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
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…
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CaseChat Overview and Summary
The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a protection visa. The applicant, an Iranian national, claimed to fear harm from the Basij following an altercation at a road checkpoint, citing a "westernised" appearance and manner. The applicant also presented evidence of court summonses issued while in a third country and in Australia, as well as concerns regarding their mental health. The Tribunal was required to determine whether the applicant met the criteria for a protection visa under the Migration Act 1958, specifically whether they were a refugee or a person in respect of whom Australia had protection obligations due to a real risk of significant harm upon return to Iran.
The Tribunal's reasoning focused on the applicant's claims of fear and the available country information. It found that the applicant's claims regarding the altercation and subsequent summonses were vague and lacked sufficient credible evidence. Furthermore, the Tribunal considered the applicant's mental health concerns and concluded, based on country information regarding health services in Iran and the applicant's own evidence, that the applicant would be able to access necessary care and support for both physical and mental health conditions. The Tribunal determined that there was no real risk of significant harm to the applicant by reason of their physical or mental health upon return to Iran.
Consequently, the Tribunal was not satisfied that the applicant met the criterion of being a refugee under section 36(2)(a) of the Act, nor was it satisfied that Australia had protection obligations under the complementary protection criterion in section 36(2)(aa). The Tribunal affirmed the decision not to grant the applicant a protection visa.
The Tribunal's reasoning focused on the applicant's claims of fear and the available country information. It found that the applicant's claims regarding the altercation and subsequent summonses were vague and lacked sufficient credible evidence. Furthermore, the Tribunal considered the applicant's mental health concerns and concluded, based on country information regarding health services in Iran and the applicant's own evidence, that the applicant would be able to access necessary care and support for both physical and mental health conditions. The Tribunal determined that there was no real risk of significant harm to the applicant by reason of their physical or mental health upon return to Iran.
Consequently, the Tribunal was not satisfied that the applicant met the criterion of being a refugee under section 36(2)(a) of the Act, nor was it satisfied that Australia had protection obligations under the complementary protection criterion in section 36(2)(aa). The Tribunal affirmed the decision not to grant the applicant a protection visa.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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).CONCLUSIONS101.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).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).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).DECISION104.The Tribunal affirms the decision not to grant the applicant a protection visa.Jason PennellSenior MemberATTACHMENT - Extract from Migration Act 19585 (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 refugeeFor 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 persecutionFor the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c)the real chance of persecution relates to all areas of a receiving country.· Note: For membership of a particular social group, see sections 5K and 5L.A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.· Note: For effective protection measures, see section 5LA.A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a)conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b)conceal an innate or immutable characteristic of the person; or(c)without limiting paragraph (a) or (b), require the person to do any of the following:(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;(ii) conceal his or her true race, ethnicity, nationality or country of origin;(iii) alter his or her political beliefs or conceal his or her true political beliefs;(iv) conceal a physical, psychological or intellectual disability;(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a)that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b)the persecution must involve serious harm to the person; and(c)the persecution must involve systematic and discriminatory conduct.Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a)a threat to the person’s life or liberty;(b)significant physical harassment of the person;(c)significant physical ill‑treatment of the person;(d)significant economic hardship that threatens the person’s capacity to subsist;(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor 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 familyFor 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 measuresFor the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a)protection against persecution could be provided to the person by:(i) the relevant State; or(ii) a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b)the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a)the person can access the protection; and(b)the protection is durable; and(c)in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…Protection visas – criteria provided for by this Act…A criterion for a protection visa is that the applicant for the visa is:(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i) is mentioned in paragraph (a); and(ii) holds a protection visa of the same class as that applied for by the applicant; or(c)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i) is mentioned in paragraph (aa); and(ii) holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a)the non‑citizen will be arbitrarily deprived of his or her life; or(b)the death penalty will be carried out on the non‑citizen; or(c)the non‑citizen will be subjected to torture; or(d)the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e)the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a)it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b)the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c)the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…ANNEXURE ‘A’Dress Code[101][101] DFAT Report at p.483.127 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.503.136 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.655.4The 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.69Exit and Entry Procedures5.22 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.705.27 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.725.41 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.
Ratio Decidendi
Legal Principle Established
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