2012243 (Refugee)

2012243 (Refugee) [2022] AATA 1727 (26 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  2012243
COUNTRY OF REFERENCE:                   Iran
MEMBER:Jason Pennell
DATE:26 April 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 April 2022 at 9.12am

CATCHWORDS
REFUGEE – protection visa – Iran – fear of harm from Basij after altercation at road checkpoint – Westernised appearance and manner – court summonses issued while in third country and Australia – mental health – returning failed asylum seeker – credibility – vague claims and evidence – prevalence of fraudulent documents – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5AAA, 5J(4), 36(2)(a), (aa), 45AA, 65, 91R

Migration Regulations 1994 (Cth), r 2.08F

CASES

C v MIMA (1999) 94 FCR 366

Chan v MIEA (1989) 169 CLR 379

MIAC v SZQRB [2013] FCAFC 33

MIEA v Guo (1997) 191 CLR 559

MIMA v Y [1998] FCA 515

Saliba v MIMA (1998) 89 FCR 38

Welivita v MIEA (FCA, Lindgren J, 18 November 1996)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

The applicant, who claims to be a citizen of Iran, applied for the visa on 15 July 2013 and the delegate refused to grant the visa on 16 December 2014.
The applicant applied for a Protection (Class XA) visa. However, by operation of s 45AA of the Act and reg 2.08F of the Migration Regulations 1994 (Cth) (the Regulations), from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa. Although the delegate refused the application as an application for a Protection (Class XA) visa, the effect of reg 2.08F is such that the application the Tribunal must consider is one for a Temporary Protection (Class XD) visa.
The applicant appeared before the Tribunal on 22 September 2021 at 1.00 pm to give evidence and present arguments. The hearing was conducted via video conference using the Microsoft Teams program. The Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to do so given the COVID-19 pandemic and the restrictions imposed due to the pandemic. In addition, the Tribunal had regard to the nature of this proceeding and the individual circumstances of the applicant. The applicant provided all the evidence and made all submissions in support of his claims. The applicant did not rely on any other witness or material in support of his claim. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick. The applicant gave his evidence via MS teams. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments. At all times throughout the hearing the applicant provided evidence and made submissions to the Tribunal in a coherent and logical manner. The applicant was lucid and cognisant throughout the hearing and able to give evidence and respond meaningfully to the Tribunal’s questions.

The applicant’s partner, [Ms A], appeared with the applicant at the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi/Persian and English languages.

RELEVANT LAW

The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Regulations. An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

Refugee criterion

7.Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
8.Australia is a party to the Refugees Convention and has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

Sections 91R and 91S of the Act, as in force at the relevant time, qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50%.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

Mandatory considerations

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

APPLICANT’S CLAIMS AND EVIDENCE

The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision not to grant the applicant a protection visa should be affirmed.

Applicant’s identity

The applicant claims he was born on [Date] in Tehran, Iran and that he is a citizen of Iran. The delegate decision[1] refers to the fact that the applicant provided the Department with a copy of his Iranian Military Discharge Certificate, Birth Certificate and National ID card. The delegate notes that there was no evidence of any irregularity and there is no evidence before the Tribunal which indicates that these documents were bogus as defined under s 5(1) of the Act.
[1] Protection (Class XA) Visa Decision dated 16 December 2014; Dept File No: [Number]
The documents provided by the applicant are consistent with his evidence to the Tribunal in relation to his identity. There is no evidence to suggest that he has a right to enter and reside, whether temporarily or permanently, in any other country. Therefore, based on the documents provided by the applicant to the Department, the Tribunal accepts and finds that the applicant is a citizen of Iran as claimed and as such, his protection claims will be assessed against Iran as the country of reference and ‘receiving country’ respectively.

Applicant’s migration history

The applicant first arrived in Australia by boat [in] May 2013. Prior to his arrival in Australia the applicant claimed that from [November] 2011 to [December] 2012 he had travelled to [Country 1] on a pilgrimage to visit [Religious sites].[2] His evidence was that on his way to Australia he initially travelled to [Country 2] via [Country 3] [in] February 2013. He stayed in [Country 2] from [February] 2013 to [April] 2013 before boarding a boat to Australia.
[2] Protection (Class XA) Visa Decision dated 16 December 2014 at p.6; Dept File No: [Number]
The applicant lodged his application for a protection visa on 15 July 2013.

Claims for protection

The applicant’s claims for protection are detailed in a Statement of Claims dated 3 July 2013 and attached to his protection visa application.[3] The delegate’s decision[4] summarises the applicant’s claims as follows:
[3] Applicant’s Statement of Claims dated 3 July 2013 & Protection Visa Application dated 15 July 2013; Dept File No: [Number]
[4] Protection (Class XA) Visa Decision dated 16 December 2014 at p.4; Dept File No: [Number]
·In December 2012 while he was driving with his friend, he was pulled over by the Basij at a checkpoint.
·One of the Basijis asked him to provide car documents and he provided the documents. The Basiji member started criticising him for his loud music in his car and continued swearing at him.
·He was feeling very resentful by the Basiji’s provocative comments and punched the Basiji in the face.
·While the altercation was happening between himself and the Basiji, his friend started driving the car and he quickly got into the car and they drove off.
·The Basij chased them on a motorbike, but could not catch them;, however, they noted his car registration details.
·He went home that night, however, two or three days later while he was out an unknown man with the features of a Basiji visited his house and asked about his whereabouts.
·He knew that the Basij were searching for him regarding the incident and decided to stay with his friend.
·He did not work and was hiding in his friend’s house for more than a month and decided to flee in early February 2013.
·He fears that he will be harmed by the Basij and prosecuted by them if he were to return to Iran.

Applicant’s evidence

In addition to the applicant’s oral evidence to the Tribunal, a Statement of Claims was attached to the applicant’s protection visa application, as noted at para 26 above.[5]
[5] Applicant’s Statement of Claims dated 3 July 2013 & Protection Visa Application dated 15 July 2013; Dept File No: [Number]
The applicant’s evidence to the Tribunal was that he was born on [Date] in Tehran, Iran. The applicant claims to be a Shia Muslim.
His father passed away in or about 2020 and his mother continues to live in Tehran. In addition, he has [brothers] and [sisters] who all continue to live in Tehran.
The applicant’s evidence was that his family owned and operated [a] store in Tehran. The applicant and one of his brothers worked in the store. His evidence was that upon his father’s death, the business was closed. The applicant was not able to tell the Tribunal what his brother did for work after the business was closed. Despite his claim that he spoke to his mother once every two or four months via ‘WhatsApp,’ his evidence was that he was not in regular contact with his family.
The applicant attended school in Tehran up until Year [Number]. After school he claimed he performed military service for a period of 2 years from 2006 to 2008.[6] The applicant claimed that he worked in the family shop and as [an Occupation 1]. His evidence was that he was not an official [Occupation 1]. As a result, he did not have a [Occupation 1] licence. Rather, he had his own [vehicle], and would [seek work unofficially].
[6] The applicant stated that it was 1385-1387 in the Iranian Calendar.
The applicant’s evidence was that on a Thursday evening in December 2012[7] he was driving his car with a friend called [Mr B], on [Street 1] in Tehran, when he was pulled over by the Basij at a checkpoint. This street (formerly known as [named] Street) is a main street located in the southeast of [Tehran].[8] The applicant was not able to tell the Tribunal where the Basij checkpoint was located along [Street 1] but stated it was in the main section of [Street 1]. His evidence was that the street was very wide but he was not able to say how many lanes it had. The applicant’s evidence was that the Basij had blocked the whole street but left a narrow passage for cars to go through once released. Even though the incident occurred in the evening, when the traffic was generally less busy than in the daytime, it was holiday time and as a result the applicant stated the area was very busy with many cars and pedestrians.
[7] Applicant’s Statement of Claims dated 3 July 2013 at [4]; Dept File No: [Number]
[8] [deleted]
The applicant claims[9] that he and [Mr B] were stopped at the checkpoint at which time two uniformed members of the Basij approached the car. One of them asked the applicant to provide his car documents. The applicant’s evidence was that the Basij conducted regular checks looking for irregular car documents. The applicant’s evidence was that he got out of the car and presented his documents to the officer as requested. He claims that he was dressed in jeans and a T-shirt and had a ‘stylish hairstyle’ at the time, to which the officer took offence.[10] The applicant claims that the officer criticised the music he was playing in the car and claimed that it was too loud. His evidence was that the officer continued to swear at him, calling him a bastard and a ‘Saliteh’.[11] In addition, his evidence was that the officer grabbed his clothes and started to push him around. The applicant became resentful of the officer, and was unable to tolerate the insults about his clothing and hairstyle.[12] In his Statement of Claims the applicant states that he punched the officer in the face upon which the officer fell to the ground.[13] However, the applicant’s evidence to the Tribunal was that he pushed the officer to the ground. His evidence was that the officer was of about ‘normal’ size.
[9] Applicant’s Statement of Claims dated 3 July 2013 at [5]; Dept File No: [Number]
[10] Ibid
[11] ‘Saliteh’ means an ill-mannered delinquent in English. Applicant’s Statement of Claims dated 3 July 2013 at [6]; Dept File No: [Number]
[12] Applicant’s Statement of Claims dated 3 July 2013 at [7]; Dept File No: [Number]
[13] Ibid
The applicant’s evidence to the Tribunal was that while he was speaking to the Basiji officer his friend, [Mr B], got out of the car and moved to the driver’s side of the car. In contrast, however, in his Statement of Claims the applicant claims that [Mr B] moved from the passenger’s seat across to the driver’s seat of the car while he was speaking to the Basiji officer.[14] In any event, his evidence was that when the officer was on the ground, he ran from the driver’s side of the car and got in the passenger’s side, at which time [Mr B] started the car and sped off.
[14] Ibid
The applicant was not able to tell the Tribunal the direction they travelled but claims that they were chased by two Basiji on motorcycles. He claims that they turned into a side street and managed to lose the motorcyclists in an area of Tehran known as Region 15. After they had escaped the Basij the applicant claimed that he returned to his home. His evidence was that he left his car on the street away from his house.

After a couple of days, members of the Basij attended his home looking for him while the applicant was working in his [vehicle].[15] His evidence was that they found him by the licence plate on his car. The applicant claims his mother opened the door to them and she informed them he was not home. The Basij members explained to his mother that he had been involved in an incident, including hitting one of the other officers, and they explained that he would not be able to escape capture for long.[16] When they left his mother called the applicant while he was working in the [vehicle] to inform him that the Basij were looking for him and to tell him not to return home. The applicant claims that the Basij returned to his home on two or three further occasions. As a result, the applicant stayed with a friend, [Mr C], and did not return to his home or work until he left the country. His evidence was that one of his brothers assisted in funding his trip to Australia via [Country 2].[17]
[15] Ibid at [8]
[16] Ibid at [9]
[17] Ibid at [11]
The applicant claims that after he left Iran a summons was sent to his home in Tehran in relation to the incident demanding that he appear in court. During his Department interview, the applicant provided three ‘Ehazriyahs’ dated [December] 2012, [February] 2013 and [April] 2013 along with their translations.[18] He stated that they were received at his family home by post after he had left Iran. The applicant was not able to inform the Tribunal as to the outcome of the summons or if any order had been made against him.
[18] Protection (Class XA) Visa Decision dated 16 December 2014 at p.8; Dept File No: [Number]
The applicant advised the Tribunal that he injured his back at work while working for a [company] in its warehouse. He claims that he suffers from pain and depression for which he has been taking medication for approximately 6 years. He stated that the medication affects his memory. In response to the Tribunal request for a medical report as to his medical condition, the applicant provided a medical report by [Dr D] from the [named] Medical Centre dated 22 September 2021. The report stated that the applicant suffered from an L5/S1 lumbar disc protrusion with abutment nerve root bilaterally with left leg radiculopathy. [Dr D] also states that the applicant suffers from associated secondary adjustment disorder with generalised anxiety and major depression and provided a detailed list of antidepressant and painkilling drugs prescribed to the applicant which included Cymbalta,[19] Endep,[20] Mersyndol Forte[21] and Tramal.[22]
[19] >
The applicant confirmed to the Tribunal that he had not been involved in any political activities in Iran. he was not part of any political movement and had not engaged in any demonstrations against the government. His evidence was that save for listening to loud music, wearing western style clothing, and sporting a stylish haircut, he had not been involved in any activity or expressed any political opinion that was contrary to the Iranian government or would cause him to come to its attention.
The applicant claims that if he is returned to Iran, he will suffer serious or significant harm at the hands of the Basij. He claims that because of the summons having been issued against him, he will be arrested and detained on his arrival in Iran. He fears that he will be harmed by the Basij over and above any official punishment he may receive.

COUNTRY INFORMATION

In accordance with Ministerial Direction No.84 of 24 June 2019 under s 499 of the Act, the Tribunal also had regard to the country information assessments prepared by DFAT. The Tribunal has referred to the current DFAT report on Iran dated 14 April 2020 (the DFAT Report),[23] in particular, those parts of the DFAT Report as detailed in Annexure A to these Reasons.
[23] DFAT Report on Iran, 14 April 2020

ASSESSMENT OF CLAIMS AND FINDINGS
Credibility

When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[24] Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant.[25]
[24] Section 5AAA of the Act
[25] MIEA v Guo (1997) 191 CLR 559 at [596], Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at [169–70]
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[26] Care must be taken not to exclude from consideration the totality of some evidence where a portion of it could reasonably have been accepted.
[26] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at p.482
If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[27] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.
[27] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196]
The Tribunal is aware that vulnerable asylum seekers will have difficulties in providing documents or expressing their fears.

Accepted facts

Based on the applicant’s evidence the Tribunal accepts and finds that:
(a)The applicant was born on [Date] in Tehran, Iran.
(b)The applicant is a Shia Muslim.
(c)The applicant’s father passed away in or about 2020 and his mother continues to live in Tehran.
(d)The applicant has [brothers] and [sisters] who all continue to live in Tehran.
(e)The applicant’s family owned and operated [a] store in Tehran which was closed on his father’s death.
(f)The applicant attended school in Tehran up until Year [Number].
(g)the applicant performed military service in Iran for 2 years from 2006 to 2008.[28]
(h)The applicant worked in the family shop and as [an Occupation 1].
[28] The applicant stated that it was 1385-1387 in the Iranian Calendar

Applicant’s claim as a refugee
A past fear of persecution is not sufficient

A past fear may be a relevant consideration in determining if the applicant has a well-founded fear of persecution. However, the approach applicable under Article 1 of the Convention is whether the applicant is outside his country owing to a present, well-founded fear of persecution for a reason that falls within the scope of Article 1A(2) of the Convention and he is unable or unwilling, due to the present and well-founded fear, to avail himself of the protection of that country.[29]

Applicant’s relevant ground – political opinion

[29] Savvin v MIMA [1999] FCA 1265 (Dowsett J, 13 September 1999) at [61]–[62], referring to Chan v MIEA (1989) 169 CLR 379, s 5H of the Act

The applicant claims that he is a person who has a well-founded fear of persecution if he is returned to Iran, pursuant to Article 1A(2) of the Convention, by reason of his imputed political opinion having come to the attention of the Basij by contravening Islamic behaviour by listening to loud music, wearing jeans and a T-shirt and sporting a stylish haircut.
For the purposes of the Convention a political opinion need not be an opinion that is held by the refugee. It is sufficient that such an opinion be imputed to the applicant by the persecutor.[30] In Saliba v MIMA the Court held:
... for Convention purposes, a claimant’s political opinion need not be expressed outright. It may be enough that a political opinion can be perceived from the claimant’s actions or is ascribed to the claimant, even if the claimant does not actually hold the imputed opinion.[31]
[30] MIEA v Guo (1997) 191 CLR 559 at [571] referring to Chan v MIEA (1989) 169 CLR 379 at [416], [433]
[31] Saliba v MIMA (1998) 89 FCR 38 at [49]
The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (the UNHCR Handbook) provides[32] that holding political opinions different from those of the government is not in itself a ground for claiming refugee status. An applicant must show that he has a fear of persecution for holding such opinions. Nevertheless, it may be reasonable to assume that an applicant’s opinion will, sooner or later, come into conflict with the authorities. Where this can reasonably be assumed, the applicant can be considered to have a fear of persecution for reasons of political opinion.
[32] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [80]–[86]; Chan v MIEA (1989) 169 CLR 379 at [392]
The UNHCR Handbook provides that in determining whether an applicant can be considered a refugee due to their political opinion, regard should also be had to the applicant’s personality, political opinion, the motive behind the act, the nature of the act committed, the nature of the prosecution and its motives and the nature of the law on which the prosecution is based. These elements may go to show that an applicant has a fear of persecution and not merely a fear of prosecution and punishment for a particular act.[33]
[33] UNHCR Handbook at [80]–[86]; Welivita v MIEA (Federal Court of Australia, Lindgren J, 18 November 1996)
In MIMA v Y, Davies J noted that ‘[t]he words “political opinion” are ordinary words of the English language and have not been the subject of judicial exposition limiting their meaning in the context of the Refugees’ Convention’.[34] The Court held that ‘in the context of the Refugees’ Convention, an opinion could be thought to be a political opinion if it were such as to indicate that its holder ... held views which were contrary to the interests of the State, including the authorities of the State.’[35]
[34] MIMA v Y [1998] FCA 515 at [4] and [5]
[35] Ibid
In C v MIMA,[36] Wilcox J found that the term ‘political opinion’ was broader than adherence to a political party or support for its policies.[37] The Court considered that the term ‘political opinion’ extends to any action which is perceived to be a challenge to government authority and included any action which constituted a challenge to a group opposed to the government.[38]
[36] C v MIMA (1999) 94 FCR 366
[37] Ibid at [375]
[38] Ibid at [373]. In support of this point the Court cited the Canadian Supreme Court decision of Attorney-General of Canada v Ward (1993) 103 DLR (4^th) 1. See also Devarajan v MIMA [1999] FCA 796 at [26]
In this case the applicant claims that he falls within the Convention’s definition of refugee by reason of him coming to the attention of the Basij because he was listening to loud music, wearing jeans and a T-shirt and sporting a stylish haircut. The applicant claims that having escaped from the Basij at the checkpoint and having a summons sent to his home address means he is a person of interest to the authorities. Having considered the relevant country information as referred to below, the Tribunal has considerable reservations that adopting loud music, western style dress and a stylish haircut would be perceived as challenging the government’s authority. Nevertheless, the Tribunal accepts that by doing so he may have come to the attention of the Basij by having contravened Islamic behaviour. In circumstances where Iran is a theocratic republic[39] the Tribunal accepts that the applicant’s claim does fall within the Convention definition of refugee by reason of his political opinion.

The applicant’s well-founded fear

[39] DFAT Report at p.18

Article 1A(2) of the Convention requires that a refugee must have a ‘well-founded fear’ of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. In Chan v MIEA[40] the Court held that when considering ‘well-founded fear’ for the purposes of the Convention, it involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution based on a Convention reason. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[41]
[40] (1989) 169 CLR 379 at [396]
[41] Ibid. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at [263] per Brennan CJ, Toohey, McHugh and Gummow JJ
The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. However, to hold a ‘well-founded fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation. [42]
[42] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397

In MIEA v Guo, the Court stated that:
Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. [43]
[43] MIEA v Guo (1997) 191 CLR 559 at [572]; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at [293]
In this case, the applicant claims that, if he is returned to Iran, there is a real chance he will suffer serious harm by the authorities by reason of his imputed political opinion because of:
(a)his apparent western influences including listening to loud music, dressing in a western manner and having a stylish haircut;
(b)punching a Basiji officer;
(c)having been served the summons;
(d)as a failed asylum seeker; and
(e)as an involuntary returnee.
For the reasons detailed below, the Tribunal does not accept that the applicant has a well-founded fear of persecution, on an objective basis, if he is returned to Iran.

Applicant’s medical condition

The applicant’s evidence was that he injured a disc in his back while working in a [factory] in Melbourne. As a result, he claims that he has been taking medication for pain and depression for approximately 6 years. He claims that because of the medication he has not been able to remember many details of his protection claim. As noted above, the applicant provided a medical report by [Dr D] from the [named] Medical Centre dated 22 September 2021 which stated that the applicant has been attending the clinic for approximately 3 years due to suffering from an L5/S1 lumbar disc protrusion with abutment nerve root bilaterally with left leg radiculopathy. In addition, the report states that the applicant suffers from associated secondary adjustment disorder with generalised anxiety and major depression. The report detailed a list of antidepressant and painkilling drugs prescribed to the applicant which included Cymbalta,[44] Endep,[45] Mersyndol Forte[46] and Tramal.[47] An internet search revealed that these medications are available in Iran.[48] While their side effects included drowsiness and dizziness, they did not include memory loss. Based on the applicant’s evidence and the medical report provided to the Tribunal, the Tribunal accepts that he suffers from pain because of a work accident, as claimed, together with anxiety and depression. However, while the Tribunal accepts that the applicant may not remember some details of his claim due either to the passage of time or the effects of the drugs (i.e. drowsiness or dizziness), it does not accept that the drugs prescribed to the applicant have caused him memory loss as claimed.
[44] Rapis Communication, ‘Potential for Tramadol Abuse by Patients Visiting Pharmacies in Northern Iran’, by Ebrahim Zabihi1 , Aateffeh Hoseinzaadeh1 , Maryam Emami1 , Mahdieh Mardani2 , Baradaran Mahmoud1 and Moghadamnia Ali Akbar1 Iran Drug List >
The country information[49] states that after the 1979 revolution, Article 29 of the Constitution of the Islamic Republic of Iran established that every Iranian citizen has a right to enjoy the highest attainable level of health. It is reported that more than 90% of Iran’s 23 million rural population has access to free healthcare services including prenatal care and vaccination.[50] The Ministry of Health and Medical Education is responsible for planning, implementing, and coordinating health policies at a national level. Public health services in Iran are delivered through a countrywide referral system that commences with the primary care centres in the periphery into secondary level hospitals in provincial towns and onto tertiary hospitals in major cities.[51] While the quality of health care in the public sector is good, doctor shortages and overcrowding are a challenge.[52] Iran has 1000 public hospitals for a population of about 83 million. Private health care services in Iran are highly regarded and attract patients from other countries in the region.[53] In addition NGOs, supervised and supported by the government, operating in Iran offer care for more specialised issues such as childhood cancer, breast cancer and diabetes.[54] Therefore, based on the available county information the Tribunal finds that the applicant will be able access health care for his back injury as claimed. There is no evidence that as an Iranian citizen he would be denied access to care on a systematic of discriminatory basis. The country information suggests that the applicant as an Iranian citizen will be able to access such care equally with any other citizen of Iran.
[49] DFAT Report at p.15; The Borgen Project -8 Facts about Health Care in Iran The Borgen Project -8 Facts about Health Care in Iran DFAT Report at p.15
[52] Ibid
[53] Ibid
[54] The Borgen Project -8 Facts about Health Care in Iran type="1">
The country information reports[55] that the need for mental health services in Iran is significant. DFAT reports that Iran’s Ministry of Health and Medical Education (MOHME) found that nearly one quarter of adults suffer from some form of mental illness. In an earlier study the MOHME found 12% of Iranian adults suffer from depression and 14% from anxiety disorders. Factors that are said to be the cause of mental health issues in Iran include the unemployment rate (unemployment fluctuates between 10% and 15%) and poor living conditions (approximately one third of the population).[56] In addition, a deteriorating economic situation, drug addiction and suicide have all anecdotally contributed to the level of mental illness in the country.[57]
[55] DFAT Report at p.15.
[56] The Borgen Project, ‘State of Mental Health in Iran’ 24 March 2021 by James Van Bramer http://borgenproject.org/mental-health-in-iran/
[57] DFAT Report at p.15.
It is reported that Iran has made several attempts to reduce the level of mental health disorders within the population. From 2013 to 2018, Iran increased its health expenditure by 2.6% to almost 9% of GDP.[58] Access to treatment was improved by integrating mental health treatment into its primary healthcare system. This included building psychiatric wards in general hospitals, developing mental health components in the primary healthcare system and an increase in the availability of medicines. In addition, there has been an increase in the availability of counselling services and therapeutic intervention for people with mental health issues.[59] In or about March 2020 the Department for Mental Health and Substance Abuse within the MOHME developed an evidence-based response plan that provides access to psychosocial and consultation support during the COVID-19 pandemic. [60]
[58] The Borgen Project, ‘State of Mental Health in Iran’ 24 March 2021 by James Van Bramer http://borgenproject.org/mental-health-in-iran/
[59] DFAT Report at p.15.
[60] reliefworld, ‘Islamic Republic of Iran focuses on innovative approaches in essential mental health services amid COVID-19 pandemic’ dated 13 July 2021, >
Based on the available country information, the Tribunal accepts that mental health facilities in Iran are under resourced. However, the country information indicates that the Iranian government has positively recognised the importance of promoting mental health within society and has acted positively towards those suffering from mental illness by implementing a mental health strategy. As a result, the Tribunal does not accept the applicant’s evidence that as a person suffering from a psychological condition, he would not be able to access the necessary care or treatment. The country information indicates that mental health care is available to those who require it. Based on the country information the Tribunal is not satisfied that the government of Iran would deny the applicant, as an Iranian citizen, access to available mental health services refuse him access such services to the extent that it would amount to a deliberate act or omission on the part of the Iranian authorities. While the applicant claimed that he would not receive the same level of treatment as he does in Australia, there was no suggestion that he would be denied access to mental health care services to the same level as other Iranian citizens or that he would be specifically denied such mental health services. As a result, the Tribunal finds that the Iranian state has not demonstrated systematic and discriminatory conduct towards the applicant or people with mental illness. As a result, the Tribunal finds that the applicants fear of persecution by reason of his mental condition as claimed does not satisfy s.5J(4) of the Act.

The Tribunal accepts that it is not possible to monitor whether the applicant would access mental health services in Iran and that there is a risk that he will avoid accessing any such services. In the event if the applicant fails or refuses to access mental health services in Iran, the Tribunal does not accept that the applicant possesses a well-founded fear of persecution because of his mental health condition. That is, any failure of the applicant to access mental health services in Iran would not involve systematic and discriminatory conduct[61] and as such would not amount to a well-founded fear of persecution in the event he is returned to Iran.
[61] Section 5J(4) of the Act
Therefore, based on the country information the Tribunal finds that the applicant will be able to access medical care in Iran for both his physical condition and for the treatment of his mental health condition of anxiety and depression as claimed. As a citizen of Iran, he would not be denied such care on a systemic or discriminatory basis.

The Basij checkpoint

The applicant’s evidence to the Tribunal in relation to being stopped by the Basij at a checkpoint on [Street 1] in December 2012 was vague and lacking in detail. The applicant’s evidence was that the Basij had blocked the whole street but left a narrow passageway for cars to go through once released. He stated that even though it was evening, the area was busy with many cars and pedestrians because of the checkpoint. Despite the applicant’s claim that he was at the checkpoint, he was not able to identify any landmark or building on [Street 1] close to where the checkpoint was located. In addition, despite claiming the street to be very wide he could not say how many lanes the street had. While the applicant accepts that he suffers from anxiety and depression as claimed the Tribunal would have expected the applicant to have remembered some specific detail about the checkpoint and its location. The applicant accepted that being stopped by the Basij was a stressful and frightening experience. While the Tribunal accepts that given the passage of time and his mental health condition, he may not recall all the details of the checkpoint. However, given the stressful situation the applicant was in, the Tribunal would have expected the applicant to have some clear and vivid memory of a particular detail about the checkpoint and/or its location. This may have included the look or appearance of the Basiji officer who stopped him, the make and model of the car in front at the checkpoint or a landmark or building close to the checkpoint. The applicant did not provide any such detail. Rather his evidence about the checkpoint was so vague and lacking any detail that it caused the Tribunal to have considerable doubts about the substance of his evidence.
The country information reports[62] that the Basij Resistance Force is a volunteer paramilitary force established after the 1979 Islamic revolution as an auxiliary law enforcement unit. It has multifaceted roles acting as the eyes and ears of the Islamic regime. It is present in schools, universities, state and private institutions, factories, and even among tribes.[63] It is under the command of the Islamic Revolutionary Guard Corp (IRGC) [64] and is a primary enforcer of internal security and moral codes, including in relation to Islamic dress.[65] The Basij has been mobilised to supress anti-government protests, including during the Green Movement demonstrations in November 2019. It is reported that the Basij is often used to repress political opposition elements and intimidate civilians perceived to be violating Iran’s strict moral code.[66] The mission of the Basij is broadly to help maintain law and order and to enforce ideological and Islamic values and combat the ‘Western cultural onslaught’. Basij members act as ‘morality police’ in towns and cities by enforcing the wearing of the hijab; arresting women for violating the dress code; monitoring citizens’ activities; confiscating satellite dishes and ‘obscene’ material; intelligence gathering; and even harassing government critics and intellectuals.[67]
[62] DFAT Report at p.65
[63] Radio liberty, Iran’s Basiji- mainstay of domestic security’ by Hossien Aryan dated 7 December 2008. DFAT Report at p.65
[65] Ibid
[66] Ibid
[67] Radio liberty, Iran’s Basiji- mainstay of domestic security’ by Hossien Aryan dated 7 December 2008. >
Consistent with the country information, the applicant’s evidence was that the Basij would regularly conduct checks looking for anything ‘interesting’ and to determine if people held the proper documentation. The applicant’s evidence was[68] that he and [Mr B] were stopped at the checkpoint at which time he was approached by a member of the Basij and asked to provide his car documents. Based on the country information, the Tribunal accepts that the applicant was stopped by the Basij as claimed. The applicant’s evidence was that he got out of the car and presented his documents to the officer as requested. He claims that he was dressed in jeans and a T-shirt and had a ‘stylish hairstyle’ at the time, to which the officer took offence.[69] The applicant claims that the officer criticised the music he was playing in the car as being too loud. His evidence was that the officer continued to swear at him, calling him a ‘bastard’ and a ‘Saliteh.’[70] In addition, his evidence was that the officer grabbed his clothes and started to push him around. He claims that he became resentful of the officer and unable to tolerate the insults about his clothing and hairstyle.[71] As a result he punched the officer in the face upon which the officer fell to the ground.[72] Despite his evidence of having an altercation with the Basiji officer and punching him in the face, the applicant was not able to provide any description of him save to say that he was about ‘normal’ size.
[68] Applicant’s Statement of Claims dated 3 July 2013 at [5]; Dept File No: [Number]
[69] Ibid
[70] Ibid at [6]
[71] Ibid at [7]
[72] Ibid
The applicant’s evidence was that he punched the Basiji officer causing the officer to fall to the ground. The applicant then claims he ran from the driver’s side of the car (where he claims he punched the officer to the ground) to the front passenger seat of the car. Despite accepting that the applicant was stopped at the checkpoint as claimed, in circumstances where he claims he had a verbal and then a physical altercation with the Basiji officer at a time when the checkpoint was busy with many cars and people around, the Tribunal has difficulty in accepting the applicant’s evidence that he punched the Basij officer causing him to fall to the ground as claimed without being detained by another officer. In addition, the Tribunal does not accept that in such conditions he had time to run to the passenger seat, as claimed, without being stopped or detained. The Tribunal therefore does not accept the applicant’s evidence and finds that he did not knock the officer to the ground and run to the passenger seat of his car as claimed.
In addition, it was the applicant’s evidence to the Tribunal that during his altercation with the Basij officer, [Mr B] was standing behind him on the driver’s side of the car. He claimed that when he knocked the Basiji officer to the ground [Mr B] got in the driver’s side of the car and started the engine and sped off when the applicant got into the passenger seat of the car. However, in his application for the visa the applicant claims that [Mr B] remained in the car during the applicant’s exchange with the Basij and, upon the Basij officer being knocked to the ground, slid across to the driver’s seat and started the engine before speeding off with the applicant. The Tribunal accepts the passage of time or the applicant’s mental health condition may have contributed to the difference between his evidence to the Tribunal and what is claimed in his application. Nevertheless, in either case, in circumstances where the applicant claims he and [Mr B] had been stopped by the Basij at a checkpoint, the applicant had a verbal and physical altercation with an officer, punching a Basij officer to the ground, and the area was crowded with cars and people, the Tribunal does not accept that [Mr B] would have had time to get to the driver’s seat and start the car ready to speed off with the applicant without either [Mr B] or the applicant being stopped by a Basiji officer. As such, the Tribunal does not accept that [Mr B] started the car and sped off with the applicant as claimed.
Finally, the applicant’s evidence was that he and [Mr B] sped away from the checkpoint and were followed by two motorcyclists. The applicant’s evidence was that there was an exit to the checkpoint through which cars would be able to exit the checkpoint once they had been cleared by the Basij to leave. However, the applicant’s evidence about the checkpoint and any exit was vague and lacking in any detail. He did not say where the exit was located, if it was gated, how many officers were patrolling the exit or the checkpoint more generally or if the exit was visible and able to clearly be accessed without interference from Basij officers or other cars. In addition, the applicant did not say if he and [Mr B] drove through the checkpoint or were able to turn around and escape some other way. The applicant claims that because of the passage of time and/or because of his mental health condition he was not able to remember what direction he sped from the checkpoint. The applicant’s evidence was that, as [an Occupation 1], he knew the area very well. Therefore, despite his mental health condition, in circumstances where the applicant claims to have punched a Basiji officer, run to the passenger seat of his car and sped off from the checkpoint in an area with which he was familiar, the Tribunal expected the applicant to be able to say with some detail how he was able to drive out of the checkpoint and in which direction. However, the applicant was not able to tell the Tribunal which direction he and [Mr B] had travelled after escaping from the checkpoint. He stated that they took side streets to escape the Basij motorcyclists but was not able to provide the names of any streets they took to escape the motorcyclists as claimed. As a result, the Tribunal does not accept that the applicant and [Mr B] were followed by motorcyclists as claimed.
The applicant’s evidence was that he worked as an unlicensed [Occupation 1]. Therefore, based on the country information, the Tribunal accepts that there was a real chance the applicant would have been stopped by the Basiji at a checkpoint in Tehran as claimed. However, for the reasons described above the Tribunal does not accept that he had an altercation with and knocked down a Basiji officer as claimed or that he escaped from a Basij checkpoint with two motorcyclists following him as claimed.
The country information reports[73] that since the 1979 revolution, men and women of all religions have been required to adhere to conservative dress codes in public. Women are required to cover their whole bodies while in public, except for their face and hands. It’s reported that in practice women wear lose covering clothing and a headscarf.[74] In addition, its reported[75] that the dress code for women is not uniformly enforced or adhered to, nevertheless, pursuant to Article 638 of the Iranian Penal Code, women who appear in public without a proper hijab may be imprisoned for a period of 10 days to 2 months or fined between 50,000 and 500,000 rials. In addition, women appearing without a hijab can be punished with 74 lashes. No such rules apply for men.[76] It is reported that the dress code for men is relatively simple with any type of clothing being allowed (including T-shirts), except for sleeveless shirts, and that social norms dictate that long trousers rather than shorts are worn.[77]
[73] DFAT Report at p.48
[74] Ibid; Cheetah Adventures, ‘Iran Dress Code, What to Wear in Iran and Packing list for Tourists.’ DFAT Report at p.48
[76] Ibid
[77] DFAT Report at p.48; Cheetah Adventures, ‘Iran Dress Code, What to Wear in Iran and Packing list for Tourists.’ >
In relation to personal appearance, the DFAT Report states that men are subjected to less strict controls than women.[78] The DFAT Report[79] also notes that some men have reported being harassed and discriminated against based on their appearance, including western style haircuts. Nevertheless, the DFAT Report notes it is common to see young men with western style haircuts and clothing, including jeans and T-shirts, on Iranian streets, particularly in the larger centres such as Tehran, and it is also common to see men in Iran sporting tattoos.[80] DFAT reports that is not aware of the Iranian authorities targeting individuals on the basis of their western appearance.[81] It notes that any incidents of harassment of men for violating the dress code are likely due to the overzealousness of an individual officer in a particular location or because the individual had come to the attention of the authorities for some other reason. As such, DFAT assesses that dress code restrictions placed on men in Iran do not amount to harassment and as such men face a low risk of official and social discrimination for this reason.
[78] DFAT Report at p.50
[79] Ibid
[80] Ibid
[81] Ibid
The applicant’s evidence was that, even though at the time he was stopped at the checkpoint he liked to listen to loud music, wear western clothes and sport a stylish haircut, he is less likely to do so now given the passage of time. The Tribunal accepts the applicant’s evidence that he liked to listen to loud music, while wearing western clothes and sporting a stylish haircut when he was in Iran.
Nevertheless, based on the available country information the Tribunal does not accept that if he was to return to Iran in the reasonably foreseeable future, there is a real chance he would be seriously harmed because of his actions in listening to loud music, wearing western clothes, or sporting a stylish hairstyle as claimed. Therefore, even if the applicant continued to listen to loud music, wear western clothes and have a stylish haircut, based on the available country information, the Tribunal finds that there is no real chance the applicant will be seriously harmed because of having a western appearance or listening to loud music as claimed.

The summons

The Tribunal has not accepted that the applicant escaped from the Basij checkpoint or was followed by Basiji motorcyclists as claimed. Nevertheless, he claims that a few days later a Basij officer visited his home looking for him. As a result, he claims that he did not return home but stayed with a friend until his departure to Australia.
The applicant claims that after he departed Iran, he received three summonses. The summonses are dated [December] 2012, [February] 2013 and [April] 2013. He stated that he was informed by one of his brothers that the first and second summons were posted to the applicant’s home in Iran while he was in [Country 2].[82] The third summons was posted to the applicant’s home after he arrived in Australia.[83]
[82] Protection (Class XA) Visa Decision dated 16 December 2014 at p.8; Dept File No: [Number]
[83] Ibid
The United Kingdom Home Office Report dated 16 January 2013 notes that a person can be called or invited to a judicial body in Iran by a summons (known as Ekhtariyeh (legal notice) or Ehzariyeh (summons)).[84] The document is issued by the court, a copy of which must be served on the defendant or a family member of the defendant and signed by both the serving bailiff and the recipient to show the date of service. After service, the original document, along with the return of service, is filed with the court to show that the defendant has been informed and been given the opportunity to respond.[85] A summons may be sent by post, but it is more usually delivered by court bailiffs (known as zabeteyn in Persian).[86]
[84] United Kingdom: Home Office, Country of Origin Information Report - Iran, 16 January 2013,
[85] Ibid at [11.49]
[86] Ibid at [11.55]

It was reported that in 2013 a summons consists of blank sections[87] which a court would complete by hand. Though some courts had begun issuing computer-generated summonses, generally they were filled out by hand. All summonses have a registration number in the left top corner which indicates the city in which the summons was issued and allows a person to verify the authenticity of the summons and to determine the date of issue, the case number, court type and branch number of the court issuing the summons; summonses are always stamped, though not necessarily signed.[88]
[87] Ibid at [11.54]
[88] Ibid
If a person does not respond to a summons, this is considered a breach of the law but failing to report does not mean that the person will be prosecuted;[89] prosecution would depend on the reason for the person being summoned. However, it is reported that a person who has been summoned and has subsequently left Iran during the investigation phase will not necessarily face prosecution upon return just because the person has failed to report to the authorities after being summoned.[90] In relation to criminal cases, it is reported that a person suspected of having committed a criminal act will be summoned according to the Iranian Penal Code.[91] When a person is summoned in a criminal case the person must report to the authorities within 3 days. However, if the summons has been published in the legal gazette, the person must report to the authorities within 10 days. If a person fails to report when summoned according to the Penal Code, the person will be searched for and an arrest warrant may be issued. [92] A person who fails to report to the authorities when summoned may be sentenced in absentia to imprisonment if found guilty of the crime.
[89] Ibid at [11.50]
[90] Ibid
[91] Ibid at [11.54]
[92] Ibid at [11.55]
The United Kingdom Home Office Report states that summonses were easy to obtain illegally and that it was easy to forge summonses by erasing information in the summons and adding new details.[93] The DFAT Report notes that paper-based documents, including court documents, summonses, and bank letters, are relatively easy to obtain through fraudulent means.
[93] Ibid
In this case the applicant claims he has been served a summons on three occasions to appear in relation to his assault on a Basij officer. The Tribunal has found that the applicant did not punch the Basij officer as claimed or that he was chased by the motorcyclists as claimed. Nevertheless, the country information notes that in relation to criminal matters, in or about 2013, if a person failed to respond to a summons, they would be searched for with an arrest warrant being issued if they could not be found. [94] In the applicant’s case there is no evidence that an arrest warrant has been issued. Instead, contrary to the country information, it is the applicant’s evidence that three summonses were sent to his home address in relation to the same offence. In all the circumstances there appears to be no logical reason why three summonses would have been sent to the applicant in relation to him having punched the officer to the ground, as claimed, without an arrest warrant being issued. Therefore, based on the country information in relation to the prevalence of fraudulent documents in Iran, the Tribunal does not accept that the applicant was served with the summons as claimed and finds that they are fraudulent documents.
[94] United Kingdom: Home Office, Country of Origin Information Report - Iran, 16 January 2013 at [11.55], >
The applicant claimed if he is returned to Iran, he will suffer serious harm as he will be arrested and prosecuted due to having been served the summonses as claimed. However, in circumstances where the Tribunal has not accepted the applicant was served the summonses the Tribunal does not accept that he will be arrested and prosecuted upon his arrival in Iran because of having been served the summonses as claimed. In addition, the Tribunal has not accepted that the applicant punched a Basiji officer as claimed or that he escaped from the checkpoint being followed by Basiji motorcyclists as claimed. As such, the Tribunal finds that there is no real chance the applicant will be seriously harmed upon his return to Iran because of punching a Basiji officer, escaping the checkpoint or being served the summonses as claimed. In addition, based on the available country information the Tribunal finds that there is no real chance the applicant will be seriously harmed upon his return to Iran for playing loud music or having a western appearance.

As a failed asylum seeker

The applicant claims that if he is returned to Iran there is a real chance, he will suffer serious harm for being a failed asylum seeker and returning from a western country after a prolonged period in Australia. He claims that he will be interviewed upon his arrival at which time he will be detained and questioned.
The country information states that the authorities in Iran pay little attention to failed asylum seekers on their return to Iran.[95] Iranians have left the country in large numbers since the 1979 revolution and the authorities have accepted that many will seek to live and work overseas.[96] It is reported that those returning on laissez-passer are questioned by the Immigration Police upon their arrival and asked about the circumstances of their departure and why they are travelling on a laissez-passer. The DFAT Report states[97] that while it is possible that a known dissident may be prosecuted, it is unlikely that an individual simply claiming asylum overseas will be prosecuted as an asylum seeker.
[95] DFAT Report at p.70
[96] Ibid
[97] DFAT Report at p.70
In this case the applicant claims that he will be questioned about the summonses upon his arrival in Iran. As a result, he claims that he will be arrested and detained upon his return. However, the Tribunal has not accepted the applicant was served the summonses. As such, it does not accept that the applicant will be detained or arrested upon his arrival in Iran due to having been served the summonses as claimed.
Therefore, based on the available country information the Tribunal finds that there is no real chance the applicant will be seriously harmed for being a failed asylum seeker. In addition, having found that the applicant was not served the summonses as claimed, the Tribunal finds that there is no real chance he will be seriously harmed upon his return to Iran due to having been served the summonses as claimed.
Having considered the applicant’s claims, singularly and cumulatively, the Tribunal finds that there is not a real chance that the applicant will suffer serious harm. As a result, the Tribunal finds that the applicant does not face a real chance of serious harm, now or into the reasonably foreseeable future, for any reason.
The Tribunal is therefore satisfied that the applicant does not satisfy the criterion set out in s 36(2)(a) of the Act for a protection visa and as such he is not a person to whom Australia has protection obligations. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution.

Applicant’s complementary protection claim

The applicant claims that, without conceding in any way his claims under s 36(2)(a) of the Act, the same factual matrix may invoke Australia’s protection obligations under the complementary protection criterion pursuant to s 36(2)(aa) of the Act. Accordingly, the Tribunal has also considered the application of s 36(2)(aa) to the applicant’s circumstances. That is, the Tribunal has considered if the applicant faces a real risk of significant harm on his return to Iran based on his claims detailed above. The Tribunal notes that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[98]
[98] MIAC v SZQRB [2013] FCAFC 33
The Tribunal has made earlier findings that the applicant does not face a real chance of serious harm arising from the applicant’s claims. As the ‘real risk’ test is the same as the ‘real chance’ standard, for the reasons stated above in relation to each of the applicant’s claims, the Tribunal does not accept that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia because of his political opinions, including appearing westernised by playing music too loudly, wearing western clothing and sporting a stylish haircut.

As a failed asylum seeker

The Tribunal has considered that if the applicant is removed from Australia to Iran as a failed asylum seeker there is a possibility that, because of his prolonged stay in Australia, he may be imputed with an adverse political opinion or imputed with a political opinion of being opposed to the Iranian regime and having alleged persecution by the regime abroad.
However, the advice from DFAT[99] is that while it is possible that a known dissident may be prosecuted, it is unlikely that an individual simply claiming asylum overseas will be prosecuted as an asylum seeker. Accordingly, the Tribunal has assessed the applicant’s case on the basis that he is likely to be stopped, interviewed and have his case ‘examined in detail’.
[99] DFAT Report at p.70
For the reasons expressed above, the Tribunal has not accepted the applicant’s evidence that he will be seriously harmed upon his return to Iran because of his political opinion as claimed. The Tribunal has not accepted the applicant’s evidence in relation to him punching the Basiji officer, escaping the checkpoint or being served the summonses as claimed. Therefore, if the applicant is stopped and interviewed, the Tribunal finds that there is no real risk he will be significantly harmed because of any adverse political opinion or that he will be imputed with a political opinion of being opposed to the Iranian regime by having sought asylum abroad. In addition, having found that the applicant was not served the summonses as claimed, the Tribunal finds that there is no real chance he will be seriously harmed upon his return to Iran because of having been served the summonses as claimed. Therefore, the Tribunal does not accept that there is a real risk that the applicant will be significantly harmed on return to Iran, either now or in the foreseeable future.

Applicant’s health claim

The applicant claims that if he is returned to Iran, he will be significantly harmed by reason of his mental health condition. The Tribunal notes the medical report provided by the applicant and accepts the contents of the report. As previously noted, the applicant was lucid and cognisant throughout the hearing and was able to give evidence and respond meaningfully to the Tribunal’s questions.
Therefore, based on the available country information in relation to the health services and mental health services in Iran and the applicant’s own evidence as referred to above in these Reasons, the Tribunal finds that the applicant will be able to access the necessary care and support in relation to physical medical condition and his mental health when appropriate. He would be able to receive adequate treatment (e.g., counselling; psychotherapy and medication) for his diagnosed conditions.[100] Accordingly, for the reason expressed above, the Tribunal finds that there is no real risk that he will suffer significant harm by reason of his physical condition or his mental health in the event that he returns to Iran.
[100] Nationwide integration of mental health into primary care, regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk he will suffer significant harm as required by s 36(2)(aa).
CONCLUSIONS
101.For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Act for the reasons mentioned in Article 1 of the Convention. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a).
1. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s 36(2)(aa) and is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
2. There is no suggestion that the applicant satisfies s 36(2) based on being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
104.The Tribunal affirms the decision not to grant the applicant a protection visa.
Jason Pennell
Senior 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
1. For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
  (a)in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
  (b)in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
  · Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
1. For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
  (a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
  (b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
  (c)the real chance of persecution relates to all areas of a receiving country.
  · Note: For membership of a particular social group, see sections 5K and 5L.
2. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
  · Note: For effective protection measures, see section 5LA.
3. A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
  (a)conflict with a characteristic that is fundamental to the person’s identity or conscience; or
  (b)conceal an innate or immutable characteristic of the person; or
  (c)without limiting paragraph (a) or (b), require the person to do any of the following:
  (i)       alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
  (ii)      conceal his or her true race, ethnicity, nationality or country of origin;
  (iii)     alter his or her political beliefs or conceal his or her true political beliefs;
  (iv)    conceal a physical, psychological or intellectual disability;
  (v)     enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
  (vi)    alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
4. If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
  (a)that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
  (b)the persecution must involve serious harm to the person; and
  (c)the persecution must involve systematic and discriminatory conduct.
5. Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
  (a)a threat to the person’s life or liberty;
  (b)significant physical harassment of the person;
  (c)significant physical ill‑treatment of the person;
  (d)significant economic hardship that threatens the person’s capacity to subsist;
  (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
  (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
6. In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of 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
1. For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
  (a)protection against persecution could be provided to the person by:
  (i) the relevant State; or
  (ii) a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
  (b)the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
2. A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
  (a)the person can access the protection; and
  (b)the protection is durable; and
  (c)in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
1. Protection visas – criteria provided for by this Act
…
1. 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.
…
ANNEXURE ‘A’
Dress Code[101]
[101] DFAT Report at p.48
3.127 Since shortly after the 1979 revolution, men and women of all religions have been required to adhere in public to conservative dress codes. Women are required to cover their whole bodies with the exception of their face and their hands (from the wrist) and their feet (from the ankle) while in public. In practice, this translates as loose all-covering clothing and a headscarf. Men are required only to cover their ‘private areas’, although social norms dictate wearing long trousers rather than shorts. Article 638 of the Penal Code stipulates that women who appear in public without a proper hijab (the generic term for the proper Islamic dress for women) be imprisoned from 10 days to two months or pay a fine of between 50,000 and 500,000 rials (approximately AUD0.50-5 at current market rates). Women appearing in public without a proper hijab can also be punished with 74 lashes. There is no similar rule for men. In practice, these penalties are rare. Generally, women deemed to have ‘bad hijab’ (where the headscarf is worn loosely and some hair is showing) are ordered by morality police to adjust their headscarves and are warned against future indiscretions. In some cases, they may be escorted to a police station, asked to sign a declaration undertaking not to wear ‘bad hijab’ again, and released without sanction. Repeat offenders reportedly incur a fine and their family is notified and asked to bring appropriate clothing for them. Repeat offenders may incur a criminal record, which could impact one’s ability to find employment in the public sector and large private firms.
3.128 Dress codes for women are not uniformly enforced or adhered to. DFAT observed numerous women wearing their hijabs loosely in Tehran, with parts of their hair showing. Women are more likely to wear hijabs loosely in affluent areas of Tehran (e.g. north Tehran) and around universities, whereas those in poorer and more conservative parts of Tehran (e.g. south Tehran) and in cities such as Mashhad and Qom tend to dress more conservatively (including by wearing full-body chadors). Dress codes are enforced primarily by the morality police, who are sometimes plain clothed, but also the Basij, who tend to take a stricter approach to enforcement. Marked vans belonging to the morality police (coloured green and white) patrol the streets to monitor Islamic dress code adherence. There have been reports of women not complying with the hijab laws being insulted and physically assaulted by the morality police (including being slapped in the face or beaten with batons) and by members of the public.
3.129 Women’s dress is a politically sensitive issue. An anti-hijab protest movement emerged in January 2018. As part of this movement, some women publicly removed their headscarves and called for an end to the compulsory hijab law. The protests peaked in March 2018, when a large group of women used the occasion of International Women’s Day to demonstrate in front of the Ministry of Labor. Plain-clothed and uniformed police dispersed the protesters, arresting 84 people (60 of whom were released the following day). The authorities have subsequently arrested more than 100 activists in relation to the anti-hijab movement. Some have received prison sentences, including under Article 639 of the Penal Code, rather than the more lenient Article 638. Article 639 prohibits ‘facilitating or encouraging people to commit immorality or prostitution’, and can attract prison sentences of between one and 10 years. One activist, Shaparak Shajarizadeh, was given a 20-year prison sentence (18 years’ suspended) for participating in the protests (Shajarizadeh fled Iran after being released on bail, and claims she was subjected to torture and denied access to a lawyer while in detention). The lawyer representing Shajarizadeh and other anti-hijab activists, Nasrin Sotoudeh, was handed a 38-year prison sentence on several national security charges (see Civil Society Activists/Human Rights Defenders). In July 2019, the head of the Revolutionary Court in Tehran warned that women who filmed themselves or others while removing the hijab and publicised the act would be sentenced to between one and 10 years in prison. According to Amnesty International, at least eight women were in detention for their activism against the compulsory hijab law as at July 2019.
3.130 The anti-hijab protest movement has since waned, but maintains some momentum, particularly online. In April 2019, three women were arrested after appearing in an online video protesting against the compulsory hijab law on International Women’s Day, including by removing their headscarves. They were subsequently convicted of assembly and collusion in acts against national security, propaganda against the state, and encouraging moral corruption and prostitution. Two of the women received sentences of 16 years’ imprisonment. The third woman was additionally convicted of ‘insulting the sacred’ and received a prison sentence of 23 years and six months. In 2017-18, some women protested the compulsory hijab law by wearing white headscarves every Wednesday under a foreign-initiated campaign called ‘White Wednesdays’.
3.131 According to local sources, enforcement of Islamic dress codes fluctuates, with checks on dress code violations increasing during holy periods (such as Muharram and Ramadan) and the summer season (when many women tend to adhere to dress codes more loosely due to the heat). Local sources told DFAT that, generally-speaking, the Islamic dress code is not enforced strictly, particularly in the major cities, but that enforcement has increased since the emergence of the anti-hijab protest movement in January 2018. Morality police patrols have become more frequent in Tehran, including in shopping malls. In April 2019, 8,000 plain-clothed men and women officers were deployed to enforce dress codes, while new female-only morality police units for ‘verbal and practical response to bad-hijabi women’ were recently introduced in Gilan Province. Authorities have closed a spate of restaurants and cafes due to non-observance of the Islamic dress code since June 2019 (see Mixed-Gender Parties and other forms of ‘Immoral Behaviour’), and police reportedly monitor women for wearing their hijabs inappropriately or not at all while travelling in vehicles. Where a female is detected with ‘bad hijab’ inside a vehicle, the owner of the vehicle receives an automated text message instructing them to report to a police station and sign a declaration undertaking not to wear or tolerate ‘bad hijab’ again. According to local sources, repeat offenders incur a fine and, concurrently, are requested to settle any outstanding traffic infringements. A failure to do so can result in the impounding of one’s car and potential suspension of licence until all outstanding fines are settled.
Tattoos and People with ‘Western’ Appearance[102]
[102] DFAT Report at p.50
3.136 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 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.
Basij Resistance Force[103]
[103] DFAT Report at p.65
5.4The Basij Resistance Force (‘the Basij’) is a volunteer paramilitary force that operates under the command of the IRGC. The Basij was established shortly after the Islamic Revolution as an auxiliary law enforcement unit and was brought under the direct command of the IRGC in 2007. The Basij is one of the primary enforcers of internal security and moral codes, including in relation to Islamic dress. The Basij has a countrywide presence, with branches in virtually every Iranian city and town. The Basij maintains three primary armed wings: (1) the Ashoura and Al-Zahra Brigades, which are tasked with defending neighbourhoods in the event of emergencies; (2) the Imam Hossein Brigades, which comprise war veterans and cooperate closely with IRGC ground forces; and (3) the Imam Ali Brigades, which deal with security threats. The IRGC also has multiple branches with specialised functions. According to the United States Institute of Peace, each of these specialised branches functions as a counterweight to NGOs and the perceived threat they pose to the state. For example, the Labor Basij provides a counterpart to labour organisations, unions and syndicates, while the Student Basij balances independent student organisations. The Basij is headed by a commander appointed by, and answerable to, the Supreme Leader
5.5 Estimates of the total number of Basiji vary widely. In 2009, the IRGC commander claimed the Basij had 11.2 million members; however, independent sources cite considerably lower figures (the US Council on Foreign Relations estimates the Basij’s strength at 600,000). Not all Basiji are uniformed. As such, the Basij’s presence on the street is not always overt and obvious. Its membership includes both sexes and a wide range of ages, although the majority are between high school age and mid-30s. Membership of the Basij comes with privileges, including in relation to university admission, government jobs and bank loans. Local mosques provide background information about each volunteer applicant, and also serve as the Basij headquarters for the neighbourhood. For full-time paid positions, applicants must apply to the Basij’s provincial headquarters.
5.6The state has periodically mobilised the Basij to suppress anti-government protests, including during the November 2019 unrest and Green Movement demonstrations. Basij members often receive less formal training than other Iranian security forces. International sources report that Basij units often repress political opposition elements and intimidate civilians perceived to be violating Iran’s strict moral code without formal guidance or supervision from their superiors. DFAT assesses that there is considerable popular resentment against the Basij, although this may vary according to location.
TREATMENT OF RETURNEES[104]
[104] DFAT Report at p.69
Exit and Entry Procedures
5.22 Millions of Iranians travel into and out of Iran each year without difficulty, including the large Iranian diaspora residing in North America, Europe, the United Arab Emirates and Australia. Iranian nationals must pay an exit tax each time they depart Iran, which increases with each outbound journey. Payments of exit taxes are made at the airport, as one is departing Iran. An exit permit for foreign travel is required for Iranians employed in fields considered sensitive (e.g. employees of the Iranian Atomic Energy Organisation); those studying abroad (whether on government scholarships or privately-funded); and all males aged 18-30 who are yet to complete military service (principally those who have deferred military service to undertake tertiary studies). To obtain an exit permit, one must provide proof of their status (e.g. a letter from their university confirming their enrolment) and pay a bond (the bond is retrievable on return). Iranian national resident in Iran who require an exit permit must obtain one each time they leave the country (multiple exit permits are not available for Iranian nationals resident in Iran). Application for, and issuance of, an exit permit, where it is required, is done electronically.
5.23 In some cases, citizens require special permission to obtain a passport (see also Passports). This includes minors under the age of 18, who require the permission of their father/custodian; males who have not completed their military service, who must present authorities with their military service exemption or the written permission of the Public Military Service Department; and married women, who require their husband’s permission. Iranian citizens residing abroad who are not under the obligation of military service can apply for the issuance of a multiple exit permit through the Ministry of Foreign Affairs. They are required to provide completed forms detailing their place of residence and requesting a multiple exit permit, evidence of the completion of (or exemption from) military service, the original and photocopies of their existing passport and photocopies of pages related to their previous travel to Iran, a photocopy of their residence permit and two passport photographs. Beyond their passport and, where it is required, an exit permit, Iranians exiting Iran are not required to present any other documents.
5.24The authorities impose travel bans on some Iranian citizens. Reasons for a travel ban can include security concerns, financial debts, outstanding taxes and outstanding sentences awaiting enforcement. Citizens with ongoing charges or outstanding court matters and those released on bail or parole are subjected to travel bans. Civil and political activists may be subjected to travel bans. In some cases, individuals must obtain the permission of others to leave the country: the husbands of married women and fathers of unmarried women and underage children can request travel bans against their dependents. MOIS and the IRGC have the power to impose travel bans without recourse to the judiciary. Iranians under travel bans are often unaware of their status until they reach passport control at the airport and are turned back. The presence of security organisations in all Iranian airports, particularly those with border checkpoints, enables authorities to determine whether any Iranian citizen can leave the country by air.
5.25 DFAT assesses that leaving Iran through irregular means is more likely to be achievable overland (particularly in rugged mountain areas) than via air or sea, including for registered and unregistered refugees. Under Iranian law, smuggling people into or out of Iran is a crime punishable by up to 10 years’ imprisonment. The law against people smuggling applies to all Iranian nationals, including those outside the country. Passengers undertaking domestic air travel are usually only required to present their ticket. Passengers may be asked for identification, but DFAT understands this practice is not consistent.
Conditions for Returnees[105]
[105] DFAT Report at p.70
5.27 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.
5.28 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.
5.29Authorities 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.
5.30International 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.
5.31DFAT 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.
PREVALENCE OF FRAUD[106]
[106] DFAT Report at p.72
5.41 Iranian identity documents include sophisticated security features and are difficult to manufacture for fraudulent use. While it may be possible to obtain a genuine identification document with the intention of impersonating another person, DFAT assesses that sophisticated border control procedures would make it difficult to use such a document in order to leave Iran.
5.42 Local sources told DFAT that document fraud is ‘extremely difficult’ for primary forms of documentation like passports, national identity cards, shenasnameh and driver’s licences. Obtaining these documents is considered beyond the technical and financial means of most Iranians. Passports and national identity cards have advanced security features, including chips with the bearer’s biometric data, making them difficult to forge. These features also make fraudulent passports and national identity documents easy to detect. Secondary forms of documentation like military exemption cards are technically more vulnerable to fraud, as they have less robust security features, but are expensive to obtain. Paper-based documents, including court documents, summonses, bank letters, real estate documents and tertiary certificates, are relatively easier to obtain through fraudulent means.
5.43 Multiple layers exist to protect against the issuance of fraudulent documents. In addition to being prohibitive financially, the potential consequences for officials involved in the fraudulent procurement of primary or secondary forms of identification, if caught, act as a major deterrent (including imprisonment). While DFAT cannot discount the existence of corruption in relation to official documentation, it does not assess it to be prevalent, particularly in relation to primary and secondary forms of documentation. DFAT assesses that the chances of obtaining a fraudulent Iranian passport or a genuine passport through fraudulent means are low. While DFAT cannot discount the existence of corruption in relation to official documentation, it does not assess it to be prevalent, particularly in relation to primary and secondary forms of documentation. DFAT assesses that the chances of obtaining a fraudulent Iranian passport or a genuine passport through fraudulent means are low.
5.44 According to Article 34 of the Penal Code, the penalty for leaving Iran without a valid passport (or similar travel document) is between one and three years’ imprisonment, or a fine of between 100,000 and 500,000 rials (approximately AUD1-5 at current market rates). A special court located in Tehran’s Mehrabad Airport deals with such cases. The court assesses the background of the individual, the date of their departure from the country, the reason for their illegal departure, their connection with any organisations or groups, and any other circumstances. This procedure also applies to people who are deported back to Iran and who are not in possession of a passport containing an exit visa. The UK Home Office, in a February 2019 Country Policy and Information Note, assesses that individuals who exit Iran illegally and have not previously attracted the adverse attention of the authorities – for example, for their political activism – face a low risk of prosecution. If prosecuted, the most likely punishment is a fine. DFAT understands that, where prosecution for illegal departure occurs, it often does so in conjunction with other, unrelated offences.
5.45 Security procedures at Imam Khomeini International Airport in Tehran are robust. They include computerised cross-checking and multiple layers of physical security and document checking. Immigration officials are considered highly competent. A source told DFAT that it was ‘next to impossible’ to bypass security procedures at Imam Khomeini International Airport. DFAT assesses that the likelihood of an individual exiting Imam Khomeini International Airport with a fraudulent passport is extremely low. DFAT assesses that it is easier to depart Iran on a fraudulent passport at land border crossings, where immigration authorities deal with a greater volume of people and their capacity can be stretched.

Key Legal Topics

Areas of Law

Immigration
Administrative Law

Legal Concepts

Judicial Review
Procedural Fairness
Statutory Construction
Jurisdiction
Natural Justice

[2022] AATA 1727

26 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice