1920818 (Refugee)

1920818 (Refugee) [2020] AATA 79 (15 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1920818
COUNTRY OF REFERENCE:                   Iran
MEMBER:Simone Burford
DATE:15 January 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 January 2020 at 1:23pm

CATCHWORDS
REFUGEE – protection visa – Iran – extra-marital relationships – threats and attacks by the women’s families and police/Basij – general economic conditions – fear of harm as a returnee and failed asylum seeker – credibility – inconsistent evidence – new claims added at each stage of the process to strengthen claim for protection – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 423, 424AA
Migration Regulations 1994 (Cth), Schedule 2

CASES

Abebe v Commonwealth (1999) 197 CLR 510
Iyer v MIMA [2000] FCA 52
Iyer v MIMA [2000] FCA 1788
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Lay Lat (2006) 151 FCR 214
MIMA v Rajalingam (1999) 93 FCR 220
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
Selvadurai v MIEA (1994) 34 ALD 347
SDAQ v MIMA(2003) 129 FCR 137
SZBEL v MIMIA (2006) 228 CLR 152
WAKK v MIMIA [2005] FCAFC 225

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 August 2018 (the delegate’s decision) to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Iran, applied for the visa on 18 September 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s.5H of the Act and was not a person in respect of whom Australia has protection obligations. Further, the delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Iran, there was a real risk that the applicant would suffer significant harm. Therefore, the applicant was not a person in respect of whom Australia has protection obligations under s.36(2) of the Act.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 30 July 2019. He provided a copy of the delegate’s decision.
The hearing was conducted with the assistance of an interpreter in the English and Farsi (Persian) languages.
The applicant is currently in immigration detention. The applicant appeared before the Tribunal on 26 September 2019 to give evidence or make arguments. The applicant attended the hearing in person. He was not represented in relation to the review. A further hearing was held on 22 October 2019. The applicant again appeared in person to give evidence and present arguments.
The issues in this review are whether there is a real chance, if the applicant is returned to Iran, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Iran, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

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 (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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CLAIMS AND EVIDENCE

Background

The applicant is a [age] year old male from Tehran, Republic of Iran (Iran). According to the delegate’s decision, he arrived in Australia [in] May 2013 as an unauthorised maritime arrival.
The applicant stated he left Iran by plane in April or May 2013. He said he took a direct flight to [Country 1] then travelled to [Country 2] where he caught a boat and came to Australia. On arrival in Australia an ‘Irregular Maritime Arrival and Induction Interview’ was conducted by the Department with the applicant on 21 June 2013 (the 2013 interview).
The applicant applied for a XE-790 Safe Haven Enterprise Visa (SHEV) on 15 September 2017.
Prior to travel to Australia he lived in Tehran. He said he was living with his parents while they were alive and then they passed away and he left. When in Tehran he said he had always lived in his parents’ home.
He said he had [a number of siblings] who were all married. He is the youngest of the siblings. He said all his siblings are still living in Tehran with their families including his nieces and nephews. He is in contact with his family however, he said when he speaks to his family it ‘creates a problem’ for him emotionally.
The applicant said he is of mixed ethnicity including [Country 3] and Iranian [Country 4] and said his parents spoke [Country 4 Language]. He did not raise any claims in relation to his ethnicity.
He said he worked as an assistant in a [company]. He said this was an office job, not as a [frontline worker]. He said people would call the company and he would get details and [perform a job task].
At the second hearing, the applicant told the Tribunal he is engaged to be married. The Tribunal understood from the applicant his fiancée was also in detention. He provided a partly completed ‘Notice of Intended Marriage’. That document indicates his fiancée was born in [Country 5].
He said the engagement was not relevant to his claims, it was just an update on his circumstances.

Protection claims

The applicant claims there is a real risk he will face serious or significant harm on return on a number of grounds. These are that:
·     He fears harm on return to Iran due to a prior relationship with an Iranian woman, [Ms A], whose family were members of the Basij;
·     He fears harm as a member of a particular social group being a man in relationship with a woman out of wedlock;
·     He fear harm as being seen to be against the Iranian government/regime due to his relationship with a woman out of wedlock (imputed political opinion); and
·     He fears harm on return to Iran due to a later relationship with a women who travelled to Australia with him.
The Tribunal also considered whether he faces harm on return to Iran as a returnee from the West and a failed asylum seeker.
The Tribunal had before it a copy of the delegate’s decision, which was provided by the applicant with his application for review. The Tribunal also had a copy of the Department’s file and information submitted by the applicant in support of his application for review.
In his application for protection the applicant stated, in response to a question relating to why he left Iran:
I left Iran as I was being seriously harmed by Iranian authorities, including the passage, due to my membership a particular social group being a man in a relationship with a woman outside of wedlock, which may also be seen to be against the Iranian government/regime (i.e. imputed political opinion). I fear that I will be targeted and persecuted on this basis if I returned to Iran. I note that this is not an exhaustive statement of what has happened to me in the past or the reasons why cannot return to Iran. A full statement of my protection claims, including my reasons for not being able to return to Iran, will be provided at a later date.
In a written document to the Department dated 8 June 2018 the applicant stated his claims as follows:
I was born in Iran and I left the country due to persecution. Iran is an Islamic country ruled by sharia law. I left Iran 2013 due to persecution because I was in a relationship with [Ms A] who was the sister of a government official.
When [Ms A]’s brother found out that we were involved in a premarital relationship, he got his officers to arrest me.
I was tortured for 10 days, at times I was handcuffed to a chair and beaten with batons, at one instance, they also inserted the pattern up my rectum.
Upon release, I made a plan to escape the country by any means necessary.
In 2013, [Ms B – alternative spelling] and myself fled Iran to where ever we could find safe haven.
If returned back to Iran, I will face torture, persecution and death according to Sharia law.
The applicant was interviewed by the Department on 6 July 2018. The Department file included a recording of the interview by the delegate, which the Tribunal has heard.
The Tribunal put to the applicant a summary of the claims contained in the application based on those included in the delegate’s decision, as follows:
·     He fears harm on return to Iran due to a zina relationship he had with a Persian woman ([Ms A]). The Tribunal noted this fear was described in the protection application as being in a particular social group being a man in a relationship with women out of wedlock.
·     He fears harm from the Iranian state and [Ms A]’s family. Her brothers are government officials.
·     He fled Iran with another woman in 2013. The Tribunal noted that her name was [Ms B] (or [Alternative spelling]) and he claimed to fear harm from her brothers because of the relationship.
·     The Tribunal noted that the application stated his relationship with [Ms A] was seen as an act against the Iranian regime.
The applicant confirmed this was an accurate summary of his claims but stated that at the time he and [Ms A] were together she had a brother but not a husband. He said he never said anything against the regime he concern was ‘just the woman and her family as police and Basij’.
He said [Ms B]’s family did not give their consent for them to marry and that is why they ran away.
When asked whether he had any additional claims the applicant stated that when he met [Ms B] in Iran she had a son and she left the son behind when they came to Australia. He claimed the son has now grown up and is ‘almost 17 or 18’ and is making threats towards him. When asked why this claim had not been raised earlier he said it had just come up and his family in Iran had informed him of the threats while he was in detention in [Location]. He confirmed he had not raised this claim before. He said he had no other claims.
The applicant’s claims are considered further below.

Receiving country

The applicant claims he is a national of Iran. The applicant did not hold an Iranian passport as he said this was destroyed by people smugglers when he was travelling to Australia. According to the delegate’s decision he provided an Iranian national identity card, which was untranslated. The delegate was satisfied that the applicant was a citizen of Iran. The delegate was also satisfied there was a reasonable explanation for causing documentary evidence of their identity, nationality or citizenship to be destroyed or disposing of documentary evidence of the national identity, nationality or citizenship. Based on the material before it, the Tribunal is satisfied that the applicant is a citizen of Iran.
There is no information before the Tribunal that suggests that the applicant is entitled to reside in another third country or for the purposes of s.36(6) of the Act. Accordingly, the Tribunal finds that the receiving country for the applicant, for the purposes of the refugee and complementary protection assessment, is Iran.

CONSIDERATION OF CLAIMS AND EVIDENCE

Credibility

The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is well-founded or that it is for the reason claimed. The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.[1] The Tribunal on review does not have a responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[2] This is consistent with the well-settled proposition that it is for the applicant to make his or her own case.[3]
[1] Section 5AAA of the Act.
[2] Section 5AAA of the Act, inserted by item 1 of Schedule 1 to the Migration Amendment (Protection and Other Measures) Act 2015 with effect from 14 April 2015.
[3] Prasad v MIEA (1985) 6 FCR 155 at 169–70; SZBEL v MIMIA (2006) 228 CLR 152 at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[4]
[4] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2011 at paragraph 196.
The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[5] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[6]
[5] MIMA v Rajalingam (1999) 93 FCR 220.
[6] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
The Tribunal notes that a decision-maker is entitled to consider whether an applicant subjectively has a well-founded fear of persecution before examining whether such a fear is objectively held or to proceed on the assumption that such a fear is held.
If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied. The Tribunal notes that in Iyer[7] the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status. The Federal Court confirmed that the Tribunal had applied the correct principles concerning the applicant's fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim. This decision was affirmed on appeal.[8]
[7] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34].
[8] Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA(2003) 129 FCR 137 at [19] per Cooper J.
The Tribunal also notes that if it makes findings that an applicant's claims are not credible, this may lead to the conclusion that the Tribunal does not believe the applicant genuinely held a subjective fear of harm. Where this is the case, the Tribunal is not required to proceed to assess other aspects of the applicant’s claims.
The Tribunal has significant concerns about the credibility of the applicant’s claims. There were marked inconsistencies in sworn statements and his testimony regarding aspects of his claims including in relation to events which occurred in Iran such as the development and conduct of his relationships with both [Ms A] and [Ms B] and of the harm, or threats of harm, he claimed to suffer as a result of those relationships. This includes the fact that he initially made no reference to fearing harm on return to Iran because of his relationship with [Ms A] or [Ms B] when he arrived and was interviewed by immigration officials. On critical aspects of his claims he struggled to provide meaningful detail, context or corroborative evidence or provided evidence which was markedly different to prior accounts including those provided in prior sworn statements. The degree of inconsistencies in the account of his core claims were so marked in the Tribunal’s view they cannot be satisfactorily explained by the passage of time since the events or by any aspects of the personal circumstances of the applicant. The Tribunal’s concerns in this regard are detailed further in the assessment below.

The Tribunal gave careful consideration to the applicant’s responses to issues of inconsistent or implausible evidence. The Tribunal is mindful of the passage of time and the effect this may have on the ability of the applicant to precisely recall dates and events. The Tribunal is also mindful that reliance on interpreters may result in inconsistences in evidence. The Tribunal was careful to give the applicant the opportunity to comment on or clarify apparently inconsistent statements and to clarify dates and evidence where it appeared to contradict earlier sworn statements. This included holding a further hearing to put these concerns to the applicant for his comment or response.
In considering these issues the Tribunal has had regard to the Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility published in July 2015.
However, the Tribunal found the large number of inconsistencies or vague or contradictory evidence including in relation to key events relating to the claims could not be explained merely by the passage of time, poor recollection or issues in translation. On the basis of the serious inconsistencies in the applicant’s statements over time the Tribunal did not find the applicant to be a witness of truth and was unable to accept his evidence as credible.
These concerns are addressed further below.

Adverse material

Information was before the Tribunal which was adverse to the applicant’s case. This principally arose from the applicant’s responses to questions at his interview with the delegate on 6 July 2018 (the SHEV interview) and the information he provided in the 2013 interview.
At the second hearing and complying with the obligations under s.424AA of the Act, the Tribunal put the content of the information to the review applicant for his comment or response. The Tribunal explained why the information was relevant and what the implications of the information were, subject to the review applicant’s response and if accepted, for the application for review.
The Tribunal offered the review applicant a brief adjournment to consider the information and whether he wished to respond orally at the hearing or in writing following the hearing. The applicant elected to respond to the information orally at the hearing and did not seek an adjournment.
The applicant’s responses and the Tribunal’s consideration are dealt with further below.

Claims

The applicant’s claims arise from two relationships he claims to have had with women in Iran, [Ms A] and [Ms B] ([Alternative spelling]). When the applicant was asked what he fears may happen to him if it goes back to Iran he said that there were two problems: the family of [Ms A] and the family of [Ms B] – these were two ‘permanent issues’ in his life.
During the hearing, the Tribunal questioned the applicant in order to determine the nature of his claims and to satisfy the Tribunal as to the applicant’s credibility. The Tribunal also sought clarification from the applicant about matters of concern raised in the delegate’s decision record.

Delegate’s findings

The Tribunal notes that the delegate’s decision found that:
·     Country information indicated that extramarital sex is a serious offence in Iran. Zina is a crime punishable by 100 lashes or the death penalty.
·     The delegate found that the Basij live in a guarded community with other Basij members and are carefully vetted and go through theological and ideological indoctrination. The delegate found based on the country information before that it was likely that [Ms A]’s husband would have been theologically conservative and that his household would have been religiously conservative.
·     The delegate noted that if [Ms A] had been stopped at the Basij checkpoint when she was in the company of an unrelated male she would have faced serious consequences. The delegate found that the applicant demonstrated little understanding of the risk [Ms A] would have faced by meeting him openly in public places and by driving together alone.
·     The delegate pointed to country information that indicated that honour killings are more common in tribal non-Persian communities of Iran. The delegate found the country information indicates it would be unlikely that honour killings would take place in a city Persian community like Tehran. The delegate found the country information indicated [Ms A] would have been the one most at risk of being subject to an honour killing. The delegate found that the applicant showed no knowledge of the risk that [Ms A] would have faced if her husband had found out that she had committed adultery or zina. The applicant showed a lack of concern about her safety after he claimed he was threatened by her husband.
·     The delegate also found based on country information it was extremely unlikely that [Ms A]’s husband would tell anyone that his wife had committed adultery.
·     When the applicant was discussing the harassment he received from the Basij due to his relationship, he claimed he had been detained twice by the Basij. He was approached when driving and asked for documents. He had been taken and beaten. He was pulled over a second time and beaten while he was intoxicated and released without charge after two days.
·     The delegate noted that the penal code penalises the use of alcohol with 80 lashes regardless of whether the consumption causes drunkenness or not. The delegate found that the punishment the applicant claimed to have received was less than that which would have been applied under the Islamic penal code and that that information was inconsistent with his claim that the Basij were targeting him.
·     Based on the inconsistencies in the applicant’s claims and the country information, the delegate found that the applicant did not have a relationship with a Persian woman called [Ms A].
·     The applicant claimed he had to go into hiding following the incident’s with [Ms A]’s family but then admitted that authorities were aware where he was living for at least six months prior to his leaving Iran (when he renewed his passport).
·     The delegate raised concern that in his arrival interview the applicant did not mention having to hide from authorities in Iran or his relationship with [Ms A] and the issues arising from it. In response, the applicant had stated that when he came here he was with [Ms B] and was relying on her claims and now that he is not with her he has to have claims of his own.
·     The delegate found the applicant lived for a year and a half following the claimed incidents with no issues and did not fear harm from [Ms A]’s husband when he left. The delegate also found that [Ms A]’s husband did not want to harm the applicant before he departed from Tehran.
·     The delegate found that the applicant did not state in his claims before his interview with the Department that he was concerned or had a fear of harm arising from his relationship with [Ms B] and the disapproval of her brothers. The applicant claimed that [Ms B]’s brothers did not hurt him when he was living with her as she lived independently from her family and one of her brothers was in prison. He claimed he had received a threatening call from [Ms B]’s brothers while he was in immigration detention. The delegate considered information he provided was inconsistent with country information and with information that [Ms B]’s family had not objected to them living together in Iran. The delegate found the applicant did not have a fear of harm from his ex-partner’s brothers on his return to Iran.
·     The delegate also considered whether the applicant would face harm as a failed asylum seeker from a Western country on return to Iran. The delegate found that the risk profile for a low-profile individual’s return to Iran generally matches other Iranians of the same political ethnic religious or socio-economic grouping who never left. DFAT has provided consistent advice that claiming asylum whilst abroad is unlikely, in and of itself, to be a trigger for maltreatment upon return to Iran. The delegate pointed out country information about treatment failed asylum seekers in Iran being contradictory and that there were some examples of failed asylum seekers being prosecuted for political or other activities upon return, however these appear to obtained profiles or else had a criminal record in Iran before leaving. DFAT reports the voluntary returnees do not attract much interest from authorities and they will generally only be questioned if they have done something to attract the specific attention of authorities. The vast majority of people questioned would be released after an hour or two. DFAT also notes that it is unaware of any social or legislative barriers for failed asylum seekers finding work or shelter in Iran. Country information also indicates that a person would not be targeted by the authorities on return to Iran for the sole reason of being a failed asylum seeker. The delegate did not accept, based on this information, that the applicant having claimed asylum in Australia would itself attract interest. The delegate did not accept the applicant was a person of interest to authorities at the time of departure from Iran or that he had engaged in any activities since leaving for Australia which would have brought him to the adverse attention of authorities in Iran and on that basis the delegate was not satisfied there was a real chance that he would be identified as a person of interest on return.
These findings were discussed with the applicant at the hearing.

Relationship with [Ms A]

In relation to the claimed relationship with a Persian woman named [Ms A] while the applicant was living in Iran, the Tribunal notes that the delegate found that the applicant did not have the claimed relationship. These issues and other matters arising from the applicant’s claims and his testimony before the Tribunal and the Department were discussed with the applicant at the hearing.
The applicant told the Tribunal he met [Ms A] around 2010-2011. He said that he met her when he was in a square (Horr Square) in Tehran. She came out of an alley and walked towards him. She ignored him for a while and after that they chatted. The applicant stated:
In fact that little alley that she came out, that was her sister’s house and I followed her, I walked with her to her house and I learned where she lives and day after I started going to that area in the hope that I see her because I liked her.
Her house was close to one of my friend’s house. My friend had rented a room and apartment, and was new in the area and did not know this family and I used to pay a visit to him as well.
As they say in a common saying I had a feeling towards her but in the beginning she did not accept but slowly, slowly we got together and spoke together. So we got together we started getting to know each other, although she had a full hijab and we used to go out to some places and do whatever we did until one day when we were together one member of her family saw us. That person goes to [Ms A]’s house and spoke to her mother as in the family it is totally unknown and taboo to have a boyfriend this person goes and congratulates [Ms A]’s mother as that person seems to understand we were engaged or I am her fiancée and that sort of started all the complication and problem. Brother was somewhere in the house, he hears and sometime later they find me and as they have power and authority they took me somewhere, throw me somewhere, they do whatever they like, like beating me up, and this happened a few times.
The Tribunal confirmed with the applicant that he met [Ms A] in the street. He said she was going home and he followed her. He said she lived between the square and an area where religious people live. When asked how old [Ms A] was he said he ‘28-29. I don’t know’
The Tribunal asked who she was she living with and the applicant said he never went to house but she told him she was living with her brothers and sisters. She was not living with her parents. After her brothers found him and beat him up, three or four times, he realised she was married and had a husband.
The Tribunal put it to him that at the beginning of the hearing he claimed [Ms A] did not have a husband, just a brother. He said maybe he didn’t understand earlier but that a friend who they knew told him they were married. When the Tribunal pointed out to the applicant that he had just told the Tribunal that [Ms A] was living with her brothers and sisters he said his friend told him that but maybe she didn’t have a husband. He said he had never met her husband.
He said that when he met up with [Ms A] they went to his ‘bachelor house’. The Tribunal put to the applicant that he had said earlier that he had always lived with his parents. He said that when he said single or bachelor he meant his mum or dad were not always there at that time.
When the Tribunal queried whether he was worried about taking a young woman who was not related to him to his parents’ house he said he wasn’t worried because it was empty and he knew that. The Tribunal asked if [Ms A] was worried and he said ‘No’. He said they didn’t go out much and sometimes he borrowed a friend’s car to pick her up. He said he had a motorbike not a car. Once they went to the Bazaar together and someone saw them.
The Tribunal raised a concern whether someone the applicant claimed was from a strict religious background would have gone out in public, to a private home in a car with someone not related to her. The applicant said ‘every girl, every woman likes to have a man or the opposite sex in her life, she is not here to explain to you personally but, well she liked me and wanted to be with me’.
The Tribunal asked how he contacted her to arrange to meet. He stated that she called him in his office and he would take time off and go. In one year they met a maximum of seven or eight times. The last time was they were exposed. At that point they had been seeing each other ‘a year or maybe a year’.
He claimed that when they were exposed her brothers came and picked him up and took him ‘somewhere’ for four to five days and beat him. He said it was, ‘somewhere around the cemetery, around there.’ The Tribunal asked where he was picked up and he said out the front of his office. He said they had weapons and were wearing suits. The Tribunal asked how he identified them as Basij and he said that where they lived is Basij or the family of the martyred or police. It was a high security area. He said one brother was a member of the police the others were Basij and if they wanted information about him they could get it. He said he understood who they were when they said he was having an affair with our sister and he asked who was their sister and they said ‘[Ms A]’. He said they picked him up and put him in the boot of a car. They went somewhere on a highway and held him for a week. When asked where they had held him for a week he said ‘somewhere like a factory, tied up to chair.’ He said he would never forget it was a week.
He said they had picked him up and beat him a lot of times. He said the last time he was picked up or beaten by these people was ‘exactly four months prior to coming to Australia’.
The Tribunal asked why he thought he would still be at risk from them after so much time had passed. He said ‘why shouldn’t I think that they won’t?’
When asked whether any threats had been made to him or his family since he left Iran he said no, they had come after the person they wanted.
There were serious inconsistencies in the applicant’s account of his relationship with [Ms A] and the harm he claimed he suffered as a result of that relationship in the evidence the applicant gave before the Department, his sworn testimony before the Tribunal and the claims that he made when he first arrived in Australia.
The Tribunal formally put the following concerns to the applicant at the second hearing regarding the information he provided when he first arrived in Australia, in compliance with its obligations under section 424AA of the Act. The Tribunal notes the applicant elected to comment or respond to the information at the hearing and did not seek an adjournment.
The Tribunal put to the applicant that he claims to fear harm on return to Iran from authorities, the Basji and the family of his former partners, [Ms A] and [Ms B] and to have suffered harm from the Basji and police in Iran due to his relationship with [Ms A] and from the brother of [Ms B]. However, information before the Tribunal included the following particulars:
·      When he first arrived in Australia and was interviewed (the 2013 interview) he said he left Iran because his wife had problems with her dress and he had been picked on because of the way his wife dressed and the way they acted in public. He also complained that when he went to sleep at night prices doubled by the morning.
·      He claimed that every night the authorities (Basij/police) stop and search people for no specific reason.
·      When asked whether he came to Australia to work he said he came for work and for his child’s future.
·      He did not mention fears of harm due to his relationship with [Ms A] or any harm from [Ms B]’s family due to their relationship.
The Tribunal explained that this information was relevant because the inconsistencies between the applicant’s statements over time may lead the Tribunal to doubt the truthfulness of his evidence and to consider that his claims lack credibility. It may also cause the Tribunal not to accept that he has a well-founded fear of persecution if he returns to Iran or that there is a real risk that he will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Iran. This would be the reason, or part of the reason, why the Tribunal would affirm the decision under review.
The applicant responded that when he came to Australia with [Ms B] there was no question as to what would happen if they were returned. The Tribunal pointed out that the applicant was asked at that time why he had left Iran. He said that ‘at that time I was with [Ms B] and I want to continue to be with her. I didn’t want to say bad things about her family in front of [Ms A] and [Ms B]. Plus I just wanted to say we came here for a good life.’
He said he didn’t remember if they asked him if he was in danger. He said ’I know that I have done a lot of mistakes but I want the opportunity to make it right. I am getting married and I want to do the right thing.’
The Tribunal also put the following information to the applicant arising from his testimony before the Tribunal and his previous evidence to the Department. The particulars of the information were:
·     The applicant told the Department at interview that he met [Ms A] when she hailed him for a lift in his car. They exchanged numbers and the relationship developed from there. However, he told the Tribunal he met [Ms A] while walking and he learned where she lived and then hung around that area until he saw her again.
·     The applicant told the Department he was working as a private taxi driver. He told the Tribunal he was working for a [company] taking calls in an office. He told the Tribunal he had a motorcycle not a car.
·     The applicant told the Department [Ms A] was 23 years old, he told the Tribunal she was 28 or 29.
·     The applicant told the Tribunal initially that [Ms A] was not married when they were together but she had brothers. He later said she was married and when asked about his earlier statement he said he didn’t know that at that time.
·     The applicant told the Tribunal [Ms A] lived with her family including her brothers. He told the Department she lived on her own because she was married.
·     The applicant told the Department he was first taken by [Ms A]’s brothers when he was driving and he was taken away to a mosque for 10 days and beaten. He said they knew his car registration number, which is how they had located him, and pulled him over. The applicant told the Tribunal he was picked up in front of his office was taken for four to five days or a week.
·     The applicant told the Tribunal a friend had told him [Ms A] was married but he has never met her husband. However, he told the Department her husband was present every time he was taken by the police or Basji.
·     The applicant told the Tribunal he used to take [Ms A] to his bachelor house. However, he also told the Tribunal he lived with his parents until he left Iran.

The Tribunal explained to the applicant that the information was relevant because the inconsistencies between his statements over time may lead the Tribunal to doubt the truthfulness of his evidence and to consider that his claims lack credibility. It may also cause the Tribunal not to accept that he had a well-founded fear of persecution if he returned to Iran or that there was a real risk that he will suffer significant harm as a necessary and foreseeable consequence of his being removed from Australia to Iran. This would be the reason, or part of the reason, why the Tribunal would affirm the decision under review.
The applicant said the issues were irrelevant. The Tribunal again explained their relevance and invited the applicant to comment or respond to the information.
The applicant responded that:
I still say the things already said, I don’t think anything new. If it was a false story I would have made up a story that there wouldn’t be any doubts or reasons to not believe it. I can understand these are contradicting but there was an office, everyone knew where I worked, this is regarding relationship with [Ms A] and how I met her.
The applicant said his parents had died by the time he met [Ms A]. He said her husband was working for the Basij ‘they are everywhere, they are part of law enforcement that’s what I meant, they are more powerful than the police’. He said he was confused about the car but ‘it was real and it is really happening’. When asked again about his claims to the Department that [Ms A]’s husband was present when he was beaten he said ‘they are everywhere, they are on motorbike and part of the law enforcement and they can stop you without any reason and he was working in the area I lived.’
The Tribunal has serious concerns regarding the applicant’s claimed relationship with [Ms A]. There were marked differences in the account of the applicant’s relationship with [Ms A]. These included his account of how they met, where she lived and whether or not she was married and how the relationship was conducted. In addition there were significant inconsistencies in the applicant’s account of the claimed harassment by authorities as a result of relationship including the presence of [Ms A]’s husband at when he was held or questioned by Basij or police, the circumstances in which he was picked up by authorities, how long and where he was held and other factors including whether he was intoxicated when detained.
The Tribunal found the applicant’s explanations for the significant differences over time in his account of the relationship and of the harm he claimed to have suffered to be deeply unsatisfactory. As noted earlier, the Tribunal is cognizant of the effect of the passage of time however in the Tribunal’s view the marked inconsistencies (detailed above) in the account of how the couple met, how the relationship was conducted, [Ms A]’s personal circumstances and the claimed incidences of violence against the applicant by her brothers and/or husband could not be explained by the passage of time, language difficulties or the stress of giving evidence.
Having regard to the country information, which was detailed in the delegate’s decision, the Tribunal also has concerns regarding the plausibility of the applicant’s claimed relationship with [Ms A].
The Tribunal does not accept the applicant was in the claimed relationship nor that he suffered any hardship as a result of it. Having regard to all the information, the Tribunal finds the applicant was not in a relationship with a Persian woman named [Ms A] to whom he was not married prior to coming to Australia. The Tribunal finds the applicant was not harmed by [Ms A]’s brothers, husband or any other person as a result of that relationship.

Relationship with [Ms B]

In relation to the claimed relationship with an Iranian woman named [Ms B], with whom the applicant claims to have travelled from Iran, the Tribunal notes that the delegate found that the applicant did not have a fear of harm from [Ms B]’s brothers and that the applicant had manufactured this claim. These issues and other matters arising from the applicant’s claims and his testimony before the Tribunal and the Department were discussed with the applicant at the hearing.
The applicant claimed to have travelled to Australia with a woman called [Ms B] whom he met in 2012. He said she was a friend of his sister. At that time [Ms B] was living with her mother and she got divorced from her husband. He said she was 33 when they started going out. He said they commenced a relationship in August 2012.
He said around three or four months later they decided to get married but her brothers were opposed. He said the first time [Ms B]’s brother’s saw them together they made an excuse but the second time they couldn’t use the same excuse. He said on the second occasion the older of [Ms B]’s two brothers saw them and ‘he took me somewhere and he beat me up and said if you see me next time it will be worse.’ He suggested that [Ms B]’s brother was ‘Shararati’. The interpreter said this translated into a ‘wrong doing person’. The applicant said they would come out with knives or daggers or swords and attack people.
The applicant told the Tribunal that he received threats from [Ms B]’s family when they were in Tehran and then once when they were in Australia. He said he didn’t know how they had gotten his telephone number but it had happened once here too.
He said he and [Ms B] were not married when they arrived in Australia but they planned to get married. They separated in the detention centre in Darwin. ‘When we were in Darwin fought a lot and they separated us. People who worked there and our case managers are aware of the situation’. They don’t talk now and he was not sure if she was in Australia.
He said he received threats from [Ms B]’s family ‘when we were in Tehran and when we came to Australia’. He didn’t know how they got his phone number. He said he got calls a couple of years after they arrived in Australia but he wasn’t sure when. He later said he got a call in 2013 or 2014. He said it was when he was in the community in Sydney. He claimed [Ms B]’s son and brother made contact with him. He said he got two calls and after the second he changed his SIM card. He said they called together, first her son talked to him and was swearing and then her brother was swearing and threatening him.
The delegate’s decision indicates the applicant did not raise any claims in relation to threats from [Ms B]’s son. The applicant confirmed that he had not raised the claim earlier because it ‘happened recently’ and his family in Iran had informed him. He said the son had threatened him before he entered the [Location] detention centre but he thought he was just a boy but ‘later on it was different’.
The Tribunal asked whether the applicant had mentioned to the Department or delegate being attacked by [Ms B]’s brother before he left Iran and he said he didn’t. When asked why didn’t mention it, he said he if he mentioned it he should have talked about [Ms A] and what happened with her. He said he and [Ms B] ‘came here to have one case and live together’. He said he had a fear if they told the Department they would think he was one of those shararati and separate him from the rest. He said he did not mention it in his SHEV interview either. The Tribunal notes that the applicant claimed in his SHEV interview that he had received a threaten call from [Ms B]’s brother while in immigration detention. The delegate’s decision record indicates he told the delegate he did not fear harm when he left Iran.
The Tribunal pointed out the effect of s. 423 and explained that it was required to draw a negative inference on the credibility of any claim not raise prior to the original decision being made unless a reasonable explanation is given. He said he had signed a paper and he was confused. He then said ‘Maybe I have maybe I haven’t, I think I haven’t sent anything. I shouldn’t have even told you things at all. I made a mistake.’ He swore he was beaten. He said the Tribunal could ‘delete it’. The Tribunal explained it couldn’t delete his evidence and that it was important that he answer the questions he was asked honestly.
When asked why he says he is still at risk from [Ms B]’s family he said he knows he is ‘100%’ because his brother was beaten up by [Ms B]’s family after they came to Australia in 2013. He said his brother pressed charges and they have a case in court. The applicant was asked if he had evidence of the attack and he said he didn’t but would time to contact his brother. Additional time was provided following the hearing to provide any supportive evidence.
Following the second hearing on the Tribunal’s invitation, the applicant provided two photographs of a man with a scar on his arm and the other lying on a bed with what appear to be injuries to his torso and arm. The applicant submitted these were photographs of his brother showing injuries he sustained after the attack and fighting. The Tribunal notes that there is nothing to identify the person in the photographs other than the applicant’s assertion that they are of his brother. Giving the applicant the benefit of the doubt the Tribunal accepts that the photographs are of his brother and that his brother was injured. However, there is no evidence before the Tribunal to support the applicant’s assertion linking these injuries to the applicant’s relationship with [Ms B] or that they were caused by [Ms B]’s family. In the context of the Tribunal’s concerns regarding the credibility of the applicant’s testimony, detailed further below, the Tribunal gives the photographs limited weight as corroborative evidence of harm caused to the applicant’s family as a result of his relationship with [Ms B]. No evidence in relation to the claimed court proceedings or charges was provided.
This claim had not been raised previously. The Tribunal pointed out that it had been several years and this was the first time he had raised this claim. The applicant said ‘because when I came here it was two nights and I didn’t have a good sleep.’ The Tribunal pointed out that the applicant hadn’t raised this claim with the Department when interviewed and he said he didn’t talk about it. The Tribunal highlighted to the applicant that it was required to draw a negative inference against the credibility of any claim not raised before the primary decision was made where the Tribunal was not satisfied there was a reasonable explanation for the claim not having been raised earlier. The Tribunal pointed out that the interview with the delegate had included discussion with the applicant about his relationship with [Ms B] and his claim to have been threatened by [Ms B]’s family but he hadn’t mentioned the harm caused to his brother. The Tribunal invited the applicant again to explain the reason the claim had not been made earlier. The applicant said it was ‘because I didn’t think it was important to raise and also I forgot. I was asked what happened if you go back and I didn’t think of it. These are the reasons that I am not able to go back. Because I was thinking about only myself and my own safety and I wasn’t thinking that I should mention my brother’s safety too’.
The Tribunal noted that the delegate’s decision mentioned the applicant had made an application for voluntary return in 2014. The applicant said he thought he didn’t have any problems but then his sister and brother told him it was not safe to go back. He said his sister was sick and he was concerned about her ‘but when they told me what happened’ he didn’t want to go back. When the Tribunal asked what had happened he said ‘when they told me the story of what happened I thought when they showed me pictures I thought this is serious. Initially they didn’t tell me what happened. Culturally they kept the bad news, don’t want to tell me’. The Tribunal understood the applicant to be talking about the claimed injuries to his brother.
The Tribunal asked why the authorities would not protect him from [Ms B]’s family and he said ‘because they couldn’t protect my brother and his hands are now injured, if they kill me it is too late’. He said in Tehran ‘if someone kills someone they just buy their sentences that’s it, they could get a year or two in prison but the rest can be bought’.
There were inconsistencies in the applicant’s account of his relationship with [Ms B] and the harm he claimed he suffered as a result of that relationship in the evidence the applicant gave before the Department, his sworn testimony before the Tribunal and the claims that he made when he first arrived in Australia. The Tribunal formally put the following concerns to the applicant at the second hearing in compliance with its obligations under section 424AA of the Act. The Tribunal notes the applicant elected to comment or respond to the information at the hearing and did not seek an adjournment.
The particulars of the information were:
·      As noted earlier, when he first arrived in Australia he did not mention threats of harm or incidents of harm from [Ms B]’s brothers as a reason he left Iran.
·     The applicant told the Tribunal that he started a relationship with [Ms B] in 2012. In his arrival interview on 21 June 2013 he said he was married and that he had a marriage certificate issued on 17 April 2010 in the registry office in Tehran. The applicant told the Tribunal he and [Ms B] were not married.
·     The applicant told the Tribunal he was beaten up by [Ms B]’s brother. He did not mention this in his arrival interview or in his interview with the Department.
·     The applicant told the Department when he left Iran no one was after him.
·     The applicant told the Department he withdrew his voluntary return request because [Ms B]’s brother had called him in the immigration detention centre and threatened him. However, he told the Tribunal he withdrew the request because his family told him about the attack on his brother.
·     The applicant told the Tribunal [Ms B]’s son had made threats against him. He did not mention these claims to the Department.
The Tribunal explained the information was relevant because the inconsistencies between the applicant’s statements over time may lead the Tribunal to doubt the truthfulness of his evidence and to consider that his claims lack credibility. It may also cause the Tribunal not to accept that the applicant has a well-founded fear of persecution if he returns to Iran or that there is a real risk that he will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Iran. This would be the reason, or part of the reason, why the Tribunal would affirm the decision under review.
In response, the applicant stated that each time the Tribunal asked him something ‘I might remember something and tell you something, these things I just remember generally’. He said the fact he was in detention ‘tells you I have problem in Iran and don’t want to go back, even I had 1% chance I didn’t have issue I would return to Iran. These are real reasons, details can be different but it doesn’t mean my life is not in danger. If it was a made up story the details would be the same, because the thing has happened something could be different. These are my reasons that my life is in danger’.

100.He said he knew he had made mistakes but he is getting married and wanted to build his life again. He said he hoped if he gets a visa he and his fiancée can have the same visa. He said if he is given one more chance ‘I can show I am a different person. I know that in the past, I have made mistakes. I want to be a better person.’
101.There was inconsistent evidence as to the status of the applicant and [Ms B]’s relationship when they arrived in Australia. The applicant said he wasn’t married to [Ms B] at the time but that they had provided a religious certificate under Sharia law which ‘said you are able to be with your partner’ but that this was not an official marriage certificate. He said they were never married. The document referred to in the 2013 interview record was not before the Tribunal. As there is no evidence before the Tribunal that they were validly married the Tribunal accepts that they were not validly married. However, the Tribunal finds that they purported to be partnered according to Sharia law.
102.The Tribunal notes that the delegate’s decision indicates the applicant stated his mother had accepted their relationship and no one was after him when they left Tehran. The applicant did not raise any claim to fear harm from [Ms B]’s family in his arrival interview or until his SHEV interview where he only claimed to have been threatened by her brother on the phone. Based on the evidence before it, the Tribunal finds that the applicant and [Ms B] arrived in Australia together and were unmarried. The Tribunal finds that that the applicant did not face harm in Iran prior to leaving as a result of that relationship.
103.While the Tribunal accepts that country information states that unmarried couples may be of interest to Iranian authorities in Iran and may face legal and other sanctions for extra-marital relationships, the Tribunal finds on the evidence that the applicant and [Ms B] did not suffer harm as a result of their relationship in Iran. The Tribunal further finds that they are no longer in the relationship. The applicant did not raise any concern regarding adverse attention from authorities due to his relationship with [Ms B] either when the couple were in Iran or on his return to Iran. Further, the Tribunal does not accept the applicant’s claim that members of [Ms B]’s family were opposed to the relationship to be credible. There is no information before the Tribunal to suggest that there is a real risk of serious or significant harm to the applicant on return to Iran on the basis of authorities becoming aware of that the applicant and [Ms B] were in a relationship in Iran.
104.Given the inconsistencies in the applicant’s evidence and in particular the late addition of the applicant’s claims to fear harm as a result of his relationship with [Ms B] from her brothers, late claims of harm to his brother and late claims of threats from [Ms B]’s son, the Tribunal has serious concerns with the credibility of the applicant’s claims. The Tribunal does not accept the applicant’s late claims to have face harm due to family opposition to his relationship with [Ms B]. The applicant failed to raise any concerns regarding threats from [Ms B]’s family until his interview with the Department in mid 2018 despite claiming to have been beaten by [Ms B]’s brother prior to leaving Iran in 2013. The Tribunal regards the applicant’s explanation for failing to raise this claim on his arrival in Australia is not credible.
105.Further, having regard to the fact that the applicant has been interviewed on a number of occasions regarding his reasons for coming to Australia and the harm he feared on return to Iran, the Tribunal does not regard the applicant’s explanation for having failed to raise the claimed threats against him from [Ms B]’s son and the attack on his brother until his evidence before the Tribunal to be credible.
106.Having considered all the circumstances of the applicant’s claims regarding the threat from [Ms B]’s son and the instance of claimed harm against the applicant’s brother, the Tribunal finds the applicant failed to raise that claim before the primary decision was made, despite the applicant being afforded several opportunities to do so including on arrival and in his interview with the Department. The Tribunal further finds the applicant does not have a reasonable explanation for his failure to raise these claims earlier. The Tribunal draws a negative inference from his failure to do so with respect to the credibility of his claim to have a well-founded fear with respect to [Ms B]’s son or with regard to any harm to his family by [Ms B]’s brothers.

107.The Tribunal considered the photographs submitted by the applicant which he claimed showed injuries to his brother as a result of an attack by [Ms A]’s brothers. The Tribunal accepts the applicant’s brother may have been injured. However, there is no evidence medical or other evidence indicating the cause of the injuries sustained by his brother . There is no evidence to support the applicant’s claim that these injuries were caused by or due to [Ms B]’s family or that the attack had been reported to authorities and investigated. The Tribunal does not accept that they were.
108.Having regard to the serious inconsistencies in the applicant’s claims over time (which have been detailed above), the fact he has added claims on each occasion he has been interviewed and did not have a reasonable explanation for the failure to raise some claims before the primary decision was made, the Tribunal finds that the applicant has manufactured these claims to strengthen his claims for protection. The Tribunal finds the applicant has not been threatened or attacked by [Ms B]’s brothers in Iran. The Tribunal finds that the applicant has not received threats from [Ms B]’s son or [Ms B]’s brothers that he would harm him on return to Iran. The Tribunal does not accept the applicant’s claims that they would do so in the future to be credible.
109.Combined with the credibility concerns raised by the late nature of the claims, this causes the Tribunal not to accept that the applicant subjectively holds a well-founded fear of persecution in Iran due to threats made against him by [Ms B]’s son, because of an attack against his brother or because of an attack or threats aginst him from [Ms B]’s brothers.
110.Further, the Tribunal finds that the applicant does not have a subjectively held fear of harm on return to Iran as a man who was in a relationship with a women out of wedlock from Iranian authorities or any other person or group. The applicant and [Ms B] are no longer in a relationship and there is no evidence that they were of interest to authorities when they were living in Iran. The applicant’s own evidence establishes they were not of interest to authorities when living in Iran. The Tribunal finds on the evidence available that this is because they were otherwise conducting themselves in a manner consistent with the requirements of Iranian law.
111.The Tribunal does not accept the applicant’s claim that [Ms B]’s brothers and son opposed the relationship at the time the couple were in Iran or that they threated the applicant after the couple separated in Australia. The applicant’s evidence was that [Ms B]’s mother supported the relationship. On the evidence the Tribunal finds there is no real chance that the relationship would be reported to authorities as unlawful by [Ms B]’s family or any other person.

Other claims

112.As noted above, on arrival in Australia an ‘Irregular Maritime Arrival and Induction Interview’ was conducted by the Department with the applicant (the 2013 interview). At that interview the applicant provided the following information:
·He said he left Iran because his wife ([Ms B]/[Alternative spelling 2]) had problems with her dress and he had been picked on because of the way his wife dressed and the way they acted in public. He also complained that when he went to sleep at night prices doubled by the morning. He said it was very expensive to live and there is low wages.
·He said that every night the authorities stop and search people for no specific reason.
·When asked if he came to Australia for a job he said he said he came for work and for his child’s future.
·When asked what he thought would happen to him if he returned to Iran he said ‘It is like I am dead in Iran, if I am back in Iran I am dead’.

113.This information was put to the applicant by the Tribunal for comment or response at the hearing.
114.The Tribunal notes that the applicant did not make any claims in his application for protection (the SHEV application) in his SHEV interview with the Department or before the Tribunal that he feared harm on return to Iran due to problems with [Ms B]’s dress, inflationary or economic pressures in Iran or the authorities (Basij or police) stopping and searching people every night for no reason.
115.The Tribunal notes that the applicant’s claims were discussed and confirmed with him at the commencement of the hearing. The applicant was invited by the Tribunal at the commencement of the hearings to add to or amend his claims for protection. He did not raise these issues as claims before the Tribunal and did not offer any evidence is support of these claims which may have suggested to the Tribunal that he was seeking to rely on them as a basis for his claims for protection.
116.The applicant did not suggest during his testimony before the Tribunal or in his interview with the Department regarding his circumstances in Iraq prior to travelling to Australia that he and/or [Ms B] had been ‘picked on’ because of the way [Ms B] dressed or the way they acted in public. He did not mention high inflation, low wages or the cost of living in Iran or any other economic issues in Iran as a basis of harm on return to Iran. He did not indicate he came to Australia in search of work or to secure his child’s future but said he had come to avoid harm from [Ms A] and [Ms B]’s families.
117.In this regard the Tribunal notes that it is for the applicant to make their own case for protection. Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. Applying this section, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[9]
[9] Prasad v MIEA (1985) 6 FCR 155 at 169-70; SZBEL v MIMIA (2006) 228 CLR 152 at [40]; Re Ruddock; Ex parte ApplicantS154/2002 [2003] HCA 60 (Gleeson CJ, Gummow , Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, I November 2005) at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].
118.On the basis of the information before it the Tribunal does not accept that the applicant has a subjectively well-founded fear of persecution on return to Iran due to his ‘wife’s’ dress or their behaviour in public. The applicant did not raise this issue with the Tribunal when asked what his fears on return to Iran were. Further, applicant told the Department that he was not suffering harm from anyone when he left Iran and, based on findings detailed elsewhere in this decision, the Tribunal does not accept that the applicant was of interest to the authorities when he left Iran for reasons of his ‘wife’s’ dress, their behaviour in public or any other reason. In any event, as the applicant is no longer in a relationship with [Ms B] and the Tribunal has found he was not of interest to the authorities when he left Iran on this or any other basis, the Tribunal finds there is no real chance the applicant will suffer serious harm on return to Iran or in the reasonably foreseeable future on the basis of his ‘wife’s’ dress or their behaviour in public.
119.The Tribunal accepts the applicant may have left Iran to seek better employment or economic outcomes in Australia. However, the Tribunal notes that he claimed to be working prior to leaving Iran and had been for some time. He did not provide any evidence of economic hardship in Iran.
120.Seeking economic benefits in another country, in and of itself, does not give rise to a well-founded fear of persecution for the purposes of the refugee criteria. Nor does it give rise to a real risk of significant harm under the complementary protection assessments.
121.The Tribunal notes that the applicant has failed to identify, having regard to s.5J(1)(a), any basis on which any claimed economic hardship in Iran arises by reason of race, religion, nationality, membership of a particular social group or political opinion. In this respect, the Tribunal also has regard to s.5J of the Act, relating to a well-founded fear of persecution in a country. In particular, s.5J(4)(c) which requires that:
The persecution must involve systematic and discriminatory conduct.

122.Generalised economic circumstances in a country do not meet the requirement of systematic and discriminatory conduct, in the absence of other considerations. The Tribunal finds that the applicant has provided no evidence that the economic circumstances in Iran amount to systematic and discriminatory conduct with respect to his circumstances. Accordingly, the Tribunal finds that he does not face persecution involving systematic and discriminatory conduct, for the purpose of the refugee criteria, on the basis of his economic circumstances in Iran now or in the reasonably foreseeable future from any person.
123.The Tribunal also notes that in order to give rise to a real risk of significant harm under the complementary protection assessment, a somewhat similar motivation of harm towards the applicant, from identifiable agents of harm, is required. Accordingly, on the basis that the applicant has not provided any evidence of an identifiable agent of harm, motivated to cause him significant harm in Iran, the Tribunal finds that he has not made out his case to the relevant standard with respect to economic conditions or his economic circumstances in Iran.
124.The Tribunal notes the applicant also raised in the 2013 interview that the police and Basij stopped and searched people for no specific reason. He did not offer any evidence to support this claim. The applicant’s evidence to the Tribunal was that he was stopped and held by police and Basij on serval occasions due to his connection with [Ms A]. Before the Department he claimed to have been stopped several times for this reason and held twice including on one occasion when intoxicated. He did not raise any claim to fear being stopped by police or Basij for no reason. For the reasons outlined above the Tribunal does not accept the applicant was stopped or held by police or Basij in Iran in connection with his relationship with [Ms A] or for any other reason. Further, there is no evidence that the applicant was being stopped by police and Basij for no reason.
125.On the evidence before it the Tribunal finds the there is no real chance that that the applicant would face serious harm from police and Basij or any other Iranian authorities on the basis of being stopped and searched by police or Basij for no reason. The Tribunal does not accept the applicant would be stopped and searched by Iranian authorities, including police and Basij for no reason, and so finds. The Tribunal finds that the applicant does not have a well-founded fear of persecution on this basis.
126.As the Tribunal finds the applicant would not be stopped and searched in Iran by authorities for no reason, the Tribunal does not accept that there is a real risk the applicant will suffer significant harm on return to Iran or in the foreseeable future on this basis.

Returnee from the west and failed asylum seeker

127.The Tribunal has considered if the applicant faces a well-founded fear of persecution on return to Iran as a returnee from the West and a failed asylum seeker. The Tribunal notes that on the applicant’s evidence he left Iran in 2013 with his then partner via the Tehran airport on a passport issued in his own name. According to the delegate’s decision, the applicant claimed the passport was later destroyed by people smugglers.
128.Before the Tribunal, the applicant claimed that he may be stopped and targeted when he returns to Iran given he has been outside the country and in a western nation, noting that Iran is suspicious of western countries.
129.The Tribunal has considered the possibility that if the applicant is removed from Australia to Iran as a failed asylum seeker and/or a forced returnee he may be imputed with an adverse political opinion or imputed with a political opinion of being opposed to the Iranian regime and having alleged persecution by the regime abroad.
130.As considered in the delegate’s decision and discussed with the applicant at the hearing, DFAT country information with respect to voluntary returnees as follows:
Iran has historically refused to issue travel documents (laisser passers) to allow the involuntary return of its citizens from abroad. On 19 March 2018, however, Iran and Australia signed a Memorandum of Understanding (MOU) on Consular Matters that includes an agreement by Iran to facilitate the return of Iranians who arrived after this date and who have no legal right to stay in Australia.
The International Organisation for Migration (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. Authorities will usually question a voluntary returnee on return only if they have already come to official attention, such as by committing a crime in Iran before departing. 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.
According to international observers, Iranian authorities 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. International 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 – 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.[10]
[10] DFAT Country Information Report Iran, 7 June 2018 at 5.23 – 5.25.

131.The question for the Tribunal is whether the applicant will come to the attention of the Iranian authorities on or after his return to Iran as a failed asylum seeker, and so be subject to a real risk of serious or significant harm. The available country information indicates that for a person to be returned to Iran without a valid Iranian passport it would be necessary for them to come to the attention of the Iranian authorities. The applicant claims his passport was destroyed by people smugglers before he arrived in Australia. As such the Tribunal accepts that the applicant does not currently have a valid passport. The Tribunal further accepts that the applicant may be asked questions both in Australia at the time when his departure is being organised (voluntary or involuntary) and upon his return to Iran.
132.The Tribunal has assessed the applicant’s case on the basis that he is likely to be stopped, interviewed and have his case ‘examined in detail’, as a forced returnee.
133.The Tribunal notes that the applicant has been able to depart Iran without difficulty or suspicion in the past. For the reasons set out earlier, the Tribunal does not accept that the applicant was arrested in the past in Iran nor that he has any outstanding criminal or civil matters that may bring him to the attention of the Iranian authorities on return. In addition, the Tribunal has found that the risk he would be of interest to authorities due to his relationship with [Ms A] or [Ms B] is remote. Further, based on the country information available the Tribunal finds that in the event the applicant is stopped and interviewed by authorities this would not amount to serious or significant harm. Therefore, in the event that the applicant is stopped and interviewed, the Tribunal finds that there is no real chance he will suffer serious harm as a result of adverse political opinion or that he will be imputed with a political opinion of being opposed to the Iranian regime by having alleged persecution by the regime abroad.
134.Therefore, the Tribunal does not accept that there is a real chance the applicant will be persecuted on return to Iran, either now or in the reasonably foreseeable future by reason of being a failed asylum seeker or returnee from the West or for any other Convention reason.
135.Further the Tribunal finds there is no real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of return to Iran now or in the foreseeable future.

Consideration

136.The Tribunal accepts the applicant was in a relationship with [Ms B] and arrived with her to Australia. The Tribunal finds that at that time the applicant and [Ms B] claimed to be married in accordance with Sharia law and that they were in possession of a Sharia marriage document supporting this claimed status. The Tribunal finds that [Ms B] and the applicant are no longer in a relationship and that this decision to separate was mutual.
137.The Tribunal accepts that the applicant’s brother was injured in Iran.
138.However, for the reasons outlined above the Tribunal has serious credibility concerns with the applicant’s claims to fear harm from the family of [Ms A] or [Ms B], from the Basij, Iranian police or from any other person due to his relationship with [Ms A] or [Ms B].
139.The Tribunal does not accept on the evidence that the applicant was in a relationship with a Persian woman called [Ms A] who was married and whose family were members of the Basij or police.
140.The Tribunal does not accept on the evidence that the applicant was threatened by [Ms A]’s brothers or husband. The Tribunal does not accept the applicant was taken by members of the Basij or Iranian police or any other person in connection with his relationship with a woman named [Ms A]. The Tribunal does not accept that the applicant was beaten or held by members of the Basij or Iranian police or any other person in connection with his relationship with a woman named [Ms A].
141.The Tribunal does not accept on the evidence that the applicant would be targeted by authorities or imputed to have anti-government political views on the basis of being in a relationship with a women to whom he was not married ([Ms A]). The Tribunal finds the applicant was not in the claimed relationship.
142.The Tribunal finds that the applicant’s claimed fears of persecution by [Ms A]’s family, the Basij, the Iranian police or any other person due to their relationship are not genuinely held.
143.The Tribunal has found that the applicant was not in the claimed relationship with [Ms A]. Accordingly, the Tribunal finds the applicant does not subjectively hold a well-founded fear of persecution arising from his relationship to an unmarried woman named [Ms A]. The Tribunal further finds the applicant does not hold a well-founded fear of persecution as a member of a particular social group being a man in a relationship with a woman out of wedlock, or for being seen to be against the Iranian government/regime due to his relationship with a woman out of wedlock, or for any other reason associated with that claimed relationship. On the evidence before the Tribunal, the Tribunal finds there is no real chance the applicant will face serious harm for these reasons on return to Iran or in the foreseeable future.

144.The Tribunal does not accept that the applicant has been threatened by the family of [Ms B]. The Tribunal does not accept the applicant was beaten or threatened by [Ms B]’s brother as claimed. The Tribunal does not accept that the applicant’s brother was beaten by [Ms B]’s brother or anyone else in connection to his relationship with [Ms B]. The Tribunal finds on the evidence that the applicant’s fear of persecution by [Ms B]’s family, the authorities, or any other person, due to their relationship are not genuinely held.
145.The Tribunal does not accept on the evidence before it that the applicant would be of interest to authorities on return to Iran due to his relationship with [Ms B]. The Tribunal finds that the applicant and [Ms B] left Iran legally and without issue. They arrived Australia in possession of a document supporting their claim to be married under Sharia law. The Tribunal does not accept that [Ms B]’s family opposed the relationship at the time the couple were in Iran or that they threated the applicant after the couple separated in Australia. On the evidence the Tribunal finds there is no real chance that the relationship would be reported to authorities as unlawful by [Ms B]’s family or any other person. The Tribunal further finds there is no real chance the applicant will suffer serious or significant harm from the authorities by reason of his previous relationship with [Ms B] or for any other reason.
146.On the evidence before it the Tribunal finds that the applicant does not face a real chance of serious harm on return to Iran or in the foreseeable future from [Ms B]’s family, from the authorities or from anyone else due to his prior relationship with [Ms B].
147.Based on these findings the Tribunal further finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Iran, there is a real risk that the applicant will suffer significant harm from [Ms B]’s family, Iranian authorities or anyone else on return to Iran due to his prior relationship with [Ms B], on return to Iran or in the reasonably foreseeable future.

Does the applicant meet the refugee criterion?

148.Based on the evidence before it, the Tribunal finds that the applicant’s claims that there is a real chance that, if he is returned to Iran, he would be persecuted by the Basij, police or any other person due to a prior relationship with an Iranian woman, [Ms A], whose family were members of the Basij; as a member of a particular social group being a man in a relationship with a woman out of wedlock; and/or as being seen to be against the Iranian government/regime due to his relationship with a woman out of wedlock, lacked credibility and are not well-founded.
149.Further, based on the evidence before it, the Tribunal finds that the applicant’s claims that there is a real chance that, if he is returned to Iran he would be persecuted by the family of an Iranian women he travelled to Australia with, [Ms B], including by her brothers and son, or any other person because of his relationship with [Ms B], also lacked credibility and are not well-founded.
150.Further, based on the evidence before it, the Tribunal finds that the applicant’s claims that there is a real chance that, if he is returned to Iran he would be persecuted as a failed asylum seeker or returnee from a Western country are not well-founded.
151.The Tribunal therefore finds that considered individually and cumulatively, there is nothing to suggest that the applicant would face a real chance of serious harm for these reasons on return to Iran or in the foreseeable future.
152.The Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons set out in the Act.

Does the applicant meet the complementary protection criterion?

153.The Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. If a person is found not to meet the refugee criterion in s.36(2)(a), they may nevertheless meet the criteria for a grant of a protection visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.
154.The Tribunal notes the threshold for the real risk element of the complementary protection criterion in 36(2)(aa) is the same as that for the real chance test in the refugee criterion 36(2)(a) of the Act. The Tribunal further notes that the necessary and foreseeable consequence element at 36(2)(aa) of the Act attaches to the risk of significant harm rather than the actual occurrence of the significant harm.
155.The Tribunal has carefully considered each of the integers of the applicant’s claims of fear of serious harm discussed above with respect to his claims for refugee protection in the context of complementary protection criterion regarding the real risk of significant harm at s.36(2)(aa).
156.Having considered the applicant’s circumstances singularly and on a cumulative basis and for all the reasons set out above, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Iran, there is a real risk that the applicant will suffer significant harm. The Tribunal therefore finds the applicant does not satisfy the criterion set out in s.36(2)(aa).

CONCLUSION

157.For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
158.Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
159.There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

160.The Tribunal affirms the decision not to grant the applicant a protection visa.

Simone Burford
Member

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:

(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H Meaning of refugee

For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J Meaning of well-founded fear of persecution

For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures

For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

Protection visas – criteria provided for by this Act

…

A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

[2020] AATA 79

15 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction