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
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CaseChat Overview and Summary
The legal issues before the Tribunal were whether the second applicant had a well-founded fear of persecution due to his alleged membership in the Mohebban Fatemah organisation (MFG), his status as a failed asylum seeker, and his objection to compulsory military service in Iran. The Tribunal was required to assess whether any claimed fear of persecution was based on the grounds specified in the Migration Act, whether there was a real chance of persecution, and whether such persecution would involve serious harm and systematic, discriminatory conduct. The Tribunal also considered the availability of effective protection measures within Iran.
The Tribunal's reasoning involved a detailed examination of the evidence presented by the second applicant and relevant country information regarding Iran. Regarding the MFG, the Tribunal found that the second applicant had not provided sufficient evidence to establish his attendance at meetings, and even if he had, his young age at the time meant he was unlikely to face serious harm. Concerning his status as a failed asylum seeker, the Tribunal accepted country information indicating that Iranian authorities generally pay little attention to failed asylum seekers upon their return, and that activities undertaken abroad, such as criticising the government or consuming alcohol, were unlikely to lead to serious harm. Finally, concerning military service, the Tribunal found that while compulsory, it was a legitimate objective of the Iranian state to ensure national defence. The Tribunal concluded that the second applicant would not be targeted or treated differently from other citizens in the application of military service laws or any potential punishment for evasion, and therefore, any punishment would not constitute discriminatory conduct.
Ultimately, the Tribunal was not satisfied that the second applicant had a well-founded fear of persecution. Consequently, the Tribunal found that Australia did not have protection obligations towards the second applicant under Article 1 of the Refugee Convention and section 36(2)(a) of the Migration Act.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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 seeker100.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] ibid102.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.50Second 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.55105.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] ibid106.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] ibid107.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.55110.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 discriminationTREATMENT OF RETURNEES[142][142] DFAT Report at p.69Exit and Entry Procedures5.22Millions 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 Returnees5.27Iran 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 19585 (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 refugeeFor 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 persecutionFor 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 familyFor 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 familyFor 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 measuresFor 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.