2012787 (Refugee)

2012787 (Refugee) [2021] AATA 3973 (31 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2012787
COUNTRY OF REFERENCE:                   Iran
MEMBER:Louise Nicholls
DATE:31 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 August 2021 at 1:12pm
CATCHWORDS
REFUGEE – protection visa – Iran – arrival at Territory of Ashmore and Cartier Islands – initial application refused by department, Immigration Assessment Authority and at IAA review – legislative reversal of original unauthorized maritime arrival status – eligibility to apply for tribunal review – tribunal refusal upheld by Federal Circuit Court – issue of validity of first visa application where applicant held TSH visa and has not left Australia since ceasing to hold that visa not addressed – departmental refusal for second SHEV and subsequent tribunal review – protracted immigration history – inconsistent evidence – relationship with married woman – subsequent relationship with second unmarried woman – abduction – torture – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 48B, 65, 91L, 424A, 499
Migration Regulations 1994
CASES
DBB16 v Minister for Immigration and Border Protection [2018] FCAFC
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

The applicant claims to be a citizen of Iran and is [age] years old. He was born in Tehran.
The applicant arrived by boat at the Territory of Ashmore and Cartier Islands [in] May 2013. The applicant was taken to, and arrived in, Darwin [in] May 2013.
The applicant attended an arrival interview with an officer of the Department of Immigration and Citizenship on 21 June 2013.
Procedural history
This matter has had a protracted procedural history for the reasons set out below.
First application for protection.
Departmental records indicate that on 25 July 2013 the applicant was granted a (Class UJ) Humanitarian Stay (Temporary) Safe Haven (TSH) visa, and he has not left Australia since ceasing to hold a TSH visa.
Records also show that on 29 September 2015 a s.46A bar was lifted to allow the applicant to make an application for a Temporary Protection (Class XD) (Subclass 785) visa/Safe Haven Enterprise (Class XE) (Subclass 790) visa (SHEV).
The applicant applied for a SHEV on 15 September 2017. At that time the Department considered that the applicant was a “fast track” applicant[1] and that his application was reviewable by the Immigration Assessment Authority (IAA).
[1] A ‘fast track applicant’ is an unauthorised maritime arrival who entered Australia on or after 13 August 2012 and before 1 January 2014, who has not been taken to a regional processing country, in respect of whom the Minister has waived the s.46A bar, and who has made a valid application for a protection visa. Decisions to refuse protection visas processed under ‘fast track’ arrangements are subject to review by the IAA. The IAA is an office established within the MRD of the AAT.
The applicant attended an interview with an officer of the Department on 6 July 2018 in connection with his application for a SHEV. The application was refused on 9 August 2018 and the application was referred to the IAA for review. The visa refusal was affirmed by the IAA on 26 September 2018.
Up until 2018 the applicant was considered to have fallen into the category of “unauthorised maritime arrival” (UMA) but after the decision in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC (DBB16) a person is not an “unauthorised maritime arrival” through the act of entering Australia by sea at the Territory of Ashmore and Cartier Islands.
The applicant had been taken directly to Darwin after he arrived at Ashmore and Cartier Islands and consequently his visa refusal was reviewable by the Tribunal rather than the IAA.
Following the decision in DBB16 the applicant was re-notified of the decision to refuse his SHEV application and his review rights. At the time of the visa application, the applicant was not a UMA or transitory person and he had previously held a Subclass 449 visa and had not left Australia since ceasing to hold that visa.
The applicant applied to the Tribunal for a review of the visa refusal on 30 July 2019 and the Tribunal, differently constituted (Tribunal 1), affirmed the decision of the delegate.[2] It appears that Tribunal 1 did not address the issue of the validity of the application for the visa. Tribunal 1’s decision was subsequently upheld by the Federal Circuit Court [in] June 2020 without any consideration of the issue of validity, either by the parties or the court.
Second application for protection
[2] Section 91K of the Migration Act 1958 (the Act) operates to prevent non-citizens (other than UMAs or transitory persons) who hold or have not left Australia since ceasing to hold a TSH visa from making a valid application for a visa (other than a TSH visa). A decision of the Full Federal Court in an unrelated matter and which deals with the validity of an application in similar circumstances is currently awaiting a special leave application before the High Court: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63.
There being some question as to the issue of validity of the first visa application in circumstances where the applicant held a TSH visa and has not left Australia since ceasing to hold that visa, the Department notified the applicant that he satisfied the conditions of s.91L of the Migration Act 1958 (the Act) and s.48B
of the Act.
Consequently, the applicant lodged a further application for a SHEV on 12 June 2020. He attended a further interview with a delegate of the Minister of Home Affairs on 20 July 2020.
On 10 August 2020 the delegate refused to grant the applicant a protection visa under s.65 of the Act because the delegate was not satisfied that the applicant met the requirements for that visa. That is the visa refusal which is the subject of the current review.
The applicant applied for review of that decision on 12 August 2020.
As there was conflicting information about the applicant’s date of arrival, which would have had an impact on whether the delegate’s decision was a Part 7 reviewable decision under the Act, the Tribunal wrote to the Department seeking further information on, and evidence of, the applicant’s date of arrival.
The Tribunal held a hearing by video conference on 20 January 2021 in which it discussed with the applicant the jurisdictional issues which it had identified in the matter. When asked about his arrival date the applicant said he could not recall with any accuracy. The applicant was advised that if the Tribunal formed the view it could consider the substantive issues it would hold a hearing into his claims for protection.
On 23 February 2021 the Department provided further information and evidence indicating that the applicant arrived in Australia on 26 May 2013 and not in June 2013. Consequently, the Tribunal is satisfied that the 10 August 2020 visa refusal is a Part 7 reviewable decision.
The applicant appeared before the Tribunal in person on 26 April and 7 June 2021 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.
The applicant gave evidence about his background, his migration history and his claims for protection.
As set out earlier the matter has had a protracted history. The applicant has attended a number of interviews with Departmental officers, has attended four substantive Tribunal hearings and has twice been invited to respond to information which would be the reason or part of the reason for affirming the decision under review.
In considering the claims and evidence of the applicant, the Tribunal has taken this history into account and accepts that over time the applicant will have forgotten some matters, omitted some evidence and amended his evidence from time to time. The Tribunal accepts that minor inconsistencies or omissions do not necessarily lead to a conclusion that an applicant has not given truthful, reliable evidence. The Tribunal is also mindful that the psychological issues referred to in the counselling reports provided by the applicant may have had impact on his memory and the way in which the applicant gave evidence.
Nevertheless, even when taking these matters into account, the Tribunal has considered that the applicant has not given credible or reliable evidence of his claims for protection.
As explained in specific detail later in this decision, much of the applicant’s evidence was unsatisfactory.
In general terms, the Tribunal found that the applicant did not appear to have knowledge of important and relevant facts as would a person who could straightforwardly describe what he claimed had occurred. When pressed on certain matters he could not give any further detail, or he changed his account in quite significant respects. Much of his evidence was generalised, vague, disjointed and lacked plausible detail.
The applicant’s current claims involved the fact, and consequences, of his personal relationships with two women, [Ms A] and [Ms B] and their relatives.
However, in giving his evidence the applicant did not satisfactorily describe interactions with [Ms A] or her relatives, did not recall relevant conversations and was not able to describe some personal details about [Ms A]. The Tribunal would expect that if the applicant had a close and intimate personal relationship as claimed he would be able to provide some relevant personal details about [Ms A]. The applicant claimed he had a relationship with [Ms B] but his evidence as to the circumstances of the relationship and his interactions with her relatives was not satisfactory.
Further, the evidence the applicant gave about incidents of claimed mistreatment was discrepant and ambivalent. He did not display a recollection of any involved subjective experience.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Material before the Tribunal
The Departmental file contains a number of documents relevant to the application including: the s.91L and s.48B notice, the application for protection, the applicant’s statutory declaration, the applicant’s birth certificate and Iranian identity card, the representative’s submissions and response to questions raised in the applicant’s interview with the delegate on 20 July 2020.
The Departmental file also contained recordings of the arrival interview and the interviews with the delegate in 2018 and in 2020.
The Tribunal has also received documents from the applicant including treatment reports from an accredited social worker at [a] counselling service dated 5 March and 4 June 2021.
CONSIDERATION
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complementary protection.
The relevant law is set out in Attachment A.
Background
The applicant is now [age] years old and told the Tribunal he was born in the southern suburbs of Tehran, Iran. His parents have passed away and he has [brothers] and [sisters], all currently living in Tehran. He has regular contact with his siblings.
He is a Shia Muslim of Azeri Arab ethnicity. His mother was born in Tehran and his father was born in Saveh, a city about 100 kilometres southwest of Tehran. He speaks Farsi and a little Azeri Arabic.
The applicant was quite young when he left school; he thought he had completed about [number] years of school. He had several jobs after he left school; he sold coats and shoes, he worked in [various jobs]. He completed 36 months of compulsory military service in about 2004/2006 when he was [age] years old. [Details deleted]. After he completed his military service, he started [work]. Later he started working for a hire car company answering telephone calls.
He travelled to Australia with a woman called [Ms B] with whom he had a relationship in Iran. Not long after they arrived in Australia, the relationship broke down and he no longer has any relationship with [Ms B].
He married a citizen of [Country 1 while in detention last year, but she has since moved back to [Country 1. She is [age] years old and had lived in Australia since she was a young child. He told the Tribunal his wife decided to return to [Country 1 as it was taking too long to resolve their migration status. He explained that his wife had been in detention because her brother was involved in a family violence matter and she also became involved. His wife had been arrested and imprisoned and had moved to detention at the time they met. He complained that the couple were not able to live together in detention after they married and stated that even in Iran the authorities allowed spouses to stay together in prison for short periods.
The Tribunal asked him whether he and his wife had discussed the prospect of the applicant moving to live in [Country 1 with his wife. He stated that it was not possible and after discussing the reasons why it was not possible, he stated that the aim was to stay in Australia. Once he is released from detention and obtains a visa, he will bring his wife back to Australia. The Tribunal put to him, and he agreed, that he did not want to go to [Country 1].
When asked if he and his wife were still in a partner relationship he said, not really, they talk occasionally but he is not sure if they still have a relationship.
Country of reference
The applicant claims he was born in Tehran, Iran and is a citizen of Iran. He provided a copy of his identity card and birth certificate. He has consistently claimed that he is of Iranian nationality, he spoke Farsi and he was familiar with the geography and culture of Tehran.
Taking into account the available evidence, and noting there is no issue as to identity or nationality, the Tribunal is satisfied that the applicant is a citizen of Iran and that Iran is the receiving country for the purpose of s.36(2)(aa) of the Act.
What are the applicant’s claims?
The applicant’s current claims are contained in his application for protection and his statutory declaration of 4 June 2020. The applicant discussed his claims for protection with the delegate at an interview on 20 July 2020.
Following the delegate’s interview, the applicant’s previous representative made written submissions clarifying some information requested at the interview. He stated that the applicant had lived with his parents in Tehran for his whole life. He worked on the telephones for a car driving service in Tehran from 2008 to 2012. The applicant had schooling up to the [number] grade in Tehran.
The representative also made some written submissions about inconsistencies raised by the delegate at interview. He stated that inconsistencies as to the period of time he claimed he had been detained arose because he had been in Australia for a long period of time and forgot intricate details. He stated that despite not initially mentioning threats from [Ms B]’s son, both [Ms B]’s brother and son had threatened him. He also explained the reference in his arrival interview to “his son” was a reference to [Ms B]’s son.
Following the visa refusal and application for review the applicant gave oral evidence concerning his claims at Tribunal hearings held on 26 April and 7 June 2021. After the hearing the applicant was invited to respond to information which would be the reason or part of the reason for affirming the decision under review.
Essentially the applicant’s current claims are that if he returns to Iran, he faces serious harm because he had relationships with two women in Iran, the first with a woman known as [Ms A], and the second with a woman known as [Ms B] and that both relationships were prohibited under sharia law.
He claims that he fears serious harm from members of [Ms A]’s and [Ms B]’s families as well as fearing harm from Iranian authorities for the reason of being involved in these claimed prohibited relationships. He also claimed that he feared harm if he returned to Iran for the reason of being a failed asylum seeker.
He claimed that he suffered mistreatment at the hands of [Ms A]’s family and that members of her family are associated with state authorities. He also claimed he suffered mistreatment by members of [Ms B]’s family and that they have made threats against him.
Evidence provided in the application for protection and statutory declaration
The applicant stated in his application for protection and in his statutory declaration that he left Iran because he wanted to marry a girl in Iran ([Ms B]) but her family did not approve. He also referred to being harmed by members of [Ms A]’s family.
In his statutory declaration he stated he left for two reasons; the first was due to his prohibited sexual relationship with a married woman called [Ms A]. The second reason was because he wanted to marry a girl in Iran ([Ms B]) and her family did not approve. Both were prohibited relationships, which is a breach of Iranian civil and Islamic law.
The applicant stated that he and [Ms B] were together for about one year before they decided to come to Australia in 2013. He claimed he had to hide himself at [Ms B]’s house and came to Australia with her. He claimed her family were not happy with the couple’s actions.
The applicant stated in his statutory declaration that [Ms A] came to his house a few times and one of her husband’s friends saw them together and that is how her husband knew about their relationship. He claimed that [Ms A]’s husband was a member of the Basij and was very powerful. He claimed that as [Ms A]’s family were in the police, he could not ask for help from the authorities in respect of any mistreatment he suffered at the hands of [Ms A]’s husband and family.
In the statutory declaration the applicant stated that [Ms A]’s brother once hit him in Iran, and [Ms A]’s husband approached him to ask him about the relationship and hit him and lightly slashed his neck with a sharp tool. He claimed that he was picked up twice and beaten by the Basij because of this relationship.
He stated he had issues with [Ms B]’s brother, but they did not hurt him while he was living with [Ms B]. He stated they clashed with him because they disapproved of the couple marrying because [Ms B] was four to five years older than him and because she had a child.
He claimed that [Ms B]’s family hit his brother in 2014 and he claimed this was the sort of harm he feared from them if he returned to Iran. He stated that another basis for his fear was due to [Ms B]’s family being gang members.
Evidence given at the Tribunal hearings.
The Tribunal took evidence from the applicant regarding his substantive claims at two Tribunal hearings. After the second hearing the Tribunal wrote to the applicant and invited him to comment on, or respond to, information which would be the reason or part of the reason for affirming the decision under review.
The Tribunal has set out the relevant evidence given by the applicant to the current Tribunal and then has set out the substance of the Tribunal’s invitation to comment/respond. It is necessary to do this so that the material in the invitation to comment can be considered in the context of the evidence given to the Tribunal.
The applicant told the Tribunal that after he completed military service and before he departed for Australia, he worked in a small car hire company answering the telephone and arranging cars for hire. From time to time, if the business could not find a driver, he would be substituted for one of the hire car drivers. He worked “off and on” with this business. He told the Tribunal he was not well paid for this work and he agreed the economy in Iran was poor and it was difficult for young men to find work[3]. He also stated that if the Tribunal could see where he was living in Tehran it would understand his situation.
[3] DFAT Country Information Report on Iran, April 2020, p 12.

He left Iran in 2013 (1392 in the Persian calendar). He departed through the international airport in Tehran and first arrived in [Country 2]. From [Country 2] he travelled to [Country 3] where he joined a boat to travel to Australia by sea.
He used his Iranian passport to travel to [Country 2] and [Country 3] but discarded it before he joined the boat to Australia. It was his second passport as his first passport had been stolen. He provided a copy of his other identity documents to the Department. He has not travelled outside Iran other than for his trip to Australia.
He borrowed 25 million toman (AU$7,000) from friends and relatives for the departure and people smuggler costs. His brother repaid the money to relatives and friends from the sale of property inherited from his father who died about 10 years ago.
After the applicant left [Country 3], he arrived by boat at Ashmore Reef and was taken to Darwin. He travelled with his partner [Ms B] and they were detained for about two months. They were released from detention and sent to [City 1] where he was given accommodation in a shared house with three bedrooms. He stayed in [City 1] for about one month.
He then moved to [City 2] because there were greater work choices, and as friends of his brother were in [City 2] at that time.
He stated he lived in the community until he was taken into custody in 2014. When asked why he was taken into custody he did not give a clear answer. At first, he stated he had a one-year bridging visa, which was not extended, and anyone who was noticed by police as not having a visa was taken into custody. He claimed Border Force organised his detention in October 2014 and he was taken to the [Detention] Centre.
Then he stated he had not been charged and convicted of a criminal offence and his case was dismissed. He stated that his current case was his second interaction with police. When asked about his criminal record, he stated he had a few minor traffic and fare evasion offences but no criminal convictions.
When asked to explain why he was in detention he stated he had been to prison for four months and released on parole. When asked why he had been in prison, he stated he was convicted of using forged prescriptions to obtain Fentanyl patches. He stated that Fentanyl was a sedative for people with back pain or cancer. He was just told to get these things from a pharmacy and was paid $100 for each prescription. He claimed he did not know what it was because he could not read or write English.
He stated that he had not had similar problems in Iran and had never been detained. He had experienced such troubles in Australia, and he lost himself. He denied having drug problems in Iran but agreed he was drinking alcohol and had used drugs for entertainment in a party setting but he was not addicted.
He told the Tribunal he had been in detention in Australia for a lengthy period but when asked whether he had applied for a bridging visa he claimed he had asked about it but there had been no response.
Later in the hearing he stated that he had come to Australia to correct his past mistakes and to live a correct life. When asked what he meant by this he gave an unclear answer. He stated when he came to Australia, he had poor language skills but now has come to understand the law and expectations in Australia and he wants to live here. When asked what past mistakes he was referring to, he claimed these were the mistakes which resulted in him being in the camp (detention centre), that is the charges and convictions.
The Tribunal asked him to describe his relationship with [Ms B] and why he feared harm for that reason.
He claimed he had a relationship with [Ms B] in Iran. [Ms B] and her brothers are distant relatives and they all lived in the same neighbourhood and knew each other when they were children. [Ms B] was a divorcee and had a young child. Her son was living with his father after the divorce. The applicant thinks [Ms B]’s son is now about [age range] years old.
He came to Australia with [Ms B] in 2013. He was [age] years old and she was [age] years old. They were together for 40 to 45 days in Australia but then had a dispute and separated. [Ms B] told her case manager she wanted to live separately. However, they jointly signed their visa forms and flew together to [City 1]. They lived in different quarters in Darwin and then she lived in a different house in [City 1]. He claimed that the relationship broke down because other women in the detention centre had influenced [Ms B]. They both moved to [City 2] after they left [City 1] and he saw her from to time for the first two months in [City 2]. After that they did not see each other, and he does not know where she is now.
He claimed he feared returning to Iran because of [Ms B]’s brother. He also feared the Basij. He had been beaten and lashed because the Basij had caught him drinking in Iran. He claimed the memory is imprinted in his mind and he is willing to spend another 50 years in detention rather than return to Iran.
The Tribunal asked him why he feared returning to Iran because of his previous relationship with [Ms B]. He stated that it was a family issue. [Ms B] was a divorced woman and his family did not accept that. He was a bit younger than her and she had a child. In Iran there are certain things people find unacceptable.
The Tribunal asked him why that would cause him to fear harm eight years later when the couple were no longer together. He stated there was some sort of dispute between his brothers and her brother. They beat his brother and his brother was hospitalised. He had submitted a photograph in support of this evidence. He claimed his brother was told that the applicant took [Ms B] to Australia; this caused a family dispute and they used abusive language against the applicant’s deceased parents.
The Tribunal asked him about his claim that [Ms B]’s son had threatened him. He stated that [Ms B]’s son was quite young when they left and is now [age range] years old. He claimed that [Ms B]’s son telephoned and threatened to kill him.
When asked why the dispute was still current, he stated that [Ms B]’s family was not happy that the couple had not married, and it was a simmering family problem.
He also stated that the part of Tehran where he had lived (South Tehran) was an area renowned for disputes, fighting and aggression. People lived in close contact and it was not like Australia. Every house was engaged in drug dealing. The Tribunal put to him that he did not have to return to the same area, and he stated you needed money to live elsewhere. He claimed he liked his life and that is why he took the risk of sea travel and difficulties to come to Australia. It was not entirely clear to the Tribunal whether he meant that he liked his life in Iran but took the risk to come to Australia because he feared harm or whether the reason he took the risk to travel to Australia was because he liked the life in Australia.
The Tribunal put to him that it appeared that his concerns related to a family dispute rather than a fear of serious or significant harm for one of the refugee reasons. He claimed that the family dispute was one matter, but he also feared serious harm for other reasons.
The other matters were his experience with the Basij and his relationship with his former girlfriend [Ms A]. He claimed [Ms A]’s family are members of the Basij and he faced difficulties for that reason.
The Tribunal asked the applicant about his relationship with [Ms A]. He claimed he met her one day when he was working for the hire car business. He claimed he had dropped off a passenger, was driving to his workplace and saw this lady. She got into his car and he gave her his telephone contact number and that is how the relationship started. He stated that contact was made when he was about [age range] years old and about five years before he left Iran.
When questioned further he stated he was driving the car and he saw her. He told the Tribunal that in Iran any car that is driving in a street can blow his horn or turn on their lights and if somebody wants a ride the driver stops and takes that passenger from the road.
He stated that in Australia people get taxis but in Iran a person can pick up any car. He stated he saw [Ms A] standing on the side of the road near [Location 1] and he turned his lights on. It appeared she was taking the same route. He was on his way to his workplace and he lowered his head to her. She asked him where he was going. He thought she was going to her sister’s, which was on the way to where he was going.
He could not remember if he was paid for the car ride. When asked why he did not ask for payment, he stated he sort of liked this person and in order to give a good impression he did not know if he asked for the fee. He had just dropped off a passenger, he saw her at [Location 1] on his way to his work at [Suburb 1].
He agreed that [Ms A] was wearing hijab and walking on the street. The Tribunal asked him why he gave her his telephone number during the ride. He claimed he wanted to establish a relationship with her and wanted her to be his girlfriend.
The Tribunal put to him that this evidence was difficult to accept given the conservative attitudes to public behaviour in Iran. He claimed there was some sort of signal on the roof of the car showing it was a hire car. [Ms A] got into the back seat and no one else would notice that he turned his head and gave her his telephone number. He said to her words to the effect, “I like you and I want to know you more”. He stated it was the exchange of words that occurs when a boy wants to get to know a girl. The Tribunal told the applicant it found this evidence not very believable.
The Tribunal asked the applicant when he and [Ms A] next met. He stated that it had all happened in the past, he had been affected by his painful experiences and he could not remember exactly.
When pressed he stated that after a week [Ms A] called him and they made an appointment. She declined to give him her telephone number. She was living in [Location 1]. [Location 1] was about half an hour to one hour’s drive from his home and about half an hour to 45 minutes to the suburb in which the car hire business was located, that is, [Suburb 1]. They met somewhere outside her suburb.
He claimed [Ms A] was initially calling him and he asked her to meet and she declined. The Tribunal asked him why she had called. He stated that maybe she liked him and was contacting him. Also, she had to take her own situation with her brothers into account.
He stated the first few occasions they met he did not know if she came to meet him or not. He then claimed that she came to see him at his family home when his parents went out for family visits. Every now and then he was told his parents were going to his grandparents or aunts’ homes for family visits. He gave excuses to his parents, so he did not have to visit with them. [Ms A] then visited him at his home during those times. He claimed the relationship with [Ms A] lasted about two years in 2010 and 2011 (1389 and 1390 in the Persian calendar).
The Tribunal put to him that he had given evidence that his mother had passed away in 2010 and his father in 2011/2012 and this appeared to conflict with his evidence that [Ms A] came to his family home when his parents visited family members. He stated that his mother passed away late in 2010 and [Ms A] came to visit him before his mother passed away.
He claimed he had contact with [Ms A] every three to four days for about two years. He claimed that [Ms A] telephoned him to meet her and would ask him if he had a car to pick her up. She did not ask him to pick her up in [Location 1], she chose other locations for the pickup. Sometimes she was at a relative’s home and would call him and ask him to take her home. She complied with Islamic dress and was completely covered, in conformity with her Islamic background, when they met.
The Tribunal put to him that [Ms A] appeared to be a hire car client and had engaged him as her driver. He claimed that this was a way a boy and girl met in Tehran. He did not have his own car but borrowed his friend’s car.
The Tribunal asked him if anything had happened to him due to his relationship with [Ms A]. He stated that a friend of [Ms A]’s brother saw them in a suburb. The friend of [Ms A]’s brother knew she was unmarried and when he saw them, he thought that [Ms A] and the applicant had married and that [Ms A] was walking with her husband. The friend mentioned it to [Ms A]’s brother.
He stated that when they came to know of the relationship, they came to the hire car business premises. They were well dressed and spoke nicely. They called to him and then took him to a disused garage or empty warehouse outside Tehran.

