1935245 (Refugee)

[2021] AATA 4152

1935245 (Refugee) [2021] AATA 4152 (26 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1935245

COUNTRY OF REFERENCE:                   Iran

MEMBER:Denis Dragovic

DATE:26 October 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 26 October 2021 at 8:24am

CATCHWORDS

REFUGEE – protection visa – Iran – Federal Court remittal – race – Ahwazi Arab – alcohol consumption – land resumption without compensation – Sepah investigations – revenge by girlfriend’s family – obtaining a passport – court documents – departure on a fraudulent passport – employment – access to health services – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91, 424, 499
Migration Regulations 1994, Schedule 2

CASES

CLS15 v Federal Circuit Court of Australia [2017] FCA 577

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).

2. The Tribunal viewed copies of the applicant’s Iranian identity documents. There being no contention over the applicant’s nationality I find that the applicant is a citizen of Iran.

3. The matter is before the Tribunal because of a Federal Court order after an appeal that saw the previous Tribunal’s decision upheld by the Federal Circuit Court. The differently constituted Tribunal’s decision was found by the Federal Court to have been affected by jurisdictional error because it failed to deal with a claim made by the applicant. The claim that the applicant’s future breaches of Iran’s alcohol consumption laws would lead to him being exposed to significant harm by reason of his Ahwazi Arab ethnicity was found to have arisen sufficiently from the material before the Tribunal such that it required the Tribunal in the circumstances to appreciate its existence. The Tribunal had not engaged with this underlying claim and as such was found to have committed jurisdictional error.

4. Prior to the decision being quashed by the Federal Court the applicant has had a lengthy engagement with the Australian government. This history was usefully summarised by the representative in a submission:

   The applicant arrived at Christmas Island [in] February 2011 by boat.

   As he was an Unauthorized Maritime Arrival, he was not eligible to make a valid protection visa application but applied for a Protection Obligation Determination (“POD”) on 23 April 2011.

   The applicant was interviewed by a delegate on 18 February 2011 and on 24 April 2011. The primary POD outcome was negative, and the applicant’s application was referred for an Independent Protection Assessment (“IPA”) on 8 July 2011. The IPA affirmed the negative POD assessment on 12 March 2012.

   By letter dated 21 September 2012, the delegate notified the applicant that the Minister for Immigration and Citizenship (as he then was) had exercised his power pursuant to section 91L (1) of the Migration Act 1958 (Cth) (“the Act”) to permit the applicant to lodge a valid application for a protection visa.

   The applicant lodged an application for a subclass 866 Protection visa on 03 October 2012 and the protection visa application was refused on 12 July 2013.

   The applicant applied for review at the Refugee Review Tribunal on 19 July 2013. The Applicant appeared before the Tribunal on 27 November 2014 and the Tribunal affirmed the primary decision 09 December 2014.

5. The applicant appeared before the Tribunal on 23 March, 29 April 2021 and 22 September 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

6. The first two hearings were in person. The Tribunal exercised its discretion to hold the third hearing by video conference. This third hearing was held during the COVID-19 pandemic lockdown. The Tribunal determined it was reasonable to hold the third hearing by video, having regard to the nature of the matters that were required to be considered and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. The applicant was represented in relation to the review by his lawyer who attended the Tribunal hearings.

   RELEVANT LAW

8. 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, the applicant 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.

   Refugee criterion

9. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

10. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

11. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

12. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

13. Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

14. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

15. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.

16. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

17. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

18. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

19. 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 a protection 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 the applicant 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’).

20. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

21. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

    Mandatory considerations

22. 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.

    Mental health

23. The applicant provided medical evidence indicating that he faced and continues to face mental health challenges. A medical report provided to the Tribunal explained that the applicant had described to the psychologist ‘a broadband of symptoms’ which the psychologist said was ‘referable to an appropriate diagnosis of an Anxiety Disorder, with features of a recurring Depressive Disorder. His overarching presentation relates to anxiety more than depression. This clearly is a function of his apprehension concerning the outcome of his AAT hearing.’

24. The psychologist notes, ‘From a psychological perspective, there is nothing to indicate any gross symptomatology in this case.’ The psychologist’s report then concludes:

    I note that you seek my view as to whether or not [the applicant’s] mental health condition would impact upon his ability to provide oral evidence in a Tribunal/Court setting and recall information consistently, regarding his past experiences in Iran. [The applicant] was well oriented in time, place and person and does not suffer from any disease of the mind. He is however anxious and suffers a recurring Depressive Disorder and is also hampered by language considerations. Taking these factors into account, I believe that he is capable of providing evidence, provided that he is given regular breaks and has time to consider the questions before responding. I note that he has no immediate family in Australia and in this context, beyond being provided with the interpreter, he would benefit from a suitable support person. Given his apprehension regarding authority figures, arising from his time in Iran, he inevitably will find Court room procedures and dynamics somewhat confronting. Arising from this, his conditions may impact upon his capacity to precisely recall and consider information regarding his past experiences in Iran.

25. I asked the applicant at the beginning of each hearing whether he had taken any medication and whether he would be able to participate fully in the hearing. In all instances he had not taken any medication and he said that he would be able to participate fully. I offered the applicant the opportunity to take more breaks and to give him more time to consider questions and answers. I explained to him at the first hearing that we would be having a second hearing and as such he should not feel that he had to rush through his answers. There was a substantial gap between the second and third hearings which provided the applicant further opportunity to reflect on the issues.  

26. I am satisfied that the applicant was of a state of mind and was provided the opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.

    CONSIDERATION OF CLAIMS AND EVIDENCE

27. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Evidence and findings of fact

    The applicant’s past experiences as an Arab in Khuzestan

28. The applicant is an Iranian Arab from Khuzestan province. He has [specified family members]. His father has passed away, while his mother remains alive. The applicant recalled an experience from his childhood when the family farm was confiscated. He said that the family had a farm ranging across 150 hectares until the Iranian Sepah forces confiscated the majority without compensation leaving the family with 10–15 hectares. This incident occurred when he was around [age range] years old. Although there was a confrontation and he and his father resisted, they were not detained. He said that during the melee he was hit and injured requiring an operation on his hands.

29. The applicant claims that the land was then given to Farsi speaking Iranians from the north of the country.

30. On the remaining land he and his family grew [specified crops]. They also had a [shop]. He said that during the time that they had the entire farm, they were middle class, but after the land was taken away from them they found it impossible to live off the land as they couldn’t irrigate the farm. During this period, they survived on income from the [shop] and when he was older from his [occupation 1] work. The applicant lamented that if he and his family had retained the farm, he could have been a farmer or gone to school.

31. The applicant claimed that this discrimination continued throughout his life covering employment, access to medical care and opening businesses.

32. The applicant described his working career. He said that he began as an apprentice [occupation 1] for a group of [occupation 1s]. He used to go to different villages and work for people who were renovating their houses. He did this work for 7–9 years. His employer was a group of 4–5 Arabs working together. In addition to working as [an occupation 1] he would assist on the family farm and help them in their shop.

33. The applicant claims that he was discriminated in employment, for example, when he was [an occupation 1], as the Fars speaking families refused to give them jobs. He said that because of his ethnicity he could not work at any oil and gas facilities, in the training sector or with sugar cane companies. He said that they refused to hire Arabs and instead would bring workers from the north of Iran. He acknowledged that some of the people they used to work for and would employ him were Fars and not solely Arabs.

34. I put to him that it sounds as if he managed to find work regardless of the claimed discrimination to which he responded that it was very difficult. He said that he shouldn’t have to have done that and that all he wanted was to go to school and be an employee of a company.

35. The applicant has been consistent in his narration of his childhood and early years  throughout his numerous engagements with the Australian government and his recollections align with general country information. As such I accept the applicant’s statements of his past as fact.

    Interest by authorities

36. The applicant described at the Tribunal’s hearings his fear of return as arising from a claimed incident in which he was caught drinking alcohol with his neighbour’s daughter who was his girlfriend at the time. He said that he and his girlfriend went to buy alcohol in February 2009. On his way home he said that he saw another motorbike in the mirror following them. He said that they were riding very fast and so he knew they were being chased, but he didn’t know who was chasing them. He claimed that once he entered his house, he heard a sound from a walkie talkie and looking through the window he saw people jumping over the fence. Seeing that they had uniforms he believed that they were with the Sepah and as a result, he escaped.

37. At the hearing I put to the applicant that he had omitted to mention this incident in his first statutory declaration dated 24 April 2011. Instead, I noted that the reason he had claimed that he left Iran was because of persecution against the Arab minority. I noted that he did not also mention the alcohol event in his entry interview dated 18 February 2011 and his protection obligations evaluation interview of 24 April 2011 which was described in the delegate’s decision. The first mention of this claim came by way of a letter from his representatives to the Department dated 24 November 2011.

38. The applicant explained that he faced a difficult journey to Australia. He said that he was on a boat for 14 days and that they were in a really difficult situation. He was under severe stress and anxiety. When he landed at Christmas Island, he said that he was not feeling well and the interpreter was using Egyptian Arabic which made it difficult for him to convey his narration.

39. I put to him that the statutory declaration was from more than a year after his arrival and yet the information about his alcohol consumption and being of interest to the Sepah arising from this incident was not included. He responded that he had mentioned other issues and thought that that was enough.

1. In the 13 January 2012 interview for the Independent Protection Assessment the assessor put to the applicant, according to the decision record, that if his fear for being arrested was the reason for him leaving Iran why hadn’t he mentioned it before. The applicant is recorded as responding that he thought the authorities may have forgotten about his case and that it was only after his mother told him about the summons that he realised he was still of interest.  I put this to the applicant under s 424AA at the third hearing and noted that if he thought that the authorities had forgotten about his case why did he then leave Iran. He claimed that he had never said that he thought that the Iranian government had forgotten. He said that maybe it was a problem of interpreting, that he was fearful at the time or that he was not mentally stable at the time.

2. The applicant also noted, as was recorded in the Independent Protection Assessment and provided as a submission by the representative, that he was ‘fearful of raising the alcohol issue…as he thought this was not relevant to his refugee claim.’ The applicant also claimed that he didn’t raise it because he didn’t have any evidence. While the applicant had lived in a country whose processes may be arbitrary and the applicant would carry a degree of caution if not fear to the authorities, I note he had numerous engagements with Australian authorities who explain the refugee application process and that he received support from a representative by this stage. Nevertheless, as fears and doubt can linger, I give some weight to the applicant’s argument.

3. The applicant had at earlier stages of his engagement with the Australian government variously claimed that the alcohol seller was an undercover Sepah agent or that the seller of the alcohol had reported him to the Sepah or corrupt police. For example, the IPAO decision records the assessor as asking, ‘how the police would have found out that he’d been consuming alcohol in his own house’. The response is recorded as, ‘He said that he believed those illegally selling alcohol told corrupt police the names of people who had purchased alcohol so they themselves could avoid arrest.’ The delegate’s decision also records the applicant as stating at the interview, ‘the applicant stated during his PV interview that an undercover Sepha (sic) officer sold him the alcohol’.

4. Yet, in the applicant’s March 2021 statutory declaration, he explains that he had obtained alcohol from his long-time friend [Friend A]. In this version of events he claims that the Sepah saw him purchasing the alcohol from [Friend A] and then followed him. This is a significant departure from his earlier claims as [Friend A] is not claimed to be Sepah nor that [Friend A] sold out his friend. At the third hearing the applicant confirmed the narrative that his friend supplied the alcohol. This inconsistent information is vexing. I put this to the applicant under s 424AA noting that he had earlier said that it was an undercover Sepah agent who had sold him the alcohol. He responded that there is some confusion and miscommunication and that the Sepah officer was not [Friend A] but someone else who was monitoring him.

5. A further issue arises from the applicant’s claims that his girlfriend, [Ms A], was arrested and detained in prison for one week following the incident. He claims in his statutory declaration of March 2021 that she was released after her family paid a bond. He claims that her family blamed him and planned revenge on him. He wrote, ‘I believe I will be shot by [Ms A’s] family if I return to Iran as I was dating [Ms A] and did not marry her…I believe [Ms A’s] family will be able to find me even if I move to another city. Ahwaz Arabs know each other, and I have distinct surname. They would also be able to find me through family and friends.’ Yet, despite this emphatic statement that [Ms A’s] family would be able to find him wherever he was to hide, he has claimed that he spent over a year in the same city, at his blood relative’s house and [Ms A’s] family did nothing to him. When this was put to the applicant at the third hearing, he said that he stayed inside of his uncle’s house and hardly went out at all claiming that no one knew that he was there. I put to him that if [Ms A] and her family were so intent on finding him surely they would look at his relative’s houses. He claimed that they did not know the address of his uncles and that even when they had guests he would hide. I find this hard to believe. The applicant has described how Arabs are discriminated in Khuzestan and yet he has uncles who he has described as wealthy. This would be widely known including by a neighbour. That the applicant claimed [Ms A’s] family is pursuing him and that they are behind the continued pursuit of him by the authorities (see below) I find troubling considering that he claimed he had lived in the same city for a year without being confronted or found by the family.

6. The applicant said at the hearing that after he fled his home following the Sepah raid he went to his uncle’s place in a suburb of the same city in which he lived, Ahwaz. He said that he was hiding there for one or one and a half years without going out other than three times and each time being at night. The decision record of the earlier Tribunal hearing records the applicant as claiming that he obtained his passport after the alcohol incident (at [10]). At the third hearing he confirmed that he had obtained his passport after the incident. 

7. At the hearing the applicant described his uncle’s house as being three storeys. He said that another uncle along with their children were living there. They were well off and the house had a swimming pool and backyard. He would spend time playing football with the children. He said that his uncles are Arab and became rich through [their] business.

8. Yet, at the 2012 interview the applicant said that immediately after the incident he fled to his uncle’s house, he borrowed money from his mother and brother and then he left Iran. He did not mention staying for one or one and a half years. This narrative aligns more closely had the event taken place in 2010 as he had claimed in that same interview. But at this Tribunal’s hearing the applicant said that the event occurred in February 2009. This extended the gap between the event and in this version of the narration his departure is preceded by his stay at his uncle’s.

9. I note that on the application form for the protection visa the applicant lists one address from 1986 through to 2011. There is no mention of an uncle’s address where he has variously claimed to have stayed for over a year. In a statutory declaration dated 16 March 2021 at [43] the applicant acknowledges this issue and claims that it was an oversight.

10. The inconsistency between dates of when the alcohol incident occurred and the omission from earlier evidence of his claim to have hidden in his uncle’s place for an extended period of time during which he claims that he only, on the rarest occasions left, is of concern.

    Passport and departure

11. Regarding the applicant obtaining a passport, he claimed at the hearing that it had occurred just before he left Iran, that his brother had made the arrangements including buying the airline ticket.

12. Yet, at the Departmental interview stage the applicant said that he obtained his passport two years prior to travelling to Australia. He said that he obtained it as he was thinking about travelling. He confirmed that he had obtained the passport prior to the problems he claims to have faced due to the consumption of alcohol (1.52:40). The interview records the applicant stating, ‘I gave my documents to my brother, he took them, he applied for the passport, 15 days later we had the passport delivered to our house…my brother didn’t do anything special…when we applied for the passport my brother did not have any problem…he paid the normal money to the government to obtain the passport…I was with my brother and a female friend…and my brother was with me.’ (beginning 1.54:30 until 2.04:30) He then confirmed that it was a genuine passport.

13. I put this to the applicant under s 424AA. He responded that he was in his uncle’s house and not his house. He claimed that he had obtained his passport after the incident and that he had obtained it because he was in danger. I noted that he had said that he hadn’t done anything special to obtain the passport. In response, he said that because he was in the situation he was in, his brother didn’t tell him about how he had obtained the passport, but he subsequently learned that it was falsely obtained by paying a bribe.

14. Prior to the hearings, in a subsequent statutory declaration dated 16 March 2021 the applicant corrected the record of evidence in the delegate’s decision that the applicant had obtained his passport in 2009 two years before travelling to Australia. He wrote that his evidence was misunderstood and that he had obtained his passport in 2010. The applicant wrote:

    The delegate in their decision dated 12 July 2013 incorrectly concluded that I received an Iranian passport in 2009:

    “…The applicant was asked as to when he obtained his passport; he stated that he was issued with a passport “two year prior to arriving to Australia”. This means that the applicant was issued with a passport sometime in 2009, two years before he initiated his departure from Iran in 2011.”

    What I meant was two years before the date when I had an interview with the delegate. The interview took place on 02 November 2012 and two years prior that date my brother helped me to obtain an Iranian passport.

15. Even were I to accept this correction, the question remains of whether he obtained it before or after the events that caused him to flee. This appears to be in contradiction based upon his earlier and more recent statements. Based upon his statutory declaration of 16 March 2021 it would seem that it occurred after the incident:

    I do not know the exact details of how my brother managed to obtain a passport and visa for me. I only once went with my brother to a shop located close to the house of my uncle, so my passport photo could be taken. I have no information if the passport was fake or legitimate.

16. I noted to the applicant that he had stated in his statutory declaration dated 16 March 2021 at [48] that he had mistakenly mentioned in the Departmental interview conducted on 2 November 2012 that he along with his older brother and a female friend went to the passport office. The following is his correction according to his statutory declaration:

    Previously I incorrectly mentioned at the interview conducted on 02 November 2012, that my older brother, a female friend, and I went to a passport office to lodge a passport application. What I meant to say is that we went to a shop, so my passport photograph could be taken for a passport application. My brother himself, without me, applied for my passport and I have no information if the passport was obtained legally or if it was fake. I tried speaking with my brother regarding this, but he refuses speaking about it as he is scared of the Iranian government.

17. In response, he said that he may have said that he had gone to a passport office, but he thought most likely that there had been a misunderstanding with the interpretation. He reaffirmed that he was taken by his brother to a photography shop and not the passport office.

18. When I asked the applicant at the third hearing whether he had ever left his uncle’s house for anything to do with the passport he said that he hadn’t. When I put to him that he had earlier said that he had left his house to take photographs, he apologised, and acknowledged that he had.

19. At the hearing the applicant said that he is unsure whether the passport that his brother had arranged, and he had used to leave Iran, was fake or genuine. I asked the applicant why he thought that he would need a fake passport. The applicant responded that he has no idea whether it was original or fake. He has doubts because his brother had to pay for it. He said that he did not have problems using the passport. The applicant claims that the soldier at the departure gate had been paid by his brother to make it easier for him to leave. I asked why he would be worried about departing Iran when at the time he didn’t know that there was an arrest warrant out in his name. He said that he was worried and left the country in fear.

20. I find that the applicant left on a genuine passport obtained through legal means.  

21. The applicant’s repeated corrections and lack of clarity on when and how he had obtained his passport is of concern and raises further questions of his general credibility.

22. Regarding his departure from the airport, the applicant said at the 2012 interview, ‘We went to the airport my brother and I, we were at the counter, we bought a return ticket to [Country 1] and to Indonesia…I provided my documents, I passed through, I went to the airplane.’ The interviewer asked about obtaining an exit permit, the applicant said, ‘yes, yes’. The interviewer asked whether he passed through checkpoints, he said ‘no problems in Iran.’ He said, ‘They checked my passport, I had no problem, I left.’ He then said that he was stressed at the time as he had a problem (2.06:00). I note that at no stage did the applicant mention that his brother had paid people off to facilitate his departure, instead he indicates that his departure was routine. I noted this apparent contradiction to the applicant under
    s 424AA and asked him why he had not mentioned a critical element of having paid officials to leave Iran. He responded that he was only [age] years old at the time and that is why his brother was with him. He said that while he was at his uncle’s house his brother paid a bribe to get his passport and to someone in the airport, as it is impossible that someone with his background could go through. He said that maybe he was unable to convey that properly during the interview. I am concerned that the applicant had omitted this information and this raises further issues relating to his credibility.  

23. I put to the applicant earlier country information that suggests that it is easier to cross the border in Turkey (where there are no visa requirements)[1] or alternatively I asked him why he didn’t cross into Iraq[2] and head to Baghdad airport as Tehran is full of Sepah and Tehran’s Imam Khomeini International Airport is controlled by the Sepah.[3] He said that Iraq was not safe at the time and his brother knew some people in Tehran airport. He said that he was feeling scared and couldn’t leave for Iraq because there was a war, he said that he didn’t know if Iraq even has an airport. He added that Iran and Iraq did not have good relations. He also said that he was very young at the time when those decisions were made. The applicant claimed to have taken precautions during his trip to Tehran including departing on a Friday during prayer time when there were not a lot of Sepah around as well as having lost weight and grown a beard to disguise himself. He told the Tribunal that he drove from Ahwaz to Tehran by car and that there were no checkpoints along the way.

    [1] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Iran’, 21 April 2016 at [5.49]

    [2] Michael Eisenstadt, Michael Knights and Ahmed Ali, Iran’s Influence in Iraq: Countering Tehran’s Whole-of-Government Approach, The Washington Institute for Near East Policy, p13

    [3] World Food Program, Logistics Capacity Assessments, Iman Khomeini International Airport, >

    I note that the applicant is an Iranian Arab who speaks Arabic. The Iranian province of Ahwaz borders the Iraqi province of Basra. That the applicant thought it safer to travel through the Sepah controlled Imam Khomeini International Airport several hours’ drive north of Ahwaz because his brother knew someone, rather than to cross the border into Iraq, a country of Arabs who speak Arabic, is of concern but I place little weight on it as the circumstances in Iraq at the time may have been misrepresented in Iran by Iranian media and the government. I do not accept that the applicant thought that Iraq did not have airports, as it is simply implausible.

24. I find that the applicant’s brother did not pay any officials at Tehran airport or elsewhere to facilitate the applicant’s departure. I find that the applicant departed Iran in a legal and routine manner.

    Court documents

25. The applicant submitted numerous alleged court documents. These are summarised herewith:

    a.Arrest warrant dated [in] December 2010 regarding case [number]– Addressed to the ‘Head of the [Prison 1] requesting that the applicant be detained until further notice. A start date for the detention is listed as [in] December 2010. The charges are ‘the establishment of a corruption house and the use of alcoholic drinks.’ ([Number] translation f.127)

    b.Subpoena/warning regarding case [number] dated [in] January 2011 ([File number] translation f.126)

    c.Subpoena/warning regarding case [number] dated [in] February 2011 ([File number] translation f.125)

    d.Subpoena/warning regarding case [number] dated [in] February 2011 ([File number] translation f.124)

    e.Arrest Warrant dated [in] July 2017 – Arrest warrant which states, ‘By observing the religious norms and respecting the neighbours’ rights and considering that the above mentioned accused is fugitive from [that day in July 2017] till today due to the offences of drinking alcohol, adultery with someone named [Ms A], indecent acts and conviction of long term jail sentence he must be arrested and dispatched securely to the venue through search warrant of his home and hideout.’

    f.Summons dated [in] January 2020 – Summons for the applicant to appear at the Sepah Intelligence of the City of [City 1], for the reason of drinking alcohol, adultery and indecent acts.

26. Regarding the note of a ‘house of corruption’ the applicant explained that this means that when he brought his girlfriend home, the Sepah pinned charges on him as having premarital sex with a girl who is still a virgin.

27. The applicant confirmed at the hearing that he did not experience any encounters with the authorities between February 2009, when he claims that he fled from his home due to the incident involving the purchase of alcohol, and January 2011, when he left Iran.

28. I noted that the arrest warrant is followed by warnings to appear at court. I asked the applicant why it would occur in that order. He said that the law is such. I put to the applicant country information on how Iranian law operates, namely that a summons comes first, then warnings and if the person does not appear, then a case is heard in absentia, a verdict is delivered and only then is an arrest warrant produced.[4]

    [4] Canada: Immigration and Refugee Board of Canada, Iran: Court summonses and arrest warrants, including issuance procedures, methods of delivery, description of the documents and the information they contain; prevalence of fraudulent court documents, 29 September 2014, IRN104955.E, available at: [accessed 9 September 2021]

29. The applicant responded that one of the documents, the detention referral, that was submitted at a later stage to the first batch is from 2010. He said that his mother had originally lost it. I put to him that this does not answer the dilemma of the order of documents. I asked the question again. In referring to the arrest warrant document, he said that the date of the arrest warrant is the date he needs to be in detention before going to court. He believes that the order of events is that if you don’t attend court then there is a summons, warning and certificate of arrest.

30. I noted that Article 118 of the Iranian Penal Code states that ‘The judge can issue the order for arrest in the following situations, even if he has not sent the summons letter first: 1. For crimes in which the legal punishment is retribution, execution, and organ mutilation. 2. For an accused whose address of residency is not known and the measures taken by the judge to locate them has not been positively concluded.’[5]

    [5] type="1">

31. I noted that the first time someone is caught drinking alcohol the punishment is whipping[6] and as such we can rule out 1. We discussed 2. The applicant said that they were after him, but they couldn’t find him. He said that at that time he was in his uncle’s place and the only person he communicated with was his brother.

    [6] Justice Under the Islamic Republic of Iran’, 2007, Iran Press Service, 24 December 2007 – CISNET:CX190504

32. The applicant also claimed at the hearing that the authorities had pursued him after he had left Iran and he claimed that he had aired this at an earlier stage. The Departmental decision record records him raising this claim on 13 January 2012, ‘He contacted his mother after arriving in Australia; his mother advised him that the police attended the family home several times searching for him. His older brother told him that his younger brother had been detained and imprisoned, as the authorities could not locate the applicant. The applicant’s mother paid a bond to release the applicant’s younger brother from custody.’

33. At the 2012 interview the applicant claimed that his brother was arrested for one month because of him (3.50:00). He said that they kept coming to his house to ask about the applicant’s whereabouts.

34. I asked him regarding his claim that his mother received a visit by Sepah officers in 2020 and whether he knew anything about it. I noted country info:

    If the accused fails to appear in court after the first summons, or fails to send an agent on their behalf, a second summons may be issued. If the accused still fails to appear in court a sentence may be handed down in absentia. This process would normally take up to a month.[7]

    [7] “RRT Country Information Request IRN35547”, DFAT, 30 October 2009, CX235773

35. I put to him that I find it difficult to believe that the Iranian government would have a record of him departing the country and yet 10 years later continue to file paperwork against him. The applicant responded that his family is Arab and he is living outside of Australia and there are spies. He believes that the authorities archived his case but still issued the arrest warrant. He said that there is corruption in it all and it is due to the girl’s family being involved.

36. I read to the applicant country information from 2006 regarding the consequences of being caught drinking alcohol noting that the information was contemporaneous to his claimed 2009 incident. Specifically, the country information was the following:

    [Mr J], director for the consular office in the Iranian foreign ministry reported that the public consumption of alcohol could result in a fine or detention for 2-3 days. Even though in theory the offence can incur a whipping, this punishment is no longer applied in practice.

    The Organisation for defending Victims of Violence’s international department reported that the public consumption of alcohol is a crime. The consumption of alcohol in private homes is, in practice, not considered a crime any longer.

    The Islamic Human Rights Commission reported that the authorities today take a relaxed attitude to alcohol consumption. Only if consumption causes a public disturbance will prosecution be likely.[8] 

    [8] On Certain Crimes and Punishments in Iran: Report from the fact-finding mission to Tehran and Ankara, 2006, Danish Immigration Service, April 2006, CISNET: 14808

37. The applicant responded that it is not the case, Iran is a strict Muslim country and as he is an Arab they were particularly strict.

38. The applicant claimed that the reason for a lengthy delay to produce the original court documents relating to the pending case against him was because they were prevented from being sent abroad by the Iranian mail service. The Department requested the originals in the 2012 interview. They were not provided until after the first, differently constituted, Tribunal hearing. I put to the applicant that I found it hard to believe that the Iranian mail service would prevent original documents being mailed. I looked for country information to support this but could not find any.[9] I asked the applicant to provide country information on the illegality of posting documents overseas. As of the time of this decision no supporting evidence was provided and as such I do not accept the claim.

    [9] I searched on Google, Refworld and CISNET

39. I submitted to the Country of Origin Information Service within the Department of Immigration a request to verify the court documents. The documents submitted were the arrest warrant from 2010 and the warnings from 2011 along with the applicant’s name and date of birth. The Tribunal did not submit the 2017 arrest warrant and the 2020 summons.

40. The response received was:

    As requested, we sought to verify the court documents associated with the Protection Application visa for [the applicant]. We confirmed with an officer at [Court 1] that [the applicant’s name] (DOB: [same as specified]) was imprisoned in [Prison 1], as per the arrest warrant, and that he has a case in [City 1] Court, which is pending a sentence to be issued (file [number]).

    2.  We are unable to formally verify the arrest warrant at this stage. Official verification must be done through the Ministry of Justice, which we have been advised will take "a very long time" but no further details were given. Grateful advice if Post should pursue this route.

41. This information was subsequently put to the applicant under s 424A, specifically asking that the applicant respond to the adverse information suggesting that a man of the same name has been imprisoned based upon the arrest warrant the applicant provided to the Tribunal.

42. The applicant responded that he was upset that the Iranian authorities were made aware of the applicant seeking protection in Australia. This is addressed further in the below section.

43. As for the issue of whether he had ever been imprisoned, the applicant responded that he has never been imprisoned and claimed that it must be a mistake. The applicant noted that the only time he had been imprisoned was when he was serving in the Iranian army between [earlier years] claiming that he served 8 months for having a friend visit him while on duty.

44. I noted to the applicant at the hearing that on two occasions when he first arrived in Australia, he had confirmed that he had not been imprisoned. The first time was in a signed statutory declaration dated 24 April 2011 in which it asked whether he had ever been charged or convicted and the second was his arrival interview held in February 2011 where it is recorded under a question which asks the applicant whether he had ever been arrested or detained, to which the applicant responded no. (folio 37 and 6b [File Number] )

45. The applicant reiterated that he has a pending case and he claimed that the verification of this by the Australian embassy supported his claims.

46. I have considerable concerns over the applicant’s credibility. He has repeatedly omitted or provided varying narrations of his circumstances through the course of his 10 years of engagement with the Australian government in his efforts to obtain a permanent visa as noted above. That the response from Post confirmed that a person by the same name and date of birth as the applicant ‘was imprisoned in [Prison 1], as per the arrest warrant’ adds further concerns over the applicant’s claims. How could he have been imprisoned as per the arrest warrant if he had fled before the arrest warrant was received by his mother? The applicant’s response was that he was imprisoned during his time serving in the military and that the reference is a reference to his then imprisonment. This is not convincing. Firstly, because the response from Post clearly states, ‘as per the arrest warrant’. Secondly, that despite the extensive engagements, interviews, submissions and hearings spanning ten years including specific claims that the applicant feared being sent to prison, a fear that would be reasonable to associate with having already spent time in prison, nothing was said. The applicant did not mention that he knew the conditions of prisons in Iran, he did not recall any experiences of his time in prison, he did not associate his fear of being imprisoned with his past experiences. He did not mention spending 8 months in an Iranian prison during his military service until it first appeared in the psychologist’s report of December 2020 which is based upon three interviews with the psychologist held [in] October, [November] and [December] 2020. I note in the applicant’s favour that this evidence nevertheless arises before the response from Post was presented to the applicant and as such should be given some weight.

47. When I asked him in the third hearing as to why he had not mentioned it before, he claimed that he had mentioned it in his early interviews and suggested that maybe it wasn’t correctly interpreted. At this hearing he said that he was imprisoned in [Prison 2], a military jail. I note that this raises a further significant issue and that is the response from Post referring to [Prison 1] which is in Khorasan Province whereas the applicant stated that he was in [Prison 2] in Tehran.

48. In support of the applicant’s claim is that Post confirmed that there is a pending case, ‘he has a case in [City 1] Court, which is pending a sentence to be issued (file [number]).’ It is not clear from the evidence before the Tribunal what the pending case is. Further follow up from Post could confirm whether the case in the courts is the same as what the applicant is claiming based upon the documents he submitted and it could confirm when the man named as having spent time in prison actually spent the time in prison. But pursuing this course of action to verify these claims was refused by the applicant.

49. That the applicant and representative expressed a desire for the Tribunal not to pursue the formal verification process with the Iranian authorities has left the Tribunal in a dilemma.

50. As a result, I have turned my mind to the entirety of the information available before the Tribunal in considering whether the applicant’s claims of being of interest to the authorities are true. I have serious doubts about the applicant’s credibility as noted above. His narration has changed repeatedly requiring several corrections and at other times resorting to an explanation based upon poor translation or interpreting. The repeated corrections only lead to further questions. While I acknowledge that the applicant has some mental health challenges he has been consistent on other matters involving his past and has stated in his statutory declaration of March 2021, ‘I remember that day quite well as it affected myself and my family tremendously.’ The applicant’s psychologist noted that with the right support the applicant would be able to provide evidence to the Tribunal.

51. The corrections and inconsistencies were not of a minor nature. At the heart of the inconsistency is the applicant’s claimed stay at his uncle’s house for one or one and a half years. This claim did not align with his original claims and time frames and puts into question some key events. It is relevant as the applicant is claiming that he was wanted by the authorities after being caught purchasing alcohol but depending upon which narration is accepted he was subsequently able to access a passport from official sources, purchase a ticket at the airport and depart using his own name.  

52. I note that originally there was no mention of any issues with the authorities relating to drinking alcohol. But then in 2012 despite having participated in an entry interview, completed a statutory declaration and the protection obligations evaluation interview the claim was only raised in a subsequent protection visa interview. I note that contemporaneous country information suggests that the punishment was a fine and detention for 2–3 days. The applicant had earlier stated that he feared he would not be able to pay the fine (Independent Protection Assessment decision), yet he had the money to pay for an international flight to depart from Iran and to pay to enter Australia from Indonesia as an irregular maritime arrival. When I put this to him under s 424AA, that he had initially claimed that he came to Australia in part because he could not afford to pay the fine, he claimed that he had not said that. This is yet another example of the applicant’s need to correct the record and further adds to questions of the applicant’s credibility. Despite it being difficult to reconcile his response when considering the reported minimal punishment, I place little weight on this as different people respond differently to pressure and fear and it is plausible that the applicant decided to flee in fear of a fine and brief detention.

53. When the claim was first made regarding the alcohol incident the chronology of the events provided by the applicant was compressed, beginning sometime in 2010 and quickly leading to the applicant getting a passport, going to the airport, buying a ticket and departing. The applicant has resiled from these claims and instead adopted a different narrative.

54. The alternative and more recent chronology, though, is problematic. The applicant claims that the incident occurred in February 2009 and that he was wanted by the authorities, but no effort was made to find him that is known to the applicant until December 2010. This is vexing. The raid occurred at the applicant’s home, yet no documents were served, no effort was made to engage with his family until nearly two years later at which point the applicant is in Australia and the persecution of the family begins in earnest. The applicant claimed that his then girlfriend’s family are driving the efforts by the authorities to pursue him. But this relies upon a belief that the authorities at the behest of the girlfriend would not have known the locations of the applicant’s wider family including his wealthy uncles during the nearly two years prior to his departure.

55. Country information notes that the time frame between request to appear in court after the first summons through to a failure to appear and a sentence handed down in absentia would normally take up to a month. The applicant has submitted a second set of court documents that he claims shows a continuing interest of the authorities in him. This second set begins in 2017 and continues through to 2020 relating, according to the applicant and the documents, to the same incident in 2009. This is contrary to country information. It is perplexing that the applicant is claiming the authorities not only don’t know that the applicant has departed Iran, and have not already finalised the case in absentia, but that they appear to have pursued the same case twice.

56. The applicant claims that he chose to leave Iran before he knew of the charges. It appears to be a coincidence that the arrest warrant was dated a few weeks prior to his departure and upwards of two years after the incident and only made known to him after he arrived in Australia. On its own, coincidences are possible, but considering the wider set of doubts I hold, this lends a further layer of concern.

57. I accept that through the efforts of Post there exists some documentation that a man by the same name and date of birth has a pending case, but the information that arose from this investigation also added further questions. The prison the applicant claimed to have spent time in, is different to the prison the response from Post states the man had spent time. In addition, it is clear from the response that the imprisonment was in relation to the arrest warrant and not a prior incident during his military service which was in [earlier year range].

58. Based upon the reasons given above arising from conflicting and inconsistent information, question of credibility and alternative country information, I find that all of the court documents including the most recent ones submitted are false documents and that the Iranian authorities have no interest in the applicant. I find that the applicant has manufactured the impression that the authorities are interested in him. Furthermore, I find that the claimed incident involving the applicant drinking alcohol with his girlfriend and fleeing to his uncle’s house where he hid for over a year did not occur.

59. It is not for the Tribunal to speculate on what the real circumstances are behind the documents and how it is that Post was able to verify that [a person with the applicant’s name] with the same date of birth is facing further proceedings before the Iranian courts. There are many possibilities. I note that the applicant gave evidence that he had spent his military service working in the Revolutionary Court of Tehran. This forms sufficient foundation to believe that the applicant has the ability to arrange for false documentation.

    Political engagement

100.   The applicant had at an earlier stage claimed that he fears that if he was to return they would consider him a spy and that he is a member of the ‘Democratic Arab Front’ (Ah-Ahwaz Arab Popular Democratic Front) who are demanding independence. Yet at the hearing when I asked the applicant if he had ever been a member of a political party, he responded that he had not. I find that the applicant had never been a member of a political party.

101.   The applicant said that while in Australia he has been involved with two Australian Ahwazi groups. He provided two letters in support of this claim. The first, from the [Community Group 1] in [city] states, ‘the [Community Group 1] confirms that [the applicant] is arab and is from Ahwaz. [The applicant] is well known to the community.’ The second from [Community Group 2], confirms that the applicant is Ahwazi Arab and that the organisation has been in touch with him since 2020. It states that he suffered discrimination and persecution at the hands of the Iranian authorities and that since his arrival to Australia he has established links with [Community Group 1] in Australia. The letter states that the authors believe the applicant will face serious harm was he to return.

102.   I put to him that country information indicates that the Iranian government doesn’t pay attention to the activities of Iranians with his profile while in foreign countries.[10] The applicant said that politically active Arabs overseas are treated differently. The applicant said that he knew of these two organisations and was in contact with them by telephone but because of the risk to his family he claims that he did not have much more involvement with them.

[10] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Iran’, 14 April 2020 at [5.29]-[5.31]

103.   I accept that the applicant has been in communication with both groups as described by the applicant and the authors of the letters and that he is known to the [Community Group 1] as an Ahwazi Arab. I give little weight to the views found in the [Community Group 2] letter regarding the harm the applicant faces upon return to Iran as little justification was given for the view.

The process of checking the veracity of the applicant’s documents

104.   In a submission made by the representative on the 17 March 2021 the representative stated in response to the lingering questions over the veracity of the court documents submitted by the applicant: ‘The AAT has at its disposal the ability to send the original Iranian documents for document verification...The Tribunal should refer these documents for verification given this is a material aspect of the applicant’s claims for protection in Australia.’ Based upon this request I sought permission from the applicant to have the document verified.

105.   The representative and applicant have submitted concerns that the consent that was provided did not cover revealing the documents to the Iranian authorities. This concern is relevant in the matter before the Tribunal only so far as it may have repercussions to the applicant was he to return to Iran. The issue of whether the consent form provided to the applicant which explains the processes that will be undertaken was adequate is not relevant to this decision and can be pursued by other means. The outcome, though, of the Iranian authorities being asked to verify the document is relevant.

106.   The applicant’s representative has outlined the basis of their concerns as including the following:

a)That he is now known to be in Australia

b)That he is now known to have sought protection

c)That he has provided Iranian court documents to the Australian government

d)That he has outstanding court matters

I will engage with each to consider their impact on the applicant’s overall claims.

107.   Firstly, regarding the applicant being known to be in Australia and having sought protection. There is a record of the applicant having left Iran as he exited via Tehran airport under his own name. But this would only show the applicant as travelling to [Country 1]. The applicant had nevertheless separately claimed to fear persecution based upon his asylum claims being known to the Iranian authorities as a result of his image appearing in an Australian newspaper along with other asylum seekers [on Christmas Island]. The applicant had stated at the protection obligation determination stage, ‘that someone uploaded photographs of him on the web whilst he was on Christmas Island thus he would be identified by the Iranian authorities as a person who sought asylum in Australia.’ At the earlier, differently constituted Tribunal, the applicant is recorded as having claimed that due to the article the Iranian authorities would know that he was in Australia and had claimed asylum.

108.   I accept that arising from various actions, whether through the Post engaging with the authorities, the photograph that appeared on the newspaper of the applicant or through his engagement with the diaspora, the Iranian authorities are aware of the applicant’s residence in Australia. Was the applicant to return to Iran he would do so on an Australian issued temporary travel document. As such I accept that for various reasons it would be known to Iranian authorities that he had been in Australia.

109.   I give the applicant the benefit of the doubt and accept that some Iranian authorities may surmise that he had sought protection during his stay in Australia.

110.   I also accept that through the process of verifying the documents claiming to be from the Iranian courts it would be reasonable to assume that an officer of an Iranian court believes the applicant to have provided them to the Australian government.

111.   Lastly, the claim was made that through the process of verifying the documents that it is apparent to the Iranian authorities that the applicant has outstanding court matters. This is an odd claim. The applicant is claiming harm arising from the Iranian courts being interested in him but then to claim that they would know of their own interest because Post provided a copy of their own documents is strange. This claim may make sense if the documents were false or if they referred to another [person by the applicant’s name] who was in Iran and had already served a sentence which I consider further below.

The applicant’s religious beliefs

112.   The applicant’s family is Muslim. He said that he believes in his own god and he is not religious. He is living in accommodation provided by a Christian organisation in Australia. He claims that what he has observed from the Christian community in Australia he has been deprived of when he was living in Iran. He said he accepts Christianity exists and that it is true because of the assistance he has received from the Christian community.

113.   The applicant said that he believes the Koran to be just a book. I asked if he is saying he converted to Christianity to which he responded that in the future there is a possibility that he will convert to Christianity. I asked that if he believes in his own god why would he convert in the future to Christianity? He said God is God, and that he accepts Christianity as when he was in need, Christians helped him. He said that he would be open to embracing Christianity because Christians have been kind.

114.   The applicant named the organisation he has received support from as [Agency 1]. The applicant said that he has been to church a couple of times in 2014 but he can’t remember where exactly other than that it was in [Suburb 1], close to [a location], and a couple of times in [Suburb 2]. The last time he went was last year with friends for Christmas.

115.   The applicant’s engagement with the Christian faith is largely transactional and social. He has received much needed support from a Christian organisation and has socialised with friends at a church. This is not indicative of a belief in Christianity nor even an inclination towards taking the necessary steps to become Christian. I accept the above narration of the support he has received from a Christian organisation. Nevertheless, I find that the applicant is not a Christian, does not have genuine aspirations or intentions to become Christian and into the reasonably foreseeable future free from fear he would not develop such aspirations or intentions to become Christian.

Considerations

Being Ahwazi

116.   I have accepted that the applicant is an Arab from Ahwaz. The applicant has claimed that this will lead him to face harm arising from ethnic discrimination. I accept the applicant’s narrative of his family having lost a large portion of their farm without compensation. While this event from the past may inform the future, I note that the applicant did not claim a fear of having more land confiscated sometime in the future. There is no indication that the applicant has any land to be confiscated. Instead, the confiscation was presented as being representative of a broader culture of prejudice that the applicant would face upon return to Iran.

117.   I explained to the applicant the refugee test and emphasised that the harm needs to amount to serious harm. I noted that he was able to work as [an occupation 1] for 7–9 years and that although it was difficult, he did not face serious harm as, for example, he was able to sustain himself and contribute to his family. He responded that he was working as a labourer and then after four years he could become a master [occupation 1]. He said that he had to work very hard and wouldn’t get given much. He claimed that he would work for four months and get paid for only two days.

118.   The applicant described other discrimination including that his family had their own traditions and customs and that they wanted to wear their own clothes but were not allowed. He claimed that, as another example, that Arabs are not allowed to have their own cultural celebrations.

119.   Regarding medical care, he claimed that he wouldn’t be able to receive medical assistance or care and that instead in the past and even now he would have to pay for it. He said that there are public hospitals in Khuzestan, but that he would have to pay for them out of his pocket. He explained that those who worked for the government got medical care paid for through their government insurance. He explained that Ahwaz does not have medicines and as such you can’t get what is required.

120.   I put to him that I was unable to find information to suggest that doctors would not treat Arabs because they are Arabs.[11] The applicant claimed that medicine isn’t always provided to those in need because the area is deprived but also because of discrimination. I put to him that the majority of the population is Arab and asked why Arab doctors and pharmacists would be discriminating against Arabs. He said that most of the doctors and other staff are Fars, if there are Arabs they are under the control of Fars.

[11] I searched Google, Refworld, CISNET

121.   I explained to the applicant that I had not found country information that supports his claims of ethnic discrimination in accessing medical care. I provided an opportunity for the applicant to provide such information in post-hearing submissions. In the submissions that were received country information was provided that confirms it is difficult to obtain medical treatment due to cost, limited access and limited staffing and only one reference included a suggestion that healthcare is affected by discrimination, but it was in passing with no examples, evidence or reference to other literature.

122.   Alternatively, DFAT notes that ‘Arabs are not specifically targeted for discrimination on the basis of their ethnicity, including in their ability to access government services.’[12] While DFAT does not specifically mention medical care I take it to be an all-encompassing statement for government services unless otherwise, as the report does for circumstances such as employment in certain sectors (see below).

[12] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Iran’, 14 April 2020 [3.13]

123.   Based upon the totality of evidence before me and noting the extensive attention human rights organisations, foreign governments and NGOs pay to the situation in Iran particularly for minority groups and yet there being no reports or mentions other than one sentence that mentions discrimination in relation to medical care, I find that there is no discriminatory treatment with regard to accessing medical treatment based upon ethnicity.

124.   I put to the applicant country information on the situation of Arabs in Khuzestan province of which Ahwaz is the capital:

DFAT 3.8 Arab cultural activities are tolerated, and Arabs can freely wear traditional Arabic dress. They also freely speak the Arabic language. DFAT heard anecdotally that Arabs in Khuzestan Province are afforded considerable space to express their ethnic identity.[13]

[13] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Iran’, 14 April 2020

The applicant claimed that in 2010 or 2009 there was no freedom, he said that Arabs didn’t have work entitlements and that his family were not able to wear traditional clothes.

125.   I acknowledged to the applicant that ‘Community representatives claim that Iranian Arabs are systematically excluded from employment in the shipbuilding, manufacturing and petrochemical industries and from opportunities to work in local government.’[14] The applicant agreed saying that his brothers were unable to find work in any factory and if you raise your voice you will be labelled a protestor.

[14] Ibid [3.9]

126.   The applicant provided a number of photocopies that purported to be instructions to various companies in Ahwaz to not employ Arabs ([Number]). No date was mentioned in the translations, but as it was submitted with his initial application the documents must date prior to 2011. 

127.   I put to the applicant that in the latest DFAT report the Department, ‘assesses that Arabs are not specifically targeted for discrimination on the basis of their ethnicity, including in their ability to access government services, and are afforded the same state protections as other ethnic minorities.’[15] The applicant commented that the former Ahwaz used to have a flag, a president, a currency, and oil was important. Then Iran took Khuzestan. I repeated to the applicant DFAT’s view which is that Arabs are not specifically discriminated against (other than as noted regarding employment within certain industries). He said that it is racial discrimination to not be able to access work and claimed that they bring workers from Tehran and Fars to work in companies in Khuzestan.

[15] Ibid [3.13]

128.   I acknowledge country information submitted by the representative which provides information on macro and historical discrimination against Arabs in Iran. Submissions were made on this issue referencing Arab News, British Ahwazi Friendship Society, Fikra Forum and others. In addition, some of the information was in the form of an individual’s opinion, for example in the article, ‘Ahwazi Arabs need world’s help to win their rights’ by Maria Maalouf. In this case there were no hyperlinks embedded in the opinion piece to support the claims the author was making. As such I place limited weight on it. Furthermore, this article and other commentary on the situation of Arabs engages at a high level, arguing that policy decisions on the allocation of resources represent economic neglect, but this does not necessarily translate to evidence that the applicant within his particular circumstances would face serious harm.

129.   The representative submitted a UK Home Office report on the situation of Arab Iranians.[16] I have reviewed the report and note that the view expressed by a UK Upper Tribunal is representative of the paper’s overall sentiment:

[16] UK Home Office, ‘Country Policy and Information Note Iran: Ahwazis and Ahwazi political groups’, Version 1.0 June 2018

We do not accept that an Iranian from the Arab areas would risk persecution for that reason alone in the event of his return. Although there is considerable evidence in the background material to show that the authorities [in] Iran lose no opportunity to show their power in the Arab areas, it is going too far to say that every Iranian Arab risks persecution…

When this was put to the applicant, he responded by stating that families are unable to find employment.

130.   In considering the evidence before me I note that while the applicant has provided information of discrimination both at a national level and from the past specific to him, particularly during his youth, as well as claims of being unable to find work, other evidence he provided offered a counter narrative. The applicant has two uncles who are wealthy, own a [business] and live in a house with a backyard and swimming pool. The applicant claims that he worked as [an occupation 1] and was employed in some instances by non-Arabs. Country information from DFAT is unequivocal, cultural activities are tolerated and Arabs are not specifically targeted based upon their ethnicity. There is evidence of macro-level policies which can be interpreted to be prejudicial against Arabs and could be leading to adverse outcomes in the region. These could be in part a prejudice that is based on ethnicity arising from a long history of tension between Arabs and Persians and the control of the border area between Iraq and Iran. It could also be a result of re-distribution efforts arising from the relative oil wealth of Khuzestan and a natural resources deficit in other provinces which has led to migration from other parts of Iran to Khuzestan. The reality is most likely a mix of both including an element of concern by Tehran on national security grounds and a fear of separatism. The central question, though, is not the status of the state’s policies in the abstract but rather the circumstances to which the applicant would be returning to, for which the state’s policies form just one of many influences.

131.   The country information alongside the applicant’s experiences indicate some degree of state discrimination including in finding employment in the shipbuilding, manufacturing and petrochemical industries and from working in local government, but considering the applicant’s past employment and skill set alongside country information that suggests there is limited discrimination I find that exclusion from those industries and sectors would not lead to him facing a real chance of serious harm or a real risk of significant harm. Other negative circumstances arise as a result of Tehran’s policy towards Khuzestan. While I accept that poor air quality due to the petrochemical industries, poor water quality and other circumstances may impact the applicant I note that no evidence was provided nor has been found[17] to suggest that the harm the applicant would face as a result of these general environmental concerns would lead in his specific circumstances to serious or significant harm that is discriminatory for refugee reasons or that there is an intentionality to it for complementary protection. Overall, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm based upon being an Ahwaz Arab who lives in Khuzestan Province.

[17] I searched Google, Refworld and CISNET

Future alcohol consumption

132.   I asked the applicant how often he drinks and whether he is addicted to alcohol. The applicant said that he is not addicted and would drink on a weekly basis. I asked if he could stop drinking alcohol to which he responded that he cannot. He said that he has childhood trauma in the form of memories about when the authorities took his family’s land. I put to him that there are different ways that people deal with pain and anguish and there are countries where alcohol is banned and yet people find ways to cope. He said that he is now used to using alcohol, he said that it makes him feel relaxed on weekends.

133.   The applicant has not sought any support to stop drinking alcohol while in Australia.

134.   I put to the applicant country information on alcohol drinking in Iran including that alcohol is readily available and its use in private settings is widespread, that it is estimated that Iranians over the age of 15 drink about 1 litre of alcohol per annum, that alcohol can be delivered to one’s home, that prosecutions for alcohol are not common, police do not entrap individuals who consume alcohol and where enforced the punishment for alcohol is ‘normally a fine, usually paid on the spot. Floggings may be imposed periodically, but are rare,’[18] The applicant responded that the information is different to what happened to him in Iran. He said that in Khuzestan the authorities are brutal and cruel.

[18] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Iran’, 14 April 2020 [2.33]–[2.34]

135.   The representative referenced country information that indicated that there has been a recent execution for someone drinking alcohol, but the same country information submitted explains that:

A 55-year-old, Mortaza Jamali, was named as the victim of the execution in Mashhad, Razavi Khorasan province, in reports by independent media outlets and on social media. At the time of writing, Amnesty International had not yet been able to obtain more information about the details of his trial and sentencing. In response to public outrage over the execution, the department of justice in Razavi Khorasan province issued an official statement today, listing the man’s criminal record from previous cases unrelated to his death sentence, in what appears to be a crude attempt to “justify” his execution. [bold added]

136.   Additional country information was provided in post-hearing submissions of a 73-year-old man who was charged for drinking alcohol for the fourth time and based upon Iranian law, the penalty prosecutors were calling for was the death penalty. Another submission was of a man who was caught, sentenced and subsequently executed for drinking alcohol for the sixth time (it would appear that this submission refers to Mortaza Jamali, referenced above).

137.   I asked whether there is any evidence that the regime is stricter against Arab Ahwazi drinkers of alcohol as I was unable to find evidence suggesting that this is the case.[19] The applicant responded that there is discrimination in other areas such as access to Medicare and insurance let alone drinking alcohol but no independent information supporting this claim was provided.

[19] I searched Google, Refworld and CISNET

138.   The applicant’s claimed experience 12 years ago is not necessarily representative of the current situation in Iran, nevertheless I give it some weight. But when considering future circumstances the applicant faces was he to return to Iran I note that the DFAT report provides what appears to be an unequivocal message that alcohol consumption is illegal but tolerated to an extent. There is no mention of the application of the law being geographically nuanced nor did the applicant provide such evidence other than claims that he is discriminated against on other matters (I note that country information referenced above contradicts the applicant’s claims of discrimination in accessing essential services). I accept that a man was executed for alcohol consumption but considering that the report acknowledges the lack of information regarding the trial and sentencing and adds that the applicant had a criminal record that is not reflective of the circumstances the applicant would face. Another man, I acknowledge, has been charged and faces calls for the death penalty. Noting that alcohol drinking is widespread according to information referenced by DFAT and that these two incidents appear to be the only ones in recent times, I find that the applicant’s continued alcohol drinking even noting that he is an Ahwazi Arab living in Khuzestan would not lead to a real chance of serious harm or a real risk of significant harm.

Failed asylum seeker and the Iranian regime’s knowledge of the applicant’s activities in Australia

139.   The applicant stated that he would not return to Iran voluntarily. In CLS15 v Federal Circuit Court of Australia [2017] FCA 577 Charlesworth J did not accept the reasoning the Tribunal member had adopted in considering whether the applicant would be a voluntary or involuntary returnee and the associated considerations that stem from such a decision. The Justice provided guidance at [64] by stating that, ‘It is for the Tribunal to determine, on the evidence before it, whether or not the appellant can be forcibly returned to Iran and hence whether a fundamental premise of this aspect of his claim exists.’

140.   The Iranian Foreign Minister, during his March 2016 visit to Australia, stated that Iran would only accept failed asylum seekers from Australia who returned voluntarily. On 19 March 2018 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. Based upon the long history of the Iranian government not accepting involuntary returnees and that only in recent times a diplomatic breakthrough has led to a change of position, I find that into the reasonably foreseeable future the Iranian government will not again give ground and revisit its agreement not to accept involuntary returnees prior to the date of the MOU. As such when turning my mind to considering the applicant’s risks I do so upon the basis that was he to return to Iran in the reasonably foreseeable future he would do so as a voluntary returnee. The alternative for the applicant is that he remains in Australia, which may involve community detention or detention in an immigration detention facility, neither of which falls within the purview of this decision.

141.   I summarised for the applicant the below country information and asked whether he had any comments:

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. Those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are traveling on a laissez-passer. Questioning usually takes between 30 minutes and one hour, but may take longer where the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history on the part of the returnee. Arrest and mistreatment are not common during this process. A well-placed source was not aware of voluntary returnees being prosecuted for criticising the Islamic Republic, converting to Christianity or proselytising while abroad on their return to Iran. As far as DFAT is aware, the authorities do not check the social media accounts of Iranians returning from abroad.[20]

[20] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Iran’, 14 April 2020 [5.29]

The applicant responded that he is unable to go back to Iran and if he goes back to Iran his life is in danger and he will be arrested in part because he belongs to the Arab Ahwaz community.

142.   The applicant raised concerns about photographs that were posted of him online showing him in Australia. I put to the applicant that even if Iranian authorities know of the applicant’s claims in Australia, whether by way of the photographs, Post’s engagement with authorities or returning on an Australian issued travel document, country information suggests that they do not pursue those with his profile and who had sought asylum. He said that when the Iranian government has access to that photo, they will label him as a spy as he is an Arab in Iran. He believes that his case has been archived and that they are aware of him being in Australia.

143.   I do not accept the connection between being an Arab Iranian, living in Australia, claiming asylum and being perceived to be a spy by the Iranian regime. The applicant has no political background and has not involved himself in any political activities in Australia. As such submissions made by the representative relating to the imprisonment of an asylum seeker returned from the Netherlands who was a member of the Arab Struggle Liberation movement for Ahwaz are not representative of the applicant’s circumstances. The applicant did not provide any country information that would suggest being an Arab Iranian without a political profile would expose him to being considered a spy.

144.   I do not accept that the applicant’s belated engagement with two Ahwaz groups in Australia, which he described as being over the telephone, change the applicant’s risk profile. I do not accept that such engagement, even were it to be known to the authorities, would lead to the applicant being perceived as political and specifically that such involvement would be of interest to the authorities.

145.   We also discussed any imputations of a political opinion. I put to him that country information clearly explains that Iranian authorities don’t consider what has occurred overseas as matters for them to pursue.[21] He responded that it is different for him as at some stage Khuzestan had its own flag while now Iran controls the oil fields and they don’t give the residents much freedom.

[21] Ibid [5.29]–[5.30]

146.   In considering the applicant’s circumstances, namely a known failed asylum seeker without a political profile I find that based upon the country information available to me that the applicant is not of interest to the authorities, that the authorities would not impute a political opinion or consider him a spy. I find that the applicant does not face a real chance of serious harm or a real risk of significant harm for these reasons.

The applicant’s beliefs

147.   I found that the applicant is not a Christian and will not aspire to become one into the reasonably foreseeable future. I note that country information that was read to the applicant and discussed above, states that Iran does not even pursue those who had converted to Christianity while abroad.[22] For these reasons, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from his association with Christianity through his stay at [Agency 1] facilities or his social attendance at a church.

[22] Ibid [5.29]

148.   The applicant also claimed that his belief is such that he would be identified as non-Muslim because he drank alcohol, eats pork and isn’t a practicing Muslim. I asked the applicant if pork was available in Iran, he said that it wasn’t. As pork is not available in Iran, I find that the applicant would not be distinguished from other Iranians as there is no pork for him to be seen to be consuming. Regarding alcohol, this has been addressed above, but as a representation of his faith or lack thereof, I note that the applicant said that he was not addicted to alcohol, that country information suggests that it is available to be delivered to the home and as such find that the applicant can drink it at home without it leading to being imputed with apostasy or alternatively he can choose to stop drinking alcohol, which I do not accept would be a modification of behaviour that would infringe upon the Convention’s protected traits.

149.   Finally, regarding his lack of attendance at communal prayer which is the most visible indicator of faith in Iran, I presented country information from the World Values Survey[23] which states that more than half of the population goes once a year or less to mosque or only on special holy days. He responded to this by saying that they force people to go to mosque, though he acknowledged that most Iranians go home on Friday to perform their prayers. In the applicant’s March 2021 statutory declaration, he notes at [8] that by 2006 or 2007 he was no longer very religious and had stopped going to the mosque. The applicant had not mentioned at any stage through the 10 years of engagement with the Australian government that as a result of having stopped going to mosque that he had encountered any problems. I give this considerable weight.

[23] World Values Survey Wave 7 (2017-2020) Q171  In considering the risk the applicant faces arising from being a non-practicing Muslim I note that a large number of Iranians don’t participate in public expressions of their faith. There is no evidence to suggest that they are harmed for their absence and none was provided by the applicant. I note that the applicant himself has admitted to not attending mosque for a considerable period of time. As such, I find that the applicant would not face a real chance of serious harm or a real risk of significant harm if he was to similarly not to participate in public expressions of his Muslim faith, nor for his craving for pork or his continuing to drink alcohol.

151.   The applicant mentioned that he is dating women in Australia and noted that this is different to the situation he would find himself in Iran where girls wear a hijab and they can’t go on a date in Iran. I do not accept that he would be unable to date women, but instead find that the norms of dating are different in the context of Iranian culture to that of Australian culture. I do not accept that the applicant having to once again adopt Iranian cultural norms in his effort to date women would amount to serious or significant harm.

Harm from his ex-girlfriend’s family

152.   The applicant believes that he will be shot by the family of his ex-girlfriend. He believes that they are after him based upon Arab laws which dictate that if a girl who hasn’t married and is still a virgin starts drinking, they take it very seriously.

153.   The applicant has claimed that the most recent court cases he presented to the Tribunal were at the instigation of [Ms A’s] family, but I have found all of the court cases to be fraudulent. I have also found that the applicant was not caught by security officials and that the claimed alcohol incident did not occur. I find that as [Ms A’s] family had not pursued the applicant and had no reason to pursue him that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from [Ms A’s] family.

Mental health and other services

154.   The applicant’s representative submitted considerable information about the limited level of support available for mental health in Iran but I put to the applicant that none of the information I found showed discriminatory treatment, specifically that someone is withholding treatment because a person is Arab. The applicant responded that there is evidence of discrimination but said that he was unable to find any on the internet. I put to him that the evidence submitted doesn’t suggest that nor does the evidence available to me. The applicant then proceeded to repeat his claims that he doesn’t have medical insurance, proper access to doctors and that many people die of asthma and pollution.

155.   I put to the applicant country information on the standard of mental health facilities in Iran. The World Health Organisation’s Mental Health System in the Islamic Republic of Iran report found that while there are shortcomings in the government’s response to mental health issues, it is a ‘well-resourced and competent system’.[24] In an academic article written by Priester he writes, ‘Having spent considerable time in discussions with professors and students involved in [Tehran Psychiatric Institute] I find the training and students to be on par with some of the best U.S. mental health counselling training institutions ….’[25] The applicant responded that this is not the case in Khuzestan.

[24] World Health Organisation, WHO-AIMS Report on Mental Health System in the Islamic Republic of Iran, 2006, accessed on 14 March 2018

[25] Priester, P E., Mental Health Counseling in the Islamic Republic of Iran: A Marriage of Religion, Science, and Practice, Counseling & Values, 2008, 52(3), 255

156.   Even was I to give the applicant the benefit of the doubt, I note that for a Convention nexus there would need to be evidence that the Iranian government is intentionally withholding mental health services for one of five Convention reasons. None being provided by the representative and no such evidence has been found through the Tribunal’s research that the government is withholding mental health services discriminatorily from Khuzestan, I find that the harm feared is not Convention related as such I do not consider this claim further in the context of a refugee claim.

157.   The Department’s PAM 3 Protection visas - Complementary Protection Guidelines provides international case law which supports a view that neither an exacerbation of a medical condition through the act of returning a person or an inability to access medical treatment in the country of return would normally amount to significant harm. The circumstances of this case have not presented me with evidence to suggest that his situation is an exception. As such I find that the applicant will not face a real risk of significant harm based upon the feared claim of inferior medical treatment.

Employment opportunities and general services

158.   I accept, as referenced earlier, that Khuzestan’s natural wealth is not being fully spent on its residents. There is a redistribution of resources among Iranian provinces and as a result Khuzestan can be seen as being deprived relative to its wealth. I listed human development indexes such as education, asset ownership (with a motorbike) and access to public services and said that Khuzestan is around middle or in the better half compared to other provinces in Iran.[26] I noted that this doesn’t suggest that there is a discriminatory withholding of resources. The applicant responded that the Ahwazi have been deprived of their rights, they are very poor and that sometimes the water is shut down or the power is out.

[26] Global Data Lab

159.   The representative provided a number of sources of country information that paint a less flattering picture of the circumstances in Khuzestan province. These included:

a.Spatial Distribution of Health Services in Iranian Provinces at the End of the Fifth Development Plan; 2015 (Based on Health Structural Indicators) in which Khuzestan was found to marginally have the lowest level of health infrastructure relative to population size. The second lowest, I note, is Alborz Province which neighbours Tehran province and was previously a part of Tehran.

b.Minority Rights Group International 2017 report which gave anecdotal and subjective assessments of the economic, employment and environmental situation.  

c.USIP report as an Iran Primer providing a summary of the various challenges Khuzestan faces including environmental, political and economic.

d.Iran Focus News and Analysis report on the situation in Khuzestan which noted the poor situation of education and suggested that by comparing indicators across provinces that it shows Khuzestan is lagging, but the report does not actually provide those comparisons.

e.Khuzestan was one of the hardest hit provinces by COVID

160.   Among the sources provided by the representative there was only one passing reference to a potential discriminatory stance by the government. In the Minority Rights report it states, ‘The province is also beset by other problems resulting from a century of deliberate neglect and underdevelopment, including higher illiteracy, lower life expectancy and widespread unemployment.’ (italics added)

161.   The authors of the Spatial Distribution of Health Services article conversely put it down to ‘lack of compensation for the backwardness caused by the years of the imposed war’ though I give this little weight as the authors of the journal are all based in Iran and as such other factors could be in play when it comes to their published conclusions.

162.   The USIP report also notes the Iran-Iraq war as having hit Khuzestan particularly hard. Corruption is also cited in the USIP report as being a driver of a lack of development.

163.   As noted by DFAT there is clear evidence that the Iranian government has a discriminatory tendency towards national industries such as oil and gas. This is reflected in a lack of access to employment in the government sector. The USIP report notes that Arabs hold less than one percent of government and private sector managerial positions in Khuzestan and ‘many businesses in Khuzestan import labor from other provinces instead of employing locals. The locals who are hired are often poorly paid day laborers.’ The information provided by the representative also reinforces the view that Khuzestan has proportionately benefited less from its relative economic success based upon its oil industry: ‘In 2016, the deputy minister of Economy, Cooperatives, Labor and Social Welfare acknowledged that Khuzestan was underdeveloped “despite being rich in resources of water, gas, oil, petrochemicals and various industries.”’[27]

[27]  While I accept that there is discriminatory treatment in some instances the result, though, is not such that the Arab population, which comprises 75% of the province’s population, faces serious or significant harm. I accept that water and power are shut down sometimes, from the country information provided to the Tribunal there is no credible information to suggest that this is intentional and the intent being to harm the population (as opposed to load shedding or for repairs for instance). The applicant was able to find employment in the past and as noted in the country information referenced by the representative, unemployment was at 14% in 2019, a figure that I find does not indicate the applicant will be unable to find work such that he can’t sustain himself. The applicant has wealthy uncles which shows that Arabs can succeed and to whom he can turn to and seek support. For these reasons I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from employment opportunities or the general situation in Khuzestan.

Political views

165.   The applicant described in a statutory declaration from March 2021 his lifestyle in Australia would be the basis of a political opinion or an imputed political opinion. These include but are not limited to:

I have become passionate about the freedom I have here.

…people should be free to speak their mind.

Now I freely go out with my friends to pubs, have female friends and date ladies.

I believe I have a right to drink a bit of alcohol or watch what movies I want and date others if I want and it is not for an Iranian government to tell me what to do. Every individual should be free to decide for themselves.

I do not respect the Iranian government as they are corrupt and do not care about their citizens, particularly about Arabs. They do not provide freedom and only restrict people’s behaviour. They do not allow us to wear traditional Arabic clothes and they do not allow us to watch sport. They do not accept other cultures, including Arabic cultures.

166.   The overall political opinion is one of being against the regime, against strict Islamic rule and against limitations on freedoms that differ to those in Australia. I accept that the applicant is enjoying these freedoms in Australia. Migrants of all stripes whether economic or by way of family reunion benefit and undoubtedly enjoy these rights. But benefiting and enjoying these rights does not in of itself make someone a refugee if they were to be faced with a return to a country with fewer or differently constructed rights.

167.   The applicant has not expressed his political opinion against the Iranian regime whether in Iran by way of participation in protests nor in Australia in any way. I find that the applicant would continue as he did when he was in Iran and while in Australia, to harbour discontent with the Iranian authorities, but he will not seek to take it further. I do not accept that the applicant’s personal lifestyle such as wanting to date women or drink alcohol will lead to the applicant being imputed with a political opinion. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm for reasons of political or imputed political opinions.

Further matters that arise

168.   As noted above, the applicant’s claims of the Iranian courts having an interest in the applicant have been dismissed as fabricated. This conclusion was arrived at in part by way of Post’s engagement with the authorities. As I have found that the Iranian court documents are not indicative of the applicant facing harm the question arises whether there is reason to believe that the applicant could face harm as a result of having produced those documents to the Australian authorities who subsequently made the Iranian authorities aware of this. The risk is twofold. Firstly, in that the applicant is perceived to have manipulated the system such that he misrepresented to Australia the actual circumstances and secondly, that by producing Iranian court documents which may be genuine but not relating to the applicant that he has breached a law that restricts the sending of legal documents abroad.

169.   With regard to the first, I note that country information discussed with the applicant and referenced above, suggests that the Iranian authorities turn a blind eye to activities and claims made by asylum seekers including claiming the riskier endeavour of conversion to Christianity among others. That the applicant claimed while in Australia that he faced harm by way of being imprisoned I find to be covered by this country information which dismisses the interest of authorities in the activities of asylum seekers in Australia.

170.   Regarding the claim that the Iranian government does not allow court documents to be sent abroad I note that despite requesting the applicant to provide independent evidence of this claim none was provided, and none was found by this Tribunal.

171.   Considering that there is no evidence that the Iranian authorities limit the sending of court documents and that I have found the Iranian authorities would not pursue the applicant’s efforts to present himself as being at risk of harm upon return I find that the applicant does not face a real chance of serious harm or a real risk of significant harm.

Cumulative

172.   I now turn my mind to consider the applicant’s circumstances cumulatively. I have accepted that the applicant being of Arab ethnicity faces a degree of discrimination, particularly by way of employment in particular industries such as oil and gas. I have accepted that the central government is undertaking re-distribution efforts with the result of Khuzestan’s natural wealth being distributed to other states. While finding that this discrimination in of itself does not meet the threshold test the applicant has claimed that as a result of the discriminatory views held by authorities his transgressions, be they not participating as faithfully as others in Islamic observances or drinking alcohol, will lead to a disproportionate reaction by the authorities. The applicant was asked to provide information that supports such views, but the Tribunal did not receive any submissions and was unable to find any such evidence. Even when considering the applicant’s actions in Australia including being supported by a Christian organisation, seeking asylum, sharing court documents with the Australian authorities and having become accustomed to living a free life in Australia, I find that there is no evidence to support the view that the state’s discriminatory treatment described above would lead to the applicant facing increased levels of harm. I have also considered other combinations of the applicant’s circumstances including how they would be impacted by his mental health and how it would impact on his circumstances upon return. When considering the cumulative circumstances in all combinations that the applicant faces upon return to Iran I find that he does not face a real chance of serious harm or a real risk of significant harm.

173.   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 the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a).

174. 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).

175. 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

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

Denis Dragovic
Senior Member