2015059 (Refugee)
[2021] AATA 5105
•27 October 2021
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
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).
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 the Act).
The applicant appeared in-person before the Tribunal on Thursday 5 August 2021 to give evidence and present arguments. Due to the COVID-19 pandemic, the Tribunal exercised its discretion to hold the hearing in-person, determining it was reasonable to hold it in-person, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.
During the hearing the applicant was lucid and cognisant throughout. He gave evidence and made submissions in relation to each of his claims in a concise manner. In addition, he responded meaningfully and engaged with the Tribunal in relation to its questions in respect to each of his claims.
The applicant was assisted by his registered migration agent.
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 themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
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 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]
Applicant’s identity
[4] Protection visa application form dated 8 July 2016, Department File [Number 1], Doc ID No: [Number 2], p.39.
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].
The documents provided by the applicant are consistent with his evidence to the Tribunal in relation to his identity. There is no evidence to suggest that he has a right to enter and reside, whether temporarily or permanently, in any other country. Therefore, based on the documents provided by the applicant to the Department, the Tribunal accepts and finds that the applicant is a citizen of Iran as claimed and as such, his protection claims will be assessed against Iran as the country of reference and ‘receiving country’ respectively.
Claims for protection
The applicant first submitted claims for protection when he lodged his protection visa application to the Department.[8] The applicant’s claims are detailed in his protection visa application and his undated statement of claims[9] included with his protection visa application:
[8] Protection visa application form dated 8 July 2016, Department File [Number 1], Doc ID No: [Number 2].
[9] Ibid, Doc ID No: [Number 5].
Why did you leave that country(s)? Provide specific details
‘Please see attachment’
What do you think will happen to you if you return to that country(s)?
‘Physical, sexual and psychological abuse and torture, even facing the death penalty or a very long and indefinite prison time’
Did you experience harm in that country(s)?
No
Did you seek help within the country(s) after the harm? No – Give reasons for why you did not try to seek help
‘My family could not seek help in Iran as it was the Iranian authorities that were the threat to my family. There was no one that we could go to without putting my family at risk of harm’
Did you move, or try to move, to another part of that country(s) to seek safety? No - Give reasons for why you did not try to move to another part of the country(s)
‘No, the fear we faced was due to the government of Iran. The government could reach us wherever we went in Iran’
Do you think you will be harmed or mistreated if you return to that country(s)? Yes – Give details (including the type of harm or mistreatment you are likely to experience, the person/people who would be responsible for the harm or mistreatment, why they would harm or mistreat you
‘Based on the circumstances of my life before leaving Iran, if I return there, I will likely be arrested by the intelligence service agency and interrogated. In Iran, there are no rights for people who are being held in custody. If I refused to talk, there is no limits on the torture, abuse and all different types of interrogation techniques I would be subjected to. If I was to speak about my family history and my religious belief, I would be subjected to further torture. Given my religious beliefs, I will be subjected to sharia law and probably put to death. The government and sharia law believes that people like me are 'spreading corruption on earth' and therefore deserve to die to save the community. Under sharia, people are encouraged to execute people like me so that heaven comes upon them.’
Do you think the authorities of that country(s) can and will protect you if you go back? No - Give details about why you think the authorities could not, or would not, protect you
‘No, because it is the government and religious authorities that I fear. If I go home, I will be subjected to serious harm.’
Do you think you would be able to relocate within that country? No – Give details about why you are unable to relocate
‘The government has jurisdiction over the whole country, moving to another part of Iran will not make me any safer’.
The delegate summarised the applicant’s claims as follows:[10]
[10] Department File [Number 1], Doc ID No: [Number 6].
(a)His grandfather was an active member of the Communist ‘Tudeh’ Party in Iran prior to the revolution in 1979.
(b)Many members of the Tudeh Party were targeted by the Iranian government following the revolution and subjected to the death penalty due to their lack of Islamic faith.
(c)His grandfather chose to accept Islam to escape the death penalty.
(d)His family were monitored and watched by the Iranian authorities and were prevented from fleeing the country by the Iranian intelligence agency.
(e)Following an offer of promotion in the 1990s, his father was subject to interrogation by the Iranian authorities and was detained for a period of two weeks on two occasions.
(f)Following these interrogations, his father was subjected to national security sanctions which prevented him from obtaining any promotions in his employment.
(g)His family were subjected to ongoing surveillance by the Iranian authorities. He decided to leave Iran legally on a student visa.
(h)Despite declaring himself as a Muslim and a supporter of Islam in Iran, he considers himself a follower of ‘Deism.’
(i)He suffers serious psychological and mental health issues. He fears he will be subjected to forced detention. If returned to Iran, his psychological condition would deteriorate rapidly.
(j)He fears if returned to Iran, he will suffer serious harm in the form of discrimination, physical harassment, ill treatment, torture and possibly death from Iranian authorities on account of:
· His severe mental health condition and/or:
· His imputed political support for communist views arising from his grandfather’s affiliation with the exiled Tudeh Party.
· His actual political opposition to the current government in that he supports over-deterministic Marxist thinking.
· His religion on account of his system of beliefs under Deism and his family’s agnostic views.
Applicant’s evidence
In addition, the applicant’s oral evidence to the Tribunal was contained in a statement attached to his application for protection[11] visa and a Statutory Declaration dated 17 August 2018.[12]
[11] Protection visa application form dated 8 July 2016, Department File [Number 1], Doc ID No: [Number 2], p.14.
[12] Applicant’s Statutory Declaration dated 17 August 2018; Department File [Number 1], Doc ID No: [Number 7].
The applicant’s evidence was that he was born on [date] in [location], Tehran. The applicant is unmarried and has no children. He has a mother and father, who both reside in Iran, and a sister who resides in [Country 2].[13] The applicant’s evidence was that his father worked for [an employer] as an [Occupation 1], and his mother worked in a [workplace]. The applicant’s evidence was that he has a sister who currently resides in [Country 2].[14]
[13] Protection visa application form dated 8 July 2016, Department File [Number 1], Doc ID No: [Number 2], p.14.
[14] Ibid.
The applicant stated in his protection visa application form that he can speak, read, and write in Farsi and English and claims to be of Middle Eastern ethnicity and a Deist in religion.[15]
[15] Ibid, p.16.
The applicant’s evidence was that he attended school in Tehran, Iran. He attended [High School] in Tehran and [Pre-University], Tehran. In 2001 he commenced [a Subject 1] course at [University 1] but failed to complete the course, withdrawing from the course in 2003. In 2005 the applicant completed a Bachelor of [Subject 2] at [University 2], a [Country 3] based institute which the applicant attended by correspondence in Iran. In 2006 the applicant completed the first year of a Bachelor of [Subject 3] at the [Country 2, University 3] in Tehran, Iran.[16]
[16] Ibid, pages 41–42.
After arriving in Australia, in or about 2007, the applicant commenced, but did not complete, a Bachelor of [Subject 2] at [University 4] in Australia. In 2008 he completed a [Subject 3] training course in Melbourne. The applicant subsequently enrolled in a Bachelor of [Subject 4] at [University 4] and a Bachelor of [Subject 3] at [University 5] but did not complete either course.
In 2002 the applicant worked as [an Occupation 2] in Tehran, Iran. In 2003 he commenced working as an [Occupation 3] for [Employer 1] [doing a job task]. In addition, he worked as [an Occupation 4] for a company known as [Employer 2] in Tehran, Iran.[17] From 2008 to 2011, after arriving in Australia, the applicant worked in the [Subject 3] industry as [an Occupation 5] and [Occupation 6].[18]
[17] Ibid, page 40.
[18] Ibid, page 40.
The applicant claims that his grandfather was an active member of the Communist Party in Iran, known as the Tudeh Party, before the revolution.[19] The applicant’s evidence was that he was informed by his parents that his grandfather was employed by the Tudeh Party within [a] department and that his grandfather was responsible for organising [events] during the Iranian Revolution in 1978/79. The applicant’s evidence was that while the Tudeh Party was not Islamic, it partnered with the Islamic party during the Revolution to overthrow the Shah.[20]
[19] Protection visa application form dated 8 July 2016 (Applicant’s statement), Department File [Number 1], Doc ID No: [Number 5].
[20] Applicant’s Statutory Declaration dated 17 August 2018; Department File [Number 1], Doc ID No: [Number 7].
The applicant claims that after the revolution the Tudeh Party was the first group to be attacked because of their religious belief (they do not believe in the existence of God). He claimed that the Islamic government imposed the death penalty on many communist party members. The applicant’s evidence was that his grandfather was imprisoned twice due to his political and religious beliefs. The applicant claimed that his grandfather was initially imprisoned prior to the revolution for four to five years for his involvement with the Tudeh Party organising labour strikes. He was then accused of being associated with Soviet spies and was imprisoned for approximately two years.[21] The applicant claims that his parents informed him that they would visit his grandfather while he was in prison and that he was held at [Prison 1] and [Prison 2].[22]
[21] Ibid.
[22] Ibid.
The applicant’s evidence was that his grandfather was released following a plea deal in which he agreed to stay in the city of Tehran. To escape the death penalty and further penalties, he accepted Islam.[23] The applicant’s evidence was that his grandfather died when he was approximately 12 years old. His evidence was that his grandfather in his later years suffered from dementia and was admitted to a psychiatric ward where he was mistreated by the nurses and teased for being a non-believer.[24]
[23] Ibid.
[24] Ibid.
The applicant’s evidence was that his parents were not involved in the Tudeh Party in a significant way. Nevertheless, they were agnostic and the applicant’s mother from time to time would volunteer to hand out [leaflets] on behalf of the party. The applicant claimed that despite being agnostic he and his family would partake in the required religious practices and go to the Islamic noon prayers as required.
The applicant’s evidence was that a result of his grandfather’s membership of the Tudeh Party his family were watched by the Iranian intelligence agency. As a result, they attempted to flee the country under the pretence of a family holiday (‘the family trip’). It was planned that they would fly to [Country 4] and then to [Country 2] where they intended to seek longer term safety. None of his family had been out of Iran before. However, the applicant claims that the authorities were tipped off and as a result they were prevented from leaving Iran.[25] The applicant’s evidence was that just after purchasing the tickets and visas had been organised, his father received a visit whilst at work from security agents known in Farsi as ‘Vez’arat-e Ettela’at va Amniyat -e Keshvar’ (Ministry of Information and Security) who told his father they were not to leave the country.[26]
[25] Protection visa application form dated 8 July 2016 (Applicant’s statement), Department File [Number 1], Doc ID No: [Number 5].
[26] Applicant’s Statutory Declaration dated 17 August 2018; Department File [Number 1], Doc ID No: [Number 7].
The applicant’s evidence was that in the mid-1990s his father was offered a promotion at worked to the level of vice president.[27] His evidence was that in Iran it is the usual practice to obtain a police check and intelligence service agency check. The applicant’s evidence was that because of the authorities becoming aware of his promotion the applicant’s father was taken away by the security agency and interrogated on two occasions. The applicant claims that his father was taken from his work, blindfolded, and placed in a dark room upon where he was interrogated about his father (the applicant’s grandfather) and the family trip. The applicant claims that the authorities sent a report to a government department known as ‘Commission Article 90’ that deals with national security matters. As a result, his father was sanctioned and informed that he would never receive a promotion. The applicant claims that at the time of him being interrogated his father was in his 30s. He claims that because of the interrogation his father suffered a heart attack.[28]
[27] Ibid; Protection visa application form dated 8 July 2016 (Applicant’s statement), Department File [Number 1], Doc ID No: [Number 5].
[28] Applicant’s Statutory Declaration dated 17 August 2018 at [22]; Department File [Number 1], Doc ID No: [Number 7].
The applicant claims that the government were keeping track of his family. His evidence was that as a result of his father’s interrogation, as a family they tried to ‘stay under the radar’ and not do anything rash to attract the attention of the authorities.[29] Nevertheless he decided to escape the situation and leave Iran legally on a student visa in order to avoid any clash with the Iranian government and keep his family out of harm.
[29] Ibid.
The applicant does not have any religious beliefs or practices.[30] However, he claims in Iran he was compelled to declared himself as a Shia Muslim and to support the Islamic faith, but never considered himself a Muslim.[31] The applicant claims that he follows the system of beliefs under Deism.[32] He claims that he does not believe in an interventionist God or a creator. In addition, he does not believe in prayer. He claims that his belief system is based on science and that ‘Deism’ is merely a convenient label to use if he is required to define his beliefs in one word. The applicant claims to have a strong opposition to the concept of “just world” that is a core principle of many, if not all, religious beliefs. The applicant concedes that he may be considered an atheist or agnostic. Nevertheless, he claims that in Iran, he would be considered an apostate.
[30] Department File [Number 1], Doc ID No: [Number 6].
[31] Ibid; Applicant’s Statuary declaration dated 21 July 2021.
[32] Applicant’s Statutory Declaration dated 17 August 2018 at [22]; Department File [Number 1], Doc ID No: [Number 7].
The applicant’s evidence was that he does not know when he came to this belief but states that he recalls his grandfather giving him a copy of ‘On the Origin of Species’ by Charles Darwin[33] which was influential in forming his views. The applicant claims that if he was returned to Iran, he would be subjected to Sharia law and would suffer serious harm as an apostate due to his religious beliefs. That is, his rejection of Islam.
[33] Ibid.
The applicant’s evidence was that in Iran he was not politically active. His evidence was, like his religion, he did not declare or express any political beliefs to anyone while he was in Iran. He claims that his political beliefs are aligned with over-deterministic Marxist thinking. He claims that he is not a communist or socialist but believes that cooperatives throughout society could be used to help organise production. The applicant claims that his political beliefs are contrary to those of the government in Iran to which he is opposed. The applicant claims that if his political beliefs become known if he is returned to Iran he will be seriously harmed.[34]
[34] Ibid.
The applicant claims that following the security agency refusing his father’s promotion he claims that in or about the late 1990s while he was at [High School], he was selected (with approximately 40 other students) for [a program] for talented students in [school subjects].[35] The purpose of the camp was to build the students skills for a final exam that would be used to select students to represent Iran internationally. The applicant was successful in the exam and was selected. However, after taking a security agency clearance the applicant was informed that he had been disqualified as he was an ‘asterisk student’ (also known as a ‘star student’).[36] That is, he had a star placed next to his name as a person who is of interest to the authorities.[37] The applicant claims that the ‘star student’ scheme was implemented in the early 1980s to exclude and discriminate against people with communist or secularist beliefs and claims that it continues to this day.[38]
[35] Ibid.
[36] Applicant’s Statutory Declaration dated 17 August 2018 at [27]; Dept File No: [Number 1], Doc ID No: [Number 7].
[37] Ibid.
[38] Applicant’s Statutory Declaration dated 9 July 2021.
The applicant claims that at [Pre-University] as a ‘star student’ he was prevented from applying for his chosen subject of [Subject 2]. Rather he was limited to [Subject 1]. The applicant’s evidence was that the ‘Ministry of Higher Learning’ known in Farsi as ‘Omouzesh Ali’ (now known as the Ministry of Science and Technology) advised that he could only apply for certain subjects due to being an ‘asterisk student’.[39] The applicant enrolled in [Subject 1] at [University 1] in 2001 but soon withdrew.
[39] Applicant’s Statutory Declaration dated 17 August 2018 at [29]; Dept File No: [Number 1], Doc ID No: [Number 7].
In 2003, the applicant enrolled in a [Subject 2] course at [University 2] which he was able to do without any control by the ‘Ministry of Higher Learning’, and his status as an ‘asterisk student’. The applicant completed two years of this online course whilst living in Iran. The applicant provided a transcript from this course.
The applicant claims that because the government authorities were tracking him and his family, in about 2003 to 2004 they were trying to find options for him and his sister to live a normal life. As a result, he decided to leave Iran legally on a student visa to avoid any clash with the Iranian government.
The applicant’s sister travelled to [Country 2] on a student visa and has completed her master’s and a PhD in [Subject 7]. She has obtained a skilled migrant visa and continues to live in [Country 2]. The applicant applied for a course with [University 3] in [Country 2] but was not able to obtain a student visa.
The applicant claims that he suffers from serious psychological and mental health issues. The applicant’s evidence was that during high school he started seeing shadows following him. His mother took him to a psychiatrist, and he was prescribed medication. The applicant did not say what medication he received but stated that he took only a single course and then gave up on it, pretending that he was fine. The applicant claims that having witnessed the treatment of his grandfather in a psychiatric ward and knowing how people in Iran treat people with mental illness, he wanted to keep this a secret, until he arrived in Australia.[40] The applicant claims that in Iran, people suffering from psychological conditions are not given the care they need. He claims that they are merely locked away. He claims that if he is returned to Iran his psychological condition will deteriorate rapidly.[41]
[40] Applicant’s Statutory Declaration dated 17 August 2018 at [28]; Dept File No: [Number 1], Doc ID No: [Number 7].
[41] Protection visa application form dated 8 July 2016 (Applicant’s statement), Dept File No: [Number 1], Doc ID No: [Number 5].
The applicant claims that in the event he is to return to Iran he will be discriminated against and illtreated because of his political beliefs, and his religious views and because of his mental health issues. The applicant’s evidence was that he is unwell and as a result unable to self-censor. He claims to have intrusive thoughts causing an inner monologue to begin. As a result, he claims that he cannot control or monitor how he behaves or what he says. The applicant claims that he fears what he will say and the consequence he will suffer in the event he is returned to Iran.[42] The applicant claims that his mental health cannot be adequately treated in Iran, with anti-psychotic medication only being available in psychiatric wards in which he claims he will be ill-treated by staff.
[42] Applicant’s Statutory Declaration dated 21 July 2021.
The applicant’s evidence was that he was provided an exemption from military service on medical grounds in Iran. However, he claims it is not permanent. His evidence was that the last time he left Iran he was pulled aside by an officer at the airport who took his medical leave card and told him that he would need to re-apply for a new one when he returns to Iran. The applicant claims that in the event he returns to Iran there is a real chance that he will be forced to complete military service.[43]
[43] Ibid.
The applicant also claims that as a returnee to Iran he will be detained and harmed because of his political and religious views. The applicant claims that it is entirely possible that he could be detained on arrival particularly if the Iranian authorities have concerns about his behaviour.[44]
[44] Ibid.
In addition, he claims that because he has been outside Iran for approximately 14 years and has not had a passport since 2016, if he was to return to Iran the authorities would detain and question him. Due to his mental health he will not be able to self-regulate and as such there is a real chance he will be found to be against the government or anti-Islam.
Supporting documentation
In support of his protection visa application, the applicant provided the following to the Department and the Tribunal:
(a)Form 866, application for a Protection (Class XA) visa, dated 16 November 2012.[45]
[45] Dept File No: [Number 8], Doc ID No [Number 9].
(b)Statutory Declaration outlining claims, dated 16 November 2012.[46]
[46] Ibid.
(c)Form 80, personal particulars form, dated 16 November 2012.[47]
[47] Ibid.
(d)the applicant and his wife’s marriage certificate dated [September] 2017.
(e)lease agreements.
(f)a Protection (Class XD) Temporary Protection (Subclass 785) visa grant notice for the applicant’s wife, dated 22 September 2016.
(g)various utilities bills.[48]
[48] AAT File No: 1820283 at Folio 21–35.
(h)letter from [Service provider 1] in relation to the applicant’s mother advising she is on treatment for depression provided at start of hearing.
(i)copy and English translation of handwritten document purporting to have been given to the applicant’s mother’s family upon their arrival in Iran.
(j)letters from the applicant’s parents’ general practitioner regarding their mental health.
(k)[Certificate] issued by Iran [Ministry of Education] on 25 September 2006, and English translation, as referred to in paragraph 26 of the Statutory Declaration dated 17 August 2018.[49]
[49] AAT File No: 1820283 at Folio 9–14.
(l)[University 2] Transcript attested on 31 October 2005, as referred to in paragraph 31 of the Statutory Declaration dated 17 August 2018.[50]
[50] AAT File No: 1820283 at Folio 15–19.
(m)transcript for applicant’s pre-qualifying year to gain admittance to [University 3] dated 17 August 2006, as referred to in paragraph 33 of the Statutory Declaration dated 17 August 2018.[51]
[51] AAT File No: 1820283 at Folio 21–23.
(n)documents relating to the applicant’s admission and acceptance to study at [University 3], including letter of admittance from [University 3] dated 8 June 2006; letter from [University 3] confirming credit transfer dated 22 May 2007; undated fee itemisation from [University 3]; and itemised Transfer Credit Assessment from [University 3] dated 22 May 2007.[52]
(o)Letter from the Government of [Country 2] dated 23 July 2006, notifying applicant that his application for a [Country 2] study permit was refused due to ‘weak ties and travel.’[53]
(p)An interim psychiatric report dated 22 January 2020 from [Dr A] at the [Service provider 2], noting the applicant’s mental health diagnoses to be schizophrenia and major depressive disorder.[54]
(q)Report dated 20 June 2020 from the applicant’s primary psychiatrist [Professor B] at the [Service provider 3], detailing the applicant’s diagnosis of schizophrenia and major depressive disorder and treatment.[55]
(r)Letter from Medicare dated 7 July 2020, confirming the applicant’s Medicare enrolment application.[56]
(s)Legal submissions from the applicant’s migration agent (representative) dated 23 August 2020 primarily addressing country information.[57]
(t)Report dated 22 January 2020 from [Dr A] at the [Service provider 2] (as provided to the Department). [58]
(u)Report dated 20 June 2020 from [Professor B], the [Service provider 3] (as provided to the Department).[59]
(v)Updated report dated 18 December 2020 from [Professor B] at the [Service provider 3], noting the applicant ‘has a schizophrenia which is of a paranoid persecutory subtype and which has been complicated by episodes of major depression’.[60]
(w)Legal submissions from the applicant’s migration agent (representative) dated 12 July 2021, addressing the applicant’s protection claims and country information. [61]
[52] AAT File No: 1820283 at Folio 26–30.
[53] AAT File No: 1820283 at Folio 32–34.
[54] Dept File No: [Number 1], Doc ID No: [Number 10].
[55] Dept File No: Doc ID No: [deleted].
[56] Dept File No: Doc ID No: [deleted].
[57] Dept File No: Doc ID No: [deleted].
[58] AAT File No: 2015059, Doc ID No: 7974543.
[59] Ibid.
[60] Ibid.
[61] Ibid, Doc ID No: 8603479.
COUNTRY INFORMATION
In accordance with Ministerial Direction No.84 of 24 June 2019 under s 499 of the Act, the Tribunal also had regard to the country information assessments prepared by the DFAT. The Tribunal has referred to the current DFAT report on Iran dated 14 April 2020 (the DFAT report)[62] in particular, those parts of the DFAT report as detailed in Annexure ‘A’ of this decision.
[62] DFAT Report on Iran, dated 14 April 2020: OF CLAIMS AND FINDINGS
Credibility
When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[63] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[64]
[63] Section 5AAA of the Migration Act 1958.
[64] MIEA v Guo (1997) 191 CLR 559 at [596], Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at [169–70].
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[65] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
[65] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J at p.482
If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[66] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.
[66] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196]
The Tribunal is aware that vulnerable asylum seekers will have difficulties in providing documents or expressing their fears.
Applicant’s claim as a refugee
A past fear of persecution is not sufficient
A past fear may be a relevant consideration in determining if the applicant has a well-founded fear of persecution. However, the approach as applicable to s 5H(1) of the Act is whether the applicant is outside his country owing to a present, well-founded fear of persecution for a reason that falls within the scope of s 5J(1)(a) of the Act and he is unable or unwilling, due to the present and well-founded fear, to avail himself of the protection of that country.[67] [68]
Applicant’s relevant grounds
[67] [1999] FCA 1265 (Dowsett J, 13 September 1999) at [60]. See also Diatlov v MIMA [1999] FCA 468 (Sackville J, 25 October 1999) at [32] and DZABG v MIAC [2012] FMCA 36 (Brown FM, 25 January 2012) at [134] (undisturbed on appeal: DZABG v MIAC [2012] FCA 827 (Dowsett J, 7 August 2012)). This point was not expressly discussed by the Full Court in MIMA v Savvin (2000) 98 FCR 168, but Dowsett J’s view is consistent with the Full Court’s construction of Article 1A(2).
[68] Savvin v MIMA [1999] FCA 1265 (Dowsett J, 13 September 1999) at [61]–[62], referring to Chan v MIEA (1989) 169 CLR 379, s 5H of the Act.
The applicant submits that his claims fall within the scope s 5J(1)(a) of the Act by reason of his actual and imputed political opinion against the Iranian authorities on account of:[69]
(a)his imputed political support for communist views arising from his grandfather’s affiliation with the banned Tudeh communist party.
(b)his actual political opposition to the current Iranian government in that he supports over deterministic Marxist thinking.
(c)his non-adherence to Islam.
(d)his prolonged presence in Australia and his application for protection in Australia.
[69] Applicant’s submissions dated 12 July 2021 at p.2; AAT File No: 2015059 Doc ID:8603479.
The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status[70] provides that it is necessary for an applicant to show that they have a fear of persecution for holding a particular political opinion as ‘[H]olding political opinions different from those of the Government is not in itself a ground for claiming refugee status.’
[70] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [80–86]; Chan v MIEA (1989) 169 CLR 379 at [392].
The Full Federal Court in V v MIMA[71] observed in relation to a person’s political opinion that:
(a)it is enough that a person holds (or is believed to hold) views opposed to the government and is persecuted for that reason;[72]
(b)it is not necessary that a person be a member of a political party or other public organisation or that the person’s opposition to the instruments of government be a matter of public knowledge;[73]
(c)‘political opinion’ is not limited to party politics in the sense that expression is understood in a parliamentary democracy;[74]
(d)the holding of an opinion inconsistent with that held by the government of a country explicitly by reference to views contained in a political platform, or implicitly by reference to acts reflective of an unstated political agenda, will be the holding of a political opinion;[75]
(e)‘political opinion’ may be shown by repeated conduct which is never (or rarely) converted into articulate political protest of the kind familiar to Australian society.[76]
[71] V v MIMA (1999) 92 FCR 355 at [363]. It’s noted that the Court’s observations were made in the context of dealing with the Convention.
[72] Op Cit at [363].
[73] Ibid.
[74] V v MIMA (1999) 92 FCR 355 at [367].
[75] V v MIMA (1999) 92 FCR 355 at [367].
[76] V v MIMA (1999) 92 FCR 355.
Therefore, an applicant’s fear of persecution because of their political opinion is a question of fact.[77] Nevertheless, it must constitute at least the essential and significant reason for the persecution claimed to fall within s 5J(1)(a) of the Act.[78]
[77] Maningat v MIMA (Federal Court of Australia, Tamberlin J, 30 April 1998) at [4].
[78] Section 5J(4)(a) of the Act.
In addition, the applicant submits his claims fall within the scope of s 5J(1)(a) of the Act because he follows a system of belief similar to Deism. The applicant clams that because of his family’s agnostic views and his non-adherence to Islam he would be imputed with agnostic or atheist beliefs.[79]
[79] Applicant’s submissions dated 12 July 2021 at p.2; AAT File No: 2015059 Doc ID:8603479.
The scope of ‘religion’ within the context of the Convention was considered in MIMA v Darboy[80] in which the Federal Court referred to the following passage from the High Court’s judgment in Church of the New Faith:
The canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself. Conversely, unless there be a real connexion between a person’s belief in the supernatural and particular conduct in which that person engages, that conduct cannot itself be characterised as religious.
[80] [1998] FCA 931 (Moore J, 6 August 1998). (See also Wang v MIMA (2000) 105 FCR 548 and Liu v MIMA [2001] FCA 257 (Cooper J, 16 March 2001) at [19]–[22]).
The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status provides an overview of the scope of ‘religion.’[81] It notes that:
72Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.
73.Mere membership of a religious community will normally not be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground.’
[81] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [71]–[73] >
The question of whether an applicant has a well-founded fear of being persecuted for reasons of religion may arise in a variety of factual circumstances and may include the application of generally applicable religious-based laws, departing from orthodox religious beliefs or transgressing social mores, conversion, apostasy and mixed marriage.[82] It will often depend on the motivation of the persecutor or in circumstances where any fear is caused by the operation of generally applicable laws, whether there is a persecutory intent or nature to those laws or to the way they are applied.[83]
[82] To be an apostate does not require conversion from one faith to a different faith but does require abandonment or rejection of the first faith: WZAOO v MIAC (2012) 134 332 at [12], citing W161/01A v MIMA [2002] FCA 285.
[83] See VCAD v MIMIA [2004] FCA 1005 (Kenny J, 4 August 2004) at [35] where Kenny J held that where an applicant has avoided military service for religious reasons there may be a well-founded fear of persecution for reasons of religion if a law, neutral on its face, has an indirect discriminatory effect or indirectly inflicts disproportionate injury, for reasons of religion.
Persecution for reasons of religion can involve the prohibition, restrictions, or punishment for a particular religious practice.[84] It requires an assessment in the light of all the circumstances, including, where relevant, the ‘central tenets’ of the religion, how an applicant is likely to manifest his or her beliefs and the likelihood that they will be persecuted by the authorities.[85]
[84] Wang v MIMA (2000) 105 FCR 548; Woudneh v Inder (unreported, Federal Court of Australia, Gray J, 16 September 1988); MIMA v Zheng [2000] FCA 50 (per Hill, Whitlam & Carr JJ, 10 February 2000).
[85] Pei Lan He v MIMA [2001] FCA 446 (Ryan J, 23 April 2001).
In this case, amongst other matters, the applicant claims that he has rejected Islam and follows a system of beliefs similar to Deism. He claims that he will be persecuted by the authorities if they were returned to Iran. Based on the applicant’s own evidence the Tribunal accepts his claim falls within s 5J(1)(a) of the Act by reason of his religion.
Finally, the applicant submits that his claims fall within s 5(1)(a) of the Act as a member of a particular social group (PSG) as a person suffering from mental illness, as a failed asylum seeker or as a Western returnee.[86] To be considered a member of a PSG it is necessary for the applicant to share (or perceived to share) an innate or immutable characteristic with each member of the group that is fundamental to a member’s identity or consciousness and distinguishes the group apart from society.[87]
[86] Ibid.
[87] Section 5L of the Act.
The Tribunal accepts based on the applicant’s evidence that the applicant is a member of a PSG.
The applicant’s well-founded fear
Section 5J of the Act states that for the purposes of application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of social a particular or political opinion’ and that there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country.
In Chan v MIEA[88] the Court held, when considering ‘well-founded fear’ for the purposes of the Convention, that it involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution based on a Convention reason. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[89]
[88] (1989) 169 CLR 379 at [396].
[89] (1989) 169 CLR 379 at [396]. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at [263] per Brennan CJ, Toohey, McHugh and Gummow JJ.
The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact.
However, to hold a ‘well-founded fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J[90] stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.
[90] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397.
In MIEA v Guo, the Court stated that: [91]
Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
[91] MIEA v Guo (1997) 191 CLR 559 at [572]; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at [293].
In this case, the applicant claims that, if he is returned to Iran, there is a real chance he will suffer serious harm by the authorities by reason of his political and religious views or as a member of PSG as referred to above. For the reasons detailed below, the Tribunal does not accept that the applicant has a well-founded fear of persecution, on an objective if he is returned to Iran.
Applicant’s delay
The Tribunal notes that it is legitimate to take into account an applicant’s delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant’s claimed fear of persecution.[92] Even a three month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.[93]
[92] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 per Heerey J.
[93] Subramanium v MIMA (1998) VG310 of 1997.
In this case the applicant first arrived in Australia [in] January 2007 but did not make his application for a protection visa until 8 July 2016. The applicant initially arrived in Australia on a student visa and travelled out of the country in July 2007 and November 2008. The applicant’s student visa expired on 31 January 2011. He applied for a further student visa on 7 February 2011, which was refused on 16 March 2011. The applicant then was granted a bridging visa on 7 February 2011, which expired on 22 April 2011. The applicant then remained unlawful in Australia for almost five years and three months until making the application for the protection visa.[94]
[94] Department of Home Affairs - Integrated Client Services Environment (ICSE) records.
The applicant’s evidence was that that he entered Australia on a student visa and had intended on obtaining a skilled migrant visa, similar to what his sister had done in [Country 2]. His evidence was that he originally intended to travel to [Country 2] but was not able to obtain a student visa. Nevertheless, the Tribunal notes that the circumstances by which he claims to fear returning to Iran in relation to his political and religious views where already in existence at the time of his departure for Australia. As such, if the applicant had a genuine fear of persecution upon his return to Iran, the Tribunal would have expected him to have made the application soon after his arrival in Australia. In circumstances where the applicant is an educated person, having entered Australia on a student visa, the Tribunal does not accept the applicant was not aware he could make an application for protection at the time of his arrival in Australia. Therefore, given the applicant’s delay in making his application for protection, the Tribunal, on an objective basis, has reservations about the genuineness and depth of the applicant’s fear of persecution as claimed.
The applicant’s grandfather
The applicant claims that he will be seriously harmed if he is returned to Iran because of his imputed political support for communist views arising from his grandfather’s affiliation with the Tudeh Party. The applicant claims that his grandfather worked for the party organising labour strikes during the Iranian Revolution.
The Tudeh Party is an Iranian communist party that was formed in 1941. In its early years the party had great influence and played an important role during Prime Minister Mohammad Mosaddegh’s campaign in the early 1950s to nationalise the Anglo-Persian Oil Company.[95] In 1953 there was a coup attempt against Mosaddegh which resulted in a crackdown against political parties (including the Tudeh Party) leading to mass arrests and the ‘destruction’ of the party.[96] During the 1970s there was widespread worker’s strikes and demonstrations with university campuses hosting revolutionary activity. During this time the Tudeh Party increased its activities, recruiting many youths and organising regional committees.[97] Contrary to other ‘left’ political organisations, the Tudeh Party supported the Islamic Revolution. This is generally thought to be because it was consistent with the Soviet Union pro-Tehran stand at that time. Nevertheless, the alliance between the Tudeh Party and Iran’s emergent ruling clergy collapsed in the early 1980s.[98] It’s reported that the Iranian government saw the Soviets as ‘atheistic devils.’ As a result, Iran’s Islamist government initially closed the Tudeh newspaper and purged Tudeh members from government ministries. In 1983, the government arrested and imprisoned the party’s leaders and approximately 10,000 members of the party. The Tudeh Party was effectively disbanded, leaving Iran effectively a one-party state.[99] In the summer of 1988, the Islamic republic’s Supreme Leader Ayatollah Khomeini issued a secret fatwa ordering the execution of any political prisoner who remained steadfast in his or her opposition to the Iranian theocracy.[100] It’s reported that approximately 200 of the Tudeh Party leaders were executed.[101] It’s reported that persecution of the communists spiked with the “confession” of Tudeh General Secretary Noureddin Kianouri in 1983, when he admitted that the party had acted against the interests of the Iranian people and spied for the Soviet Union.
[95] Tudeh News, International Bulletin of the Tudeh Party, October 2007, No 247. web.archive.org/web/20121019002919/ ‘A History of Modern Iran,’ by Ervand Abrahamian, 2008 published by Cambridge University Press at p.122.
[97] Counterpunch, ‘Iran, the Islamic Revolution and the Language of War,’ by Deepak Tripathi dated 13 December 2011; Ibid.
[99] ‘An Introduction to Shi’i Islam’ by Moojan Momen, Yale University Press, 1985 at p. 297.
[100] Counterpunch, ‘Betraying Khavaran’ by Soheil Asefl dated 23 August 2013;
[101] Ibid; Qantara.de, ‘Britain Complicit in Crushing of Iran’s Tudeh Party,’ Iran’s Journal 2020 by Iman Aslani en.qantara.de/content/at-khomeinis-service-britain-complicit-in-the-crushing-of-irans-tudeh-party.
The Tudeh Party still exists but in exile.[102] A search of the Tudeh Party’s website[103] indicates that it continues, in exile, to make comment on certain issues in Iran (including condemning the attack on the office of the Iraq Communist Party in Najaf, standing in solidarity with the people of Cuba and their Communist Party against the U.S. economic sanctions, and making a statement on International Workers Day)[104] The country information[105] reports that in January 2020 Iranian people demonstrated openly against the regime of Ayatollah Ali Khamenei following the downing of a Ukrainian airliner during tensions with the United States and demanding democratic elections. The Tudeh Party expressed its support for the demonstrators claiming that the Ayatollah Khamenei had “no authority to lead our country,” condemning rule by religious authorities as “a major obstacle to freedom, social justice, and the development of our homeland.” However, it was not involved in organising the demonstrations and did not have a political presence at the demonstration.
[102] Ibid.
[103] Tudeh Party of Iran, People’s World ‘Khamenei regime has no authority to rule Iran, says Tudeh Party’ dated 13 January 2020 C.J Atkins, >
Based on the country information and in the absence of any evidence to the contrary the Tribunal accepts that the applicant’s grandfather was involved with the Tudeh Party as claimed and was arrested and held in prison as claimed. However, the Tribunal notes the applicant’s evidence that his grandfather was released from prison on the basis that he remained in Tehran and that he accepted Islam to avoid further penalties.[106] In addition, the Tudeh was disbanded in Iran in or about 1983 (approximately 38 years ago). While it has continued in exile it appears to have negligible remaining presence in Iran and little or no popular support.
[106] Applicant’s Statutory Declaration dated 17 August 2018 at [13].
The applicant’s evidence was that his mother had volunteered from time to time to hand out leaflets for strikes on behalf of the Tudeh Party, but otherwise his parents were not involved in the party. The applicant did not provide any evidence as to when his mother volunteered for the party but accepts that she may have been volunteering as claimed around the time the applicant’s grandfather was involved with the Tudeh Party. Based on the county information which states that the party was disbanded in Iran in or about 1983, the Tribunal does not accept that the applicant’s mother volunteered for the party after the Tudeh Party had been disbanded. There was no evidence that his mother had been detained or harmed as a Tudeh Party member in the early 1980s prior to it being disbanded in or about 1983.
Therefore, based on the country information that the Tudeh Party was disbanded in Iran in the early 1980s and it has little political influence in Iran today, the Tribunal does not accept the applicant’s evidence that he would be imputed with the political opinion of supporting communist views by reason of his grandfather’s affiliation with the Tudeh Party. In addition, the applicant’s evidence was that his grandfather was released from prison on the basis that he expressly accepted Islam. In such circumstances there is little reason for the applicant or his family to have been monitored by the authorities as claimed. As such the Tribunal does not accept the applicant’s evidence. Therefore, the Tribunal finds that there is no real chance the applicant would be seriously harmed if he is returned to Iran because of his grandfather’s involvement with the Tudeh Party as claimed.
Applicant’s family
The applicant claimed throughout his life his family suspected that they were being watched by the authorities. The applicant claims that this was likely because of his grandfather’s history and his political and religious involvement.[107] Specifically the applicant claims that his family were prevented from taking the family trip and that the security agency detained and interrogated his father in relation to a proposed promotion at work. The applicant claimed that a report was sent to the Article 90 Commission upon which his father was informed that he would never receive a promotion. His evidence was that his father worked for a local municipality as an accountant all his life and did not suffer any further issues from the security agency.[108]
[107] Applicant’s Statutory Declaration dated 17 August 2018 at [15]–[16].
[108] Applicant’s Statutory Declaration dated 17 August 2018 at [23].
The country information reports[109] that the Article 90 Commission (‘the Commission’) of the Islamic Consultive Assembly (Iranian Parliament) oversees the performance of the government, the judiciary, the parliament and their officials.[110] Article 90 of the Iranian Constitution states that anyone who has a complaint about the performance of the parliament as well as the executive and judiciary branches can file a complaint to the Commission of the parliament. The Commission’s role is to investigate complaints and where appropriate make any outcomes public and to refer matters to the Judiciary or other relevant authority.[111]
[109] Iran Press Agency, ‘Iranian Parliament appoints head of Article 90 Commission’ dated 15 July 2020: Iran Human Rights Documentation Centre, Internal Regulation of the Commission of Article 90 of the Constitution. Dated 12 December 2011; Ibid.
From the available country information, the promotion of a local government worker does not seem the type of matter that would be referred to the Commission. Even if the applicant’s grandfather had been involved with the Tudeh Party as claimed, the Tribunal notes that the Tudeh Party was disbanded in Iran in the early 1980s and the applicant’s evidence was that his grandfather had been released on the basis that he had accepted Islam. In circumstances where the applicant’s father was not a member of the party and not involved in any activities against the government it does not accept the applicant’s evidence in relation to the security forces preventing his family from taking the family trip or his father being in detention and interrogated in relation to his work promotion. Based on the country information and for the reasons expressed above the Tribunal does not accept that the applicant’s family would have been subjected to surveillance by the authorities as a result of his grandfather’s involvement in the Tudeh Party as claimed.
In addition the applicant claims that following his father’s problems he was marked as a ‘star student’ and as a result was disqualified from attending the [International event] and subsequently forced to enrol in [a Subject 1] course rather than his chosen subject of [Subject 2]. The country information[112] reports that ‘starring’ is a system of exclusion of students from higher education. Those barred are known as ‘starred students’.
The International Campaign for Human Rights in Iran[113] reports that it’s a method of punishing those critical of authorities. It’s reported[114] that after Mahmoud Ahmadinejad became president in 2005 starring became synonymous with discrimination against students due to their political beliefs, the exercise of freedom of expression and, in the case of Baha’i students, their religious beliefs. Students were generally given one to three stars indicating:(a)One-star denotes students who passed the academic exam but are permitted to continue their studies by the Ministry of Science Central Selection Committee only after written guarantees not to engage in undesirable political activities.
(b)Two-star candidates are those who passed the exam but are not deemed ‘qualified’ to continue higher education. They may be granted temporary reprieve if they promise to end political activities, under threat that their university admission can be revoked.
(c)Three-star individuals who passed the exam have been rejected by the Central Selection Committee and Ministry of Intelligence and are barred from entering university.
[112] University World News, Iran: ‘Student Stars that Punish not Reward’ dated 12 December 2010 by Yojana Sharma. Ibid.
[114] Ibid.
The Tribunal has already found that applicant’s family was not subjected to surveillance by the authorities because of his grandfather’s involvement in the Tudeh Party. Having found that the applicant’s father would not have been detained or interrogated for the reasons claimed, the Tribunal does not accept that he was identified and discriminated against by the authorities as a starred student. The Tribunal notes the country information that reports the system of starring is generally a method imposed upon those critical of the government. The applicant’s evidence was that he had not expressed his political opinion while he was living in Iran. Accordingly, it’s unlikely that the applicant would have been identified as a person critical of the government as claimed. Therefore, based on the applicants’ own evidence and the available country information the Tribunal does not accept that the applicant was starred as claimed. Accordingly, the Tribunal finds that there is no real chance the applicant will be seriously harmed if he is returned to Iran by reason of his father’s involvement in the government as claimed.
Applicant’s non-adherence to Islam
The applicant’s evidence was that he does not have any religious beliefs or practices and does not follow Islam.[115] The applicant claims that in Iran he was compelled to declare himself as a Shia Muslim and to support the Islamic faith, but never considered himself a Muslim.[116] His evidence was that his belief system is based on science and that ‘Deism’[117] is a convenient label to use to define his beliefs in one word. He concedes that he may be either an atheist or agnostic, nevertheless, he claims that if he is returned to Iran, he would be considered an apostate.
[115] Department File [Number 1], Doc ID No: [Number 6].
[116] Ibid; Applicant’s Statuary declaration dated 21 July 2021.
[117] Applicant’s Statutory Declaration dated 17 August 2018 at [22]; Department File [Number 1], Doc ID No: [Number 7].
Deism is the belief in the existence of God solely based on rational thought, without any reliance on revealed religions or religious authority.[118] It emphasises the concept of natural theology, that is, God’s existence is revealed through nature. [119] Deists assert that reason could find evidence of God in nature and that God had created the world and then left it to operate under the natural laws devised by God. A Deist therefore believes in a god or higher power but rejects scripture and revelation. That is, Deism is about using science as the revelation in and of itself. As such as a Deist, the applicant rejects Muhammad’s prophet-hood[120] and as such rejects being a Muslim. Based on the applicant’s own evidence the Tribunal accepts that he has rejected Islam and finds that his belief system is similar to Deism.
[118] Multiverse Deism: Shifting Perspectives of God and the World. “Attributes of a Deistic God”. Lanham, Maryland: Rowman & Littlefield. Harper, Leland Royce (2020) pp. 47–68.
[119] “Deist – Definition and More from the Free Merriam-Webster Dictionary” The Concise Oxford Dictionary. Oxford University Press. R. E. Allen (ed) (1990). Merriam-webster.com. 2012.
[120] BBC News, The young Turks rejecting Islam dated 10 May 2018; >
The country information reports that approximately 99 per cent of Iranians are Muslim of which 90 to 95 per cent are Shia Muslim.[121] The DFAT Report[122] states that Shia Islam is the official state religion in Iran and that it is a theocracy[123] with Islamic beliefs and custom enshrined in law. Article 4 of the constitution requires that all laws be based on the Shia Islamic criteria. A Muslim person who renounces Islam and becomes an atheist is considered an apostate and risks state persecution and potentially the death penalty.[124]
[121] DFAT Report at p.28.
[122] Ibid.
[123] A system of government in which priests’ rule in the name of God or a god (see- Ibid.
Nevertheless, it’s reported that secularism is widespread in Iran particularly in the major cities amongst the younger and wealthier members of the population. Its reported that religion is generally viewed as a private matter and that a significant amount of the population do not attend mosque or pray on a regular basis.[125] In addition, many Iranians do not strictly observe Ramadan.[126] According to the World Values Survey nearly a quarter of Iranians never attend religious services and another 23% only attend on holy days.[127] In addition, a survey conducted in June 2020[128] revealed an increase in secularisation and a diversity of faiths and beliefs in Iran. It reported that contrary to Iran’s 99 per cent census figure, only 40 per cent identified as Muslim. In addition, it revealed that contrary to the official position, only 32 per cent explicitly identified Iran as a Shia nation with 9 per cent claiming to be atheist.[129]
[125] DFAT Report at p.36.
[126] Ibid.
[127] World Values Survey, ‘Iran Wave 2005-2009 Online Data Analysis: V186 - How often do you attend religious services?’, available at [accessed 16 Sept. 16]
[128] The Conversation, Iran’s secular shift: new survey reveals huge changes in religious beliefs 10 September 2020; Ibid.
This would suggest that in the normal course of events a person’s rejection of Islam would not come to the attention of the authorities. It’s reported that atheists who are discreet about their non-belief are unlikely to come to the attention of the authorities.[130] The DFAT report notes that it is unaware of individuals having been prosecuted for atheism in Iran[131] and reports that non-practising Muslims face low risk of official and societal discrimination. Nevertheless, atheists who are open about their beliefs are reported to face a moderate level of official and societal discrimination.[132]
[130] Ibid.
[131] Ibid.
[132] Ibid.
There is no provision in the Islamic Penal Code of the Islamic Republic of Iran which specifically criminalises the act of apostasy.[133] The current Islamic Penal Code does, however, state that ‘in accordance with Article 167 of the Iranian Constitution, Shari’a law is to apply in instances where the IPC [Islamic Penal Code] is silent regarding a particular crime.’ This ‘enables the Iranian judiciary to prosecute apostasy cases even though there is no codified provision defining the crime of apostasy.’[134]
[133] The Christians in Parliament All Party Parliamentary Group and the All Party Parliamentary Group for International Freedom of Religion or Belief 2015, The Persecution of Christians in Iran, March, p.11 <CISEC96CF1343>; Iran Human Rights 2015, Annual Report on the Death Penalty in Iran 2014,11 March, p.24 CISEC96CF1352; Iran Human Rights Documentation Centre 2014, Apostasy in the Islamic Republic of Iran, 30 July, p.10.
[134] Iran Human Rights Documentation Centre 2014, Apostasy in the Islamic Republic of Iran, 30 July, p.2 CIS29371
In its International Religious Freedom Report for 2012, the USDOS reported[135] that the Iranian government considered conversion from Islam to be apostasy, and that this is punishable by death. The relevant section of the report read:
The constitution does not provide for the rights of Muslim citizens to choose, change, or renounce their religious beliefs. The government automatically considers a child born to a Muslim father to be a Muslim and deems conversion from Islam to be apostasy, which is punishable by death.
[135] US Department of State 2013, International Religious Freedom Report for 2012 – Iran, 20 May, Section II
Apostasy and blasphemy charges in Iran are relatively rare. The DFAT report notes that defendants charged with apostasy are also likely to have been charged with national security offences.[136] The Landinfo July 2011 report[137] indicated that convictions for apostasy are very rare in Iran but made reference to previous instances where converts had been tried for apostasy and, in one case, convicted and executed. The relevant section of the report read:
In practice, people are convicted of apostasy only very rarely. The most recent conviction is reported to have occurred in 1990, when a minister was executed because of apostasy, evangelization and espionage in favour of the US (Telegraph 2008). The minister had lived as a convert since 1960. In 1994, however, three ministers (whereof two were converts) were abducted and killed by persons unknown (Landinfo 2006). The assassinations attracted international attention and had a profound impact on the Evangelical Christians of Iran, causing the afflicted churches to keep a low profile for an extended period of time.
In 2004, a minister who had converted to Christianity in 1980 was arrested in the context of a Christian conference. This minister, who was an army colonel, was prosecuted, but acquitted of apostasy (Norsk Misjon i Øst 2005). However, he was convicted of violation of the military criminal code, because he had kept his Christian faith secret from his superiors. According to the law, only Muslims can be officers in the armed forces. The man was sentenced to three years’ imprisonment and had his pension rights revoked. In 2005, another minister was stabbed on the street by persons unknown. The minister died from the injuries.[138]
[136] DFAT Report at p.37.
[137] Landinfo 2011, Iran: Christians and Converts, 7 July, p.12. CISNET Iran CISLIB21681
[138] Landinfo 2011, Iran: Christians and Converts, 7 July, pp.16–17 CISNET Iran CISLIB21681
The same report did note, however, that charging converts with apostasy had become more common in Iran. It was noted that threats of apostasy charges had also been used during trials to pressure converts to return to Islam. The relevant section of the report read:
Charging converts of apostasy appears to have become more common. For example, a lawyer defending a group of Pentecostalists arrested in Rasht in October 2009 and in Tehran in June 2010 stated that the number of recently converted Christians who were charged with apostasy was rising, and that he defended ten of them (FIDH 2010, p. 26).
Formal charges of apostasy against converts have occurred relatively seldom in Iran, but threats of such charges have been brought up during the trial as a means of pressuring converts to declare that they repent and wish to return to Islam. In many cases the court has decided to release the convert without any charges, or brought other charges, such as participation in illegal house churches or for having had contact with foreign media. Other charges may include “acts against the security of the state”, “insults of Islam” and “propaganda against the system” (FIDH 2010, p. 26).[139]
[139] Landinfo 2011, Iran: Christians and Converts, 7 July, p.21. CISNET Iran CISLIB21681
In August 2013 Worthy News[140] reported the case of Mohammad-Hadi Bordbar, who was ‘sentenced to ten years in jail for distributing 12,000 pocket-sized Gospels’ in Iran. Bordbar was reported to have been ‘convicted of membership in an “anti-security organization” and of having the intent to commit crimes against Iranian national security; he was sentenced to five years for each offence’. The report noted that ‘Bordbar was initially arrested in 2009 for converting to Christianity; he was found guilty of apostasy but was freed on bail’.[141]
[140] On its website, Worthy News describes itself as “an independent Christian news agency which reports news not covered by other outlets, on key developments in a rapidly changing world”: Worthy News n.d., What is Worthy News?
[141] DeCaro, J 2013, ‘Iran: Convert from Islam jailed for 10 years’, Worthy News, 16 August CISNET Iran CX313314.
In an April 2013 report, the United States Commission on International Religious Freedom (USCIRF) made reference to the case of Yousef Nadarkhani, a Christian pastor who was sentenced to death for apostasy in November 2010. This death sentence was not carried out, and Nadarkhani was subsequently released.[142]
[142] United States Commission on International Religious Freedom 2013, USCIRF Annual Report 2013 – Countries of Particular Concern: Iran, 30 April, UNHCR Refworld. CISNET Iran CX308205
The applicant’s evidence was that in Iran he did not declare his religious beliefs. As such, in light of the country information that states that a quarter of Iranians never attend religious services and another 23% only attend on holy days,[143] the Tribunal is of the view that the applicant’s alleged rejection of Islam would not, in the normal course, come to the attention of the authorities in the event he returns to Iran.
[143] World Values Survey, ‘Iran Wave 2005–2009 Online Data Analysis: V186 – How often do you attend religious services?’, available at >
However, the applicant claims that due to his mental health condition he would not be able to remain passive or silent about his rejection of religion. Therefore, in considering the applicant’s claim that he has rejected Islam it is necessary for the Tribunal consider how the applicant would manifest his beliefs upon his return to Iran and the likelihood of that manifestation attracting a persecutory reaction from the authorities.[144]
[144] Pei Lan He v Minister for Immigration and Multicultural Affairs [2001] FCA 446 (23 April 2001) per Justice Ryan at [31].
100. The applicant’s evidence was that during his high school years he commenced experiencing issues with his mental health. His evidence was that he commenced seeing shadows following him[145] and was taken to a psychiatrist for treatment. He claims that he gave up on his prescribed medication preferring to pretend that everything was fine.[146] In addition, it was his evidence that he and his family were agnostic but, would partake in the required Islamic religious activities. Despite suffering from his mental condition in Iran there was no evidence he expressed his religious beliefs in a manner that brought him to the attention of the authorities. In addition, there was no evidence he experienced any harm because of having rejected religion (Islam) while in Iran.
[145] Applicant’s Statutory Declaration dated 17 August 2018 at [28]; Department File [Number 1], Doc ID No: [Number 7].
[146] Ibid.
101. The applicant provided a report from [Dr A] of [Service provider 2] dated 22 January 2020 (‘the [Service provider 2]’) in relation to his mental health. It reports that the applicant suffers from schizophrenia and major depressive disorder. It reports that the applicant experiences paranoid persecutory delusions and hallucinations. Its reports that the applicant has been difficult to treat due to his paranoia and suspiciousness which has been a contributing factor to him no longer attending appointments. The report notes that his last appointment was 4 February 2016.
(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.
…
Annexure ‘A’
ECONOMIC OVERVIEW
Mental Health
2.24 Need for mental health services in Iran is significant. An April 2018 study by the Ministry of Health and Medical Education found that nearly one-quarter of adults suffer from some form of mental illness, with women more likely to be affected than men. According to this study, the problem of mental illness is pronounced in Tehran, where one in three people are affected. In an earlier study (2017), the Ministry of Health and Medical Education found 12 per cent of Iranian adults were suffering from depression and 14 per cent from anxiety-related disorders. DFAT heard anecdotally that the deteriorating economic situation has contributed to a rise in mental illness, drug addiction and suicide. Ongoing trauma associated with the Iran-Iraq War is another major source of mental illness, and the rate of mental illness in areas most affected by the war is greater than the national average.
2.25 Iran has had a national policy on mental health since 1986. The policy aims to increase access to mental health services, including by building psychiatric wards in general hospitals and developing a mental health component in primary health care, and improve the availability of essential medicines. As part of its implementation of the Health System Development Plan, the government has increased the availability of counselling services and therapeutic interventions for individuals suffering from mental illness. The availability of mental health services has improved, including in rural areas, but ongoing social stigma attached to mental illness discourages people from seeking, or persisting with, professional treatment. A local source told DFAT that private mental health services are available, particularly in Tehran, but are prohibitive financially for the average person. A small number of NGOs work in the field of mental health, but these outfits are generally under-resourced.
POLITICAL SYSTEM
2.39Iran is a theocratic republic, established under the principle of Velayat-e faqih (‘guardianship of the jurist’). Under this principle, an Islamic jurist (the Supreme Leader) makes final policy decisions. The Supreme Leader is the highest power in the land, Iran’s head of state and the commander of its armed forces. The Supreme Leader is responsible for setting overall state policy and has significant influence over foreign policy and national security. The Supreme Leader appoints the head of the judiciary, half the members of the Guardian Council and all members of the Expediency Council. The Supreme Leader can annul any bill passed by parliament and must approve any constitutional changes. The current Supreme Leader, Ayatollah Ali Khamenei, assumed the role in 1989, following the death of the Islamic Republic’s founder, Ayatollah Ruhollah Khomeini.
2.40Iran’s political system is a combination of elected and unelected institutions. Elections are held regularly for president, parliament, local councils and the Assembly of Experts. The Supreme Leader and members of the Guardian Council and the Expediency Council, where most power is concentrated, are not popularly elected.
2.41The Assembly of Experts, comprising 88 clerics elected for eight-year terms by popular vote, selects the Supreme Leader and has the constitutional power to remove them from office should they be unable to perform their duties. In practice, the Assembly of Experts has never challenged the Supreme Leader’s authority. The Assembly of Experts meets twice a year. Seven members were most recently elected in February 2020.
2.42The Council of Guardians of the Constitution (‘Guardian Council’) reviews all bills passed by parliament to determine whether they comply with sharia (Islamic law) and the constitution. It vets all candidates for election to the presidency, parliament and Assembly of Experts, including on the basis of a candidate’s allegiance to Shi’a Islam and to the Islamic Republic. Disqualification of reform-minded candidates and/or candidates considered insufficiently loyal to the clerical establishment is common (the Guardian Council approved six candidates from a total of 1,636 to contest the last presidential election, and the rate of disqualification of reformers from the February 2020 parliamentary election was likewise high). The Guardian Council comprises 12 clerics, half of whom are appointed directly by the Supreme Leader for phased six-year terms. The head of the judiciary (appointed by the Supreme Leader) nominates the other six, who are then approved by parliament.
2.43The Islamic Republic’s original constitution (adopted in December 1979) provided for a president with limited powers and a prime minister as the head of cabinet and government. Constitutional amendments in 1989 abolished the position of prime minister and created a presidential system. While subservient to the Supreme Leader, the presidency has developed into a powerful office and Iran’s presidents have each stamped their own personality and politics on the country’s social and economic life, domestic politics and foreign policy. The president is popularly-elected for a four-year term. Presidents can stand for two consecutive terms and may contest a third term after an interregnum. The current president, Hassan Rouhani, secured a second term in May 2017 (he was first elected in June 2013). At the time of publication, Rouhani governed with the support of one first vice president, 10 vice presidents and 19 ministers, approved by parliament. The next presidential election is due in 2021.
2.44The Council for the Discernment of Expediency (‘Expediency Council’) resolves impasses between parliament and the Guardian Council. It also acts as an advisory body for the Supreme Leader. The Expediency Council comprises the president, the speaker of parliament, the chief of the Supreme Court, the chief-of-staff of the armed forces, the secretary of the Supreme National Security Council (the body responsible for directing national security policy), four Guardian Council jurisprudents and 38 members appointed to five-year terms by the Supreme Leader. According to Article 112 of the constitution, the Expediency Council meets when the Guardian Council ‘judges a proposed bill…to be against the principles of Shari’ah [sic] or the Constitution, and the Assembly [parliament] is unable to meet the expectations of the Guardian Council. Also, the Council shall meet for consideration on any issue forwarded to it by the Leader and shall carry out any other responsibility as mentioned in this Constitution’.
2.45The Islamic Consultative Assembly (commonly referred to as the Majlis) is Iran’s unicameral parliament. It comprises 290 members elected for four-year terms by popular vote (the most recent parliamentary election took place in February 2020). Deputies, who must be at least 30 years of age, represent 208 constituencies. Constituencies with large populations have multiple seats (for example, Tehran, the largest constituency, has 30 seats). Five seats are reserved for deputies from recognised religious minorities (two Christian Armenians, one Assyrian-Chaldean Christian, one Jew and one Zoroastrian). All of Iran’s parliaments have had female members (the current parliament, at the time of publication, had 19).
2.46Parliament has the power to initiate bills, although they must be approved by the Guardian Council in order to become law. Parliament can hold the executive branch to account through its powers over the budget and over the confirmation or impeachment of ministers. Parliament serves an important role as a public outlet for political debate, and legislators frequently challenge presidents and their policies. However, parliament’s powers are weak compared to the presidency and unelected institutions such as the Guardian Council and the Supreme Leader’s Office. The absence of conventional political parties and a very high turnover of members (see also Political Opinion (Actual or imputed)) weakens the role of parliament. Parliamentary candidates undergo an exhaustive vetting procedure, first by the Ministry of Interior then by the Guardian Council (the Guardian Council disqualified around 50 per cent of the 13,896 candidates who registered to contest the 2020 election, including 82 sitting members. The overwhelming majority of those disqualified were considered reformist or moderate).
2.47Cities and villages throughout Iran have local councils, elected for four-year terms by popular vote.
2.48The president appoints the governors of Iran’s 31 provinces. Local council elections were last held in May 2019. Candidates for local council elections are vetted by parliament.
HUMAN RIGHTS FRAMEWORK
2.47The constitution provides for freedom of expression, association, opinion, assembly and religion, but stipulates that freedoms must not violate certain principles, including Islam and public rights. These principles are not clearly defined in legislation, and authorities have significant discretion in applying them.
2.48Iran is a State party to five of the nine core international human rights treaties: the International Covenant on Civil and Political Rights; the International Convention on the Elimination of All Forms of Racial Discrimination; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Rights of the Child and its Optional Protocol on the sale of children, child prostitution and child pornography; and the Convention on the Rights of Persons with Disabilities. Iran has signed – but not ratified – the Optional Protocol on the Rights of the Child on the involvement of children in armed conflict. Iran is not a signatory to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention for the Protection of All Persons from Enforced Disappearance; the Convention on the Elimination of All Forms of Discrimination against Women; and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.
2.49In March 2011, the UN Human Rights Council (HRC) re-established the mandate of a Special Rapporteur on the situation of human rights in Iran. The previous mandate, established by the HRC’s forerunner (the UN Commission on Human Rights), was discontinued in 2002. The Special Rapporteur’s mandate is to monitor and investigate human rights violations in Iran, report to the HRC and the UN General Assembly, and engage publicly on issues of concern. Iran does not cooperate with the Special Rapporteur and has repeatedly denied them permission to visit the country.
2.50Iran participated in the HRC’s Universal Periodic Review (UPR) process in February 2010, October 2014 and November 2019. Of the 329 recommendations it received at its most recent UPR, Iran accepted 143 recommendations in full and 45 in part.
2.51Iran conducts bilateral human rights dialogues with a number of countries, including Australia (since 2017). The most recent Australia-Iran Human Rights Dialogue took place in August 2018.
2.52Parliament passed a freedom of information law in 2009. Implementing regulations were adopted in 2015. In 2017, the Information and Communications Technology Ministry launched an online portal for information requests. The law grants broad exemptions, including where the disclosure of information would conflict with state interests, cause financial loss or harm public security.
RELIGION
Over 99 per cent of Iranians are Muslim, of whom 90-95 per cent are estimated to be Shi’a and 5-10 per cent Sunni. Small religious minority communities – including Baha’is, Christians, Zoroastrians, Jews and Sabean-Mandaeans – make up the remainder. Of Iran’s religious minorities, only Christians, Zoroastrians and Jews (excluding converts) enjoy legal recognition and, in turn, the ability to worship openly (see Recognised Religious Minorities). Adherents of non-recognised religions are considered Muslim and are prohibited from expressing their faiths publicly. Religious minority communities – recognised and non- recognised – have shrunk considerably since 1979, with many choosing to leave Iran after the Islamic Revolution.
Iran is a theocracy with Islamic beliefs and customs enshrined in law. Shi’a Islam is the official state religion. Article 4 of the constitution requires that all laws and regulations be based on (Shi’a) Islamic criteria. Legislation and government policy heavily favour the majority Shi’a population, leading to pervasive structural discrimination against non-Shi’a Muslims and recognised religious minorities. Non-Shi’a Muslims, for example, are constitutionally barred from serving as Supreme Leader or as members of the Guardian Council, the Assembly of Experts and the Expediency Council. Adherents of non-recognised religions, particularly Baha’is, face widespread official and societal discrimination. According to a July 2019 survey on religious restrictions conducted by the Pew Research Center, Iran ranks among the top 10 countries in the world for laws and policies restricting religious freedom.
Recognised Religious Minorities
3.33 The Christian, Zoroastrian and Jewish religions are the only recognised non-Muslim faiths in Iran. The constitution grants adherents of these religions the freedom – within the limits of the law – to perform their religious rites and ceremonies, and to comply with their own canon in their personal affairs and religious education. Christians, Zoroastrians and Jews are allowed to hold religious services, operate places of worship and religious schools, celebrate religious holidays and issue marriage contracts in accordance with their religious laws. Five parliamentary seats are reserved for these groups (two for Armenian Christians, and one each for Assyrian Christians, Zoroastrians and Jews). Armenian Christians have observer status in the Guardian Council and Expediency Council. The Ministry of Education supervises private schools run by Christians, Zoroastrians and Jews, and must approve all textbooks, including religious texts. The principals of private religious schools (also known as directors) must pass the gozinesh review (a process to determine one’s adherence to, and knowledge of, Islam and loyalty to the Islamic Republic). Members of the three recognised religions must register with the authorities.
3.34Despite the protections afforded to them by the constitution, members of recognised religious minorities face official and societal restrictions. By law, non-Muslims are barred from occupying senior positions in the government, military or intelligence, serving in the judiciary or as public-school principals. Non-Muslims seeking public sector employment or intending to run for public office are at a disadvantage compared to Muslims due to the requirement that all such candidates or applicants undergo the gozinesh review. Government workers who do not observe Islamic principles and rules are subject to penalties and may be dismissed or barred from work in particular sectors. With the exception of the five parliamentary quota seats and local councils, members of recognised non-Muslim religious minorities may not be elected to representative bodies.
3.35Most members of recognised religious minorities are indistinguishable from Muslims in terms of physical appearance and everyday dress. Christian, Zoroastrian and Jewish women adhere to dress code requirements relating to the wearing of headscarves in public. However, many Christians have ethnically distinct names that can identify them as Christian. This may occasionally manifest in low-level societal discrimination such as the loss of employment opportunities, but is unlikely to result in violence.
3.36DFAT assesses that members of recognised religious minorities who do not seek to convert Muslims to their religions face a low risk of official discrimination. While they enjoy the benefits of official recognition, the structure of the Islamic Republic favours the Shi’a Muslim majority to the exclusion of others. The risk of societal discrimination, including violence, is low, but may increase at times of heightened external pressure on Iran.
Atheists and Secular or Non-practicing Muslims
3.70Local sources told DFAT that secularism is widespread, particularly in the major cities and among younger and wealthier Iranians. A significant proportion of the population does not attend mosque or pray on a regular basis, and alcohol consumption is common. Official sources told DFAT that religion was a private matter — that, beyond the expectation that people do not eat in public or hold parties during the holy Muslim month of Ramadan, how one wished to observe Islam was an individual choice, and was not a matter for the state. DFAT heard anecdotally that many Iranians do not observe Ramadan strictly, including by eating, drinking liquids and smoking at home. Most restaurants are closed during Ramadan, although many (especially in Tehran) reportedly serve food discreetly. Those caught eating in public during Ramadan run the risk of arrest and prosecution.
3.71A Muslim who renounces Islam and becomes atheist is considered apostate and risks state persecution and, potentially, the death penalty (see Religiously-Based Charges). DFAT is unable to verify what proportion of the population is atheist. According to local sources, atheists are discreet about their non-belief beyond their close family and friends. Unless they widely publicise their non-belief, atheists are unlikely to come to the attention of the authorities. Atheists from conservative families might face familial pressure and potential ostracism if their atheism were revealed, but would generally not be subjected to physical harm. Local sources told DFAT that atheists from more liberal families and parts of the country, like north Tehran, would face no such pressure. DFAT is unaware of individuals being prosecuted for atheism.
3.72DFAT assesses that non-practising Iranian Muslims face a low risk of official and societal discrimination, particularly in the major cities. DFAT assesses that atheists who are open about their non- belief face a moderate level of official and societal discrimination.
Religiously-Based Charges
3.73Under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. Separately, a person of any religion may be charged with the crime of ‘swearing at the Prophet’ (blasphemy) if they make utterances that are deemed derogatory toward the Prophet Mohammed, other Shi’a holy figures or divine prophets. The Penal Code does not specifically criminalise apostasy, but provisions in the Penal Code and the constitution stipulate that sharia applies to situations in which the law is silent, and judges are compelled to deliver sharia-based judgements in such cases. Although the Quran does not explicitly say that apostasy should be penalised, most Islamic judges in Iran agree that apostasy should be a capital crime. This ruling is based both on oral traditions attributed to the Prophet Mohammed and to Shi’a Imams, whom Shi’a consider the Prophet’s rightful successors. Chapter 5 of the Penal Code specifically criminalises swearing at the Prophet as a capital offence, although a clause states that the sentence can be reduced to 74 lashings of the whip if the accused states the insults were the result of a mistake or were made in anger.
3.74Politically-motivated apostasy charges were frequent in the years following the Iranian revolution, often leading to death sentences. However, in the vast majority of cases, defendants charged with apostasy also faced other charges related to national security. Many of these cases were quickly tried, ending in execution, so apostasy was not fully discussed in the prosecution of these defendants.
3.75While apostasy and blasphemy cases are no longer an everyday occurrence in Iran, authorities continue to use religiously-based charges (such as ‘insulting Islam’) against a diverse group of individuals. This includes Shi’a members of the reform movement, Muslim-born converts to Christianity, Baha’is, Muslims who challenge the prevailing interpretation of Islam (particularly Sufis) and others who espouse unconventional religious beliefs (including members of recognised religious groups). Some religiously-based cases have clear political overtones, while other cases seem to be primarily of a religious nature, particularly when connected to proselytisation.
3.76Today, death sentences in apostasy and blasphemy cases are rare. In March 2017, the Supreme Court upheld the decision of a criminal court in Arak (Markazi Province) to sentence a 21 year-old man to death for apostasy. Authorities arrested the man after he made social media posts considered critical of Islam and the Quran while on military service. According to publicly available information, the death sentence had not been implemented at the time of publication. The court also convicted two co-defendants of posting anti-Islamic material on social media, sentencing them to prison.
3.77DFAT assesses that those accused of religiously-based charges are also likely to face charges related to national security. They are unlikely to have adequate legal defence, and are likely to be convicted.
DEATH PENALTY
4.5Iran implements the death penalty at one of the highest rates in the world, both in actual numbers and per capita. More than 80 offences are punishable by death, including: murder; rape; drug possession; security-related crimes; and ‘moral crimes’ like adultery and homosexuality. Vaguely-defined offences such as ‘insulting the Prophet’, ‘enmity against God’ and ‘spreading corruption on earth’ (including blasphemy and heresy) also attract the death sentence. Revolutionary Courts issue most death sentences. Some offences that attract the death sentence are not considered ‘most serious crimes’ under the International Covenant on Civil and Political Rights (to which Iran is a signatory).
4.6Iran does not publish statistics on executions, and accurate figures are difficult to obtain. Amnesty International, which tracks executions worldwide, recorded at least 253 executions in 2018, down from 507 in 2017. The over 50 per cent decline in executions was largely the result of amendments to Iran’s Anti-Narcotics Law, which reduces the application of the death penalty for many drug trafficking offences (about 80 per cent of death penalty verdicts related to drug trafficking at the time of the amendments). The Special Rapporteur on the situation of human rights in Iran claims 217 people were executed between 1 January and 31 October 2019. Hanging is the general method of execution, although the Penal Code also permits death by stoning. The government says a judicial moratorium on the use of stoning has been in place since 2008, and Amnesty International did not record any executions by stoning in 2018. Most executions take place in prisons, although some continue to be carried out in public (usually by hanging in a public square). According to the Special Rapporteur, there were at least 12 public executions between 1 January and 31 October 2019. Iran commutes some death sentences, but accurate figures are difficult to obtain.
4.7Iran is one of the few countries in the world to sentence minors to death. Under the Penal Code, girls from the age of nine years and boys from the age of 15 years can be sentenced to death in the same way as adults for murder and certain other capital crimes. Since 2013, judges have had the discretion to impose an alternative punishment if they determine the juvenile offender did not understand the nature of their crime or its consequences, or if they have doubts about the offender’s ‘mental growth and maturity’ at the time of the crime. In most cases, courts stay executions until the offender turns 18, and occasionally commute death sentences to prison terms. Amnesty International claims seven people were executed in 2018 for crimes committed when they were minors, and believes at least 85 others were on death row as at April 2019. In the most recent known case, in October 2019 a 21-year old man was executed in Karaj for an alleged murder committed when he was 16. In April 2019, two 17-year old boys were executed in Shiraz (Fars Province) for alleged rape and robbery.
4.8Of the 253 executions recorded by Amnesty International in 2018, 160 were for murder; 25 for drug- related offences; 22 for rape; 18 for ‘enmity against God’ (12 of which related to robberies and six to political activities); and 14 for ‘spreading corruption on earth’. Although the media occasionally reports death sentences for adultery, apostasy and blasphemy, very few executions for these offences have occurred in recent years. Executions in relation to homosexuality are now extremely rare, and are usually coupled with other serious convictions such as rape. Those executed in Iran are overwhelmingly Iranians, although Afghans make up a significant minority. A very small number of those executed (as few as 2 per cent) are women. Under Islamic law, murder victims’ relatives have the power to pardon the offender and accept financial compensation instead.
4.9There is significant domestic opposition to the death penalty. A number of groups and individuals campaign actively on the issue, including through Internet and social media campaigns. Campaigns have focused on persuading the families of murder victims to pardon the perpetrator, allowing them to avoid execution; and on raising ‘blood money’ (diyeh) as restitution for the families of murder victims on behalf of defendants who are unable to raise the required sum themselves. These campaigns have had some success, with the number of family pardons increasing considerably in recent years. The Iranian system views these campaigns as being in line with sharia, and broadly encourages them: the High Council for Human Rights itself organises fundraising for ‘blood money’. However, authorities have discouraged efforts by activists to eliminate the death penalty. Several activists of LEGAM (the Farsi acronym for the Gradual Elimination of the Death Penalty) have been imprisoned for their activities, which authorities perceive as promoting anti-Islamic and anti-government messages.
4.10Iran takes a conservative, law and order-centred approach to issues involving illegal drugs, which cause significant social problems and elicit strong community views (see Health). Traditionally, most executions have been for drug-related offences. In November 2017, parliament adopted – and the Guardian Council approved – amendments to the Anti-Narcotics Law. Under the amended law, the death penalty can be applied only in convictions that, in addition to drugs, involve the trafficking of arms; where the accused played a leading role in organising and financing the trafficking of drugs, including through the use of children; and in cases involving previous death sentences, life sentences or sentences of more than 15 years. The amended law also increases significantly the threshold for the quantity of drugs required to trigger a mandatory death sentence, and permits people sentenced to death for drug-related crimes to request a review with a view to having their sentence commuted. The amended law can be applied retroactively. In line with these amendments, the judiciary has suspended most executions of people convicted of drug offences pending review of their cases. Iran’s Prosecutor-General revealed in July 2018 that, of the 1,700 cases reviewed, most death sentences for drug-related crimes had been reduced, and a further 1,300 cases were awaiting review. The death penalty still applies to the production and distribution of particular amounts of opium, heroin and methamphetamine, as well as for armed smugglers, ringleaders and financiers.
TORTURE
4.11Iran is not a signatory to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 38 of the constitution prohibits all forms of torture for the purpose of extracting confessions or acquiring information. Article 169 of the Penal Code stipulates that a confession obtained under coercion, force, torture, or mental and physical abuses shall not be given any validity and weight.
4.12Despite these legal protections, international human rights organisations report that torture and other mistreatment of detainees occurs in Iranian detention facilities, especially as a means to extract information. International sources report that common methods of torture used in Iranian prisons include threats of execution or rape, sexual humiliation, sleep deprivation, electroshock, burnings, the use of pressure positions, and severe and repeated beatings. Allegations of forced confessions through torture, denial or delayed access to legal representation, and mistreatment while in detention are common in the case of individuals charged with national security offences. Individuals arrested for minor offences, dress code violations and consuming alcohol face a low risk of torture.
4.13Although the Penal Code prohibits the admission into evidence of confessions obtained under torture, it does not set out any procedure for judges and prosecutors to investigate allegations of torture and ensure that confessions are voluntary. Human rights organisations report that the authorities have systematically failed to investigate allegations of torture and other mistreatment, and have sometimes threatened to subject complainants to further torture and long sentences. According to Amnesty International, judges continue to admit confessions obtained under torture as evidence against defendants. As far as DFAT is aware, no formal mechanism exists through which victims of mistreatment and torture can register a complaint.
4.14DFAT assesses that the authorities use violence or other pressure tactics to extract confessions from defendants, including those charged with national security-related offences. DFAT further assesses that individuals suspected or found to be guilty of national security-related offences are vulnerable to mistreatment that may amount to torture inside prison.
CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
Arbitrary Arrest and Detention
4.17Article 32 of the constitution stipulates that no one may be arrested except by the order and in accordance with legal procedure. Authorities must communicate the charges to the arrested person in writing without delay, and forward a provisional dossier to the competent judicial authorities within 24 hours. Article 36 states that only a competent court may pass and execute a sentence, and it must be in accordance with the law. Article 37 guarantees the presumption of innocence.
4.18Despite these constitutional protections, many organisations report that authorities commonly use arbitrary arrests to impede perceived anti-government activities by a range of actors, including ethnic minority, religious, labour, civil and environmental rights activists. Individuals under arrest often remain in detention facilities for long periods without charge, and authorities sometimes prevent them from informing others of their whereabouts for several days. Authorities often deny detainees’ access to legal counsel while in detention, and impose travel bans on individuals released on bail or pending trial. State television often broadcasts documentary accounts of crimes before formal charges are laid.
4.19In 2016, the UN Working Group on Arbitrary Detention identified an emerging pattern involving the arbitrary detention of citizens with dual citizenship or residency. In their most recent report (July 2019), the Special Rapporteur on the situation of human rights in Iran claimed that at least 30 dual and foreign nationals were being held in detention in Iran. The Special Rapporteur claimed these individuals were arrested arbitrarily, underwent trials that failed to meet basic fair trial standards and were convicted on fabricated or no evidence. Some have reportedly been denied appropriate medical treatment, including for life-threatening illnesses. Iran does not recognise dual citizenship, thus depriving some foreign citizens of consular access while in custody.
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Citations2015059 (Refugee) [2021] AATA 5105
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Cases Cited24
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Savvin v MIMA [1999] FCA 1265Diatlov v MIMA [1999] FCA 468DZABG v MIAC [2012] FMCA 36