1915762 (Refugee)
[2024] ARTA 54
•24 October 2024
DECISION AND
REASONS FOR DECISION
1915762 (Refugee) [2024] ARTA 54 (24 October 2024)
Respondent: Minister for Home Affairs
Tribunal Number: 1915762
Tribunal:General Member A Verduci
Date:24 October 2024
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 24 October 2024 at 1:58pm
CATCHWORDS
REFUGEE – protection visa – stateless/Iran – ethnicity – Feyli Kurd – denied formal education and employment and detained by authorities – religion – non-practicing Muslim converted to Christianity in Australia – mental health – returned failed asylum seeker – unhindered departure through major airport unlikely if passport not genuine – not stateless but Iranian citizen – departure from Islam accepted but vague evidence of Christian beliefs and practices – country information – apostasy and vaguely-worded related crimes, with possibility of lashing, imprisonment or death penalty – modification of behaviour not permissible and state protection not available – refugee claim accepted – non-compliance with request for any documentation evidencing identity, nationality or citizenship – no reasonable explanation – interactions with embassy staff – grant of visa prevented – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 4(3), 36(2), 65(1), 91W(1), (2)(c), 425
Migration Regulations 1994 (Cth), Schedule 2CASES
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28
Sharma v MIMAC [2013] FCCA 1280
SZTAL v MIBP [2017] HCA 34Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
Background
The applicant is a [Age]-year-old male who claims to be stateless. He applied for a Safe Haven Enterprise Visa (SHEV) which was refused by a delegate of the Minister for Home Affairs. This is a review in relation to that decision.
The following is a summary of the applicant’s migration history as originally set out in the delegate’s decision. I have edited it for relevance.
[April] 2010
Arrival in Australia
24 April 2010
Entry interview
10 June 2010
Statutory declaration in support of Refugee Status Assessment (RSA)
22 June 2010
RSA interview
2 August 2010
RSA outcome – negative
13 August 2010
Application for Independent Merits Review (IMR)
21 November 2010
IMR interview
14 February 2011
IMR outcome – negative
23 August 2011
Nationality and identify assessment
21 November 2011
International Treaties Obligations Assessment (ITOA) submission
15 December 2011
ITOA outcome – negative
27 September 2012
Stateless status assessment
31 August 2015
Protection obligations evaluation submission
23 May 2018
Minister lifted the bar in s48A of the Migration Act 1958 (Cth) (the Act)
18 September 2018
Valid application for a SHEV lodged
15 May 2019
SHEV interview
30 May 2019
SHEV refused
Refugee / protection assessment, SHEV application
The applicant has undertaken multiple interviews and assessments since 2010 in relation to his claim to be a refugee.
His claims were most recently considered by a delegate of the Minister for Home Affairs as a part of his application for a SHEV. The applicant attended an interview with the delegate on 15 May 2019 and a decision refusing the applicant a visa was made a short time later.
The delegate accepted that the applicant was a Feyli Kurd and a non-practicing Muslim. The delegate also accepted that the applicant would hold the profile as a failed asylum seeker who had lived in a western country for a number of years, and that he may require mental health treatment in Iran.
The delegate did not accept the applicant’s claimed identify or that he was stateless. The delegated requested documentary evidence of the applicant’s identity, nationality or citizenship under s 91W(1) of the Act but it was not provided. The application was therefore refused pursuant to s 91W(2) of the Act.
The delegate did not accept that the applicant had departed Iran on a false passport, had been of any interest to the Iranian authorities at the time of his departure or had been of any interest to the Basij. It was not accepted that the applicant was a genuine Christian convert or that the Iranian authorities would be aware of the applicant’s social involvement with a church in Australia.
The delegate found that the applicant did not face a real chance of serious harm or a real risk of significant harm if he returned to Iran, now or in the reasonably foreseeable future. Accordingly, the application was also refused because the applicant did not satisfy s 36(2) of the Act.
Application for review
On 18 June 2019, the applicant applied for a review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT).
The applicant was represented in relation to the review. His representative requested at least 8 weeks’ notice of any scheduled hearing due to concerns about the applicant’s mental health status.
On 15 July 2024, the applicant was invited to appear before me on 11 September 2024. At the applicant’s request, his hearing was rescheduled to 7 October 2024.
The applicant appeared before me on 7 October 2024 to give evidence and present arguments. His representative attended the hearing. The hearing was conducted with the assistance of an interpreter in the Kurdish and English languages.
The applicant is a vulnerable person
The applicant is a vulnerable person for the purpose of this proceeding. I place some weight upon this and it has informed my consideration of all aspects of this proceeding. This includes the applicant’s ability to recall specific events and his ability to recall a sequence or chronology of events. I reflected on his status as a vulnerable person throughout the duration of his appearance before me and I sought to manage and minimise the impact of this event as best I could. I have continued to reflect on his status as a vulnerable person when assessing the reliability of his evidence throughout this proceeding.
Considering the totality of the evidence that is available to me in this proceeding, including but not limited to his oral evidence given during the hearing, as well as the high-quality legal representation and submissions advanced on his behalf, I am comfortably satisfied that the applicant has had a real, genuine and meaningful opportunity to present his case, make submissions and adduce evidence.
The commencement of the Administrative Review Tribunal
On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (the Tribunal).
If a proceeding was commenced in the AAT but not finalised before 14 October 2024, it must be continued in the Tribunal in a manner that is efficient and fair. Anything done in, or in relation to, the proceeding before the 14 October 2024 continues to have effect after that date. Anything done in, or relation to, the proceeding before 14 October 2024 that was validly done according to the applicable law at the time is taken to be valid under, or to have been done in accordance with, the law as it is now. Anything done in, or in relation to, the proceeding before 14 October 2024 by the AAT is taken, after that time, to have been done by the Tribunal: item 24 of Part 5 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).
In these circumstances, I am satisfied that an invitation to appear before me validly issued under s 425 of the Migration Act (as in force prior to 14 October 2024) is valid for the purposes of the hearing of the proceeding, being a Tribunal case event, under the Administrative Review Tribunal Act 2024 (Cth). I am further satisfied that the applicant has been given an opportunity to present his case and to make submissions and adduce evidence, and that his application has continued in the Tribunal in a manner that is efficient and fair.
Accordingly, the decision in this proceeding is made by the Administrative Review Tribunal.
Evidence before the Department
The applicant has a long migration history as set out above. This has produced a significant amount of material relevant to the assessment of his claims. It includes, but is not limited to:
·His entry interview on 15 July 2010.
·His RSA application, statements of claims, interview and decision record.
·His IMR application, statements of claims, interview and decision record.
·A nationality and identify assessment report dated 10 November 2011.
·An undated [Stateless Status Assessment].
·His SHEV application, statements of claims and interview.
Evidence before the Tribunal
I have the same material that was available to the delegate. Additional evidence given to me includes, but is not limited to:
·A bundle of collated material including notes and records and health assessments about the applicant from the International Health and Medical Services and others.
·A medical report by [Dr A] dated 12 September 2024.
·Written legal submissions and statements of claims.
·Copies of the applicant’s Victorian drivers licence and Evidence of Immigration Status card.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she 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.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The DFAT Country Information Report: Iran (DFAT Report) is relevant to this proceeding.[1]
[1] DFAT Country Information Report: Iran, 24 July 2023 (Version 2)* (the DFAT Report) (country-information-report-iran.pdfhttps:// AND FINDINGS
The applicant’s identify and receiving country
The applicant has claimed since 2010 to have a particular identity and to be a stateless Feyli Kurd. This claim has been assessed on a number of different occasions. Each time it has not been accepted.
The applicant’s identify has been formally assessed on two occasions. The Nationality and Identity Assessment Report dated 10 November 2011 concluded that there was insufficient information to be satisfied about the applicant’s claimed nationality and identity. A second Stateless Status Assessment was conducted on 27 September 2012. In this assessment, two separate assessing officers concluded that the applicant is not stateless and is most likely a citizen of Iran.
The claim to be stateless was most recently considered by the delegate. The delegate’s decision record and statement of reasons dated 30 May 2019 sets out a detailed history of the applicant’s evidence, up until that point in time, regarding his claim to be stateless and to have left Iran using a false passport. The decision record identifies a number of inconsistencies and reliability concerns regarding the applicant’s evidence, such as whether or not his father had ever applied for a documented status in Iran and/or Iranian citizenship, as well as particular concerns regarding his ability to depart via Imam Khomeini International Airport using a non-genuine passport. The delegate’s decision record is detailed and contains a clear and logical assessment of the applicant’s evidence before reaching the conclusion that the applicant does not have his claimed identity and is not stateless.
I share many of the same concerns expressed by the delegate in their decision record but I have brought an independent mind to this inquiry. I have considered the applicant’s evidence to me about these concerns which we discussed throughout his hearing. I find that his evidence is vague and generally unreliable. Even taking the applicant as a vulnerable person, I do not consider his evidence regarding the documented status of his family to be reliable. I am not prepared to accept that he would not know if, or when, his father had attempted to regularise the family’s status in Iran. He does not know if, or when, his father applied for a white card. He does not know if, or when, his father applied for citizenship. He never applied for a documented status or citizenship himself because he says he did not know how, despite being around [Age] years of age at the time he left Iran. This evidence is implausible and I do not accept it.
Noting country information regarding the multi-layers of security at Imam Khomeini International Airport in effect at the time of his departure, which includes passport and exist visa being verified at the time of departure the passport holders data and photograph appearing on a screen, it seems improbable that the applicant could easily depart using a false document.[2] Whilst it may be possible that the payment of a bribe allowed a person to exit using a non-genuine document, the number of checkpoints that a person must go through means that at least several bribes would be required.[3] Overall, the weight of information points against this being probable. I do not accept that the applicant departed Iran using a false passport.
[2] Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc: Danish Refugee Council and Danish Immigration Services, 2/2009, [7.9.2] ( Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc: Danish Refugee Council and Danish Immigration Services, 2/2009, [7.5].
If he did not depart using a false passport, the logical and probable conclusion to reach is that the left using a genuine Iranian passport issued to him. From that, it follows that the applicant is a citizen of Iran. I find that he is.
I am not satisfied that the applicant’s identity is as he is claimed. I am satisfied that he is a citizen of Iran and that Iran is his receiving country for the purposes of the Act.
Feyli Kurd
I accept that the applicant is a Feyli Kurd. I place some weight on his previously demonstrated ability to speak Southern Feyli Kurdish, and I find this is consistent with country information indicating that Kurds mostly live in the north-western provinces which include Ilam.[4] I do not accept that the applicant and his family are stateless or undocumented Feyli Kurds, however.
[4] DFAT Report, [2.53].
The applicant’s claimed mistreatment as a Feyli Kurd is a fundamental aspect of his claimed identify. It is inseparable from his claim to be stateless Feyli Kurd .For the reasons given above, I have found that the applicant is an Iranian citizen and is therefore not stateless. This causes me to have concerns about the remainder of the applicant’s evidence.
As the applicant is an Iranian citizen, I do not accept that he was denied formal education and/or employment and/or taken advantage of by others because he was a stateless Feyli Kurd. These claims also appear inconsistent with his apparent level of education and ability to speak Farsi. I have already found that the applicant is an Iranian citizen and I do not accept that he was a person of interest to the Basij or any other government figures.
I have other concerns with his claimed mistreatment by the Basij, such as why they would detain him when he was around [Age] years of age, require him to cooperate in some unspecified way, threaten him if he didn’t and then simply release him. Despite continuing to live in Iran for another month or so after that, there is no suggestion that the Basij contacted the applicant and/or any members of his family to ask him to do anything or to find out where he was.
The strength of my concerns about the applicant’s credibility generally, together with the unreliability of his evidence to be of interest to the Basij, leads me to find that he was not a person of interest to the Basij in the past. I do not accept that he was visited by the Basij when he was around 20 years of age and I do not accept that the was visited again at around [Age] years of age. I do not accept that he was targeted by the Basij because in any way because he lacked, or had limited, legal protections, noting that I have already found the applicant to be a citizen of Iran.
Islamic faith and apostacy
The applicant claims to have left Islam and converted to Christianity.
The delegate accepted that the applicant was a non-practicing Muslim. He has explained to me in strong and emotive terms the process that led him to renounce his Islamic faith. I accept that he holds a degree of animosity towards members of his family, and his father in particular, that has strong anti-Islamic undertones. Considering the strength and emotion behind the applicant’s evidence to me about his religion, I find that he has moved beyond being a non-practicing Muslim and is more accurately described as an apostate. I accept that he has shared his religious journey with members of his immediate family and that this is a strong source of tension between them. In the psychiatric report from [Dr A],[5] for example, it says that ‘…his parents don’t speak with him because he is no longer a Muslim and punish him further because his long-term partner [ ] is a Buddhist.’ I do not accept the entirety of [Dr A]’s report, noting that the applicant’s evidence to me is that he does maintain some contact with his mother and that he last spoke with her in around September 2024.
[5] Psychiatric assessment and report, [Dr A], 12 September 2024.
I also not accept the whole of the applicant’s narrative regarding his religious faith, however. I find his evidence to have started moving away from Islam whilst living in Iran vague and unreliable. I do not accept that he attended mosque to maintain his Muslim appearance or to avoid attracting the attention of others. I do not accept that he was targeted, questioned, detained or was otherwise a person of any interest to anyone, including the Basij, because of his religious faith whilst in Iran.
I also have strong concerns regarding his claim to have embraced Christianity. I accept that he was baptised in 2013 and I place some weight upon this. However, the strength of this alone does not overcome my concerns about the vagueness of the applicant’s evidence regarding what Christianity means to him and the very limited details he has provided regarding his practice of Christianity in Australia. Despite claiming to attend two different churches in 2024, he is unable to name either of the churches he attended and/or the names of anyone at either church who has an official capacity, such as the priest, pastor, father or anyone else. I do not accept that the applicant has genuinely embraced Christianity as his religion or that he would seek to practice Christianity if he returned to Iran.
I do accept that, since leaving Iran, the applicant has stopped following Islam.
The treatment of apostates in Iran can be severe. According to one source[6]:
·The penal code provides for hudud punishments (those mandated by sharia), including amputation, flogging, and stoning. It specifies the death penalty for moharebeh (“enmity against God”) and sabb al-nabi (“insulting the Prophet”). Prevailing fatwas prescribe the death penalty for apostasy. According to the penal code, the application of the death penalty varies depending on the religion of both the perpetrator and the victim. The penal code criminalizes insulting “divine religions or Islamic schools of thought” and committing “any deviant educational or proselytizing activity that contradicts or interferes with the sacred law of Islam.” Proselytization of religions other than Islam carries a punishment of up to 10 years in prison. The law, as typically interpreted, prohibits Muslim citizens from changing or renouncing their religious beliefs. The constitution states that Zoroastrians, Jews, and Christians are the only recognized religious minorities permitted to worship and form religious societies “within the limits of the law.”
·The penal code specifies the death sentence for moharebeh (“enmity against God,” which, according to the Oxford Dictionary of Islam, means in Quranic usage “corrupt conditions caused by unbelievers or unjust people that threaten social and political wellbeing”), fisad fil-arz (“corruption on earth,” which includes apostasy or heresy), and sabb al-nabi (“insulting the Prophet”). According to the penal code, the application of the death penalty varies depending on the religion of both the perpetrator and the victim. Those accused of blasphemy are often charged with “spreading corruption on earth” and other crimes. The penal code criminalizes insulting the values of Islam, Iranian “divine religions,” Islamic schools of thought recognized under the constitution, the Prophet Muhammad or any of the “Great Prophets”, twelve Shia Imams, or the Prophet’s mother. Punishments range from imprisonment to 74 lashes to the death penalty. In 2021, the government amended the penal code, adding provisions criminalizing “insulting legally recognized religions and Iranian ethnicities.” The amendments allow authorities to impose a sentence of two to five years in prison and a monetary fine where violence is involved, and between six months and two years and a monetary fine where violence is not involved, on anyone who “insults Iranian ethnicities or divine religions or Islamic schools of thought recognized under the constitution.”
·Additionally, the penal code outlines several “offenses that violate religious sensibilities,” which include attacking the creed of a recognized religious minority or “pouring scorn on its religious practices;” making light of a recognized religious minority’s tenets or teachings; publicly insulting a symbol or person constituting an object of sanctification, worship, or reverence to a recognized religious minority; and publicly imitating a religious ceremony or celebration with intent to deceive. Such offenses are punishable with a fine or up to three years in prison.
[6] 2023 Report on International Religious Freedoms: Iran; US Department of State ( type="1">
Another recent and credible source[7] reports:
·The law provided for prosecution of persons accused of instigating crimes against the state, crimes against national security, or “insulting” Islam. The government severely restricted freedom of speech and of the press and used the law to intimidate or prosecute persons who directly criticized the government or raised human rights concerns or questioned the government’s morality code enforcement.
[7] 2023 Country Report on Human Rights Practices: Iran; US Department of State (>
The DFAT Report also says:
·Apostasy is not specifically codified as a crime in Iran, however, is nonetheless a crime under Sharia law, which is enforceable under the constitution. Both moharebeh or ‘enmity against God’ and fisad fil-arz (corruption on earth) are codified in law and can include apostasy, according to the 2021 US Department of State Human Rights Report. According to the Iran Human Rights Documentation Centre, person can be found guilty of the crime of apostasy based on the testimony of two male witnesses, the knowledge of a judge or a confession. The death penalty is a potential punishment but very rare in practice.
·DFAT assesses that the authorities use violence or other pressure tactics to extract confessions from defendants, including those charged with security-related offences.
·Article 39 of the constitution prohibits all affronts to the dignity and repute of detained persons. The law allows for Sharia law punishments that include amputation, flogging, blinding and stoning and the Government does not consider these to breach constitutional provisions.
·More than 100 offences attract the punishment of flogging, including dress code violations, same-sex sexual activity and alcohol consumption. Flogging has been used in political cases where offences are often vaguely worded, such as ‘propaganda’, ‘defamation’ or ‘rebellion’.
·Those who publicly renounce Islam face apostasy charges. According to local sources, atheists are discreet about their non-belief beyond their close family and friends. Unless they widely publicise their non-belief, atheists are unlikely to come to the attention of the authorities. Atheists from conservative families might face familial pressure and potential ostracism if their atheism were revealed, however would generally not be subjected to physical harm. Sources told DFAT that atheists from more liberal families and parts of the country, like north Tehran, would face no such pressure.
·DFAT assesses that non-practising Iranian Muslims face a low risk of official and societal discrimination, particularly in the major cities. DFAT assesses that atheists who are open about their non-belief face a moderate level of official and societal discrimination.
·The countrywide capacity of the centrally-organised state security forces means an individual facing adverse official attention is unlikely to escape attention by internal relocation.
Unlike apostacy, the crime of Sabb-e Nabi, or swearing at the Prophet, is codified in the Iran’s Penal Code and is addressed in articles 262 and 263. The articles are vaguely worded and it is not clear what constitutes ‘insulting the Prophet’. Despite this lack of clarity, the death penalty can be imposed for the most severe cases.[8]
[8] Apostacy in the Islamic Republic of Iran, Iran Human Rights Documentation Centre, 25 September 2014 (>
Article 160 of Iran’s Penal Code mentions the different methods by which the commission of a crime may be proven. Confessions, the testimony of two male witnesses or the “knowledge of the judge” can each be the basis for a conviction. Article 211 defines the concept of the knowledge of the judge as a certainty resulting from manifest evidence in a matter brought before him.[9]
[9] Apostacy in the Islamic Republic of Iran, Iran Human Rights Documentation Centre, 25 September 2014 (>
The extra-judicial killing of apostates or individuals who have been shown to have sworn at the Prophet—or are simply alleged to have done so—is considered acceptable by many Islamic jurists. Ayatollah Khomeini has previously stated that a person who hears another person swear at the Prophet has a duty to kill him. Ayatollah Mohammad Sadeq Rohani has stated that anyone has the right to kill an apostate, and that the permission of a religious judge is not required. Iranian law does not allow extra-judicial killing of an apostate or a person swearing at the Prophet. Nevertheless, Iranian law protects the person who kills an apostate or who kills a person who has sworn at the Prophet from capital punishment. Article 302(a) of Iran’s Penal Code states that if the murdered person has committed a capital offense, the perpetrator is not eligible for qisas, or the death penalty. Instead, the perpetrator will be sentenced under the ta’zir category, meaning that they may receive between three to ten years imprisonment.[10]
Assessment of accepted facts and evidence
[10] Apostacy in the Islamic Republic of Iran, Iran Human Rights Documentation Centre, 25 September 2014 (>
I accept that the applicant has renounced Islam and will be viewed as an apostate.
I have reflected carefully on all of the country information above, the accepted facts and the particular profile of the applicant.
Not all Muslims will follow the tenants of Islam to the same level or degree. I accept that it may not be uncommon for minor transgressions , such as eating during the month of Ramadan, for example, to go unnoticed or unpunished.
However, there is an important distinction between a moderate or non-practicing Muslim, on the one hand, and an atheist and/or apostate on the other. I am concerned by a theme in the DFAT Report that suggests an atheist is required to live a discrete life in order to avoid attracting official or societal attention. If they do attract attention, DFAT assess that the risk of official and societal discrimination rises to a moderate one.
I am also concerned by the evidentiary requirements for establishing the religious charges discussed above. The testimony of two male witnesses or the arbitrary standard of the knowledge of the judge is a sufficient basis for a conviction. If convicted, the potential penalties are severe and include the death penalty.
Considering all of the circumstances of this case, I am satisfied that the applicant fears being persecuted for reason of his religion, that there is a real chance he will be persecuted for the essential and significant reason of his religion, and that the real chance of persecution relates to all areas of Iran.
I accept that he would not engage in regular religious activities such as attending mosque or prayers. By itself, this would not lead me to find that there is a real chance or real risk of harm. However, I also accept the strength and genuineness of his atheist views. It is reasonable to find that he will continue holding such views and that he will, at various times throughout the reasonably foreseeable future, express such views. It would be unreasonable to assume that the expression of his atheist views would always, by his own choice, be in private or within the confines of a safe space. It will only take the testimony of two people aggrieved or offended by what the applicant says or does in relation to Islam or his own lack of religious belief to support a conviction under the Iranian Penal Code or Shariya law.
This finding is strengthened by the applicant’s mental health and by his past conduct in Australia. He has sent, or has tried to send, letters to staff at the Iranian embassy. He has telephoned and spoken to staff at the Iranian embassy in a manner that it likely to have attracted adverse interest and possibly led to his name being recorded. He demonstrates an antagonistic attitude towards authoritative figures. His conduct in Australia is the result of his lived experiences and his mental health which has been documented in his dealings with other detainees and departmental and/or detention officer staff. I am satisfied that it is conduct engaged in otherwise than for the purposes of strengthening his claim to be a refugee.
The combined weight of these factors leads me to find that it is more than a remote, hypothetical or speculative chance that the applicant’s views as an atheist and apostate will come to the attention of Iranian authorities and members of Iranian society more broadly.
His views as an atheist an apostate are a protected characteristic under the Act. I cannot and would not expect that he modify, alter or conceal his behaviour or an innate characteristic to live a discreet lifestyle that avoids or limits the expression of his atheist views or religious beliefs.
The harm that he faces includes lashings, imprisonment and, at its most extreme, the death penalty. He faces these penalties based on a conviction that may be established on the testimony of two other males or the subjective knowledge of a judge. The penalties involve harm and are of sufficient degree to amount to serious harm within the meaning of the Act.
The persecutors include the Iranian authorities and members of society within Iran more broadly. I find that these actors are present throughout all areas of Iran which means that the real chance of persecution relates to all areas of the country. As the agents of persecution include the Iranian authorities, I find that effective protection measures cannot and would not be available or provided.
Whilst I am unable to determine with any confidence the applicant’s actual identity, I am satisfied that he is a citizen of Iran. There is no evidence before me that supports a conclusion that he has a right to enter and reside in, whether temporarily or permanently and however that right is arose or is expressed, any third country. Section 36(3) of the Act is not engaged.
I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Non-compliance with request for documents under s 91W of the Act
Under s 65(1) of the Act, the Minister (or the Tribunal on review) must refuse to grant a visa if the grant is prevented by s 91W. Provided certain procedural requirements are met, s 91W(2) requires the Minister to refuse to grant a protection visa to an applicant who refuses or fails to comply with a request to produce documentary evidence of their identity, nationality or citizenship, or produces a ‘bogus document’, as defined in s 5(1), in response to the request. However, that requirement will not apply if the applicant has a reasonable explanation for the failure or refusal, and either provides the relevant documentary evidence or has taken reasonable steps to provide such evidence: s 91W(3).
In a letter dated 25 September 2018, an officer of the Department requested the applicant to produce documentary evidence of his identity, nationality or citizenship for inspection within 28 days after being taken to have received the letter. The letter warned the applicant that, if he refused or failed to comply with the request or provided a bogus document, or caused a bogus document to be provided in response without a reasonable explanation, then the grant of the SHEV he had applied for would be prevented by s 91W of the Act and must be refused under s 65.
It also stated if he did not reply within the timeframe specified or contact the Department to arrange additional time to provide the requested documentary evidence, he will be taken to have refused or failed to comply with the request under s 91W(1).
The applicant emailed a response to the Department on 23 September 2018, being within the required 28-day period. His written response included:
·“[The applicant] is a stateless Faili Kurd from Iran and he has never held nor been eligible to hold Iranian citizenship;
·[The applicant] does not currently have nor has he ever had any official Iranian identity documents;
·[The applicant’s] status as stateless Faili Kurd means that he is ineligible to receive these identify documents and therefore he is unable to respond to this request.”
The delegate considered that the documentary evidence requested had not been produced and that a reasonable explanation had not been given.
I have reviewed the departmental officer’s written request. I am satisfied that is issued under s 91W(1) of the Act and that it complies with the requirements in s 91W(2)(d). I am satisfied that the applicant received the written request because he responded to it.
Section 91W does not specify what ‘documentary evidence’ a person may be required to produce. The term ‘documentary evidence’ is also not defined in the Act or in the Migration Regulations 1994 (Cth) (the Regulations).
The starting point for ascertaining the meaning of a statutory provision is the text of the statute whilst, at the same time, having regard to its context and purpose.[11] The words ‘documentary evidence’ are used together in ss 91W and 91WA, both times in the context of material being used to establish a person’s identity, nationality or citizenship. These provisions appear in Subdivision AL – Other provisions about protection visas – in Division 3 – Visas for non-citizens - of Part 2 – Arrival, presence and departure of persons – to the Act.
[11] SZTAL v MIBP [2017] HCA 34, [14]; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28
The word ‘evidence’ is used by itself multiple times throughout the Act and Regulations but is also not defined. In the context of the public interest criterion 4020(1), for example, which requires there to be no evidence before the Minister that the applicant has given a bogus document or information that is false or misleading in a material particular, the word ‘evidence’ is used to impose a requirement that the facts conveyed by the material must be sufficiently probative to lead to the conclusion that information given in connection with the application for the visa was false or misleading in a material particular.[12]
[12] Sharma v MIMAC [2013] FCCA 1280 at [33]–[37]..
The ordinary meaning of the term ‘documentary evidence’ includes ‘written documents that give reasons for believing that something is or is not true’;[13] ‘evidence in written rather than oral form’;[14] and, in a legal context, ‘any evidence introduced at a trial in the form of pieces of paper, booklets, etc, which provide information, especially of an official or legal nature’.[15]
[13] Cambridge Dictionary online, accessed 23 October 2024 ( Oxford Reference online, accessed 23 October 2024 ( Collins Dictionary online, accessed 23 October 2024 (>
On one view, it may be said that the applicant did provide documentary evidence about his identity, nationality or citizenship. He responded in writing within the period of time that he was requested to. His response went to the substance of the request by stating that he is stateless and not eligible for Iranian citizenship. Whilst his response seems to be a restatement of evidence he had already given, s 91W does not include an objective or subjective standard for the quality of the documentary evidence that a person is requested to provide. In other words, the documentary evidence may not need to be strong or persuasive, and it may not need to support a level of satisfaction in the requesting officer.
However, such a view does violence to s 91W and should not be preferred. As noted above, s 91W appears together with s 91WA. They both sit within Part 2 of the Act which is concerned with the arrival, presence and departure of non-citizens. More broadly, they sit within the Act, the object of which includes:
·to regulate, in the national interest, the coming into, and presence in, Australia of non‑citizens;
·to provide for visas permitting non‑citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non‑citizens to so enter or remain; and
·to provide for non‑citizens and citizens to be required to provide personal identifiers for the purposes of this Act or the regulations.[16]
[16] The Migration Act 1994 (Cth), s 4(1), (2) and (3).
It is clear that establishing, among other things, the identity, nationality or citizenship of a non-citizen is essential to the fulfilment of the Act’s objective. It is expressly provided for in s 4(3). This is particularly so in relation to an applicant for a protection visa, being what Subdivision AL – Other provisions about protection visas – in Division 3 – Visas for non-citizens - of Part 2 – Arrival, presence and departure of persons – to the Act is concerned about.
Section 91W acts to prevent the granting of a protection visa to a non-citizen where documentary evidence about their identity, nationality or citizenship is requested but not provided. A request for documentary evidence under s 91W will only be reasonable if there is already a degree of doubt about these matters. It is difficult to see how s 91W specifically, and the objective of the Act more generally, would be advanced if a non-citizen could avoid the operation of s 91W by simply restating, in written form, the same evidence about their identity, nationality or citizenship that led to a request being made under s 91W in the first place.
The applicant’s email contains a restatement of his claimed identity and evidence to be stateless. The previous non-acceptance of this evidence is what caused a request under s 91W to be sent in the first place. Simply re-giving that same information in response to a s 91W cannot be said to have any probative value to the matters it is addressing.
Further, or in the alternative, it cannot be said that the applicant has given documentary evidence of his identity, nationality or citizenship. HIs claimed identity and citizenship status were not accepted, factors which caused a request under s 91W to be issued in the first place. Re-giving the same evidence about his claimed identity and citizenship status, after that evidence has already been rejected, cannot properly be characterised as producing ‘documentary evidence of the applicant’s identity, nationality or citizenship’.
The applicant has not produced documentary evidence of his identity, nationality or citizenship. Accordingly, s 91W(2)(c) requires me to consider whether he does not have a reasonable explanation for refusing or failing to comply with the request.
The applicant has given two explanations as to why the documents have not been produced.
The first is that he is stateless. He does not have, and is not entitled to, documents establishing nationality or citizenship.
The second is that, because he is seeking protection from the Iranian authorities, it would not be reasonable for him to approach those authorities seeking the requested documentation.
I have already found that the applicant is a citizen of Iran. I therefore find that the first explanation is not a reasonable one. For completeness, I also do not accept that being stateless would have prevented the applicant from providing any documentation of any description, including formal or less formal documents, in relation to his identity. This is not a reasonable explanation.
I also find that the second explanation is not a reasonable explanation for failing to comply with the request.
The applicant is not stateless and I have not accepted that he was a person of interest to Iranian authorities for any reason prior to leaving Iran. He has voluntarily engaged in contact with Iranian authorities since being in Australia. He was written two letters, although I accept that it is not clear that they were actually sent. He has telephoned embassy staff and conversed with them. This evidence suggests that the applicant is not fearful of contacting Iranian officials, although, as I have noted above, it may also mean that he has become a person of interest to the authorities since that time.
However, there is no requirement that the applicant contact state officials in order to obtain the documents he was requested to provide. He was born and lived in Iran for approximately [Number] years. Both his paternal grandparents were born in Iran, as was the applicant and all but one of his siblings. His family currently live in Iran, including his mother, father, brother and [sisters]. He has an uncle who has lived in Tehran for 30 years and now holds a white card. He attended an informal school for two years learning a language. I accept that the applicant is estranged from his father, but he still has contact with his mother and last spoke to her in September 2024. He says that his uncle in Tehran previously helped him by organising and paying the smuggler. It has been open for the applicant to provide any form of documentary evidence establishing his identity, citizenship or nationality, but he has produced nothing. No written statement from a parent, sibling or extended family member such as his uncle; no statement from a village elder or other respected person; no evidence of attending an informal school of any kind. There is nothing to connect the applicant with claimed identity and life in Iran beyond the oral evidence he has provided. It is reasonable to expect that some evidence could have been provided without making any contact with Iranian authorities.
The requirement to refuse to grant the protection visa in s 91W(2) does not apply if the applicant has a reasonable explanation for refusing or failing to comply with the request or producing the bogus document, and, either produces the evidence of their identity, nationality or citizenship or has taken reasonable steps to produce such evidence.
The applicant has not given the documentary evidence he was requested to produce, and there is no evidence before me to suggest he has taken any steps, reasonable or otherwise, to produce such evidence.
Accordingly, s 91W(2) applies.
Summary
I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
I also find that the grant of the visa is prevented by s 91W of the Act.
Accordingly, I must affirm the decision that is under review.
Decision
The Tribunal affirms the decision under review.
Hearing date(s): 7 October 2024
Representative: Mr James Clarke
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
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