2013022 (Refugee)

[2020] AATA 5966

2013022 (Refugee) [2020] AATA 5966 (11 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2013022

COUNTRY OF REFERENCE:                   Iran

MEMBER:James Silva

DATE:11 December 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 December 2020 at 2:45pm

CATCHWORDS
REFUGEE – protection visa – Iran – race – Ahwazi Arab ethnicity – association with the former Shah of Iran – applicant’s father’s role as local tribal leader – family’s wealth – political opinion – National Liberation Movement of Ahwaz (NLMA) – Ahwazi Human Rights Agency (AHRA) – online political activities on social media – past adverse experiences in Iran – religion – non-practising Shia Muslim – perceived apostasy – failed asylum seeker – mental health needs – credibility concerns – claims made during entry interview – added new claims progressively – level of trust in Australian authorities – interpretation/translation errors – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
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

1. The applicant is a [age] year old man from Iran, who claims to be an Iranian national.

2. The applicant arrived in Australia [in] October 2010, travelling by boat without documentation or permission.

3. Most recently, he applied for a protection visa (class XE, safe haven enterprise) visa (SHEV) on 30 April 2020. On 18 August 2020, the delegate of the Minister for Home Affairs refused to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

4. This is an application for review of that decision.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

6. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. The relevant law is summarised in Attachment A.

   CLAIMS AND EVIDENCE

   Protection claims

7. The applicant is an Ahwaz Arab from Khuzestan who has consistently claimed that the Iranian authorities have discriminated against him and his family due to their ethnicity and family profile, by seizing the family’s property and other assets. He has presented wide-ranging claims. These include that he has been a political activist for an Arab separatist group; that the Iranian authorities detained and mistreated him in 2009 and 2010; and that he is subject to pending criminal action for insulting Islam. He also claims that he has refused to follow Islam, and that he is at risk of the death penalty as an apostate; and that the Iranian authorities will punish him as a suspected spy if he returns to Iran as a failed asylum seeker. More recently, the applicant claims to suffer mental health problems and to be at risk of being denied appropriate treatment if he returns to Iran, particularly due to his Arab ethnicity.

8. The applicant and his representative stressed that it is the cumulative effect of the applicant’s circumstances that give rise to Australia’s protection obligations.

   Background

9. The applicant is a [age] year old man from [a specified] neighbourhood of Ahvaz, the capital of Khuzestan provinces in south-western Iran.[1]

   [1] [Detailed redacted]

10. The applicant lived in Ahvaz, in the family home, from birth up to his departure from Iran (with the exception of his period of military service). He attended a private school until the age of about 19, completing a [Discipline 1] course which was part of the school curriculum. From [year] to [year], he performed compulsory military service. He claimed to have been unemployed for five years after that, and to have started working in his older brother [Brother A]’s [shop] in about 2006. When asked at hearing about his claim to have been unemployed since 2001 – an oddity, noting that he had studied [Discipline 1] and his brother owned a [shop] - the applicant said that he used to help [Brother A] out, but only on a casual basis. The Tribunal finds that the applicant worked as a [Occupation 1] in [Brother A]’s shop from 2001 until his departure from Iran (even if sometimes only casually).

11. The applicant claims to have never married or been in a de facto relationship.

12. The applicant’s father and other family members live in Ahvaz. His mother died in April 2020 of natural causes, following long-term health problems. His father was [wealthy] [and owned a variety of properties]. The applicant said that, following the revolution (in 1979), his father went to [Country 1] for a number of years, before returning to Iran. Asked at hearing about his father’s links with [Country 1], the applicant said he had no further details, as he was very young at the time (and the Tribunal presumes that he has not made any enquiries about that period). Curiously, the IHMS clinical notes record him having said that his father had [Country 1] citizenship, but the Iranian authorities had not allowed him to leave Iran; and that he also has a brother in [Country 1].

13. The applicant is the youngest of [number] children; he has [number] older brothers and [number] older sisters. The brothers all work in the [shop]. [Number] of them continue to live in the family home with their families; one has rented nearby, as the family home cannot accommodate him and his family. The applicant is in regular contact with his brothers and, less frequently, his married sisters.

14. The applicant identified two ‘cousins’[2] in Australia, men born in [year] and [year], both living in Melbourne. One of these brothers, [Mr B][3], gave evidence at hearing. The applicant claimed that he travelled to Australia with [Mr B]. He said that his cousins now have Australian citizenship, based on the same protection grounds that he had presented. He did not provide evidence of these men’s citizenship, or their protection claims, beyond a general reference to them having been granted protection as Ahwazi Arabs.

    [2] These appear to be second cousins. [Mr B] said that the applicant’s father is his father’s uncle (the applicant’s father’s sister is [Mr B]’s maternal grandmother).

    [3] [Mr B] also goes by the name [Mr B alias].

15. The applicant arrived in Australia [in] October 2010, as an unauthorized maritime arrival. He holds an Iranian passport, issued [in] 2006 and valid [to] 2011. He had held a previous passport, issued in 2001, which had expired.

16. The applicant summarised his migration history in the statement attached to his current application for a SHEV visa. In late 2010, he applied for a Refugee Status Assessment, which resulted in a negative outcome in May 2011. In November 2011, an Independent Merits Reviewer recommended that he did not meet the criteria to be granted protection. The applicant sought judicial review of that recommendation. In December 2011, the applicant’s representative made a Ministerial submission addressing Australia’s non-refoulement obligations in respect of the applicant, i.e. requesting a new assessment and permission to apply for a visa. In August 2012, the Department notified the applicant that his request had not been referred for consideration, as it did not meet the appropriate guidelines.

17. The applicant was granted a bridging visa in April 2012, and remained in the community until August 2017. During 2014 and 2015, he participated in an International Treaties Obligation Assessment, to assess whether Australia had non-refoulment obligations that would prevent his removal to Iran. Meanwhile, police apprehended the applicant in August 2017. He was transferred to [an immigration detention centre], where he currently remains. He was charged with multiple [offences], which have since been dismissed.

18. On 30 April 2020, the applicant submitted a Safe Haven Enterprise Visa (SHEV) application, after the Minister lifted the s.48A bar preventing him from making a valid protection visa application (as he had previously been refused a protection visa while in the migration zone). This is the subject of this review.

    Evidence

19. The material before the Tribunal in relation the current application (which it refers to as ‘the SHEV application’ for clarity) includes the following, provided to the Department and the Tribunal:

    §The protection visa application form 866, for a Safe Haven Enterprise visa (subclass 790) lodged on 30 April 2020. The applicant’s statement of claims is in a statutory declaration dated 6 May 2020 (he had previously submitted an unsigned version of this statement). The representative provided a submission on 21 May 2020.

    §The applicant provided a copy of his most recent Iranian passport, issued [in] 2006 and valid [till] 2011, and national identity card.

    §Supporting documents to the Department (in Farsi or Arabic with translations, unless otherwise stated). The applicant provided some of these documents in the course of earlier applications, for ease of reference, as the applicant provided further copies and continues to rely on them:

    -Letter (circular) from former Minister Mohammed Ali Abtahi, from 1999 (This appears to match a letter annotated ‘a Revolutionary Guard order not to employ Arab people’).

    -Arrest warrant dated [in] September 2009.

    -Verdict of a criminal court in Ahwaz, dated [in] February 2013.

    -Summons to appear at [an Ahwaz Police Station], signed [in] January 2015.

    Letters of support

    -Letter by Ahwazi Human Rights Agency (AHRA) of the National Liberation Movement of Ahwaz (NLMA), dated [in] May 2011, addressed to the Department.

    -Screenshots of emails from ‘[email address]’, from 3 July 2011 to 8 August 2013. (A page in English with introductory background on Ahwaz appears to be from the same source.)

    -Statements from the applicant’s cousins in Australia, [Mr B alias] and [Mr C], dated 21 October 2019.

    Other evidence

    -Screenshots from a [social media] account in the name ‘[Name 1]’, from December 2011 and June 2012, sharing materials from Al-Ahwaz.com and Ahwaz TV.

    -Screenshots from a [social media] account in the name ‘[Name 2]’, ranging from 23 June 2018 to 31 May 2020.

    -Excerpts of exchanges between the applicant and an ‘uncle’ [Uncle D], on [a communication app], from 29 August to 12 October 2020, (in Arabic, with translation) with apparent political content.

    §The applicant attended a telephone interview on 27 May 2020.

    §The applicant’s migration made a written submission on 4 June 2020 (which included some of the documents listed above).

