2015059 (Refugee)

Case [2021] AATA 5105

2015059 (Refugee) [2021] AATA 5105 (27 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2015059

COUNTRY OF REFERENCE:                   Iran

MEMBER:Jason Pennell

DATE:27 October 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 27 October 2021 at 10.17am

CATCHWORDS
REFUGEE – protection visa – Iran – political opinion – Marxist – grandfather a member of communist party – Tudeh Party – religion – Deist – imputed as apostate from Islam –particular social group – returned failed asylum seeker – grandfather imprisoned – family monitored – father interrogated and subject to security sanctions – mental health and treatment – potentially required to undertake military service – credibility – voluntary returns – delay in applying for protection – Tudeh Party disbanded – grandfather deceased and no harm to parents – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1), 5J(1)(a), 36(2)(a), (aa), 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

Applicant A v MIEA (1997) 190 CLR 225

Chan v MIEA (1989) 169 CLR 379

Maningat v MIMA (FCA, Tamberlin J, 30 April 1998)

MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

MIEA v Guo (1997) 191 CLR 559

MIMA v Darboy [1998] FCA 931

MIMA v Savvin (2000) 98 FCR 168

MIMA v Zheng [2000] FCA 50

Nagalingam v MILGEA (1992) 38 FCR 191

Pei Lan He v MIMA [2001] FCA 446

Prasad v MIEA (1985) 6 FCR 155

Savvin v MIMA [1999] FCA 1265

Selvadurai v MIEA (1994) 34 ALD 347

Subramanium v MIMA (1998) VG310 of 1997

V v MIMA (1999) 92 FCR 355

VCAD v MIMIA [2004] FCA 1005

Wang v MIMA (2000) 105 FCR 548

Woudneh v Inder (FCA, Gray J, 16 September 1988)

WZAOO v MIAC (2012) FMCA 1026

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 October 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).

  2. The applicant, who claims to be a citizen of Iran, applied for the visa on 8 July 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of…

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AGLC
2015059 (Refugee) [2021] AATA 5105
Case
[2021] AATA 5105
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision not to grant the applicant a protection visa. The applicant, an Iranian national, claimed to hold beliefs of political opinion and religion, and to belong to a particular social group, which would engage Australia's protection obligations under s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth). The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for a protection visa.

The legal issues before the Tribunal included whether the applicant held a genuine political opinion, specifically related to his grandfather's past membership in the Tudeh Party, and whether his Deist religious beliefs would lead to him being imputed as an apostate from Islam. Additionally, the Tribunal considered whether the applicant constituted a "returned failed asylum seeker" as a particular social group. The Tribunal also had to assess the applicant's credibility, taking into account his migration history, including a significant period of unlawful status in Australia, and the delay in lodging his protection visa application.

The Tribunal reasoned that while the applicant's grandfather had been a member of the Tudeh Party, the party had since been disbanded and the grandfather was deceased, with no harm befalling the applicant's parents. Similarly, the Tribunal found that the applicant's religious beliefs, while potentially leading to imputation as an apostate, did not, in the context of the available country information, establish a real chance of persecution. The Tribunal also concluded that the applicant did not meet the criteria for a particular social group as a returned failed asylum seeker. The Tribunal affirmed the decision not to grant the applicant a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.APPLICANT’S CLAIMS AND EVIDENCE The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision not to grant the applicant a protection visa should be affirmed. Applicant’s migration history The applicant first arrived in Australia [in] January 2007 when he was [age] years old on a TU 573 Higher Education Sector visa. Since his arrival, the applicant departed Australia on that Higher Education Sector visa on two occasions.[1] The applicant’s movement records are as follows: ·[01]-2007 Arrived in Australia, TU-573 Higher Education Sector visa·[07]-2007 Departed Australia, TU-573 Higher Education Sector visa·[07]-2007 Arrived in Australia, TU-573 Higher Education Sector visa·[11]-2008 Departed Australia, TU-573 Higher Education Sector visa·[12]-2008 Arrived in Australia, TU-573 Higher Education Sector visa[1] Department of Home Affairs - Mainframe Movement Records dated 17 June 2021, AAT File No: 2015059, Doc ID No: 8534516. The applicant’s TU 573 Higher Education Sector visa expired on 31 January 2011. On 7 February 2011 the applicant applied for a further TU 573 Higher Education Sector visa, which was refused on 16 March 2011, and as a result was granted a Bridging visa C (WC 030) on 7 February 2011, which expired on 22 April 2011. According to Departmental records, it appears the applicant remained unlawful in Australia for almost five years and three months until he applied for protection on 8 July 2016.[2] The applicant is currently on a Bridging visa C (WC 030) which has no conditions attached to it and has been onshore since 12 December 2008.[3] [2] Department of Home Affairs - Integrated Client Services Environment (ICSE) records.[3] Department of Home Affairs - Mainframe Movement Records dated 17 June 2021, AAT File No: 2015059, Doc ID No: 8534516. Prior to lodging his protection visa application in Australia, the applicant claimed that he only travelled to another country while in transit from Iran to Australia in 2007. That is, the applicant claims to have travelled through [Country 1] [in] January 2007.[4] The applicant claims he was born on [date] in Tehran, Iran and was unemployed at time of application.[5] [5] Protection visa application form dated 8 July 2016, Department File [Number 1], Doc ID No: [Number 2], p.14. The applicant claims he is a citizen of Iran and provided the Department with a certified copy of his Iran Passport expiring in 2010[6] and an uncertified copy of his Iran passport expiring in 2016.[7] There is no evidence before the Tribunal which indicates that these documents provided by the applicant to the Department were bogus as defined under s 5(1) of the Act.[6] Iran Passports, Department File [Number 1], Doc ID [Number 3].[7] Iran Passports, Department File [Number 1], Doc ID [Number 4].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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