photos of him from the demonstrations and also have a criminal file on him based on his arrests. He moved to [City 2] and made preparations to leave Iran.
In the interview with the delegate, as noted in the delegate’s decision, the applicant gave evidence that he protested in the Green Movement every time there was a protest, and this is why he left Tehran. He was afraid that the authorities might have a film of him protesting and after the demonstrations people were arrested and killed.
In the hearing, the applicant gave evidence that he was afraid of the authorities because he protested in the Green Movement in Tehran in 2009 and the authorities arrested and killed many people in connection with those protests. He spoke in an animated way about how the authorities mistreated protesters. He said that at the protests, he and lots of other people yelled and the authorities were violent towards the crowds. He said that after moving to [City 2], he stayed inside for his safety because the authorities have strong intelligence and they had pictures and film of people at the protests whom they would later come to find. He was worried this would happen to him because of his protests and the raid on his house connected to the moonshine, so this is why he had to leave Tehran. He confirmed that he didn’t have any problems while living in [City 2] and the authorities never located him. At another point in the hearing, the applicant gave evidence that after he fled Karaj following the raid on his house, he ended up in [City 2] and was never found by the authorities. He said he was worried about being found because of his involvement in the protests and not because of his manufacture of moonshine (having claimed the authorities did not know he was the person manufacturing the moonshine despite the raid). The Tribunal put to the applicant that it might not accept his evidence and it might find the authorities were not interested in finding him.
By way of background, the DFAT Country Information Report Iran dated 29 November 2013[7], which is from the year the applicant left Iran, explains that:
3.53 During the 2009 and 2010 post-election protests (frequently referred to as the ‘Green Movement’), thousands of protestors were detained, and thousands were beaten and harassed by security forces. With prisons overflowing, some protestors were held in make-shift detention facilities, including buses or other vehicles.
3.54 Many political activists detained in this period still remain in prison. However DFAT is unable to credibly estimate the number. Likewise, DFAT is unable to credibly estimate how many individuals were sentenced to death because of their involvement in the protests. It is estimated that hundreds fled Iran as an immediate result of the crackdown and hundreds more in subsequent years. DFAT considers that members of ethnic and religious minorities that participated in the 2009 post-election protests did not face a greater risk of adverse attention because of their ethnicity or religion.
3.55 High profile activists and members of the Green Movement continue to face monitoring and harassment. For example, since 2011, opposition movement leaders Mir-Hossein Musavi, Mehdi Karrubi and Musavi’s wife, political activist Zahra Rahnavard, have been under house arrest without formal charge or trial after calling for Iranians to protest in support of the Arab Spring. Other high-profile people punished for expressing political opinions include veteran activists, journalists, student activists and former MPs. Higher profile activists released from detention are more likely to be subject to ongoing surveillance and varying levels of harassment, depending on their activities.
3.56 Lower profile activists have also been detained and prosecuted for expressing political beliefs, including for participating in political rallies. Punishments in the past have included prison sentences and corporal punishment (lashing). There are also credible reports of abuses in prison, including torture, in the aftermath of the protests. Most lower profile activists arrested in the 2009 and 2010 protests and subsequently released are unlikely to face serious ongoing harassment, and should normally be able to go about their daily lives unmolested.
3.57 The systemic repression of freedom of political expression, as exemplified in 2009 and 2010, has resulted in very few individuals being willing to risk the heavy consequences of publicly expressing a political opinion that does not conform to official views.
[7] 2013 DFAT Report.
The applicant’s evidence is that he was an ordinary protester, and not a political activist or member of a particular party. He does not claim to have been arrested or detained in connection with his protest activities and he did not claim that he knew the authorities had film or photographs of him, but rather, he was afraid they did because he knew this was how the authorities behaved at the time. He has given different evidence at different times about whether it was only due to his fear about his involvement in protest activities that prompted him to flee Tehran or Karaj for [City 2], or whether it was also due to his problems connected to the consumption and/or manufacture of alcohol. He claims he didn’t have any problems while living in [City 2] but he stayed inside for his safety.
The Tribunal acknowledges that the applicant spoke with feeling about how the Iranian authorities mistreated protesters in the Green Movement protests, which is consistent with the country information referred to above, and the Tribunal is prepared to accept that the applicant does not hold a positive opinion of the Iranian regime, but this does not overcome the Tribunal’s concerns about the reliability and credibility of the applicant’s claims and evidence. The Tribunal has set out above its concerns and findings about the applicant’s claims in relation to the consumption and manufacture of alcohol, which are, on some versions of his evidence, entwined to an extent with his claim about being involved in the protests because it is all part of the reason he says he fled to [City 2]. In light of the Tribunal’s concerns about the reliability and credibility of the applicant’s claims and evidence, it is not prepared to accept that the applicant participated in the Green Movement protests. The Tribunal finds the applicant was not of interest to the Iranian authorities in connection with the Green Movement protests and the Tribunal does not accept that the applicant went to live in [City 2] at the suggestion of his friends in an effort to hide from the authorities for any reason, including his participation in the Green Movement protests or his arrests for alcohol consumption or his activities manufacturing alcohol, which the Tribunal has rejected above. The Tribunal does not accept that the applicant was in hiding in [City 2] or mainly stayed inside due to fear of the authorities finding him, because the Tribunal does not accept that the events that he claims gave rise to the fear took place.
The applicant’s identity documents
As set out in the delegate’s decision and the applicant’s written submissions dated 31 January 2018, the applicant was unable to provide identity documents in connection with his protection visa application due to him being in prison. The delegate accepted this reason and also the applicant’s evidence that he departed Iran legally using his Iranian passport. The people smugglers later took his passport. The delegate noted that the applicant had previously provided various other Iranian identity documents including his driver’s licence, national identity card and birth certificate and accepted that the applicant was using his true identity. The written submissions explain that these Iranian identity documents were posted to the applicant in Australia by his parents.
The delegate also noted the applicant’s claim in his written statement that many years prior, he lost his citizenship card and when it was replaced, the authorities misspelled his name. As a result, his last name is spelled differently on his citizenship card and passport compared to his driver’s licence. He said the driver’s licence has the original spelling of his last name. The applicant said in his written statement that he thinks because he was arrested in the past with the name on his driver’s licence, this may have helped him leave the country without any trouble. The delegate notes that a certified translation of the applicant’s birth certificate indicates his family name is [Spelling 1] but it had previously been incorrectly spelled as [Spelling 2].
In the interview with the delegate, the applicant said that he departed Iran legally from the international airport in Tehran and did not have any problems doing so. He considered this to be safest way to depart, rather than via a land border.
In the hearing, the Tribunal asked the applicant about the circumstances of his departure from Iran. When asked why he decided to leave in March 2013, he said ‘no reason’. The Tribunal asked him why he didn’t leave Iran earlier (in light of his claimed problems) and he said he was waiting for his documents and that he ‘changed everything’. The Tribunal asked him to explain what he meant and he said he changed his name and surname, got a new birth certificate and passport for more safety. Otherwise, he would have had to leave Iran via a land border which would not have been safe for his wife. He got a friend to help him change all his identity documents and then he got his tickets to depart. The Tribunal put to the applicant that he had not raised this claim previously about changing his identity. The applicant responded that he told the Department his surname had previously been recorded as [Spelling 2] and there was a mistake, and he said he had told them why. The Tribunal clarified with the applicant that he was claiming he changed his details on purpose to hide from the authorities. He responded that he did. He said everything is on a computer so if you change the details you can get away, and that is what he did.

The Tribunal has considered the applicant’s explanation about this change in his evidence about his identity but does not accept it. In his written statement, interview with the delegate and his written submissions, the applicant did not refer to taking active steps to change his identity. He did refer in his written statement to there having been a misspelling of his name on his replacement citizenship card many years prior which resulted in him having documents with different surnames. He speculated that maybe this was why he did not have problems departing at the airport, but in the Tribunal’s view, the implication was that this misspelling was an error. Prior to the hearing, the applicant did not claim this different spelling was due to deliberate action on his part to change his identity documents in order to evade the authorities and flee Iran.
The Tribunal considers that this change in the applicant’s evidence casts doubt on his claim to have changed his identity in order to flee Iran and further undermines the credibility of his claims and evidence more broadly in relation to events in Iran. Based on the Tribunal’s concerns and findings set out above, the Tribunal finds that the applicant did not take active steps to change his identity in Iran to evade the authorities. The Tribunal finds that he did not have problems departing Iran because he was not a person of interest to the authorities.
The applicant’s Western appearance
In his written statement, the applicant makes the following claims:
·     the first time he was arrested and detained for drinking alcohol not long after returning from [Country 1] in 2004, the intelligence police questioned him about his clothing and his Western appearance, including his tattoos;
·     on other occasions (no timeframe provided), he was assaulted by the police. Once, he was stopped by the police who looked at what he was wearing. He was taken in a car and another police officer followed behind on the applicant’s motorbike. He believes he was targeted because of his Western appearance and therefore the police would assume he was anti-government. The police damaged his motorbike and didn’t pay for the damage;
·     on another occasion (no timeframe provided) he was driving his car with the music up loud. The police stopped him and asked why he had European music and was playing it so loudly. It was another difficult occasion.
In the interview with the delegate, the applicant’s Western appearance, tattoos and the problems he claims to have had in Iran as a result of this were not discussed, but the delegate accepted in their decision that the applicant may be regarded as having a Western appearance and that he has tattoos. In the applicant’s post-interview submissions, it is submitted that he has a ‘western’ hairstyle and tattoos, but no further detail or description is provided.
As referred to above, in the hearing the applicant gave evidence that he was arrested in Iran but never detained. The Tribunal has found above that the applicant was never arrested or detained in Iran for drinking alcohol or for any other reason, including not long after he arrived back from [Country 1] in 2004. As the Tribunal has found the applicant was not arrested and detained on this occasion, the Tribunal does not accept that he was questioned by the police about his clothing, tattoos and Western appearance during this event.
In the hearing, the applicant did not claim that he had been targeted, assaulted or stopped by the police in connection with his Western appearance or for playing European music. His claims about being arrested related to his alcohol consumption, which the Tribunal has rejected above. Based on the Tribunal’s concerns set out above about the reliability and credibility of the applicant’s claims and evidence, and the fact that the applicant did not reiterate these concerns in the hearing about his appearance or behaviour, the Tribunal does not accept that the applicant was stopped and questioned by police for playing European music loudly in his car or targeted or arrested due to his Western appearance. The Tribunal does not accept that he was assaulted by the police or that he was taken in a police car to an unspecified location, or that the police damaged his motorbike.
The applicant’s cumulative profile when he left Iran
Based on the Tribunal’s findings above, the Tribunal finds that when the applicant departed Iran in 2013:
·     he held views that were opposed to the Iranian regime, but he did not express his anti-regime views publicly in any way that had brought him to the attention of the authorities;
·     he sometimes consumed alcohol in private and had not experienced any problems with the authorities as a result of this;
·     he had been living for a couple of years with his wife in [City 2] in a house he owned and he did not have financial difficulties;
·     he was not a person of interest to the Iranian authorities.
Claims of harm to the applicant’s family and threats from the family of the applicant’s wife
As explained above, several years after arriving in Australia, the applicant [committed a crime against] his wife. In his written statement, the applicant claims that his wife’s family has sent threats to his family in Iran and himself, threatening to kill him.
In the interview with the delegate, as set out in the delegate’s decision, the applicant gave evidence that two or three weeks prior to the interview, his wife’s brother went to the house of the applicant’s parents and kicked his mother and bashed his father. He said his parents had been bashed twice. The delegate did not accept that the applicant’s [wife’s] family had made threats to harm the applicant or his family.
In the hearing, the applicant gave evidence that his parents and siblings in Iran are now deceased. He had not had contact with his parents for a long time and a friend with whom he is still in contact told him about his brother dying recently. In relation to his wife’s family, the applicant said her family went to the court and said the applicant was involved in sedition against the government and told the authorities everything. The authorities told her family not to worry and said when the applicant comes back, they will take him to jail. The Tribunal asked the applicant when this happened, and he said it was when his wife’s family bashed his parents. He claimed his brother-in-law (his [wife’s] brother) is in the sepah[8] and told the applicant’s father that if the applicant came back, they would put him in Evin prison.[9] He said his wife’s family told everything to the government, including that the applicant was a protester and he made moonshine, and now the government has all the information about him. The Tribunal said it might have difficulty believing this and asked the applicant whether he had any proof. He said he did not, but he said it was logical because his wife’s family lost someone and so they want revenge. His wife’s family said that if the government doesn’t get the applicant, then they will. The applicant said his family told him this when he used to speak to them.
[8] This is a name by which the Islamic Revolutionary Guards Corps is otherwise known: 2013 DFAT Report.
[9] Evin prison is a prison in Tehran which is notorious for human rights abuses. See, eg, (accessed 19 May 2025).
The Tribunal accepts that the applicant’s parents and siblings in Iran are deceased. The Tribunal is also prepared to accept that his [wife]’s family would have been devastated by [the crime against her] in Australia. However, based on the Tribunal’s concerns set out in these reasons about the reliability and credibility of the applicant’s claims and evidence generally, in the absence of corroborative evidence, the Tribunal is not prepared to accept the applicant’s claims about the threats made to him and his family. The Tribunal does not accept that the applicant’s wife’s family went to the court and told the authorities everything about the applicant, including that he was involved in sedition, that he was a protester or that he made moonshine (noting that the Tribunal has specifically rejected the latter two claims above), or that the authorities told his [wife’s] family that when the applicant returns to Iran they will take him to jail. The Tribunal does not accept that the applicant’s brother-in-law is or was in the sepah, or that he told the applicant’s parents that if the applicant returned to Iran he would be put in Evin prison. The Tribunal does not accept that the applicant’s parents were threatened or bashed or that the family of the applicant’s [wife] made threats to kill the applicant if he returned to Iran.
Does the applicant satisfy the refugee criterion for protection?
In the Tribunal hearing, the applicant gave clear evidence about why he fears returning to Iran. He said several times that he fears:
· harm from the government because they know he was a protester and he harmed his wife; and
· harm from his wife’s family because they will want revenge.
The Tribunal asked him whether there were any other reasons why he feared harm if he returned to Iran and he said, ‘no, just these two big reasons. That’s enough.’
In the past, the applicant has articulated other reasons why he fears harm if he returns to Iran and which overlap to an extent. In his written statement, the applicant claims to fear harm if he returns to Iran for the following reasons:
·     he will continue to try to live freely;
·     if he is caught drinking again he will be executed;
·     due to his profile for drinking alcohol, political activism and as a person who appears pro-Western, he fears he will come to the attention of the authorities as soon as he arrives at the airport in Iran, and he will be questioned and detained;
·     because of his criminal conviction in Australia;
·     he will be harmed by his wife’s family who have threatened to kill him.
In the interview with the delegate, the applicant claimed he feared harm if he returned to Iran for the following reasons:
·     his history of alcohol consumption and manufacturing;
·     his participation in the Green Movement protests;
·     his wife’s family will take revenge on him and kill him.
In his written submissions, it is submitted that the applicant fears harm if he returns to Iran because of his:
·     actual and imputed political opinion of being opposed to the Iranian regime due to his Western appearance and values (including alcohol consumption and production) and his participation in the anti-government Green Movement demonstrations;
·     membership of a particular social group of failed asylum seekers who sought asylum in a non-Muslim country and will therefore be perceived to be anti-regime; and
·     membership of a particular social group of men who breach religious/cultural norms.
The reasonably foreseeable future
As set out above, the applicant is currently serving a prison sentence for the [crime against] his wife and will not be eligible for parole until [Month Year]. This means there is no prospect that he would be returning to Iran for at least another [number] years at the very earliest (recognising, of course, that the applicant has expressed his intention never to return to Iran, he has avenues of appeal that he may choose to exercise in Australia and Iran does not currently accept involuntary returnees[10]).
[10] DFAT Country Information Report Iran 24 July 2023 (DFAT Report), [2.202].
The Tribunal notes that it is required to consider whether an applicant would face a real chance of persecution or a real risk of significant harm if they returned to their receiving country now or in the reasonably foreseeable future. As Mortimer J (as she then was) stated in CPE15 v Minister for Immigration & Anor,[11] the use of ‘reasonable foreseeability’ as a benchmark for determining risk of harm in the future,
is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to his or her country of nationality as to be insufficient connection to the reality of what that person may experience.
[11] [2017] FCA 591 at [60].
In all the circumstances, the Tribunal considers it is highly unlikely that the applicant will return to Iran in the reasonably foreseeable future. The Tribunal is conscious of not extending into guesswork with its findings, but equally, it must make findings on the applicant’s claims. Country information does not indicate that there is any real prospect of the political or legal situation in Iran changing significantly in the reasonably foreseeable future. In terms of the applicant’s personal circumstances and that of his [wife’s] family in Iran in the future, this is more difficult to predict. Despite these difficulties, the Tribunal has decided to use the reasonably foreseeable future as its benchmark for its findings as to do otherwise would be to engage in speculation that is too far into the future and would lack a sufficient probative basis.
Harm as a former protester
The applicant claimed that he fears harm from the government because they know he was a protester. As set out above, he claimed to be an ordinary protester and he was never arrested. The Tribunal does not accept this claim and found above that the applicant did not participate in the Green Movement protests at all. Further, in the hearing, the Tribunal discussed with the applicant current country information about protesters in the Green Movement, which is more up to date than the country information referred to in his written submissions. The Tribunal explained that the DFAT Report[12] says that the movement has ‘little or no profile in Iran today’ and ordinary participants in the Green Movement who avoided arrest are not of interest to the Iranian authorities.[13]
[12] [2.115] – [2.116].
[13] This is supported by IRN201806.E, Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; treatment of individuals critical of the state response to the 2020 Ukraine International Airlines (UIA) Flight 752 (PS752) downing (2022 – March 2024), 22 April 2024, Research Directorate, Immigration and Refugee Board of Canada
In light of the above, the Tribunal finds that if the applicant returned to Iran in the reasonably foreseeable future he not face a real chance of serious harm arising from these circumstances.
Harm from the family of the applicant’s [wife]
The applicant claims that his [wife’s] family will want revenge on him if he returns to Iran and they will kill him. The Tribunal asked the applicant how his wife’s family would know if he returned to Iran. He said that when he arrives at the airport in Iran, the guards will be there, they will know his name and they will know he came from Australia. The Tribunal said it understood that the authorities would know about his return, but asked again how the family of his [wife] would know. He said they are in touch with people in Australia and they would find out. The Tribunal asked him how he knew they are in touch with people in Australia and he responded that they used to call the police station in [Suburb][14] and they were in touch with the government in Australia. The Tribunal put to the applicant that it might find this speculative.
[14] This is the suburb of Sydney where the applicant and his wife were living and where the [crime] occurred.

100. The Tribunal is prepared to accept that the family of the applicant’s [wife] were in touch with the police and other legal agencies at the time of [the crime] and up to the time of the applicant’s trial and sentencing in 2018, but the Tribunal considers the applicant’s claim about ongoing contact since that time to be speculative and does not accept it. In the absence of probative independent evidence, the Tribunal does not accept the applicant’s claim that his [wife]’s family are still in touch with people in Australia who are aware of the applicant’s circumstances and who continue to provide them with information about the applicant.
101. Based on the lack of information about the members of the family of the applicant’s [wife] and their whereabouts and circumstances, the Tribunal is not prepared to accept there is a real chance they would become aware of the applicant’s return to Iran if he returned in the reasonably foreseeable future. Further, as set out above, the Tribunal does not accept that the family of the applicant’s [wife] spoke to the courts, harmed his parents or made threats in the past to kill the applicant if he returned to Iran. On this basis, the Tribunal does not accept that they would seek revenge against the applicant, including threatening or killing him, if he returned to Iran in the reasonably foreseeable future and they became aware of his presence.
102. In light of these findings, the Tribunal also does not accept the submission in the applicant’s written submissions that the family of his [wife] will use the Iranian justice system to seek retribution in kind (qesas) under Iran’s Islamic Penal Code as it does not accept that the family of his [wife] will take steps to seek revenge or otherwise harm the applicant.
103. As a result, the Tribunal does not accept that if the applicant returned to Iran in the reasonably foreseeable future that he would face a real chance of serious harm arising from these circumstances.
Reprosecution for [the crime] in Iran
104. The applicant claims that the Iranian regime will know he [committed a crime against] his wife in Australia, he will be subject to double jeopardy laws in Iran and he will be prosecuted again for [the crime].