    §The protection visa decision record of 18 August 2020, which includes a detailed summary of the claims and evidence that the applicant had presented since his arrival in Australia.

    §The application for review, lodged on 20 August 2020, has attached to it a copy of the delegate’s decision record.

    §The Tribunal received a pre-hearing submission dated 23 October 2020. Attached to it were the following:

    -Screenshots of the [communication app] exchange referred to above.

    -Statement from the applicant’s cousin in Melbourne, [Mr B alias], dated 23 October 2020.

    -Medical records: (a) Psychological assessment report dated 13 August 2020, from [Mr E], psychologist, STARTTS[4]; and (b) selection of IHMS[5] clinical notes relating to the applicant, ranging from November 2011 to April 2012, and January 2018 to July 2020.

    -Statutory declaration from a a translator clarifying some ambiguous text in the ‘verdict’ of February 2013.

    [4] NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors

    [5] International Health and Medical Services

20. The applicant appeared before the Tribunal on 30 October, 9 November and 16 November 2020, to give evidence and present arguments. The hearing was conducted with via videoconference, with the applicant in [the immigration detention centre] and the Member at the Tribunal’s Sydney premises. The hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

21. The applicant is represented in this matter by registered migration agent [Ms F], of [Law Firm 1]. [Mr G], from the same firm, attended the hearing on her behalf, via telephone at the first session and video in the second and third sessions, and made written and oral submissions during this review.

22. On 17 November 2020, the Tribunal wrote two letters to the applicant. The first was a letter under s.424A of the Act, inviting him to comment/respond in writing to potentially adverse information set out in a statement of 26 November 2014 relating to his brother’s experiences in Iran after the applicant’s departure. The second noted a list of concerns that the applicant may wish to address in any post-hearing submission, relating to general inconsistencies in his evidence over time (most of which had also been set out in the delegate’s decision record), and anomalies in the Iranian documentation that he had presented. The Tribunal received the applicant’s comments/response to the s.424A letter, and a post-hearing submission, on 24 November 2020.

23. The Tribunal also has before it material from other Department files, covering the period from the applicant’s arrival in Australia in October 2010 through to June 2015. They include numerous supporting documents, which the applicant continues to rely on and which the Tribunal has included in the list above. The main substantive records from this period are:

    §  Handwritten record of the applicant’s entry interview, held on 16 October 2010 (‘entry interview’).

    §  Statement of claims dated 10 December 2010 (‘statement of claims, 2010’); refugee status interview on 13 December 2010 (‘RSA interview’); and Department’s refugee status assessment of 6 May 2011 (‘RSA record’).

    §  Application for independent merits review (IMR), 20 May 2011, with the applicant’s statement of 4 August 2011, and the agent’s submissions of 1 and 30 August 2011.

    §  IMR recommendation (negative) of 7 November 2011.

    §  Ministerial submission of 7 December 2011, and Department response of 3 August 2012.

    §  Department letter regarding International Treaties Obligations Assessment (ITOA), 24 September  2014 (‘letter, September 2014’); and applicant’s statutory declaration to support ITOA, 26 November 2014 (‘statutory declaration, November 2014’).

    §  Department’s natural justice letter regarding ITOA, 6 February 2015 (‘Department letter, February 2015’); applicant’s response of 25 February 2015 (‘letter, February 2015’); and applicant’s further response of 24 June 2015 (‘letter, June 2015’).

24. The Tribunal notes that some of these materials include summaries of the applicant’s oral and other evidence, as set out comprehensively in the delegate’s decision record of 18 August 2020 (pages 2 to 34). The Tribunal wrote to the applicant on 24 September 2020 to suggest that he may wish to provide any comments or concerns about the accuracy of that record. The pre-hearing submission of 23 October 2020 includes some comments about the delegate’s summary of those claims, which the Tribunal takes into account in the assessment below. The Tribunal notes that, to a large extent, the submission addresses not the substance of the applicant’s evidence as presented over time, but commentary on how successive decision-makers addressed it.

25. The applicant wrote on Form 866B that on 3 August 2017, he was arrested and charged with multiple criminal offences, which resulted in the cancellation of his bridging visa and his (ongoing) immigration detention. He was found guilty of one charge, with no conviction recorded. The other charges were dismissed. The Department file includes a record from the [Local Court], dated [in] April 2018, confirming this. The Tribunal has determined that these matters are not relevant to its assessment of the applicant’s protection claims. At hearing, the Tribunal alerted him to his right to privilege against self-incrimination, in case the discussion turned towards his activities in Australia.  

    Receiving country

26. The applicant claims that he is an Iranian national. He presented a copy of his Iranian national ID and a partial copy of his most recent Iranian passport. His documentary and oral evidence, including his familiarity with Iran and the presence in Australia of cousins from there, support his claim. There is an Arabic-speaking minority in Khuzestan, south-eastern Iran. There is nothing to suggest that the applicant has the nationality of any other country. The Tribunal is satisfied that he is a national of Iran, and assesses his protection claims against Iran as the receiving country.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    Credibility

27. The Tribunal has taken into account the AAT Migration and Refugee Division’s Guidelines on the Assessment of Credibility both in the conduct of the hearing and in the assessment below. In considering the overall credibility of the applicant, the Tribunal has reflected on the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’.

28. Although the applicant lodged the most recent SHEV application only in May 2020, more than ten years have passed since his arrival in Australia, when he first articulated protection claims. The Credibility Guidelines note the need for caution in assessing the credibility of claims presented over a long period of time, in successive interviews and settings: ‘A person may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons. A person may not reveal the whole of his or her story because of feelings of shame, for fear of endangering relatives or friends or because of mistrust of persons in positions of authority.’

29. The notes from the applicant’s entry interview, which took place on 16 October 2010, less than a week after he arrived in Australia, raise particular concerns. These record him as having said that the government had been seizing his family’s property and money since the Islamic Revolution (in 1979). He denied that he or any family members had political affiliations or had suffered any physical harm. From December 2010 onwards, however, the applicant has added new claims progressively. In December 2010, he introduced a new claim that he had been arrested twice; he linked this with his family’s background and profile. And in August 2011, he presented a new claim that he had in fact been a political activist. In evidence over time, he made differing statements about the timing of his arrests, the triggers for them, the duration of his detention and the circumstances of his departure from Iran.

30. The applicant and his representative have invited the Tribunal to take into account various factors in its credibility assessment: (a) the circumstances of the entry interview itself; (b) the applicant’s fears about disclosing information to the Australian authorities; and (c) the inherent danger for him and his family arising from his family’s profile, his (claimed) political profile and the Iranian government’s surveillance capacity. He also stated that his claims had been misunderstood, perhaps through interpretation or translation errors at various points in time. More recently, the applicant’s representative has posited that in essence, the applicant’s claims have been broadly consistent, except for his having provided additional details from time to time.

1. First, the Tribunal accepts the need for caution in assessing the applicant’s statements at the entry interview, given that it occurred shortly his arrival in Australia, that he did not have representation and that it has only handwritten notes. That said, as evident from the delegate’s decision record, the questions and the applicant’s responses, including on the problems his family faced in Iran and the circumstances in which he left Iran, were straightforward. The Tribunal does not accept at face value that the applicant was confused, or that he required legal representation to understand and respond to the questions.

2. Second, the applicant claimed that he was initially fearful of revealing the fact of his past arrests to the Australian authorities, until he had reassurance that he would not face deportation to Iran. Later, he went on to explain his further failure to reveal his political background until mid-2011 by referring to the NLMA’s highly secretive operations in Iran, and his need to first check with expatriate leaders in North America about divulging such information (at the same time as he obtained a letter of support). The Tribunal views these explanations with scepticism. As noted in the delegate’s decision and discussed at hearing, even at the entry interview, he criticised the Iranian authorities, suggesting at least some level of trust in the Australian authorities and the nature of the protection he was seeking. The Tribunal is concerned that the applicant was not genuinely fearful of disclosing his real circumstances in Iran, but rather is seeking to justify successive revisions to his claims.

3. Third, the applicant claims that there have been some interpretation/translation errors and some misunderstandings, at various stages of him giving evidence. Some examples are found in the translated contents of the court verdict in February 2013; whether the second arrest took place in July or September 2010; and whether he was detained in September 2010 for two days and/or told to leave the country within two days. However, with the exception of the court verdict (where a translator submitted that the Farsi language is ambiguous as to whether the property confiscation was in the past or future tense), there was minimal explanation of how these misunderstandings arose.

4. The Tribunal acknowledges, as a general principle, that errors can arise in an applicant’s narrative, the interpreter’s or translator’s rendition of their evidence, and/or the migration agent or previous decision-maker’s recording of the statements. It notes also that the applicant’s statements tend to meander, which can also give rise to confusion. All these factors give rise to some risk of misunderstanding. In the present case, however, some of the inconsistencies in the applicant’s statements have been significant, and relate to simple statements of fact. The Tribunal does not accept at face value that his changeable evidence is wholly attributable to such errors.

5. Fourth, on a related point, the Tribunal accepts the inherent difficulty for applicants in relating their claimed experiences over time, and for decision-makers in assessing these. It also notes that where inconsistencies emerge, there is no simple or obvious conclusion as to which version is more reliable, or indeed if any of them is. The applicant’s representative contended that the applicant’s basic claims have in fact been consistent over time, barring some additional information or perspectives that he has provided. However, the Tribunal is not satisfied that accurately reflects the range and significance of the changes in the applicant’s claims and evidence over time.

6. Fifth, the applicant referred to the inherent risks he and his family face, as Ahwaz Arabs and (perceived) political dissidents, particularly given the Iranian government’s surveillance capacity. As a result, they needed to exercise great care when communicating. He suggested this also explained certain gaps or inconsistencies in his evidence.

7. The Tribunal takes all of the above factors into account in the credibility assessment below, but does not accept them uncritically, at face value. It is concerned that the applicant relied on them to mask broad shortcomings in his case. These include some marked inconsistencies, as well as the introduction of new claims; a lack of personal observation and context; and corroborative evidence that is both limited and of dubious probative value. In short, the Tribunal is concerned that the applicant and his representative rely on these factors to justify tailoring his evidence over time. Its full assessment follows below.

   Mental health issues

8. The applicant and his representative also highlighted that his prolonged detention and personal circumstances have stressed him and adversely affected his memory. The Tribunal accepts that the passage of time and the stress of detention are relevant factors when assessing credibility.

9. In relation to current health issues, the applicant wrote in his statutory declaration of 6 May 2020 that he currently suffers from ‘severe mental distress’. He linked this with his family’s ongoing suffering in Iran, and its effect on him, as well as his mother’s recent death.

10. The pre-hearing submission of 23 October 2020 notes that the applicant has signs of ‘mental distress, depression and anxiety, and provided some medical evidence.

    §  [Mr E], psychologist at STARTTS, provided a psychological assessment written on 13 August 2020. This was based on a two-hour consultation by telephone in English; there is no evidence of any prior dealings with the applicant. The assessment records the applicant’s account of his background; his feelings of sadness, worry, insomnia and other symptoms; and [Mr E]’s observations and assessment. [Mr E] administered two psychological measures. The results of a symptom checklist[6] revealed that he ‘experiences anxiety features’ and, according to [Mr E], ‘a diagnosis of depression’. Another questionnaire[7] indicated that he does not have ‘clinically significant PTSD symptoms’.

    -   The author recorded the applicant as feeling ‘sad and down’ most of the time, attributing these in part to his mother’s death and the passing of a girlfriend prior to his immigration detention (i.e. before mid-August 2017). His uncertain migration status added to his distress.

    -   While [Mr E] referred in the body of the report to a ‘diagnosis of depression’, the summary and recommendations refer only to ‘depressive symptoms’. As described by [Mr E], the checklist is widely used in post-conflict and refugee populations to assess for symptoms of depression and anxiety. This suggests that it is a symptom inventory rather than a diagnostic tool. The Tribunal is not satisfied on the basis of this report that the applicant has been formally diagnosed with (or treated for) depression.

    -   Although the checklist and questionnaire recorded symptoms that did not appear clinically significant, the author went on to opine the applicant’s ‘strong character and good insight’ have helped him manage his emotional state, implying that the applicant may have other mental health issues that the testing had not picked up. At face value, these appear to be personal and speculative comments; it is unclear whether a two-hour telephone consultation in English suffices to form the basis for a professional assessment of an applicant’s character, or potential undiagnosed mental health problems.

    -   The report notes that the applicant had declined counselling. Despite this, [Mr E] opined that he may need help in the future as he processes recent losses.

    §  The Tribunal also received from the applicant selected IHMS clinical notes, covering November 2011 to April 2012, and January 2018 to July 2020. IHMS staff recorded the applicant as having attended weekly psychology sessions in 2012, and group therapy in 2019. More recently, the notes refer to his low mood; symptoms of anxiety and depression’; and a reported self-harm attempt in February 2020 (but later confirmations that he has no suicidal ideations).

    §  These notes include mention of the applicant’s life in Iran, as related to clinicians, the deaths of his mother and girlfriend (one note appears to suggest the latter was in March 2020), and his recounting of some aspects of his protection claims (in January 2012). There are references to detention fatigue, and personal frustrations in Australia, for instance in relation to his bid for protection.

    [6] The Hopkins Symptoms Checklist-25.

    [7] The Harvard Trauma Questionnaire.

11. At hearing, the Tribunal invited the applicant and his representative to draw to its attention any factors that may affect the conduct of the hearing, or the review in general. The applicant said that he suffers insomnia, and his health has deteriorated over the past three years in detention. He again mentioned his mother’s death, and that he had undergone recent surgery. The representative acknowledged that [Mr E] had recommended counselling. He went on to say that the applicant had delayed this due to other preoccupations, and was now considering it.

12. The Tribunal accepts that the applicant’s lengthy detention, his unresolved migration status and recent events (the death of his mother and surgery) may have affected his mental health. The available material, including [Mr E]’s report, does not clearly indicate whether any mental health problems can be attributed to specific past experiences in Iran or his family’s (claimed) ongoing suffering there.

13. The IHMS clinical records that the applicant submitted are a small selection from over 530 folios (according to the footer on the clinical record printouts). A couple of the notes refer to the applicant having disclosed to staff information about his life in Iran, his claimed experiences and his concerns. Some of his recorded comments overlap with his evidence at hearing (for instance, his father’s past links with [Country 1], his mother’s illness and his Australian girlfriend’s death); but also some marked differences in detail (such as the mention of his father having had [Country 1] citizenship, but not being permitted to leave Iran; his having four brothers, including one in [Country 1]; and the timing of his girlfriend’s death). The Tribunal is not satisfied that these notes are of probative value in assessing his protection claims: first, because it is not possible to distinguish between the applicant genuinely confiding in a third party on the one hand, from simply recounting his protection claims, on the other; and second, because the Tribunal cannot confirm or test how accurately the author recorded the applicant’s comments about non-clinical issues.

14. Overall, the Tribunal is not satisfied, on the limited available evidence and given there is no pressing need for medical treatment, that the applicant suffers any significant mental health issues that impair his ability to present his claims and evidence; or that he suffers major memory loss, confusion or other symptoms that merit close attention when assessing his claims and evidence.

15. The representative, in the pre-hearing submission and at hearing, flagged that the applicant had a protection claim based on his limited access to appropriate mental health treatment, as an Ahwazi Arab who could not access (equal) health insurance. The Tribunal assesses this claim below.

    Arab (Ahwazi) ethnicity

16. The applicant has consistently claimed to be an Ahwazi Arab. He speaks Arabic, is from Ahvaz in Khuzestan province, and has provided other evidence to support this claim. The Tribunal accepts that he is an Ahwazi Arab. It notes that he tended to blur his Arab ethnicity with his family/tribal background.

17. The applicant claims to have a strong attachment to Arab cultural tradition. The pre-hearing submission referred to his wearing of Arab attire during Ramadan as ‘his way of championing Arab traditional norms and values’.[8] At hearing, he described his outreach to local Arab residents, to tell them about their history, culture and oppression at the hand of the Iranian authorities. In essence, the applicant posited that his strong sense of Arab identity informed his (claimed) political activity with the NLMA. The Tribunal accepts that the applicant is proud of his Arab heritage. However, it detects very little in his biography (education, military service or employment) or the materials he has provided to suggest that he has any noteworthy passion, expertise or influence in this area; and it finds he has exaggerated these claims.

    [8] Submission of 23 October 2020.

    Discrimination as Ahwazi Arabs

18. The applicant has consistently claimed that he and his family face discrimination as Ahwazi Arabs, particularly in terms of cultural expression and economic opportunity. He linked this closely with his family background and profile (see below). He also submitted, in relation to his other claims about political activism, religious attitudes and his prospects as a failed asylum seeker, that his Arab ethnicity puts him at greater risk of mistreatment by the Iranian authorities.

19. SHEV application: The applicant claimed that, as Ahwazi Arabs, he and his family were subject to ongoing discrimination, and disdain from officials. Examples of this were the denial of opportunities for government employment, the confiscation of property, threats to close their businesses and the denial of medical insurance. The applicant also wrote that he and his family, like other Ahwazi Arabs, were not permitted to wear traditional Arab dress, even on religious festivals. He claims to have witnessed the Iranian authorities (basij and revolutionary guards) abuse or even beat Arabs for wearing such attire.

20. As noted above, the pre-hearing submission refers to the applicant’s use of Arab tradition dress as an expression of Arab culture, and suggested it is a ‘form of protest’, rather than a religious expression. At hearing, he spoke about his commitment to Arab culture and also his sense of injustice at the way Arabs have been treated in Iran. The applicant’s evidence at hearing confirmed his claim that he and his family had experienced discrimination as Ahwaz Arabs, and were resentful of the general discrimination against Arabs. Much of the discussion concerned whether, taking into account his personal and family circumstances, such discrimination amounted to persecution or significant harm.

21. Anti-Arab discrimination has featured prominently in the applicant’s previous claims and evidence since his arrival in Australia, in addition to specific claims about the historical treatment of his grandfather and father, and the regime’s confiscation of their lands over time.

22. There is considerable country information about the treatment of the Ahwaz Arab population in south-western Iran. As noted in the most recent DFAT report[9]: ‘like other ethnic minorities, Arabs complain of economic neglect and discrimination in education, employment, housing, politics and culture.’  According to DFAT and similar sources, despite its natural resources, Khuzestan suffers high levels of poverty, unemployment, lack of economic development and widespread environmental degradation. It has also seen regular large protests, some of which have resulted in deaths and large numbers of arrests. Observers claim that the authorities have targeted political dissidents, including those ‘exhibiting their Arab identity and culture’.

    [9] Department of Foreign Affairs and Trade, Country Information Report – Iran, April 2020, paragraph 3.9

23. Assessment: The Tribunal accepts that the applicant shares the view of many Arabs that their community faces discrimination, in terms of social policy and the provision of infrastructure, economic opportunity and environment protection. It accepts, too, that Iranian government attitudes around security, political stability and the expression of Arab identity reinforce the Arab community’s feelings of disadvantage. However, in its view the applicant’s claims presented more as a recitation of Ahwaz Arabs’ complaints, rather than a reflection of his past personal circumstances.

24. As discussed at the hearing, the applicant’s and his family’s past and current circumstances do not suggest that he faced discrimination amounting to persecution or significant harm on the basis of his Arab ethnicity. For instance, he received a private education, he successfully completed military service, he qualified and worked as a [Occupation 1]; he claimed to have owned a house and two cars at the time of his departure from Iran; his immediate family continue to live in their own home in a comfortable part of Ahvaz; and the three brothers operate a business. These factors suggest some degree of stability and material comfort.

25. During the course of the review, the applicant emphasised his family’s loss of wealth and standing over the years (see the separate claims below). He also commented that some of their ‘privilege’ is illusory; for instance, the family home is now overcrowded, and his two cars [are] not even roadworthy. The Tribunal acknowledges that discrimination takes many insidious forms, including foregone opportunities and lack of security, and that a person’s biography or material possessions may not be conclusive evidence of the presence or otherwise of discriminatory practices. Nonetheless, having regard to the applicant’s and his family’s circumstances as a whole, the Tribunal does not accept that he has experienced discrimination amounting to persecution or significant harm, as an Ahwaz Arab or for similar reasons.

    Family background and profile

26. SHEV application: The applicant claimed that his family, and particularly his father, have a local profile. There were three inter-related strands to this:

    a)their long association with the former Shah of Iran, Mohammad Reza Pahlavi. [Details deleted];

    b)his father is a respected elder of the [named] tribe; and

    c)the family previously owned land and [buildings].

    Association with the Shah

27. SHEV application: The applicant referred in his statement of claims to his family’s association with the Shah’s former regime, and the incoming Islamic government’s lasting suspicion and surveillance of them as a result. The pre-hearing submission contends that [former] supporters of the Shah and ‘monarchists’ are, in the Iranian context, exactly the same. At hearing, the applicant confirmed his family’s links with the Shah’s regime, and [Mr B] intimated as much when briefly referring to the family’s experiences.

28. Previous claims and evidence: The applicant has consistently stated that his family enjoyed significant wealth, in property, shares and other assets, under the Shah’s regime. At the entry interview, for instance, his references to his grandfather having leased land to the former government and the family’s change of fortune after the Islamic Revolution, further suggested some family association with or patronage under with the Shah, and local influence (although not overtly political). He wrote in his December 2010 statement that his family donated [number] hectares to the government, on which they built a [specified building]. In return, his grandfather received from the Shah [gifts].

29. During the IMR process (and as noted in the delegate’s decision record), the applicant also claimed that his father had some kind of political role during the Shah’s regime, perhaps gathering ‘intelligence’.

30. Assessment: The Tribunal accepts, on the basis of the applicant’s consistent evidence over time, that his grandfather and father had links with the Shah’s regime up to 1979, and that this was closely linked with their authority within the [named] tribe and their wealth. The Tribunal also accepts that there is, inevitably, some political dimension to this kind of association. However, the Tribunal finds more problematic the applicant’s suggestion that his father, and hence the family, has some longer-lasting political profile through these links. At hearing, he was unable to shed light on what his father’s connections with [Country 1] were during the early 1980s, for instance, the circumstances of any time spent there, his return to Iran or the possibility that his father has (or once had) [Country 1] citizenship. By his own evidence, these events occurred when he was very young, and he has not had the interest or chance to seek details from his father. In these circumstances, the Tribunal is not satisfied that the applicant has any specific information about his father’s role before his birth, such as whether he undertook intelligence or similar activities on behalf of the Shah’s regime.

1. The Tribunal readily accepts that the family’s past association with the Shah’s regime prior to 1979 is known locally and is part of their overall reputation or profile. While it accepts that current (oppositional) monarchist groups in Iran may draw on the Shah’s former beneficiaries as one source of support,[10] it does not accept at face value the suggestion in the pre-hearing submission that former support for the Shah is tantamount to having an (ongoing) oppositional profile.

   [10] See for instance, Danish Refugee Council and Danish Immigration Service 2009, Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc: Fact finding mission to Iran 24th August – 2nd September 2008, April, pp.20-21:  

   Father’s role within the [named] tribe

2. SHEV application: The applicant wrote that his father is a cultural and tribal leader who can influence community views. At the Department interview, he spoke of driving his father to village meetings, which were mostly small and held with some degree of caution (due to government monitoring). The main purpose of the meetings was to resolve issues so that locals did not need to consult the authorities.  At hearing, he reiterated his father’s authority, based on his position within the tribe, as well as his links with the Shah and his wealth.

3. Previous claims and evidence: The applicant has consistently claimed that his grandfather and father held positions of authority in the [named] tribe; and that his father is an elder and leader. As noted in the delegate’s decision record, he has on occasions given some examples of his father’s role, such as resolving intra-tribal disputes, assisting local youth, and buying and selling Arab clothing.

4. Assessment: The Tribunal accepts on the available evidence that the applicant’s father is a local elder or leader, and that he continues to exercise some such role to this day. It accepts that such functions involve some local influence and hence, sensitivities from time to time. However, it is not satisfied on the limited available evidence, and given the circumstances of the applicant’s father (such as his continued function as an elder, and residence in the area) that it is, or is perceived to be a pro-Arab or oppositional political role. Moreover, it finds this of marginal relevance to the applicant’s own profile in his home area, even if he drove his father to meetings from time to time.

   Family’s wealth

5. SHEV application: The applicant wrote in his statement of claims about his family’s affluence before the Islamic Revolution, and how this had made them targets, for political and material reasons. For instance, his father [owned a variety of properties]. At hearing, the applicant said that the family currently own only the family home and some land which cannot be cultivated, although the government now wants to also seize that to build army camps. In response to the Tribunal’s observation that the family still has a residence in a  reputedly comfortable part of the city, at least some land and a family business, the applicant replied that the land has oil under it, which the Iranian government wants to extract without paying compensation. [Mr B] also confirmed, in general terms, that the government had confiscated some family property in the past.

6. Previous claims and evidence: The family’s former wealth has featured prominently in the applicant’s claims from the time of his arrival in Australia. For instance:

   §  In his entry interview, he is recorded as stating that his grandfather leased property to the government; and he suggested that his grandfather’s objections to property confiscations played some role in his (the grandfather’s) arrest, torture and death, in the early 1980s. He said that his family had owned three houses and [number] hectares of land.

   -   The government had seized ‘all’ their houses and property, including land on which the government was going to build a [specified building]. The remaining land is not suitable for building or for sale. He also said that the government was now planning to seize the family’s money and shares, amounting to USD millions. Only the family home is left.

   §  In a similar vein, the applicant wrote in his statement of claims in December 2010 that his grandfather had donated [number] hectares of land to the Shah’s government to build a [specified building], in return for [gifts].

   -   However, the current government started seizing the family’s property in the 1980s. To avoid such seizures, his father had transferred some titles to the children. The government had already taken some [number] hectares of land and two apartments, and (at the time of the statement) were trying to take another [number] hectares of land. Etala’at agents had come to the home many times, looking for title deeds. The submission of 1 August 2011 adds that it was in 2009 or 2010 that the government confiscated the [number] hectare land parcel; at the IMR interview, the applicant said this happened in 2003 or 2004.

   §  The applicant referred to house searches, as officials look for title deeds (which had been issued under the earlier land registration system).

7. Assessment: The applicant has provided considerable detail about the family’s substantial property holdings over time. Even so, the Tribunal found it difficult to get a clear picture of the overall financial situation. For instance, he has claimed that the family had three (or perhaps more) houses, and a range of other property and shares amounting to USD millions; that the Iranian authorities started chasing these assets from about 1980; and that his father transferred some titles to the applicant’s siblings, who used different names to hide the assets. The Tribunal queried how, then, his father was able to gift him the house in [Address 1] following the completion of his military service in 2001, in his own name, and more than 20 years after the Revolution. The applicant did not provide any real insights into this.

8. On the evidence as a whole, the Tribunal accepts that the applicant’s family was very wealthy during the Shah’s regime; and their wealth has declined markedly since the Islamic Revolution. It also accepts that the government has confiscated some of their property in the past; country information indicates that the Iranian authorities have confiscated Arab-owned land in a discriminatory manner. However, the Tribunal is not satisfied that the applicant has provided a complete or wholly reliable account of the family’s current wealth, or their position over the past 40 years. It finds that the family remains reasonably well-off, and it is not satisfied that the applicant has suffered any serious financial or related harm, directly or indirectly, as a result of any past property losses.

   Targeting of family

9. SHEV application: The applicant claimed that, after the fall of the Shah (1979), the new government viewed the whole family with suspicion, as former supporters and beneficiaries of the former regime. The applicant learned that, shortly after his birth in [year], the revolutionary guards and basij arrested, tortured and killed his grandfather.

10. The applicant claimed that his family were subjected to ongoing harassment and surveillance. For instance, since 2006, the basij had arrested his father six or seven times, typically detaining and questioning him for a few days before releasing him again. Meanwhile, the family was under constant pressure. The applicant wrote that, despite this ‘we still continued our support for the Ahwaz nationalist liberation movement in secret’, implying that the Iranian authorities targeted both him and his father for Ahwazi activism.

11. At hearing, the applicant restated his grandfather’s and father’s experiences in the early years after the Islamic Revolution. He believes that his grandfather was killed shortly after his (the applicant’s) birth; and his father went to [Country 1] in the early 1980s, returning to Iran while the applicant was still young. The applicant said that his father remained under scrutiny. He was not sure how his family had retained their property during this turbulent period. [Mr B], in his evidence, gave general information about the family’s experiences.

12. Assessment: The Tribunal accepts as plausible, and consistent with general country information, that the applicant’s grandfather and father suffered serious or significant harm in the immediate wake of the Islamic Revolution, when the applicant was an infant. It also accepts that the local authorities consider the applicant’s father as a person of some ongoing influence, at least within the tribe. However, the Tribunal does not accept that this leads them to monitor or keep the family under any intrusive scrutiny. Moreover, the Tribunal finds unreliable, and does not accept, that the Iranian authorities have continued to detain his father, and harass or intimidate other family members in the process. The Tribunal places weight on the fact that the family continues to live in their home and operate a local business. It also takes into account the applicant’s vague evidence about his father’s repeated detentions and the authorities’ motivations (whether the family’s historical background, or more recent NLMA links). These factors, together with its view that the applicant is prone to change, exaggerate and misconstrue his evidence, lead the Tribunal to reject his claim that his father has been subject to repeated questioning, detention, etc.

    Pursuit of title deeds

13. SHEV application: The applicant wrote that, from 1980 onwards, the new Iranian government started confiscating the family’s properties without compensation. To avoid this, his father started transferring the titles to his sons, and physically hide the land title deeds. From this time on, government agents would appear at the family home unannounced, and search for the title deeds. During these searches, they were rough, abusive and threatening. The applicant’s father used to claim that the title deeds were lost. The applicant intimated that, while the property was the immediate goal, the officials’ pursuit of the family was also linked to the family background. His statement indicated that the family was still wealthy, but had lost assets between the Islamic Revolution in 1979 and his departure from Iran in 2010, over thirty years later.

14. At hearing, the applicant referred to officials’ ongoing efforts to find title deeds, but restated that their real motivation is not the property, but the family’s background and perceived political interests. He added that his NLMA links have added to official’s adverse interest in his family.

15. Previous claims and evidence: As noted above, the applicant has over time given some insights into his family’s past and current wealth, although as noted above, it has been difficult to obtain a single consistent account. .For instance:

    §  In his entry interview, he is recorded as stating that his grandfather leased property to the government; he suggested that his grandfather’s objections to property confiscations played some role in his (the grandfather’s) arrest, torture and death, i.e. in the early 1980s.  He said that his family had owned three houses and some [number] hectares of land. The government had seized ‘all’ their houses and property, including land on which the government was going to build a [specified building]. The remaining land is not suitable for building or for sale. He also said that the government was now planning to seize the family’s money and shares, amounting to USD millions. The family now has only the house that they live in.

    §  In a similar vein, the applicant wrote in his statement of claims in December 2010 that the government started seizing the family’s property in the 1980s, and his father had transferred some titles to the children, to avoid this. The government took [number] hectares of land and two apartments; they were (at the time of the statement) trying to take another [number] hectares of land. Etala’at agents had come to the home many times, looking for title deeds. The submission of 1 August 2011 adds that it was in 2009 or 2010 that the government confiscated the [number] hectare land parcel; at the IMR interview, the applicant said this happened in 2003 or 2004.

    §  The applicant referred to house searches, as officials look for title deeds (under the earlier land registration system).

16. Assessment: The applicant claims that the Iranian authorities followed up the confiscation of the family’s properties – their houses, apartments and land – with the dogged pursuit of the original title deeds, which his father managed to conceal from the authorities. The authorities conducted regular home raids, in which they pushed and shoved family members, detained the applicant’s father and generally intimidated them. [Mr G] went on to suggest that, without detailed knowledge of how the Iranian land title system works, one could not discount the possibility that these old title deeds were of interest to the authorities, as the family might rely on them to make future property restitution claims, if the Iranian regime were to fall.

17. The Tribunal has significant doubts about the truth of these claims, and their relevance for the applicant. First, for the reasons stated above, it is not satisfied that the applicant has provided a complete and reliable account of the family’s property holdings. In particular, his father’s (claimed) transfer to the applicant of a house, in his own name, in 2001, raises doubts about the applicant’s claims of the other properties having been transferred to other siblings, using false names. Second, in the absence of any imminent regime change, there is no obvious reason why the Iranian authorities continue to search the family home for title deeds some 40 years after the Revolution. Third, the fact that the applicant’s father and most of his brothers still live in the family home casts doubt on the applicant’s account as to the frequency or impact of such raids or harassment, or at the very least, on their relevance to him (as the youngest child).

18. In the Tribunal’s view, the applicant has advanced this claim to suggest that the Iranian authorities’ past confiscation of property (which may have been on discriminatory grounds, or on some other basis) has some ongoing relevance to his prospects if he returns to Iran. Given the above concerns, the Tribunal does not accept that the Iranian authorities continue to search the family home regularly, looking for title deeds; or that they harm or intimidate family members during any such searches.

    Political profile

    Adverse profile through family association

19. SHEV application: The applicant claimed that his family had some adverse political profile, due to his father’s role as an Ahwaz Arab tribal leader with a close association with the former Shah regime. He claimed that, after joining his brother’s [shop] (in about 2006), he used to drive his father to tribal and community meetings. He wrote that he ‘escorted’ his father to these meetings, for safety reasons. He suspects that these activities – together with his non-observance of Muslim rituals – led the Iranian authorities to take an adverse interest in him. This implies that they may already have viewed him as having an anti-government political opninion.

20. At hearing, the applicant said that prior to 2005 (when he claims to have joined the NLMA), he had observed some of their discussions from afar, but not participated. Asked about his father’s tribal role and his (the applicant’s) travel to such meetings, he replied that these were tribal, and not political meetings.

21. Assessment: The Tribunal is not satisfied that the applicant has an adverse political profile due to his family background, particularly taking into account its findings about the current relevance of their past links with the Shah, and the fact that his older brothers remaining living and working in Ahvaz. It also finds that he has no adverse profile as a result of driving his father to tribal meetings. It prefers his oral evidence at hearing that this work was not political (or perceived as such), to the suggestion in his statement of claims

    Applicant’s activities and profile in Iran

22. SHEV application: The applicant wrote in his statement of claims that, against the backdrop of growing Iranian government oppression of the Arab population and the emergence of a resistance movement, in 2005 he made contact with members of the National Liberation Movement of Ahwaz (NLMA), associated with the Ahwazi Human Rights Agency (AHRA). He decided to join the organisation, and participate in its secret activities.

23. By way of background, the Tribunal notes general country information from around the time of the applicant’s arrival in Australia that the NLMA was founded in 1982 and describes itself as ‘…an Ahwazi political organization that struggles for the Liberation of Ahwaz in line with the aspirations of the people of Ahwaz in their right for independence and under the international law.’[11] Its current website, describes goals for the establishment of an independent Ahwazi nation.

    [11] ‘History of the National Liberation Movement of Ahwaz (NLMA)’ (undated), National Liberation Movement of Ahwaz, NLMA website - Accessed 6 September 2011, no longer available.

24. The applicant claimed he was ‘in charge of organisation recruitment in my tribe and also of the distribution of publications, statements and CDs.’ His main focus was on distributing information; he ‘did not focus much on the recruitment side’. He described the materials as highlighting the persecution of Ahwazi Arabs and calling on them to join the resistance movement. He undertook these activities throughout the year, but at the end of Ramadan each year he and others (‘we’) would organise marches to demand rights for Ahwazi Arabs.

25. The pre-hearing submission reiterated that the applicant mainly engaged in information-sharing, rather than recruitment, although it went on to state that he used to help organise an annual gathering at Ramadan. For the main part, it sought to address inconsistencies in the applicant’s account of his political profile, over time.

26. At hearing, the applicant said that he joined the NLMA in 2005, motivated by his concern about the injustices facing the Ahwazi Arabs in Iran. His responses to the Tribunal’s questions tended to describe the nature of the injustices, in somewhat animated terms, rather than his own political activities. Asked about his father’s or brothers’ interest in the NLMA, the applicant replied that they are not members, although most members of the [named] tribe are members or sympathisers. The applicant did not give any further insights as to what circumstances had led him, the youngest son, to join (rather than other male family members), other than stating that he was moved by the injustices he witnesses, and observing that ‘everyone is different’.

27. The applicant said that, prior to 2005, he sometimes listened to or observed discussions involving the NLMA, mainly around Ramadan, from a distance, but had no other contact or direct exposure.

28. The applicant said that he used to distribute pamphlets and CDs, and also recruited members of his tribe to join the organisation. He said he gave pamphlets to those who could read, and CDs to the illiterate. Asked about the organisation and funding for these activities, and the content of the materials, the applicant replied that he acted alone. Responding to the Tribunal’s surprise at this, he answered obliquely that the NLMA acts secretively and he was not able to talk about it. It was not clear from his response whether he was addressing his lack of detail about the activities in Iran, or his failure to mention any political activities in his earlier statements (that is, prior to August 2011). He then added that he undertook these political activities with two people, [Mr H] and [Mr I], both of whom died in 2013.

1. The Tribunal asked about the applicant’s other political activities, such as being in charge of ‘organisational recruitment for the tribe’. He said that he spoke to people in his tribe about their Arab heritage and the oppression they face. He said that, when he started recruiting for the NLMA, in around 2006, few people had satellite television or other access to information about the liberation movement. Hence, they lacked knowledge. The Tribunal mooted that local people would have been well aware of their cultural heritage and discrimination, and wondered what new information he could give them. He did not reply substantively.

2. The applicant’s relative [Mr B] gave evidence that he used to live about 10km from the applicant in Ahvaz. He knows from the family that the applicant was a member of the NLMA, but did not know what activities he undertook and did not observe them directly.

3. The applicant said that he did not have any contemporaneous evidence from this period, as there were few mobile devices or other equipment to record data. He referred only to the AHRA letter of May 2011. He said that he did not wish to add anything to the reasons he had previously given for not mentioning any personal political claims before August 2011.

4. Supporting documents: The applicant provided a letter dated [in] May 2011 from the Ahwazi Human Rights Agency (AHRA) of the National Liberation Movement of Ahwaz (NLMA); and a photocopy of a letter dated 1999, by former Minister Mohammed Ali Abtahi. (The Tribunal addresses the 2011 letter first, since it mentions the applicant by name and appears directly relevant to his claims.)

5. The letter [of] May 2011 is from [an official] of AHRA (NLMA). The letterhead has a telephone number in Washington DC, and three web addresses[12]. It confirms that the applicant is an ‘Ahwazi political activist’ and a member of the NLMA since 2005. It states that Iranian intelligence agencies are hunting for him and will execute him; and that he was forced to leave Iran to avoid arrest and death. It requests the Australian authorities to grant him political asylum.

   [12] These are and

6. The applicant’s submission of 23 October 2020 notes that the delegate accepted that the NLMA issued the letter [of] May 2011[13]. The Tribunal also accepts that an NLMA office issued the letter in May 2011, in support of the applicant’s bid for permanent residency, and at the request of the applicant or someone acting on his behalf. As discussed below, the issue is not the authenticity of the letter, but rather the reliability of its contents.

   [13] See submission of 23 October 2020, paragraph 22, and delegate’s decision record, page 30.

7. The applicant also provided copies of several emails, with dates in July and August 2011, August 2012 and August 2013, from the email address arabic-al.ahwaz.com. The emails state that these are from the Ahwaz Network, a media site for the NLMA. These appear to be automatic translations of Arabic language emails. They contain seasonal greetings to a large number of recipients (the printed emails reveal the names of only a few), and in one instance, background information on the NLMA.

8. The Tribunal understands the applicant to have presented these emails as evidence to show his ongoing association with the NLMA, and hence to lend credibility to the letter [of] May 2011. They do not show the applicant’s name, and do not pre-date the May 2011 letter. The Tribunal accepts that the applicant has received copies of NLMA emails from July 2011 on, and may also have been the recipient of these emails. However, it is unclear who sent them to him, the circumstances which led them to do so, or whether they form part of any association with the NLMA before May 2011, or on an ongoing basis. The Tribunal finds the applicant’s possession of these emails to be of minimal probative value.  

9. The Tribunal notes the representative’s suggestion in the October 2020 submission that the delegate could have contacted the NLMA, in particular in relation to the May 2011 letter – and by implication, that the Tribunal could also pursue this avenue of inquiry. The Tribunal has carefully considered whether contacting the telephone or email addresses contained in those materials is an obvious inquiry that could readily confirm the key facts. It notes that the authenticity of the letter (and the emails) is not in doubt, i.e. that they come from a group in the USA claiming to represent the NLMA in exile. The Tribunal’s concern lies rather with the reliability of the statements, namely that the applicant had been an NLMA activist in Iran from 2005 and that Iranian intelligence is hunting for him. In this context, it is worth noting that the applicant himself emphasised the secrecy of the NLMA’s activities in Iran, and that the representative also wrote in October 2020 that the applicant ‘made clear statement [sic] during the IMR to the effect that membership was kept secret in Iran and was not publicly disclosed, going on to state that not one member knows all other members’. In light of these comments, the Tribunal considers that, if it were able to make contact with the NLMA office in the USA, via telephone numbers or emails provided in the period from 2011 to 2013, they may be able to confirm the applicant’s approach to them in 2011 and their acceptance of his professed interest. However, it is not satisfied that this is an obvious inquiry through which it could confirm either the applicant’s NLMA activities in Iran, or the Iranian authorities’ pursuit of him. The Tribunal considers that the applicant has had been alerted to concerns about this letter, and has had the opportunity to seek information from the NLMA (for instance, about its vetting practices when asked for letters of support).

10. The 1999 letter, characterised as a copy of a letter that the former Iranian Minister Mohammed Ali Abtahi wrote in 1999, sets out instructions to reduce the Arab population in Khuzestan by one third, to disperse the Arab population to other parts of Iran, and to eradicate Arab culture. In the Tribunal’s view, the applicant’s current possession of this letter is consistent with his claim to have contacted and obtained documents from the NLMA, but it does not shed any light on his involvement with the NLMA in Iran, his political convictions, or the Iranian authorities’ perceptions of him.

11. Previous claims and evidence[14]: In his entry interview on 16 October 2010, the applicant is reported as having answered ‘no’ to questions as to his past association or involvement with any political group or organisation; his involvement in any activities or protests against the government; and similar involvement for any members of his family.

    [14] Note: This information is set out in the delegate’s decision record relating to the SHEV application, a copy of which the applicant presented to the Tribunal along with his review application. As noted elsewhere, this sets out the history of the applicant’s claims and evidence in considerable detail. The Tribunal has satisfied itself as to the accuracy of this information by checking the original Department files. It has also taken into account the applicant’s comments in the submission of 23 October 2020, in which included concerns about aspects of the delegate’s summary.

12. In his statement of claims in December 2010, the applicant disclosed new information, namely that he had been arrested in 2009 (September) and 2010 (July). He wrote that the only reason he could think of for the arrests was his family’s political history; although during the second arrest, officials falsely accused him of distributing propaganda (Tribunal’s underlining). At the RSA interview later that month, he confirmed these claims. Again, there was no mention of his own political activism, apart from his confirmation that he had been falsely accused of distributing propaganda on his second arrest.

13. The applicant first presented claims of his own political involvement in August 2011, i.e. shortly after receipt of supporting document from the NLMA. He explained his earlier omission by stating that, given the NLMA’s extreme secrecy in Iran, he had been afraid to disclose his membership earlier. He had first sought assurance from the NLMA leadership in the USA.

    Political contacts and activism in Australia

14. SHEV application: The applicant claims to have an ongoing commitment to Ahwazi Arab activism, and relied on it in part to demonstrate his past political profile in Iran. He provided a range of materials relating to political activism. These are, as follows:

    §  Screenshots of emails from ‘[email address]’ between 3 July 2011 and 8 August 2013. One of these is an Eid Al-Fitr greeting, sent by email on 8 August 2012 to undisclosed recipients, with religious and political content, from the NLMA’s Ahwaz Network. Another is an English language background article on Ahwaz.

    §  Screenshots of [social media] postings in an account named ‘[Name 2]’, one page for June 2018, and others for the period April to May 2020. These contain pro-Ahwazi content, in which the author shares materials from Ahwaz TV. On 13 November 2020, the applicant sent some examples from an earlier [social media] account in the name ‘[Name 1]’, showing that in December 2011 and June 2012, he had shared some links from Ahwaz TV.

    §  Recent screenshots of [communication app] exchanges, in Arabic with English translations, between 29 August and 12 October 2020, described as evidence of his correspondence with NLMA leadership. In these, the applicant appears to greet ‘uncle’ [Uncle D], who according to the translator has an NLMA logo next to his image on the correspondence. This person sends the applicant links to Al-Ahwaz.com news articles and videos.

15. The applicant has provided no other persuasive evidence of ongoing political activities, for instance, through contacts during his period outside immigration detention (2012-2017), participation in community activities, or through his relatives in Australia.

16. The Tribunal found it difficult to gain insight into the applicant’s online activities, such as the motivations for his postings, why he has different accounts in the names ‘[Name 2]’, ‘[Name 1]’ and ‘[Name 3]’; and how many friends or followers he has (the last of these in order to gauge whether he has a following or potential influence that might come to the attention of the Iranian authorities). At hearing, the Tribunal asked how many [social media] friends or followers the applicant had on his various accounts, to help it consider the potential reach of his postings. In reply, he guessed that some 5,000 people might follow the [social media] account in the name of [Name 3]; and maybe 2,000 [Name 1]’s account. The Tribunal has received no further information about this, even though it would be relatively easy for the applicant to access one or both of these accounts to check the number of people who see his posts.

17. The Tribunal alerted the applicant to s.5J(6) of the Act, and the requirement that, when assessing his refugee claims, it disregard conduct in Australia unless he satisfied it that he engaged in it otherwise than for the purpose of strengthening his claim to be a refugee. He suggested that it was a continuation of the political activism that he started in 2005. In his written and oral submissions, however, [Mr G] stressed the applicant’s reliance on social media postings as one of his protection claims, noting that the Iranian intelligence services have their own cyber-intelligence wings, and could readily detect the applicant’s online activity in promoting Ahwaz Arab politics and the NLMA.

18. The Tribunal has significant concerns about the applicant’s evidence of his online political activities since arriving in Australia. First, it is unable to detect that the email or online messages with the NLMA were directed to him personally. Second, the applicant has given minimal information about his accounts, such as when they were set up, the names he has used, or the number of friends or followers he has. Third, the timeframes for this online activity are quite narrow, leading the Tribunal unable to be satisfied that this has been a continuum of political engagement. Fourth, for the main part, the messages consist of weblinks or text that someone has sent to the applicant; there is little to indicate that he has expressed let alone circulated his own political opinion. Finally, even if the Tribunal accepts that the applicant is a proud Ahwaz Arab, it is not satisfied that he engaged in online activity – that is, as the (probable) recipient of emails, [social media] postings and a [communication app] with an [Uncle D] – otherwise than for the purpose of strengthening his claim to be a refugee.

19. Assessment: The Tribunal has significant concerns about the applicant’s claim to have been a member of the NLMA; to be committed to Ahwaz Arab activism; and to have an adverse profile in Iran as a political dissident.

20. First, it places weight both on the applicant’s failure to mention any NLMA association prior to August 2011, and on his earlier specific denial of any political association at all. It finds unpersuasive the applicant’s claim that he did not feel able to advance such claims before clearing it with NLMA leadership in the USA, given the secrecy of the organisation and the dangers it faces in Iran. It also does not accept that other factors, such as his lack of familiarity with processes in Australia, adequately explain his change of evidence.

21. Second, the Tribunal found the applicant’s description of his role in distributing NLMA materials, and helping with other activities (such as ‘recruitment’ or organising annual meetings) shallow and uninformative. He struggled when asked at hearing about practical issues, such as the funding, preparation and logistics of distributing printed materials and CDs in the local area, and describing how he used to lobby for the NLMA. The applicant claimed that the NLMA’s secrecy, and its operation through small cells such that members did not know of each other, explained his limited views. However, this does not sit well with his other evidence that almost all men in his tribe were supporters to some extent. More generally, the Tribunal formed the impression that the applicant was not drawing on his past personal experiences at all, but rather imagining what such political work would entail.

22. Third, [Mr B]’s brief statement that the applicant is an NLMA member is of limited value as independent corroboration of the applicant’s claims. It does not assuage the Tribunal’s broad concerns about the genuineness of the applicant’s claims.

23. Fourth, while the Tribunal accepts that AHRA (NLMA) wrote a letter of support for the applicant in May 2011, there is minimal evidence about the applicant’s contacts with that group in the USA; or whether or how they verified the contents of the letter. The Tribunal finds it to be of minimal probative value.

24. Fifth, the applicant’s other documentary evidence – such as his possession of a 1999 letter and of online messages from Ahwaz groups, and his occasional social media postings – shed little light on his past interests or activities in Iran, and do not displace the concerns above.

25. Taking these concerns, and the evidence as a whole, the Tribunal finds that the applicant had some general awareness of Ahwazi Arab issues (such as discrimination, cultural rights and politics), but that he did not have any political opinion, or personal interest or involvement in these matters, and was not a member of the NLMA. The Tribunal’s rejection of this fundamental claim raises broad concerns about the credibility of his claims and evidence as a whole.

    Past adverse experiences in Iran

    Applicant under surveillance

26. The applicant has variously claimed that, due to his family’s background, his role as driver for his father when attending tribal meetings, and their suspicions of his links with the NLMA, he felt under continuous scrutiny or surveillance. In light of the above findings – in relation to the family’s profile, his own lack of political engagement, and his credibility generally – the Tribunal does not accept that he was subject to any official scrutiny.

    Applicant’s arrests

27. The applicant stated in his entry interview in October 2010 that he had not been arrested or detained; the authorities had harassed him and his family, demanding property, but never physically harmed him. From December 2010, he referred to two arrests, one in September 2009 and another in 2010 (July or September). This change in evidence was discussed briefly at the Tribunal hearing, and has been subject to detailed consideration in the delegate’s decision record and previous decisions.

    First arrest, September 2009

28. SHEV application: The applicant claimed that [in] September 2009, he was driving home from a shopping trip when the basij pulled him over at a checkpoint. He was wearing traditional Arab dress at the time. The basij asked him to present his ID card and driver’s licence. They proceeded to search the car ‘roughly’, causing damage.

29. The applicant wrote that they were looking for NLMA documents, because they suspected him of working for the NLMA. However, he had taken the precaution of not having any documents on him, as he knew the authorities actively looked for dissidents during Ramadan.

30. The Basij arrested him for offences relating to insulting the values and beliefs of the Islamic Republic of Iran and conflict with members of a ‘disciplinary force’. They detained him for three days. The applicant had to sign a paper prior to his release. He asked about its contents; the Basij refused to tell him but threatened to put him back into custody if he persisted with the questions.

31. The pre-hearing submission states that the applicant ‘thought’ the basij were looking for NLMA and suspected him of being an activist; that there was an argument after he refused to sign a form; and that he also ‘certainly thought’ that his family history had something to do with the conflict. It goes on to state that the basij were verbally abusive against Arabs in general, and the applicant in particular. Before his arrest, the applicant had sought to defend Arabs. The clear implication is that the applicant considers his Arab accent and the Arab attire contributed to his detention and the subsequent assault. He had to sign a statement prior to his release.

32. At hearing, restated that he was returning from shopping, in Arab attire. The basij accused him of wanting to protest, and an argument ensued. The basij travelled with him in his car to the police station. At the station, they forced him to sign an undisclosed document. Asked if he now knows what it contained, the applicant replied that they were orders banning the wearing of Arab clothing, and gatherings of three or more people.

33. Previous claims and evidence: As noted above, the applicant made no mention of any arrest in his entry interview in October 2010. Over time, he has provided the following accounts[15] of what happened on the first occasion:

    §  In the December 2010 statement of claims, he wrote that the basij detained him for four days in 2009, when he was passing a basij checkpoint. The reasons are unknown.

    §  During the RSA process, he claimed that the basij guard detained him when he argued about the requirement to fill in a form. In the statement of 4 August 2011, he added that the first arrest took place because he was wearing Arab clothes.

    §  On 25 February 2015, the applicant claimed that the basij pulled him over in September 2009 on suspicion of distributing propaganda. They were abusive towards Arabs and detained the applicant when he argued with them. On 25 June 2015, the applicant provided further information, namely that he was beaten up at the basij station and that, after his release, the police used to raid him home and ask him to sign undertakings not to wear Arab dress, to go out late at night during Ramadan, or to associate more than three friends.

    [15] The Tribunal drew from the delegate’s decision record, and discussed these with the applicant at hearing.

1. The applicant’s [social media] accounts have been in the name ‘[Name 1]’ and ‘[Name 2]’, rather than his real name. The applicant suggested that the Iranian authorities could identify him from his profile photograph, although it is not clear if the photograph is distinct enough to permit anyone to positively identify him. The postings cover brief periods in 2011/2012 and 2018-2020. The applicant claimed to have had another [social media] account which he can no longer access, as he lost both the account password and also the mobile telephone which [social media] would have needed to authenticate his account by sending an SMS code. The Tribunal views this explanation with scepticism. The Tribunal finds that, even if he had a previous account which he can no longer access, for whatever reason, he has had ample opportunity to obtain screenshots of any relevant material, for instance through friends he may have shared it with. The Tribunal does not accept at face value that there exists other material which the Iranian authorities might have access to, but which he does not.

2. For the main part, [social media] postings involve sharing material from Ahwaz.com and Ahwaz TV, with minimal if any commentary. When asked at hearing about his friends or followers on these [social media] accounts – in other words, whether he has a following that could be of potential interest to the Iranian authorities – he replied vaguely that he might have several thousand. The Tribunal considers that the applicant’s profile and account details would indicate the number of friends he has for each account. In its view, he could easily produce evidence, such as a screenshot, to show the number of people he has befriended on each account (regardless of whether this information is publicly accessible). On the available evidence, the Tribunal is not satisfied that he has any noteworthy number of social media friends or followers.

3. On the available material, the Tribunal accepts that the applicant has shared some Ahwaz-related material on [social media]. The postings appear to have been made within short timeframes; they do not include much (if any) original content or political thought; the readership is unknown, but almost certainly very modest; and it is unclear whether the applicant is identifiable as the account holder. In the Tribunal’s view, this is a far cry from the kind of open criticism or boundary-pushing content that may attract the adverse attention of the Iranian authorities.

4. The Tribunal finds that there is minimal chance of the Iranian authorities becoming aware of the applicant as the author of these postings, let alone regarding them as matters for concern. It therefore finds there is no real risk of the Iranian authorities taking an adverse interest in the applicant and targeting him on his return to Iran. As such, there are no substantial grounds for believing that the Iranian authorities will detain, interrogate or otherwise pursue him due to this limited online activity, thereby giving rise to a real risk of significant harm.

5. The applicant also produced some evidence relating to email and [communication app] messages, purportedly with NLMA figures. As noted above, these appear to cover short timeframes (rather than evidence of ongoing correspondence), and details of the authors, recipient and context are sketchy. It is not clear whether the applicant presented this material merely as evidence of his NLMA membership (which the Tribunal has rejected, above) or whether he is also claiming that the Iranian authorities may intercept it and further motivated to harm him. In any case, the Tribunal does not accept that these exchanges give rise to any real risk of significant harm or contribute towards such a real risk.

6. The Tribunal takes into account that the applicant’s grandfather and father may have suffered significant harm during the 1980s; that the family have had property confiscated in the wake of the Islamic Revolution; and that there is some degree of ongoing, low-level official and societal discrimination against Ahwazi Arabs. Having regard to his circumstances as a whole - including as an Ahwaz Arab, as a member of a family previously associated with the Shah and with some ongoing profile within their tribe, as a person uninterested in religion and as a failed asylum seeker who has spent a decade in Australia, largely in immigration detention - the Tribunal is not satisfied that there are substantial grounds for believing that the applicant  will face a real risk of being arbitrarily deprived of his life, that the death penalty would be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment; or that he will be subjected to degrading treatment or punishment.

7. The applicant’s oral and written submissions variously refer to Iran’s political and religious make-up, its socio-economic conditions and its governance, and the relative disadvantage in south-western Iran. The Tribunal is not satisfied that the applicant personally has suffered significant harm as a result of such conditions, and it does not accept that there are substantial grounds for believing that he will in the future, as a necessary and foreseeable consequence of being removed from Australia to Iran.

8. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that he will suffer significant harm: s.36(2)(aa).

   Overall conclusion

9. The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

10. 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).

11. 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

12. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    James Silva
    Member

    
    

    ATTACHMENT - CRITERIA FOR A PROTECTION VISA

    The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

    A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

    Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

    If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

    In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.

    Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)    that is not inconsistent with Article 7 of the Covenant; or

    (d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)    that is not inconsistent with Article 7 of the Covenant; or

    (b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)    for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)    for the purpose of intimidating or coercing the person or a third person; or

    (d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)    a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H   Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:    For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J    Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)    the real chance of persecution relates to all areas of a receiving country.

    Note:    For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:    For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)   conceal an innate or immutable characteristic of the person; or

    (c)    without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)   the persecution must involve serious harm to the person; and

    (c)    the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)    a threat to the person’s life or liberty;

    (b)   significant physical harassment of the person;

    (c)    significant physical ill‑treatment of the person;

    (d)   significant economic hardship that threatens the person’s capacity to subsist;

    (e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K   Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)   disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:    Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L   Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)    a characteristic is shared by each member of the group; and

    (b)   the person shares, or is perceived as sharing, the characteristic; and

    (c)    any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)   the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)    protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)    the person can access the protection; and

    (b)   the protection is durable; and

    (c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36    Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)    the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)   the death penalty will be carried out on the non‑citizen; or

    (c)    the non‑citizen will be subjected to torture; or

    (d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)    the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)    the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …

    
    

companies, foreign governments, domestic opposition and international critics. ‘Iran and the Soft War for Internet Dominance’, Black Hat (United States), 1 August 2016, p. 1, CIS38A80123377