2012531 (Refugee)

The case concerned an applicant for a protection visa who claimed to be a national of Iran. The applicant alleged that he had been imprisoned and tortured in Iran due to his imputed political opinion and his association with his brother, who had encountered difficulties with Iranian security forces. The applicant also claimed to have converted to Christianity and to be homosexual, and that he had suffered familial abuse and estrangement due to his lack of adherence to Islamic faith. The Administrative Appeals Tribunal was required to determine whether the applicant faced a real chance of persecution or a real risk of significant harm if returned to Iran.

The Tribunal considered the applicant's claims in light of the complementary protection criterion under s.36(2)(aa) of the Migration Act 1958, which requires a substantial ground for believing that, as a necessary and foreseeable consequence of removal, there is a real risk of significant harm. The Tribunal examined evidence regarding the treatment of LGBTI persons in Iran, noting that such individuals face harassment, arrest, detention, assault, and potentially flogging from both state and private actors. The Tribunal also had regard to the applicant's mental health condition, including PTSD and major depressive disorder, and concluded that even low levels of harm would disproportionately impact him due to past assaults.

The Tribunal found that the applicant would continue to seek sexual relations with men in Iran, likely in public due to his precarious living situation, increasing his risk of encountering authorities or members of the public who would harass or harm him based on his sexuality. Furthermore, the Tribunal determined that the applicant's drug and alcohol use, combined with his sexuality and imputed anti-regime and anti-religious views, would likely lead to arrest, detention, and prosecution under Iran's morality laws, which are selectively enforced against such groups. The Tribunal concluded that these laws, and their enforcement, could result in serious harm, including beatings, assaults, rape, or flogging, constituting torture or cruel, inhuman, or degrading treatment. The Tribunal was satisfied that effective protection measures were not available to the applicant in Iran and that he could not reasonably modify his behaviour to avoid persecution, particularly concerning his innate characteristic of being homosexual.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies s.36(2)(a) of the Migration Act, finding that he is a person in respect of whom Australia has protection obligations because he is a refugee.