2011381 (Refugee)

2011381 (Refugee) [2020] AATA 4188 (16 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  2011381
COUNTRY OF REFERENCE:                   Iran
MEMBER:Sean Baker
DATE:16 September 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 September 2020 at 9:14pm

CATCHWORDS
REFUGEE – Protection visa – Iran – religion – Christian convert – conversion to Christianity was not genuine – ‘westernised’ lifestyle – particular social group – failed asylum seeker returning from a western country – applicant faced no interest from the authorities – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

DBB16 v MIBP [2018] FCAFC 178
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 Home Affairs on 6 July 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Iran, applied for the visa on 13 May 2020. The delegate refused to grant the visa on the basis that the applicant did not accept key claims of the applicant and did not accept he would suffer serious or significant harm on return to Iran. The applicant provided a copy of the delegate’s decision to the tribunal.

3. The applicant is in detention. For this reason, the Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter 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.

CRITERIA FOR A PROTECTION VISA

4. 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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

7. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

8. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

9. 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in this case is whether the applicant will face serious harm amounting to persecution on return to Iran or whether he will face a real risk of significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The decision record indicates that the applicant departed Iran lawfully in 2013, using his own passport. He threw this overboard when the people smuggler told him to do so. He provided certified copies and translations of his military ID card, birth certificate, and national ID card.
The applicant attended an entry interview in June 2013. He was granted a series of bridging visas until his bridging visa was cancelled in July 2017. He applied for an XE-790 Safe haven enterprise visa (SHEV), which was refused and affirmed on review by the IAA, but this was found to be invalid by the AAT (differently constituted) following the decision in DBB16 v MIBP [2018] FCAFC 178. The applicant then made this application.
The decision record summarises the claims the applicant made in his first (invalid) SHEV application:
The following is a summary of the claims made in the applicant’s statement of claims for a Safe Haven Enterprise visa, lodged on 27 September 2017:
The applicant was born and grew up in Tehran.
All his life, he was forced to follow Shia Islam, pray, fast and attend a mosque but never understood nor appreciated Islamic teachings. He felt that demands to practise Islam intervened with his personal freedom.
He worked for [a] Company for 5 years and was forced to dress in a certain manner, grow a beard and pray in Arabic even though he did not speak this language. The Basij enforced the company policy and mosque attendance. He was harassed by the Basij for his audacious hairstyle and his tattoos.
Before the 2009 elections, the applicant participated in a street demonstration and shouted slogans in support of Mousavi and the Green Movement. He never covered his face and therefore believes that Iranian authorities may have him on record.
In 2010 or 2011, he was sitting in the park with his girlfriend and drinking alcohol. Police caught them. His girlfriend was released but he was held for another week. His parents bailed him out. He was taken to court and sentenced to 80 lashes.
About one year before his departure from Iran, the police once more caught him drinking alcohol with a friend in a park. Both were detained for one month at a [jail]. He was again sentenced to 80 lashes but paid a fine [to] have the sentence suspended. Soon after this incident, he decided to leave the country.
In Australia, the applicant posted comments on his [social media] account which were critical of the Supreme Leader, Ali Khamenei, Speaker of Iranian Parliament, Ali Larijani, and violation of human rights in Iran. He criticised the corruption within the Iranian government. He believes that Sepah is aware of the comments he made on [social media].
Since 2014, he was also going to a church in [his current city of residence]. He had been to a number of different [churches]. In 2014, he travelled with a few others to [City 1] to be baptised. He took photos of others being baptised but has no photos of himself. He did not have time to collect his baptism certificate.
He practises his faith by praying and reading the Bible in Farsi and intends to do so in Iran if he is returned there.
He fears that, if he is returned to Iran, he will be arrested, detained, beaten and killed for being an apostate and a Christian convert. He further fears that he will be harmed for protesting against the government, supporting the Green Movement and expressing his antigovernment opinion on [social media].

Decision on first SHEV application

On 26 February 2018, the applicant’s first SHEV application was refused. The decision maker accepted that the applicant was arrested on two occasions for consuming alcohol between 2009 and 2012 and sentenced to 80 lashes; that he was harassed by the Basij in Iran due to his western dress style, hair style and tattoos, and that he participated in a demonstration against the Iranian government in 2009.
The delegate went on to find that the applicant did not hold well-articulated adverse views of the Iranian regime and that his participation in the 2009 political demonstration has not attracted adverse interest from authorities. The applicant also admitted that comments against the Iranian government and their corruption he said he made on his [social media] page in 2013/2014 were actually posted on his friend’s [social media] page; in any event, he could not provide any evidence of these comments. It was found that, beyond mere assertions, he had not demonstrated any sort of commitment to vocalising his opinions and beliefs.
The applicant provided vague testimony about reasons behind his conversion to Christianity and initially offered no evidence of his claimed church attendance and baptism. He submitted his baptism certificate and a letter of support from [Pastor A], the Pastor of [Church 1], confirming his church attendance in 2013 and 2014 only after the PV interview. The case officer accepted that the applicant had some limited knowledge of Christianity but found a number of inconsistencies in the applicant’s testimony:
·     His baptism according to the baptism certificate occurred [in] December 2014 whereas Pastor [A] stated in his letter that he was unable to comment on anything related to the applicant after [January] 2014.
·     The applicant said that he travelled one hour to be baptised in a different church in [City 1] whereas his baptism certificate shows he was baptised on the premises of the [Church 1] in [Suburb 1].
·     The applicant was officially recorded to have attended the [Church 1] only on eight occasions but probably attended a few times unregistered.
·     There is a considerable time gap between the applicant’s last contact with Pastor [A] ([date] January 2014) and the date of baptism ([December] 2014). During this period the applicant did not respond to pastor’s invitations to attend the church service.
The case officer found that the applicant did not have a genuine belief in the Christian religion. The case officer did not accept that the applicant’s conversion to Christianity was genuine. The case officer further found that the applicant will not face a real chance of persecution in Iran based on his ‘westernised’ lifestyle (clothing, hairstyle, consumption of alcohol and tattoos) or for the reason of being a failed asylum seeker returning from a western country.

