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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading 1909732 (Refugee)

Details

AGLC: 1909732 (Refugee) [2025] ARTA 1533
Case: [2025] ARTA 1533
Decision Date: 23 May 2025

CaseChat Overview and Summary

In the matter of [Applicant's Name], an Iranian national, the applicant challenged a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to cancel his protection visa. The applicant arrived in Australia by boat in March 2013 and was initially detained in a correctional centre. He claimed to have a genuine fear of persecution if returned to Iran, due to his criminal conviction for drinking and selling alcohol, his participation in anti-government protests, and his Western appearance and tattoos, which led to police assaults. The Minister found that the applicant did not meet the criteria for a protection visa, primarily because he was not an unauthorised maritime arrival or a fast-track applicant, and thus the statutory bar applied, barring him from being granted a protection visa.

The court was required to determine whether the applicant qualified for a protection visa under the relevant sections of the Migration Act. Key issues included whether the applicant's criminal history and experiences in Iran constituted persecution, whether he had a well-founded fear of future persecution, and whether the statutory bar applied to his application. The applicant also raised issues concerning his criminal conviction and imprisonment in Australia, and the implications of these on his protection visa application.

The court held that the applicant did not meet the statutory bar, as he was neither an unauthorised maritime arrival nor a fast-track applicant. It found that the applicant's experiences in Iran, including his conviction for drinking alcohol, his participation in anti-government protests, and the assaults by police, constituted persecution. The court also considered the applicant's mental health, the inconsistencies in his claims, and the country information provided. The court concluded that while there was a risk of reprosecution for his past criminal activities, the risk of persecution was low, particularly given the widespread private consumption of alcohol in Iran and the lack of recent examples of reprosecution. The court affirmed the decision to cancel the applicant's protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 EVIDENCEBackground 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].

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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