105. The Tribunal accepts that on his return to Iran, the authorities will know the applicant [committed a crime against] his wife in Australia and spent time in prison.
106. In the applicant’s written submissions, it is submitted that the relevant provisions of the Iranian Penal Code make it clear that if an Iranian commits a crime outside Iran and they return to Iran they will be punished in accordance with Iranian criminal law even if they have already been prosecuted in another country. It is submitted there is a real chance the applicant will be prosecuted again in Iran in accordance with the principle of retribution-in-kind or qesas. The submissions do not refer to country information about how the Penal Code is applied.
107. In the hearing, the Tribunal put to the applicant it might find that country information about double jeopardy in Iran indicates that he would not face a real chance of prosecution again in Iran for the [crime against] his wife. The applicant replied that his wife’s family will kill him and they are waiting for him. For the reasons explained above, the Tribunal does not accept this.
108. In relation to double jeopardy, the DFAT Report states at [2.197] that the Iranian Penal Code allows for the re-prosecution of Iranian nationals for certain offences committed in another country that would also be an offence under Iranian law. It is ‘not aware of recent examples of double jeopardy of failed asylum seekers but understands that it is possible.’ A 2021 Country Report from Landinfo and others[15] explains that certain crimes committed abroad can still be prosecuted in Iran, particularly if they are only considered crimes in Iran. The same report states that [the crime] falls into a category of crimes punished by qesas (‘eye for an eye’ punishments) which can be reprosecuted in Iran, but in practice, according to various experts, Iranian courts very rarely prosecute and sentence a defendant who committed a crime such as [the crime] abroad ‘due to the fact that generally, a private claimant has to initiate criminal proceedings’ and the Iranian courts ‘refrain from adjudicating such cases’ and at times actively discourage complainants from continuing the case in court.

131. The Tribunal has dealt with the applicant’s claims relating to his Western appearance and values and his alcohol consumption and production above.
132. In his written statement, the interview with the delegate and in the hearing, the applicant has expressed negative views about the Iranian regime. In the hearing, the applicant spoke about the Green Movement protests and said he is anti the Iranian government and so are the majority of Iranians. He did not provide any independent country information to support this assertion about the majority of Iranians and therefore the Tribunal does not accept it.
133. In his written statement, in the context of claiming he participated in the Green Movement protests, the applicant said he was not a supporter of a particular political party in Iran and he just wanted the regime to end. In the interview with the delegate, the applicant was asked whether he had been politically active in Australia and he said he came here to live, only. He said his political opinion is brotherhood and equality.
134. In the hearing, the Tribunal asked the applicant whether he would involve himself in politics if he returned to Iran and he responded that he is not going back. At another point he said everyone in Iran is in misery. Again, he did not provide any independent country information to support this general assertion about everyone being in misery and therefore, the Tribunal does not accept it. The Tribunal asked the applicant whether he would protest against the government if he returned to Iran and he said he would. The Tribunal asked him what he would do and he said he didn’t know. He would do whatever he can because he doesn’t like the government.
135. The Tribunal has found above that the applicant did not participate in the Green Movement protests in Iran. The Tribunal also finds that the applicant has not been politically active in Australia. The Tribunal accepts that the applicant holds a negative opinion of the Iranian regime, but based on the Tribunal’s findings about his behaviour in the past in Iran and in Australia, it does not accept that if the applicant returned to Iran in the reasonably foreseeable future he would involve himself in politics or protest or speak out against the Iranian regime in a way that would bring him to the attention of the Iranian authorities. The Tribunal does not accept that the applicant’s reason for behaving in this way is due to fear, but rather, it is how he has always behaved. Therefore, the Tribunal finds the applicant has an actual political opinion opposed to the Iranian regime but he would not be imputed with an anti-government political opinion by the authorities as he would not express his opinions in such a way that they would come to the attention of the regime. Based on the Tribunal's findings above, the Tribunal does not accept that there is a real chance the applicant would be imputed with an anti-regime opinion for other reasons. Therefore, the Tribunal finds that the applicant would not face a real chance of serious harm arising from these circumstances if he returned to Iran in the reasonably foreseeable future.
The applicant’s circumstances if he returned to Iran
136. The Tribunal has accepted that the applicant’s parents and brothers in Iran are no longer alive. The applicant has claimed he has no land in Iran but he did not explain why this is a problem. He has a friend with whom he is still in touch, although he said that friend wants to leave Iran. When asked in the hearing where he would live if he returned to Iran, the applicant said he has nowhere to go. He did not claim that he would be discriminated against and/or unable to subsist if he returned to Iran.
137. The DFAT Report states at [2.204] about returnees that,
unless they were the subject of adverse official attention prior to departing Iran (eg 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. Local sources told DFAT the greater challenges for returnees are finding work and economic considerations, which will differ from person to person depending on the location of return, family support and skills and experience.

138. A 2024 Response to Information Request by the Immigration and Refugee Board of Canada[22] refers to information which suggests that an individual’s treatment upon their return is determined by their perceived threat to the Iranian regime and this assessment is influenced by a range of factors ‘such as their activities abroad, their citizenship status, and which countries they are returning from’. Countries of particular concern would include ‘Sunni countries with connections to religious groups’ and those returning from ‘Western countries due to political activities.’ In the Tribunal’s view, the DFAT Report and other country information indicates that the key concern of the Iranian regime is people engaging in anti-regime political activities in Iran and abroad and this is the type of activity which would lead to a person facing a real chance of serious harm from the Iranian regime on their return to Iran because they would be regarded as a potential threat. The country information indicates that other returnees who have not engaged in these types of activities are not regarded as a potential threat and are left alone.[23] In light of this, and in light of the Tribunal’s findings about that the applicant has not engaged in anti-regime political activities in Iran or Australia and would not do so in the future, the Tribunal finds that despite the fact the authorities would be aware of the applicant’s criminal conviction in Australia, the chance of him attracting attention from the authorities on his return and being monitored, mistreated or otherwise facing official discrimination as a result is less than a real chance. Therefore, the Tribunal finds that if the applicant returned to Iran in the reasonably foreseeable future, he would not be a person of interest to the authorities such that he would face a real chance of serious harm arising from those circumstances.
[22] IRN201806.E, Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; treatment of individuals critical of the state response to the 2020 Ukraine International Airlines (UIA) Flight 752 (PS752) downing (2022 – March 2024), 22 April 2024, Research Directorate, Immigration and Refugee Board of Canada
[23] IRN201806.E, Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; treatment of individuals critical of the state response to the 2020 Ukraine International Airlines (UIA) Flight 752 (PS752) downing (2022 – March 2024), 22 April 2024, Research Directorate, Immigration and Refugee Board of Canada; IRN201321.E, Iran: Monitoring of Iranian citizens outside Iran, including political opponents and Christians, by Iranian authorities; monitoring of Iranian citizens in Canada; consequences upon return to Iran (2021 – March 2023), 2 March 2023, Research Directorate, 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), 9 March 2020, Research Directorate, Immigration and Refugee Board of Canada
139. The Tribunal finds that if the applicant returned to Iran, he would return to [City 2] which is where he lived and owned a house for around two years before coming to Australia. The Tribunal acknowledges that without family support, it would be challenging for the applicant to re-establish himself in Iran, but he is clearly a resourceful person. He has lived and worked in [Countries 1 and 2] in the past, as well as making his way to Australia, and established himself in those unfamiliar places. He has a range of useful skills in [subjects] and he speaks good English. The Tribunal considers it is possible that the applicant may face some societal disapproval if people found out that he had [committed a crime against] his wife in Australia, which may make finding work and housing more difficult, but this is speculation.
140. The DFAT Report states at [2.14] that Iran has an extensive welfare system and approximately one third of the population receives some kind of payment from the government. It also states that large religious charities and foundations play a large role in providing support to the vulnerable and poor.
141. Based on the evidence and country information, the Tribunal finds there is a real chance that the difficulties the applicant would face in re-establishing himself in Iran would amount to harm to him, but considering the instances of serious harm set out in s 5J(5), the Tribunal finds that this harm would not amount to serious harm. The Tribunal does not accept that the applicant would be denied access to basic services or that he would be denied the capacity to earn a livelihood. The Tribunal finds that based on the country information before it, the applicant would have access to the welfare and/or charity services referred to above and he would be able to subsist. Therefore, the Tribunal finds that the difficulties the applicant would face on return to Iran in the reasonably foreseeable future would not amount to serious harm to him.
Cumulative consideration of the applicant’s claims
142. As well as considering the applicant’s claims individually, the Tribunal has considered his accepted claims on a cumulative basis. That is, a failed asylum seeker in a Western country, who holds an anti-regime political opinion which he does not express or act on publicly, who [committed a crime against] his wife in Australia and spent time in prison, and who will sometimes consume alcohol privately in Iran in the future. Considering the applicant’s claims on a cumulative basis, for the reasons set out above, the Tribunal finds he would not face a real chance of serious harm arising from these circumstances if he returned to Iran in the reasonably foreseeable future.
143. Taking into account the findings set out above and having considered the applicant’s claims singularly and on a cumulative basis, and the country information referred to, the Tribunal is not satisfied that if the applicant returns to Iran now or in the reasonably foreseeable future that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
144. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that he meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
145. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
146. As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[24] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm in respect of the following claims:
[24] MIAC v SZQRB [2013] FCAFC 33
·that he protested in the Green Movement;
·that he manufactured alcohol in Iran;
·that he will be harmed by the family of his [wife];
·that he will be reprosecuted for [the crime] in Iran;
·that he has a Western appearance and values;
·that he is a failed asylum seeker who sought refuge in a non-Muslim country;
·for his actual or imputed anti-regime political opinion.

147. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that he will suffer significant harm for these reasons.
148. The Tribunal has found above that the applicant does not have a well-founded fear of persecution in respect of his alcohol consumption in Iran because he could take reasonable steps to modify his behaviour so as to avoid a real chance of persecution by drinking alcohol in private. For the purposes of the complementary protection criterion, the Tribunal has considered whether the applicant faces a real risk of serious harm if he consumes alcohol in Iran in private. Based on the country information referred to above which indicates that the consumption of alcohol in Iran is widespread and prosecutions are not common, the Tribunal finds that if the applicant consumed alcohol from time to time in private in Iran, as the Tribunal has found he did in the past without experiencing harm, the risk of him coming to the attention of the authorities and experiencing harm as a result is less than a real risk. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that he will suffer significant harm for this reason.
149. The Tribunal has found there is a real chance that the difficulties the applicant would face in re-establishing himself in Iran if he returned there in the reasonably foreseeable future would amount to harm to him. As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[25] this element of the complementary protection criterion is satisfied.
[25] MIAC v SZQRB [2013] FCAFC 33

The next question for the Tribunal is therefore whether these circumstances amount to ‘significant harm’ to the applicant. ‘Significant harm’ is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

151. Based on the evidence and the Tribunal’s findings, it does not consider that as a result of the difficulties the applicant would face in re-establishing himself in Iran that he will be arbitrarily deprived of his life, or that the death penalty will be carried out on him. The definitions of ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’, which are the other circumstances that fall within the definition of ‘significant harm’ in s 36(2A), all involve the element of intention on the part of a third party to bring about the suffering by their conduct[26] and all are directed towards serious forms of human rights abuses.[27] Based on the Tribunal’s findings above, the evidence does not indicate that there will be the intention on the part of any third party to deny the applicant the ability to access employment, housing or other basic needs in order for him to subsist, such that it would amount to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that he will suffer significant harm.
[26] SZTAL v MIBP [2017] HCS 34; s 5(1)
[27] SZDCD v MIBP [2019] FCA 326
152. Therefore, for the reasons set out above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Other considerations
153. The Tribunal acknowledges there may be some relevant public interest questions in relation to the applicant’s case. The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under ss 36(2)(a) and 36(2)(aa) of the Act and so they did not proceed to make assessments in relation to ss 36(1B), 36(1C) and 36(2C). Therefore, it is not appropriate for the Tribunal to make findings about these matters either. Further, the Tribunal notes that Regulation 4.33(b)(iii) of the Migration Regulations 1994 (Cth) provides that it is not a permissible order for the purposes of s 349(2)(b) of the Act that the applicant satisfies, or does not satisfy, the criterion in s 36(1C) of the Act.
Conclusion
154. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

157. The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 13 March 2025
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

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

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

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

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