2013019 (Refugee)

2013019 (Refugee) [2021] AATA 1546 (5 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2013019
COUNTRY OF REFERENCE:                   Iran
MEMBER:Rodger Shanahan
DATE:5 March 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 05 March 2021 at 1:11pm
CATCHWORDS
REFUGEE – protection visa – Iran – Federal Circuit Court remittal – political opinion – anti-government activist – religion – Christian convert – particular social group – homosexual – returned failed asylum seekers – arrested and tortured – Basij – inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Iran, applied for the visa on 3 April 2014 and the delegate refused to grant the visa on 10 March 2015.
The matter was remitted from the Federal Circuit Court because the Tribunal had failed adequately to address the psychiatric evidence presented by the applicant as a reason for the inconsistencies in his claims.
The applicant appeared before the Tribunal on 29 January 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
Protection Visa Application
The applicant provided the following statement as part of his protection visa application:
In 2007 I started studying [Field 1] at [University 1]. One of the compulsory units of study was Islamic Studies. The teacher for this class was very religious and his name is [Mr A] but he referred to himself by the religious name of [name] I knew him to be very religious by the way he dressed and conducted himself.
It was always very common for the teacher to ask the students for their opinion on different subject matters that we were discussing. If a student had an opinion or belief that was different to his he would become annoyed with that student. Sometimes I would question the merits of Islam, specifically why women had unequal status under Islamic law compared to men, why so many terrorist within the world are Muslim, and why when testifying in court does the testimony of a man count for that of four women. The teacher could never give me an answer.
The teacher also would ask me to leave class when I voiced an opinion contrary to his. He would then speak to me outside and tell me to keep my opinion to myself, otherwise I would regret it. Every time the class would meet, the same thing would happen. Around the middle of the semester I was told by multiple students that my teacher, [Mr A] had spoken to another teacher named [Mr B] about me.
Apart from being a teacher, [Mr B] used to also work for the Basij (secret police) and the Etelaat (Iranian Intelligence). On one occasion another student, [Mr C], was waiting to discuss something with a teacher. All of the teachers during the break were having tea and talking. [Mr C] overheard their discussion. [Mr A] was telling all of the other teachers present to lower my marks since I had a bad attitude and was ‘misbehaving’ with regards to the Islamic laws. [Mr C], later informed me of this conversation.
[Mr B] was also one of my other teachers who taught another Islamic subject, which was mandatory for me to study. After the conversation between the teachers, all of my teachers would attempt to bring up controversial subjects that they knew I disagreed with so that they could have an excuse to kick me out of class.
At the end of the semester, I had failed both of my Islamic subjects and received extremely low marks in all of my other subjects. I was very surprised by these marks because I knew that I had been putting in good work, which would have at least earned me a mark of 15 or 16 out of 20.
Prior to sitting my exams, both [Mr B] and [Mr A] told me not to bother attending any of the final exams or classes because they both planned to fail me. I was called to the Basij office of the University and told to keep my mouth shut. I was also threatened that I would get killed for expressing my opinions about Islam.
They would often tell me that I wasn’t Islamic, that I was a Kafir (Infidel). Even before my conversation with my teachers about the exams, there was an incident that occurred on or around November 2007. I was sitting in my car in front of the University when I was attacked by five people who I had never seen before. They had bricks and sticks in their hands and broke the windows of my car and dragged me out of the car. They beat me with the sticks by hitting me on my back, legs and arms, while I was protecting my head.
They kept swearing at me but did not say why they were attacking me. A few other students saw this happen to me. A few of the other people came closer and as they approached the assailants fled the scene. I managed to get back into my car even though I was in pain and drove quickly to the nearest police station. I was in shock and very scared. At first I was confused about why I was attacked but as time went on I started thinking about it more and more.
It occurred to me that earlier that day, in the morning, I was called to the University Basij office. I was again threatened and told to keep my mouth shut about my opinions and beliefs. I then started to think that the attack was not random, that it was directly related to the threat I had received earlier that day.
When I went to the police station, I reported the event and the police left to search the crime scene and could not see anyone. They did nothing and told me to report back if a similar incident occurred again. I would provide evidence of this but in Iran the police don’t usually provide you with any evidence or reports of the incident if you request it.
After my first assault, I was again attacked in total, around four times. On one occasion my [Body Part 1] was broken. The second attack occurred at my University’s Basij office. I was called in yet again. There were four Basij present in the office and they started yelling at me about what I was saying in class and started swearing at me. One then hit [me] and the second person hit [me] so hard [on Body Part 1 that] I later found out that it was broken. I had to receive stiches and I still have two [pins] connecting my [Body Part 1]. This occurred on about 2008.
I was knocked unconscious and didn’t wake up until I was in the hospital. I lied to my parents and told them that I had had an accident. I was worried that if my parents knew the truth they would have reported the incident to the police. I also wanted to continue my education and if my parents had found out they would have asked me to not return to University.
After I returned to University, I still had my [use of Body Part 1 restricted] for over 45 [days]. I didn’t report this incident to the police because I was scared that something might happen to my parents or myself.
It is difficult for me to recall exact dates, due to the trauma I went through, along with the different calendar systems, however, on my first day back to University I was called to the Basij office. I then saw the four people who had previously beaten me and broken my [Body Part 1]. They laughed at me and threatened me again and said if I continue to open my mouth next time we will kill you. They also told me that if I report this to the police they will kill me.
After that incident I continued to pursue my education even though I suffered and was very stressed and anxious. I became depressed and never wanted to study. I started losing my passion for education after everything that I went through.
After these incidents, I started speaking less in class out of fear of what would happen to me. I was however concerned about the other students and what would happen to them if they expressed similar opinions.
Around 2009 during the Green Revolution, many younger Iranians started protesting due to the re-election of Ahmadinejad, This event made me concerned about other young people and what would happen to them if they spoke out against the establishment. I started speaking to other students around University as discreetly as I could. I was telling them to stand up against the government, otherwise the same thing that happened to me would happen to them.
Once again, I started getting called back into the University Basij office and was getting threatened. The University officials and the Basij were also telling me that I had to be an informant for them and report back if I heard anything anti-government being spoken by other students. I felt that it was a means of them blackmailing me, so that I wouldn’t get hurt again and I could pass my subjects.
I was scared so I made it seem as though I would do what they wanted, even though that wasn’t my intention. I started warning the other students about what they had asked me to do and what could happen to them if they spoke out.
I would periodically be called back into the office to report. They would ask me if I had heard anything and I would tell them no. This continued until they found out that I did not intend to inform on other students.
I believe that other students were informers and had told the Basij of what I was really doing. This was around 2011. When I was called into the office and confronted about not following orders, I was beaten and then thrown out of the office.
After that incident I continued to go to University for about a month, when I was called into the faculty office and was provided with a paper that I will attach, that had the effect of expelling me from University. I was then told to go into the main office of the University and inquire as to why I was being expelled. At the time I was not provided with any reason. I was just told that I was expelled.
After I was expelled from University, I confessed everything to my father. My father took the paper to the University and went to inquire as to why I was expelled. He was told that I was expelled because of my behaviour which breached the university rules and procedures.
After getting expelled I was very angry about how I was treated. I was lucky to get employed as a [Occupation 1]. I learned how to use anti-filtering software and I was getting service from Chrome VPN. I accessed that through free gate and other similar websites. This enabled me to access the internet via other locations around the world and obtain news about what was happening in Iran. This was normally censored and was not information that could easily be obtained by Iranians.
Every time I would see a news story reporting on an injustice that occurred towards an Iranian person, 3 would print the story on a flyer and would distribute them outside the University and sometimes give them to my fellow friends who were still attending University.
I continued dropping flyers outside the University campus, late at night, when no one was around to see me. I did this for two years prior to leaving for [Country 1]. A week before I went to [Country 1], I was told by one of my neighbours that a photograph had been taken of me handing out my flyers. Apparently the Basij were approaching people and showing photographs of me asking people if they knew who I was.
My neighbour was concerned for me and informed me of the picture and incident. I think it was a photo that was taken from a CCTV recording in public places. I would distribute the flyers in the street and throw them under people’s doors and put them in their mailboxes around 2-3 am when no one would be on the street, which is why I think the picture came from CCTV.
I was scared and told my father about the picture that my neighbour had seen. My father asked me to collect my belonging and to go to [Country 1] immediately out of concern for my safety. I then immediately bought my plane ticket to leave the country. While in [Country 1], I was extremely fearful for my safety in Iran so I obtained a student visa that lasted for six months and allowed me to stay there longer. Just before my visa expired, I went to the embassies of [other countries] to see if I could get a visa to stay longer and remain away from Iran. I was told that I could not obtain these visas while I was outside of Iran.
While in [Country 1], I went to [Agency 1], an agency that helps students go study in New Zealand and Australia. I went to other agencies for other countries but they didn’t give me a definite answer so I didn’t follow up with any other than [Agency 1]. I paid them money to arrange the paperwork for my student visa, however meanwhile my current student visa in [Country 1] was coming to an end so I had no choice but to return back to Iran. I know that Iran and [Country 1] have reciprocal arrangements in place and I was fearful if I claimed protection there the Iranian government would find out or if I remained unlawful there they would end up deporting me back to Iran or put me in prison.
I went back to Iran [in] December 2013 and arrived in Iran on [date] of December. I was arrested in the airport. As I went through customs my passport was stamped and then they proceeded to look through my bags. Next thing I knew they took my laptop and asked me to sit aside. They also took my external hard drive.
I was very scared. I had arrived around 3:30 am and was detained for over three hours and not told anything. When I would inquire, I was told, words to the effect of, that it wasn’t my business as to why I was being detained. It wasn’t until later when I was in jail that the guards told me that they were going to go through my laptop and hard drive and if they found something I would be very sorry. It occurred to me then that I had forgotten to take the flyers that I had previously distributed off of my external hard drive.
It was around 6 when four people in plain clothes approached me and blindfolded me. I was scared and asked them what was happening. They wouldn’t tell me anything and then they tied my hands behind my back. They then put me into a car and put me on the floor and I could feel their feet on my back. I didn’t know where we were going as I was blind folded but I knew that we were driving in the car for a long time.
I was then taken into a room and my blindfold was taken off. They then photographed me and then proceeded to blindfold me again. I was then escorted somewhere within a short walking distance. They removed my blindfolded and I could see that I was in a cell; I also remember it being very cold.
I kept yelling and screaming to see what was going on. It took over a day for someone to come and see me. I was then given a piece of bread with cheese and little bit of water to drink. No one would tell me anything. Someone came back and blindfolded me and took me into a different room. They then put the photographs of me handing out the flyers and asked me if that was me in the photograph. When I first saw the photograph of myself I was very scared and didn’t know what to tell them. I thought that they were going to kill me.
The only thing I could manage to do was to tell them that it wasn’t me in the picture. They started swearing at me, threatening me and telling me that they were going to rape my mother if I didn’t confess. I was also told that I would be raped myself if I didn’t confess. The people there undressed me and took off my pants and then tied me up. They then broke glass and threatened me with it. They also proceeded to remove their pants in front of my face. They touched me inappropriately but it is too difficult for me to go into detail. All I could do was cry.
I was never even able to contact my family and tell them where I was. They also refused to let me go to the toilet when I needed to. They made me put a paper under the door as a sign that I needed to go to the bathroom. They would then wait hours before coming to me and when they arrived they would beat me instead of letting me go to the bathroom. I was forced to go to the bathroom in my cell and sometimes even in my own clothing. I ended up contracting severe infections from trying to hold my bladder for so long. I also suffered from pain in my kidneys.
They kept telling me that I dug my own grave and that it was my own fault that I was going to be killed. After the first 10-12 days of interrogation they spent five days telling me that they were going to kill me. I was told during one of these days that I was in [Jail 1]. The conditions in jail were horrific. The ceiling was about 3 meters high, the cell was very cold, I had one light and no natural light coming in. I was kept in solitary confinement for the month and was never allowed to speak to anyone unless I was interrogated by the guards. Every few days they would give me some bread with cheese or steamed rice but this would not be given to me every day and I was always starving. I was not even given a blanket or anything to keep warm. By the time I had left prison I had lost around 15 kilos.
I later found out from my parents that it took them over 10 days to find out what had happened to me and that I was being held in [Jail 1]. When you enter prison you are supposed to be given a card to buy food and other things while in jail but this wasn’t given to me until roughly 10 days after being interrogated.
My parents were not allowed to visit me. My father later told me that he had spoken to one of the officials in the jail and was told that I was in a safe place but that he could not see me. My father was then provided with the card number so that he could add money on it for me to access.
I was never allowed to leave my cell so I would ask the guards if they would purchase things for me with my card but they never would. My father was so concerned for me that he told me after my release, that he went to court to try and get me released. They wouldn’t release me since I wouldn’t confess during the interrogations. My father then submitted his house deed as security for my release. By this stage it was around the [date] of January and I had been in jail for around a month.
I was very sick after being released and was notified that I needed to go and get my medical check for my student visa but I was too unwell to go. I went to the hospital and was given medication and was told to stay home and recover. I also went to see a therapist. I wanted to commit suicide after everything that I had been through. I was given medication for my mental health condition. I was also detained in the hospital for several days because they were worried that I was going to commit suicide.
I was very stressed and finally was able to attend my medical check on the 20th of February for my student visa after I was able to recover some. I found out that my student visa to Australia had been granted on the 25th of February 2014. I was worried that the government had blacklisted me and that I would not be able to leave Iran. I kept thinking of how I would be able to leave Iran if I couldn’t fly out. I even thought about leaving the country illegally across the border.
My father works iin [field] and had some contacts in the passport office. He provided his contact with a copy of my passport and asked him to see if I had been put on the black list. My father was told that I had not been black listed yet so I obtained a ticket as soon as possible to depart Iran and came to Australia.
What I fear may happen to me, by who and why, if I return to that country
I fear returning to Iran. I fear that if I am forced to return to Iran, I will be killed next time. I will not be safe. Last time I was detained in jail for a month, next time I may never leave prison alive. I fear the Iranian government, especially the Basij and Etelaat will harm me, and at the very least throw me in jail indefinitely, if not kill me because of my involvement with political protests and because I have rejected Islam.
Why I think the authorities of that country cannot or will not protect me if I were to go back to that country
I know that the authorities will not provide me with any protection if I am returned to Iran because they were the ones doing these horrific things to me in the past. There is no justice in Iran and people are arbitrarily detained all of the time.
Why I think relocation to another area in my country is not a reasonable option
Relocation within Iran is not a possibility since the authorities have control over the entire country. I was arrested at the airport, which should be a safe place. They have so many secret police that they will find me wherever I go. I have no right to relocate to any third country.
AAT Hearing

The applicant indicated that he was happy speaking in English with a Farsi interpreter available if required. The applicant was asked and agreed that everything in his application was true and correct. He was asked about the mental health treatment he had received in Australia and he said he had been on medication but it hadn’t helped him so he no longer took it. He claimed that around 2014 he had a Medicare card and could use it for 10 consultations and he did so. Asked how many times he went to a psychiatrist/psychologist and he said that he went to a psychologist/psychiatrist 10 times in a row.
He saw an Iranian psychiatrist in [Suburb 1] but couldn’t remember his name. It was put to him that he had been asked to provide this information prior to the hearing and he said he thought it was in the court book but he checked and it wasn’t there – he was reminded that if he was asked to provide certain information then he either needed to provide it or explain to the Tribunal why he couldn’t. It was put to him that the Tribunal only had a record of him having seen a psychiatrist on one occasion (September 2014) with a follow-up call from the same practitioner. Asked if he had other treatment, he said he had seen a psychiatrist in 2015 around May/June at [Suburb 1]. He had seen one psychologist at [Hospital 1] and he had spoken to a psychologist in Iran by phone in 2018/19 but he didn’t find them helpful and stopped. He had no evidence to support this claim.
Asked why he didn’t consult a psychologist/psychiatrist in Australia rather than speak to one in Iran by phone he said that he couldn’t speak English well when he came to Australia and he felt that they didn’t understand what he had been through. He claimed that if he spoke in Farsi to the Iranians they might understand him better. He was last on medications in 2015 from a female doctor. It was put to him that the Tribunal had a copy of a prescription from 2014 and he said he had one in 2015 from a female doctor in [Suburb 1] and he was asked to provide copies of this – he said he could do this. This was not received post-hearing.
Asked if he had ever needed to present to a hospital for mental health treatment in an emergency he said that he never had. Asked if he was capable of attending the hearing today he said that he was. Asked if his claimed mental health condition had impacted his ability to give evidence in past hearings, he claimed that it had as he was stressed and agitated and couldn’t express himself well and found it hard to focus. Asked if could give specific instances where he had given incorrect information or was unable to answer due to a mental health condition, he said that concerning his time in prison and interrogation he couldn’t remember dates and it brought up trauma and he couldn’t focus. It was put to him that during the hearings the member had listened to it didn’t appear that he lost focus as he appeared to be coherent. He said that he pushed himself to do it and couldn’t remember the dates on when things happened.
He was asked to provide post-hearing a rundown of his treatment at the [Suburb 1] psychiatrist’s and he said that he would. He was also asked to provide a copy of the psychologist’s report from [Hospital 1]. Post-hearing he submitted an email exchange from 4-5 February in which he had requested the notes from his mental health treatment from 2014-16, and was advised that they would take two to three weeks to obtain. No copies of any notes were received by the Tribunal prior to the finalisation of this decision. He confirmed when asked that he had not received any mental health treatment in Australia for the last six years.
He claimed that he would be killed by the Iranian government for his political opinion and for his sexual orientation by the Iranian government and by people in general, particularly members of his family. Asked if he had any other claims, he said that he didn’t. It was put to him that the day prior to the hearing he had provided a copy of a ‘water baptism’ certificate but with no explanatory letter. He claimed he had been baptised to Christianity and would be killed by the government or intolerant members of his family or random members of the public who were intolerant.
Regarding his political opinion, he claimed that at university he had to pass a religion subject and during the teaching teachers would ask questions. He asked many questions that riled the teachers who told him to shut his mouth or keep his opinions to himself as they didn’t like his questions. His religion teachers were [Mr A] and [Mr B] who spoke to each other and other teachers and there were no answers given to his questions. He was bullied and told to shut his mouth. He didn’t believe in Islam and asked questions about religion- women’s rights in Islam for example.
Asked about his opinion about the government, he claimed that the Supreme Leader tolerated no dissent and that the government should be removed. He took part in demonstrations but after he had been beaten he was scared. Asked about the demonstrations, he claimed that he went to three and was beaten. They were in 2009 and through social media it was easy to connect. They went to a main place – Fatimi Square and they would gather and talk peacefully. All three times he found out about the demonstrations via social media. He had no evidence that he was at the demonstrations but he was hit on the legs, chest and arms. He had no photos of this as he didn’t think he needed to take any. Two of the demonstrations were in 2009 and one in 2011. Asked why there was a two year gap, he said he was mainly focused on handing out flyers.
At the university he was targeted by the Basij office because of what his teachers said. The Basij would mock and hit him. Once he was in his car out the front of the university and he was attacked and his car damaged. The Basij also broke his [Body Part 1] while he was in their office. In 2007 he was sitting in his car and was attacked by five people in his car. He was bruised and scratched. There were no photos of his injuries or the damage to the car. He filed a police report but they said they would follow up but said they couldn’t find anything and said they would file the report.
Asked if the police took a photo of his injuries he said they did. He asked for a copy because he wanted one but they wouldn’t give him one because they said they wanted to keep it. Asked why he didn’t simply take a photo of his injuries when he went home he said he was stressed out and anxious. The member said it was difficult to reconcile the fact that he wanted a photo of his injuries from the police but when they refused he didn’t bother to take one or get one taken. He said he probably wouldn’t still have it today because so many things happened to him but he was young and didn’t know what the right thing to do was. Asked why, based on that reasoning, he asked for a copy of the photo he said that he wanted to keep records of the things that he did in Iran.
His [Body Part 1] was broken in 2008. There was no photographic record of this. He was called to the Basij office and didn’t like the answer he gave to the questions. He was hit and [then] woke up in hospital. The Basij hassled and threatened him every day. When he returned to university they threatened to kill him the next time. He was scared and couldn’t study and began randomly talking to students that he knew telling them to wake up to what was happening. He did this until he was expelled from the university in 2011.
Asked why he was expelled, he claimed that the teachers he mentioned and the Basij had been talking against him and getting the teachers to lower his marks. Asked how he went at university, he claimed he was preparing for the highest marks, but got told that he failed. It was put to him that the transcript he provided showed that he passed everything. He claimed he failed his religion subjects and [others] several times but passed them in later sessions. Asked to be clearer about the exact subjects, he claimed that they were Human and Islam, and about Imam Khomeini’s will.
The other subjects were related to [Field 1]. He said they were [specified]. It was stated by him that Iranian transcripts only showed subjects that one passed. It was put to him that the member had seen other Iranian university transcripts that showed subjects that were failed as well as those that were passed – it made sense that this would be the standard practice as other universities and employers needed to see what subjects had been failed as well as passed.
He was asked what subjects he had failed and he said that he couldn’t remember their exact names as it was 2007-10. He could find out as it was a lot of subjects. Asked how many subjects, he claimed it was [specified]. He passed 24/70 units. The Tribunal was interested in the subjects he failed, not the credit points. He was asked how many subjects he failed apart from the two religion subjects, and he said there were about six or seven subjects, [specified] subjects. He said he could get the details later. His lawyer forwarded an email (in Farsi) dated 25 January 2021 that claimed it was asking the university for his scores, however none was received prior to the hearing and the statement from the applicant accompanying the post-hearing information said that the university did not provide records of his failed grades.
It was put to him that the transcript said he had left the university and settled up with it, and he had failed by his own admission six or seven subjects, and many of his subjects were bare passes, so was it not possible that he left because he wasn’t very good at university. He claimed that he was very capable and good at [Field 1]. He was hired as a [Occupation 1] after university. He claimed that he loved being a student and studying at university.
Asked how he came to Australia he said he came on a student visa to study [Field 1] at [a named] University. Asked how he went there, he said he couldn’t study there because of the trauma from his jailing and torture he suffered. It was put to him that he claimed he enjoyed university and was good at it yet he never started studying. He claimed this may seem good in theory but he had been tortured and wanted to kill himself.
Asked why his transcript didn’t say he was expelled, he claimed he had given the Tribunal a letter from the faculty saying he had been expelled. He was asked if the university was trying to punish him and he agreed this was the case. He was asked why if this was the case they would only say he had been expelled in a private letter but not in the public transcript that would likely have precluded him from studying elsewhere. It didn’t make sense they would send him an expulsion letter but then give him a transcript saying he had not failed anything and had left voluntarily. He said it was a good point and he wanted to know the answer as well. Nothing in the country made sense.
His father took the letter to the university and they told him that he had bad behaviour and they expelled him because of this. He had no contact with the university from them. He was asked why he was expelled because he was asking questions of his lecturers. He claimed that at that time the atmosphere was toxic and there were many undercover Basiji. All the prisoners in Iran were young people from university who were experts.
Asked why they focused so much on the applicant given he had no political profile and wasn’t active, he said he had never claimed that he wasn’t politically active. He claimed that he came from a rich family, spoke his opinion and dressed and groomed himself well. Perhaps the Basij were from poor families and weer jealous. They perhaps thought he was also rude in his language. This is why he thought he was targeted.
After his [Body Part 1] was broken in 2008 he was very politically active. He was quiet for a bit and they threatened him again saying they would kill him rather than just break his [Body Part 1]. He spoke against the government to other students when they gathered for lunch or if driving back to the city after class. He said they all had to wake up to what was happening. Asked how he was politically active, he claimed that he was talking to other students. In public he made flyers; everything was silenced and he had a VPN and would print out news items and hand them around.
He began in 2009 but couldn’t remember exactly when. He knew it was before the 2009 presidential election when he started. He did this every day for two years then for the next two years he did it on and off for special news items or to gather at protests. He began going less than daily after he started working. From 2011 he handed them out about once a week and handed them at university or put them in people’s mail boxes.
Asked what happened to him, he claimed that plain clothes police began handing his photos around asking if anyone knew who he was. This happened a week or a couple of weeks before he went to [Country 1] in 2013. It was put to him that it was quite coincidental that he had been doing this for four years and a week before he left for [Country 1] the police came around with a photo of him. He claimed that the photo was the reason he left as he went to his father who told him that he had to pack up, got him a ticket and told him not to look back. He had not been thinking of leaving the country prior to this.
He had no problems leaving the airport as they didn’t know who he was. He was nervous leaving the country. He had his mobile phone, laptop and external hard drive. Asked if he cleared any incriminating evidence from his electronic devices before he left, he claimed that he was pretty good with computers and hid the documents in the files assuming no one would find them. Asked why he did this, he claimed that he wanted to open a blog.
He was in [Country 1] for nine months. Asked whether he used any of these images while in [Country 1] or opened a blog while there, he claimed that he didn’t. He claimed he was he was scared and fearful in [Country 1] and didn’t know what would happen to him- the Iranian government could go to [Country 1] at any time and take an Iranian back. Asked when this had occurred, he claimed he had heard it happened a lot. He was told that he could provide country information post-hearing about instances where the Iranian government came and took Iranians back to Iran from [Country 1] during the period he was there.
He said he then was looking for another country to go to. The other embassies he went to said that he had to apply from Iran. He also spoke to people about running a blog. He didn’t know what was going to happen so he never opened these pages. It was put to him that he claimed he was very good at IT and could have opened a social media account in another name. It was hard to believe he couldn’t do this if he wanted to.
He said that it was him against the government and they had a whole range of IT guys looking at everything. He was in contact with a person he wanted to give all these things to but he was assassinated in [Country 2]. Asked if he had any evidence he was in contact with the person he claimed he had deleted all his emails with him but they spoke about information against the government. The applicant returned to Iran after nine months. It was put to him that, given he was very fearful of the Iranian government, that he knew the Iranian government had a range of IT guys at their disposal, that he himself was IT savvy and the fact that he had not been able to use any of the images on the blog he planned to start but never did, that he deleted the images before he went to Iran. He said he was hiding the images and he was never checked when he left Iran so he assumed there was no reason they would arrest him.
He was asked what he meant that there was no reason to arrest him, given he claimed that he left Iran in a hurry because plain clothes officers were allegedly showing his photo to neighbours asking whether they knew who it was. To the Tribunal this appeared to indicate that he had a heightened sense of security vulnerability when he left and, knowing that Iran had good IT capabilities the fact that he kept these images on his device when he re-entered Iran seemed extraordinary. He claimed that to be arrested one needed the authorities to knock on his door and this had never happened so he didn’t think he would be arrested.
It was put to the applicant that there were other ways of keeping the images stored such as creating a fake Hotmail account and then emailing the images to it where they could be available but not opened. The member was not very IT savvy but even he knew this simple method of IT security. He claimed that he had a copy of the images in his email as well but never deleted them from his hard drive.
He returned to Iran [in] December 2013 and was arrested at the airport. It was put to him that he had claimed that it needed an arrest warrant to be sent to his house in order to arrest him. He said that he thought so as well. About 0600 he was handcuffed and taken away to a jail. He was in a cell on his own and was tortured (specifics about his torture were not requested by the Tribunal given the risk of triggering mental health issues if the claim were true). He was there for about a month and was released on bail (his father put up his residence as a bond) but never went to court. It was put to him that if he was released on bail he would have had to have been at court and charged, and he claimed that his father told him the authorities were saying ‘he was against the government’.
It was put to him that this wasn’t a charge and he said the charge was that he was handing out flyers. Asked specifically what he was charged with, he claimed that it was acting against the regime. He was out of prison [in] January and then he had to pass his medical test for his Australian visa and passed his medical about February 2014 then got his student visa. He was charged in the Islamic Revolutionary Court. He left through the airport without problems.
He was asked how he was able to leave so easily given the government would have assumed he may try to leave after being charged with such a crime and therefore put his name on a blacklist. He claimed that his father had lots of connections and you could bribe people. He knew people in the passport office and they sorted out his ability to leave. He was asked how his father knew these people out of 12 million people in Tehran given he just worked in a [private business]. He claimed that lots of people came into [business] and asked for favours and he was owed favours as a result. If one had money they could also bribe people.
Asked if his case had gone to court in his absence, he claimed that the authorities kept questioning his father about his whereabouts and going to court. Asked again, he claimed that his case was still open. It was put to him that country information indicated people were tried in absentia and it had been seven years and he was asked why they hadn’t finalised his case. He said it had been 10 years since it had been at the Revolutionary Court and if one had been outside for 10 years then the case would be finalised. He was asked to provide country information to indicate that this was the case.
He confirmed that he didn’t know what had happened with his case, but his father had lost his house. Asked if he had a copy of the court order taking the house, he thought it was in his court book. Told that the Tribunal didn’t have a copy he said that he would provide a copy when asked to do so. Asked if he was politically active now he had the freedom to be so, he claimed that he wasn’t. Asked why not, he claimed that after all these things had happened to him he could barely organise his personal life.
The applicant had previously made a late claim to be homosexual – this claim came after the delegate’s decision was made, but prior to the previously-constituted Tribunal hearing. Asked about his claim regarding his homosexuality, he said he had always been gay and believed this to be so while he was in Iran. He was afraid to be publicly gay in Iran because he could be killed. After he arrived in Australia he was asked whether he made a claim regarding his homosexuality given he knew one could be killed for being gay in Iran – he said that he made no such claim because he believed it was private and he didn’t want this to be made public and he had a Farsi interpreter at his interview and didn’t want this information to leak out. Now he trusted people and believed the Australian government could help.

Asked when he decided to raised his claim to be homosexual, he claimed that he knew he was gay from the time he was young but had a fear of expressing it. He made a claim regarding his sexuality for it at the second hearing (meaning the previously constituted Tribunal) because he was more confident. It was put to him that he had provided some photos in support of his claim. He was asked about [name] and he said he was his first boyfriend, 10-12 years older than him. They broke up after six months as they didn’t have much in common – he didn’t know anything about him since then.
He was asked whether he had to struggle with his homosexual identity when he came to Australia, and he said that he now felt more confident in being who he was because he was part of a supportive community. Asked what community he was talking about in terms of what gay groups he was involved with, he said he meant the broader gay community. He claimed he randomly went to gay clubs. It was put to him that when he first came to Australia he claimed that he was confused and didn’t want to tell anyone about his sexuality and he agreed this was the case. He was asked if he told psychiatrists and psychologists about his homosexuality he claimed that he didn’t.
He said he was conditioned from his time in Iran and he felt it was a big taboo and didn’t feel confident to bring it up. It was put to him that he had been confident enough to tell someone he had been horribly tortured yet not about his sexuality. He claimed that his torture was true and he had to tell someone about it to be able to deal with it.
Asked when he first became confident enough in Australia to admit his homosexuality to others, he claimed that he found a place in [location] and all the gay people were living here near Oxford St. he went to Mardi Gras the first year he was here and then he began opening up. He lived with other gay people in a share house. Around 2016 was when he was feeling more open about these things. He had a friend [Mr D] in the same situation as him.
The first household he was in with gay people was in 2016 in [Suburb 2] – he answered an ad on Gumtree. The others were two lesbians and gay men from [Country 3] ([Mr E]) and [Country 4]. [Mr E] was gay. Asked if he had any long-term gay relationships, he said he didn’t. He had gone out as boyfriend-boyfriend relations for three months – this was the longest he had. His longest was with [Mr F] from [Country 5] for three months. He had no one else he would consider a boyfriend.
He always liked [Mr D] and they had been together for a year as friends. Asked if he had sex with [Mr D], he said he had started to about six/seven months after he met him. He met him at the end of 2016. He picked random people from the public or went to [a named] Beach. Asked why he didn’t bring a witness to attest to his homosexuality, he claimed that he brought two people to his last hearing and had a letter from [Mr D] and the Tribunal could call him as he was working. It was put to him that the Tribunal did not know [Mr D] and wanted to know why he wasn’t called as a witness. The applicant said because of the COVID situation [Mr D] didn’t come.
Asked if he had ever had a long-term relationship with an Australian guy, he said that he hadn’t, just several for a couple of days ‘hook up’. Asked why he thought anyone in Iran would believe him to be gay, he said the way he dressed and the way he talked. It was put to him that he appeared to be talking normally and he claimed that in Iran people always wanted to talk like a tough guy and if one talked softly he may be considered not a man or he was a girl.
Asked about his conversion to Christianity he claimed it changed his life and he was introduced to it in 2018 by a roommate who invited him to [Church 1]. It was a very nice environment. He started studying the bible discovery course. He was singing and praying. He didn’t attend regularly because of COVID – he used to go every Saturday until March 2020 and COVID. He followed them on youtube and followed their site. He had a photo on [social media] of him at the church. It was put to him that his conversion had come after he had been refused a protection visa, and that the Tribunal understood that the bible discovery course was just six, one-hour lessons. The Tribunal had to be satisfied that this was not just a tactic to try and secure a protection visa.
He was asked of he had any witnesses who could attest to his attendance regime and he said he could ask his teacher. He was asked why he didn’t bring him today and he said he didn’t think he would need a witness. It was put to him that he had never evinced any interest in Christianity and then the day before his hearing he sent a baptism certificate devoid of any explanatory note, and he didn’t think that he should bring someone to attest to his faith ? He said that he brought it as a support evidence and he didn’t think he could use this to make his claim and he knew that he was Christian.
He was asked about Easter and what events happened from Holy Thursday to Easter Sunday. He said that Jesus was crucified on the first day and rose up after three days. Asked what events occurred on Holy Thursday given he had been a Christian since 2018 and had experienced two Easters. He could not answer what happened on Holy Thursday. Asked when Jesus was crucified, he said that he was crucified on Friday 25 December. It was put to him that 25 December was Christmas and he acknowledged that this was correct.
It was put to him that he wasn’t filling the Tribunal with much confidence that he knew much about Christianity – he said he had a memory collapse and he hadn‘t prepared himself for these kind of questions. It was put to him that if he was a truly observant Christian he wouldn’t need to prepare for these questions – he would know these things as a basic article of his faith. It was put to him that Easter changed year on year and was asked what happened on the Thursday of Easter. He said on the Thursday Jesus went back to heaven.
Asked what [Church 1]’s attitude to homosexuality was, he said it was quite supportive and they never looked down on him. Asked about his attitude to gay marriage, he claimed he thought it was fabulous. Asked what [Church 1]’s attitude towards it was, he said they never discussed it and they were open to everyone. Asked why he needed to be part of a religion, he claimed that he felt he wanted to be free and feel good. It was as put to him that he could feel free anywhere, and was asked what changed his mind about religion as he had previously said he was agnostic. He said that he was really touched by the music and this spoke to his heart, as did the teachings.
Asked if he had done any exploration of other faiths or branches of Christianity, he claimed that he hadn’t thought it necessary. It was put to him that it was strange that he went from being agnostic to baptised in the church. He claimed that he spoke to people, was curious about God and when he was taught he learnt the lessons to where we were from and the like. He agreed that at [Church 1] he attended six, one-hour lessons before baptism. He said he was part of a group chat where they were told to read a page of the bible every and then they would discuss it. He read parts of the bible a few times but didn’t go through all of it.
It was put to him that other Christian faiths had good music and was asked why he didn’t explore these other faiths. It was put to him that his attraction to Christianity at [Church 1] appeared to come after his protection visa rejections which could call into question the genuineness of his alleged conversion. He claimed that he went to [Church 1] because the people there were his age. Compared to other churches, these had older people who he felt were judging him. In the back of his mind he felt that people were judging him.
He was asked which other churches he experienced this at, given he had previously said that he hadn’t attended any other churches. He said that when he lived at [Suburb 2] he went to an Anglican church at [Location 1] once but didn’t go in because h felt people in front of it were looking down on him and he got the vibes were bad so he didn’t go in. It was put to him that it was strange that people outside a church were looking down on him rather than welcoming him. He claimed that coming from Iran, he was sensitive to the way that people looked at him.
He was asked if he had entered any churches other than [Church 1] and he said that he hadn’t. He was asked on what basis he then made the observation that other churches attracted older people, given that different times of the services often dictated what sector of the congregation went then. He claimed that he knew that [Church 1] had younger people around his age and nobody would look at him for being gay – there were sometimes 200 people there.
Asked if he thought young people went to other churches he said that in his experience they didn’t. Asked how he came to this belief given he had only been inside one church, he claimed that he had driven past churches and seen people outside them and the way they looked they were family people and older than him.
He was advised about s 424AA and it was put to him that at the hearing he claimed he began handing out flyers prior to the 2009 presidential election and he did this every day for two years then from 2011-13 he did it sporadically, mostly weekly. Yet at hearing he said that he began handing out flyers around March 2011 – he had been expelled from university in January 2011 and he began handing out flyers two or three days later. He did this every day for two years. This was an inconsistency both between when he claimed to be handing out flyers and for how long he handed them out, and this could call into question whether he actually had ever handed out flyers at all.
He claimed that he did it every day in a row for two years and then less regularly for two years. It was now 2021 and it was a long time ago - he may have mixed up some dates and things but it wasn’t a big thing to him if he was out by a year here or there.
It was also put to him that he had told DIBP that he had attended two demonstrations in Iran, one where he was told where to assemble beforehand, and the other he randomly joined as he came across it while walking the streets. At hearing he had claimed that he attended three demonstrations, all of which he had reported to at Fatima Square where he had been directed to attend. This could also go to issues of his credibility.
He claimed that when he arrived in Australia there was a Persian speaking lady but her language wasn’t good and she wrote a statement, told him to read and sign it. But his English wasn’t good and he probably only understood about half of it. Also his memory was bad because it happened a long ago and the PTSD had affected his memory of what happened.
Also under s 424AA it was put to him that he was specifically asked about the circumstances of his statement provided by [his legal representatives] and he claimed that he spoke in Farsi to an Iranian-Australian and she read it back to him and he knew what was in his statement. Yet today he claimed it was written and he only understood half of what was written. These answers were inconsistent with each other and the concern was that he was blaming poor translation/interpreting for the inconsistencies when this was not the case in reality. He claimed that he specifically mentioned that she had broken Farsi and he was speaking in Farsi and she was writing in English.
Also under s 424AA it was put to him that he had been asked at hearing about his relationship with [Mr D] and he said they had a sexual relationship from 2016 yet in 2017 he was asked at a previously constituted Tribunal hearing about their relationship and he said that it was not sexual – [Mr D] had wanted it but he never wanted to make it sexual. It was also put to him that he had said that he lived with four gay people at [Suburb 2] yet at the previous Tribunal one of those flatmates ([Mr G]) attended as a witness and when asked denied that he was gay.
Also at the previous Tribunal hearing he had claimed that he had been in a relationship with an Australian called [Mr H] but he did not attend the hearing as a wtness, yet at today’s hearing he had claimed that he had never been in a relationship with an Australian. All these inconsistencies could call into question his claim to be gay. He then claimed that he never said that he had never been in a gay relationship with an Australian – he had said that he had never been in a long-term gay relationship with an Australian guy. [Mr H] was one of his gay friends but he met hundreds of people whose names he didn’t remember.
His friend [Mr G] was gay and he didn’t know why he denied it but he was perhaps afraid of his family or of his country if someone found out. The Tribunal needed to understand how scared people from these countries were about being gay. There were many people like this. Asked about [Mr D], he claimed that they had had sex but were on and off. He was asked why he said in 2017 he hadn’t had sex with [Mr D], he claimed that it was the progress of him. He had a blockage in his mind and didn’t know what to say. He also hadn’t been in contact with [Mr D] for a while. He was still suffering from psychological problems in 2017 – asked if he was receiving any psychological treatment in 2017 he said he wasn’t. He had coffee, rolled a joint and went to the beach. This was his medication because he had nothing else that worked.
Also under s 424AA it was put to him that he had previously said that he only failed three subjects at university; two religious subjects and one called [Subject 1], yet here today he claimed he had failed six or seven, including [specified]. There was a concern that he wasn’t being truthful about his academic performance which could go to issues of his credibility. He claimed that whatever he said was true. He wasn’t in the right place of mind then but now he was. He only passed 17 units so there were other subjects that he failed.
Also under s 424AA it was put to him that he was asked whether there had been a decision in his court case and he said that there wasn’t as it took 10 years, yet previously he had said that the court had phoned his father to tell him that he was guilty, but not what the charge was. It was put to him at that time that it was strange that there was no documentary proof, and he claimed there was only a phone call to his father. It was put to him that this inconsistency could lead the Tribunal to find that no such court case existed. He was also advised that he could have more time to respond to the concern, but was requested to provide his comment. He claimed that a written answer would be provided. Asked if there was any reason why he couldn’t answer now, he said that he thought he could write it better but was happy to answer verbally.
When invited to answer orally, he claimed that he never said his file was closed, it was still open. He said because the authorities seized the house so he believed he was guilty. It was put to him that the loss of the house wasn’t connected to the verdict, it was a result of his non-attendance so the two issues (loss of house, guilty verdict) were separate from each other). He claimed he wasn’t a legal expert but as far as he knew they had taken the house and there hadn’t been a verdict, but his relationship with his father weren’t great and all he knew was the nature of the charge but not whether the charge had been finalised. He was asked to direct this inconsistency directly in his post-hearing response.
He claimed he hadn’t told anyone in Iran that he was Christian as he didn’t know too many people. It was put to him that [Church 1] was an evangelical church so it was strange he hadn’t told anyone – he claimed he could speak to people here so didn’t need to do it in Iran.
CONSIDERATION OF CLAIMS AND EVIDENCE
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, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
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.
The applicant arrived in Australia [in] March 2014 as a holder of a student visa, and applied for protection on 3 April 2014. He is a [age] year-old single Iranian male. He claimed that he would be killed by the Iranian government because of his political opinion and by the government, individual Iranians and his family because of his sexual orientation and the fact he had converted to Christianity.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I have taken into account the applicant’s pieces of medical evidence that he presented but lend them little weight in explaining the various inconsistencies in his evidence, as well as the implausible and late claims made by the applicant. A psychiatrist’s report from September 2014 based on a single in-person interview and one telephone interview diagnosed him with acute PTSD, and stated that because of his experience of interrogation he may find questioning as persecutory and this would interfere with his ability to respond to questions appropriately in the here and now. I note that she accepted that he had been gaoled and tortured in Iran for one month for political reasons.

As will be seen below, the Tribunal has found these claims to have been fabricated and the events as he described them never occurred. As a consequence the psychiatrist’s diagnosis and remarks concerning the applicant’s aversion to questioning are similarly based on events that never occurred, and for that reason alone I must lend it little weight. The counsellor’s report from September 2014 similarly accepts the applicant’s fabricated claims regarding his detention, arrest and torture. A different psychologist’s report from June 2014 was also provided post-hearing at the request of the Tribunal. I note that this psychologist stated that the applicant suffers from ‘partial amnesia’, however I also note that he not only accepts the same claim regarding detention, imprisonment and torture that the Tribunal has found to have been fabricated, it also recommends a positive visa outcome as a way of alleviating the applicant’s mental health issues. I therefore lend it little weight.
The psychologist report from June 2014 also stated that he believed the applicant required long-term treatment to recover yet there is no indication that he sought or received this. Indeed there is no evidence that he attended or received any mental health treatment after September 2014 (from the counsellor). He provided no evidence regarding his claimed attendance at [Hospital 1] apart from an email requesting his medical notes dated 4 February 2021 that said they would take 2-3 weeks. No record of these notes was made available to the Tribunal by the time it finalised the case on 5 March 2021.
Although he claimed that he self-medicated by smoking a joint and going to the beach, and had phoned a psychologist in Iran in 2018/19 but stopped I do not accept this to be the case. I lend little weight to screen shots of texts that the applicant claimed related to discussions he had with psychologists in Iran. There is no year indicating when they took place, and the only way of discerning that the person is a psychologist is that the address on the screenshot says (in English) Bahar (Psychologist).
I also do not accept that the various inconsistencies between the evidence in his written submission provided with his application, and what he has subsequently provided are due to the fact that at the lawyer’s office he told his account to a Persian speaking woman whose language wasn’t good and that she wrote a statement and told him to read and sign it, but that he only understood half of it as his English wasn’t good. This is inconsistent with his response given at his DIBP interview where he stated that the statement was read back to him and that he knew what was in the statement. I also do not accept that his PTSD had affected his memory, given the diagnosis of PTSD had been based in whole or in part on fabricated events.
I found the applicant’s evidence regarding his claims to lack credibility, and I do not accept that the lack of credibility is due to any mental health reason or for an incorrect recording of his initial protection visa statement. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and find that he fabricated his claims in order to be granted a protection visa.
Political Opinion and University Troubles
I do not accept that the applicant has, or ever had, any political profile with Iranian authorities, is or ever was wanted by the Iranian authorities, or has been or would be detained by the Iranian authorities because of any political reason.
I do not accept that he got into arguments with his university lecturers teaching religion who in turn reported him to other teachers and the Basij, and that as a consequence he was deliberately failed in a number of subjects and expelled from the university, mocked and beaten by the Basij (including having his [Body Part 1] broken) or was attacked and beaten and had his car damaged car while waiting outside the university.
To begin with, he was inconsistent regarding his recall of his academic record, while the paper record of his academic results do not support his claim. During the hearing he was asked to name the subjects that he failed and he said that there were six or seven, including [specified] subjects (as well as two religion subjects). Yet during the DIBP interview he claimed that he had only failed three subjects – the two religion subjects and another called [Subject 1].
I do not accept that this inconsistency was because he was not in the right place of mind at the DIBP hearing, given he was quite specific about the one non-religion subject that he claimed to have failed and exhibited no vagueness regarding the issue. I also note that the academic transcript that he presented to the Tribunal has no record of any failed subjects, further calling into question his claim to have been deliberately failed in certain subjects.
I do not accept that Iranian academic transcripts only showed subjects that had been passed for a number of reasons. The member has seen transcripts in other cases that show courses that have been passed and failed. It also makes sense that universities have to note the final results of subjects in degrees, so that other universities to which a student may apply if they are transferring studies or applying for postgraduate studies may also see the student’s results. And finally if the university was seeking to punish him as he claimed, and deliberately failed him in so many subjects as he claimed, then it makes no sense that they then wouldn’t ensure that these failures followed him around by including them on his transcript.
I also do not accept that the applicant was expelled from the university, rather I am satisfied that he left of his own volition. He provided a ‘Student Account Settlement Form’ that he claimed supported his claim, because the reason for discontinuation was given as ‘Expelled’. I note however that this reason was a handwritten entry on the form and the form itself could easily have been produced on any home computer.
Because of this I lend the document little weight, and lend more weight to the transcript that he provided, that merely said that he had ‘given up the education and settled with this university branch’. If he had actually been expelled and the university had been seeking to punish him as he claimed, it is strange that as well as failing to include his failed subjects on the transcript, the university also failed to note that he was expelled.
Because I do not accept that he was ever in trouble at university because of his attitude towards the religion teachers and their subjects, it follows that he was also never assaulted by the Basij, nor that he was attacked and his car damaged. These all rely on his oral testimony, which I have found lacks credibility. His explanation for the lack of any photographic evidence regarding his alleged assault outside the university also makes no sense. He claimed that the police took photos of his injuries but they wouldn’t give him a copy when he asked for one.
I do not accept that he never thought to take a photo of his injuries himself or had one taken by someone else because he was stressed out and anxious or because he was young and didn’t know what the right thing to do was. He obviously had the presence of mind to ask the police for a copy so knew that he wanted or needed a copy, and he lived with one of his parents who could easily have taken a photo of his injuries following the incident. The applicant claimed that he had two pins in his [body] as a result of his [Body Part 1] being broken by the Basij and, while this may be the case there are any number of reasons why a young male could have sustained [an] injury requiring the insertion of pins. As a consequence I am unable to lend it much evidentiary weight in determining the truthfulness of his claim.
Regarding his political activities, I do not accept that he attended political protests, spoke against the government to other students, or downloaded international news reports, turned them into flyers and handed them out to people. There are a number of inconsistencies and implausibilities that make me disbelieve this set of claims.
To begin with, he was inconsistent regarding the timeframe of his political activity. At hearing he claimed that he knew he began handing out flyers before the 2009 presidential election and that he did this every day for two years then for the next two years he did it on and off for special news items by handing them out at university or putting them in people’s mailboxes. Yet at his DIBP interview he claimed that he only began handing out flyers in March 2011, after he had allegedly been expelled from university, and that he did this every day for two years. Although he claimed that the inconsistency was because it was a long time ago and to him it was no big deal if he was out by a year or two, the Tribunal is not of the same mind.
It is reasonable to believe that, given the centrality of the alleged flyer distribution to his claim, he would have known whether he began handing them out before the 2009 presidential election or after he was expelled from university in 2011. These two events are easily discernible from each other so I am not satisfied that the passage of time, or any claimed mental health condition is to account for the inconsistency. He also provided another explanation for the inconsistency as part of a post-hearing submission dated 5 February 2021 – it did not however make any sense and I cannot afford it much weight in addressing the concerns I raised with him:
I have commenced handing out flyers during my study at [University 1]. I used to handing out flyers on regular basis. In AAT you mentioned that you were handing out flyers to public when you were kicked out of the university but today you mentioned that you did the same when you were studying at the university.
Because I do not accept that he ever handed out flyers, it follows that plain clothes officers never began handing out photos of him asking if anyone could recognise him, causing him in turn to leave for [Country 1]. I am satisfied that his travel to [Country 1] was in order to attend the course that he had applied for.
I also do not accept that on return to Iran some compromising anti-government images were found on his laptop, he was arrested, detained, tortured and charged. His account of the departure, imagery storage and subsequent discovery lacks credibility. The fact that he allegedly left Iran with compromising imagery on his computer appears implausible. Given that he claimed to be leaving Iran hurriedly because he was being sought by the authorities for handing out anti-regime flyers, and that he also claimed that the Iranian government had a whole range of IT people looking at everything, it seems implausible that he would take the risk of hiding the compromising documents in the files on one of his devices.
I do not accept that he did this because he was pretty good at IT or because he wanted to start a blog. Not only did he never start a blog (in either his own or an assumed name) therefore calling into question his claim to have stored the images with this purpose in mind, there were other ways of saving these images in a much more secure fashion, such as sending them to an email account under another name and never opening them. I do not accept that he did this as well but that he never deleted them from his hard drive, given that this is inconsistent with his claim to have used his IT savvy to hide the documents in files.
I do not accept that he did not start the blog in [Country 1] because he was scared and fearful in [Country 1] because the government could come into [Country 1] at any time and take an Iranian citizen back and that he had heard this occurred a lot. The Tribunal is not aware of this practice occurring at the time the applicant was there or prior to it and, when he was asked to provide country information post-hearing to support this claim, all that he submitted was a 2012 [news] report that [Country 1] had agreed to extradite an Iranian man to [Country 6] for his involvement in an attempted [plot] against [diplomats].
His subsequent action in then voluntarily returning to Iran despite allegedly being wanted for an anti-regime crime also calls into question his claim that he was of such interest to the Iranian authorities in the first place that he had to leave hurriedly for [Country 1]. I do not accept that he needed to return to Iran because the other countries’ embassies that he went to said that he had to apply for visas to them from Iran. Country information indicates that there are a number of countries where one can apply for protection where Iranians can travel to without the need for a pre-approved visa and it is reasonable to assume that if he was unwilling to return to Iran he could have travelled to these countries and applied for asylum there.

100. Regardless, the fact that he again chose to go through Iranian immigration procedures at Imam Khomeini airport with compromising material on his devices lacks credibility. I do not accept that he assumed he would be able to enter without being checked because he hadn’t been checked on the way out. Again, the same reasons as cited before (his own knowledge of Iranian government IT capabilities, alternative methods of remotely storing any images or documents) preclude the Tribunal from giving any weight to this reasoning. I also do not accept that the applicant was in contact with an activist who he sought to give all this information to, but that he was assassinated in [Country 2]. He claimed that he had deleted his emails regarding this issue so had no evidence other than his oral claim. Given his lack of credibility I do not accept that any such contact occurred.
101. Because I do not accept that he was stopped and the compromising material found, it follows that he was never arrested, detained, tortured or charged with an offence. I have taken into account the documentary evidence that he provided in support of his claim; a bond lodgement form, [a Jail 1] purchasing card and a court attendance notice (summons) however I lend them little weight. Country information indicates that paper-based documents such as court documents and summonses are relatively easier (than primary ID documents) to obtain through fraudulent means[1], while the purchasing card only has a number on it, not the applicant’s name.
[1] DFAT Country Information Report – Iran, 14 April 2020, p 72.
102. I also note that the applicant never provided evidence that his father’s bond was forfeited, or what the final court decision was. He was given time post-hearing to provide this but on 1 February 2021 he asked for an additional three weeks time to provide the document citing the COVID situation in Iran and public holidays there – he was advised on 3 February 2021 that he would not be given additional time however was advised that if the evidence was presented before his claim was finalised it would be taken into account. No such document was provided by 5 March 2021 when the finding was finalised.
103. I do not accept that the case was not finalised but that the Revolutionary Court would finalise cases if the accused had been out of the country for ten years. The summons he provided indicated that in the event of non-attendance the court would decide on the case in absentia which the Tribunal took to mean on the day of the court hearing. The Tribunal is not aware of any country information that supports his claim that it takes 10 years to finalise the case if someone is out of the country. He was asked to provide country information to support this claim – he provided some information post-hearing about the Iranian criminal code however nothing in it supported his ten-year claim.
104. The ease with which he left the country to come to Australia is also not indicative of someone with a charge pending against them in the Revolutionary Court. Despite claiming that he was charged in the Revolutionary Court with acting against the regime, he also claimed in his initial protection visa statement that his father was told ‘through his contacts’ that the applicant was not placed on a blacklist and so he left the country without a problem. Country information[2] indicates that those with ongoing charges or outstanding court matters, or those released on bail are subject to travel bans. I do not accept that he was able to leave because his father knew people in the passport office because he worked in a [specified private business], they owed him favours and was able to bribe them. It is not clear how, in such a large city as Tehran, that his father as a [private business] worker would have links within the passport office that would allow them to overturn the blacklist decision taken against someone charged with an anti-regime offence in the Revolutionary Court.
[2] Ibid, p 69.
105. I also do not accept that he attended anti-government demonstrations in Iran. This relies solely on his oral evidence which I have found lacks credibility; he was also inconsistent in his account of them. During his DIBP interview he said that he attended two demonstrations – one where he went to a pre-arranged assembly point and the other that he joined once he came across it as he was walking. At hearing he claimed that he attended three, all of which required him to gather at Fatima Square beforehand. While I accept that with the passage of time recalling the exact number of demonstrations may be difficult to recall, he was quite precise regarding the method by which he came to attend the demonstrations and it the inconsistency between these accounts that cause me to disbelieve the claim.
Homosexuality
106. The claim was raised as a result of an undated statement written in English by the applicant and a witnessed statement signed 14 March 2017. While I accept that it can be challenging to ‘prove’ or ‘disprove’ one’s sexual identity, in the case of the applicant the Tribunal does not accept that he is, was, or would be perceived to be homosexual or that any of the gay relationships he claimed to have had in Australia or Iran ever occurred. The first reason for disbelieving this claim is the lateness of its appearance. Indeed it was never raised during his application, nor during his DIBP interview and the claim was made only after his protection visa application had been refused.
107. The lateness of the claim, coming as it did only after his application was refused raises obvious concerns about its truthfulness. I do not accept that when he arrived in Australia he did not include it in his claims because he believed it was a private matter and was concerned that the Farsi interpreter at his interview would leak the information. This relies on his oral testimony which I have found lacks credibility. Given his witnessed statement claimed that he was always worried in Iran that someone in the Basij would accuse him of being gay, and that the Basij beat or raped gay people, it is very strange that this fear did not cause him to raise the issue simply because he believed his sexuality was a private matter.
108. There is no mention of any issues regarding his sexuality in his discussions with one psychiatrist and two psychologists, one of whom was a Farsi speaker. For someone who claimed to have been confused and reticent to tell anyone about his sexuality, the lack of any mention of it with these mental health professionals seems difficult to believe. I do not accept that because it was a big taboo in Iran he had been conditioned by this and didn’t feel confident in raising it. It appears anomalous that he was willing to speak about being sexually assaulted in prison to his Farsi-speaking psychologist, yet unwilling to discuss his sexuality.
109. There are other issues concerning the claim that means the Tribunal find it to be falsified. Firstly he claimed that he became confident in ‘coming out’ because he happened to move into a share house with a Thai lesbian couple and two gay male flatmates and through talking with them he was able to express himself and be confident in his gayness. Yet during questioning by a previously constituted Tribunal [Mr G], one of his allegedly gay flatmates, was asked and denied that he was gay. I do not accept that [Mr G] denied this out of fear for his family in [Country 7] if someone found out. Given the information at hearing is confidential, and [Mr G] came at the request of the applicant, I do not accept that a fear of family in [Country 7] finding out about his testimony at a hearing in Sydney is a believable explanation for his denial.

110. There also is no record of attending, or seeking out gay community groups in Sydney that could help him to establish some links into the gay community or to give him confidence about ‘coming out’. This is not a pre-requisite for establishing his homosexuality of course, however given he could speak English and was computer savvy he could have made contact with such groups without much difficulty. He could even have done it in a private capacity under an assumed name if he felt concerns about his information being leaked. His claim to have simply been fortunate to have ‘lucked in’ and moved into a household occupied entirely by gay people has been discredited when the one housemate who appeared at the previously constituted Tribunal denied that he as gay.
111. I have taken into account a range of evidence that the applicant provided in support of his claim to be gay but lend them little weight. He has provided a range of photos with another man/other people in Iran and Australia but none of them appear indicative of someone in a gay relationship. One of them involves a photo of the applicant receiving a kiss on the lips from another unnamed man in Australia – the lack of intimacy apparent in the photo does nothing in the eyes of the Tribunal to establish there is any physical or emotional relationship between the two of them – indeed the opposite appears to be the case. Another photo allegedly displaying his gay partners is of the applicant with [Mr G], who told the previously constituted Tribunal that he wasn’t gay.
112. The photographs of the applicant at the Mardi Gras appear to show him as a spectator or tourist at the event rather than participant or member of the gay community. Tens of thousands non-gay people normally attend the Mardi Gras as a matter of course. He also has provided a letter from a person called [Mr D] who claimed to have been in a relationship with the applicant. While I accept that the applicant was not inconsistent in his claim regarding their alleged physical relationship, given I do not accept the applicant is gay it follows that he and [Mr D] are not, nor ever have been ‘on and off’ lovers.
113. Although the applicant stated that the Tribunal could call [Mr D] during the hearing as he was at work, the Tribunal declined to do so. In his response to the hearing invitation form that he submitted, he was given the opportunity to indicate whether he wished to nominate a witness to give oral evidence and he said that he would not be calling anyone. While the Tribunal could have satisfied itself that the person they were talking to was [Mr D], it decided that there was nothing that he could provide by way of oral evidence that could overcome the concerns that the Tribunal had with the claim regarding its lateness, the lack of persuasive photographic or social media evidence, contact with any gay organisations, and the previous denial of [Mr G] regarding his own homosexuality that was in direct contradiction of the applicant’s claim.
114. There are also a number of screen shots of what appears to be a social media app (in at least one case [specified]) provided pre-hearing however the written submission provides no explanation as to their relevance. They appear to be under the username [name] and there is some English and untranslated text in Farsi. They include pictures of semi-naked men and appear to be people sending heart emojis and offering themselves for dates. Given there was no reference to them in his accompanying statement, the username has no reference to the applicant nor has he shown they are connected to him, nor has he provided translations of the Farsi text, I am not satisfied that they lend any weight to his claim.
Religious Conversion
115. While I accept that it can also be challenging to ‘prove’ or ‘disprove’ one’s religious identity, in the case of the applicant the Tribunal does not accept that he is, or would be perceived to be Christian. The first reason for disbelieving this claim is the lateness of its appearance. If his claim to have been homosexual suffered from its late appearance in his protection visa application and only after being refused by DIBP, then his claim to have become Christian came even later and only after having been refused by DIBP and this decision affirmed by the previously constituted Tribunal. The applicant has twice added significant claims (one regarding homosexuality and the other regarding Christian conversion) only after receiving negative assessments and for this reason alone the Tribunal has major concerns regarding its truthfulness.
116. There are other elements of his claim that make me disbelieve its genuineness. As part of the pre-hearing submission to the current Tribunal the applicant provided a copy of a ‘Certificate of Water Baptism’ issued by [Church 1] on [date] September 2018. No explanatory statement was provided by the applicant in support of this document, such as a reason for his submission of a baptism certificate when religious conversion had never been raised as a protection-related issue previously.
117. There was no accompanying statement from the [Church 1] member who conducted the baptism, nor was the Tribunal put on notice in his hearing response that he intended to have a witness appear to give evidence on his behalf to attest to his Christianity (or for any other reason). Given that he has brought witnesses to the previously constituted Tribunal (regarding his claim to be homosexual) and the extremely late submission of this alleged conversion claim, his reason for not having a witness: ‘because I did not think I would need one’, lacks credibility. The Tribunal did not seek to contact his teacher given the Tribunal accepts the applicant attended six, one-hour bible classes. The teacher could not attest to his motivation or the reasons for the apparently convenient timing of his conversion with respect to his protection visa application, which are the key issues regarding the religious conversion claim.
118. There are other aspects of his claim regarding his religious conversion that cause me to find it not to be genuine. While the Tribunal acknowledges that loyalty to the Christian faith cannot be determined simply by a test, the fact that he believed that Jesus was crucified on Friday 25 December gives the Tribunal no confidence that his conversion to Christianity is genuine. I do not accept that this error was because he hadn’t prepared for such questions. As someone who has experienced two Easter seasons and three Christmases since his conversion to Christianity, it is reasonable to assume that he would not have had to prepare for such a basic question.
119. He had not done any exploration of any other faiths, nor of any other branches of Christianity, and his claim that other branches of Christianity only attracted older people was arrived at by driving past churches and seeing only families and people older than himself gathered outside. without ever having actually been inside another church. A perfunctory internet search reveals a range of ‘youth ministries’, and youth church services across Sydney in a number of Christian religious denominations, so if he was looking for a younger congregation it seems strange that he hadn’t searched for such sites.
120. I do not accept that he had not been inside another church because he had tried to enter an Anglican church [at Location 1] but felt that the people outside ‘were looking down at him’. It relies on his oral testimony which I have found lacks credibility. It also does not explain why he would not have simply tried to enter a different church (there is a Catholic church across the road from the Anglican church [at Location 1] for example) to see whether the reception he claimed to have received was normal or anomalous.
Other issues
121. Although he never raised it as a claim during the hearing, a previous submission from March 2017 by his representative claimed that he feared serious harm due to his membership of a particular social group ‘returned failed asylum seekers’ and this will be addressed for completeness’ sake.
122. To begin with I am not satisfied that the applicant will be involuntarily returned to Iran either now or in the reasonably foreseeable future. The Iranian Foreign Minister during his March 2016 visit to Australia stated that Iran would only accept failed asylum seekers from Australia who returned voluntarily.[3]
[3] Given that the Iranian government has indicated that it will not accept involuntary returnees, the only way that the applicant will return to Iran in the reasonably foreseeable future is as a voluntary returnee. If he does so I do not accept that the applicant will be harmed simply for being a failed asylum seeker. Country information indicates that unless individuals were the subject of adverse official attention prior to leaving Iran they face a low risk of monitoring, mistreatment or other forms of discrimination. Iranian authorities also have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including posting social media comment critical of the government or converting to Christianity[4] .
[4] DFAT Country Information Report – Iran, 14 April 2020.
124. As the applicant hasn’t raised any other claims to fear persecution and, having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s 5J(1)(a) reason either now or in the reasonably foreseeable future.
Complementary Protection
125. Because I do not accept that the applicant has ever been politically active in or outside Iran, was ever detained, tortured and charged with any offence, is or would be perceived to be gay, has genuinely converted to Christianity or that he would be imputed with being a Christian I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
126. As a consequence I also do not accept 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 that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
127. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
128. 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).
129. 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 criterion in s.36(2).
DECISION
130. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Rodger Shanahan
Member

[2021] AATA 1546

5 March 2021

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Immigration

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