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
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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1922741 (Refugee) [2024] AATA 1231
Case
[2024] AATA 1231
Decision Date
CaseChat Overview and Summary
The applicant, an Iranian citizen, sought a protection visa, claiming he feared persecution upon return to Iran due to his imputed political opinion, his Zoroastrian beliefs, his Azeri ethnicity, his status as a convert to Christianity, his non-practising Muslim background, his consumption of alcohol, and his history as a failed asylum seeker. The Tribunal was required to determine whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and whether effective protection measures were available to him in Iran.
The Tribunal considered the applicant's claims in light of the Migration Act 1958 and relevant guidelines. It found that the applicant's asserted fears were not well-founded. Specifically, the Tribunal noted credibility concerns regarding the applicant's account of persecution, particularly concerning his brothers' alleged Green Movement activities and his own alleged detentions and torture. The Tribunal also assessed the applicant's claims regarding his Azeri ethnicity and Zoroastrian beliefs, finding them insufficient to establish a well-founded fear of persecution. Furthermore, the Tribunal considered the applicant's status as a failed asylum seeker and his religious background, concluding that these factors, in combination with the other claims, did not meet the threshold for a well-founded fear of persecution.
Ultimately, the Tribunal affirmed the decision not to grant the applicant a protection visa, finding that he did not satisfy the criteria for protection under the Migration Act. The applicant did not demonstrate a well-founded fear of persecution, nor did he establish that he would suffer significant harm upon removal from Australia.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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
Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
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 NoonanMemberATTACHMENT - Extract from Migration Act 19585 (1) Interpretation…cruel or inhuman treatment or punishment means an act or omission by which:(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c) that is not inconsistent with Article 7 of the Covenant; or(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a) that is not inconsistent with Article 7 of the Covenant; or(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a) for the purpose of obtaining from the person or from a third person information or a confession; or(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c) for the purpose of intimidating or coercing the person or a third person; or(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…receiving country, in relation to a non-citizen, means:(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…5H Meaning of 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 familyFor the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and(b) disregard any fear of persecution, or any persecution, that:(i)the first person has ever experienced; or(ii)any other member or former member (whether alive or dead) of the family has ever experienced;where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.Note: Section 5G may be relevant for determining family relationships for the purposes of this section.5L Membership of a particular social group other than familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection 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.…
Ratio Decidendi
Legal Principle Established
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.