2005477 (Refugee) - [2024] AATA 2300

2005477 (Refugee) [2024] AATA 2300 (11 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Gulafshan Akhlaqi
CASE NUMBER:  2005477
COUNTRY OF REFERENCE:                   Iran
MEMBER:Genevieve Hamilton
DATE:11 April 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 April 2024 at 2:14pm
CATCHWORDS
REFUGEE – Protection Visa – Iran – religion – Baha’i – an outspoken critic of the Islamic faith – has renounced Islam – now agnostic – actual and imputed political opinion – anti-Iranian regime – membership of particular social groups – failed asylum seeker – non belief in religion in itself does not create a real chance of serious harm in Iran – tribunal does not accept that the applicant was ever introduced to the Baha’i faith or that he was or is a follower of Baha’i or any of its beliefs – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 56, 91, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands on [date] September 2012. He was granted a Temporary Safe Haven subclass 449 humanitarian visa on 5 December 2012 along with a bridging visa. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time.
The applicant applied for protection on or about 7 August 2013 (the first application). There was no decision on the application. On 12 February 2016 the Department wrote to the applicant stating that the application was statute barred but that the bar had been lifted and he was able to apply for TPV or a SHEV (subclasses 785 and 790). He applied for a SHEV subclass 790 on 14 December 2016 (the second application). He was interviewed on 25 July 2017.
On 8 August 2017 the Delegate decided that the applicant was not owed protection. The decision was referred to the IAA for review. The IAA affirmed the decision on 19 March 2018. The applicant applied for judicial review.
Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447, the applicant is not an ‘unauthorised maritime arrival’ (as was defined in s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2005477 (Refugee)

Details

AGLC: 2005477 (Refugee) [2024] AATA 2300
Case: [2024] AATA 2300
Decision Date: 11 April 2024

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an individual from Iran. The applicant claimed to be a Baha'i and an outspoken critic of the Islamic faith, asserting that he had renounced Islam and was now agnostic. He alleged that these factors, combined with his anti-Iranian regime stance, placed him at risk of serious harm. The dispute centred on whether the applicant's claims established a well-founded fear of persecution, considering his religious beliefs, imputed political opinion, and membership in particular social groups. The decision was made by Genevieve Hamilton, a Member of the Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2) of the relevant Act, and whether Australia had complementary protection obligations towards him. Specifically, the Tribunal had to determine if the applicant's non-belief in religion, his alleged Baha'i faith, or his criticisms of Islam constituted grounds for protection. The Tribunal was required to consider whether any claimed risk of harm was personal to the applicant or a general risk faced by the population, and whether it would be reasonable for him to relocate within Iran or obtain protection from Iranian authorities.

The Tribunal's reasoning focused on the applicant's credibility and the factual basis of his claims. It noted that while the applicant claimed to be Baha'i, he had not provided sufficient evidence to establish this. The Tribunal did not accept that the applicant had ever been introduced to the Baha'i faith or that he was a follower. Consequently, the Tribunal concluded that his non-belief in religion, in itself, did not create a real chance of serious harm in Iran. Furthermore, the Tribunal found that the applicant did not have a well-founded fear of persecution.

Accordingly, the Tribunal affirmed the decision not to grant the applicant a protection visa, finding that he did not satisfy the criterion in section 36(2).

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CLAIMS AND EVIDENCE In his arrival interview on 7 September 2012 the applicant said he was born in [year] in Karaj (Tehran) and that his religion was Baha’i. He listed a number of Iranian ID documents. He left Iran because he was harassed by people from other religious groups and couldn’t get a licence for his business registration due to his religion. He has performed his compulsory military training. He completed school, went to University for 3 months, obtained a [qualification] in 2002, along with management certificates. He worked in [a field] from 2007-2009 and then had a [business]. He has 3 sisters and one brother in Iran. His parents are separated. His father is unemployed/retired. He left Iran on [date] August 2012. He left on a genuine passport with a visa for [Country 1]. In his first application the applicant said his brother was actually in Australia and was a Permanent Resident. He completed school and technical school in 2003. He worked as a [Occupation 1] [from] 2002 to 2005. He had a 3 month stint at university in early 2004. He did his military service from [2005] to [2006] (2007 according to his submitted discharge). He was again employed as a [Occupation 1] until 2009 when he set up his own business until March 2012 when he became unemployed. In his supporting statutory declaration dated 7 August 2013 the applicant said he had not disclosed all his claims at the entry interview because he was asked to provide them briefly. He said he was Baha’i. He had questioned his faith while growing up. Islam was relied upon by people in Iran to justify atrocities. When he worked as a [Occupation 1] he was interested whether there was an alternative faith that he could follow. But people in Iran who follow other faiths rarely speak about them. He bult a relationship with a client who was Baha’i. This person explained to him its principles, which supported freedom of religion which was similar to his belief. He began researching and attended Baha’i gatherings. He refused to disclose his faith in his business registration and his application was refused, meaning he had to work from home and could not expand. The authorities came to his home twice to ask about his business and warned and threatened him about his registration. He had no option but to close it down. He had continued to learning about the Baha’i faith in Australia. He had recently moved to Melbourne and looked forward to joining the community here. In his second application the applicant reiterated that his religion was Baha’i. In his statutory declaration dated 10 December 2016 he reaffirmed his previous claims. He said he did not register as a Baha’i in Iran due to the danger of being known as a convert. He attended meetings but they were in secret. He said he did not operate his business from home but from an office where he also slept. He had been an outspoken critic of the Islamic faith and it was the religious department that questioned him about his business. In Dec 2012 his father said the authorities had been to his home and asked about his whereabouts. He was in contact with the Bahai’s and was taking steps to obtain his registration card. He was living with his brother in Melbourne who is also a Baha’i convert. The applicant said he will be jailed if returned to Iran involuntarily, and for having criticised Islam while he was in Iran.

Decision

Reasons for decision

Accordingly, the applicant does not satisfy the criterion in s 36(2).DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Genevieve HamiltonMember

Ratio Decidendi

Legal Principle Established

Under s 36(2B) Australia does not have complementary protection obligations 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 they will suffer significant harm; ·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or·the risk is one faced by the population of the country generally and not by the applicant personally.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CLAIMS AND EVIDENCE In his arrival interview on 7 September 2012 the applicant said he was born in [year] in Karaj (Tehran) and that his religion was Baha’i. He listed a number of Iranian ID documents. He left Iran because he was harassed by people from other religious groups and couldn’t get a licence for his business registration due to his religion. He has performed his compulsory military training. He completed school, went to University for 3 months, obtained a [qualification] in 2002, along with management certificates. He worked in [a field] from 2007-2009 and then had a [business]. He has 3 sisters and one brother in Iran. His parents are separated. His father is unemployed/retired. He left Iran on [date] August 2012. He left on a genuine passport with a visa for [Country 1]. In his first application the applicant said his brother was actually in Australia and was a Permanent Resident. He completed school and technical school in 2003. He worked as a [Occupation 1] [from] 2002 to 2005. He had a 3 month stint at university in early 2004. He did his military service from [2005] to [2006] (2007 according to his submitted discharge). He was again employed as a [Occupation 1] until 2009 when he set up his own business until March 2012 when he became unemployed. In his supporting statutory declaration dated 7 August 2013 the applicant said he had not disclosed all his claims at the entry interview because he was asked to provide them briefly. He said he was Baha’i. He had questioned his faith while growing up. Islam was relied upon by people in Iran to justify atrocities. When he worked as a [Occupation 1] he was interested whether there was an alternative faith that he could follow. But people in Iran who follow other faiths rarely speak about them. He bult a relationship with a client who was Baha’i. This person explained to him its principles, which supported freedom of religion which was similar to his belief. He began researching and attended Baha’i gatherings. He refused to disclose his faith in his business registration and his application was refused, meaning he had to work from home and could not expand. The authorities came to his home twice to ask about his business and warned and threatened him about his registration. He had no option but to close it down. He had continued to learning about the Baha’i faith in Australia. He had recently moved to Melbourne and looked forward to joining the community here.