1910818 (Refugee)
[2022] AATA 5060
•13 December 2022
1910818 (Refugee) [2022] AATA 5060 (13 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Nicholas James Newlands (MARN: 1797775) and
Ms. Terrie Hamilton-Smith (LP: 5510174)
CASE NUMBER: 1910818
COUNTRY OF REFERENCE: Iran
MEMBER:Jason Pennell
DATE:13 December 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 13 December 2022 at 12.50pm
CATCHWORDS
REFUGEE – protection visa – Iran – Federal Circuit Court remittal – religion – conversion to Christianity – apostasy charges – imputed political opinion – satellite dish supply – arrest for drinking alcohol – arrests – physical assault – failed asylum seeker – exit from Iran – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2CASES
Applicant A v MIEA (1997) 190 CLR 225
C v MIMA (1999) 94 FCR 366
Chan v MIEA (1989) 169 CLR 379
Chen Shi Hai v MIMA (2000) 201 CLR 293
Devarajan v MIMA [1999] FCA 796
Diatlov v MIMA [1999] FCA 468 (Sackville J, 25 October 1999)
DZABG v MIAC [2012] FMCA 36
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Darboy [1998] FCA 931
MIMA v Y [1998] FCA 515
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MZZIA v MIBP [2014] FCCA 717
Nagalingam v MILGEA (1992) 38 FCR 191
NBKT v MIMA (2006) 156 FCR 419
Pei Lan He v MIMA [2001] FCA 446 (Ryan J, 23 April 2001)
Prasad v MIEA (1985) 6 FCR 155
S v Minister of Immigration and Multicultural Affairs (2004) 206 ALR 242
Saliba v MIMA (1998) 89 FCR 38
SZKHD v MIAC [2008] FCA 112
SZKOZ v MIAC [2007] FCA 1798
SZMPJ v MIAC [2008] FMCA 1640
SZMZA v MIAC (No 2) [2008] FMCA 1418
SZOZT v MIAC [2011] FCA 1245
SZRWG v MIAC [2013] FMCA 53
SZVYD v MIBP [2019] FCA 648
VCAD v MIMIA [2004] FCA 1005 (Kenny J, 4 August 2004)
Welivita v MIEA (Federal Court of Australia, Lindgren J, 18 November 1996)
WZAOO v MIAC (2012) 134 332Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
2.[The applicant] who claims to be a citizen of Iran, applied for the protection (XA-866) visa on 25 August 2012 and the delegate refused to grant the visa on 25 January 2013 on the basis that the applicant is not a person to whom Australia owes protection obligations.
3.The applicant initially applied to the Tribunal (differently constituted case 1301483) on 31 January 2013 (“the first Tribunal”) for review of the delegate’s decision. On 19 May 2014 the first Tribunal affirmed the delegate’s decision not to grant the applicant’s protection visa.
4.The applicant then applied for judicial review to the Federal Circuit Court of Australia (FCCA) [in] June 2014 and [in] March 2019 the matter was remitted to the Tribunal for reconsideration resulting in Tribunal case number 1910818 (‘the current Tribunal’).
5.This matter is now before the current Tribunal for the second time because of that FCCA order dated [in] March 2019.
6.The applicant appeared before the Tribunal on 29 November 2021 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi/Persian and English languages.
7.The applicant was represented in relation to the review by his registered migration agent, Mr Nicholas James Newlands of Asylum Seeker Resource Centre (ASRC).
Relevant law
8.The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.
Refugee criterion
9.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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
10.Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.’
11.Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
12.There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
13.Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
14.Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
15.Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
16.Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
17.In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
18.Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
19.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 a protection 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 the applicant 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’).
20.‘Significant harm’ for these purposes 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.
21.There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Mandatory considerations
22.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 (“the Department”), and country information assessments prepared by the Department of Foreign Affairs and Trade (“DFAT”) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
APPLICANTS CLAIMS AND EVIDENCE
23.The issue in this case is whether the applicant is a person to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed
Applicant’s Identity and Country of Reference
24.The applicant claims he was that he was born in Tehran, Iran on [date] and that he is an Iranian citizen and that he speaks reads and writes Persian.[1]
[1] Applicant’s Application for Protection dated 25 August 2012; Dept File [number]. Statement of [the applicant] dated 25 September 2012 at [3], Dept File [number]
25.The applicant first arrived in Australia by boat [in] July 2012 without a valid passport. The applicant’s evidence was that he departed Iran on a valid Iranian passport. The applicant travelled by air from Iran to [Country 1] and then to Australia by boat. His evidence to the Tribunal was that he threw his passport into the water on his way to Australia from [Country 1]. As a result, the applicant submitted copies of his national ID card, his birth certificate, his military exemption card and his driver’s licence as proof of identity and nationality to the Department of Home Affairs as part of the protection visa application process.
26.In addition, the applicant completed an Irregular Maritime Arrival Entry Interview form, Form 80 Personal Particulars for Assessment form and UNHCR Consent to Share and Release form in which he stated that he was born in Iran and born on [date].
27.The documents provided by the applicant are consistent with his evidence to the Tribunal in relation to his identity. There is no evidence to suggest that he has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds the applicant is a citizen of Iran and as such his protection claims will be assessed against Iran as the country of reference and ‘receiving country’, respectively.
Applicant’s migration history
28.The applicant arrived by boat at Christmas Island [in] July 2012.
29.The applicant’s evidence was that he was born and lived in Iran until his departure [in] April 2012. The applicant departed Tehran via plane on [a day in] April 2012 on a valid Iranian passport. The applicant flew to [Country 1] where he stayed for approximately three months before travelling to Australia by boat.[2] The applicant claims that he does not have a right to enter and reside in any of these countries.
[2] Applicant’s Application for Protection dated 25 August 2012; Dept File [number]
30.On 25 August 2012 the applicant lodged the Protection (XA-866) visa application. The applicant was the holder of a bridging visa E that was granted on 3 September 2013 and which ceased on 17 June 2014. The applicant is currently unlawful.[3]
Claims for protection
[3] Movement details dated 25 November 2021; AAT File No:1910818 Doc ID:9150312
31.The applicant’s claim for protection is detailed in his statement of claims dated 25 August 2012 attached to his protection visa application.[4] The applicant’s representative summarised[5] the applicant’s claims as follows:
[4] Applicant’s Application for Protection dated 25 August 2012; Dept File [number] Folio [83]-[85]
[5] Asylum Seeker Resource Centre letter dated 8 October 2021 at p.5. AAT File No:1910818 Doc ID:8958150
(a)The applicant was arrested and convicted by the Iranian authorities for drinking alcohol at a party.
(i) On [a day in] October 2009 ([in] July 1388 of the Iranian calendar), his [married sister] and his brother-in-law ([Brother-in-law A]) hosted a party for around thirty people. The party was planned from about 6.00pm to 12.00pm. There was a DJ and alcohol, courtesy of the applicant’s brother-in-law and sister.
(ii) At about 12.00am that night five government officials armed with handguns stormed the party. They separated the men and the women at the party and took them away in vehicles. They physically kicked and abused the partygoers. When they got to the detention centre the men and women were separated and questioned.
(iii) The applicant was transferred to the Etelat building and spent the following night there. Iranian authorities continued to physically assault the applicant until his father arranged for his release by handing over the title of his home as security.
(iv) Two days later the applicant appeared before the Iranian Court and was convicted, fined, and sentenced to twenty lashes. The applicant’s Lawyer, [Lawyer A], who also represented other convicted party goers argued to have the sentence suspended.
(b)The applicant was involved in the [supply] of satellite dishes.
(i) The Iranian authorities discovered the Applicant’s involvement in [Brother-in-law A’s] illegal satellite dish [supply] business. The Communication in Iran is extremely restricted and controlled. Illegal satellite dishes are opposed by the Iranian authorities who fear they undermine their control.
(c)The applicant holds political opinions contrary to that of the current government.
(i) The applicant does not support the Iranian Government. The applicant attended but dd not organise antigovernment demonstrations. The applicant fears that his attendance at these protests combined with his employment as a satellite dish [supplier] may lead him to being suspected of holding any government views.
32.In addition, the applicant claims that since arriving in Australia he has converted to Christianity and that he no longer considers himself a Muslim. The applicant claims that he was baptised as a Christian at [Baptist Church 1] [in] August 2013.[6] The applicant claimed that since arriving in Australia he attends church and engaged in the Christian community.
[6] Asylum Seeker Resource Centre letter dated 8 October 2021 at p.2. AAT File No:1910818 Doc ID:8958150
33.The applicant claimed that if he is returned to Iran as a failed asylum seeker he would be interviewed upon his return to the country and be discovered as having converted to Christianity.
34.Finally, the applicant claims[7] that he does not support the government in Iran. The applicant claims that the government does not care about the youth of Iran, their rights or their aspirations. He claims that all the government is only concerned about is maintaining power. He claims that the government see the youth as a threat and as a result are always ‘clamping down on them.’[8]
[7] Statement of [the applicant] dated 25 September 2012 at [5], Dept File [number]
[8] ibid
Supporting documentation
35.The applicant provided the following material to the Department in support of his visa application:
(i)Form 815 – Health Undertaking[9]
(ii)Signed UNHCR consent to share and release information, dated [in] August 2012[10]
(iii)Character statutory declaration, dated 25 August 2012[11]
(iv)Form 866, part B and C – Application for a Protection (Class XA) visa[12]
(v)Form 80 – Personal particulars for assessment including character assessment[13]
(vi)Applicant’s statement dated 25 August 2012[14] translated from Persian, setting out background information and statement of claims
(vii)Supplementary submissions from the applicant’s migration agent dated 25 September 2012[15], further addressing the applicant’s claims for protection
(viii)Applicant’s identity documents being his National Iranian ID card, birth certificate, medical exemption certificate and driver’s licence.[16]
(ix)Applicant’s submissions dated 12 December 2022.[17]
[9] Dept file [No], Folio 25-26
[10] Dept file [No], Folio 27
[11] Dept file [No], Folio 28-29
[12] Dept file [No], Folio 34-61
[13] Dept file [No], Folio 62-82
[14] Dept file [No], Folio 83-85
[15] Dept file [No], Folio 87-90
[16] Dept file [No], Folio 93-98
[17] AAT File No 1301483, Doc ID 10544504
36.The Department file contains a non-disclosure certificate issued on 25 January 2013, made pursuant to s 438(1)(a) of the Migration Act 1958 (the Act) which is related to certain documents on the Department of Home Affairs [file number]. Having considered the non-disclosure certificate and the documents to which it relates, on 2 August 2021 the Tribunal exercised its discretion under s 438(3) of the Act to disclose the document to the applicant.
37.In addition, the applicant provided the following documents to Tribunal in support of his claim:
(i)Copy of primary decision record from the Department of Home Affairs (then known as the Department of Immigration and Citizenship) dated 25 January 2013[18]
(ii)Summary of the applicant’s protection claims and country information, dated 19 March 2013, accompanied by Court Verdict issued by [Court 1] translated from Persian[19]
(iii)Document issued to the applicant by the Justice Department of the Islamic Republic of Iran, dated [in] June 2012[20]
(iv)Copy of statement of claims for protection for the applicant’s brother-in-law, [Brother-in-law A], dated 1 November 2012[21]
(v)Post-hearing submission from the applicant’s migration agent, dated 8 April 2013[22]
(vi)Submissions from the applicant’s solicitor dated 8 October 2021.[23]
(vii)Copy of the applicant’s certificate of baptism, dated [in] August 2013.[24]
(viii)Copy of primary Protection visa decision record from the Department of Home Affairs (then known as the Department of Immigration and Citizenship) for the applicant’s sister and her family, namely [Brother-in-law A’s] [family named][25]
[18] AAT File No 1301483, Doc ID 1888699, Folio 1-11
[19] AAT File No 1301483, Doc ID 1888699, Folio 60-74
[20] AAT File No 1301483, Doc ID 1379840
[21] AAT File No 1301483, Doc ID 1393041
[22] AAT File No 1301483, Doc ID 1361842
[23] AAT File No 1910818, Doc ID 8935815
[24] AAT File 1910818, Doc ID 8935815
[25] AAT File 1910818, Doc ID 8935815
Applicant’s evidence
38.The applicant claims he was that he was born in Tehran, Iran on [date] and that he is an Iranian citizen, and he speaks reads and writes Persian.[26]
[26] Applicant’s Application for Protection dated 25 August 2012; Dept File [number]. Statement of [the applicant] dated 25 September 2012 at [3], Dept File [number]
39.The applicant’s evidence was that his parents are retired [occupation 1s] who continue to live in Karaj, Iran. The applicant has a sister who lives in Australia. The applicant claims to have travelled to Australia with his sister, brother-in-law, and their child
40.The applicant attended school in Iran. His evidence to the Tribunal was that he did not remember when he finished school in Iran. Nevertheless, the applicant’s protection visa application[27] states that he attended school [between specified years].
[27] Applicant’s Application for Protection dated 25 August 2012; Dept File [number]
41.After the school the applicant claimed that he commenced [an occupation 2] course. The applicant was not able to say if he finished the course or how long he attended the course. Nevertheless, his protection visa application states that he completed [an occupation 2 qualification] between 2005 and 2008. He then worked as [an occupation 2] for five months in or about 2009 and 2010. After a period of unemployment, in 2011 he then worked as [an occupation 3] for three months. Finally, from September 2011 to April 2012 he worked for his brother-in-law’s satellite receiver business. The applicant’s evidence to the Tribunal was that he continued to design and sell [product 1s] while working in the [occupation 3] business and satellite receiver business. The applicant claims that he was exempted from attending military service due to the age of his father ([age] years old at the time) and the fact that he was the only son in the family.
42.The applicant’s evidence was that he left Iran by air on a valid passport from the airport in Tehran, Mehrabad International Airport and travelled to [Country 1]. His evidence to the Tribunal was that he had no difficulty in departing the country. That is, he was not stopped or detained by the authorities upon leaving Iran. The applicant then travelled from [Country 1] to Australia by boat. His evidence was that on the voyage to Australia the applicant was instructed to destroy his passport. Since arriving in Australia, the applicant has worked odd jobs including in a [business 1]. He has otherwise been unemployed.
The party.
43.The applicant’s evidence to the Tribunal was that he attended a party as a guest of his sister and brother-in-law held at their home in Karaj Iran. The applicant’s statement[28] states that the party was held [in] July 1388 by the Iranian calendar ([in] October 2009) at his sister’s home for about 30 people. He claims that a DJ played both Iranian and foreign music (most Iranian) and a friend of his brother-in-law brought alcohol to the party. The applicant claims that late at night but before midnight five officers dressed in plain clothes raided the party armed with handguns.[29] The men and women were separated and forced to sit on the floor. They were then taken by vehicles to detention where they were questioned. The applicant states that he was questioned with his brother-in-law. He states that his brother-in-law was mostly questioned as he was the owner of the house. The applicant claimed that while they were in detention they were beaten. He states they were detained for one night at the detention centre and a further night in the Etelaat building. The applicant states that they were released upon his father putting ‘down the deed of the house’ to have them released.[30]
[28] Statement of [the applicant] dated 25 September 2012 at [10]-[11], Dept File [number]
[29] Statement of [the applicant] dated 25 September 2012 at [10]-[11], Dept File [number]
[30] Statement of [the applicant] dated 25 September 2012 at [12], Dept File [number]
44.The applicant’s statement states that after their release he and his sister and brother-in-law went to court where they were fined and sentenced to 20 lashes. He states that his brother-in-law and his sister were to receive more because they we the owners of the house. The applicant claims that they engaged a lawyer [Lawyer A] who help have the sentences postponed.
45.Despite the applicant’s statement, his evidence to the Tribunal was that he could not tell the Tribunal the address of his sister’s and brother-in-law’s home where the party occurred. In addition, he was not able to recall any detail of the party or the events that lead to him and the other guests being arrested as claimed. Finally, the applicant did not provide any evidence to the Tribunal of his arrest, detention or conviction as claimed in his statement.
The satellite business.
46.In his statement that applicant claims that in or about August or September 2011 he started working for his brother-in-law in the satellite [business]. The applicant claims that he was working with a friend in the [specified operations] of the business and that he was responsible for receiving, delivery and storage of the satellites. About 5 other people were responsible for the [supply] of the satellites. The applicant claims that the job paid better than other jobs available to him at that time.
47.In Iran satellites allow people to view foreign channels and music which cannot be accessed in Iran. In Iran there is strict censorship of programs, propaganda, and religious indoctrination. The applicant’s statement states that [in] April 2012 he had returned home for lunch when he received a call from his neighbour [named] advising not to return to the store as police had locked and sealed the building. The applicant claims he contacted his brother-in-law and went into hiding at his aunties home in Tehran. They departed Iran [in] April 2013.