Current SHEV application claims

With the current SHEV application, the applicant submitted the same statement of claims he attached to his first SHEV application. At the interview on 3 June 2020, the applicant provided the following information:
·While residing in Iran he travelled abroad to [Country 1] on three occasions in 2009, 2010 and 2011. He obtained his tattoos in [Country 1].
·His father was working as [an Occupation 1] in Tehran but has since retired.
·He has two cousins who are residing in [Australia].
·He worked [in] Tehran and, later on, moved to [another] section.
·His punishment for abusing alcohol has not been recorded as a criminal offence; he resolved the issue by paying a fine and did not have to serve a jail term.
·Both he and his parents are non-observant, non-practicing Muslims. He had little interest in Islamic teachings and doesn’t really understand their meaning.
·Two years ago, the Basij visited his parental home and questioned his parents about his whereabouts. His parents told them that he is away in Australia.
·The applicant was curious about Christianity because he heard it was a religion of kindness, not violence. Upon arrival in Australia, he researched it in more detail and decided to visit a Christian church. He did not research other religions. After the first visit at the [Church 1], he got more interested, talked with its pastor and commenced reading the Bible in Farsi. He chose to attend the [Church 1] because he heard that it was refugee friendly. After being introduced to [Church 1]’s Pastor [A], the latter started sending the applicant invitations to attend church service by phone.
·The applicant did not attend church regularly. One of the reasons behind that was his lack of English skills. He probably attended the [Church 1] about 20 times in total. He stopped attending sometime after his baptism ceremony and cannot remember when he attended last time. He visited other churches as well but cannot remember their names or exact location either.
·After he was placed in immigration detention, he sometimes attended the church service provided at the [Detention] Centre. He said he attended Sunday service approximately every two or three weeks. He has not attended Bible classes that are conducted on Thursdays. He could not tell which particular church provides the religious service at the [IDC].
·The applicant admits that his knowledge of the Bible and Christianity remains superficial.
·His parents are aware of his conversion to Christianity and raised no objections. He stays in regular contact with his parents.
·If he is returned to Iran, he would pray in private at home if he cannot join a regular church.
·The applicant stated that he joined a protest rally in 2009 because he disliked the Iranian government and Islamic theocratic regime. He shouted slogans in the street and believes that he came to notice of authorities. Nevertheless, he was never arrested or questioned by security agencies over his participation in the rally. He has since not engaged in any political activities.
·He repeated his previous claim about being harassed by the Basij over his clothing, tattoos and hairstyle but said he would not face persecution or significant harm for these reasons if he returned to Iran. Tattoos in particular, he said, are common among young people in Iran and are not likely to cause any problems.
·Neither would he face maltreatment for consuming alcohol on return to Iran as he has overcome his desire to drink alcohol. He has not touched it for more than a year. He did not have that much of dependency on alcohol to begin with.
·His personal situation has changed; he now has a girlfriend, Ms [B]. She was visiting him in [detention centre] for three years, but she eventually got tired of travelling.
Since the applicant claimed that on some occasions he had attended religious service at the [IDC], the case officer obtained information about the applicant’s attendance at religious activities at the centre from SERCO, the detention service provider. On 3 June 2020, SERCO responded that, during his detention and until 23 March 2020 when the religious service provided externally was halted due to COVID19 restrictions, there was no evidence of the applicant’s religious attendance under the unstructured P&A Checklist. While the applicant attended a range of other activities offered by external providers such as English classes, literacy and numeracy classes, etc. there was no record of his attendance of religious activities of any kind.
When invited to comment on this apparent inconsistency, the applicant stated as follows:
·He has not been attending formal religious service at the [IDC]. However, he has continued to practise his Christian faith while in detention in ways that would not have been able to be recorded by SERCO. He has been attending nightly Bible studies classes with a group of other detainees, run by [Mr C]. Mr [C] has received permission from SERCO to begin running these classes approximately 8 months ago. The applicant attends these classes regularly. These classes run every weeknight, Monday to Friday from 7pm till 8pm. There are usually about 10 people in these sessions every night. A photograph enclosed with the submissions depicts the applicant and other detainees during a recent Bible studies class as well as a copy of the Biblical extracts discussed in a recent class. Detainees cannot collect ‘participation points’ for attending these classes as they are not formal activities attendance to which is recorded by SERCO.
·In addition to attendance of these classes, the applicant has been attending Bible lessons conducted by phone with [detainees] by Pastor [A]. In his enclosed letter, Pastor [A] states that he runs Bible studies sessions on Tuesdays, Thursdays and Sundays by phone, some of which the applicant has attended. In a supplementary statement, he notes that he recently found out about these classes from fellow detainees and has since started attending these classes.
·The evening classes regularly attended by the applicant are not formally referred to as ‘Bible studies classes’ which is why, when asked at the interview if he had attended Bible study, the applicant replied, “no”. The discrepancy is owed to confusion over how the applicant labels the ways in which he is practicing Christianity in detention and not his deceit, nor lack of involvement in the religion.
·The applicant noted that he will continue to practice Christianity if returned to Iran, not only by praying and studying the Bible privately but also by attending church if he is able to do this.
·The applicant’s conversion to Christianity is central to his identity as a human being and forms part of his conscience. The applicant at first rejected Islam while still in Iran and then started to research and learn more about Christianity when he was in Australia. The applicant first became interested in Christianity while in Iran, but he did not have enough knowledge at the time to consider himself converted to Christianity. The applicant’s conversion to Christianity occurred naturally and genuinely, as a result of his spiritual growth and fuelled by his rejection of Islam, and his political beliefs.
·While attending the [Church 1], the applicant visited churches of different denominations trying to learn more about Christianity and discover what agrees with his faith and beliefs. In Iran, the applicant had not had the opportunity to explore Christianity, which is a religion with many denominations. The applicant was not responding to someone’s influence, nor blindly following his friends, but engaged with the Bible and tried to develop his beliefs on his own.
·Commission of criminal offences and being a Christian are not mutually exclusive. The applicant believes in Christianity, but made mistakes in the past, and struggled with substance addiction. The acts he committed are not in direct opposition to his faith. Many people who have been convicted of offences, including serious offenders, are still religious. For many of those people, religion assists in their rehabilitation after committing an offence.
·The applicant is active on social media and his social media content is openly critical of the Iranian government and the Iranian Supreme Leader, Ayatollah Khamenei. He also insults Islam, for example in his post against Mullahs. Iran is highly sensitive to political opposition to the ruling government, particularly through social media. The applicant has shared posts from a number of Iran-based [social media] pages with a significant number of followers. For example, he has shared posts made by [deleted] show with a huge following on social media. It means that the applicant is linked to persons and groups sharing critical content which heightens his risk profile. Where the content originated from Iran, there is a significant chance that any social media activity relating to this content has been monitored by the Iranian authorities. Therefore, he fears to be harmed for spreading anti-government information on social media if he returns to Iran.
·In his additional statement, the applicant also reverted to his previously held claim that he would face persecution as a member of a particular social group (Westernised individuals who are failed asylum seekers).

The submissions also included:
·the Applicant’s additional statement dated 22 June 2020 (Annexure A), in which he says that at the detention centre they have Christian religious classes every night, they read the bible, pray and sing songs together. In his interview he did not say he attended bible classes as he was confused by the wording of the question. He has also recently found out about bible studies classes conducted by Pastor [A] over the phone and he has started attending these sessions - he also prays himself every day. He reads and tries to understand the bible. He reads a lot of the stories in the bible.
·a signed copy of the Applicant’s baptism certificate (Annexure B); dated [date] December 2014
·An additional letter from Pastor [A] dated 19 June 2020 (Annexure C); noting the applicant is attending phone bible sessions and used to attend the church
·Photograph of the Applicant and others at the Bible studies class that the Applicant has been attending in [IDC] (Annexure D); and
·Copies of biblical extracts that the class have recently been discussing (Annexure E).
On 23 June 2020 a further submission was provided which included
·Witness statement from Mr [C] stating the applicant has attended his nightly bible sessions since shortly after they began approximately eight months ago; and
·Witness statement from Mr [D] stating he has known the applicant for two years and the applicant attends the study sessions, that he (Mr [D]) does not attend the course regularly as he attends Thursday bible study classes as well as church on Sundays.
·a signed version of the supplementary statement of the Applicant provided to the Department yesterday, 22 June 2020.
On 24 June 2020, a further submission was provided which included:
·Translated [social media] posts of [the applicant]; and
·Separate certification from translator.
It was noted in the submission that due to concerns regarding the sensitive content of the [social media] posts, the translator advised RACS by phone today that he wished to provide the translations separate to his certification, so as not to associate himself with the translations. The translator advised that the content of the [social media] posts is highly offensive towards the Iranian Supreme Leader, Ayatollah Khamenei, and could result in prosecution (both of the Applicant and the translator) at the hands of the Iranian authorities if they come to know about these posts.
The submission argued that there is a difference between posting original content and sharing posts. ‘Sharing’ a post on [social media] means that an individual shares to their [social media] friends’ information or posts that were created by someone else. This is often what the Applicant is doing. The Applicant has shared posts from a number of Iranian based [social media] pages with a significant number of followers. For example, he has shared posts made by [deleted] with a huge following on social media. This means that the Applicant is linked to persons and groups such as [deleted] posting and sharing anti-Iran content. This heightens his risk profile. If the content originated in Iran, which it often does when made by Iranian media groups or individuals, there is a significant chance that any social media activity relating to this content has been seen or monitored by the Iranian authorities.
The submission went on to argue that there is no certainty that the posts have not been seen, or that the social media is not being monitored, by the authorities in Iran. It is not public knowledge how Iran monitors social media accounts. However, DFAT make it clear that the consequences for those found to be in breach of national security laws by being politically active in this way are severe and include terms of imprisonment and/or the death penalty. The extremely poor prison conditions in Iran and the consequences of being imprisoned for the Applicant have been discussed in previous submissions.
There are attached eight [social media] posts, from dates throughout this year, these appear to be ‘shared’, not original posts of the applicant.
The delegate disbelieved key claims of the applicant.
The delegate noted that at the entry interview and in both SHEV applications, the applicant maintained the claim that in Iran he had no interest in Islam or religion in general. He was living a secular westernised lifestyle, travelled to [Country 1] for holidays where he acquired tattoos and grew up in a liberal, non-religious family environment. By all accounts, it indicates that the applicant was a secular person who did not seek spiritual guidance in religious teachings, be it Islam or any other confession. If anything, he was annoyed by harassment and maltreatment by those who enforced observation of mandatory religious rituals such as regular prayers, abstinence form alcohol, or mosque attendance.
The applicant admitted he had not attended religious sessions since being in detention, except sessions by Mr [C] who conducted informal religious sessions but did not mention this at his interview with the delegate.
The delegate found that they did not accept that the applicant genuinely holds Christian beliefs, that his conversion to Christianity is genuine and that he has any real interest in Christianity, nor that the applicant would continue to worship if he returns to Iran, nor that he told his family about becoming a Christian and so would not be imputed with a Christian religious identity on return to Iran.
The delegate accepted that the applicant holds adverse opinion of the Iranian government and theocratic regime but, overall, found that he had only a mild interest in politics without engaging in any kind of practical activities that could bring him to the adverse attention of Iranian authorities.
The delegate found that the applicant was highly unlikely to suffer any persecutory harm on return to Iran as a failed asylum seeker for his activities in Australia tailored to obtain asylum.
The delegate then summarised their findings, noting they accepted:
·     - that, in Iran, he was a non-practicing Muslim with little interest in religion;
·     - that he was harassed by the authorities in Iran due to his anti-Islamic behaviour (consumption of alcohol, tattoos, western dress style and hairstyle);
·     - that he participated in a demonstration against the Iranian government in 2009 without playing any particular role;
·     - that he holds an adverse personal political opinion of Iran’s government and theocratic regime.
But did not accept:
·     - that he had and pursued an interest in Christianity in Iran;
·     - that he has genuinely converted to Christianity in Australia;
·     - that he is a committed Christian who would keep practising his religion if he returns to Iran;
·     - that he re-posted political materials in social media for reasons other than strengthening his PV claims;
·     - that he does have a profile that would bring him to the adverse attention of the Iranian authorities if he returns to Iran as a failed asylum seeker.
To the Tribunal the applicant provided a copy of the delegate’s decision. The applicant has not provided any further information.

The hearing

At the hearing the applicant gave evidence consistent with his above claims. He said that his father had been [an Occupation 1] but was now retired and his mother kept house. He said his brother and sister were married and lived in Tehran. He said he had had a relationship in Australia and spoke to her sometimes. He had two cousins in [Australia] but was not in contact with them.
In Iran he had worked for a [company] in Iran for 7 years and had worked in [Australia]. He travelled to [Country 1] in 2009, 2010 and 2011 to visit his [girlfriend] and for business.
I asked the applicant to detail the experiences that had led to him fearing return to Iran. He said that he had got really annoyed in Iran, he was working for a company and got annoyed and there were some Basij and also Ettelaat (Ministry of Intelligence) officers and there was some report that he was talking about Christianity and wearing short sleeves and tattoo and shaving his face. He said Iran is very strict about these kinds of Islamic rules. I asked if he had been employed until he came to Australia and he indicated he was. I asked if he had faced any problems at work and he said he did not have any problems with work. He said there were problems because of the sanctions, the company did not have any raw material supply and they could not get their salaries on time, it was on and off. He said another problem with his job was being annoyed by the Basij and Ettelaat.
He said another problem was that he had a girlfriend in Iran and when they were out in the street this guy really annoyed them and after this they ended their relationship, which was really annoying, and the applicant was very upset and sick of the Islamic republic.
I asked him about his detentions for drinking alcohol. He agreed that this had happened but could not recall the dates until prompted. I asked if he had had any other difficulties with authorities in Iran and he said no.
He said that in Australia he had a drug problem and didn’t know any English and did not know much about Australia and he had made some mistakes in the past.
I then asked the applicant about his experiences of religion growing up. He said he was not practicing religion in Iran. He didn’t go to mosque and did not get involved in any Islamic activity. I asked if his family were religious and he was they were religious but not much, moderate. I asked if he had faced any difficulties for not going to mosque on Fridays and he said no. I asked if he had gone at all and he said he had not. I asked what his views or thinking had been about religion at that time. He said he respected religion and believed that everyone has their own religion and God and you have to respect them. He said compared to Iran he prays, and practices Christianity compared to Islam and he is more religious now.
I noted that I had asked him about his thinking on religion when he had been in Iran, when growing up. He responded that in Iran having a religion and being religious is mandatory, and when a child is born the parents and the authorities push the child to go to mosque and pray and practice all of that religion. He said that that is why when people grow up they hate religion; they find it something they have been forced to do.
I noted he had claimed he was not practicing a religion in Iran and asked if he would have described himself as spiritual back then. He said that he believed in god in his heart. He said he had not said he never practiced Islam; he sometimes prayed, sometimes he went to mosque, but not always, just occasionally. Islam was not his cup of tea he said, he didn’t pay attention and he didn’t care. He said he didn’t judge about religion, he wasn’t saying Islam is not a good religion, but he believed in Christianity more than Islam. He thought Christianity was more true and pure but Islam has been manipulated during the years and that is why be believes more in Christianity than Islam.
I asked the applicant when his interest in Christianity began. He said it was since his very first time he went to church, in 2013 in [his current city of residence] when he got his visa. He said Pastor [A] used to take all the refugees in a van to the Church. I asked if he had had any contact with Christianity before then. He said he had, a little bit, when he was in his workplace or at home he used to read the bible, not a lot, but a little bit. I asked where he had got this bible and he said he had got a Farsi bible from a bookshop in Iran. I noted that my understanding was that buying a bible would be difficult to do in Iran. He responded that there were a lot of bookshops in Iran. I asked what had made him buy a bible in Iran and he said he liked religious books, he used to have religious books.
I asked the applicant what drew him to Christianity. He said Pastor [A] helped him a lot and personally he liked it, he believed in it, the stories of Christianity and Christianity itself, he liked. I asked him what he liked about it and he said just Christianity itself. I asked if he could be more specific and he said he liked Christianity, he liked anything about Christianity like stories, like Jesus, and he liked how Jesus sacrificed himself to forgive our sins, he liked heaven in Christianity and everything about that.
I asked the applicant about his baptism in December 2014. I noted that my understanding was that he had not attended Church very much before this and asked why he had decided to get Baptised. He said he used to go to Church but not very regularly, not every Sunday, but he used to attend on Sundays and even on Thursdays for Bible Study. He said the Church service were conducted by Pastor [A] in English but there was a guy there teaching them the Bible in Farsi.
I asked the applicant to describe his baptism. He said they were called forward one by one and put in a pool of water. The Church was very crowded, and they took photos he said. I asked what he had done during the Baptism and he said he was praying and had a good feeling. He said another guy Baptised him, not Pastor [A], he didn’t know the guy he was a Holy Father. He said the person said some words, but it was a long time ago. He said the signficnace of Baptism was for admitting sins and mistakes and asking for forgiveness.
I noted that it appeared he did not attend Church after the Baptism and asked why this was. He said this was not true and he used to go to Church, but it was not regular due to financial difficulties he had to make money and he lost his mobile phone at this time and so Pastor [A] could not contact him.
I noted that he was then detained in 2017 and asked if he had been to Church in detention. He said there was some difference and he was not always, just occasionally he used to go to Church. He noted that in the last interview they had said he was not on the list, but the list could be damaged or vanished. He said he did go in 2017 and 2018, and the reason he did not go was the environment in the detention centre is very different and people have mental health problems in the centre. He said after a year they are attending Bible sessions and they are in contact via video conference and telephone sessions with Pastor [A] and he was attending all of those sessions.
I noted that the information in the delegate’s decision record was that for the period of his detention up until 23 March 2020 when religious services were paused because of the pandemic, the Detention Services Provider did not have a record of the applicant ever attending any religious activities in detention.
He responded, ‘yes and no’. He said some of the activities had been cancelled and even just then some Muslims were praying outside in the yard. I noted that I might take the view from this information that he had not been going to Church in detention at all, nor any religious classes other than those run by a fellow detainee. He said it was not true, he was attending religious sessions and he had attended a few organised sessions and he did not understand why his name was not there. I noted I may place greater weight on the information from the detention service provides that he had not attended church at all in his years in detention. The applicant said he had attended a few times.
I then asked about the statement from Mr [D]. I noted that Mr [D] said he had known the applicant for two years and the applicant agreed. I noted that Mr [D] said that he went to Church on Sundays and the applicant agreed. I asked why he did not accompany Mr [D] to church on Sundays. The applicant responded that for the first couple of years he did not know Mr [D] very well and now he was stuck in this Coronavirus situation. He said he had admitted he did not go to church and now he was not able to go too much. He said additionally his mental health was not that good, sometimes he did not leave his room and didn’t contact anyone.
I noted that even outside detention his Church attendance appeared to have been very sporadic and this might lead me to have some doubts that he would, or would want to, attend Church in Iran. He said the reason he was not going to Church is because of his mental health, he did not have enough drive or motivation to go to church, he was sleeping and all of the people have this problem, and he was pretty sure if he was released he would go to church every Sunday. I noted again that from the information before me it didn’t appear that he had attended church regularly prior to detention either. He concurred.
I noted that in his claims he had said he read a lot of stories in the bible. I asked if he could tell me one that he particularly liked or that appeals to him the most. He responded that he liked the tests God had made of Jesus where Jesus had met Satan and Jesus fasted for 40 days and Jesus was asked to turn it to bread and he said human beings were not related to bread, human beings can rely on God. Then Satan took Jesus to Jerusalem and said, ‘if you have faith in me I will give you everything’ and Jesus said ‘just pray to your God’ then Jesus said don’t test your God. I asked the applicant why he liked this story and he said it gave him a good feeling and was very meaningful as sometimes he felt he was tested by God, sometimes he thought about it when he was doing something wrong or something that seems it was a problem he thinks maybe God is testing him and he has to believe in God and go back to God.
I then asked him to tell me about the study classes he attended with Mr [C]. He agreed it was every weeknight and he said he had been going for more than 8 months because before Mr [C] someone else was conducting the sessions but then he got a visa and he left the detention centre. I asked what they discussed at these sessions and the applicant said they sang and prayed and practice. He said they discuss a book, his own book, and they discuss the Bible and politics and global issues.
I asked him what ideas they discussed from the Bible. He said they discussed all of the concepts that [Pastor A] had raised in his book, but all of them were in English and his English was not so good, so he didn’t understand all of them. He said there were many ideas that had been discussed but he didn’t understand.
I noted he had said he had a bible in Farsi himself and he said this was true. I asked, if he had this Bible and read it as he claimed, did he then discuss any of the ideas from the Bible in this group. He said he preferred mostly to listen rather than to speak.
I asked him to tell me what the ideas were that they did discuss. He said there were some words like mercy and what that meant and the concept of that and other words like worship and what that is about. I asked if he could tell me about the concept of mercy or worship. He said it meant submitting to God and forgiving other people, if we forgive other people God will forgive us as well.
I noted to the applicant that as someone who claimed to have been interested in Christianity since 2013, I was not sure I was getting much of a sense of what Christianity meant to him or the impact it has on his life. He said yes, this might be because of the language barrier, his English is not good at all, and he cannot understand most of the concepts or meanings, this might be difficult for me to understand, but it is a big barrier for him.
I noted that he had a Farsi Bible which he claimed to read and had been going to Bible study classes for more than a year, and I was not getting a great sense of how this effected his life. He said maybe it had not had any impact so far, but it will impact his life in the future, maybe something will happen in the future.
I discussed with the applicant his claims of his political opinion. I noted that, as had the delegate, I may accept he had attended protests in 2009 in Iran but may not accept the authorities had any interest in him because of this. He said that he had attended, and at that time he was really scared it may make a problem for him or cause trouble, and that was why he raised it. I explained that because he had not been arrested or detained closer to the event and had been able to leave Iran legally, I might assess that he may not face any difficulties because of that. The applicant did not respond.

I then turned to the [social media] posts he had made. I noted that I had looked at them as well as what the translator had written but on the basis of country information that the government did not routinely monitor social media of all Iranians, but only noted dissidents or others of interest, and that the authorities do not routinely check the social media of failed asylum seekers to Iran, I may doubt he would face any difficulties because of the reshared posts he had made. He said that was maybe true for reposting but after that there could be a danger as the Islamic Republic was very strict and brutal and were acting like Daesh (ISIS). He then said that some of his friends had gone back to Iran and have not posted anything on [social media], but some may have been executed and some of them are in detention and they have been interviewd and are not in good conditions. He said he was 100% sure they would detain him.
I asked the applicant about his claims that he would face harm because of his tattoos, hairstyle and as a ‘Westernised’ person. I noted that the country information indicated that many young people, especially in Tehran, had tattoos, a variety of hairstyles and clothing and displayed a range of other ‘westernised’ behaviours. I noted that he may be hassled by the Basij or others, but this may be the extent of it, and it may not reach the level of serious or significant harm. The applicant responded that maybe in the last few years there was some freedom, but they were still against Christianity, it was a big issue for them.
I asked the applicant about his claims to fear harm because he would return to Iran as a failed asylum seeker. I noted I accepted that the authorities would be able to identify or infer that he was returning as a failed asylum seeker, and he may face brief detention and questioning at the airport, but this would be all and may not amount to a real risk or real chance of harm for being a failed asylum seeker.
The applicant responded that the government was very cruel and tolerates brutal actions against people and just a few days ago they killed 3 Afghani asylum seekers in Iran.
I discussed the applicant’s drug and alcohol issues and asked if his claims were that he had had drug and alcohol problems but no longer did. He said this was correct. I noted that I might think he would not face harm on return for reasons of drug or alcohol dependence. He said that the Iranian government were importing drugs because it gets young people out of politics and gets them addicted.
I asked the applicant about his mental health. He said it was not good at the moment. He said he had told the delegate at the last interview that his mental health was good but honestly he was not good, he didn’t know why he had told the delegate this. I asked if he had spoken to a counsellor or psychiatrist at the detention centre and he said he had had some appointment and had attended those.
I then asked the applicant if there was any other reason or basis on which he believed he would be harmed on return to Iran. He said there was not but that he did not want to go back to Iran and could not go back. I explained that I had some doubts as I had expressed that he had any deep attachment to Christianity and about whether he would practice Christianity on return. He said Jesus would be in his heart 100% for the rest of his life, he was pretty sure about that and about the chance of him being harmed if he went back. I asked if there was anything further he wished to say, and he said there was not.

Consideration

I have had regard to the applicant’s claims that his mental health is not good at the moment in assessing his capacity to give evidence at the hearing. As he noted at the hearing, he had said to the delegate that his mental health was good. He claims that his mental health is not good, and he was always sleeping and sometimes he did not leave his room. He claims to have attended several appointments with mental health professionals whilst in detention. I accept that the applicant may feel down and may feel that his mental health is not good in detention. Given the limited information he has provided on this, and having spoken to the applicant in detail, I find that the applicant was able to give his evidence at the hearing effectively and without constraint, appropriately respond to questions, and was not incapacitated in his giving of evidence. I do not accept that his mental health has affected his capacity to give evidence
The applicant claims that his mental health is not good. I have had regard to the information before me, and I have taken account of this when assessing his evidence below. I appreciate that being detained since 2017 would have an effect upon the applicant. However on the basis of the information before me, I do not accept that his mental health not being good explains the concerns below, given the paucity of information he has provided on his mental health and the fact that, as above, I found the applicant answered questions appropriately and was able to give his evidence.
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for her or him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 69-70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

Religion

The key concern in this case is the claim by the applicant that he has converted to Christianity, and due to this conversion and his newfound faith, would wish to practice Christianity if returned to Iran in a way that would lead to him being harmed by the Iranian authorities or others.
The process of his interest in, and conversion to, Christianity causes me some deep concerns. His explanation of the meaning of his claimed faith to him, and his understanding of that faith, in the context of his claimed study of that faith, cause me to have real doubts about his claims. The applicant was aware that credibility was in issue, it is having been raised by the delegate.
The greatest concern is with the applicant’s ability to express a connection to his claimed newfound faith. The closest he came to this was in describing the tests of Jesus and how this related to him feeling tested by God. But even here, the applicant provided little detail or specificity. When asked what drew him to Christianity his answers were equally vague and lacking in detail, despite an opportunity to be more specific. He claimed to have attended Bible classes in detention for more than eight months but was unable to provide more than generalities about what was discussed. I do not accept that this is because his English is not good because as he said, he has a Bible in Farsi and claimed to read it, and he could therefore relate those readings to concepts discussed to some extent.
Of further concern is his description of the beginning of his interest in Christianity and his attendance – his explanation indicates that he was taken to Church by Pastor [A], with others in a van. When he lost his phone, he did not attend Church because Pastor [A] could not contact him – the impression is that the applicant was not motivated by internal reasons for going to Church, but did so because Pastor [A] took him, and when he was not in contact, the applicant did not appear to take steps to attend. The motivations appear external, rather than due to conviction or internal desire to attend. I understand that this is an impression only, and I appreciate that the applicant had difficulty with English, was in a foreign environment, and had to work to make money/had financial difficulties. But again, it does not demonstrate a connection towards his claimed new-found faith.
The applicant claims to have a Farsi Bible, and to read it, and to have attended Church services for some period with a person speaking in Farsi at the service. He was Baptised in December 2014 and claims to have attended Church since sometime in 2013. In this context, he was unable to talk in anything but generalities about what Christianity meant to him or describe his Faith in detail. Given his background and his lack of English skills, I was not expecting him to have a deep and detailed grasp of Christian dogma, but he was unable to demonstrate a level of knowledge commensurate with the period he claims to have been engaged in Christian worship and to have had and read a Farsi Bible.
Before the delegate, the applicant claimed to have attended religious services sometimes, attending Sunday service approximately every two or three weeks. When the fact that the detention service provider had no record of him attending any religious service for the period of his detention was put to him by the delegate, he admitted that he had not been attending formal religious services, but had been attending nightly bible study classes run by Mr [C]. At the hearing, he said he did go to Church in detention occasionally, in 2017 and 2018, and perhaps the list was damaged or lost. He then gave reasons why he did not go, including the mental health of people in detention, and raised the telephone sessions with Pastor [A] as well as the Bible study sessions with Mr [C]. When I explained I may place weight on the information from the Detention Services Provider that they did not have a record of the applicant ever attending any religious activities in detention he gave a response hard to follow in which he argued some services were cancelled, Muslims prayed in the yard, and when pressed he said he had attended a few organised sessions and did not understand why his name was not there.
I also noted to the applicant that the statement from Mr [D] said that he, Mr [D], went to Church whilst in detention, and asked why the applicant did not go to Church with Mr [D]. The applicant’s responses that he had not known Mr [D] very well for the first couple of years and now they were unable to attend Church because of Coronavirus, and his mental health was not good do not explain why he was unable to attend Church with Mr [D] – Mr [D] claimed to have known the applicant for two years, the period in question was prior to the suspension of activities such as Church, and whilst I accept that his detention has had an effect on the applicant’s mental health, he has claimed to have been able to attend the Bible classes for more than eight months. I do not accept that the applicant was unable to attend Church with Mr [D] for these reasons, and this causes me further concerns about his lack of attendance at religious services whilst in detention. The concern is that the applicant appears to have engaged in minimal activities to express or learn about his claimed new-found faith. I find on the evidence before me that the applicant has not attended Church services at all whilst in detention. I do not accept, merely on his speculation, that the attendance record has been damaged or lost, I find that despite his claims he has not been. I consider this significant because, despite him having access to regular Church services whilst in detention, he has chosen not to attend. Even if I accept that his mental health may mean he is sometimes unable to attend, I find his lack of attendance at all at Church services during his years in detention to be significant.
This is further underscored by his concession that his attendance at Church services whilst in the community had been sporadic. I understand that he had difficulties of language, being in a foreign place, had to work to make money/had financial difficulties and later with drug and alcohol problems, but it creates a further concern that the applicant has done very little to demonstrate or manifest his claimed newfound faith.
The applicant has been baptised. He has attended Church, sporadically, whilst in the community, and has attended classes run by a fellow detainee for approximately a year whilst in detention and has recently begun telephone classes with Pastor [A]. What he has not been able to demonstrate is evidence of his faith or what his claimed belief in Christianity means to him. Despite his claim to have been a convert for years he is unable to provide more than basic answers to questions about what it means to him, its significance in his life, or why he chose to convert. This causes me to have very significant doubts with the applicant’s claims that he has converted to Christianity and would practice this faith if he were to return to Iran.
I have had regard to the evidence of the applicant, I have had regard to the statements from Pastor [A]. I have had regard to the witness statements. However, the applicant has not demonstrated his claim to be a genuine convert to Christianity. The applicant has not demonstrated the significance or importance of his claimed newfound faith, he has not established how this has impacted on his life. Whilst I accept that he was Baptised in 2014, that he attended Church sporadically whilst in the community in Australia, and that he has attended Bible classes run by Mr [C] and phone classes run by Pastor [A], I find that these actions have been entered into largely to strengthen his claims for protection, and not because he genuinely believes in Christianity or has genuinely converted to this faith. I do accept that the applicant may have engaged in some of these actions, including the bible classes at detention, for the purposes of companionship, but I find on the evidence before me of his sporadic minimal attendance at Church, and his lack of attendance at any formalised religious services whilst in detention, and his inability to provide more than vague details of the discussion at these bible classes in detention, that any companionship he derived from his attendance had nothing to do with the religious aspects of the discussion.
I have also considered the applicant’s claims that others thought or reported that he spoke about Christianity at his workplace in Iran, and that he had, and read, a Farsi Bible when he was in Iran. I found the applicant’s claims about these things undetailed and implausible. His claim that he purchased a Bible because he collected religious books was not credible, given he had not described a religious or spiritual background or interest in religion or the collection of religious books previously in his evidence. Given my concerns with his claims to have converted to Christianity above, I do not accept that the applicant actually spoke about Christianity at all at his work in Iran. His evidence on the claims that others thought or reported that he spoke about Christianity at his workplace therefore lacks any appreciable basis for people to have thought this, nor has the applicant established that he was imputed to have said these things, his evidence being undetailed. On my above reasoning, I do not accept that he purchased and read a Farsi Bible whilst in Iran.
I find that the applicant was raised in a moderate Islamic household, and that he and his parents had little interest in religion. I find that he did not attend mosque or engage in any other religious activities in Iran. I find, on his evidence, that he did not face any harm, sanctions or difficulties because of his non-observance.
I do not accept, as above, that the applicant spoke about, in any context, Christianity at his workplace. Nor do I accept that he purchased and read a Farsi Bible whilst in Iran.
I accept that the applicant attended Church in Australia in 2013 and was baptised in 2014 and attended church sporadically after this until his detention in 2017. I accept that he has attended Mr [C]’s bible study classes and has recently attended Pastor [A]’s telephone classes. For the reasons above, I do not accept that the applicant is a genuine convert in Christianity or that he has any interest in Christianity other than to strengthen his claims for protection.
I have considered what the applicant will or may do on return to Iran. I find that the applicant is not a genuine convert to Christianity. It follows that, if he is returned to Iran, I do not accept that he would worship or engage in any Christian activities. I do not accept he would attend Church services or want to attend Church services. I do not accept he would worship at home.
I have had regard to country information on the return of people who have been baptised or have attended Church or other Christian activities overseas. The country information demonstrates that the Iranian authorities have little interest in prosecuting failed asylum seekers for activities, including baptisms and other religious activities, conducted outside Iran.[1] I have discussed what will occur on his return in more detail below, but I find that on return he may face questioning, including of his religious activities, but that is all. I find that the applicant will not claim or maintain to the Iranian authorities that he is a genuine Christian convert, because he is not. I find that he will not be harmed for reasons of his claimed Christian conversion, or for reasons of him being imputed of being a Christian convert.
[1] DFAT Country Information Report Iran, 14 April 2020, 5.30; UK Home Office, Country Policy and Information Note Iran: Christians and Christian converts, Version 6.0, February 2020, pp. 30 – 33.
I accept that on return he will once more live as a non-observant Muslim. But on his evidence, he did not face any harm for this reason in the past, and on this evidence and the country information I find the applicant will not face any harm for being a non-observant Muslim on return.

‘Western appearance’

The applicant claims that he has faced problems in Iran because of his ‘Western appearance’ – his tattoos, hairstyle and Western dress, and fears harm on return because of this. I have also considered this as a factor below when I have considered the applicant’s drug and alcohol use. At the hearing the applicant said he had got his tattoos on his trips to [Country 1] and said that at his work and outside he was hassled by the Basij for, in part, his appearance. However, I find on his evidence that this past treatment does not constitute serious or significant harm.

I accept that the applicant is tattooed (having obtained these tattoos in [Country 1] on his trips there) and if he returns to Iran may wear his hair in a ‘Western’ haircut and may wear ‘Westernised’ clothes. I accept that the applicant in the past has been harassed by the Basij for these outward manifestations of ‘Western appearance’.
At the hearing I noted to the applicant that country information may not support his claims, that he would be harmed for these reasons, the country information indicating that many young people, especially in Tehran, had tattoos, a variety of hairstyles and clothing and displayed a range of other ‘westernised’ behaviours. The applicant responded that maybe in the last few years there was some freedom, but they were still against Christianity, it was a big issue for them.
I have had regard to a range of country information, which is consistent with the information contained in the DFAT report:
Tattoos and People with ‘Western’ Appearance
International and domestic observers agree that men are subject to less strict controls on personal appearance than women. DFAT is aware that some men have claimed to have been harassed or discriminated against on the basis of their appearance — for example, for having ‘Western-style’ hairstyles (including through use of hair gel) or clothing styles (including long hair and ripped jeans), visible tattoos or visible hair removal (such as plucked or waxed eyebrows). Notwithstanding such reports, it is common to see young men fitting all of these descriptions on Iranian streets, particularly in larger cities such as Tehran. Tattoos are increasingly popular among young Iranians. Young men with visible tattoos are common in Tehran. DFAT saw some men with tattoos covering nearly the entire length of their arms (‘sleeve tattoos’). DFAT also saw some women with visible – albeit significantly smaller – tattoos than men (for example, on their wrists). Tattooists operate underground, and generate business through word-of-mouth and Instagram. DFAT is not aware of tattooists being targeted by the authorities. Like tattoos, Western-style clothing is common — jeans and short-sleeved t-shirts (including with Western branding) are de rigueur for men in Tehran during summer. DFAT observed a number of men in Tehran with earrings and women with ankle bracelets.
DFAT assesses that authorities are far more likely to target women than men for dress code violations. Where there have been incidents of harassment of men for violating the dress code, DFAT assesses these were most likely the result of either over-zealous enforcement by individual security authorities in particular locations (particularly outside of major cities) or because the individual had come to the attention of the authorities for other activities, particularly political activism. DFAT assesses that the restrictions the dress codes place on men do not amount to discrimination. DFAT is not aware of the authorities targeting people on the basis of a ‘Western’ appearance or for having visible tattoos. While such appearances may be frowned upon by more conservative Iranians, DFAT assesses that people of ‘Western’ appearance, including people with visible tattoos, face a low risk of official and societal discrimination.[2]
[2] DFAT Country Information Report Iran, 14 April 2020, 3.136 – 3.137.
I have had regard to the evidence of the applicant and to the country information. Whilst I accept that the applicant wore Western dress and hairstyle, and would do so on return, and has tattoos, I do not accept that this would lead to a real chance of serious harm or a real risk of significant harm on return. The country information indicates that the applicant as a male is less likely to be targeted, and that if the applicant, as in the past, is harassed by the Basij or other security forces, this will not lead to serious or significant harm. I find therefore that there is no real chance or real risk of the applicant being seriously or significantly harmed for reasons of his Western appearance, imputed political opinion arising from his appearance or any other reason connected to this.
I have also had regard to the fact, below, that I accept that on his detention in 2010 or 2011, he was detained in the company of his girlfriend. Close contact between unmarried men and women is illegal.[3] However, country information indicates that there is greater tolerance for mixed-gender relations, particularly in larger cities and the authorities generally tolerate unmarried couples being together in public.[4] I note also that in the 2010/2011 incident, the applicant was bailed, and that his offence was later commuted to a fine and his girlfriend was released. Having regard to the lack of any serious or significant harm to him in the past for this behaviour, and placing significant weight on the country information that attitudes of the authorities (as well as social attitudes[5]) have changed and there is greater tolerance for unmarried couples being together in public, particularly in large cities, accepting the applicant would return to Tehran, I find that there is no real chance or real risk of the applicant being harmed for being in public with an unmarried woman if he returns to Iran, now or in the reasonably foreseeable future.

Alcohol and drug use

[3] DFAT Country Information Report Iran, 14 April 2020, 3.138.

[4] DFAT Country Information Report Iran, 14 April 2020, 3.138 – 139.

[5] DFAT Country Information Report Iran, 14 April 2020, 3.139.

I accept the applicant was detained twice, once in about 2010 or 2011 when he was held for a week for sitting in the park with his girlfriend and drinking alcohol (his girlfriend was released), bailed by his parents and taken to court and sentenced to 80 lashes which was later commuted to the payment of a fine. Then approximately a year before his departure for Australia he was caught drinking alcohol in the park with a friend, detained for a month in jail and sentenced again to 80 lashes but paid a [fine].
At hearing the applicant did not provide further information about these events and said that he had not had any other difficulties with the authorities in Iran. I note that according to the decision record, the applicant in his interview in June said that he had overcome his desire to drink alcohol and had not touched it for over a year. I asked the applicant if I understood his claims to be that he had had drug and alcohol problems in Iran and in Australia but no longer did. He said this was correct. I noted that I might think he would not face harm on return for reasons of drug or alcohol dependence. He said that the Iranian government were importing drugs because it gets young people out of politics and gets them addicted.
I accept that the applicant’s past arrests and detention for drinking alcohol by the authorities in Iran were at least partly as a result of his western appearance, and refusal to accept Islamic mores more generally, including spending time with women he is not related or married to, in public. I accept that he would continue these behaviours and dress if he returned to Iran and that this may bring him to the attention of the authorities. However, the applicant has confirmed that he had drug and alcohol problems and no longer did. He has said he no longer drinks alcohol. If this is accepted, it would follow that the applicant would not face a real chance or a real risk of harm on return.
However, I have also considered the situation if the applicant were to drink alcohol on return to Iran, as he did in the past. Country information indicates that, in Tehran particularly, alcohol consumption is widespread, that prosecution for alcohol consumption is not common, that the punishment is most usually a fine, and significantly, “NGOs working in the health sector report that the government has changed its approach to the use of alcohol in recent years from a purely law and order focus to one emphasising treatment and rehabilitation.”[6] On the basis of the country information, whilst I accept that the applicant may once more consume alcohol on return to Iran, as he has in the past, and may do so in public and with members of the opposite sex he is not related or married to, I find that the applicant will face only fines for this behaviour on return, I find that the consumption of alcohol is tolerated and that the attitudes of the authorities have changed somewhat from the past when he was detained. I find that there is no real chance or real risk of the applicant being seriously or significantly harmed for reasons of his possible consumption of alcohol on return to Iran.
[6] DFAT Country Information Report Iran, 14 April 2020, 2.32 – 2.35.
I do not accept that the applicant will take drugs in Iran – this has not been claimed by him (indeed, he affirmed that his claims were that he would not do so) and there is no information before me to establish that the applicant would do so. I find he would not take drugs on return to Iran and therefore that there is no real chance or real risk of the applicant being seriously or significantly harmed for reasons of taking drugs on return to Iran.
I have addressed the claim that he was detained with an unmarried woman (his girlfriend), above. I accept that he may choose to be in close contact with an unmarried woman in the future if he returns to Iran, and that he may, as above, drink alcohol. Looking fairly at the country information it is clear that the attitude towards such behaviours is one of increased tolerance, form the authorities and society, especially in Tehran. I find that there is no real chance or real risk of him suffering serious or significant harm for these behaviours on return to Iran, now or in the reasonably foreseeable future.

Political opinion and [social media] posts

The applicant claims to have attended a protest in 2009 in support of Mousavi and the Green Movement. He fears he was seen by the authorities. As set out in the decision record, at the interview in June 2020 he stated that he joined the protest rally in 2009 because he disliked the Iranian government and Islamic theocratic regime. He shouted slogans in the street and believes that he came to the attention of the authorities. He said he was never arrested or questioned by security agencies over his participation in the rally. The applicant has also claimed the Basij visited his parental home and questioned his parents about his whereabouts approximately two years ago.
At the hearing I discussed with the applicant his claims of his political opinion and noted that, as had the delegate, I may accept he had attended protests in 2009 in Iran, but may not accept the authorities had any interest in him because of this. He said that he had attended, and at that time he was really scared it may make a problem for him or cause trouble, and that was why he raised it. I explained that because he had not been arrested or detained closer to the event and had been able to leave Iran legally, I might assess that he may not face any difficulties because of that. The applicant did not respond.
Country information indicates that the Green Movement has little profile in Iran today, and that those who participated are highly unlikely to face arrest, detention or the interest of the authorities.[7]
[7] DFAT Country Information Report Iran, 14 April 2020, 3.92 – 3.94.
The applicant claimed in his first application to have been politically active by posting to [social media] but, as recorded in the decision record, he conceded that comments against the Iranian government and their corruption he said he made on his [social media] page in 2013/2014 were actually posted on his friend’s [social media] page; in any event, he could not provide any evidence of these comments. It was found that, beyond mere assertions, he had not demonstrated any sort of commitment to vocalising his opinions and beliefs.
To the delegate in this application the applicant did provide posts made to his [social media] page. These are re-posts. They were provided with translations and a statement from the translator. I discussed these posts with the applicant at hearing. I noted to him that country information suggested that the government did not routinely monitor social media of all Iranians, but only noted dissidents or others of interest, and that the authorities do not routinely check the social media of failed asylum seekers to Iran.[8] He said the Iranian authorities are very strict, and that some of his friends had gone back to Iran and have not posted anything on [social media] but some may have been executed and some of them are in detention and they have been interviewed and are not in good conditions. He said he was 100% sure they would detain him.
[8] DFAT Country Information Report Iran, 14 April 2020, 3.113, 5.29.
I have carefully considered the claims of the applicant. I accept that the applicant attended a protest rally in 2009 in support of Mousavi and the Green Movement, but I also find that the applicant faced no interest from the authorities from his attendance, and that he did not engage in any other political acts in Iran. I find he was not arrested or detained in connection with his attendance. I further find that his ability to travel freely in and out of the country on several trips to [Country 1] is indicative that he was of no interest to the authorities for his political views or for any other reason. I have had regard to the country information that the Green Movement has little profile today. I consider that the chances are remote that the applicant would face harm from the authorities because he attended a protest in 2009. I accept that the Basij visited his parents and questioned his parents about his whereabouts approximately two years ago. The applicant has not claimed that there have been any further visits. Given my findings above, I find that this visit was a standard process to check on his whereabouts given he had not been in the country for a number of years by that time, and does not indicate any specific interest in the applicant for any reason.
In relation to his expression on social media, I find that the applicant has not established that he made any posts either in Iran or Australia prior to those submitted, posted in February – June 2020. I have had regard to these posts. I accept that they espouse anti-regime and some religious views. But I also note that these are re-posts. The submission accompanying these re-posts claims that such re-posts are dangerous because they link the applicant to persons and groups sharing critical content and which heightens his risk profile and because some of these posts originated in Iran there is a significant chance that any social media activity relating to this content has been monitored by the Iranian authorities. I do not find the arguments of the submission convincing. Country information indicates that social media is not routinely monitored in Iran. I do not accept the argument that the applicant would be monitored because he may have re-posted information from sites which may be monitored – this is too speculative and has not been established. Further, the country information indicates that:
‘Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government (heavy Internet filtering means most Iranians will never see them) …’ [9]
[9] DFAT Country Information Report Iran, 14 April 2020, 5.30.
I also do not find the statement from the translator convincing or compelling. The translator is expert in translation. I do not accept that he has any expertise or special knowledge of how the Iranian authorities may look on these posts. I give this statement no weight.
Even if the applicant were to continue to post such material if he returns to Iran, I do not accept there is a real chance or real risk he would be detected and come to the attention of the authorities – as above the country information indicates that the authorities monitor the social media of noted dissidents or others of interest, and I do not accept that the applicant would fall into these categories for any reason claimed or any reason on the material before me. I therefore do not accept that he would come to the attention of the authorities if he continues to re-post such materials within Iran.
Having carefully considered the information before me I find that there is no real chance or real risk of the applicant being harmed for his attending a protest in 2009, the visit to his parents by the Basij, his re-posting of social media in Australia or if he were to continue to re-post such material on return to Iran.

Failed asylum seeker

The applicant claims to fear harm on return as a Westernised individual who is a failed asylum seeker. At the hearing I asked the applicant about this claim and discussed the country information with him. He said the government were very cruel and a few days prior to the hearing had killed 3 Afghani asylum seekers in Iran. Even if true I find that this last statement has no bearing on the applicant because he would not be returning to Iran as an Afghani asylum seeker.
As I discussed with the applicant at hearing, the country information indicates that those returning as westernised individuals who are failed asylum seekers may face some questioning and brief detention from authorities on arrival, but that is all.
Conditions for Returnees
Iran has a global and longstanding policy of not accepting involuntary returns. Historically, Iran has refused to issue temporary travel documents (laissez-passers) to facilitate the involuntary return of its citizens from abroad. In March 2018, Iran and Australia signed a Memorandum of Understanding on Consular Matters. This includes an agreement by Iran to facilitate the return of Iranians who arrived after March 2018 and who have exhausted all legal and administrative avenues to regularise their immigration status in Australia. A laissez-passer can be obtained from an Iranian diplomatic mission on proof of identity and nationality.
The IOM runs a program to assist voluntary returnees to Iran, in cooperation with the country from which they are returning. Iranian authorities cooperate with the IOM in this regard. In cases where an Iranian diplomatic mission has issued temporary travel documents, authorities will be forewarned of the person’s imminent return. DFAT is not aware of any legislative or social barriers to voluntary returnees finding work or shelter in Iran, nor any specific barriers to prevent voluntary returnees from returning to their home region. Some countries offer failed asylum seekers financial packages to support their reintegration on return to Iran. The IOM also provides some resettlement assistance to voluntary returnees who fail to secure asylum in a third country.
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.
International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government (heavy Internet filtering means most Iranians will never see them), protesting outside an Iranian diplomatic mission, converting to Christianity or engaging in LGBTI activities. In such cases, the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists. The treatment of returnees, including failed asylum seekers, depends on the returnees’ profile before departing Iran and their actions on return. According to local sources, the greatest challenge facing failed asylum seekers on return is reintegrating economically and finding meaningful employment.
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.

I have carefully considered the claims of the applicant. I accept that he would return to Iran as a westernised failed asylum seeker. I accept that the Iranian authorities would be aware, or could infer, that he had applied for protection. I accept that he would present with tattoos and may have Western dress and a Western hairstyle. I do not accept, on his evidence and my findings above, that on his return the authorities would know, or care, that he was detained twice for drinking alcohol in public, nor would they know or care that he attended a protest in 2009. On the country information I find that he would be detained briefly and questioned at the airport, that he would not be harmed during this process, and that this would be the extent of the authorities’ interest and interactions with the applicant. I find, on the country information above, that the authorities would not be aware, nor would they be concerned, with the applicant’s activities in Australia including his baptism, church attendance and attendance at bible study groups. As above and on the country information, I do not accept that they would be aware or would seek to check his social media. I find that there is no real chance or real risk of the applicant being harmed for reasons of his status on return as a westernised failed asylum seeker.

Does the applicant have a well-founded fear of persecution if he returns to Iran?

As above, I have accepted that the applicant has been harassed for his tattoos, hairstyle and Western dress, and has been detained twice for drinking alcohol, for which he had to pay fines. I have accepted that he attended a protest in 2009. I have accepted that he has been baptised, has attended Church and has attended several Bible study groups whilst in Australia, but I have found his conversion to Christianity not to be genuine and I have disbelieved that he would seek to practice Christianity on return to Iran. I have found he would return as a non-observant Muslim, and that as a non-observant Muslim in the past he did not face harm. I have accepted that he would return to Iran as a Westernised failed asylum seeker. I have not accepted that his social media re-posting of this year has or would come to the attention of the Iranian authorities and have not accepted that, were he to re-post on return to Iran, that he would come to their attention then. I have accepted that he may drink alcohol on return to Iran as he did in the past but have found that he would not suffer serious or significant harm because of this. I have not accepted that he would take drugs on return. I find the applicant would return to Tehran where his family reside.
It is clear that the applicant’s claims are interdependent. I have carefully considered his claims in their totality. On the basis of what I have accepted, in considering his claims in their totality, I find that there is no real chance the applicant will be harmed for any reason on return, taking the above both individually and cumulatively. I have carefully considered whether there is any other basis for a claim in his evidence and I find there is not.
I find that there is no real chance, as opposed to one that is remote, that the applicant will face serious harm amounting to persecution on his return to Iran from the authorities or anyone else for reasons of his actual or imputed religion, his actual or imputed political opinion, his membership of a particular social group or any other reason, now or in the reasonably foreseeable future.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a). Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

Are there substantial grounds to believe that the applicant will suffer significant harm if he is returned to Iran?

In MIAC v SZQRB[10] the Full Federal Court held that a ‘real risk’ test imposes the same test as the ‘real chance’ test applicable to the assessment of ‘well-founded’ fear’ in the Refugee Convention definition.
[10] MIAC v SZQRB [2013] FCAFC 33 (Landeer, Besanko, Gordon, Flick and Jagott JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342]
As detailed above, I have accepted that the applicant has been harassed for his tattoos, hairstyle and Western dress, and has been detained twice for drinking alcohol, for which he had to pay fines. I have accepted that he attended a protest in 2009. I have accepted that he has been baptised, has attended Church and has attended several Bible study groups whilst in Australia, but I have found his conversion to Christianity not to be genuine and I have disbelieved that he would seek to practice Christianity on return to Iran. I have found he would return as a non-observant Muslim, and that as a non-observant Muslim in the past he did not face harm. I have accepted that he would return to Iran as a Westernised failed asylum seeker. I have not accepted that his social media re-posting of this year has or would come to the attention of the Iranian authorities and have not accepted that, were he to re-post on return to Iran, that he would come to their attention then. I have accepted that he may drink alcohol on return to Iran as he did in the past but have found that he would not suffer serious or significant harm because of this. I have not accepted that he would take drugs on return. I find the applicant would return to Tehran where his family reside. I have found, as above, that there is no real chance of him being harmed for these reasons, individually and cumulatively.
When asked, the applicant did not claim to fear harm on return to Iran for any reason other than those above. It follows that I do not accept that there is a real risk the applicant will suffer significant harm from any person or for any of the reasons set out above or for any other reason evident on the claims or material as a necessary and foreseeable consequence of her being removed from Australia to Iran.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

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

Sean Baker
Member

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:

(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H Meaning of refugee

For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J Meaning of well-founded fear of persecution

For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures

For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

Protection visas – criteria provided for by this Act

…

A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 4188

16 September 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction