1910936 (Refugee) - [2023] AATA 1233

1910936 (Refugee) [2023] AATA 1233 (21 February 2023)

CORRIGENDUM

DIVISION:Migration & Refugee Division
CASE NUMBER:  1910936
COUNTRY OF REFERENCE:                   Iran
MEMBER:Jason Pennell
DATE OF DECISION:  21 February 2023
DATE CORRIGENDUM
SIGNED:12 April 2023
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:
-At paragraph [23], the final sentence, which currently reads:
‘For the following reasons, the Tribunal has concluded that the decision not to grant the applicant a protection visa should be affirmed.’
should be removed and replaced by the following sentence:
‘For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration with the directions that the first named applicant satisfies 36(2)(a) of the Act; and that the other applicants satisfy s 36(2)(b)(i) of the Act, on the basis of membership of the same family unit as the first named applicant.’

Jason Pennell
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:1910936

COUNTRY OF REFERENCE: Iran
MEMBER:Jason Pennell
DATE:21 February 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 21 February 2023 at 3.05pm

CATCHWORDS

REFUGEE – protection visa – Iran – Federal Circuit Court remittal – political opinion – religion – Mohebban Fatemah organisation – particular social group – returning asylum seeker – concept of velayat-e faqih – fear of detention – fear of killing – objection to military service – mental health issues – arrest warrant and court summons – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2; rr 1.05, 1.12

CASES

Appellant S395/2002 v MIMA (2003) 216 CLR 473
Applicant A v MIEA (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
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
Liu v MIMA [2001] FCA 257
MIAC v SZQRB [2013] FCAFC 33
MIMA v Darboy [1998] FCA 931
MIMA v Y [1998] FCA 515
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
MZZIA v MIBP [2014] FCCA 717
Nagalingam v MILGEA (1992) 38 FCR 191
Pei Lan He v MIMA [2001] FCA 446
Prasad v MIEA (1985) 6 FCR 155
Saliba v MIMA (1998) 89 FCR 38
Savvin v MIMA [1999] FCA 1265
SZSPT v MIBP [2014] FCA 1245
VCAD v MIMIA [2004] FCA 1005
Wang v MIMA (2000) 105 FCR 548
WZAOO v MIAC (2012) 134 332

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s 65 of the Migration Act 1958 (the Act).
[Name] (‘the applicant’) and [name] (‘the second applicant’) claim to be citizens of Iran. They both applied for a protection visa on 9 December 2013. [Name] (‘the dependant applicant ‘) claims to be a family member of the applicant and the second applicant and makes no claims of her own. On August 2015, the delegate refused to grant the applicant and the second applicant protections visas on the basis that the applicant and the second applicant are not people in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa).
The applicant and the second applicant lodged an application for review of the delegate’s decision to the Administrative Appeals Tribunal on 12 August 2015 and provided the Tribunal with a copy of the delegate’s decision.
The First Tribunal (differently constituted) affirmed the delegate’s decision on 13 October 2017 on the basis that the applicant is not person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa).
The applicant lodged an application for judicial review to the Federal Circuit Court of Australia (FCCA) [in] November 2017. [In] April 2019 the FCCA ordered by consent that the matter be remitted to the Tribunal for reconsideration. The Minister for Immigration and Broder Protection conceded that the First Tribunal was affected by jurisdictional error on the basis that the Tribunal failed to consider the second applicant’s claim to fear harm as an apostate.[1]
[1] Order of the Federal Circuit Court of Australia; AAT file No:1910936, Doc ID no.: 5600391
The applicant, second applicant the dependant applicant all appeared before the Tribunal on 13 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted by videoconference facilitated by the Microsoft Teams application with the assistance of an interpreter in the Farsi/Persian and English languages.

RELEVANT LAW

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

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).
Australia is a party to the Refugees Convention and 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.’
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
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.
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, to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
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

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’).
‘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.
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

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.

Member of the same family unit

Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse or de-facto partner of the applicant and/or a child or stepchild of the applicant.[2]
[2] Migration Regulations 1994, Regulation 1.12(2)

APPLICANT’S Claims and evidence

The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision not to grant the applicant a protection visa should be affirmed.

Identity and Country Reference

The applicant is [an age]-year-old male born on [date], the second applicant is the [age]-year-old son of the primary applicant, born on [date] and the dependent applicant is [an age]-year-old female born on [date]. All the applicants were born in Mashhad, Iran.

The applicants provided a copy of their Iranian passports (including their biodata pages) to the Department.[3] The second applicant and the dependant applicant claimed that they lost their passports and were issued new passports by the Embassy of Iran in Australia in 2008.[4] Based on the documentation provided by the applicants to the Department the Tribunal finds that the applicants are citizens of Iran. There is no evidence to suggest that the applicants have a right to enter and/or reside, whether temporarily or permanently, in any other country. As such, the applicants’ protection claims will be assessed against Iran as the country of reference and ‘receiving country’ respectively.

Applicants’ Migration History
[3] Protection (Class XA) Visa Decision Record dated 4 August 215; AAT file 1910936 Doc ID: 8681626; Dept file [number], ff: 33-80
[4] Ibid, Dept file [number], ff: 81-102

The applicants arrived in Australia [in] July 2005 on a [temporary] visa and have not departed since. The applicant applied for protection on 7 September 2006 with the second and dependent applicants included in his application as dependents. The Refugee Review Tribunal (‘RRT’) affirmed the delegate’s decision to refuse to grant the applicants’ visa on 12 April 2007 and the applicant appealed to the Federal Magistrates Court, but the applicants withdrew the application [in] May 2007.[5]
[5] Protection (Class XA) Visa Decision Record dated 4 August 215; AAT file 1910936 Doc ID: 8681626.
Prior to arriving in Australia in 2005, the first applicant and dependant applicant travelled to Australia in 1991 for a period of 12 months and in the period between 1995 and 2003 all the applicants travelled to Australia and stayed for a total of 18 months on [temporary] visas.[6]
[6] ibid
The applicants have held several Bridging visas and made several unsuccessful requests for ministerial intervention before making an application for protection on 9 December 2013 following the introduction of the Migration Amendment (Complementary Protection) Act 2011.[7]

Claims for protection

[7] ibid

The primary applicant first submitted claims for protection when he applied to the Department for protection on 10 December 2013[8].
[8] Protection visa application form, Dept file [number], ff: 10-18
The applicant’s claims are as follows:
Why did you leave that country (or countries)?
‘I travelled to Australia with my partner, [the dependant applicant], in July 2005 to participate in [a specified] programme. [Details deleted.]
Did you experience harm in that country (or countries)?
‘No’
What do you fear will happen to you if you go back to that country?
‘By returning or being returned to Iran, I fear that I will be arrested and initially held in custody and subjected to physical and psychological mistreatment and eventually put on trial with a very real likelihood of execution. For further details please refer to the statutory declaration that I will lodge in support of this application within 6 weeks of the lodgement of the application’
Who do you think will harm/mistreat you if you go back?
‘The government of Iran and its officers and agents, in particular, the Basiji and the police (the Basiji are revolutionary guard militias who rank higher than the police). For further details please refer to the statutory declaration that I will lodge in support of this application.’
Why do you think this will happen if you go back?
‘I fear that I will be detained on arrival at the airport once back in Iran and that subsequently I will be imprisoned and tortured by the Basiji (being the militias that support the Iranian government) and/or the police because of my past involvement with the Mohebban Fatemah organsation in Mashhad, Iran and my having lived in Australia for the last eight (8) years.
Do you think the authorities of that country will protect you if you go back?
‘No. The authorities in Iran are the ones that are likely to cause me significant harm if I return or am returned to Iran. For further details please refer to the statutory declaration that I will lodge in support of this application’
The delegate summarised the applicant’s claims as[9]:
[9]    Delegate’s decision, Tribunal Doc ID no.: 8681626
·The applicant was a member and leader of a religious and social welfare group, the Bani Fatemah (Sons of Fatemah). He first joined at the age of [age]. He eventually became [Position 1] of the organisation
·     Following the Islamic revolution, the Bani Fatemah supported the new regime. Some in the organisation objected to the new regime and the applicant and three of his fellow board members founded the breakaway Mouhebban Fatemah (Lovers of Fatemah). The applicant remained as the [Position 1] of the new organisation
·     The Mouhebban Fatemah operated from 1979 without adverse action by the authorities. After his arrival here in 2005 the applicant was informed that the authorities had moved against the Mouhebban Fatemah. The organisation was repressed and of [several] board members one was executed, [others] were imprisoned and [others] were missing
·     The applicant fears persecution because of his involvement in the Mouhebban Fatemah
·     He is the subject of an outstanding court summons and arrest warrant
·     He is the father of a son who has been educated in a western country, and who has not completed his obligatory military service and is unwilling to do so
·     The Iranian authorities are aware that he began but did not complete an application for a replacement Iranian passport in Australia. It is likely the Iranian authorities will know or assume that he has sought asylum in Australia
·     He will be imputed with an anti-government opinion. He also holds an anti-government opinion
·     For any combination of the risk factors above he will be arrested on arrival, interrogated, tortured, imprisoned, and may be executed

In addition, the secondary applicant, made the following claims for protection.[10]
Why did you leave that country (or countries)?
‘When I left Iran with my parents in July 2005, I was [age] years old. They were travelling to Australia to participate in [a specified program]
Did you experience harm in that country (or countries)?
‘No’
What do you fear will happen to you if you go back to that country?
‘As both a returnee who has lived in Australia for the last eight (8) years and for all his formative years as a teenager and as a young man and also as the son of a person who is likely to be arrested, tried and possible executed if he returns to Iran or is returned to Iran, I fear that the Iranian authorities will target me and subject me to, among other things, cruel or inhuman or degrading treatment or punishment. For further details, for further details, please refer to the statutory declaration that I will lodge in support of this application’
Who do you think will harm/mistreat you if you go back?
‘The government of Iran through its officers and agents and, in particular, the Basiji who are the infamous militias who act in support of the government of Iran’
[10] Secondary applicant’s protection visa application form, Dept file [number], ff: 21-28
Why do you think this will happen if you go back?
‘I am the son of a person whom the Iranian authorities view as a dissident and who is likely to be subject to arrest, trial and possible execution should he be returned to Iran. As such a person, am likely to be targeted, harassed, punished and/or treated in a cruel and inhuman or degrading manner by the Iranian authorities if I am returned to Iran.
In addition, I have lived in Australia since I was [age] years of age and over the last eight (8) years since my arrival in Australia in July 2005, my development as a teenager and as a young man has been exclusively in accordance with Australian outlooks and values. If I was returned to Iran, in addition to the mistreatment that Iran normally dispenses to returnee Iranian nationals who are asylum seekers elsewhere, I would be targeted for cruel and/or degrading treatment because I have grown up so differently to the average Iranian young man having being exposed to a view of the world that the Iranian authorities would find so threatening
For further details, for further details, please refer to the statutory declaration that I will lodge in support of this application’
Do you think the authorities of that country will protect you if you go back?
‘No. It is the government of Iran, its officers and agents that I fear, particularly the Basiji (the government-backed militias)’
The delegate summarised the second applicant’s claims as[11]:
[11] Delegate’s decision, Tribunal Doc ID no.: 8681626
·He has been educated in Australia since the age of [age] and holds a strong political opinion opposing the Iranian regime
·     He is the son of a father who was involved in the Mouhebban Fatemah
·     He is the son of a father who has an outstanding court summons and arrest warrant
·     He has lived in a western country for 10 years and has been educated in a western country. This will attract the adverse interest of the authorities
·     He drinks alcohol, occasionally gambles, and his wife does not wear the hijab. The authorities will view him as an apostate
·     He has not completed his obligatory military service and is unwilling to do so. He does not believe in violence and military service is against his personal beliefs
·     For any combination of the risk factors above he will be arrested on arrival, interrogated and tortured
·     His political and religious views will make it difficult for him to live in Iranian society (his views on religion form part of his political views). Arguments are inevitable. He will have trouble finding employment
·     If he is not detained on arrival, he will be at risk from the Basij. His political opinion and western upbringing will make him stand out from the general populace. He will be at risk of detention and torture

The Applicants’ evidence

The applicants claim to be of the Persian ethnic group and state their religion as Shia Muslim.
The applicant’s evidence was that he was born on [date] in Mashhad, Iran. The dependant applicant, [named], was born on [date] Mashhad, Iran. The applicant and the dependent applicant were married in Mashhad, Iran 1984.[12] During the hearing neither the applicant nor the dependant applicant could remember the date on which they were married. The second applicant is the applicant’s and dependant’s applicant’s son. The second applicant was born on [date] in Mashhad, Iran.
[12] Applicant statutory declaration dated 18 October 2006.
The applicant and the second applicant claim they can speak, read, and write in Farsi and English.[13]
[13] Protection visa application form, Dept file [number], ff: 4-18.
The applicant’s evidence to the Tribunal was that he originally had [specified siblings] in Iran. However, [one sibling] passed away. The applicant’s remaining [14][siblings (names and ages provided)][15] continue to live in Iran.
[14] Protection visa application form, Dept File [number], ff: 4-18.
[15] Ibid.
The applicant claims he attended school in Mashhad, Iran. He claims he attended [a named] School for six years ([between specified years]) from the age of [age] years and then night school in Mashhad for a further six years.[16]
[16] Protection visa application form, Dept File [number], f: 16.
The second applicant arrived in Australia when he was [age] years of age. He attended [School 1] and complete school in [year]. He has not attended University or College. The second applicant was married in 2014 but divorced in 2019. He has not been able to work due to the restriction on his bridging visa. The second applicant, amongst other matters, claims that he has been westernised and as a result will subjected to serious or significant harm if he is returned to Iran.
The applicant evidence was that from [specified year] until his departure from Iran to Australia in 2005 he owned and operated a wholesale [product 1] business which was engaged in [preparing] and packaging [product 1] for sale to retail outlets. The applicant’s evidence was that he operated the wholesale business from three premises. In addition, he claims to have owned and operated a storehouse where the [product 1] were stored and a retail shop. The applicant evidence to the Tribunal was that he inherited the business from his father and that one of his brothers also worked in the business. The applicant claims that the business was forced to shut down due to the business premises being compulsory [acquired].
Prior to leaving Iran the applicant and the dependant applicant had previously travelled to [named countries] for religious pilgrimages and Australia several times to [participate in a program].[17]
[17] ibid.
The applicant claims that he was a [member] of the Moheddan Fatemeh Group (‘MFG’), a Shia religious and social group founded in Mashhad Iran. The applicant claims to have joined the MFG in or about [year]. His evidence was that it was originally known as the Bani Fatemeh Group (‘BFG’). The applicant’s evidence was that in or about 1978, at the time of the revolution the BFG divided into two different sects. About half the members remined with the BFG and took a fundamentalist path in line with the revolutionary government. The remaining members changed the name of the group to MFG.[18] The applicant joined the MFG because he did not support the revolutionary government and the supreme leadership
[18] Applicants Statutory Declaration dated 18 October 2006 @ [3]-[4].
The applicant’s evidence was that the purpose of the MFG was to follow Fatemeh, the daughter of the Prophet Mohammed. The applicant claims that the MFG members strictly followed the Koran and Islamic rituals. He claims that as Shia Muslims, the members of the MFG believe that the supreme leadership of Muslims belongs to the Twelve Iman or Lord of the Age (‘the Promised One’) when he returns.[19] The applicant claims that he was [Position 1] of the BFG until about 6 months after the revolution. He then became [Position 1] of the MFG which had between 300 and 400 members. As [Position 1] the applicant coordinated meetings conducted for the Shia Muslim holy day and raised funds to be distributed to poor Shia Muslims.[20] The applicant’s evidence was that between 1978 and 2004, the MFG and the BFG operated without any significant issues.
[19] ibid
[20] Applicants Statutory Declaration dated 18 October 2006 @ [7].
However, the applicant claims[21] that since the election of the President in or about late 2004, the MFG was forced to operate in a clandestine manner due to its opposition to the to the supreme leadership or cleric guardianship. The applicant claims that the BFG began to threaten to report the leadership of the MFG to the government and/or security agencies trying to coerce them into joining the BFG and supporting the supreme leadership.[22] As a result the MFG was forced to conduct its activities in a clandestine manner.[23]
[21] Applicants Statutory Declaration dated 18 October 2006 @ [10].
[22] ibid
[23] ibid
Nevertheless, the applicant evidence was that when he was in Iran, he did not believe his life was in danger. His evidence was that he came to Australia for the [specified program]. The applicant had previously travelled to Australia on four occasions with his wife and son for [this program]. It is only since he has been in Australia that the situation has become dangerous making it impossible for him to return to Iran. The applicant evidence was that his son, the second applicant, also attended a meeting of the MFG from 2002 to about 2006.[24]
[24] Applicants Statutory Declaration dated 18 October 2006 @ [21].
The applicant claims his property and family remain in Iran, but he cannot return because following the election of President Mahomoud Ahmadinejad, members of the MFG have been in danger, making it much worse for the applicant and his family.[25] The applicant claims that the leadership of the MFG have been targeted, persecuted, executed and imprisoned by the Iran government due to the MFG’s antigovernment stance. The applicant’s evidence was that two of the MFG leadership group were executed ([names provided]) and another imprisoned ([named]).[26] The applicant claims that the remaining leaders ([names provided]), other than himself, have either disappeared or are in hiding.[27] The applicant claims that he will be arrested if he is returned to Iran. He produced to the Tribunal a copy of an arrest warrant and court summons as evidence of the authorities wanting to arrest him because of his activities and duties with the MFG.[28] were
[25] Applicants Statutory Declaration dated 18 October 2006 @ [13].
[26] Applicants Statutory Declaration dated 18 October 2006 @ [16].
[27] ibid
[28] Applicants Statutory Declaration dated 5 April 2015 @ [14].

As a result, the applicant fears that as a member of the MFG leadership he will be arrested and executed ot tortured or made to disappear by the authorities if he is returned to Iran.
The second applicant claims that he will be imputed with a political opinion of being against the Iranian government due to him being ‘westernised’ and because of the applicant’s and his own involvement in the MFG.

Supporting documentation

The applicant has provided the following material to the Department:
(a)Copy of two expired Iranian passports of [the applicant], which expired [in] 2007 and [1997][29]
[29] Dept file [number], f. 53 & 78
(b)Copy of the biodata page of Iranian passport of [the second applicant], which expired [in] 2011[30]
[30] Dept file [number], f. 81
(c)Copy of the biodata page of Iranian passport of [the dependant applicant], which expired [in] 2011[31]
[31] Dept file [number], f. 101.
(d)Statutory declaration made by the applicant on 5 April 2015 in support of claims for protection[32]
(e)Statutory declaration made by the second applicant declared on 5 April 2015 in support of claims for protection[33]
(f)Decision record of a decision handed down by the RRT [in] 2007 (Member [name] presiding) of Case [number][34]
(g)Decision record of a decision made by the delegate of the Minister for Immigration for an application for protection made on 7 September 2006[35]
(h)Statutory declaration made by the applicant declared on 18 October 2006 containing protection claims[36]
(i)Statutory declaration made by the spouse of the second applicant, [Wife A], declared on 8 December 2014 in support of the second applicant’s application for work rights[37]
(j)Psychiatry report made by [Doctor A] dated 27 February 2015 pertaining to the applicant’s mental health[38]
(k)Certificate of marriage between [the second applicant] and [Wife A] [in] January 2014[39]
(l)Birth certificate of the spouse of the secondary applicant, [Wife A][40]
(m)Written submission made by the applicants’ former representative, James Wardlaw of the Asylum Seeker Resource Centre, dated 11 March 2015[41]
[32] Dept file [number], ff. 106-108.
[33] ibid, ff. 109-111.
[34] ibid ff. 112-136.
[35] ibid, ff: 137-141.
[36] Dept file [number], ff: 142-143.
[37] Dept file [number], ff: 148.
[38] Dept file [number], f. 152.
[39] ibid, f. 153.
[40] ibid, f. 154.
[41] ibid, ff. 155-8.
The applicant submitted to the First Tribunal in support of his application for review copies of original and translated versions of summons and arrest warrant issued for [the applicant].[42] The applicant has not submitted any evidence to the current Tribunal in support of the application for review.
[42] AAT file 1510996, Doc ID No:3606383.

COUNTRY INFORMATION

In accordance with Ministerial Direction No.84 of 24 June 2019 under s 499 of the Act, the Tribunal also had regard to the country information assessments prepared by DFAT. The Tribunal has referred to the current DFAT report on Iran dated 14 April 2020 (the DFAT Report),[43] in particular, those parts of the DFAT Report as detailed in Annexure A to these Reasons.
[43] DFAT Report on Iran, 14 April 2020

ASSESSMENT OF CLAIMS AND FINDINGS
Credibility

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.
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 of 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.[44] Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant.[45]
[44] Section 5AAA of the Act
[45] MIEA v Guo (1997) 191 CLR 559 at [596], Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 @ [169–70]
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[46] Care must be taken not to exclude from consideration the totality of some evidence where a portion of it could reasonably have been accepted.
[46] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J @ p.482
If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[47] 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.
[47] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 @ [196]
The Tribunal is aware that vulnerable asylum seekers will have difficulties in providing documents or expressing their fears.

The applicant’s ability to give evidence.

The applicant’s evidence before the Tribunal was generally vague and lacking in detail. He stated to the Tribunal that due to his age and the passage of time he was prone to forgetfulness and that he was not able to recall all the details relevant to his claim. The applicant provided a letter dated 27 February 2015 from [Doctor A] (‘the report”)[48] in relation to the applicant’s mental health condition. The report is based on one interview and consideration of a psychiatry report dated February 2007 and a psychology report dated December 2008.[49] The report notes that the applicant’s long-term memory and language was preserved and he spoke fluently and articulately during his interview. The report noted that while the applicant had not been formally tested, he did not evidence any impairment of higher cortical/executive /frontal lobe function.[50] The applicant was judged to be of average intelligence with his insight and judgement being well preserved. The report stated that the applicant did not appear to be suffering from Senile dementia of the Alzheimer type and that it was the opinion of the author that his ongoing predicament (i.e. in relation to his immigration status) contributed to his disturbed mental state and daily function. The report concludes that the applicant’s current predicament concerning his application for protection has contributed to his mental state resulting in impaired attention, concentration and working memory.[51] The applicant did not provide the Tribunal with any further updated report in relation to his mental health.
[48] Letter by [Doctor A] dated 27 February 2015.
[49] Protection (Class XA) Visa Decision Record @ p.6 dated 4 August 2015; [file number].
[50] Letter by [Doctor A] dated 27 February 2015.
[51] ibid
The Tribunal accepts that any inconsistencies or lack of detail may be because of his advanced years and his mental state caused by the stress and uncertainty of the protection visa application. However, the Tribunal notes that notes that the applicant was lucid and coherent throughout the hearing. At all relevant times, the applicant was able to communicate effectively with the Tribunal member and the interpreter provided at the hearing. The applicant presented his evidence to the Tribunal in a lucid, articulate and comprehensive manner. As such, the Tribunal was satisfied that the applicant was able to give evidence and present submissions in support of his claims for protection.

Accepted facts

Based on the evidence of the applicants the Tribunal accepts and finds that:
(a)the applicants are Persian and Shia Muslim.
(b)the applicant and the second applicant speak, read, and write in Farsi and English.[52]
(c)the applicant was born on [date] in Mashhad, Iran.
(d)the dependant applicant was born on [date] Mashhad, Iran.
(e)the applicant and the dependent applicant were married in Mashhad, Iran 1984.[53]
(f)the second applicant is the applicant’s and dependant applicant’s son and was born on [date] in Mashhad, Iran.
(g)the applicant had [specified siblings] in Iran, but [one] passed away. The applicant’s remaining siblings continue to live in Iran.
(h)the applicant attended school in Mashhad, Iran and then night school in Mashhad.[54]
(i)the applicant owned and operated a wholesale [product 1] business in Iran.[55]
(j)the second applicant arrived in Australia when he was [age] years of age and was educated at [School 1]. He completed school in [year] and did not attend University or College.
(k)The second applicant was married in 2014 and divorced in 2019.
[52] Protection visa application form, Dept file [number], ff: 4-18.
[53] Applicant statutory declaration dated 18 October 2006.
[54] Protection visa application form, Dept File [number], f: 16.
[55] The applicant stated that it was 1385-1387 in the Iranian Calendar

Applicant’s claim as a refugee
A past fear of persecution is not sufficient

A past fear may be a relevant consideration in determining if the applicant has a well-founded fear of persecution. However, the approach applicable under Article 1 of the Convention is whether the applicant is outside his country owing to a present, well-founded fear of persecution for a reason that falls within the scope of Article 1A(2) of the Convention and he is unable or unwilling, due to the present and well-founded fear, to avail himself of the protection of that country.[56]

Applicant’s religion

[56] Savvin v MIMA [1999] FCA 1265 (Dowsett J, 13 September 1999) at [61] – [62], referring to Chan v MIEA (1989) 169 CLR 379, s 5H of the Act

The applicant claims to have a well-founded fear of persecution within the scope of the Convention by reason of his religion as a Shia Muslim and [member] and leader of MFG. The applicant claims that members of the MFG follow Fatemeh, the daughter of the Prophet Mohammed. He claims that as Shia Muslims MFG members strictly followed the Koran and Islamic rituals and believe that the supreme leadership of Muslims belongs to the Twelve Iman or Lord of the Age (‘the Promised One’) when he returns.
The scope of ‘religion’ within the context of the Convention was considered in MIMA v Darboy[57] 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.
[57] [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) @ [19] – [22])
The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status provides an overview of the scope of ‘religion’[58] 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.’
[58] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [71] – [73] >
The 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.[59] 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.[60] 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.[61]
[59] WZAOO v MIAC (2012) 134 332 @ [12], citing W161/01A v MIMA [2002] FCA 285. (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)
[60] See VCAD v MIMIA [2004] FCA 1005 (Kenny J, 4 August 2004) @ [35].
[61] Pei Lan He v MIMA [2001] FCA 446 (Ryan J, 23 April 2001)
In this case, the applicant claims that he is a Shia Muslim who believes that the religious concept of velayat-e-faqih (guidance of the jurist) or the ‘supreme leader’ is contrary to the Quran. He claims that the essential and significant reason for him being persecuted by the authorities upon his return to Iran is because as a leader of the MFG he will be identified Shia Muslim who is opposed to the government due to his belief that the religious concept of velayat-e-faqih is contrary to the Quran. Based on the applicant’s evidence to the Tribunal, it accepts that the applicant’s claim falls within the Convention definition of refugee for reason of his religion.

Applicant and Second applicant’s political opinion.

The applicant and second applicant claim to have a well-founded fear of persecution within the scope of the Convention by reason of their membership of the MFG. The applicant’s evidence was that the MFG was opposed to the ‘hard-line revolutionary government’[62] and was opposed to the supreme leadership and cleric guardianship imposed by the government. The applicant and the second applicant claimed that they are people who have a well-founded fear of persecution if they are returned to Iran, pursuant to Article 1A(2) of the Convention, as a result of his pollical opinion. The applicant claimed that as a leader of the MFG he would be seen as a person who was opposed to the government. The second applicant claimed that because his father was a leader of the MFG and having attended meetings of the MFG he would be imputed with the political opinion of the MFG and his father. That is, holding views that are against the government of Iran.
[62] Applicant statutory declaration dated 18 October 2006 @ [6]

For the purposes of the Convention 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.[63] 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.[64]
[63] MIEA v Guo (1997) 191 CLR 559 @ [571] referring to Chan v MIEA (1989) 169 CLR 379 @ [416], [433]
[64] Saliba v MIMA (1998) 89 FCR 38 @ [49]
The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (the UNHCR Handbook) provides[65] 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. Nevertheless, it may be reasonable to assume that an applicant’s opinion will, sooner or later, come into conflict with the authorities. Where this can reasonably be assumed, the applicant can be considered to have a fear of persecution for reasons of political opinion.
[65] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [80] – [86]; Chan v MIEA (1989) 169 CLR 379 @ [392]
The UNHCR Handbook provides that in determining whether an applicant can be considered a refugee due to their political opinion, regard should also be had to the applicant’s personality, political opinion, the motive behind the act, the nature of the act committed, the nature of the prosecution and its motives and the nature of the law on which the prosecution is based. These elements may go to show that an applicant has a fear of persecution and not merely a fear of prosecution and punishment for a particular act.[66]
[66] UNHCR Handbook at [80] – [86]; Welivita v MIEA (Federal Court of Australia, Lindgren J, 18 November 1996).
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’.[67] 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.’[68]
[67] MIMA v Y [1998] FCA 515 @ [4] and [5].
[68] ibid
In C v MIMA,[69] Wilcox J found that the term ‘political opinion’ was broader than adherence to a political party or support for its policies.[70] 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.[71]
[69] C v MIMA (1999) 94 FCR 366.
[70] Ibid @ [375].
[71] Ibid @ [373]. In support of this point the Court cited the Canadian Supreme Court decision of Attorney-General of Canada v Ward (1993) 103 DLR (4^th) 1. See also Devarajan v MIMA [1999] FCA 796 @ [26].
In this case, the applicants claim that they fall within the Convention’s definition of refugee as members of the MFG and holding antigovernment views. Based on the country information which describes Iran as a ‘theocratic republic’[72] and the applicant’s evidence in relation to the beliefs and opinions held by members of MFG, the Tribunal accepts the claim of the applicant, and second applicant does fall within the Convention definition of refugee by reason of their political opinion.

Applicant as a member of a PSG

[72] DFAT Report @ p.18.

In addition, the applicant and second applicant submit that their claims fall within the scope of s 91R(1)(a) of the Act by reason of them being a member of a particular social group (PSG). The applicant and second applicant claim to be a member of a PSG as a leader and member of the MFG. In addition, the second applicant claims he is a member of a PSG as a failed asylum seeker who has lived and been educated in a western country.
To be considered as part of a particular social group, it is necessary for the applicant to share, or be perceived to share, a characteristic with each member of the group. The characteristic must distinguish the group from the rest of society and must be innate or immutable or so fundamental to the identity or conscience of the members of the group that a member should not be forced to renounce it.[73]
[73] Section 5L of the Act.
In this case, based on the applicant’s evidence the Tribunal accepts that the applicant and the second applicant as a member of the MFG would constitute a characteristic that may be considered so fundamental to their identity or conscience that they would distinguish each of them and the group from society at large so that it would make them members of a PSG. On the other hand, the Tribunal has some reservations the second applicant as a returnee from a western country would constitute a characteristic that is fundamental to his identity or conscience. Nevertheless, for the purposes of this decision, the Tribunal is prepared to accept that the second applicant is a member of a PSG as a returnee from a western country pursuant to s 91R(1)(a) of the Act.

The applicant’s well-founded fear

Article 1A(2) of the Convention requires that a refugee must have a ‘well-founded fear’ of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. In Chan v MIEA[74] the Court held that when considering ‘well-founded fear’ for the purposes of the Convention, it 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 based on a Convention reason. Justice Dawson 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.[75]
[74] (1989) 169 CLR 379 at [396]
[75] Ibid. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at [263] per Brennan CJ, Toohey, McHugh and Gummow JJ
The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. 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:
“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. [76]
[76] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397

In MIEA v Guo, the Court stated that:
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.^[77]
[77] MIEA v Guo (1997) 191 CLR 559 @ [572]; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at [293]
In this case, the applicant and second applicant claim that if they are returned to Iran there is a real chance, they will be seriously harmed by the authorities due to their religion or political opinion as members of the MFG. For the reasons detailed below, the Tribunal accepts that the applicant has a well-founded fear of persecution, on an objective basis, if he is returned to Iran.

The Applicants membership of MFG.

The applicant and the second applicant claim that if they are returned to Iran, they will suffer serious harm because of their religion and membership of the MFG. The applicant claims that he was part a member of the MFG leadership team as [Position 1].
The applicant evidence was that he initially joined the BFG in or about [year]. The applicant claims that the BFG is a religious organisation and community group that conducts meetings and engages in charitable work. At the time of the Iranian revolution a member of the BFG who did not support the new regime split away from the BFG to form the MFG. The applicant claims that he was a [member] of the MFG and eventually [Position 1] of the group. The MFG operated in a similar manner to the BFG (i.e.as a religious organisation and community group) save for the fact that it did not support the religious concept of velayat-e-faqih (guardianship of the Islamic jurist)[78] or the ‘supreme leader’ imposed by the new regime. As a result, the MFG questioned the political and religious legitimacy of the Ayatollah as the supreme leader. As a member and part of the leadership of the MFG the applicant opposed the religious concept of velayat-e-faqih as such the Iranian regime.
[78] Tony Blair Institute for Global Change, ‘What is Velayat-e Faqih?’ 20 March 2019 Kasra Aarabi http:/institute.global/policy/what-velayat-e-faqih
The country information[79] reports that the concept of velayat-e faqih is a system of government by which all political and religious authority is transferred to the Shia clergy and by which all key decisions of the state are subject to approval by a supreme clerical leader, the vali-e faqih (known as the guardian Islamic jurist). The supreme clerical leader (the faqih) provides guardianship (velayat) over the nation and, in doing so, ensures the top-down Islamisation of the state.
[79] ibid
As part of Shia Islam velayat-e faqih was traditionally applied to justify limited clerical guardianship over a small section of the population who were vulnerable and unable to protect their own interests (for example widows, orphans and the disabled).[80] However, in the 1970’s a new interpretation of the doctrine was formulated by cleric Ayatollah Ruhollah Khomeini that includes the transfer of all political power of the Iranian state to the Shia ulema, or clergy.[81]
[80] ibid
[81] ibid
This new interpretation of velayat-e faqih is grounded in the belief that as the Twelfth Imam’s deputy, the supreme leader should hold absolute and exclusive authority over the state’s affairs. As a result, in 1989 (after Khomeini’s death) amendments were made to the Iran constitution that expanded the scope of the supreme leader’s powers, making his authority and power absolute.[82] The transition to absolute velayat-e faqih was deemed necessary by Khomeini in order to preserve the regime.[83] The 1989 amendments also removed any constitutional requirement for the supreme leader to be a recognised marja-e taghlid (‘the most senior rank in the Shia clergy) allowing the mid-ranked cleric Khamenei to assume the role.
[82] ibid
[83] ibid
The concept of absolute velayat-e faqih has underpinned Iran’s system of government since the 1979 Islamic Revolution.[84] Under this system, the supreme leader’s mandate to rule over the population derives from God. Given such a divine mandate, elections and popular participation are of little relevance, as electoral outcomes depend on the supreme leader’s approval.[85] Neither state officials nor the public have a say over the conduct of the supreme leader, and opposition to him is deemed to be disobedience to God. As the Hidden Imam’s deputy, the supreme leader inherits the infallibility of the 12 divinely ordained Shia imams. The public also has no say over the supreme leader’s appointment or dismissal, which are perceived as divinely acts.[86]
[84] ibid
[85] ibid
[86] ibid
It’s reported that this new interpretation of velayat-e faqih marked a significant departure from traditional Shia custom and practice. Historically, the Shia clergy had exercised political restraint since the disappearance of the Twelfth Imam, largely due to the belief that there could be no legitimate Islamic government during the occultation of the Twelfth Imam. While the concept of velayat-e faqih has existed for centuries, it was traditionally intended to allow limited clerical guardianship over the weak and vulnerable within the community.
The Tribunal conducted a web search for BFG and MFG but was not able to find any reference to either organization. Nevertheless, the applicant claims that he was a member of each group, and the circumstances of their split has been consistent both before the Department and the Tribunal. As such, based on the evidence of the applicant and the second applicant, the Tribunal accepts that the applicant was a member of BFG and MFG as claimed. In addition, the Tribunal accepts that the applicant, as a Shia Muslim and leader of the MFG is opposed to the the religious concept of velayat-e-faqih as imposed by the current Iranian government.
The applicant’s evidence was that between 1978 and 2004, the MFG and the BFG operated without any significant issues. Nevertheless, the applicant claimed that the MFG was forced to operate in a clandestine manner due to its opposition to the to the supreme leadership or cleric guardianship. [87] His evidence was that members of the BFG had threatened to report the leadership of the MFG to the government and/or security agencies to have them join the BFG and support the supreme leadership.[88]
[87] ibid.
[88] ibid.
The applicant travelled to Australia with his wife and son for the purposes of [the specified program]. The applicant’s evidence was that although he was religiously opposed to the system of government in Iran, he did not believe at that time his life was in danger. He claims that while he was in Australia, he was informed by his sister that the MFG leaders were targeted by the Iran government due to the MFG’s antigovernment stance. The applicant’s evidence was that two members of the MFG leadership group were executed ([names provided]) and another imprisoned ([named]).[89] The applicant claims that the remaining leaders ([names provided]) have either disappeared or are in hiding.[90] The applicant’s evidence was that he tried to call one or two of his former colleagues but was not able to reach them. He claims he did not make any further efforts to friends or family in Iran out of fear that their conversations would be recorded. The applicant claims that he will be arrested if he is returned to Iran.
[89] Applicants Statutory Declaration dated 18 October 2006 @ [16].
[90] ibid.

The applicant provided a copy of an arrest warrant and court summons as evidence of the authorities wanting to arrest him because of his activities and duties with the MFG.[91] The documents are dated [in] October 2010, approximately five years after the applicant arrival in Australia. In addition, the charges do not appear to have any legal basis being described as ‘Religious domain and action against velayat-e-faqih’. Given the amendments to the Iranian constitution 1989, enshrining the velayat-e-faqih’ the Tribunal would have expected that any charges bought by summons against the applicant would have been drafted as an action against the state rather than in religious terms. The country information reports[92] that although document fraud in Iran is ‘extremely difficult’ for primary forms of documentation like passports, national identity cards and driver’s licences, it is relatively easy to obtain fraudulent paper-based documents, including court documents, summonses, bank letters, real estate documents and tertiary certificates. The applicant gave very little evidence in relation to the documents to the Tribunal. His evidence to the Department[93] was that the summons and the warrant were sent to his mother’s house, which was leased. As a result, his sister was given the documents by the tenant of the property. The applicant’s sister faxed the documents to the applicant and then destroyed the originals because it she considered it unsafe for her to possess them. It was not clear to the Tribunal why the documents were sent to the applicant’s mothers’ home and not his own home. Nevertheless, in circumstances where the summons is dated five years after his arrival in Australia and the charges appear not to have no legal basis, the Tribunal does not accept that the summons and warrant as being legitimate documents and finds that they were not sent to the applicant as claimed.
[91] Applicants Statutory Declaration dated 5 April 2015 @ [14].
[92] DFAT Report @ p.72.
[93] Protection (Class XA) Visa Decision record dated 4 August 2015 @ p.9; [File number].
Recently, there has been large scale protests in Iran in response to the death of Mahsa Amini, a 22-year-old woman who died in September 2022[94] while in the custody of the Iranian morality police. Her death has sparked widespread protests in more than 80 cities within Iran as well as many more across the globe. The country information reports that the current anti-government protests are the longest since the protests of the Green Movement in 2009 which lasted six months. However, unlike the largely peaceful Green Movement demonstrations that contested the result of the general election and sought the removal of President Mahmoud Ahmadinejad, the current protests are calling for regime change. It’s reported[95] that while starting as a feminist movement, the protests has evolved to incorporate broader issues involving the regime itself including the economic crisis in Iran. The Iranian security forces have responded with excessive force including the use of live ammunition, targeting arrests and restriction of the internet. The death toll as a result of the government forces use of force is reported to be anywhere form 40 people to 233 people.[96]
[94] Rand, ‘The Iran protests: A Crossroads in Governance?’ by Karishma R Meta 4 November 2022; http: Ibid.
[96] Ibid.
It is reported[97] that in November 2022 the Supreme Leader Ali Khamenei rejected any compromise or reform to placate the protests after the death of Mahsa Amini. Khamenei reiterated his hard line on the protests and his accusation that foreign actors incited the unrest.
[97] The Institute of the Study of War Iran Crisis Update 26 November 2022, Nicolas Carl, Dana Alexander Gray, Zachary Coles and Fredrick W Kagan; >
It is reported[98] that on 8 December 2022 Islamic Revolutionary Guard Forces arrested anti regime leaders who actively protested on social media. In addition, its reported[99] that on 24 December 2022 the Iranian Supreme Court upheld the death sentence of 22-year-old protester Mohammad Ghobadlou convicted of “corruption on earth.” It’s reported that the charge of ‘corruption on earth’ often used by the Judiciary in Iran to justify executions. The Iranian penal code states that this charge can be brought against an individual who “extensively commits a felony against the bodily entity of the people, offenses against internal or international security of the state, spreads lies, disrupts the economic system of the state, commits arson or destroys properties, distributes poisonous and bacterial and dangerous materials, or [establishes, aids, or abets] places of corruption and prostitution.”
[98] The Institute of the Study of War Iran Crisis Update 12 December 2022, Nicolas Carl & Fredrick W Kagan; The Institute of the Study of War Iran Crisis Update 24 December 2022 Nicolas Carl, Dana Alexander Gray, Zachary Coles and Fredrick W Kagan; http:/>
It’s reported[100] that the authorities pay little attention to failed asylum seekers on their return to Iran. Since the 1979 revolution, the authorities have accepted that many will seek to live and work overseas for economic reasons.[101] Nevertheless, those retuning on a laissez-passer are questioned by the Immigration Police at the Airport about the circumstances of their departure and why they are traveling on a laissez-passer. In this case the Tribunal accepts that the applicant will be questioned upon his return to Iran. The DFAT report[102] states that it is not common for returnees to be arrested and mistreated upon their arrival and that it is not aware of voluntary returnees being prosecuted for criticising the Islamic Republic.
[100] DFAT Report at p.70.
[101] Ibid.
[102] Ibid.
However, in this case the applicant evidence was that he was [Position 1] of the MFG, a religious and community-based group of approximately 400 members. The group, as Shia Muslims, was opposed to the clergy possessing political and religious authority in which all key decisions of the state are subject to approval by a supreme clerical leader. As such the group was directly opposed to the existing Iranian regime. The applicant’s evidence was that he continues to oppose the Iranian regime on the grounds that he does not accept the concept of velayat-e-faqih as imposed by the Iranian revolution. His evidence was that he would continue to express his view in the event he is returned to Iran.
While the Tribunal accepts that with the passage of time and the demise of the MFG, the applicant may not face the same threat that he did upon making his application for protection. However, the Tribunal has accepted the applicant’s evidence that the MFG had been threatened by the BFG, forced to operate discreetly and the MFG leadership was detained, missing, or executed. As such, in circumstances where recent protests have been meet by the authorities with excessive force, the Tribunal accepts there is a real chance he will be seriously harmed if he is returned to Iran.
Having considered the applicant’s claims singularly and cumulatively, the Tribunal finds that there are substantial grounds for believing that there is a real chance the applicant will suffer serious harm as a necessary and foreseeable consequence of being removed from Australia to Iran.
For the reasons given above, the Tribunal is satisfied the applicant is a person in respect of whom Australia has protection obligations under the Article 1 of 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) and as a result, s 36(2)(a) of the Act.

The Second Applicant’s membership of MFG.

The applicant’s evidence was that his son, the second applicant, attended MFG meetings from 2002 to about 2005.[103] The second applicant did not give any evidence that he had attended the MFG meeting as claimed by the applicant. Given the applicant arrived in Australia in July 2005, the second applicant would have been about [age range] years old when he attended the MFG meetings as claimed. Given the second applicant relatively young age and the lack of any supporting evidence that he attended the meetings the Tribunal does not accept the second applicant attended MFG meetings as claimed. Nevertheless, if the second applicant did attend such meetings as claimed (which the Tribunal has specifically found he did not), then given his relatively young age and the fact that the MFG meetings are said to have been conducted in a clandestine manner, the Tribunal does not accept there is any real chance the second applicant would be seriously harmed, if he is returned to Iran, as a person opposed to the religious concept of velayat-e-faqih and the government due to having attended MFG meetings as claimed.
[103] Applicants Statutory Declaration dated 18 October 2006 @ [21].

Second Applicant as a failed asylum seeker

100.The applicant claims that if he is returned to Iran there is a real chance, he will suffer serious harm for being a failed asylum seeker and returning from a western country after a prolonged period in Australia. The applicant claims amongst other matter has lived in Australia for more than 15 years having been educated and completed school in Australia. He claims that the authorities will view him as an apostate as he consumes alcohol and gambles.
101.The second applicant claims that he will be interviewed upon his arrival at which time he will be detained and questioned. However, the as referred to above the country information states that the authorities in Iran pay little attention to failed asylum seekers on their return to Iran.[104] Iranians have left the country in large numbers since the 1979 revolution and the authorities have accepted that many will seek to live and work overseas.[105] It is reported that those returning on laissez-passer are questioned by the Immigration Police upon their arrival and asked about the circumstances of their departure and why they are travelling on a laissez-passer. The DFAT Report states[106] that while it is possible that a known dissident may be prosecuted, it is unlikely that an individual simply claiming asylum overseas will be prosecuted as an asylum seeker.
[104] ibid
[105] ibid
[106] ibid
102.The applicant did not provide any specific evidence to the Tribunal in relation to his consumption of alcohol or gambling habits. Nevertheless, the Tribunal accepts that he engages in such habits. The country information reports[107] that secularism in Iran is widespread, particularly in the major cities and among younger and wealthier Iranians. A significant proportion of the population does not attend mosque or pray on a regular basis. In addition, the consumption of alcohol is common. It is reported anecdotally that many Iranians do not observe Ramadan strictly, including by eating, drinking liquids and smoking at home. In addition, it is reported[108] that it is common to see young men sporting western style clothes and hairstyles and displaying tattoos on Iranian streets, particularly in larger cities such as Tehran. Therefore based on the available country information the Tribunal finds that there is no real chance the second applicant will be seriously harmed if he is returned to Iran.
[107] DFAT Report at p.35
[108] DFAT Report @ p.50

Second applicant’s military service.

103.The second applicant claims that he will be required to complete his military service if he is returned to Iran. He claims that it is against his personal beliefs as he does not believe in violence. The applicant did not give any evidence to the Tribunal in support of his claim that he would be required to perform military service if he is returned to Iran.
104.The country information[109] reports that pursuant to Article 151 of the constitution, military service is compulsory for men aged between eighteen (18) and forty (40) years of age. The period of the service is generally between eighteen (18) and twenty-four (24) months. The Iranian government does not recognise conscientious objection. Its reported[110] that the conditions for conscripts are generally poor, with low pay, poor living conditions, malnutrition, and frequent physical and psychological abuse by senior officers contributing to low morale. However, it is reported that conditions can vary. DFAT assess[111] that most but not all Iranian males will undergo military service.
[109] DFAT Report @ p.55
[110] ibid; Gov UK. ‘Country Policy and Information note: Military service, Iran,’ November 2022 dated 30 November 2022; DFAT Report @ p.55
105.An individual exemption from military service can be obtained on several grounds including medical reasons, outstanding academic ability, being the only son in the family, having elderly parents and having a brother currently serving in the military. Students entering university at 18 can defer their military service until they complete their studies.[112]. The Tribunal notes that the second applicant is the only son of the applicant and the dependant applicant. In addition, both the applicant and the dependant applicant are elderly. As such he may be entitled to an exemption on either basis. However, the DFAT report notes[113] that while obtaining an exemption is possible, it will depend on a person’s socioeconomic circumstances.
[112] ibid
[113] ibid
106.It’s reported[114] that draft evaders are liable to prosecution in Iran. Those who have evaded military service by leaving the country are required to complete it upon their return. For those who are over the age of 40 years a fine is imposed. Those who have evaded military service for up to a year during peacetime or two months during war can be required to complete three to six months additional service.[115] A person may be criminally prosecuted if they evade more than a year during peacetime over two months during war.[116] In addition, draft evaders may be denied access to government jobs and higher education, denied a driver’s licences, have their passports revoked or be prohibited from leaving the country without special permission.[117]
[114] ibid
[115] ibid
[116] ibid
[117] ibid
107.It was open to the applicant to claim that conscription in Iran is discriminatory in nature because it targets males of a certain age (i.e. between eighteen (18) and forty (40) years of age). A legitimate object is ordinarily considered to be the pursuit of a policy required to protect or promote the general welfare of the State and its citizens. Therefore, the enforcement of a generally applicable criminal law, or the enforcement of laws designed to protect the general welfare of the state such as conscription are not ordinarily considered to be persecution.[118] While the implementation of these laws may place additional burdens on the members of a particular race, religion or nationality, or social group, the legitimacy of the objects, and the apparent proportionality of the means employed to achieve those objects, are such that the implementation of these laws are not considered persecutory.[119]
[118] Applicant A v MIEA (1997) 190 CLR 225 at 258.
[119] Applicant S v MIMA (2004) 217 CLR 387 at [44].
108.Nevertheless, a law or its purported enforcement will be persecutory if its real object is not to protect the state but the oppression of members of within the community based on their race, religion or nationality. Such measures are not considered to be a legitimate government object and as such are likely to amount to persecution. Generally, in determining if a national law is appropriate and has been adapted for a legitimate purpose regard is given to international human rights standards as well as the laws of the country.[120] In Chen Shi Hai v MIMA,[121] it was stated that:
[120] Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [45].
[121] Chen Shi Hai v MIMA (2000) 201 CLR 293 at [29].
‘[w]hether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity. Ordinarily, denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education involve such a significant departure from the standards of the civilized world as to constitute persecution. And that is so even if the different treatment involved is undertaken for the purpose of achieving some legitimate national objective.’
109.In Applicant S, the High Court, notwithstanding the fact that the court found that the Taliban’s conscription policy was not legitimate, did observe that the objective of conscription policy is to protect the nation as a legitimate national objective.[122] As referred to above, Article 151 of the Iranian Constitution commits the government to military training for all its citizens to ensure that they will be able to engage in the defence of the country.[123] As such the Tribunal finds that Iranians requirement that all males between the age of eighteen (18) and forty (40) complete eighteen (18) to twenty four (24) months of military service is appropriate and adapted to achieving a legitimate goal of the state. That is, ensuring its citizens can engage in the defence of the country. There was no evidence that the applicant would be targeted or treated differently for any reason expressed in s 5J(1)(a) of the Act in the application of the military service laws or any punishment that may be applicable for having evaded military service to date.
[122] Applicant S v MIMA (2004) 217 CLR 387 at [47]-[49].
[123] DFAT Report at p.55
110.The Tribunal accepts that the applicant has not completed his military service in Iran and that he may be subject to punishment upon his return. While the Tribunal accepts the fact that the applicant may be punished for not completing his military service does constitute systematic conduct, it is not discriminatory conduct towards the applicant. The laws that provide for punishment for the avoidance of military service are appropriate and adapted toward achieving a legitimate objective of defending the state for the purposes of protecting its sovereignty and territorial integrity. There is no evidence that the applicant would be targeted or treated diffidently for any other citizen in Iran for any reason as detailed in s 5J(1)(a) of the Act in the application of the laws relating to military service.
111.Accordingly, the Tribunal finds that if the second applicant is detained and punished for not having completed his military service upon his returned to Iran it is because of the general law of Iran and does not constitute discriminatory conduct against the applicant or his family. Accordingly, the Tribunal finds that the second applicant does not have a well-founded fear of persecution under ss.5J of the Act if he is returned to Irian.
112.Having considered the second applicant’s claims singularly and cumulatively, the Tribunal finds that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Iran, there is a no real chance that the second applicant will suffer serious harm.
113.For the reasons given above, the Tribunal is satisfied the second applicant is not a person in respect of whom Australia has protection obligations under the Article 1 of 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) and as a result, s 36(2)(a) of the Act.

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.
Tattoos and People with ‘Western’ Appearance
3.136 International and domestic observers agree that men are subject to less strict controls on personal appearance than women. DFAT is aware that some men have claimed to have been harassed or discriminated against on the basis of their appearance — for example, for having ‘Western-style’ hairstyles (including through use of hair gel) or clothing styles (including long hair and ripped jeans), visible tattoos or visible hair removal (such as plucked or waxed eyebrows). Notwithstanding such reports, it is common to see young men fitting all of these descriptions on Iranian streets, particularly in larger cities such as Tehran. Tattoos are increasingly popular among young Iranians. Young men with visible tattoos are common in Tehran. DFAT saw some men with tattoos covering nearly the entire length of their arms (‘sleeve tattoos’). DFAT also saw some women with visible – albeit significantly smaller – tattoos than men (for example, on their wrists). Tattooists operate underground, and generate business through word-of-mouth and Instagram. DFAT is not aware of tattooists being targeted by the authorities. Like tattoos, Western-style clothing is common — jeans and short-sleeved t-shirts (including with Western branding) are de rigueur for men in DFAT Country Information Report IRAN (April 2020) 51 Tehran during summer. DFAT observed a number of men in Tehran with earrings and women with ankle bracelets.
3.137 DFAT assesses that authorities are far more likely to target women than men for dress code violations. Where there have been incidents of harassment of men for violating the dress code, DFAT assesses these were most likely the result of either over-zealous enforcement by individual security authorities in particular locations (particularly outside of major cities) or because the individual had come to the attention of the authorities for other activities, particularly political activism. DFAT assesses that the restrictions the dress codes place on men do not amount to discrimination. DFAT is not aware of the authorities targeting people on the basis of a ‘Western’ appearance or for having visible tattoos. While such appearances may be frowned upon by more conservative Iranians, DFAT assesses that people of ‘Western’ appearance, including people with visible tattoos, face a low risk of official and societal discrimination
TREATMENT OF RETURNEES[142]
[142] 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

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

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.
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.

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.
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.
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.
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

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.
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.

…

Protection visas – criteria provided for by this Act

…

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.