48.The applicant referred the Tribunal to a 2016 article by Al Jazeera in relation to satellite dishes in Iran in support of his claim that satellite dishes are illegal in Iran.
Applicant as a Christian
49.The applicant claims in his application for protection that he is a Shia Muslim but his evidence to the Tribunal was that he was baptised as a Christian in [Baptist Church 1] [in] August 2013. The applicant provided the Tribunal with a copy of his baptism certificate, dated [in] August 2013. In his statement the applicant claims that he was motivated to convert to Christianity because of the kindness and generosity shown to him by members of the Christian community and his Christian friends in [Suburb 1].
50.The applicant stated to the Tribunal that he did not know much about Christianity. He stated that he did not go to church regularly and that he had only been to Church on two occasions. The applicant was asked by the tribunal if he knew the Lord’s Prayer. The applicant did not respond directly to the question and gave no indication that he was familiar with the prayer. The applicant did not provide any details of his Christian faith or his involvement with the Christian religion other than to say that he attended Church on two occasions just to see what the Christian people were like. The applicant stated that because a Christian Church had provided him accommodation and he was mixing with Christians he wanted to see what they were like.
51.Nevertheless, the applicant stated that in the event he was returned to Iran he would be detained as a failed asylum seeker. He claimed that upon being detained he would be questioned and as a result the authorities would become aware that he had been baptised as a Christian. He claimed that there was a real chance that he would be seriously harmed as a Muslim having converted to Christianity if he was returned to Iran.
52.The Tribunal also received as statutory declaration[31] from [Brother-in-law A], the applicant’s brother-in-law dated 24 November 2021. [Brother-in-law A] confirmed the applicant attended a party as claimed. He stated that the Basiji and the Etelaat (Iranian Intelligence) raided the party and arrested the 20-30 guests including the applicant. He claims that he and his wife (the applicant’s sister) were charged with four offences, immoral behaviour, owning a satellite receiver, prostitution, and consuming alcohol. His evidence was that their guests were detained by the Iranian intelligence for 2 days. He claims that each member of the group was sentenced to 20 lashes and fined 1,500,00 rials. his evidence was that his wife received an additional penalty of 500,000 rials because they owned the satellite receiver.
[31] Statutory declaration [Brother-in-law A] dated 24 November 2021
COUNTRY INFORMATION
53.In accordance with the Ministerial direction No. 84 under s.499 of the Act the Tribunal has had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT), being the DFAT report on Iran dated 14 April 2020 (‘the DFAT Report’)[32]. In particular, the Tribunal has considered the relevant country information for the DFAT report as set out in Annexure ‘A’ of these reasons.
[32] DFAT Country Information Report dated 14 April 2020
CONSIDERATION OF CLAIMS AND EVIDENCE
54.The issue in this case is whether the applicant is a person to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Credibility
55.When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
56.The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[33]
[33] Section 5AAA of the Migration Act 1958; MIEA v Guo (1997) 191 CLR 559 at [596], Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at [169–70]
57.A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[34] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
[34] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J at [482]
58.If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[35] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.
[35] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196]
59.In this case the Tribunal has significant concerns about the credibility of the applicant’s evidence. His evidence to the Tribunal was generally off handed, vague and lacking in any detail. The applicant showed little interest or ability to provide detailed evidence in relation to each to his claims. For instance, the applicant was not able to recall many details in relation to each of his claims including when he completed high school, when or if he completed his [occupation 2 course]. In addition, the applicant did not describe the details of the party (including the location of his sister’s home) and his work.
Accepted facts
60.Based on the applicant’s evidence the Tribunal accepts and finds that:
(a)the applicant was born in Tehran, Iran on [date].
(b)the applicant speaks reads and writes Persian.
(c)the applicant is an ethnic Persian.
(d)the applicant has never married and has no children.
(e)the applicant’s father and mother continue to live in Iran.
(f)the applicant has a sister who lives in Australia.
(g)the applicant attended school in Tehran and completed [an occupation 2 qualification] between 2005 and 2008.
(h)The applicant worked as [an occupation 2] for five months in or about 2009 and 2010, as [an occupation 3] for three months in 2011 and from September 2011 to April 2012 he worked for his brother-in-law’s satellite receiver business.
Applicant’s claim as a refugee
61.The applicant claims that in the event he is returned to Iran there is a real chance he will suffer serious harm by reason of:
(a)his imputed political opinion of being opposed to the Iranian regime having been arrested and detained from attending a mixed party at which alcohol was served and working for a satellite receiver business.
(b)his religion due to having converted to Christianity; and
(c)as a failed asylum seeker if he is returned to Iran.
(d)as a member of a particular social group (PSG) namely ‘youth generation’ who the applicant claims are targeted for having breached the Islamic Code.
62.A past fear may be a relevant consideration in determining if the applicant has a well-founded fear of persecution. However, the approach that is applicable to the applicant in this case under the Article 1A(2) of the Convention is whether the applicant is his country owing to a well-founded fear of persecution is unwilling to avail himself of the protection of that country or unable to return to it due to such fear.[36]
Applicant’s imputed political opinion
[36] [1999] FCA 1265 (Dowsett J, 13 September 1999) at [60]. See also Diatlov v MIMA [1999] FCA 468 (Sackville J, 25 October 1999) at [32] and DZABG v MIAC [2012] FMCA 36 (Brown FM, 25 January 2012) at [134] (undisturbed on appeal: DZABG v MIAC [2012] FCA 827 (Dowsett J, 7 August 2012)).
63.As to the applicant’s imputed political opinion for the purposes of the Convention definition of refugee, a political opinion need not be an opinion that is held by the refugee. It is sufficient that such an opinion be imputed to the applicant by the persecutor.[37] In Saliba v MIMA the Court held:
... for Convention purposes, a claimant’s political opinion need not be expressed outright. It may be enough that a political opinion can be perceived from the claimant’s actions or is ascribed to the claimant, even if the claimant does not actually hold the imputed opinion.[38]
[37] MIEA v Guo (1997) 191 CLR 559 at [571] referring to Chan v MIEA (1989) 169 CLR 379 at [416], [433]
[38] Saliba v MIMA (1998) 89 FCR 38 at [49]
64.The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (‘the UNHCR Handbook’) provides[39] that holding political opinions different from those of the government is not in itself a ground for claiming refugee status. An applicant must show that he has a fear of persecution for holding such opinions. In such circumstances it may be reasonable to assume that an applicant’s opinion will, sooner or later, come into conflict with the authorities. If this is the case an applicant may be considered to have a well-found fear of persecution because of their political opinion.
[39] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [80]–[86]; Chan v MIEA (1989) 169 CLR 379 at [392]
65.In addition, regard should be had to the regard may be had to other matters to show that an applicant has a fear of persecution and not just a fear of prosecution and punishment for a particular act.[40] Such matters include an applicant’s personality or mental health, their actual political opinion, the motive and nature of the act committed, the nature of the prosecution and its motive and the law on which the prosecution is based.
[40] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [80]–[86]; Welivita v MIEA (Federal Court of Australia, Lindgren J, 18 November 1996)
66.In MIMA v Y, Davies J noted that ‘[t]he words “political opinion” are ordinary words of the English language and have not been the subject of judicial exposition limiting their meaning in the context of the Refugees’ Convention’.[41] The Court held that ‘in the context of the Refugees’ Convention, an opinion could be thought to be a political opinion if it were such as to indicate that its holder ... held views which were contrary to the interests of the State, including the authorities of the State.’[42]
[41] MIMA v Y [1998] FCA 515 at [4] and [5]
[42] Ibid
67.In C v MIMA[43], Wilcox J found that the term ‘political opinion’ was broader than adherence to a political party or support for its policies.[44] The Court considered that the term ‘political opinion’ extends to any action which is perceived to be a challenge to government authority and included any action which constituted a challenge to a group opposed to the government.[45]
[43] C v MIMA (1999) 94 FCR 366
[44] C v MIMA (1999) 94 FCR 366 at [375]
[45] C v MIMA (1999) 94 FCR 366 at [373]. In support of this point the Court cited the Canadian Supreme Court decision of Attorney-General of Canada v Ward (1993) 103 DLR (4th) 1. See also Devarajan v MIMA [1999] FCA 796 at [26]
68.In this case the applicant claims that he falls within the Convention’s definition of refugee because of having been detained and charged due to attending a mixed party at which alcohol was served and working for a satellite receiver business he will be imputed with holding a political opinion that is against the government. As such, the Tribunal accepts the applicant’s claim falls within the Convention definition of refugee reason of his political opinion.
Applicant’s religion
69.The applicant claims to have a well-founded fear of persecution within the scope of the Convention by reason of his religion having rejected Islam and being baptised as a Christian.
70.The scope of ‘religion’ within the context of the Convention was considered in MIMA v Darboy[46] in which the Federal Court referred to the following passage from the High Court’s judgment in Church of the New Faith:
The canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself. Conversely, unless there be a real connexion between a person’s belief in the supernatural and particular conduct in which that person engages, that conduct cannot itself be characterised as religious.
[46] [1998] FCA 931 (Moore J, 6 August 1998). (See also Wang v MIMA (2000) 105 FCR 548 and Liu v MIMA [2001] FCA 257 (Cooper J, 16 March 2001) at [19]–[22])
71.The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status provides an overview of the scope of ‘religion’[47] as:
71‘The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which right include the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.
72Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.
73Mere membership of a religious community will normally not be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground.’
[47] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [71]–[73] question of whether an applicant has a well-founded fear of being because of his religion may arise in a variety of factual circumstances and may include the application of generally applicable religious-based laws, departing from orthodox religious beliefs or transgressing social mores, conversion, apostasy and mixed marriage.[48] It will often depend on the motivation of the persecutor or in circumstances where any fear is caused by the operation of generally applicable laws, whether there is a persecutory intent or nature to those laws or to the way they are applied.[49] It requires an assessment of all the relevant circumstances, including, where relevant, the ‘central tenets’ of the religion, how an applicant is likely to manifest his or her religious beliefs and the likelihood of that manifestation attracting a persecutory reaction from the authorities.[50]
[48] To be an apostate does not require conversion from one faith to a different faith but does require abandonment or rejection of the first faith: WZAOO v MIAC (2012) 134 332 at [12], citing W161/01A v MIMA [2002] FCA 285
[49] See VCAD v MIMIA [2004] FCA 1005 (Kenny J, 4 August 2004) at [35] where Kenny J held that where an applicant has avoided military service for religious reasons there may be a well-founded fear of persecution for reasons of religion if a law, neutral on its face, has an indirect discriminatory effect or indirectly inflicts disproportionate injury, for reasons of religion
[50] Pei Lan He v MIMA [2001] FCA 446 (Ryan J, 23 April 2001)
73.In this case, the applicant claims that he has rejected Islam and converted to Christianity. He claims that the essential and significant reason for him being persecuted by the authorities upon his return to Iran is as an apostate having rejected Islam and becoming a Christian. While the tribunal has some difficulty with the applicant’s claim for the reason expressed below, it does accept his claim falls with the Convention definition of refugee for reason of his religion.
Applicant as a member of a PSG
74.The applicant claims to fear persecution if he is returned to Iran by reason of his membership of a PSG because of him being a member of the ‘youth generation.’[51] That is, as a young person who enjoys wearing western cloths, listening to loud (modern) music, and being involved with social media. The test as to whether there is a PSG under Article 1A(2) of the Convention[52] is that:
(a)the group must be identifiable by a characteristic or attribute common to all members pf the group.
(b) the characteristic or attribute common to all members of the group cannot be a shared persecution.
(c)the possession of that characteristic or attribute must distinguish the group from society at large.
[51] Protection (Class XA) Visa Decision record dated 25 January 2013 at p.10 [File No]
[52] S v Minister of Immigration and Multicultural Affairs (2004) 206 ALR 242 per Gleeson CJ, Gummow and Kirby JJ at [36], McHugh J [68]-[69], Callinan J at [97]-[98]
75.The Tribunal has some reservations about whether the applicant is a member of a PSG because it was not clear to the Tribunal that the fact the applicant enjoys listening to loud music and dressing in fashionable cloths was a characteristic or attribute that distinguished the applicant and the group from society at large. Nevertheless, for the purposes of this decision the Tribunal is prepared to accept the applicant is a member of a PSG as claimed.
Applicant’s well-founded fear
76.In Chan v MIEA[53] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Dawson J noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[54]
[53] (1989) 169 CLR 379 at [396]
[54] (1989) 169 CLR 379 at [396]. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at [263] per Brennan CJ, Toohey, McHugh and Gummow JJ
77.The subjective element of ‘well-founded fear’ concerns the state of mind of each applicant. That is, whether they hold a genuine fear is a question of fact. In this case, based on the applicant’s evidence, the Tribunal accepts the applicant has a subjective fear of being harmed because of both his imputed political opinion and his religion.
78.However, to hold a ‘well-founded fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J stated:[55]
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.
[55] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397
79.In MIEA v Guo, the Court stated that:[56]
Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is ‘well-founded’ when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
[56] MIEA v Guo (1997) 191 CLR 559 at [572]; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at [293]
80.The applicant claims that if he is returned to Iran there is a real chance, he will suffer serious harm because of his imputed political opinion and having become Christian and rejecting Islam. In addition, he claims he will suffer serious harm by reason of being a member of the youth generation. For the reasons expressed below, the Tribunal does not accept that the applicant has a well-founded fear of persecution on either an objective or subjective basis.
Applicant’s imputed political opinion.
81.The applicant claims that there is a real chance that he will be seriously harmed if he is returned to Iran because of his imputed political opinion of being opposed to the Iranian regime having been arrested and detained from attending a mixed party at his sister’s home at which alcohol was served and working for his brother in laws satellite receiver business.
The party
82.The applicant claims that he attended a party in 2009 as a guest of his sister and brother-in-law held at their home in Karaj Iran. The applicant claims that a DJ played both Iranian and foreign music (mostly Iranian) and alcohol was served at the party. The applicant claims that five officers dressed in plain clothes raided the party armed with handguns.[57] As a result he was detained for 48 hours, beaten and sentenced to 20 lashes. The applicant’s evidence to the delegate was that his father provided the deed to his house to have him released and his sentence was postponed.[58]
[57] Statement of [the applicant] dated 25 September 2012 at [10]-[11], Dept File [number]
[58] Protection (Class XA) Visa Decision record dated 25 January 2013 at p.14 [File No]
83.The applicant’s evidence to the Tribunal was vague and lacking in any detail. Save to say that the party occurred in Karaj, the applicant was not able tell the Tribunal when the party occurred or the location of his sister’s home where the party was held. In addition, he was not able to tell the Tribunal how many officers attended the party or from what agency they belonged. Nevertheless, he claims that he was beaten many times, a result of which he has [a specified injury].
84.The country information reports that alcohol is forbidden in Iran. The penalty[59] for consuming alcohol is 80 lashes with the production or sale of alcohol punishable by six and 12 months in prison, 74 lashes and a fine worth five times the value of the seized alcohol.[60] In 2020 Amnesty International reported that a man was executed following repeated convictions for drinking alcohol.[61] However it’s reported[62] that alcohol is readily available on the black market and its use in private setting is widespread. It’s reported that half of all adults in Iran regularly drink alcohol despite it being banned by the Islamic regime.[63] It’s reported[64] that in 2016 Iranians aged 15 and over who were regular users had consumed 28 litres of alcohol an increase of 4 litres from 2010. Generally, alcohol consumed in Iran is both produced locally and smuggled into the country from Turkey.[65] It’s estimated that approximately US$730 million worth of alcoholic drinks are smuggled into Iran each year.[66]
[59] Article 265 of the Islamic Penal Code.
[60] Article 702 of the Islamic Penal Code.
[61] Amnesty International ‘Iran: Man Executed for drinking Alcohol’ 10 July 2020, http:/ DFAT Report at p.17
[63] Iranwire, ‘Moonshine republic: Survey finds a quarter of Iranians drink home-made alcohol’ 22 October 2021 http:/iranwire.com/en/features/70618/
[64] KayhanLife ‘Iranian customs sets new fines for sale and consumption of alcohol’ 4 November 2021 DFAT report at p.17
[66] BBC News ‘Iran hidden alcoholism problem’ 20 June 2012 http:/ reported that drink driving is common in Iran.[67] The police do not have breathalyser equipment. As such drivers are taken to the local police station for testing. If a positive blood alcohol test is returned a fine and 6-month loss of licence is generally imposed. It’s reported[68] that the payment of bribes in return for not being escorted to the police station are common.