100. The Tribunal put to him that he had previously mentioned being taken to a mosque. He stated that when he and [Ms A] were seen they might have been near a mosque or near [another location] in Tehran. He does not know where they were seen.
101. Asked to give more detail about the claimed abduction, he stated they called to him and put him in a car boot, and they took him away. He was inside the car hire business and one came inside and called his name saying please come outside; some people want to talk to you. He claimed he was pushed into the boot of a car in the street outside.
102. The Tribunal asked him how these people knew his name. He stated he was seen with [Ms A]. They saw that they got into a car together and they found the number plate of this car. They found his location through the car registration, that is, they found the owner and found out who was driving the car on that day and at that time. That is how they found him and knew his name.
103. The applicant stated he recognised the four persons who came to the business as members of the Basij because of their clothes and their dress. He claimed he later found out one was [Ms A]’s brother and the others his friends. He claimed they took him away for 10 days and his family and brother could not find out his whereabouts. He stated that in Iran when the security authorities take you away your family are not advised.
104. The Tribunal asked him why no action was taken against him in the courts if he had breached Iranian laws. He claimed that they could not do anything worse to him if he got the maximum penalty. They beat him for 10 days, and sexually assaulted him with a baton, and he still remembers these things.
105. The Tribunal asked him about his previous problems with alcohol and whether he had some interaction with the Basij due to his drinking. He claimed the punishment for drinking was detention and lashing and while this had happened to his friends, it had not happened to him.
106. The applicant was asked about [Ms A]’s family and her circumstances. He stated her parents were alive. When asked what her father’s occupation was, he stated that the whole family were members of the Basij and lived in the area where Basijis and other prominent members of society lived. He did not know [Ms A]’s father’s occupation because they did not speak about his occupation. When asked whether they talked about their families, he stated that he could not remember; he thought she had three to four brothers and three sisters.
107. The Tribunal asked the applicant whether [Ms A] was living in her parent’s family home when they first met. He stated he picked up [Ms A] on his way back to the hire car business where he worked, and she got into his car halfway. As this was not responsive, the Tribunal put to him that he claimed their relationship lasted for one and a half to two years and it would expect that in that time she would tell him where she lived and about her living circumstances. He stated she was living with her parents and family in a guarded complex which he could not enter.
108. The Tribunal asked the applicant to clarify his evidence as to whether she was living with her parents or her husband. He stated that prior to her brother finding out about the relationship she told him she was single. Once her brothers caught them, he found out she was married. When he was taken, he was told this lady was a married person. The Tribunal asked him if he met her husband or just her brothers. He claimed there were four of them and one was her husband and the others were with him. He claimed that he was taken about 15 to 18 months after the beginning of the relationship and about one and a half to two years prior to his departure from Iran. He later claimed he left Iran one year after the attack. He agreed that he had not been mistreated for that period but explained he was not living at his family home and stayed with friends and relatives. The Tribunal put to him that if the Basij wanted to find him they would have done so. He claimed that is why he was going from one location to another.
109. The Tribunal put to him that the Basij could have found him at his place of work in the hire car business. He then claimed he did not go there after that incident and he was getting financial support from his sister. The Tribunal put to him he had previously said he was working until he departed Iran.
110. The Tribunal asked him about his claim that he feared he would be harmed if he returned to Iran as a returned failed asylum seeker. The Tribunal put to him that country information indicated that government authorities have little interest in returnees who have made claims for asylum in other countries. He stated he had no problem with authorities; he only had a problem with particular persons in Iran.
111. The Tribunal put to the applicant that a major issue for the Tribunal was whether the applicant’s evidence was credible and believable. It noted that there were many and various accounts of what had happened to him and no consistent account of evidence.
112. The applicant acknowledged he had given inconsistent evidence. He was not sure if it was due to his painful experiences or when he was hit on the head. He claimed it was all true and not rehearsed. He claimed he did not mention some things and maybe mentioned other things too much. For example, he had not previously mentioned that to hide from [Ms B]’s family, he went to stay in villages.
113. He referred to the counselling advice he was receiving, and the reports provided by his [social] worker.
114. At the end of the second hearing the Tribunal told the applicant it was going to invite him to comment on, or respond to, information which could be the reason or part of the reason for affirming the decision under review.
115. As the applicant did not have a representative and was being held in detention, the Tribunal decided to put the information at the hearing as the applicant had the benefit of a Persian interpreter at the hearing.
116. The Tribunal initially asked the applicant to comment or respond to information in the applicant’s entry interview which undermined his current claims for protection. The applicant stated he needed a little bit of time to consider and needed to find a representative. He told the Tribunal he would prefer it if the invitation to comment/respond was provided by way of letter.
Counselling reports
117. At the end of the first and second hearings the applicant provided reports from the [counselling] service.
118. The first report was dated 5 March 2020 and outlined the number of sessions the applicant had attended (2) and the author’s observations about the applicant’s mental health status, presenting issues, treatment interventions and treatment plan. The social worker noted the applicant’s uncertainty about his refugee claims and accompanying symptoms. He was advised to use cognitive processing therapy and relaxation therapies. The future plan proposed was on strategies to assist in the management of anxiety and depression as well as resolution of his immigration case.
119. The second report was dated 4 June 2021 and outlined the number of further sessions attended during May and the author’s observations about the applicant’s mental status. The report stated that the applicant presented with anxiety and anticipatory anxiety symptoms and requires ongoing psychological treatment to assist in the management of these symptoms. The social worker noted the applicant’s behaviour during the sessions was polite and courteous but he generally was sweating, restless and agitated. She noted he was on the Methadone Program and considered whether it was possible this contributed to his overall presentation and mental state.

120. The applicant reported that he was feeling “stressed”, worried and agitated, and had ongoing and worsening concentration and memory as well as restlessness, poor sleep and rumination.
121. The counsellor recommended future treatment to focus on arousal regulation techniques and psychoeducation. She stated resolution of his immigration case would be useful.
Invitation to comment on, or respond to, information pursuant to s.424A of the Act
122. On 23 June 2021 the Tribunal wrote to the applicant inviting him to comment on or respond to information which would be the reason or part of the reason for affirming the decision under review.
123. The substance of the invitation is as follows:
To assist you in understanding the information and its relevance we have first set out background details of your application for protection and your review and then have set out the particulars and the relevance of the information.
Background
You arrived in Australia by boat in May 2013.
You first applied for a Safe Haven Enterprise Visa in 2017 and your application was refused. You attended an interview with a delegate of the Department of Home Affairs in July 2018.
Your application for review was considered by the “first Tribunal” in January 2020 and the decision to refuse your application was affirmed.
As a result of the Minister for Home Affairs lifting the statutory bar in 2020 you made a further application for a Safe Haven Enterprise Visa on 12 June 2020 and that is the application which is the subject of this review.
In that application you set out your claims for protection in a statutory declaration made on 4 June 2020 and have repeated your claims in your oral evidence to the Tribunal.
You claimed you feared harm because of your relationship with a woman known as [Ms A] and that you feared Iranian authorities and members of [Ms A]’s family due to being in a zina (prohibited) relationship. You claimed [Ms A]’s brother assaulted you and [Ms A] is married to a Basiji. You claimed [Ms A]’s husband slashed you on the neck and you were beaten twice by the Basij.
You also claimed you feared harm and as result of your relationship with a woman called [Ms B] and that you feared Iranian authorities and members of [Ms B]’s family due to being in a relationship prohibited by sharia law. You claimed you and [Ms B] were together for a year and her family was not strict. You and [Ms B] left for Australia together and her family are angry with you for taking her away. Her family members hit your brother in 2014. You fear harm from her family as they are gang members.
You also claimed that if you returned to Iran you feared harm from Iranian authorities as a failed asylum seeker.
You attended an arrival interview on 21 June 2013.
You attended an interview with a delegate in 2018 in relation to your SHEV application.
You gave evidence at Tribunal hearings in 2019 (the first Tribunal).
You attended an interview with the delegate in the current application in 2020.
The particulars of the information are:
[Ms A] and [Ms B]
In your entry interview when asked why you left Iran you stated that it was not a place to live anymore and your wife had problems with her dress. You stated you and your wife had been picked on because of the way your wife dresses and the way you acted in public. At night the authorities stop and search persons. The prices doubled each night due to inflation; it is expensive to live in Iran and there are low wages and that was the main reason. You stated you came for work and your child’s future.
This is relevant because at the interview you did not mention you feared harm in Iran due to your zina relationships with either [Ms A] or [Ms B]. This undermines your later claims to fear harm if you returned to Iran due to your relationships with [Ms A] or [Ms B]. It also could lead the Tribunal to the conclusion that you have not given credible evidence about your current claims.
You were told at the beginning of the arrival interview that information you give should be truthful and if the information you give differs from information you give in the future it could raise doubts as to your reliability.
[Ms A]
In the interview with a delegate in 2018 you told that delegate that you met [Ms A] when she hailed you for a lift in your car. You stated you and she then exchanged telephone numbers and the relationship developed from there. You stated that she was [age] years old.
In the hearing with the first Tribunal you stated you met [Ms A] in 2010 -2011 when she was walking in [Location 1] in Tehran. She came out of a little alley and walked towards you. The Tribunal Member confirmed with you that you met her in the street. She ignored you at first and you then started chatting. You walked with her to her house and learned where she lives and used to regularly go there in the hope you would see her. You and she started going out together. Once when you were out a member of [Ms A]’s family saw you together and went to [Ms A]’s family and congratulated them on her apparent engagement. Her brother heard about this and came looking for you. You were beaten a few times by the applicant’s brother. You told the Tribunal [Ms A] was [age range] years old.
In the interview with the delegate in 2020 you stated that you were driving a friend’s car on the way back to your company and saw [Ms A]. You picked her up because it was on your way. You picked her up while she was waiting for a taxi. You stated that it was common in Iran to give people lifts in private cars; it was like Uber. You stated after 5-6 months they were seen by one of her brother’s friends. You were not sure where they were seen; a park or a street.
This is relevant because the evidence that you met when [Ms A] and hailed you for a lift in your car conflicts with evidence that you met [Ms A] in [Location 1], Tehran when she walked towards you and you both then walked to her house. The differences in the accounts of how you met are significantly different and the conflict in the evidence undermines your claim that you met a woman called [Ms A] and that you had a relationship with her in Iran. If the Tribunal does not accept you had a relationship with [Ms A] it may not accept your claim that you fear returning to Iran for reasons of the claimed relationship.
At the interview with a delegate in 2018 when asked how you kept in contact you said you called [Ms A] at her home.
At the interview with the delegate in 2020 you stated [Ms A] contacted you by telephone.
This is relevant because the conflict in the evidence regarding how you contacted each other and conducted the relationship undermines your claim that you met a woman called [Ms A] and that you had a relationship with her in Iran. If the Tribunal does not accept you had a relationship with [Ms A] it may not accept your claim that you fear returning to Iran for reasons of the claimed relationship.
In the interview with the delegate in 2018 you stated that [Ms A] lived on her own because she was married. About 8-9 months into the relationship [Ms A]’s husband came to asked you about his wife and you told [Ms A]’s husband that all you had done was to give her a ride in your car. You also stated [Ms A]’s husband was present each time you were beaten.
At the Tribunal hearing in 2019 you stated that [Ms A] had a brother and not a husband. The Tribunal asked you who she was she living with and you said you never went to her house, but she told you she was living with her brothers and sisters. She was not living with her parents. After her brothers found you and beat you up, three or four times, you realised she was married and had a husband. You stated you had never met her husband.
The Tribunal put it to you that at the beginning of the hearing you claimed [Ms A] did not have a husband, just a brother. You said maybe you did not understand earlier but a friend told you they were married. When it was pointed out that you had just told the Tribunal that [Ms A] was living with her brothers and sisters you said your friend told you that but maybe she did not have a husband.
In the interview with the delegate in 2020 you stated were not sure if you met [Ms A]’s brothers or husband. You thought you may have met her husband. You also told the delegate that [Ms A]’s brother came to ask you about [Ms A].
This is relevant because the conflict in the evidence regarding your contact with and knowledge of [Ms A]’s family and husband undermines your claim that you met and had a relationship with a woman called [Ms A] in Iran or that her husband or brothers threatened or harmed you. If the Tribunal does not accept you had a relationship with [Ms A] it may not accept your claim that you fear returning to Iran for reasons of the claimed relationship.
At the interview with a delegate in 2018 you stated that you were first taken by [Ms A]’s brothers when you were driving in your car and you were taken to a mosque for 10 days and beaten. You said they knew your car registration number which is how they had located you.
In your statement made in June 2018 you stated that when [Ms A]’s brother found out that you were involved in a premarital relationship, he got his officers to arrest you. You claimed you were tortured for 10 days, at times handcuffed to a chair and beaten with batons and in one instance, they also inserted the baton up your rectum.
At the first Tribunal hearing you stated someone from [Ms A]’s family saw you and [Ms A] together and then her brother found out and her brothers later took you somewhere and beat you up a few times. You stated you were picked up from the front of your office, put in the boot of the car, taken for 4 to 5 days, and kept in a storeroom. You also stated that you had been picked up and beaten several times and the last time was four months before coming to Australia.
At the interview with the delegate in 2020 you stated you were cut on the back of your head, and thought the perpetrator was [Ms A]’s husband or brother. Until the day you were confronted by her family you stated you did not know she had a husband and brother. You claimed you had quite a few injuries caused by her relatives.
This is relevant because the conflict in the evidence undermines your claim that you met a woman called [Ms A], that you had a zina relationship with her in Iran and that members of her family mistreated you for that reason. The varied claims of mistreatment are significantly different in their nature, frequency, length of detention and how you were located. If the Tribunal does not accept you had a relationship with [Ms A] or that you were mistreated by members of her family, it may not accept your claim that you fear returning to Iran for reasons of the claimed relationship.
[Ms B]
At the interview with the delegate in 2018 you stated that when you left Tehran no one was after you. You told the delegate you withdrew your voluntary return request in 2014 because [Ms B]’s brother had called you and threatened you.
At the first Tribunal hearing you stated you were beaten up by [Ms B]’s brother but did not mention this in your arrival interview or in your interview with the delegate. You stated you had withdrawn the voluntary request to return to Iran because your family told you about the attack on your brother. You also stated that you had been threatened by [Ms B]’s son.
This is relevant because the conflict in your evidence indicates that you are not a credible witness and were not threatened or physically harmed for reasons of your relationship with [Ms B]. If the Tribunal does not consider you are a credible witness it may not accept your evidence that your brother was harmed by [Ms B]’s brother.
If the Tribunal does not accept you were threatened, harmed or that your brother was harmed it may not accept your claim that you fear returning to Iran for reasons of the claimed relationship with [Ms B].
Overall, the information set out above is relevant because the conflicting evidence you have given at different times indicates that you have not provided credible or reliable evidence in relation to your claims for protection. If the Tribunal considers that you are not credible or reliable it may not accept some or all your claims for protection and you will not be entitled to a protection visa.

124. The applicant did not respond to the invitation by the date set out in the invitation. The Tribunal subsequently wrote to the applicant and advised him that although the time for response had passed it would consider any response he wished to provide before the Tribunal made its decision.
Assessment of claims and evidence
When and why did the applicant depart Iran and how did he travel to Australia?
125. At the Tribunal hearing the applicant stated that he left Iran in 2013 (1392 in the Persian calendar) and the Tribunal accepts this evidence. The applicant claimed he left Iran due to his prohibited relationships with [Ms A] and later with [Ms B].
126. He claimed he left Iran because he feared serious harm at the hand of [Ms A]’s family who were members of or connected to the Basij. The applicant also claimed he left Iran with [Ms B] because he feared harm at the hands of [Ms B]’s family.
127. For reasons set out later in this decision the Tribunal does not accept that the applicant left Iran due to claimed fears which arose due to either his relationship with [Ms A] or [Ms B]. The Tribunal considers that the applicant has not given a credible or reliable account of the reasons for his departure from Iran.
128. At the applicant’s entry interview in 2013 he stated he left Iran because it was not a place to live anymore and his wife had problems with her dress. He stated that he and his wife had been picked on because of the way his wife dressed and the way they acted in public. He stated that he objected to the practice of authorities stopping and searching people. He also claimed that prices doubled each night due to inflation; it is expensive to live in Iran and there are low wages and that was the main reason he left Iran. He stated he came for work and his child’s future.
129. The Tribunal accepts that in the entry interview, when the applicant referred to his wife, he meant his former partner [Ms B]. His evidence is that he and [Ms B] were partners in Iran and they came to Australia together, and he gave evidence that he had initially intended to marry [Ms B] before the couple separated about 40 days after they arrived in Australia.
130. The Tribunal is mindful that it should be cautious when considering whether omissions made by an applicant at an entry interview are significant in the overall consideration of an applicant’s claims.
131. Persons arriving by boat may have a mistrust of officials. In addition, the interview process may be conducted through an interpreter and without the assistance of a lawyer or migration agent, the purpose of the interview may be principally to establish identity rather than to obtain claims for protection and the applicant may not have a sufficient appreciation of the use to which answers might be put.
132. However, the entry interview took place on 21 June 2013, some weeks after the applicant arrived in Australia. The applicant was asked at the interview why he left Iran and he gave an explanation of his circumstances, which did not include any reference to his later claims that he feared harm due to his prohibited relationships with either [Ms A] or [Ms B]. The interview was not principally for the purpose of establishing identity and the applicant was told at the interview that if the information he gave at the interview differed from information he might give in the future it could raise doubts as to his reliability.
133. This is not a matter where an applicant makes a claim at a high level of generality at an entry interview and then later provides further detail to support his claim. In this matter the applicant explained the reasons he did not want to return to Iran and those reasons were not consistent with his later claims. The applicant made no mention of his fear of harm from [Ms A] or [Ms B]’s families or from Iranian authorities for reasons of the claimed prohibited relationships. He made no mention of any mistreatment suffered in Iran for either of these reasons.
134. The omission of these claims, on its own, is not the sole reason for the Tribunal forming the view that the applicant has not given a credible or reliable account of his claims for protection but it forms part of the material on which the Tribunal’s decision is based.
Did the applicant have a prohibited relationship in Iran with a person called [Ms A]?
135. The Tribunal does not accept that the applicant had a sexual or intimate relationship with a person known as [Ms A] in Iran. As it does not accept the applicant had such a relationship, it does not accept that the claimed relationship was prohibited, and that [Ms A]’s family members found out about the claimed relationship.
136. As set out above, the applicant did not mention he had a relationship with [Ms A] in his entry/arrival interview and did not make a claim that her family mistreated him for reasons of the relationship.
137. In his oral evidence to the Tribunal the applicant stated that sometime in 2010 he was driving a hire car and had dropped a passenger off in a suburb of Tehran. He was driving back to his hire car workplace in [Suburb 1] and he claimed he saw a person, that is, [Ms A], standing on the side of the road at [Location 1], and she appeared to want to hire his car. She was wearing hijab when she hailed his car. He stopped and picked her up and dropped her at her destination. He thought she was going to her sister’s home. He claimed that during this ride he gave her his telephone number because he wanted her to be his girlfriend. She did not give him her telephone number.
138. The Tribunal does not accept this evidence. It accepts the applicant’s evidence that he was a casual worker in a hire car business and that from time to time he picked up passengers on behalf of the business. It accepts he may have picked up a female passenger and have given his telephone number to that passenger, hoping that she would hire him as a driver in the future. It does not accept that he would give his telephone number to a chance passenger picked up from the side of the road and that he said words to the effect, “I like you and I want to know you more” on the basis that he was hoping she would be his girlfriend. He stated it was the exchange of words that occurs when a boy wants to get to know a girl. As discussed with the applicant at the hearing, the Tribunal told the applicant it found this evidence not to be believable.
139. As well as being inherently unlikely in all the circumstances, other discrepancies in his evidence, as set out below, indicate that generally he has not given credible or reliable evidence of matters relating to his claims that he had a relationship with [Ms A].
140. As set out in the invitation to comment/respond, the Tribunal put to the applicant that in 2018 in an interview with a delegate he stated he met [Ms A] when she hailed him for a lift in his car. He stated he and she then exchanged telephone numbers and the relationship developed from there. He stated that she was [age] years old. This information is not consistent with the evidence at the Tribunal hearing, where the applicant claimed that [Ms A] initially declined to give her telephone number to the applicant and other evidence he gave that she was [age range] years old.
141. The evidence given at the Tribunal hearing and in the 2018 interview also conflicts with the applicant’s evidence at Tribunal 1’s hearing in 2019, where the applicant stated he met [Ms A] in 2010 to 2011 when she was walking in [Location 1] in Tehran. He stated she came out of a little alley and walked towards him. The Tribunal Member confirmed with him that he met her in the street. He claimed she ignored him at first and they then started chatting before he walked with her to her house and learned where she lived. He stated he used to regularly go there in the hope he would see her. He stated they started going out together. He stated [Ms A] was [age range] years old.

142. The Tribunal also notes he gave evidence to the current Tribunal that he had never been to [Ms A]’s family home and did not know where she lived.
143. In the 2018 interview the applicant told the delegate he stated he kept in contact with [Ms A] by calling her at her home. However, in her interview with a delegate in 2020 and in evidence to the Tribunal he stated [Ms A] contacted him by telephone. On its own this discrepancy may not have been significant, however, when considered with other inconsistencies it supports the Tribunal’s finding that the applicant has not given credible or reliable evidence regarding his claims.
144. The Tribunal does not consider the discrepancies or inconsistencies to be minor or insignificant and has concluded that the applicant did not meet and form a relationship with a woman named [Ms A] in 2010 or 2011 as claimed. The evidence of how he and [Ms A] met is significantly different across various accounts.
145. The applicant also gave various accounts of where [Ms A] lived and whether she lived in her parents’ home, her siblings home or with her husband.
146. In his evidence at the Tribunal hearing he first stated she was living with her parents and family in a guarded complex which he could not enter. When the Tribunal asked the applicant to clarify his evidence as to whether she was living with her parents or her husband, he stated that prior to her brother finding out about their relationship she told him she was single. Once her brothers caught them, the applicant found out she was married. However, in his evidence to Tribunal 1 he stated he walked [Ms A] to her house and went to that area regularly in the hope he would see her.
147. However, in the 2018 interview with a delegate he stated that [Ms A] lived on her own because she was married. At the Tribunal 1 hearing in 2019, the applicant first stated [Ms A] had a brother and not a husband. He stated that she had told him she was living with her brothers and sisters and not living with her parents. He later realised she was married and had a husband.
148. The Tribunal does not consider these discrepancies or inconsistencies to be minor or insignificant and has concluded that the applicant did not meet and form a relationship with a woman named [Ms A] in 2010 or 2011 as claimed. The Tribunal considers that if the applicant had a one and a half to two-year relationship where he met [Ms A] once every three days, they would have discussed and been aware of where each other lived and with whom they lived. The conflict in the evidence indicates, and the Tribunal finds, that the applicant did not have a sexual or intimate relationship with a woman named [Ms A] for a period of one and a half to two years.
149. The applicant also gave different accounts of whether [Ms A] was married and whether he had met [Ms A]’s husband and the circumstances in which they met.
150. In the statutory declaration of 4 June 2020, the applicant stated that [Ms A]’s husband was a member of the Basij and found out about their relationship from a friend. He stated that [Ms A]’s husband approached the applicant and asked him about the relationship, then hit him and slashed his neck with a sharp tool.
151. At the Tribunal hearing he stated that prior to [Ms A]’s brother finding out about the relationship, [Ms A] told him she was single. Once her brothers caught them, he found out she was married. When he was abducted, he was told this lady was a married person. He claimed four people abducted him and one was her husband and the others were with him.
152. In the 2018 interview with a delegate the applicant stated that [Ms A] did not live with parents because she was married. About eight to nine months into the relationship [Ms A]’s husband came to ask him about [Ms A] and the applicant told him that all he had done was to give her a ride in his car. He also stated he had several beatings and [Ms A]’s husband was present each time he was beaten.
153. At the Tribunal 1 hearings the applicant first stated that [Ms A] had a brother and not a husband. The Tribunal asked him who she was she living with and he stated he had never been her to house but was told she was living with her brothers and sisters. After her brothers found him and beat him up, three or four times, he realised she was married and had a husband, but he had never met her husband. Tribunal 1 put to him that at the beginning of the hearing he claimed [Ms A] did not have a husband, just a brother. He stated he may not have understood, but that a friend told him they were married. When it was pointed out that he had just told the Tribunal that [Ms A] was living with her brothers and sisters, he stated his friend told him, but maybe she did not have a husband.
154. In the interview with the delegate in 2020 he stated he was not sure if he had met [Ms A]’s brothers or husband. He thought he may have met her husband. He also told the delegate that [Ms A]’s brother came to ask him about [Ms A].
155. The applicant’s evidence regarding whether [Ms A] was married and whether he met [Ms A]’s husband was not credible or reliable. The differing accounts and inconsistencies were significant. The applicant has not given a satisfactory explanation of why his evidence was so contradictory. If the applicant had been involved in a sexual or intimate relationship with [Ms A] for almost two years and he had met [Ms A]’s husband, particularly if there had been some conflict or mistreatment, the Tribunal would expect that such contact would have been significant and the applicant would have recalled the contact with some degree of particularity, even if there were some minor inconsistencies in his accounts. The Tribunal considers the conflict in the varying accounts the applicant has given is not minor or insignificant.
156. The Tribunal does not accept that the applicant conducted a sexual or intimate relationship with [Ms A] for one and half to two years in 2010 and 2011. His evidence is also vague and lacking in plausible detail.
157. In his statutory declaration of 4 June 2020, the applicant claimed that [Ms A] came to his house a few times. In his oral evidence to the Tribunal he stated that the first few occasions they met he was not sure if she came to meet him or not. He then claimed that [Ms A] came to visit him at his family home when his parents went out for family visits. When the Tribunal questioned him about this evidence in the context of other evidence that his mother died in 2010 and his father died in 2011/2012, he claimed [Ms A] visited his home before his mother died.
158. Although he claimed he had contact with [Ms A] every three to four days for about two years and they met when he collected her in a car, he did not explain how they conducted a sexual or intimate relationship in these circumstances. He claimed they went to different parts of the city together, but his evidence was vague, it did not address his claim that they were in an intimate relationship and it was implausible in all the circumstances.
159. The Tribunal does not accept that [Ms A]’s family found out about the claimed relationship when the couple were seen in Tehran.
160. In his statutory declaration of 4 June 2020, the applicant claimed that [Ms A] came to his house a few times and they were seen by one of [Ms A]’s husband’s friends. However, in his oral evidence to the Tribunal he stated that a friend of [Ms A]’s brother saw them in a suburb. The friend of [Ms A]’s brother knew [Ms A] was unmarried and when he saw them, he thought that [Ms A] and the applicant had married, and that [Ms A] was out walking with her husband. The friend mentioned it to [Ms A]’s brother, and this is how [Ms A]’s family found out about the relationship. He also stated he could not remember where they had been seen, it could have been near a mosque or near [another location].
161. In June 2018 the applicant made a statement that [Ms A]’s brother was in the Basij and when he found out that they were involved in a premarital relationship, her brother got his officers to arrest him.
162. In the interview with the delegate in 2018 the applicant stated [Ms A] was married, and about eight to nine months into their relationship, [Ms A]’s husband came to ask the applicant about [Ms A] and he told [Ms A]’s husband that all he had done was to give her a ride in his car.
163. In the interview with the delegate in 2020 he stated after five to six months of their relationship, they were seen by one of [Ms A]’s brother’s friends. The applicant was not sure where they were seen, that is, whether it was a park or a street.
164. At the Tribunal 1 hearing in 2019 the applicant gave evidence that someone from [Ms A]’s family saw the applicant and [Ms A] together. Her brother found out and her brothers later took him somewhere and beat him up a few times.
165. As set out above, the applicant has given significantly different evidence about his claim that [Ms A]’s family members found out about their relationship. However, there is no consistent thread in the varying accounts. The applicant gave different evidence about the places they were seen, the identity of the person who had seen them and whether it was [Ms A]’s brother or her husband who was first informed. Further, the time when he claimed they were seen together was different. On one account it was five to six months after their relationship commenced and on another it was about 15 to18 months. The Tribunal considers the conflict in the evidence indicates, and the Tribunal finds, that the applicant has not given a truthful or reliable account of his claims that he had been in a sexual or intimate relationship with a person known as [Ms A] in Iran in 2010 and 2011 or at any time. It does not accept that the applicant and [Ms A] were seen together, and the claimed relationship was reported to [Ms A]’s family. The inconsistencies in the evidence are not minor or insignificant.
166. Overall, and for all the reasons set out above, the Tribunal finds the applicant has not given credible or reliable evidence regarding his claims of forming a sexual or intimate relationship with a woman named [Ms A] in Iran and it does not accept those claims. It does not accept that he and [Ms A] met and saw each other regularly, either at the applicant’s family home or anywhere else and it does not accept they were seen together and that this was reported to [Ms A]’s family.
Did the applicant suffer any mistreatment or threats because of the claimed relationship with [Ms A]?
167. As the Tribunal has not accepted that the applicant was in a prohibited intimate relationship with a woman called [Ms A], it does not accept that the applicant was abducted, detained, beaten or otherwise assaulted by [Ms A]’s family members or associates because of the claimed relationship with [Ms A].
168. The Tribunal is supported in its finding that the applicant has not been mistreated in Iran for this reason by conflicting evidence given by the applicant regarding his claims of threats and mistreatment.
169. In his statutory declaration of 4 June 2020, the applicant claimed that [Ms A]’s brother hit him in Iran. He also stated that [Ms A]’s husband approached him to ask about the relationship and he hit him and lightly slashed his neck with a sharp tool. He claimed he was picked up twice by the Basij and beaten badly.
170. In his oral evidence to the Tribunal the applicant stated that when [Ms A]’s family came to know of the relationship, some men came to the hire car business premises in which he worked. One of them came inside and called his name, he came outside, they put him in the boot of their car in the street and took him to a disused garage or empty warehouse outside Tehran. He stated that these people knew his name because he had been seen with [Ms A], they saw that the couple got into a car together, they saw the registration number and found his location through the car registration. They found the owner of the car and learnt he was driving the car on that day and time.
171. He stated that he believed the four persons were from the Basij and one was [Ms A]’s brother and the other were his friends. He claimed they took him away for 10 days and his family and brother could not find out his whereabouts. They beat him for 10 days and sexually assaulted him with a baton.
172. However, later in his evidence to the Tribunal he claimed that when he was abducted, he was told [Ms A] was a married person. He believed one of the four persons was [Ms A]’s husband. He claimed that he was taken about 15 to 18 months after the beginning of his relationship with [Ms A] and about one to two years prior to his departure from Iran. He later claimed he left one year after the attack.
173. In his statement made in June 2018 the applicant stated that when [Ms A]’s brother found out that they were involved in a relationship, he got his officers to arrest the applicant. He claimed he was tortured for 10 days, at times handcuffed to a chair and beaten with batons and in one instance, he was sexually assaulted with a baton. At the 2018 interview with the delegate he stated that he was first taken by [Ms A]’s brothers when he was driving in his car and taken to a mosque for 10 days and beaten.
174. At the Tribunal 1 hearing in 2019 the applicant stated someone from [Ms A]’s family saw them together and [Ms A]’s brother found out. Her brothers later took him somewhere and he was beaten. He gave evidence he was picked up from the front of his office, put in the boot of a car, taken for four to five days, and kept in a storeroom. He also stated that he had been picked up and beaten several times and the last time was four months before coming to Australia.
175. At the interview with the delegate in 2020 the applicant stated he was cut on the back of his head, and thought the perpetrator was [Ms A]’s husband or her brother. Until the day he was confronted by her family, he did not know she had a husband and brother. He claimed he had quite a few injuries caused by [Ms A]’s relatives.
176. The Tribunal considers that the applicant’s evidence as to his mistreatment is inconsistent and significantly different as to the nature of his mistreatment, the frequency of his mistreatment, the length of his detention and the circumstances he was first located by the alleged perpetrators. The Tribunal considers that the inconsistencies in his evidence are not minor or insignificant.
177. If the applicant had been mistreated, the Tribunal would expect he would have a reasonably consistent account of how he had been located, who had mistreated him and would have been able to give a reasonably detailed account of his mistreatment. The inability to provide such evidence supports the Tribunal’s finding that he did not have a prohibited relationship with a woman named [Ms A] or that he suffered mistreatment at the hands of her family members or persons associated with her family members.
178. Taking the findings set out above, the Tribunal does not accept the applicant had a sexual or intimate relationship with a woman named [Ms A], it does not accept he was threatened or mistreated by members of [Ms A]’s family, either by her brother, brothers or husband. That being the case, the Tribunal does not accept that members of the Basij threatened or mistreated the applicant because of their connections to [Ms A]’s family members.
Did the applicant have a relationship with [Ms B] and did the applicant suffer any mistreatment or threats because of the claimed relationship with [Ms B]?
179. The applicant gave evidence, which the Tribunal accepts, that he departed Iran with a woman named [Ms B]. He stated that he and [Ms B] were distant relatives and lived in the same neighbourhood in Tehran. The Tribunal accepts this evidence.
180. The applicant stated that he and [Ms B] had been in a relationship before they left Iran. He claimed that about 40 to 45 days after he and [Ms B] arrived in Australia, they separated and apart from his early days in [City 2] they have had no further contact. When asked why they separated, he was not able to give a clear answer but referred to [Ms B] being influenced by other women in the detention centre when they arrived.
181. The Tribunal accepts that the applicant and [Ms B] knew each other and were distantly related. It accepts they came to Australia together, and while it has some doubts as to the nature of the relationship, for the purposes of this decision, it accepts that they had been in a relationship before they left Iran.
182. At the Tribunal hearing the applicant claimed he feared harm at the hands of [Ms B]’s brothers if he returned to Iran. He stated he feared harm because of his previous relationship with [Ms B]. Even though it was eight years since the relationship ceased, her brothers were unhappy because he had taken [Ms B] to Australia and they had not married. The applicant also stated that his family and [Ms B]’s family lived in an area of Tehran known for disputes, fighting, aggression and drug dealing. He had earlier claimed that [Ms B]’s brothers were members of a gang.
183. He also claimed his own family did not approve of the relationship because [Ms B] was divorced and had a child.
184. He claimed there was a simmering dispute between the families and his brother had been beaten and hospitalised as a result. He claimed that [Ms B]’s family hurt him indirectly when they hit his brother in 2014 and he claimed this was the sort of harm he feared from them if he returned to Iran. He stated that another basis for his fear was due to [Ms B]’s family being gang members.
185. The Tribunal notes that the applicant provided copies of photographs said to be of his brother with apparent injuries. While it is possible that the photograph provided is a photograph of his brother, the Tribunal is not satisfied that the applicant’s brother was injured as a result of his relationship with [Ms B]. Firstly the photograph appears to show a person with injuries but there was no other evidence which supported the identity of the person in the photographs, or the date or nature of the injuries. Secondly for reasons set out in this decision the Tribunal does not consider the applicant has given credible or reliable evidence as to his claims and does not accept his evidence that his brother was injured as a result of his relationship with [Ms B].
186. The applicant also told the Tribunal that [Ms B]’s son had telephoned him and threatened him with harm.
187. The applicant stated in his entry interview that he left Iran because it was not a place to live anymore and his wife had problems with her dress. He stated he and his wife had been picked on because of the way his wife dressed and the way the couple acted in public. He claimed that the authorities stopped and searched persons at night and the main reason he came to Australia was due to the serious inflation and low wages in Iran. He wanted work and a better future. At the entry interview he did not mention he feared harm from [Ms B]’s relatives due to his relationship with her and made no claims of mistreatment.
188. In the applicant’s current application for protection and in his statutory declaration, he stated he had issues with [Ms B]’s brother, but stated her brothers did not hurt him while he was living with [Ms B] in Iran. He stated they did clash with him because they disapproved of the couple marrying because [Ms B] was four to five years older than the applicant and because she had a child. However, this is in conflict with other evidence he gave at the Tribunal hearing that her family were upset because the couple did not marry.
189. At an earlier interview with the delegate in 2018 he stated that when he left Tehran no one was after him. He told the delegate he withdrew his voluntary return request in 2014 because [Ms B]’s brother had called and threatened him.

190. At the Tribunal 1 hearing he stated he had been beaten up by [Ms B]’s brother but had not mentioned this in his arrival interview or in his interview with the delegate. He stated the reason he withdrew his request to return to Iran was because his family told him about the attack on his brother and not because [Ms B]’s brother called him. He also stated that he had been threatened by [Ms B]’s son.
191. The Tribunal accepts that the applicant’s family members and [Ms B]’s family members know each other in Iran. It accepts they may be involved in a family dispute.
192. However, it does not accept that the applicant will face a risk of serious harm from members of [Ms B]’s family due to his former relationship with [Ms B]. He did not mention that he held this fear at his entry/arrival interview, he has not been in a relationship with [Ms B] for the past eight years, he has provided inconsistent evidence on whether or not he was assaulted by [Ms B]’s brother before he left Iran and only mentioned his claim that [Ms B]’s son had threatened him during the Tribunal 1 hearing. The Tribunal finds the applicant has not given credible or reliable evidence of his claims of mistreatment or threats by [Ms B]’s relatives and it does not accept them.
Does the applicant face harm at the hands of the Basij or other Iranian authorities if he returns to Iran?
193. The applicant claimed that he feared harm from members of the Basij due to his relationship with [Ms A]. The Tribunal has not accepted this claim for reasons set out earlier in this decision.
194. The latest Department of Foreign Affairs country report[4] outlines the history and nature of the Basij:
[4] DFAT Country Information Report on Iran, April 2020.
Basij Resistance Force
5.4 The 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…..
….
5.6 The 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.

195. The Tribunal has accepted that in 2012/2013 the applicant was in a relationship with a woman known as [Ms B]. The evidence indicates that neither the applicant nor [Ms B] were married at the time of the relationship.
196. While the applicant has not claimed that he will face harm from Iranian authorities or the Basij for reasons of his previous unmarried relationship with [Ms B], the Tribunal has nevertheless considered the country information on the situation for unmarried couples in Iran and whether such a relationship could put the applicant at risk if he returned to Iran now or in the immediate future.
197. In 2013 DFAT reported that:
3.66 Pre-marital and extra-marital relations are common in Iran, though rarely demonstrated or spoken of openly.[5]
[5] DFAT Country Information Report on Iran, November 2013.

198. The most recent DFAT report[6] discusses the current situation for unmarried couples in Iran. The information suggests that while such relationships are illegal, the Iranian authorities generally tolerate them. There is no suggestion that a person involved in such a relationship in the past would face harm from authorities in the immediate future. A 2018 report from the Danish Refugee Council[7] also confirms that unmarried relationships are common in younger people and generally tolerated by Iranian authorities, particularly in Tehran.
[6] DFAT Country Information Report on Iran, April 2020.
[7] IRAN Relations outside of marriage in Iran and marriages without the accept of the family: Joint report from the Danish Immigration Service and The Danish Refugee Council based on interviews in Tehran, Iran, Ankara. Turkey and London, United Kingdom, 9 September to 16 September 2017 and 2 October to 3 October 2017; Danish Refugee Council; 23 February 2018.
199. DFAT notes:
Unmarried Couples
3.138 Close contact between unmarried men and women is illegal, as is being in a de facto relationship. While prohibited by the law and frowned upon by the religious establishment and more conservative Iranians, relations outside of marriage occur in practice. DFAT assesses that there is greater tolerance today for mixed-gender interactions, particularly in the larger cities. DFAT heard anecdotally that so-called ‘white marriages’ – that is, unmarried couples living together in long-term relationships – are common in Tehran. According to local sources, while some landlords may refuse to rent property to couples in such arrangements, others have no qualms. The practice of ‘white marriage’ is less prevalent in rural areas and in cities like Qom and Mashhad, where more conservative social attitudes generally prevail.
3.139 The authorities generally tolerate unmarried couples being together in public, particularly in the major cities. Local sources told DFAT that, in Tehran, unmarried couples appearing together in public does not meet societal resistance. In the event of arrest, DFAT understands that an unmarried couple would be taken to the nearest police station and their parents or guardians summoned. Typically, the unmarried couple would sign a written statement and then be released. A fine may be imposed occasionally.

200. The Tribunal notes that there is no recent information before it which suggests the situation for unmarried couples has changed since the reports were published.
201. Taking account of the current country information on attitudes to unmarried relationships, as well as the length of time since the applicant was involved in a relationship with [Ms B], the Tribunal does not accept that if the applicant returns to Iran now or in the immediate future he will face any harm from Iranian authorities for the reason of his previous relationship with [Ms B].
202. The Tribunal notes that during the April 2021 Tribunal hearing the applicant claimed that he had been beaten and lashed because the Basij had caught him drinking in Iran. He claimed the memory is imprinted in his mind. In the later hearing in June 2021 he denied having been mistreated by the Basij for drinking or taking drugs and claimed that he had friends who had been detained by the Basij but he had never been detained for this reason.
203. The Tribunal is not able to reconcile the contradictory evidence given by the applicant to the Tribunal. The applicant admitted that he had engaged in drinking alcohol and using drugs at parties in Iran and it is plausible that he may have had some interaction with the Basij who have been involved in moral policing. In his arrival/entry interview the applicant claimed that he and [Ms B] had been harassed due to [Ms B]’s dress and the couple’s conduct in public.
204. Country information indicates that in 2012 there was a crackdown on dress codes and public conduct by the morality police, the Basij and other authorities. The country information indicates that there was significant public resentment against the moral policing which took place in 2012. However, after the election of President Rouhani in 2013 there was some relaxation of compliance with the strict dress codes.
205. Even if the applicant had, in the past, been mistreated by members of the Basij for reasons of [Ms B]’s dress or his personal conduct, the Tribunal does not consider the applicant would face serious harm from the Basij for this reason if he returned to Iran now or in the immediate future. The applicant gave evidence that he left Iran without any difficulty and that he had never been arrested or detained before his departure.
Would the applicant face harm because he is a failed asylum seeker?
206. The applicant stated in his statutory declaration of 4 June 2020 that he feared returning to Iran because he would be considered a failed asylum seeker and that would not go well for him.
207. When asked about this claim at the Tribunal hearing he stated he had no problem with authorities; he only had a problem with particular persons in Iran. Notwithstanding this statement, the Tribunal has considered the situation for failed asylum seekers returning to Iran.
208. The applicant gave evidence that he left Iran through the international airport in Iran using his own passport. He stated he had no problems with Iranian authorities before he left Iran. DFAT reports that:
5.22 Millions of Iranians travel into and out of Iran each year without difficulty, including the large Iranian diaspora residing in North America, Europe, the United Arab Emirates and Australia. Iranian nationals must pay an exit tax each time they depart Iran, which increases with each outbound journey…
5.24 The 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…

209. With respect to returnees, DFAT notes that:
5.29 Authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. Those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are traveling on a laissez-passer. Questioning usually takes between 30 minutes and one hour, but may take longer where the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history on the part of the returnee. Arrest and mistreatment are not common during this process. A well-placed source was not aware of voluntary returnees being prosecuted for criticising the Islamic Republic, converting to Christianity or proselytising while abroad on their return to Iran. As far as DFAT is aware, the authorities do not check the social media accounts of Iranians returning from abroad.
…
5.31 DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination.

210. The applicant has not claimed that he was a political activist or the subject of adverse official attention prior to departing Iran; he also claims he has never been arrested or detained. The Tribunal does not consider he holds a profile which would bring him to the adverse attention of Iranian authorities on his return to Iran.
Does the applicant meet the refugee criterion?
211. Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Iran now or in the foreseeable future he faces a real chance of persecution for reasons of his claimed relationship with [Ms A], his relationship with [Ms B], for reasons of previous interactions with the Basij or as a returning failed asylum seeker from a Western country.
212. For the reasons set out above, the Tribunal has not accepted that the applicant had a relationship with a married woman connected by family to members of the Basij. Accordingly, he does not face a real chance of harm from members of her family or Iranian authorities for this reason.
213. The Tribunal has accepted that the applicant had a relationship with a woman known as [Ms B] in Iran and that at the time of that relationship, neither the applicant nor [Ms B] were married. For the reasons set out above, the Tribunal does not accept that the applicant faces harm from Iranian authorities or members of [Ms B]’s family for the reason of this relationship. The Tribunal does not accept he faces harm from the Basij or Iranian authorities as a result of any previous adverse interactions for reasons set out above.
214. The country information does not support, and the Tribunal does not accept, the claim that the applicant faces a real chance of harm as a failed asylum seeker.
215. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in s.5J(1)(a) of the Act.
Does the applicant meet the complementary protection criterion?
216. Having found that the applicant does not meet the refugee criterion, the Tribunal has considered whether, on the evidence before it, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Iran.
217. For the reasons set out above, the Tribunal does not consider the applicant will face a real risk of significant harm because of his previous relationship with [Ms B], any previous interactions with the Basij or as a returning failed asylum seeker.
218. Having considered the applicant’s circumstances singularly and on a cumulative basis, and for all the reasons set out above, the Tribunal is not satisfied that there are 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 be arbitrarily deprived of his life or suffer the death penalty, or subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment.
Conclusion
219. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
220. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
221. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).
DECISION
222. The Tribunal affirms the decision not to grant the applicant a protection visa.
Louise Nicholls
Senior Member

ATTACHMENT A
CRITERIA FOR A PROTECTION VISA
223. 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.
224. 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.
225. 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).
226. 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 Attachment B.
227. 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 Attachment B.
Mandatory considerations
228. 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.
ATTACHMENT B - 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 3973

31 August 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction