1909810 (Refugee)

1909810 (Refugee) [2023] AATA 3511 (10 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Joshua Le Vay
CASE NUMBER:  1909810
COUNTRY OF REFERENCE:                   Iran
MEMBER:Mark O'Loughlin
DATE:10 August 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 10 August 2023 at 4:05pm

CATCHWORDS
REFUGEE – Protection Visa –Iran – religion – atheism – being a westernised man – recent executions for blasphemy – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 48, 91, 65, 499
Migration Regulations 1994, Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a citizen of Iran.
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands on [date] October 2012. Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447, the applicant is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)) due to this arrival method. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and the subsequent decisions to refuse to grant the applicant protection visas are not ‘fast track decisions’ (as defined in s 5(1)). Instead, they are Part 7-reviewable decisions able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411.
The applicant was previously granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 6 December 2012 by the Department, the effect of which was thought to trigger a statutory bar against the making of other types of visa applications in Australia under s 91K of the Act because the applicant was considered to be an unauthorised maritime arrival at that time. However, following the Full Federal Court judgment in MICMSMA v CBW20 [2021] FCAFC 63, the s 91K bar does not apply to applicants who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.
The applicant first applied for a Safe Haven Enterprise visa on 30 March 2016. That application was not subject to the s 91K bar and was a valid application. The Minister then purported to lift the s 91K bar and also lifted the s 48A bar against the making of a further Protection visa application in Australia. The applicant then made a second application for a Safe Haven Enterprise visa on 14 September 2020 which was also valid.
The applicant’s first application for a Safe Haven Enterprise visa, made on 30 March 2016, was refused by the delegate on 17 August 2017. The delegate did not accept that the applicant was sufficiently active in opposing the government to give rise to a risk of relevant harm, was not satisfied that the applicant would attract attention due to his atheism if he returned to Iran and was not satisfied that he would be identified as a person of interest on his return to Iran because of westernisation or his relationship with a non-Muslim, western woman.
Ultimately the notification of that refusal was deemed to have been ineffective and the applicant was re-notified on 23 March 2019. The applicant then sought the subject review.
The second application for a Safe Haven Enterprise visa on 14 September 2020 was refused by the delegate on 5 July 2021. The second application was refused because the delegate was not satisfied that the applicant will have adverse political or strong secular beliefs attributed to him on return to Iran and will not come to the attention of the authorities.
A valid application for review of that decision was made on 18 April 2019.
Because the applicant had two applications for review of two decisions, both of which relied on essentially the same facts, the Tribunal decided to combine the hearings. As the Tribunal has taken the view that the second application is invalid pursuant to the reasoning of the Full Federal Court in MIMCMSMA v CBW20 [2021] FCAFC 63, the applicant has consented to the evidence and claims raised in the second PVA being considered by the Tribunal in this review of the decision relating to the first claim.
The applicant appeared before the Tribunal on 23 March 2023 to give evidence and present arguments in relation to both applications. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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).
There is no evidence that the applicant is a member of the same family unit of a person who holds a protection visa, and the Tribunal finds that he does not therefore satisfy s 36(2)(b) or (c).
The Tribunal’s task is therefore to decide if he satisfies s 36(2)(a) or (aa).
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether, based on what is accepted of the claims made by the applicant or arising on the evidence, the applicant is a person to whom Australia has protection obligations.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Evidence and Claims
First SHEV application, 19 March 2016
With his first application the applicant provided a statement of claims that had been interpreted to the applicant in Farsi, then signed and witnessed.
The applicant’s statement says he is a citizen of Iran and does not have a right to citizenship or residence in any other country.
He was born on [date] in [Lorestan] Province, Iran.
He says he was raised as a Shia Moslem but that he renounced Islam when he was 19.
He says he fears returning to Iran because he no longer believes in Islam and also he openly opposes the regime and its repressive actions.
He sets out what he understands to be a few fundamental Islamic beliefs and refutes them.
He says he started military service but was only required to serve for 5 months because his father died and he was needed at home to look after his mother.
One of the neighbours got him a job in the Sepah as a guard at [a] government [agency]. He worked monitoring people entering the offices to ensure they did not have weapons or prohibited items.
The Sepah were also called on to help control public marches and strikes.
He enjoyed working there in the beginning because it was well paid but came to dislike the work. He refused to conform with the dress requirements and believes he came to be known as a troublemaker.
He was regularly docked pay but found it difficult to leave the job because he needed to support his mother. He affected to practice his religion but did so sporadically and with no enthusiasm, which was noticed by his higher-ups.
He refers to several instances of disagreement with the work of the Sepah and of conflict with his superior officers due to his failure to embrace Islam.
He left the Sepah after working for them for about 2 years. He returned to training for [sport] which he had done previously and also traded in [goods] to make a living.
He was arrested for possession of alcohol.
He came to Australia in 2012 and has been engaged to an Australian girl. The Tribunal understands that marriage was contemplated but the relationship failed. The applicant says that contemplating marriage and a family in Australia was something he did not imagine he could do in Iran because of the political and religious demands.
He believes that if he is sent back to Iran he would be seen as someone who has been westernised and corrupted. He worries that he would be known to have sought asylum, to have spoken against the Iranian Government, and to have spoken against Islam.
He believes that in the circumstances he faces being arrested and punished for his political opinion and his religion. He believes that punishment could include facing the death penalty.
Because the threats come from the Iranian authorities, he does not believe he can relocate within Iran to avoid them.
The claims made in this statement were enlarged on in an interview that the department conducted with him in about May 2017. The information he provided in the interview was generally consistent with what he had put in his statement.
Evidence to the Tribunal
The applicant told the Tribunal that he [works] at a [workplace]. He said he had been doing that for 7 months and is directly employed by the [Government].
He said he was no longer engaged or in any personal relationship.
He said he does not believe in God and has no religion.
He believes that if he returns to Iran he will be persecuted by the judiciary because he has renounced Islam.
He also believes he would be at risk of arrest for having become Westernised, although he conceded that he does now wear a beard and he does not colour his hair or wear earrings any more. He told the Tribunal that his tastes changed as he grew older but maintains that he does not follow Islam.
He said he had been lashed for drinking alcohol in Iran and that he received lashes for doing so, which left him bruised and bleeding. He said he enjoys drinking but conceded that if he had to give it up that would not be a problem.
He said he left Sepah in about [2010] and left Iran in late March 2012, a bit under 2 years later.
He left Sepah because he was clashing regularly with the higher ranks and there was evidence that he was being “set up” for disciplinary action.
He said he was driven to leave Iran because he had been forced to lead a type of double life, because he could not speak freely about his rejection of Islam.
He said he would have liked to leave Iran earlier than he did, but he had to support his Mother. He left after his sister graduated from [a] degree and she was able to help with their mother.
He said he knew it was dangerous and expensive to come to Australia by boat. He had been able to save a little money and got the rest by selling his car. He said while he worked and saved he was very conscious that he needed to keep his head down.
The Tribunal asked why he could not return and live the same way. The applicant said that it was difficult then but now he had tasted life in Australia it would be impossible.
The Tribunal noted that country information suggested that secularism is fairly widespread, particularly in the larger cities in Iran[1]. The applicant acknowledged that it is possible to minimise one’s risk but that he does not believe he could restrain himself for the rest of his life.
[1] DFAT Country Information Report Iran 14 April 2020 (report available at the time of hearing) at 3.70. This is largely reflected in the updated report of 23 June 2023 at 2.99 and following.
He further acknowledged that capital punishment for apostasy is rare but said the threat is there.
The applicant was advised that if there was anything further, he wished to draw to the Tribunal’s attention he should submit it and it would be considered as long as he provided it to the registry before the Tribunal had published its decision.
First Post-Hearing Submissions
The applicant’s representative made further submissions on 6 April 2023. Those submissions relevantly noted a US State Department report which says there was a change to the penal code in Iran in January 2021 that strengthens the laws against opposing Islam and are seen by some commentators as increasing the likelihood of persecution of, relevantly, atheists[2].
[2] USSD, 2021 Report on International Religious Freedom: Iran, at pages 1, 7 and 20.
The submissions point out that the applicant has given evidence that, in the past he has opposed the authorities in religious matters and that it would be an unjust restriction on his self expression to require him not to do so in future.
The Tribunal notes that the applicant’s atheism is presumably a “religious belief” for the purposes of S. 5J(3)(c)(1) and the applicant does not fall outside the requirement that he have a “well-founded fear of persecution” if, to avoid persecution he would need to conceal his religious beliefs.
In a further submission of 20 June 2023 the applicant’s representative asked the Tribunal to have regard to a report of the hanging of two men in Iran for insulting the prophet and promoting atheism[3].
[3]AAP “Iran hangs two men for blasphemy as executions amid unrest” 8 May 2023
The Tribunal is satisfied that, although the imposition of the death penalty for this type of behaviour remains rare, it was previously not more than a theoretical possibility but is now a remote but actual possibility for active atheists.
Consideration and Findings
The Tribunal is satisfied that the applicant is an atheist.
The Tribunal is satisfied that the applicant was punished for relatively minor offences against Islam in the past, in particular possession of alcohol.
The Tribunal is satisfied that the applicant came to be known as someone who was not committed to some of the principles of Islam when he was working for the Sepah.
The Tribunal is not satisfied that the applicant had established sufficient profile to be at risk of relevant persecution before he left Iran.
The Tribunal is satisfied that since the applicant has lived in Australia, the attitude of the Iranian authorities to atheism has become stricter.
The Tribunal is satisfied that, unless the applicant concealed his atheism, he would face a real chance of persecution and in particular a threat to his life or liberty, significant physical harassment and significant ill-treatment at the hands of the Iranian authorities, for the essential and significant reason of his atheism.
Further, the Tribunal is satisfied that the persecution the applicant would face would be the result of systematic and discriminatory conduct by the Iranian authorities.
The Tribunal is therefore satisfied that the applicant is a refugee.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Mark O'Loughlin
Member

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.
…

[2023] AATA 3511

10 August 2023

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