[67] DFAT report at p.17
[68] ibid
86.The country information reports that the police do not actively investigate or seek to entrap individuals consuming alcohol in their own homes. It’s reported that they will act only if the activity comes to public attention. As a result, prosecutions for alcohol consumption are not common in Iran.[69] In circumstances where the punishment is enforced a fine is normally imposed and usually paid on the spot. Floggings may be imposed but are rare.[70] The country information reports that the payment of bribes is common[71] with rumours of government officials running smuggling operations that bring alcoholic beverages and bootleg products into the country. The applicant accepted that a bribe is usually paid to officers if alcohol is being served at a party in Iran and that it was extremely rare for a person to be arrested at a party at which alcohol was served.
[69] ibid
[70] ibid
[71] ibid
87.The DFAT report[72] states that NGO’’s working in the health sector have reported that in recent years the government in Iran has changed its approach to the use of alcohol from purely law and order focus to treatment and rehabilitation. The government has allowed NGOs to work in the area and as such several alcohol treatment and rehabilitation centres now operate in major cities along with support groups such as Alcoholic Anonymous.[73]
[72] ibid
[73] ibid
88.In addition, the country information[74] reports that mixed gender parties are prohibited in Iran and attendance at such a party can attract a fine or flogging. In 2018 hundreds of people were arrested at private mixed gender parties.[75] Nevertheless, its reported[76] that mixed gender parties are common in Iran, at which alcohol is invariable served, and that raids are not a common occurrence. They are generally only conducted because of a tip off by a neighbour, particularly if loud music is involved.[77] The country information reports that a fine is commonly imposed rather than flogging for the offence. The country information reports that there is a general tolerance for ‘immoral behaviour’ behind closed doors.[78]
[74] DFAT Report at p.51
[75] ibid
[76] ibid
[77] DFAT at p.52
[78] ibid
89.Based on the applicant’s own evidence and the available country information the Tribunal has extreme difficulty in accepting that the applicant was arrested and detained at the party as claimed. Nevertheless, the evidence[79] of the applicant’s brother-in-law, [Brother-in-law A], was that the Basiji and the Etalaat (Iranian Intelligence) raided the party, and the guests were accused of committing morality offenses and involved in corruption because alcohol was being consumed. His evidence was that all guests were detained by the Iranian Intelligence for a period of 2 days. Each guest received a penalty of a fine of 1,500,000 rials and 20 lashes. Therefore, based on the evidence of [Brother-in-law A] the Tribunal accepts that the applicant attended the party and was arrested and detained as claimed.
[79] Statuary Declaration of [Brother-in-law A] dated 24 November 2021 AAT File 1910818 Doc ID: 9156900
90.The applicant’s evidence was that he attended court and was released the same day.[80] His evidence was that he received a sentence of a fine and 20 lashes but engaged a lawyer, [Lawyer A], to help have his sentence postponed. The applicant did not provide any evidence from his lawyer in relation to the status of his claim.[81] The Tribunal notes that the applicant attended the party in 2009 but did not depart Iran until [a day in] April 2012. There was no evidence of the applicant being seriously harmed or being threatened with serious harm between from the time he was sentenced in or about 2009 and his departure from Iran. In addition, the applicant’s evidence was that he was able to depart the country on his own passport without any difficulty. The country information reports that Iran identity documents include sophisticated security features. It’s reported that the security procedures at Iman Khomeini International Airport in Tehran are robust. They include computerised cross checking and multiple layers of physical security and document checking and that the immigration officials are highly competent.
[80] Statement of [the applicant] dated 25 August 2012; [number] Doc ID:8636164
[81] ibid
91.Given the fact that he had not been seriously harmed between the time of being sentenced and his departure for the country and the level of security checks the applicant would be required to complete prior to his departure from Iran, the tribunal does not accept that there was any outstanding sentence in relation to him having attended the party as claimed. As a result, the Tribunal does not accept that there is any real chance the applicant would be seriously harmed because of having been detained, charged and sentenced in relation to the morality offence, namely having consumed alcohol at a party.
The satellite receiver business.
92.The applicant claims that in or about August or September 2011 he started working for his brother-in-law in the satellite [business]. The applicant’s evidence to the Tribunal about his involvement in the satellite business was, at best, vague and lacking in detail. The applicant initially claimed that he worked in the satellite business for approximately two years. However, when it was pointed out by the Tribunal that in his statement,[82] he claimed to have worked in the business for a period of approximately 6-8 months, from about August/September 2011 to April 2012, he stated that was correct.
[82] ibid
93.The applicant otherwise did not provide any evidence to the Tribunal about his involvement in the satellite business. Nevertheless, the applicant’s claim[83] is that he was working in the [specified] side of the business and that he was responsible for receiving, delivery and storage of the satellites. The applicant claims that in or about [in] April 2012 he returned home from lunch when he received a call from his neighbour advising not to go to the store because the police had locked and sealed the building. The applicant then contacted his brother-in-law and went into hiding at his aunties home in Tehran. They departed Iran [in] April 2012.
[83] ibid
94.The applicant’s [Brother-in-law A] confirmed in his statutory declaration[84] that the applicant had worked in the satellite business. His evidence was that the applicant had been alerted that the police were going to raid the premises and so left the business premises before they arrived.[85] While there is some difference in the evidence of the applicant and his brother-in-law as to how he was notified of the police, it is nevertheless their common evidence that the applicant was not at the business premises at the time the police raided the business premises and seized the goods as claimed. As such, it is not not clear to the Tribunal how the police had any knowledge that the applicant worked at the business.
[84] Statuary Declaration of [Brother-in-law A] dated 24 November 2021 AAT File 1910818 Doc ID: 9156900
[85] Statuary Declaration of [Brother-in-law A] dated 24 November 2021 AAT File 1910818 Doc ID: 9156900
95.The country information reports[86] that the authorities in Iran see foreign satellite channels as a threat (especially those that broadcast from the West). In Iran, satellite equipment is banned and those distributing, using, or repairing satellite dishes can be fined up to $2,800.[87] Even though satellite dishes are banned in Iran, the country information reports that around 70 percent of the population violates the law by owning a satellite dish.[88] It’s reported[89] that around 65 percent of Tehran’s residents use satellite dishes, and about 30 to 40 percent of residents in other cities’ in Iran. Consistent with the applicant’s evidence, its reported that in 2012 the Iranian police[90] launched a new crackdown on satellite dishes. It’s reported[91] that the police conduct such crackdowns on a regular basis, even though it is considered a losing battle. Despite their efforts and warnings, its reported that officials have acknowledged that the use of satellite dishes to access news and entertainment channels has been on the rise. [92]
[86] The Observers, Iranian war on satellite dishes: ‘We just buy new ones the next day’ 20 December 2012. Aljazeera ‘Iran destroys 100,00 depraving satellite dishes’ 24 July 2016 http:/ The Observers, Iranian war on satellite dishes: ‘We just buy new ones the next day’ 20 December 2012. ibid
[90] ibid
[91] ibid
[92] Insider ‘Iran destroyed 6000 Satellite Dishes’ dated 22 January 2015 http:/ on the applicant’s own evidence and that of his brother-in-law the police have no knowledge that the applicant worked in the satellite business. The fact that the applicant was able to depart the country on a valid passport without any issue indicates to the Tribunal that he was little or no interest to the police. As such the Tribunal finds that there is no real chance that the applicant would be seriously harmed because of having worked in the satellite business as claimed.
97.Even if the police had identified the applicant and were interested arresting him (which the Tribunal has found they did not) because of his involvement in the satellite business as claimed, the country information indicates that if he was prosecuted, he would receive a fine, being a maximum of US$2800.00. As such if the applicant was prosecuted for working in the satellite business as claimed the imposition of a fine of US$2,800.00 does not appear to constitute serious harm as defined in s 91R(1)(b) and 91R(2) of the Act.
98.In addition, the law banning satellites is one that is imposed on the whole population. That is, it is a law of general application the non-discriminatory application of which does not constitute persecution for the purposes of the Act, even though it may be viewed as oppressive or repugnant to the values of our society.[93] In Applicant A v MIEA Dawson[94] J stated:
‘Since a person must establish well-founded fear of persecution for certain specified reasons in order to be a refugee within the meaning of the Convention, it follows that not all persons at risk of persecution are refugees. And that must be so even if the persecution is harsh and totally repugnant to the fundamental values of our society and the international community. For example, a country might have laws of general application which punish severely, perhaps even with the death penalty, conduct which would not be criminal at all in Australia. The enforcement of such laws would doubtless be persecution, but without more it would not be persecution for one of the reasons stated in the Convention’
[93] SZVYD v MIBP [2019] FCA 648
[94] Applicant A v MIEA (1997) 190 CLR 225 at 245
99.In this case there is no evidence to suggest that the law banning satellites has been imposed on the applicant in a systematic or discriminatory manner as required under 91R(1)(c) of the Act. While considered by our values to be harsh and oppressive, the banning of satellites in Iran, an Islamic State in which Shia law applies constitutes a legitimate objective to protect and promote the general welfare of the state and its citizens.[95] As such the tribunal finds that the applicant does not have a well-founded fear of persecution because of him working in his brother-in-law’s satellite business as claimed.
Possessing antigovernment views
[95] Applicant A v MIEA (1997) 190 CLR 225 at 258; Chen Shi Hai v MIMA (2000) 201 CLR 293 at [28];
100.The applicant claims that because he was arrested and charged with moral offences for having attended his sisters party and because of him working in his brother-in-law’s satellite business he will be seen as possessing antigovernment views. However, for the reason expressed above, the Tribunal has found that there is no real chance the applicant will be seriously harmed by reason of being charged for having attended the party or because of his involvement in the satellite business as claimed. Accordingly, the Tribunal finds that there is no real chance he will be seriously harmed if he is returned to Iran because of his imputed political opinion as claimed.
Applicant as a Christian
101.The applicant claims to have a well-founded fear of persecution within the scope of the Convention by reason of his religion, having rejected Islam while he has been in Australia and being baptised as a Christian.
102.The Tribunal accepts that a person may become a refugee sur place because of voluntarily participating in activities which would give rise to a well-founded fear of persecution in his or her country of origin. In this case the applicant claims it is his conversion to the Christian faith.
103.Section 91R(3) provides that:
For the purposes of the application of this Act and the regulations to a particular person:
(a)in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless:
(b) 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 within the meaning of the Refugees Convention as amended by the Refugees Protocol.
104.Therefore, the applicant bears the responsibility or onus of satisfying the Tribunal that the conduct was otherwise than for the purpose of strengthening his or her claims to be a refugee.[96] The Tribunal is required to first consider whether the applicant’s conversion to Christianity occurred other than for the purposes of strengthening his claim to be a refugee before considering the consequences that may flow from his conversion.[97] In this case the applicant’s evidence was that he did not know much about Christianity. He stated that he did not go to church regularly and that he had only attended church on two occasions. The applicant’s evidence was that because he had been living in accommodation provided by the church, he wanted to see what the Christian people were like. The applicant was not able to provide the Tribunal with any details of his practice as a Christian and had no knowledge of the Lord’s Prayer. In such circumstances it appears that the applicant’s claim of being a Christian has been made for the purposes of strengthening his claim as a refugee.
[96] NBKT v MIMA (2006) 156 FCR 419 at [89]; SZKOZ v MIAC [2007] FCA 1798 at [28]–[29]; SZKHD v MIAC [2008] FCA 112 at [31]; SZMZA v MIAC (No 2) [2008] FMCA 1418 at [16]–[17] and SZMPJ v MIAC [2008] FMCA 1640 at [25]–[27]
[97] SZRWG v MIAC [2013] FMCA 53, SZOZT v MIAC [2011] FCA 1245
105.The country information reports that 99 per cent of Iranians are Muslim, of which 90–95 per cent is estimated to be Shia and 5–10 per cent Sunni.[98] Iranian laws are based on Shia Islam and Shi’ite Muslim is the official religion. Zoroastrian, Jewish and Christian religions are recognised as the only non-Muslim faiths in Iran.[99] The authorities only recognise Christian groups whose presence in Iran predates the Islamic Revolution in 1979.[100] The Constitution gives religious minorities the freedom to practise their own religious rites and ceremonies, within the limits of the law, nevertheless they still face some official discrimination, for instance in employment.[101] Outside of these recognised religious minority groups, any organised group activity that has not been approved by the state is perceived as a threat to the legitimacy and stability of the regime.[102] It’s reported that other religious minority groups, such as Christian converts, have been subject to harassment, interrogation and arrest.[103]
[98] DFAT Report at p.28
[99] ‘International Religious Freedom Report for 2020 – Iran’, United States Department of State, 12 May 2021, p.1, 20210513092814; ‘DFAT Report at p.29; ‘United States Commission on International Religious Freedom Annual Report 2021’, United States Commission on International Religious Freedom (USCIRF), 21 April 2021, p.27, 20210422095313
[100] ‘International Religious Freedom Report for 2020 – Iran’, United States Department of State, 12 May 2021, p.6, (the ‘International Religious Freedom Report for 2020 – Iran’) ‘DFAT Report at p.30, DFAT Christians in Iran Country of origin Information Services (COISS dated 27 July 2021 at p.1
[101] ‘DFAT report at p.30, ‘International Religious Freedom Report for 2020 – Iran’, DFAT Christians in Iran COISS dated 27 July 2021at p.1
[102] ‘Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise’, Landinfo - Norwegian Country of Origin Information Centre, 27 November 2017, p.21, DFAT Christians in Iran COISS dated 27 July 2021
[103] DFAT Christians in Iran COISS dated 27 July 2021 at p.1
106.The Christian community in Iran is comprised of both Christians by birth and Christian converts. The established Christian communities, including the Armenian and Assyrian communities, have a long history in Iran and are generally tolerated and permitted to practise their faith by the regime.[104] The number of Christians in Iran is not known. The estimates range from around 117,700 to some sources estimating between 300,000 and one million.[105]
[104] ‘Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise’, Landinfo - Norwegian Country of Origin Information Centre, 27 November 2017, p.6,
[105] ‘International Religious Freedom Report for 2020 – Iran’; ‘Annual Report 2020 - Rights violations against Christians in Iran’, Open Doors, Article 18, Middle East Concern, Christian Solidarity Worldwide, 02 February 2021, p.5 ‘DFAT Report at p.30; ‘USCIRF 2020 Annual Report’, United States Commission on International Religious Freedom (USCIRF), 28 April 2020, p.25, 20200429103634 DFAT Christians in Iran COISS dated 27 July 2021 at p.1
107.However, conversion from Islam to Christianity is prohibited by the authorities with converts facing the risk of arrest, detention, and prosecution.[106] As a result, the recognised Christian groups in Iran do not accept conversions or proselytise.[107] The Iranian Penal Code specifies the death sentence for proselytising by religious minority groups.[108] It’s reported that currently, death sentences for blasphemy cases are rare and very few executions for this offence have occurred in recent years.[109] Swearing at the Prophet is also a capital offence under the Penal Code, however, the sentence can be reduced to 74 lashings if the insults were the result of a mistake or made in anger.[110] The law prohibits Muslims from converting from or renouncing Islam. Although apostasy is not mentioned specifically in the Penal Code, convictions for apostasy can occur because Sharia Law applies where a condition is not addressed by the codified law.[111] It’s reported that most judges in Iran believe apostasy is a capital crime under Sharia Law.[112] Death sentences for apostasy cases are rare.
[106] ‘DFAT Report at p.30; ‘Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise’, Landinfo - Norwegian Country of Origin Information Centre, 27 November 2017, p.6, DFAT Christians in Iran COISS dated 27 July 2021 at p.1
[107] DFAT Report at p.32
[108] ‘International Religious Freedom Report for 2020 – Iran’; DFAT Report at p.32; DFAT Christians in Iran COISS dated 27 July 2021 at p.2
[109] DFAT Report at p.37 and p.61
[110] Ibid
[111] ‘Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise’, Landinfo - Norwegian Country of Origin Information Centre, 27 November 2017, p.22, DFAT Christians in Iran COISS dated 27 July 2021 at p.1
[112] Ibid
108.The DFAT Report[113] states that the risk of execution for conversion or apostasy is low with the DFAT not being aware of Christian converts having been executed in recent times. In any event, its reported[114] that today, because of a policy shift in or about 2011 Christian converts are more likely to be charged with national security offences rather than blasphemy or apostasy.
[113] DFAT Report at p.37
[114] Ibid
109.All Christians and churches in Iran must be registered with the authorities.[115] In or about 2012, the Iranian government banned converts from attending services in registered churches.[116] People who convert to Christianity are not recognised as Christians under the law in Iran and are not able to register as Christians, nor are they afforded the same rights as recognised Christians.[117] As such, Christian converts are considered by the authorities to be Muslim.[118] It is reported that the adverse attention given to Christian converts by Iranian authorities is because of 3 issues: Firstly, convert churches conduct services in Persian which is perceived as threatening to the authorities; secondly, converts have been prone to undertaking missionary work directed at the Muslim population; and thirdly, convert churches have been affiliated with churches in Western countries.[119]
[115] DFAT Christians in Iran COISS dated 27 July 2021 at p.5
[116] ‘International Religious Freedom Report for 2020 – Iran’, United States Department of State, 12 May 2021, p.6; DFAT Report at p.28; ‘Country Policy and Information Note - Iran: Christians and Christian converts’, UK Home Office, 27 February 2020, p.7, 20200228081848; DFAT Christians in COISS dated 27 July 2021 at p.5
[117] Ibid
[118] Ibid
[119] ‘Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise’, Landinfo - Norwegian Country of Origin Information Centre, 27 November 2017, p.9, oi.easo.europa.eu/administration/norway/PLib/Iran_Christian_converts_and_house_churches__1__–_prevalence_and_conditions_for_religious_practise_27112017.pdf; DFAT Christians in Iran COISS dated 27 July 2021 at p.6
110.It’s reported that converts to Christianity from Islam in Iran can face rejection by the community and family members. Iranian Christian converts reportedly face ongoing societal pressure.[120] There is a ‘high risk of societal discrimination’[121] if their conversion becomes widely known, particularly if they are from more ‘religiously-minded Muslim family backgrounds.’[122] Many social norms and cultural activities are associated with Islam and non-participation in religious events can raise suspicion from neighbours and the community resulting in them being reported to the authorities.[123]
[120] ‘International Religious Freedom Report for 2020 – Iran’, United States Department of State, 12 May 2021, p.35, 20210513092814; DFAT Christians in Iran COISS dated 27 July 2021 at p.7
[121] DFAT Report at p.34
[122] Ibid
[123] DFAT Christians in Iran COISS dated 27 July 2021 at p.7
111.Christian converts face the risk of arrest, detention, and prosecution.[124] It’s reported that most of the Christian converts arrested in recent years have been affiliated with house churches. Some have been released in exchange for signing a declaration and promising to cease activity,[125] while others have been held in detention and prosecuted.[126] Those prosecuted have usually been arrested or convicted earlier, had an active leadership role in the organisation, had contact with foreign organisations or published online about their faith.[127]
[124] ‘IRN200458.E - Iran: Situation and treatment of Christians by society and the authorities (2017–February 2021)’, Immigration and Refugee Board of Canada, 09 March 2021, rb-cisr.gc.ca/en/country-information/rir/Pages/index.aspx?doc=458305&pls=1; ‘Amnesty International Report 2020/21: The State of the World’s Human Rights’, Amnesty International, 06 April 2021, p.194, ww.amnesty.org/en/download/POL1032022021ENGLISH.PDF; ‘United States Commission on International Religious Freedom Annual Report 2021’, United States Commission on International Religious Freedom (USCIRF), 21 April 2021, pp.26-27, ‘Annual Report 2020 - Rights violations against Christians in Iran’, Open Doors, Article 18, Middle East Concern, Christian Solidarity Worldwide, 02 February 2021, pp.2–3, 20210203085117; DFAT Report at p.34
[125] DFAT Christians in Iran COISS dated 27 July 2021 at p.9
[126] Ibid
[127] Ibid
112.DFAT reports[128] that in March 2021, Iran’s Guardian Council ratified ambiguously worded amendments to Articles 499 and 500 of the Penal Code, outlawing ‘deviant psychological manipulation’ and ‘propaganda contrary to Islam’, both in person and online. Under the amendments, those found guilty of these offences are labelled as members of a ‘sect’ and punished with imprisonment, flogging, fines or the death penalty.[129] In May 2021, 3 Christian converts were charged under the amendments to 5 years in prison and a 4 million Rial ($1,280 AUD) fine each.[130] Christian converts were already regularly charged under the original Articles 499 and 500 of the Penal Code; however, advocacy groups believe the amendments will be used to further crackdown on unrecognised religious minorities.[131]
[128] DFAT Christians in Iran COISS dated 27 July 2021 at p.10; 112 ‘International Religious Freedom Report for 2020 – Iran’, United States Department of State, 12 May 2021, p.23, ‘Christian converts charged under Iran’s newly amended ‘propaganda’ law’, Article 18, 12 May 2021, ww.articleeighteen.com/news/8610/
3.79The Political Parties Law (1981, last amended in 1989) gives the Interior Ministry authority to issue permits to political parties. The Interior Ministry grants permits only to parties loyal to the establishment and the Velayat-e faqih political philosophy enshrined in the constitution. Registered political parties that adhere to Velayat-e faqih generally operate freely, but lack clear manifestos and large, national memberships. Registered political parties do not pursue the goal of taking power – an impossibility given the governing structure of the Islamic Republic (see Political System). They are better described as ideologically driven factions with common interests, who come together before elections to support particular candidates and go into ‘hibernation’ between elections. In practice, Iranians register for elections as individuals rather than as members of political parties, and, if they are approved to run as candidates, campaign with others on negotiated ‘lists’. The Guardian Council has power of veto over political candidates and disqualified a large number of reformist candidates from contesting the 2020 parliamentary election (see Political System). Political organisation or activism against the existing system of government and the Velayat-e faqih political philosophy are not tolerated. Those with political affiliations considered hostile or unacceptable by the authorities, including in areas where ethnic minorities constitute a majority, risk harassment and imprisonment.
3.80While public gatherings and marches are permitted by law, and protests do occur, significant restrictions on peaceful protest exist in practice. According to local sources, rules governing public gatherings and marches are applied inconsistently, with groups considered pro-regime routinely issued permits, while those seen as critical experience difficulty in obtaining a permit. For example, during the November 2019 unrest, gatherings of people protesting against the petrol price increase were vilified and put down with force, whereas pro-regime rallies occurred freely and received positive press coverage. The authorities regularly monitor public gatherings, including public entertainment and lectures, student and women’s meetings and protests, labour protests and Friday prayer gatherings.
3.81Iranians are able to criticise the government of the day robustly, both in public conversation and online in social media, although this freedom is not unlimited — a number of well-established ‘red line’ topics are off-limits and critical commentary may lead to prosecution under national security legislation (see Media). Social media accounts of well-known figures and celebrities attract particular scrutiny (see Artists and Musicians). Authorities are more likely to crack down on dissent during times of political uncertainty, such as during ongoing political demonstrations, and may restrict the ability of individuals to comment or communicate online at such times (see Critics of the State).
3.82Local sources told DFAT that it is common for Iranians to be critical of the government in public places, including supermarkets, shopping malls and taxis. However, people remain cautious about crossing well-understood ‘red lines’, like insulting the Supreme Leader, in their public interactions beyond close family and friends.
Critics of the State[165]
[165] DFAT Report at p.39
3.86Iranians have protested against the government in large numbers on three separate occasions since 2009. Following the June 2009 presidential election, up to 3 million supporters of reformist candidate Mir Hossein Mousavi took to the streets of Tehran to protest the official verdict that conservative candidate Mahmoud Ahmadinejad had been re-elected in a landslide, in what became known as the ‘Green Movement’ (so named after Mousavi’s campaign colour). Green Movement protesters used public holidays and national commemorations as opportunities to rally, chanting slogans that challenged both the system and the Supreme Leader himself. In response, the government despatched security forces, including the IRGC, Basij units (see Basij Resistance Force) and plain-clothed paramilitary forces. These forces beat thousands of protesters and arrested hundreds, while snipers killed dozens. By early 2010, the government had succeeded in quashing public displays of opposition. ‘Green Movement’ Activists discusses the aftermath of the 2009-10 demonstrations and provides an assessment on the ongoing risk profile of those involved.
3.87In late December 2017, a small protest in Mashhad (Razavi Khorasan Province) rapidly escalated and spread to more than 50 other cities and towns across Iran, involving an estimated 40,000 protesters. The protests – which spanned ethnic and religious lines – focused on economic hardship but also had a virulent anti-government and anti-regime element (unlike the protests associated with the Green Movement, which took place predominantly in Tehran and involved secular, middle-class and reform-minded Iranians, the 2017-18 protests were concentrated in smaller cities on the periphery and spread, and participants were largely working-class and conservative). The 2017-18 protests were largely peaceful, although there were some isolated low-level incidents in which protesters set fire to security forces’ offices or other infrastructure. While police initially took the lead in attempting to disperse the protesters, the government deployed Basij units and the IRGC, and succeeded in ending the demonstrations by early January 2018.According to Human Rights Watch, 4,900 people were arrested during the protests, and at least 21 people were killed, including members of the security forces. Most of those arrested were released, although some were charged with national security offences and handed long prison sentences. DFAT is unable to verify how many people arrested in connection to the 2017-18 protests remain in detention. At least three protesters died in custody (the authorities reported two as suicides and attributed the third to a stroke).
3.88DFAT assesses that the authorities retain an ongoing interest in those identified as having played a leading role in the 2017-18 protests. DFAT assesses those individuals meeting this profile are likely to face official discrimination, including arrest, monitoring and continuing harassment. DFAT assesses it unlikely that authorities will target ordinary participants whose motivation to demonstrate was to protest economic difficulties.
3.89On 15 November 2019, a reduction in petrol subsidies triggered large-scale protests and rioting in 100 cities and towns across 29 of Iran’s 31 provinces. According to the Interior Ministry, at least 200,000 people took part, most of whom – like in 2017-18 – were working-class. Protests and rioting were most intense in Khuzestan, Kermanshah, Kurdistan and Tehran provinces. Some protesters blocked main roads with cars and burning tyres, set fire to banks, shops and petrol stations, and chanted anti-regime slogans (the authorities also accused protesters of attacking military sites). Violent clashes occurred between police and protesters, with online footage showing police firing live ammunition and tear gas into crowds. The UN High Commissioner for Human Rights accused the security forces of using ‘severe violence’ and ‘shooting to kill’ to quell the protests. Reuters, in a special report published in December 2019, claimed 1,500 people were killed in total. The Office of the UN High Commissioner for Human Rights (OHCHR) and Amnesty International cite lower figures (around 300). The authorities acknowledged some deaths (including peaceful protesters, bystanders and members of the security forces), and claimed they had arrested 7,000 people, including individuals identified as protest leaders. The authorities claimed that most of those arrested were released. The government imposed a week-long, countrywide Internet blackout in an attempt to curtail the protests, which it attributed to hooligans, criminals and foreign elements, including the MeK. The unrest was the deadliest since the 1979 revolution. Further unrest is possible given Iran’s ongoing economic hardship.
3.90DFAT assesses that the authorities retain an ongoing interest in those identified as having played a leading role in the 2019 protests. DFAT assesses that individual meeting this profile are likely to face official discrimination, including arrest, monitoring and continuing harassment. DFAT assesses it unlikely that authorities will target ordinary participants whose motivation to demonstrate was to protest economic difficulties, although lack of due process could mean ordinary participants are wrongly charged.
3.91In January 2020, low-level protests occurred in Tehran and other cities (including Shiraz, Isfahan, Hamedan, Orumiyeh and Rasht) following Iran’s admission that it mistakenly shot down a Ukrainian civilian airliner over Tehran (176 people were on-board, all of whom died. Most were Iranian). Iran initially denied responsibility. Protesters chanted anti-government slogans and called for the resignation of the Supreme Leader over the incident and subsequent cover-up. Online footage appeared to show security forces using tear gas, rubber bullets and live ammunition to disperse protesters in Tehran. According to the judiciary, 30 people were arrested, some of whom were reportedly released.
TREATMENT OF RETURNEES[166]
[166] DFAT Report at p.69
Exit and Entry Procedures
5.22Millions of Iranians travel into and out of Iran each year without difficulty, including the large Iranian diaspora residing in North America, Europe, the United Arab Emirates and Australia. Iranian nationals must pay an exit tax each time they depart Iran, which increases with each outbound journey. Payments of exit taxes are made at the airport, as one is departing Iran. An exit permit for foreign travel is required for Iranians employed in fields considered sensitive (e.g. employees of the Iranian Atomic Energy Organisation); those studying abroad (whether on government scholarships or privately-funded); and all males aged 18-30 who are yet to complete military service (principally those who have deferred military service to undertake tertiary studies). To obtain an exit permit, one must provide proof of their status (e.g. a letter from their university confirming their enrolment) and pay a bond (the bond is retrievable on return). Iranian nationals resident in Iran who require an exit permit must obtain one each time they leave the country (multiple exit permits are not available for Iranian nationals resident in Iran). Application for, and issuance of, an exit permit, where it is required, is done electronically.
5.23In some cases, citizens require special permission to obtain a passport (see also Passports). This includes minors under the age of 18, who require the permission of their father/custodian; males who have not completed their military service, who must present authorities with their military service exemption or the written permission of the Public Military Service Department; and married women, who require their husband’s permission. Iranian citizens residing abroad who are not under the obligation of military service can apply for the issuance of a multiple exit permit through the Ministry of Foreign Affairs. They are required to provide completed forms detailing their place of residence and requesting a multiple exit permit, evidence of the completion of (or exemption from) military service, the original and photocopies of their existing passport and photocopies of pages related to their previous travel to Iran, a photocopy of their residence permit and two passport photographs. Beyond their passport and, where it is required, an exit permit, Iranians exiting Iran are not required to present any other documents.
5.24The authorities impose travel bans on some Iranian citizens. Reasons for a travel ban can include security concerns, financial debts, outstanding taxes and outstanding sentences awaiting enforcement. Citizens with ongoing charges or outstanding court matters and those released on bail or parole are subjected to travel bans. Civil and political activists may be subjected to travel bans. In some cases, individuals must obtain the permission of others to leave the country: the husbands of married women and fathers of unmarried women and underage children can request travel bans against their dependents. MOIS and the IRGC have the power to impose travel bans without recourse to the judiciary. Iranians under travel bans are often unaware of their status until they reach passport control at the airport and are turned back. The presence of security organisations in all Iranian airports, particularly those with border checkpoints, enables authorities to determine whether any Iranian citizen can leave the country by air.
5.25DFAT assesses that leaving Iran through irregular means is more likely to be achievable overland (particularly in rugged mountain areas) than via air or sea, including for registered and unregistered refugees. Under Iranian law, smuggling people into or out of Iran is a crime punishable by up to 10 years’ imprisonment. The law against people smuggling applies to all Iranian nationals, including those outside the country.
5.26Passengers undertaking domestic air travel are usually only required to present their ticket. Passengers may be asked for identification, but DFAT understands this practice is not consistent.
Conditions for Returnees
5.27Iran has a global and longstanding policy of not accepting involuntary returns. Historically, Iran has refused to issue temporary travel documents (laissez-passers) to facilitate the involuntary return of its citizens from abroad. In March 2018, Iran and Australia signed a Memorandum of Understanding on Consular Matters. This includes an agreement by Iran to facilitate the return of Iranians who arrived after March 2018 and who have exhausted all legal and administrative avenues to regularise their immigration status in Australia. A laissez-passer can be obtained from an Iranian diplomatic mission on proof of identity and nationality.
5.28The IOM runs a program to assist voluntary returnees to Iran, in cooperation with the country from which they are returning. Iranian authorities cooperate with the IOM in this regard. In cases where an Iranian diplomatic mission has issued temporary travel documents, authorities will be forewarned of the person’s imminent return. DFAT is not aware of any legislative or social barriers to voluntary returnees finding work or shelter in Iran, nor any specific barriers to prevent voluntary returnees from returning to their home region. Some countries offer failed asylum seekers financial packages to support their reintegration on return to Iran. The IOM also provides some resettlement assistance to voluntary returnees who fail to secure asylum in a third country.
5.29Authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. Those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are traveling on a laissez-passer. Questioning usually takes between 30 minutes and one hour, but may take longer where the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history on the part of the returnee. Arrest and mistreatment are not common during this process. A well-placed source was not aware of voluntary returnees being prosecuted for criticising the Islamic Republic, converting to Christianity or proselytising while abroad on their return to Iran. As far as DFAT is aware, the authorities do not check the social media accounts of Iranians returning from abroad.
5.30International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government (heavy Internet filtering means most Iranians will never see them), protesting outside an Iranian diplomatic mission, converting to Christianity or engaging in LGBTI activities. In such cases, the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists. The treatment of returnees, including failed asylum seekers, depends on the returnees’ profile before departing Iran and their actions on return. According to local sources, the greatest challenge facing failed asylum seekers on return is reintegrating economically and finding meaningful employment.
5.31DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. 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.
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.
…
36Protection 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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