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

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 (Cth) (the Act).

2. 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.

3. 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. 

4. 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. 

5. 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 5AA of the Act) having arrived at Ashmore and Cartier Islands. As the applicant was not an ‘unauthorised maritime arrival’, he is not a ‘fast track applicant’ (as defined in s 5(1)) and the decision to refuse to grant the applicant a protection visa is not a ‘fast track decision’ (as defined in s 5(1)). Instead, it is a Part 7-reviewable decision able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411.

6. Moreover, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.

7. Pursuant to a judgement in the Federal Circuit Court dated 11 February 2019, on 25 March 2019 the applicant was renotified of the Delegate’s decision.  It appears this notification was deemed misaddressed as the notification was sent again on 3 March 2020 and the applicant applied for review at the AAT on 18 March 2020. 

8. On 7 May 2020 the Department wrote to the applicant, incorrectly stating that the second application was invalid and “could not be considered”.  He was invited to make another application.  It appears he did not do so. 

9. The second application is considered valid as: no refusal decision had been made at the time of the second application and therefore the matter is not affected by the Section 48B determination in MS18-010982, and both visa applications were for TPVs, meaning the second application is not caught by Item 1403(3)(e) of Schedule 1 to the Migration Regulations 1994.

10. The applicant attended a hearing of the Tribunal on 10 November 2023.  The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

11. The applicant was represented in relation to the review.

    CRITERIA FOR A PROTECTION VISA

12. Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

13. The criteria for a protection visa are relevantly set out in s 36 of the Act.  An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person. 

14. Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.

    Refugee

15. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1).  

16. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.

17. The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted.  A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

18. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).

19. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA).  A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

20. In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).

    Complementary Protection

21. If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.  S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.

22. 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

23. 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

24. 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]. 

25. 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. 

26. 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. 

27. 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. 

28. By way of background, the applicant’s brother arrived in Australia on [date] January 2011 and was found to be refugee on 23 March 2011, having satisfied the Delegate that he was a Baha’i adherent. 

29. At his interview with the Delegate the applicant added that work colleagues disapproved of his western style of clothes and haircut, and that people had thrown rocks through the window of his office on multiple occasions. 

30. In support of the review application, the applicant made a statutory declaration dated 2 November 2023.  In it he said that from a young age he was vocal about his opposition strict Islam as practised by his family and did not agree with the way women were treated.  He was caught twice for smoking during Ramadan, taken to a police car and searched.  He claimed that he [did specified work] and well known in the industry and well regarded by these clients.  He also used to talk to people hanging around the building, including anti-Islamic conversations.  The applicant goes on to outline that when he started his own business he learned that his beliefs align with Baha’i.  He went to a few meetings.  He also learned though online sources and a community website.  He concealed this part of his identity due to the risk.  He left blank the religion component of his business registration form because he did not want to declare his religion.  He believed this was why it was not approved. 

31. The applicant stated that his brother also fled Iran due to conversion to Baha’i but the applicant did not go to gatherings with him because they do not have a good relationship.  Through an online group he met a member of the Baha’i community in Melbourne that he spoke to twice for several hours but this person stopped contacting him.  He felt rejected and no longer wanted to identify with religion.  He lost his faith in everything including God.  However he still feels spiritual and that there is one God, but he hates the practice of religion.  Religion had hurt him when he was young and had caused financial problems when his parents divorced.  He fears harm because he has renounced Islam, previously believed in Baha’i and is now agnostic.  His western values may make him a target for violence and persecution.  He is suffering from depression.  He has no contact with his family.  The applicant is well known in his community in Iran and he does not express his views publicly or on social media in order not to put his family’s lives, or his own, at risk.  His extended family are devout Muslims who have connections to politicians and he feared they would report him to the authorities. 

32. The applicant’s representative made a written submission dated 2 November 2023.  They submitted that the applicant would suffer serious and significant harm because of his religion (renunciation of Islam, prior conversion to Baha’i, non-adherence to Islam or any other organised religion), actual and imputed political opinion (anti-Iranian regime, expressed support for gender equality, non-adherence to Islam), and membership of particular social groups (failed asylum seeker, and/or western returnee).  It was submitted that his relatives are aware of his conversion to Baha’i and non-adherence to Islam.  It was stated that he learned of Baha’i through workers in his building that he became friends with.  It was also submitted that he still holds its core beliefs even though he does not practice it formally (those beliefs being described as that there is only one God, and the acceptance of all religions).  The submission cites country information about the treatment of Baha’i in Iran and states that the applicant’s relatives include individuals working with the government who would not hesitate to get him arrested and killed.  The submission also refers to credibility guidelines and contends that the applicant has clearly articulated a fear of harm consistent with country information. 

33. At the hearing the Tribunal asked the applicant why he became a Baha’i.  He said he was talking a lot about religion with customers and one said what you’re talking about sounds like what Baha’is say in that all religions are the same.  The Tribunal asked why Baha’i is not accepted in Iran.  The applicant said they do not accept any new religion.  The Tribunal asked why, specifically, Baha’i is unacceptable.  The applicant said they only accept Shi’a.  The Tribunal asked the applicant why it was a problem to follow Baha’ullah.  The applicant said he had not been able to study such things but the Baha’ullah’s thinking is the same as the applicant’s.  Asked who it was that talked to him about Baha’i, the applicant said it was a few of his customers and some friends.  Asked whether these people were themselves Baha’i the applicant said two were customers who took him to a session.  He really didn’t remember it, he is stressed and it was a long time ago.  He just sat back and listened.  He could not disclose their names as they may get into trouble.  The Tribunal put to the applicant that in his protection interview he had said it was one person and that he could not remember their name.  The Tribunal also put to the applicant that it did not believe it realistic that a Baha’i would take a non-Baha’i to Baha’i observances in Iran.  The applicant said they had known him for a long time and they heard him talking against Islam as it was enforced by the Iranian government, e.g. women having to wear the hijab and not being allowed to get out of the home.  The Tribunal put to the applicant that he had not previously expressed a concern about the status of women in Iran.  The applicant said he had a lot of time to think, and remembered the behaviour of the regime to his sisters.  He was not making a new claim but just expressing his thoughts.

34. He took the business registration form to the relevant government office but they wanted evidence of his previous work.  He compiled this and took it in as well, but they still said no.  Asked if he was ever given a reason for not registering his business he said he was not.  This was a few months after he started it.  The Tribunal put to the applicant that this was not obviously connected to religion.  The applicant said the man in the office knows him as a critic of the regime and does not like the way he dresses.  The applicant was living in his office because he could not afford to rent a house.  His father and his new wife were always arguing so he did not want to live with them.  His mother also remarried and moved away. 

35. The applicant said his brother left Iran in 2010 and that he only learned of this when his father told him a few months later.  Asked whether his brother knew he was following Baha’i in Iran the applicant said he did not.  Asked whether he was aware that his brother was following Baha’i in Iran the applicant said he was not.  He claimed that this was because they were not close.  He confirmed, however, that they lived together in Australia for a while.  They clashed and when AMES gave the applicant rent money he moved out.  His brother said he was going back to Iran.  He did not know if his brother was still Baha’i and claimed that they did not talk about it.  He could not remember why he said in his arrival interview that his brother was in Iran.  The Tribunal put to the applicant that he appeared to have copied his brother’s core claim.  The applicant said he did not know about his brother’s experiences with Baha’i because they did not communicate and it was dangerous to talk about it over the phone. 

1. The Tribunal put to the applicant that in fact he had not been accepted as a Baha’i.  The applicant said he talked a few times with them but they did not contact him again.  He said he now has no religion.  He still believes in God.  The Tribunal put to the applicant that non belief in religion in itself does not create a real chance of serious harm in Iran, as long as it does not manifest an opposition to the Iranian regime.  The applicant maintained that it was when he was talking about religion that the pressure started, such as coming and saying that he had to stop his business.  Asked whether anything else happened he said he was often stopped by the authorities.  Even after he came to Australia they went to this father’s house and asked about him and his business. 

2. The applicant claimed he had no contact with his family.  Asked why this was, he said it was because he was not sending them money, his brother was.  Also he does not want other people in Iran to be aware of his situation and does not want to cause his family trouble.  His extended family is very religious and he does not want them to know of his Baha’i connection. 

3. The applicant claimed he will be gaoled and executed if he returns to Iran because having been a Baha’i and having been in Australia for ten years.  The Tribunal put to the applicant that the country information indicated that there was no real chance of being seriously harmed in Iran for being an asylum seeker in Australia.  The applicant maintained that he could not explain this long a time away.  His brother is a refugee here and they would assume the applicant has also made a religious claim for protection. 

4. DFAT’s Country Information Report (July 2023) contains the following relevant information:

   Atheists and Secular or Non-Practising Muslims

   In-country sources told DFAT many younger and wealthier Iranians, particularly in the major cities, are secular; a majority of the population does not attend mosque. Alcohol consumption is common among the youth. Official sources told DFAT that, despite government laws, religion was a private matter —beyond the expectation that people do not eat in public during the Muslim holy month of Ramadan or hold parties during the mourning months of Muharram and Safar - how one wished to observe Islam was an individual choice and was not a matter for the state. DFAT understands many Iranians do not observe Ramadan strictly, including by eating, drinking liquids and smoking at home. Most restaurants are closed during the day in Ramadan, although many (especially in Tehran) reportedly serve food discreetly. Those caught eating in public during Ramadan run the risk of arrest and prosecution.

   A 2020 study from Utrecht and Tilburg Universities found that atheism was quite common; about 20 per cent of people do not believe in God. The study itself points to Iranians being uncomfortable speaking about religion; discussions about it are not tolerated in Iranian society. Figures about the number of atheists in Iran are, therefore, difficult to verify.

   Those who publicly renounce Islam face apostasy charges (see Atheists). According to local sources, atheists are discreet about their non-belief beyond their close family and friends. Unless they widely publicise their non-belief, atheists are unlikely to come to the attention of the authorities. Atheists from conservative families might face familial pressure and potential ostracism if their atheism were revealed, however would generally not be subjected to physical harm. Sources told DFAT that atheists from more liberal families and parts of the country, like north Tehran, would face no such pressure.

   DFAT assesses that non-practising Iranian Muslims face a low risk of official and societal discrimination, particularly in the major cities. DFAT assesses that atheists who are open about their non-belief face a moderate level of official and societal discrimination.

   Treatment of returnees

   …

   In general, authorities pay little attention to failed asylum seekers on their return to Iran. DFAT understands their actions (including social media posts about sur place activities) are not routinely investigated by authorities. Iranians with a public profile in Australia (or elsewhere) may have activities visible on social media tracked by the Iranian government. … Iranians have left the country in large numbers since the 1979 revolution, and authorities accept 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, however may take longer if 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.

   DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination. Local sources told DFAT the greater challenges for returnees are finding work and economic considerations, which will differ from person to person depending on the location of return, family support and skills and experience.

   Baha’is

   There are approximately 300,000 Baha’is in Iran. The Baha’i faith grew out of the Babi faith founded in 1844 in Shiraz, one of Iran’s largest cities. Baha’i beliefs originated in the Twelver Shi’a Islamic faith (the majority faith in Iran) who believe in the forthcoming return of the 12th imam (the 12th successor to the Prophet Mohammad). The new religion spread rapidly and was immediately controversial with its founder, sometimes known as the ‘Bab’, executed in 1850.

   The Baha’i faith is illegal in Iran and its adherents are considered infidels. The government actively seeks out Baha’is including through activities such as coordinated raids. There are hundreds of Baha’is imprisoned for practising their faith. Baha’i schools are illegal. Charges laid against them are vague, however might include ‘gathering and colluding in order to disrupt the security of the country’ or ‘propaganda against the state’. Three Baha'i community leaders were arrested and charged with national security offences in the first half of 2023. Baha’i land may be seized based on being ‘illegitimate’. Baha’is are not entitled to government employment (the government is the largest employer by far in Iran) or social security. Employers may refuse to hire Baha’is and universities refuse to admit them for study (which may be as a result of either government pressure or societal discrimination, or both).

   DFAT assesses that Baha’is face a high risk of official and societal discrimination based on their non-recognised status, the hostile rhetoric used against them in official statements and the limits imposed on their employment, education and family law status. Baha’is who are open about their faith and who advocate for the community’s rights face a particularly high risk of arrest and imprisonment.

   FINDINGS AND REASONS

5. Based on the information in his application the Tribunal finds that the applicant’s country of nationality is Iran.

6. The applicant has claimed to fear harm on the basis of his religion, political opinion, and membership of certain particular social groups. 

7. The Baha’i religion was founded by Baha’ullah in Iran.  When young he followed a new religious movement led by a figure called the Bab.  The Bab claimed that his teachings were a revelation from God and predicted that a new prophetic figure, or manifestation of God, would soon appear.  In 1850, the Bab was charged by Shi'i religious officials with heresy and was put to death by firing squad.  Baha'u'llah claimed to be the manifestation of God that the Bab had foretold.  Muslim clerics therefore perceived Baha’i to be a heresy as for most Muslims, the prophet Muhammad was the last and final prophet. Who are the Baha'is and why are they so persecuted? (theconversation.com).

8. Department of Home Affairs Country of Origin Information Service Section report Iran: CI180508105903921 – Converts to the Baha’i faith (25 May 2018) states that Iranian asylum seekers in Australia wishing to be accepted members of the faith are subject to rigorous assessment of their sincerity. 

9. The 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.  The applicant gave inconsistent accounts of who introduced him to the faith, whether it was one person or several, whether they were colleagues or clients or friends.  He was unfamiliar with the main reason the Bahai’s are considered heretics.  The Tribunal was unable to source information about Iranians converting to Baha’i in Iran.  Understandably the Baha’is do not publish such information as it would invite further repression.  Considering how persecuted Baha’is are in Iran it was not readily credible that the applicant would have been taken to meetings on the basis of casual conversations with a follower. 

10. The applicant put forward the information that his brother was a Baha’i in Australia.  Considering that conversion to Baha’i is dangerous and therefore must be rare, it was not plausible that two brothers converted to Baha’i in Iran while not knowing of the other’s conversion.  The applicant left Iran after his brother was accepted as a refugee, having made claims to be a Baha’i, which was strongly suggestive that the applicant copied his brother’s enterprise and his claims.  Further, it can be inferred from the applicant’s own evidence that he was unable to persuade the Baha’i community in Australia that he was a genuine follower. 

11. It follows that the Tribunal does not accept that the applicant went to any Baha’i gatherings in Iran, or that he was harassed due to his religion, or that rocks were thrown. 

12. The Tribunal does not accept that the applicant’s business registration was rejected.  He provided no evidence of such an application or its rejection.  As the Tribunal has not accepted that the applicant is a Baha’i it does not accept that he refused to declare his religion in his business registration application.  For the same reason the Tribunal does not accept that the authorities have questioned or threatened the applicant or his father, or that he felt compelled to close his business. 

13. Inconsistent information was put forward as to whether the applicant’s extended family already know of his claim to have been a Baha’i.  His adviser was instructed that they knew, whereas he said in the hearing that he did not want them to know.  The Tribunal does not accept that they know about it, or that they are motived or able to have him arrested or executed. 

14. The Tribunal does not accept that the applicant has been an outspoken critic of the Iranian regime or that he has defended women’s rights.  These were late embellishments on his claims.  He may have had private conversations criticising aspects of regime policy but he has never brought himself to the attention of the authorities because of his political or religious views and the Tribunal does not accept that he will do so in the future. 

15. The applicant claimed that he was apprehended smoking during Ramadan on a couple of occasions.  He did not claim to have been seriously harmed during these contacts and the Tribunal does not accept that he will be seriously harmed if this occurs in the future.  It does not accept that he was often stopped by the authorities.  It accepts that he was challenged on his personal style in a work setting and that this may happen in the future.  But it also does not amount to serious harm, consistent with country information that individual styles of appearance are common in Iran. 

16. The Tribunal accepts that the applicant is a non-practising Muslim with an agnostic outlook on religion.  The country information indicates that many Iranians are secular and non-practicing Muslims, without a real chance of serious harm or being treated as apostates.  The applicant has not been seriously harmed in the past for infringing or not following Islamic practice and the Tribunal is not satisfied that he will be so harmed the future. 

17. The country information indicates that asylum seekers are not, as such, of interest to the Iranian authorities or imputed with a political opinion, because it is understood that many Iranians leave to seek economic opportunities abroad.  There is nothing indicating that the length of time abroad makes any difference to this assessment. 

18. In summary, the Tribunal is not satisfied that the applicant faces a real chance of serious harm for any of the reasons specified in s 5J(1).  He therefore does not have a well-founded fear of persecution as required by s.5J(1).  The Tribunal finds that the applicant is not a refugee as defined in s.5H(1). 

19. Having concluded that the refugee criterion is not met, the Tribunal considered the application of the complementary protection provisions.  As the Tribunal has already found that there is no factual basis for the applicant facing a real chance of serious harm in relation to the claims discussed above, similarly it finds that he does not face a real risk of significant harm, as defined, in relation to those claims. 

    CONCLUSION

20. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).

21. 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.   He and his brother are not members of the same family unit as relevantly defined in the Act. 

22. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    DECISION

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

    Genevieve Hamilton
    Member