2012531 (Refugee)

2012531 (Refugee) [2021] AATA 4211 (17 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2012531
COUNTRY OF REFERENCE:                   Iran
MEMBER:Sean Baker
DATE:17 September 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 17 September 2021 at 1:19pm
CATCHWORDS
REFUGEE – Protection Visa – Iran – Ethiopia –conversion to Christianity – sexuality – being homosexual – applicant suffers from poor mental health – post traumatic stress disorder (PTSD) and major depressive disorder – membership of a particular social group – drug and alcohol addicts – victim to serious physical assaults – applicant will have difficulty obtaining effective treatment for his drug dependencies –state protection not available – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2
CASES
DBB16 V Minister for Immigration and Border Protection [2018] FCAFC 178
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 July 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Iran, applied for the visa on 16 June 2020. The delegate refused to grant the visa on the basis that the delegate did not accept that the applicant was a genuine convert to Christianity, nor that he was homosexual, nor that he had been imprisoned in Iran, and on that basis found that the applicant was not owed protection. The applicant provided a copy of the delegate’s decision to the Tribunal with his application for review.
This document lays out the long history of the applicant within the Australian protection system. He first arrived by boat in May 2013. He was granted a subclass 499 visa and associated bridging visa, which was cancelled when he was charged with criminal offences. In September 2017 he lodged an application for a SHEV which was refused in March 2018. This decision was referred to the IAA which affirmed the decision. Because of the decision in DBB16 V Minister for Immigration and Border Protection [2018] FCAFC 178, which affected the applicant’s case, and by operation of s. 91K, his SHEV application was invalid, and the applicant was able to apply for a TPV, which he did in June 2020.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant faces a real chance of persecution or will face a real risk of significant harm if returned to Iran. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Claims
The applicant provided an Iranian national identity card and a copy of and certified translation of his duplicate Shenasnameh (birth certificate). He departed Iran lawfully using his own identity and his own passport. On the basis of this information I accept that the applicant is a national of Iran. There is no evidence he has a right to enter and reside or nationality of any other country.
In his statement of June 2020 attached to his protection application he claims that he departed Iran because he was imprisoned due to his imputed political opinion. He said his father had to provide documents as surety so the applicant could be released.
He claimed that he was imprisoned because the security force Ettelaat [the common name for the Ministry of intelligence] were looking for his brother who had had problems with Seppah [the revolutionary guard corps tasked with maintaining the Islamic system] and the Basij [the paramilitary volunteer militia], although the applicant did not know why as he was not in contact with his brother and when he came to Australia they did not talk about this.
The applicant was taken to one prison for a month but does not know where, as his eyes were covered when he was taken there. He had just returned to his family home in Tehran from his work in [another city]. During the month of his imprisonment he was beaten and interrogated. He was then taken to [a named] prison for one year where he was tortured and held in a cell with 30 – 40 other people. He was accused of helping his brother and being involved with his brother’s activities. The applicant claims to have been badly beaten one night and had a dream of a bright figure who he believes to be Jesus. The applicant told other prisoners of his dream, some laughed at him while others attacked him with a bottle. The applicant claims he was the subject of ongoing attacks including sexual assault.
After being released form prison he left Iran [number of] days later and travelled to Australia via [other countries].
The applicant claims his mother is a member of the Basij and very religious. This caused problems in the applicant’s family life as he claims from a young age he did not believe in the Muslim faith, wish to pray or go to the Mosque. The applicant claims to have been frequently beaten by his mother and older brother and this has led to estrangement from his family in Iran.
Following his arrival and release from detention in Australia, the applicant claims he was involved in a church in [WA] and was baptised [in] 2013. He attended church on a regular basis and engaged in voluntary work with the church. The applicant claims to have remained in occasional contact with the church once he returned to detention.
The applicant informed his family of his conversion to Christianity. He claims his mother has disowned him as a result, and threatened to report his conversion should he return to Iran. He fears that if returned to Iran he will be prosecuted for apostasy which is punishable by the death penalty. The applicant fears he will not be able to practice his adopted religion if returned to Iran.
In detention in Perth he was in contact with the Church.
He has been attacked a number of times whilst in detention in Australia. Some of these attacks have been quite serious.
His mental health is not good. He takes medication to sleep. He still believes in Christianity but does not participate in activities as his mental health is not good. He is very isolated in detention.
He is gay and cannot live in Iran because it is a Muslim country. He did not tell anyone about this before as it is very secretive for him. He did not talk about his sexuality before, because, in Iran, people think that being gay is something bad. If he returned to Iran, he would not be safe because being gay is a crime.
The applicant had many boyfriends in Iran and Australia. He had relationships in Iran and Australia, but nobody knew about them, and his family does not know about him being gay.
The applicant has one screenshot of a messenger chat with one of his boyfriends called [Mr A]. They were in a relationship in Perth in 2016. They have not been in a relationship for a long time. He is not in a relationship at the moment.
The applicant fears that if he returns to Iran, he will be imprisoned again as he was released on bail. He will face harm due to his conversion to Christianity and because of his sexuality, being homosexual.
The applicant’s mother is a member of the Basij, and she has threatened she will tell the authorities that he converted to Christianity while in Australia if he returns. She had disowned him because of his conversion.
There is nowhere in Iran he could safely return to. The applicant fears that as soon as he enters the country, he will be arrested. The authorities will want to know where he has been all these years. The applicant fears he will be imprisoned again and tortured.
The agents of the government have perpetrated the persecution the applicant has suffered in Iran, and therefore, the government is unwilling or unable to prevent the persecution.
In addition to the above concerning his adopted religion the applicant is also fearful of persecution if returned to Iran as he left Iran whilst on bail. As a result he fears that there is no part of Iran where he could be safe if returned.
The applicant notes in his statement that he was assisted in making the statement by a Farsi interpreter. He was also assisted by a registered migration agent.
To the Department the applicant provided:
·     A copy of his Certificate of Baptism issued by the [church] on [date] 2013;
·     A copy of letter from the [church] dated 30 July 2017;
·     A copy of a messenger chat with one of his claimed boyfriends called [Mr A];
·     Documents relating to three incidents in detention in 2017 and 2018
To the Tribunal the applicant provided a copy of the delegate’s decision. I have also been provided by the Department with medical records for the applicant which he consented for me to acquire in order to consider his mental health in making this decision.
The applicant also provided, under cover of a submission, a statutory declaration made 4 June 2021. This largely restated his earlier claims. He explained that he had been acquitted in December 2018 of the criminal acts which had led to him being placed in detention. He outlined his mental health which has got worse since he was assaulted a number of times in detention. He described the assaults. He said his mental health is not good, he cannot sleep well, he has trouble focusing and has difficulties with his memory. He has been scared of people since the attacks and finds it difficult to be around others.
He explains that he underwent a neuropsychology assessment in December 2019 which found that he had had trouble concentrating and maintaining his attention throughout the assessment and had difficulty with some memory tasks, that his neuropsychological profile is indicative of someone who suffers from Posttraumatic Stress Disorder (PTSD) and that he presented as someone who has significant symptoms related to trauma, he is likely to experience cognitive difficulties when preoccupied by thoughts of trauma, his fluctuating attention (consistent with PTSD) will impact his performance in all cognitive areas and that he requires treatment for PTSD and drug use.
He explained that he had been having counselling for a while from [Centre 1] and then [Organisation 1] when he was moved to Villawood. He is currently on medications which he believes includes [details deleted]. He [also had another medical condition], having been diagnosed when he came to Australia and has received treatment.
He says that he has had many traumatic experiences in his life including sexual abuse from his brother [when] he was a boy, he was beaten by his mother and brother, he was tortured and assaulted including serious sexual assault in prison in Iran. He has now spent over four years in immigration detention in Australia where he has suffered numerous physical assaults against him by other detainees in immigration detention which has impacted him badly.
He briefly outlines his drug use in Iran – he used drugs when he was having problems with his family because he would not adhere to Islam, mostly his mother and brother. Using drugs helped the applicant to forget his problems. He sometimes attended Narcotics Anonymous meetings in Iran. People talked together at these meetings. He was not a member for a long time, but he went for a while. He also used to use drugs in Australia and is currently taking methadone.
He claims that if he was forced to return to Iran he would be arrested, detained and killed by the authorities because of his anti-government opinions and un-lslamic behaviour, his conversion to Christianity and his identity as a gay man. He also fears that his mental health issues and drug use will make him a bigger target for the authorities. He is also scared that he will be harmed and possibly killed by his family. He went on to detail his fears of return to Iran consistent with the above with some further detail, as discussed below where relevant.
The applicant’s representative provided a post hearing submission which has been discussed, where relevant, below.
Mental health
It was evident at the first hearing that the applicant was unwell. He said that he had been assaulted the week before the hearing and that his mental health was not good. The applicant was significantly distressed and it was evident that the hearing could not proceed. I adjourned the hearing. There was a considerable delay whilst the Tribunal attempted to gain the applicant’s medical records from the detention centre. In the intervening time the applicant gained representation which has assisted him greatly in being able to present his case fairly but which also contributed to significant delay as his representatives changed.
It is clear from the copious medical records before me that the applicant suffers from poor mental health. This has been evident from both hearings I have held with the applicant. It is confirmed by the health reports from detention health.
The neuropsychological report the applicant refers to above was produced on 8 January 2020 and indicated a neuropsychological profile consistent with post-traumatic stress disorder (PTSD) with underlying intellectual functioning in the ‘low average’ range. It found that the applicant’s cognitive functioning may also be adversely affected by ongoing consumption of excessive levels of caffeine and illicit substances.
The medical records from detention indicate that the applicant has experienced a number of assaults, has admitted to taking substances whilst in detention, and has threatened self-harm when he was scheduled to be moved to a different compound.
The treatment letter from [Centre 1] dated June 2021 is helpful, providing a summary of his psychological functioning and an assessment of how his psychological state may affect his ability to participate. The letter has been drafted after a number of contact sessions with the applicant, initially face to face and then over the phone. The letter states that the applicant presented with symptoms of post-traumatic stress disorder, and identified the assault against him at [an] IDC as the incident causing the most current distress and impairment. The letter also notes that the applicant presented with symptoms and signs of depression. The letter noted that the applicant had reported a decline in his ability to concentrate, comprehend information and make decisions as well as problems with attention and decision making and low level auditory hallucinations. The letter notes that the applicant presented at that time with symptoms consistent with major depressive disorder and post-trauma symptoms, and the counsellor anticipated that the applicant may struggle to understand and express himself under the stress of a hearing and that, if this were to occur, he would likely benefit from having question repeated or re-worded, having sufficient time to respond, and being offered the opportunity for breaks if appropriate.
On the basis of the information before me I accept that the applicant suffers symptoms consistent with post traumatic stress disorder (PTSD) and major depressive disorder. I accept that this may lead to the applicant struggling to understand and express himself.
Having regard to this information, I conducted both hearings in a manner consistent with the suggestions from the counsellor at [Centre 1] and with the Tribunal Guidelines on Vulnerable Persons and Guidelines on the Assessment of Credibility.
I have also had regard to what I accept of his symptoms in assessing the credibility of his claims below. However, for reasons explained below I do not accept that the symptoms the applicant suffers can explain the concerns raised.
Part of this concern is that, as noted in the medical information before me and in particulate in the letter from [Centre 1], the assaults on the applicant whilst in detention in Australia appear to be identified by him as the proximate issue causing him the most distress and impairment. I do not accept that the suffering of the accepted symptoms in any way gives greater weight to the applicant’s claims of being detained and harmed in Iran, which for the reasons below I do not accept.
In the post hearing submission, the issues affecting the applicant are summarised as follows:
1. suffers from serious mental health issues including PTSD and depression (as has been accepted by the Member),
2. has been the victim of numerous and serious physical and sexual assaults, including as a child and more recently while in detention;
3. has spent many years in detention, including the past four years in immigration detention in Australia; and
4. experiences considerable difficulty with his memory and states that he sometimes has trouble recalling details of past events he experienced in Iran.

On the basis of the information before me, as above, I have accepted that the applicant suffers symptoms consistent with PTSD and major depressive disorder, I accept that he has been victim to serious physical assaults in Australian detention (and as stated below I accept that he has been the victim of sexual assaults by his brother in Iran), I accept that he has been detained in Australia for the past four years.
I also accept on the medical evidence presented to me that the applicant exhibits underlying intellectual functioning in the ‘low average’ range and that his cognitive functioning may be adversely affected by ongoing consumption of excessive levels of caffeine and illicit substances.
I appreciate the information in the [Centre 1] letter that the applicant may struggle to understand and express himself.
On the basis of this information I accept that the applicant is a particularly vulnerable person and I have taken this into account when assessing his evidence below.
Consideration
This case presents with significant credibility concerns. Due to his distress and to his clear struggles with mental health I adjourned the first hearing at which the applicant appeared unrepresented and in distress. At the second hearing the applicant had the benefit of representation and appeared much calmer. The applicant through his representative had the benefit of providing pre- and post-hearing submissions.
Having carefully considered the information on his mental health I have come to the view that despite my significant concerns with some of his evidence, when looked at fairly, in light of his vulnerabilities as set out above, I have accepted large parts (although not all) of his evidence. His evidence to me has been affected by his trauma, his mental heath issues, and his uncertain current drug dependence.
The accepted parts of his claims are, largely, related to his drug and alcohol use and what I accept of his behaviour in Iran when he was drug and alcohol affected, his relationship with his family and, on balance, my acceptance that he has sex with men. In accepting these claims as fact I have had regard to the weight of evidence which indicates that these matters are established.
The applicant’s drug and alcohol dependence and treatment in Iran
The medical records before me indicate that the applicant is a long-term drug user. He has provided detailed credible information at all stages of his use of heroin and alcohol during his time in Iran. He has provided detailed and credible information about his heroin and methamphetamine use in Australia, and has been on Suboxone and Methadone programs whilst in detention. He has also admitted to medical staff to using prescription medicines that were not prescribed to him whilst in detention.
It is accepted that the applicant is a long-term drug user who was using opioids in Iran for a considerable period and has continued to use opioids and other drugs whilst in Australia including in detention.
I also accept that the applicant has extensively used alcohol in both Iran and Australia. His evidence on this point has been consistent over time. Alcohol use in Iran is common, with country information demonstrating that alcohol is widely consumed in Iran, with recent estimates that approximately 35 percent of respondents drunk alcohol occasionally or regularly and the incidence being higher in cities.[1] The very common co-use of alcohol with opioids and other drugs of addiction is also clearly established and lends weight to this claim.[2]
[1] 'Iranians' Attitudes Towards Religion: A 2020 Survey Report', The Group for Analyzing and Measuring Attitudes in Iran, August 2020. See also Lankarani, KB, Afshari, R., Alcohol consumption in Iran, Correspondence, The Lancet, VOLUME 384, ISSUE 9958, P1927-1928, NOVEMBER 29, 2014; DFAT Country Information Report – Iran, 14 April 2020, 2.33.
[2] See, for example, Witkiewitz K, Vowles KE. Alcohol and Opioid Use, Co-Use, and Chronic Pain in the Context of the Opioid Epidemic: A Critical Review. Alcohol Clin Exp Res. 2018;42(3):478-488.
On the basis of the above information, I accept that the applicant has drug and alcohol dependencies.
The applicant gave evidence, consistent with evidence he has given earlier, that he had been detained by the police several times when he was drunk and/or drug affected in Iran. He detailed that he was detained by either the police of Basij on several occasions because he was drunk and using abusive language, taken to a police station and then taken to a Court where he would be charged and then released. He claimed that this occurred because he was drunk in public and had made comments which were taken by authorities to be against morality and against the regime. Having regard to the applicant’s presentation and demeanour at the hearing, I accept that this did occur, and he did make these comments. I accept that he was detained on a number of occasions because of his drunkenness/being drug affected, in conjunction with his making comments taken to be anti-morality/anti-regime. I accept that the applicant has been charged and officially sanctioned for his public drunkenness on more than one occasion in the past in Iran.
Relationship with family
I accept as credible because it was provided naturally with detail and has been consistent, his claims that he has an unhappy relationship with much of his family, in particular his mother and the brother who remains in Iran. I accept that this brother may have sexually assaulted the applicant throughout the applicant’s childhood. I accept that his mother may be extremely religious, a devout Muslim as he claims. I accept that both his mother and brother may be affiliated with the mosque. I am willing to accept that his mother and the brother in Iran have some form of association with or affiliation with the Basij, who often operate out of local mosques. I accept that they may have pressured him and in his brother’s case abused him for not being religiously observant. I accept on his evidence that he has some level of contact and support from his father.
The applicant’s sexuality
I found the applicant’s evidence on his sexuality to be brief and undetailed. Having carefully considered his evidence at hearing and the supporting evidence provided, I have accepted, on balance, that the applicant has and will continue to have sexual relationships with men.
Part of the difficulty is that the applicant may not, at this point, identify as homosexual, as opposed to a man who (exclusively or otherwise) has sex with men. I accept his evidence which was given at the hearing in a frank and unadorned manner that he learned about sex because of the sexual abuse he suffered from his older brother, that he had multiple sexual relationships with men (but no partners) while he was in Iran, and that he had a number of sexual relationships with men in Perth prior to his detention. He also claimed that people in detention including guards were aware that he would have men in his room, but this has not been possible to verify.
I also have carefully considered and accept that the applicant may be deeply uncomfortable with his sexuality and may have real difficulty talking about it. I also note that the applicant has been assessed as having underlying intellectual functioning in the ‘low average’ range and that his cognitive functioning may be adversely affected by his drug use.
These above factors for me provide an intelligible and plausible explanation for his delay in disclosing his sexuality to a decision maker. It also explains, I think, the lack of detail in his evidence to me.
These claims are strengthened by the messages the applicant has been able to provide from two men. The applicant and these men were contacting each other in Perth in 2016, prior to the applicant’s detention. The messages are clearly sexual in nature and with the intention of arranging a sexual hook up. I have some concerns that I was provided only with printouts of these messages, without being able to see whether or how they were displayed on the applicant’s phone, on balance I accept that these printouts are accurate representations of contacts the applicant had with two men, [Mr A] and [Mr B] in Perth in 2016, that the contacts were for the purpose of sex between the applicant and these men, and that at least in the case of [Mr A] that the applicant did have a sexual relationship with [Mr A] for some period. I accept as consistent with this information that the applicant also had sex with other men including a fellow detainee.
I have also had regard to information provided in the post hearing submission which quoted from a qualitative study examining how gay Iranian men cope with systematic suppression under Islamic law found that:
In spite of the legal and health-related risks associated with alcohol and drug use in Iran, gay men are still misusing these substances as part of their coping mechanism for dealing with the stress and anxiety caused by their social isolation, discrimination and systematic suppression. It has been observed that many members of the gay population use alcohol and drugs to overcome the pain of rejection, isolation, and discrimination (e.g. Varney 2016; Wolitski et al. 2008).[3]
The applicant’s faith
[3] Yadegarfard, M. How are Iranian Gay Men Coping with Systematic Suppression Under Islamic Law? A Qualitative Study. Sexuality & Culture 23, 1250–1273 (2019) <>
Having regard to what I have accepted above of his circumstances and his consistent evidence on this point, I accept that the applicant did not go to mosque or undertake any of the other religious and social conventions expected of Muslims in Iran. I accept that this brought him into conflict with his observant family particularly his mother and older brother. I accept these elements of the applicant’s claims.
I do not accept the applicant’s claims to be a Christian and a Christian convert. His evidence on his reasons for interest in Christianity, his claimed exposure to Christian images and ideas in Iran and his level of faith in Australia all indicate to me that he is not genuine or sincere in his professed Christian faith.
His imprisonment in [a named] prison
The applicant claims to have been imprisoned in [a named] prison for a considerable period of time in 2012 – 2013. There are several significant, serious problems with this claim. The first being that he claimed initially he was imprisoned because of his younger brother (who is in Australia) and his younger brother’s political opinion but, despite living with his younger brother in Australia for some time, was unable to explain in any detail what this political opinion may have been. He then claimed that it was a combination of his own actual or imputed political opinion and that of his younger brother’s but provided an implausible explanation of not being aware of this until told this by his father in 2018. The second major concern is that the applicant obtained his Shenasnameh at a time he claimed to have been detained, and contemporaneous country information demonstrates convincingly that someone must attend the relevant office in person to obtain a Shenasnameh. These concerns lead me to disbelieve he was jailed at [a named] prison.
However, I do accept, as above, that the applicant has been detained after consumption of alcohol/drugs and using abusive language. I consider that the applicant has exaggerated such a detention in this claim.
Will the applicant be persecuted for any reason if he returns to Iran in the reasonably foreseeable future?
I accept that the applicant suffers serious mental health issues including PTSD and depression, accompanied by underlying intellectual functioning in the ‘low average’ range and impaired cognitive functioning as a result of his drug use. I accept that his mental health and intellectual and cognitive functioning will exacerbate the below concerns.
I accept that if returned to Iran the applicant will not have the support of his family, except some limited support from his father. I find that, given what I have accepted above, he will not be able to live with his family. Given he has had only limited employment in Iran, and has had limited employment in Australia followed by a number of years in detention, I consider that there is a high chance the applicant would be unable to gain employment if he is returned to Iran. This will lead to the applicant having a precarious living situation, or potentially being rendered homeless, which I consider will further exacerbate the below concerns.
In the post hearing submission, it is stated that if the applicant returns he will have difficulty obtaining drug treatment services, and therefore behave publicly in a manner likely to bring him to the attention of authorities, reviving his issues with them in the past. It further argues that the applicant’s un-Islamic behaviour in Iran in the context of his consumption of alcohol, is highly likely to recur if he is returned to Iran.
Broadly speaking, Iran has for a considerable period taken a harm reduction approach to drugs of dependence excluding alcohol.[4] Narcotics Anonymous and other NGOs and community groups work to support drug users.[5] Drug trafficking is criminalised and previously attracted the death penalty, but 2017 amendments to the laws saw the imposition of the death penalty in trafficking cases fall significantly.[6] The most recent DFAT report states that ‘[l]ocal NGOs report that police do not generally victimise or harass drug addicts, but occasionally receive orders to round them up.’[7] The report goes on to state that as at June 2017 there were 1, 300 rehabilitation centres for drug addicts across the country and nearly 7, 500 treatment and harm reduction centres, largely run by NGOs, and that these services were largely concentrated in Tehran.[8] Methadone programs are available.[9] At a recent symposium between the United Nations Office on Drugs and Crime and the Drug Control Headquarters of Iran, the head of the Iranian State Welfare Organisation Mr Vahid Ghobadi Dana noted that Iran had “established and launched more than 9 thousand centers for treatment, rehabilitation and capacity building that can provide services to around 1,400,000 individuals annually, which has made the country the biggest treatment and harm reduction network in the region. He also referred to significant expansion of Methadone Maintenance Treatment (MMT) in most of drug abuse treatment centers in the country in the last two decades and stated that with more than 7 thousand MMT centers, Iran is considered as the biggest MMT network in the region.”[10] However, other reports indicate that narcotic use, especially at the higher end, and dealing, continue to attract criminal sanctions, and that in particular the use of flogging as a punishment for users as well as dealers is widespread in Iran.[11] The DFAT report confirms other sources which indicate that there is significant social stigma against drug addicts in Iran which may undercut efforts of the government and NGOs to address issues of drug dependence.[12]
[4] See Alam-Mehrjerdi Z, Abdollahi M, Higgs P, Dolan K. Drug use treatment and harm reduction programs in Iran: A unique model of health in the most populated Persian Gulf country. Asian J Psychiatr. 2015 Aug;16:78-83. doi: 10.1016/j.ajp.2015.06.002. Epub 2015 Jun 29. PMID: 26168763. See also Alavi M, Moghanibashi-Mansourieh A, Radfar SR, Alizadeh S, Bahramabadian F, Esmizade S, Dore GJ, Sedeh FB, Deilamizade A. Coordination, cooperation, and creativity within harm reduction networks in Iran: COVID-19 prevention and control among people who use drugs. Int J Drug Policy. 2021 Jul;93:102908. doi: 10.1016/j.drugpo.2020.102908. Epub 2020 Aug 17. PMID: 32819776; PMCID: PMC7430297.
[5] Farahani, D., Drugs in Iran: A Meeting With Narcotics Anonymous, IranWire, 27 March 2020, Amnesty International, Death sentences and executions 2018, 10 April 2019. DFAT Country Information Report – Iran, 14 April 2020.
[7] DFAT Country Information Report – Iran, 14 April 2020, at 2.30.
[8] DFAT Country Information Report – Iran, 14 April 2020, at 2.31.
[9] Lankarani, KB, Afshari, R., Alcohol consumption in Iran, Correspondence, The Lancet, VOLUME 384, ISSUE 9958, P1927-1928, NOVEMBER 29, 2014; DFAT Country Information Report – Iran, 14 April 2020, 2.33.
[10] UNODC, International Day Against Drug Abuse And Illicit Trafficking Commemorated By The Government Of Islamic Republic Of Iran And UNODC Iran, 29 June 2021,
[11] Abdorrahman Boroumand Center for Human Rights in Iran and Harm Reduction International, Iran’s Drug Policy and the ICCPR, June 2020,
[12] DFAT Country Information Report – Iran, 14 April 2020, at 2.30.
As set out in the information provided in the post hearing submission, the consumption, sale and manufacture of alcohol is prohibited under religious rules and the Iranian Penal Code with the exception of recognised religious minorities who have limited use exemptions. The country information also demonstrates that alcohol is widely consumed in Iran, with recent estimates that approximately 35 percent of respondents drunk alcohol occasionally or regularly.[13] There is also information that the Iranian authorities have put in place alcohol treatment systems with an alcohol specific national harm reduction strategy in 2011-2012, and the formation of inpatient and outpatient treatment services.[14]
[13] 'Iranians' Attitudes Towards Religion: A 2020 Survey Report', The Group for Analyzing and Measuring Attitudes in Iran, August 2020. See also Lankarani, KB, Afshari, R., Alcohol consumption in Iran, Correspondence, The Lancet, VOLUME 384, ISSUE 9958, P1927-1928, NOVEMBER 29, 2014; DFAT Country Information Report – Iran, 14 April 2020, 2.33.
[14] Basma Al-Ansari, Alireza Noroozi, Anne-Marie Thow, Carolyn A. Day, Masoud Mirzaie, Katherine M. Conigrave, Alcohol treatment systems in Muslim majority countries: Case study of alcohol treatment policy in Iran, International Journal of Drug Policy, Volume 80, 2020,
The DFAT report states that:
Prosecutions for alcohol consumption are not common. DFAT understands that police do not actively investigate or seek to entrap individuals consuming alcohol in their own homes, and will generally act only if the activity comes to public attention or if specifically instructed to do so. Payment of bribes is common. Where enforced, the punishment for alcohol consumption is normally a fine, usually paid on the spot. Floggings may be imposed periodically, but are rare. NGOs working in the health sector report that the government has changed its approach to the use of alcohol in recent years from a purely law and order focus to one emphasising treatment and rehabilitation. Several official alcohol treatment and rehabilitation centres operate in major cities, along with support groups such as Alcoholics Anonymous, and authorities are more prepared to allow NGOs to work in this field.[15]
[15] DFAT Country Information Report – Iran, 14 April 2020, at 2.34.
Country information supports the claim that punishments are more severe for repeat offenders. Under Iran’s Penal Code, if a perpetrator is convicted and sentenced three times for consuming alcohol, the penalty on the fourth occasion is death.[16] Whilst there have been a number of reports about the execution of a man in July 2020 for repeated alcohol consumption, this was the first documented case in 30 years.[17]
[16] ‘Iran: Man executed for drinking alcohol’, Amnesty International, 10 July 2020, 20200713083248; 'Iran: 73-year-old Retired Pilot Sentenced to Death for Alcohol Consumption', Iran Human Rights, 21 February 2021, 20210222090517.
[17] 'Annual Report on the Death Penalty in Iran 2020', Iran Human Rights, 30 March 2021, p.54.

I accept that while there are a considerable number of drug treatment services and MMT centres in Iran, there is a likelihood the applicant will not be able to access them. This is firstly because as above he is highly likely not to have a stable place to live, he may live with friends, short term accommodation, or be homeless. Drug treatment services often require a person to have a fixed place of residence. Drug treatment services are most effective when a person has a fixed, stable place of residence. Secondly, as supported by the DFAT report, there is considerable social stigma against drug addicts, and this affects the ability of addicts to seek treatment and help for their addictions. For these reasons, I accept that the applicant will have difficulty obtaining effective treatment for his drug dependencies.
On the same reasoning I accept that the applicant will have difficulty obtaining effective treatment for his alcohol dependency.
If returned to Iran, I accept therefore that the applicant will continue to have drug and alcohol dependencies. I accept that he will take opioids, including but not necessarily limited to methadone, and alcohol. I accept that when he is drug and alcohol affected he will use abusive language which may be construed to be against morality/anti-regime by Basij, police or other authorities. I accept that he will continue regularly to engage in these behaviours and for this reason that there is a considerable chance that he will be subjected to penalties as a repeat offender, as detailed above.
I accept that the applicant will continue to have sex with men if he returns to Iran. Whilst the information from the DFAT report, supported by other reports, is that much of the interactions between men who have sex with men is online,[18] the applicant will still engage in sexual interactions with other men. Given I have accepted his precarious living situation, these are more likely to occur in public. I have also had regard to credible information that LGBTI persons in Iran are victimized both by state and private actors, in part because those actors know they can get away with it, that Basij and police harass, arrest, detain and assault individuals, often in parks and cafes, and credible reports of il treatment and torture against such persons.[19] Both DFAT and the Human Rights Watch report indicate that a number of offences targeted at LGBTI persons are punishable with floggings.[20] There are reports that men who solicit sex with men at well known pick up points have been assaulted by the Basij or police or strangers.[21] A recent UK Home Office report states that ‘Iran’s security forces – including police and the Basij [morality police] – rely upon discriminatory laws to harass, arrest and detain those they suspect of being lesbian, gay and bisexual. LGB persons face a variety of abuse by government authorities including beatings, verbal assaults, rape, sexual assault and torture.[22] The report goes on to note that ‘In general Iranian society does not accept LGBTI persons. Many find themselves subject to familial violence, societal discrimination, abuse, harassment and in some cases physical attacks.[23]
[18] DFAT Country Information Report – Iran, 14 April 2020, at 3.153.
[19] Human Rights Watch, Iran: Discrimination and Violence Against Sexual Minorities, 15 December 2010, Iran: Discrimination and Violence Against Sexual Minorities | Human Rights Watch (hrw.org)
[20] DFAT Country Information Report – Iran, 14 April 2020; Human Rights Watch, Iran: Discrimination and Violence Against Sexual Minorities, 15 December 2010, Iran: Discrimination and Violence Against Sexual Minorities | Human Rights Watch (hrw.org).
[21]Yadegarfard, M. How are Iranian Gay Men Coping with Systematic Suppression Under Islamic Law? A Qualitative Study. Sexuality & Culture 23, 1250–1273 (2019). UK Home Office, Country Policy and Information Note Iran: Sexual orientation and gender identity or expression, June 2019, CPIN_-_Iran_-_SOGI_-_v3.0__June_2019__EXT.PDF (publishing.service.gov.uk)
[23] UK Home Office, Country Policy and Information Note Iran: Sexual orientation and gender identity or expression, June 2019, CPIN_-_Iran_-_SOGI_-_v3.0__June_2019__EXT.PDF (publishing.service.gov.uk)
I find that the applicant will continue to seek out sex with other men as he has in Iran and Australia. Given what I have accepted of his precarious living situation, this will necessarily be in public rather than online and in private. In doing so the applicant has a high chance of coming to the attention of the Basij, police or even strangers who will harass and may harm him on the basis of his sexuality.
When considered carefully, the situation of the applicant if he is returned to Iran will be one of precariousness and the constant risk of him being seriously harmed by state actors or members of the public emboldened by the attitudes of the authorities.
I further note that the applicant has clearly been profoundly affected by the assaults he has suffered in detention in Australia, as well as his accepted history of trauma at the hands of his older brother. This is relevant to the assessment of his claims because I find that even very low forms of harm the applicant may suffer will, as a result of the assaults he has suffered here, impact the applicant disproportionately.
If the applicant returns to Iran he will struggle to find employment. He will not have the support of his family except some limited support from his father. He will be unable to live in the family home. He will struggle to find accommodation. He will live a precarious life and one that necessarily will be lived more in public given I accept his precarious employment and accommodation situation. He will be poor, unemployed, and unable to find stable accommodation. His continued drug use and alcohol use will exacerbate this. Being in the public eye, the applicant will be more susceptible to policing by the police or Basij. I find that there is a real chance, that is one that is not remote, that the applicant will be detained, arrested and charged for reasons of his alcohol use, his drug use, and his sexuality as a man who has sex with men.
The applicant may be arrested and detained and charged under the morality laws of Iran as he has been in the past. I do not accept that these laws are laws of general application because the country information is clear that they are enforced selectively on those considered to be un-Islamic. In assessing the laws’ application I have had regard to the fact that I have accepted the applicant is a drug and alcohol addict and is also a man who has sex with men and there is a real chance this would be known or inferred by the authorities. He would be prosecuted, if he is prosecuted, because of his membership of a particular social group of homosexuals or homosexuals who seek sex in public places, as a drug and alcohol user who is intoxicated in public places and uses offensive language, and for the relate reason of an imputed anti-regime and anti-religion opinion. These are not laws of general application but are enforced only against such groups, and impact adversely upon these particular groups.[24] Further, the country information makes plain that flogging is a common punishment of drug, alcohol and same sex offences, and I consider that flogging constitutes a form of torture or degrading and inhuman punishment. Charging the applicant with such laws necessarily exposes the applicant to these punishments and I find that even if I accepted it was a law of a generally applicable law (which I do not), the manner of enforcement goes beyond what is appropriate to achieve a legitimate government object according to the standards of civil societies.[25]
[24] Chen Shi Hai v MIMA (2000) 201 CLR 293; MMM v MIMA (1998) 90 FCR 324.
[25] Applicant A101/2003 v MIMIA [2004] FCA 556 at [24]–[25].
I find that there is a real chance, that is one that is not remote, that the applicant will be arrested, detained and charged under morality laws which are not laws of general application but are discriminatorily enforced against persons such as the applicant. I further find that there is a real chance the applicant will be, either in this process or separate tot his process, beaten, assaulted, raped or otherwise seriously harmed by the Basij, police or members of the public who will infer or impute the applicant to be a homosexual man as well as a drug user and alcoholic.
I find that the applicant fears being persecuted for reasons of his membership of particular social groups of drug users, alcohol users, drug and alcohol addicts, for reasons of his imputed political and religious views, and his membership of the particular social group of men who have sex with men. I accept, on the country information and what I have found of his personal situation if he returns, that there is a real chance he will be persecuted for these reasons. I find that such persecution will occur in any urban or regional area of Iran and therefore that the real chance of persecution relates to all areas of the country. The harm will be carried out by, or condoned or sanctioned by the authorities and therefore effective protection measures are not available to the applicant. There are no reasonable steps the applicant could take to modify his behaviour – in relation to his sexuality this is a protected characteristic being innate or immutable to the applicant. In relation to his drug and alcohol use I have found above that the applicant, because of his situation on return, will not be able to access support services and cease using drugs and alcohol.
I further find that the reasons I have identified above will be the essential and significant reasons, for the persecution by the authorities or those emboldened by the authorities, the persecution will be systematic ad discriminatory in that it will be non-random and targeted, and that it will constitute serious harm, being beatings, assaults, rape or floggings. Even the arrest and detention of the applicant may, in his situation given his mental health after the assaults in detention, constituted serious harm.
The applicant therefore satisfies s.5J and comes within the meaning of a refugee under s.5H.
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Sean Baker
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(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.
…
36     Protection visas – criteria provided for by this Act
…
(2)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.
…

[2021] AATA 4211

17 September 2021

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