1922741 (Refugee)

1922741 (Refugee) [2024] AATA 1231 (12 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Jeremy Bayliss
CASE NUMBER:  1922741
COUNTRY OF REFERENCE:                   Iran
MEMBER:Paul Noonan
DATE:12 January 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 January 2024 at 3.30pm

CATCHWORDS
REFUGEE – Protection Visa – Iran – race – Azeri – Zoroastrian beliefs – the Azeri make up a large proportion of the overall population – religion – Christian convert, non-practising Muslim – brothers’ claimed past Green Movement activities – imputed political opinion – he was of no adverse interest to the authorities – applicant’s fears of persecution are not well-founded – membership of the particular social group –a failed asylum seeker returning from the West – a non-practising Muslim who has previously converted to Christianity –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 424AA, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 August 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Iran, applied for the visa on 9 February 2017. The delegate refused to grant the visa on the basis that the applicant’s claim to be of adverse interest to the authorities was not credible. Further, the delegate found that his other claims to fear persecution were not well-founded and there was not a real risk of significant harm to him for any reason claimed, and as such he was not owed protection by Australia.
The applicant appeared before the Tribunal on 10 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Migration history
The applicant travelled to Australia by boat on [date] August 2012 and arrived as an unauthorised maritime arrival. He made a first application for protection dated 2 August 2013, which was not decided upon due to several subsequent changes in legislation. This review is undertaken with respect to the applicant’s Safe Haven Enterprise Visa (SHEV) application made on 9 February 2017, which was refused. At the time, this was thought to trigger a statutory bar in s 91K, which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time, and the applicant was advised his application was invalid. As noted by his representative, the applicant subsequently made a further SHEV application on 15 October 2020, which the Department notified was invalid on 21 June 2023. The Department also notified the applicant that a previous decision that his 9 February 2017 application was invalid was incorrect. This was because, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands. Therefore, the application for a SHEV is not subject to the s 91K bar and the applicant made a valid application for review on 9 February 2017.
Country of nationality
The applicant arrived in Australia without a passport. He informed the Department that it was taken by a people smuggler. He did provide the original of his Shenasnameh and Iranian National Identity Card with accompanying NAATI accredited translations. He also supplied his original Iranian Military Completion card without a translation. All documents have a photo of the applicant and copies are retained on the Department file. The applicant also communicated with the Department in an interview conducted on 27 June 2017 in fluent Farsi. He has at all times stated that he is a citizen of Iran and he has been assessed on that basis by the Department. The Tribunal finds he is an Iranian citizen and has assessed his claims against Iran as the country of nationality and the receiving country.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is owed protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s personal background
The applicant maintains that he was born on [date] in [City 1], Iran. He speaks the Azeri, Farsi and Azerbaijan languages. His ethnic group is Azeri and he was born into the Islamic religion. He listed his religion as Muslim in his initial claim for protection in 2013. He stated that he destroyed his Iranian passport prior to arriving in Australia as he was afraid he would be deported back to Iran. In Iran, after finishing school he worked as a [occupation] before undertaking compulsory military service. The applicant noted that since being in Australia he has worked as a [occupation] in the building industry. He has three brothers in Australia all of whom have been granted protection visas. They are variously known as [names]. He is sometimes in contact with them but he is not close to them. His parents, sister and three more brothers all live in Tehran. He confirmed that his younger brother had returned to Iran from [Country 1] and is living with his parents in Tehran. He talks to his family in Iran about once a week.
In his 2013 claim for protection the applicant stated that he fears persecution for reason of his political beliefs, and that the Basij will seek to persecute him for this reason and because he has a personal history of run-ins with the Basij. He also stated that he fears persecution because of his Zoroastrian beliefs and because of his Azeri ethnicity. The Tribunal notes that the Basij are assessed by DFAT as having a wide range of duties, particularly internal security, law enforcement and occasionally, moral policing.[1]
[1] DFAT Country Information Report, Iran, 21 April 2016, p. 26
In his 2017 claims for protection the applicant stated that he fears persecution for reason of his political beliefs. He set out that two of his brothers were aligned with the presidential campaign of Mr Hossein Mousavi and they had been targeted for this reason and been forced to leave the country and seek asylum. He had been targeted as a result of his brothers’ actions and because he had previously been of adverse interest to the Basij as he had refused their demand that he join them, and subsequently he had been involved in an incident with them outside his girlfriend’s school. This targeting had escalated into continual detentions and torture and the targeting of his family and assault of his parents. During this assault he had fought back by beating officers with a brick. He had fled the family home where the assault took place and travelled away from Tehran for a few months. He then made arrangements to exit Iran and did so through the main airport in Tehran. The applicant also stated that he fears persecution due to his status as a failed asylum seeker returning from the West and because of his Azeri ethnicity.
At the commencement of the Tribunal hearing, the applicant was asked to confirm what he fears should he be required to return to Iran. The applicant stated that he fears persecution: due to his imputed political opinion; for being a non-practising Muslim who has previously converted to Christianity; as a failed asylum seeker who has lived in the West and drinks alcohol; and for reason of his ethnicity. He confirmed that he did not hold any other reasons for fearing persecution in Iran.
Political opinion/brothers’ profiles, returnee from the West, failed asylum seeker
The applicant claims to fear harm from the Iranian authorities for the above reasons and in particular because of the Basij and the secret service.
The applicant stated that the first time he came to the attention of the Basij was when he refused to join them after they had requested that he do so. After this he was detained by them when he was around [age] years old while waiting for his girlfriend outside her school. They released him after confiscating his birth certificate to make sure he would enrol in his military service. In addition, his brother [Mr A] broke up with a girl whose father was in the Basij, and there was an incident. They put [Mr A] in a detention centre and punished him and tortured him and he was badly burnt. He believes this further raised his own adverse profile with the Basij.
The Tribunal put to the applicant under s 424AA, and again under s 424A after the hearing as follows:
The particulars of the information are:
·In your claims you stated that you were initially of adverse interest to the Basij in part because your brother [Mr A] had a dispute with a Basij leader when he was a late teenager who attacked him and was consequently burnt to large areas of his body. However, as discussed at hearing in a record of entry interview with the Department, [Mr A] is recorded as stating that he was burnt as a child and has a scar on his chest that causes him no problems. This evidence is relevant to the review because it may cause the Tribunal to consider you have been untruthful with respect to [Mr A]'s history with the Basij.
This information is relevant because it may cause the Tribunal to doubt the truthfulness of your evidence and to consider that your claims lack credibility. It may also lead the Tribunal to not to accept that you were ever of adverse interest to the Basij and not to not accept this initial adverse profile was a part of the reason you subsequently became of adverse interest to the authorities due to the claimed activities of some of your brothers. This would be the reason, or part of the reason, why the Tribunal would affirm the decision under review.
In response, the applicant’s representative submitted a statutory declaration from [Mr A] attesting that he was tortured by the Basij in Iran, including by being burnt, as a young man. Given the passage of time he cannot recall the details of his entry interview in Australia.
The applicant submitted that his brothers, who had subsequently moved to Australia in 2009, were associated with the political movement of Mr Hossein Mousavi, commonly known as the Green Movement. They had handed out posters for the Green Movement at the height of the protests. He did not know of any other activity they did for the Green Movement. The applicant claimed that these brothers were assaulted because of this activity after being identified by surveillance cameras and then they left for Australia. He thinks that they left through the main airport. He was then questioned by the intelligence service about why his brothers left for Australia.
The applicant informed the Tribunal that after he had finished his conscription service a pattern of detention by the intelligence services commenced. He stated that he was detained several times and tortured. Each time they questioned him about his brothers. They also wanted to know who he worked with because they had a film of his brothers propagating information against the regime. They also asked if he was a member of the Green Movement.
The applicant confirmed to the Tribunal that he had never been personally active in the Green Movement.
The applicant submitted that one day the intelligence services came for him while he was at his father’s house where he was recovering from a recent previous bout of torture. His father wanted them to stop taking him and a fight ensued. He came down to protect his parents. His mother was beaten as well. He submitted there were as many as six or seven or more officers at this incident. He stated that he fought back. When an officer pulled out a gun he picked up a brick and hit him in the head. The officer collapsed and the applicant bolted. He found out later that the officer he hit was a senior officer. The Tribunal discussed with the applicant that it may appear implausible that he would be able to escape this many officers when he was recovering from previous torture. The applicant claimed he escaped because he had hit the officer and he was good at running.
As a result of his assault of the senior intelligence officer, the applicant claimed that a shoot to kill order was put out on him. He went to a friend’s house in Tehran for a couple of days. He then went to his village and stayed at his paternal uncle’s place for a period of time constituting some months. When asked why the intelligence services had not looked for him at such a seemingly obvious location, the applicant simply claimed that they had only come to know he had been there after he left. A friend in Tehran arranged for him to leave Iran. When asked how this friend could arrange this, the applicant stated that his friend had acquaintances who could ease his passage.
The Tribunal discussed with the applicant that he had other brothers in Iran and there did not appear to be any ongoing adverse interest in them. In addition, he had claimed that his father had been in a fight with the intelligence services and had sons who had apparently fled the country for political reasons and yet his father had never been directly targeted. The applicant responded that his father may have been left alone because of his age. Further, his younger brother was also targeted and left for [Country 1]. The Tribunal noted that this brother has returned and is safe. The applicant submitted this brother had just been lucky.
The Tribunal discussed with the applicant that one of his brothers, [Mr B], had travelled back to Iran a number of times between 2013 and 2015, apparently without any problems from the authorities. The Tribunal noted that it may appear implausible that [Mr B] would not be targeted in a manner similar to his own treatment by the authorities and this may cause it to consider his claim to not be credible. The applicant stated that [Mr B] was an Australian citizen and this may be why he was left alone.
The Tribunal also discussed with the applicant that it may have concerns with the plausibility of his action after the claimed shoot to kill order was put on him. This was because he had remained in the country for some months afterwards, he had stayed in obvious places and had then travelled back to the capital and exited the country legally through the main airport. The applicant responded that he couldn’t exit the country quicker as he suspected he might have been caught at the land border. The person who arranged everything for him assured him he would be safe and he took the risk that the person knew who to pay.
The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[2] However, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is ‘well-founded’ or that it is for the reason claimed. Rather, it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[2] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court)
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at [482]:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.

When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind 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 (see MIMA v Rajalingam (1999) 93 FCR 220).
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 (see 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 has significant concerns with respect to the credibility of the applicant’s claim to have been of adverse interest to the Iranian intelligence service or the associated Basij. This is for the following reasons:
·Firstly, the applicant’s reason as to why he was specifically targeted by the intelligence services, as opposed to his other siblings residing in Iran, rest to a large degree upon his claim that he had a prior adverse profile with the Basij, which is undermined by significant contradictory evidence. The applicant claimed this was because he had refused to join the Basij, he had been detained by them while waiting for his girlfriend and because around this time his brother [Mr A] had been tortured and burnt because of his relationship with a daughter of a Basij leader. As put to the applicant under s 424A, [Mr A] had previously told the Department in his entry interview that his burn scars were obtained as a child. The Tribunal would expect that if [Mr A]’s burn scars were obtained as a result of torture by the Basij, this would have been consistently told by him. As this has not been the case, this causes the Tribunal to doubt [Mr A] was ever tortured by the Basij as claimed by the applicant and now [Mr A]. In turn, this causes the Tribunal to doubt the credibility of the applicant’s claim to have developed a profile more adverse than his other siblings still in Iran for reason of his combined interactions with the Basij and [Mr A]’s adverse profile.
·Secondly, the applicant’s claim that he was repeatedly detained and tortured by the intelligence services, who wanted him to answer questions about his brothers’ reasons for leaving Iran, is highly implausible. The applicant was never directly involved in politics of any sort. Further, the applicant’s brothers claimed political activities were low level and contained to poster handouts. They were never high level organisers. While they were undertaking these claimed activities, the applicant was in fact undertaking military service and would have no direct experience of his brothers’ activities. When questioned as to what the authorities wanted from him, the applicant gave very generalised and vague answers that they just wanted to know why his brothers had left for Australia. Country information reflects that millions of Iranians travel into and out of Iran every year and this has long been the case. As discussed with the applicant, in general this travel and the activities of travellers outside of Iran was of little interest to the Iranian authorities.[3] Cumulatively this country information, the brothers’ low level political activity, the applicant’s personal history and the lack of similar adverse interest in his siblings or father, cause the Tribunal to conclude, as discussed at hearing, that his claim to have been repeatedly detained and tortured by Iranian intelligence services due to his brothers having left Iran, and the intelligence services wanting to know why they had done so, to be highly implausible.
·Thirdly, the applicant’s evidence that he had a fight with intelligence services at his parents’ house and his subsequent evasion of them despite serious charges being laid against him, is implausible. The applicant claimed to have seriously assaulted a senior intelligence officer and then escaped several other armed officers and hidden out in Tehran, despite claiming to be at his parents’ place recovering from a recent bout of detention and torture. The applicant’s only explanation for how he evaded several armed officers was that he could run fast, which the Tribunal considers implausible if he was recovering from torture as claimed. Further, he then travelled to his family’s hometown and resided with his uncle for several months without detection, despite claiming that the charges against him were so serious that the intelligence services had issued a shoot to kill order against him. If this were the case, the applicant would have been easily located at a relative’s place if he resided there as claimed. This causes the Tribunal to doubt that any such order was ever issued or that the assault of the officer ever occurred as claimed.
·Fourthly, and as discussed at hearing, DFAT assessed that, at the time the applicant left Iran through the main airport, it was possible to leave Iran to flee arrest warrants or charges. However, this was usually accomplished overland rather than through the main airports. Passport control checks are sophisticated in Iran. DFAT assessed that an outstanding warrant for arrest would not go undetected at the main airports but it is theoretically possible that an individual could convince an airport officer to allow them to proceed. Some charges, for example, national security or media-related charges, result in confiscation or black-listing of passports. However, even in these cases, there are credible reports from a range of sources that many have been able to successfully cross borders overland.[4] As the claimed charges against the applicant were very serious, it is wholly implausible that, given this country information, he would have chosen to depart Iran unhindered through the main airport and not overland and that he would also have been able to pass through the airport without detection. This causes the Tribunal to further doubt the credibility of the applicant’s claim to have ever been of adverse interest to the authorities.
·Fifthly, as discussed at hearing and as set out in the delegate’s decision, which was supplied by the applicant to the Tribunal, the Department ascertained that the applicant’s brother [Mr B] had returned to Iran on several occasions from Australia between 2013 and 2015 without any adverse interest from the Iranian authorities. It is implausible that, if the applicant was of adverse interest to the authorities for the reasons claimed and had come to Australia fleeing shoot to kill orders from the intelligence services, his brother would subsequently be able to travel freely, on a number of occasions from Australia, without attracting any adverse interest. When this was put to the applicant, he speculated that this may be because of his brother’s Australian citizenship. However, country information reflects that Iran has a long history of arresting dual citizens and does not recognise dual citizenship.[5] It is far more plausible that his brother was not arrested or questioned because he was of no adverse interest to the authorities.
[3] DFAT Country Information Report, Iran, 21 April 2016, p. 28-29
[4] DFAT Country Information Report, Iran, 29 November 2013, p. 25
[5] Who Are the Dual and Foreign Nationals Imprisoned in Iran? (Updated) - Center for Human Rights in Iran (iranhumanrights.org); New Interrogations at Iran’s Airports, Jailing of Dual Citizens Challenge Officials’ Calls for Expatriates to Return - Center for Human Rights in Iran (iranhumanrights.org)
For the reasons set out above, the Tribunal is satisfied that the applicant’s claim to have been of adverse interest to the Basij and to have been detained and tortured by the Iranian intelligence services on a number of occasions is not credible. The Tribunal finds that the applicant has not been detained and tortured by the Iranian intelligence services for reason of his brothers’ claimed political activities. The Tribunal also rejects the applicant’s claim that he is wanted by the Iranian intelligence services because he assaulted a senior officer and finds that the applicant is not wanted for this reason and that he has never had a shoot to kill order placed upon him by the Iranian intelligence services.
The applicant also raised with the Tribunal that he has three brothers who have obtained asylum overseas because of their past involvement in the Green Movement and he fears he will be subject to adverse profiling by the Iranian authorities because of this. As discussed with the applicant at hearing, DFAT assesses that:
The Green Movement has little or no profile in Iran today. Neither the movement nor its supporter base played a significant role in the 2017-2022 protests, even if the tactics, demands and government responses may be similar. Local sources told DFAT ordinary participants in the Green Movement are not of interest to the authorities. There have been extensive protests since the Green Movement and authorities are more likely to be interested in those protest movements than historic examples. Continued monitoring of high-profile participants or their families is possible. Those who acquired criminal records because of their involvement in the Green Movement may face discrimination when applying for government employment, particularly if they played prominent, high-profile roles in the movement. DFAT assesses that ordinary participants who avoided arrest face a low risk of official discrimination. DFAT is unable to confirm whether those who fled the country will face harassment or discrimination upon their return.[6]
[6] DFAT Country Information Report, Iran, 24 July 2023, p. 26
The Tribunal discussed with the applicant that the evidence with respect to his brothers reflects that they were ordinary participants in the Green Movement. Further, as he was never involved personally in this activity, the country information reflects that he would not be subject to adverse interest from the authorities for this reason. In addition, DFAT assesses that the authorities pay little attention to failed asylum seekers on their return to Iran and unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination. Further, DFAT assesses that their actions while overseas are not routinely investigated by the authorities.[7] The applicant and his representative responded that the authorities have a history of targeting family members of people who have sought asylum overseas. The Tribunal notes that this submission is not in accordance with the latest DFAT assessment and also that the applicant has many direct relatives residing in Tehran, including siblings who do not appear to be of any ongoing adverse interest to the authorities. The Tribunal places weight upon the DFAT assessment and is satisfied that the applicant will not be of adverse interest to the authorities for reason of his brothers’ claimed past Green Movement activities or their status as having been granted asylum, for reason of the applicant having spent time in the West, including having undertaken any common Western-related activities such as alcohol consumption, or for reason of him returning to Iran as a failed asylum seeker.
[7] Ibid, p. 40
Given the above, the Tribunal does not accept that there is a real chance the applicant would suffer persecution involving serious harm for reason of his brothers’ claimed past Green Movement activities or their status as having been granted asylum, for reason of the applicant’s political opinion (imputed or otherwise), for reason of the applicant having spent time in the West, including having undertaken any common Western related activities such as alcohol consumption, or for reason of him returning to Iran as a failed asylum seeker.
Religion – Christian convert, non-practising Muslim
The Tribunal discussed with the applicant his current religious practices. The applicant informed the Tribunal that he is not really that religious, although he would now identify as Christian. The Tribunal discussed his Christian practice. The applicant stated that the last time he attended church was perhaps a year ago. He submitted that he fears harm for being both a non-practising Muslim and a past convert to Christianity. If he was to return to Iran he confirmed that he would not be practising a religion. He informed the Tribunal that he was baptised as a Christian about five years ago but he could not remember the denomination.
The Tribunal is satisfied that the applicant does not actively practise Christianity or Islam and that this would continue to be the case should he return to Iran. The Tribunal is aware of country information that sets out that converts from Islam to Christianity may be subjected to serious harm in Iran if they continue to practise Christianity in Iran upon their return.[8] However the Tribunal is satisfied that the applicant will not practise Christianity in Iran. The Tribunal does not accept the applicant’s representative’s post hearing submission that the applicant would be compelled to disclose to the Iranian authorities that he has converted from Islam to Christianity as reasonable plausible. This is because the applicant has clearly stated that he now identifies as a non-practising Christian. His history and evidence does not demonstrate a strong ideological adherence to Christianity and as such the Tribunal does not accept that he would state he is a Christian convert to the authorities.
[8] Ibid, p. 21
The applicant’s religious views appear largely secular in nature as he has emphasised that he is a non-practising Christian and also fears harm as a non-practising Muslim. As discussed at hearing, DFAT assesses that many younger and wealthier Iranians, particularly in the major cities, are secular; a majority of the population does not attend mosque. Alcohol consumption is common among the youth. Official sources told DFAT that, despite government laws, religion was a private matter, and beyond the expectation that people do not eat in public during the Muslim holy month of Ramadan or hold parties during the mourning months of Muharram and Safar, how one wished to observe Islam was an individual choice and was not a matter for the state. DFAT understands many Iranians do not observe Ramadan strictly, including by eating, drinking liquids and smoking at home. DFAT assesses that non-practising Iranian Muslims face a low risk of official and societal discrimination, particularly in the major cities.[9]
[9] Ibid p. 23
Given the above, the Tribunal is satisfied that the applicant does not practice any form of religion and has not done so for some time, and that this will continue to be the case should he return to Iran. This includes his initial claim to have been a follower of Zoroastrianism made in 2013 and not raised since then. Given the above country information about the prevalence of secularism in large cities such as Tehran, and DFAT’s assessment of a low risk of discrimination for such persons, the Tribunal does not accept that there is a real chance the applicant would suffer persecution involving serious harm for reason of his past conversion to Christianity, or his non-practice of Islam or his past claimed Zoroastrianism should he return to Iran, either now or in the reasonably foreseeable future.
Ethnicity
The applicant confirmed to the Tribunal that he also fears persecution due to his Azeri ethnicity. When asked if he had ever experienced past harm for reason of his Azeri ethnicity, the applicant submitted that he had when he was in the military. When asked for specifics, the applicant stated that they had been stationed in bad areas because of their ethnicity.
DFAT assesses that some 16 per cent of the Iranian population are Azeris.[10] The Tribunal discussed with the applicant that country information reflects that ethnic Azeri Turks were more integrated into government and society than other ethnic minority groups and that Supreme Leader Khameinei is an ethnic Azeri Turk.[11] Azeri Turks reported the government discriminated against them by harassing Azeri Turk activists or organisers and changing Azeri Turkish geographic names.
[10] Ibid p. 15
[11] US Department of State 2022 Country Reports on Human Rights Practices: Iran
The Tribunal accepts that the applicant may have experienced some low-level discrimination while in the army because of his ethnicity. Country information reflects that Azeri activists may experience some discrimination, however the Azeri make up a large proportion of the overall population and there is no suggestion the applicant is an Azeri rights activist.
Given the above considerations, the Tribunal does not accept that there is a real chance the applicant would suffer persecution involving serious harm for reason of his Azeri ethnicity should he return to Iran, either now or in the reasonably foreseeable future.
Cumulative profile
The Tribunal accepts that the applicant has three brothers who have in the past successfully claimed asylum in Australia. The Tribunal accepts that the applicant was baptised in the Christian religion in the past and that he does not now practise Christianity or Islam. The Tribunal accepts that the applicant is of Azeri ethnicity. The Tribunal also accepts that, should the applicant be required to return to Iran he would do so as a failed asylum seeker who has spent time in the West.
The Tribunal has not accepted that the applicant was ever of past adverse interest to the Iranian authorities for any reason.
As noted, DFAT assesses that the Iranian authorities pay little attention to failed asylum seekers on their return to Iran. Further, it assesses that their activities sur place in the West are generally not of interest to the authorities. Those returning on a laissez-passer are questioned for between 30 minutes and an hour but arrest and mistreatment are not common during this process.[12] The applicant departed Iran legally. The Tribunal does not accept that he was of any adverse attention prior to his departure from Iran. The applicant has numerous immediate family members residing unharmed in Tehran and without threats having been made to them due to the status of the applicant’s three brothers residing in Australia. Country information also reflects that past low-level participants in the Green Movement are of no adverse interest to the authorities. Further, it indicates that many Iranians are non-practising Muslims with secular attitudes and unless Christian converts continue to practise in Iran they are unlikely to come to the adverse attention of the authorities. Country information also reflects that an Azeri who has not been an activist in any way will not be of adverse interest to the authorities for reason of their ethnicity alone.
[12] DFAT Country Information Report, Iran, 24 July 2023, p. 40
Taking into account the cumulative effect of the above aspects of the applicant’s profile, the Tribunal does not consider that there is a real chance the applicant would suffer persecution involving serious harm for this reason should he return to Iran, either now or in the reasonably foreseeable future.
Complementary protection
In considering whether there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of him being removed from Australia to Iran, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[13] It follows that there is also no real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of him being removed from Australia to Iran for reason of his political opinion (imputed or otherwise), his Azeri ethnicity, his brothers’ profiles as successful asylum seekers, as a failed asylum seeker returning from the West, for reason of his past conversion to Christianity or his current status as a non-practising Christian or Muslim or his past claim to have been a follower of Zoroastrianism.
[13] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342]
Conclusions

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).
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).
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 criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Noonan
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
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 1231

12 January 2024

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Immigration

Administrative Law

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Procedural Fairness

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