2015544 (Refugee) - [2024] AATA 2691

2015544 (Refugee) [2024] AATA 2691 (9 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Azam Jafari (MARN: 1571733)
CASE NUMBER: 2015544

COUNTRY OF REFERENCE: Iran
MEMBER:Genevieve Hamilton
DATE:9 April 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 April 2024 at 11:34am
CATCHWORDS
REFUGEE – protection visa – Iran – political opinion – association with Green movement – religion – conversion to Christianity – particular social group – public drunkenness – being in public with an unrelated woman – detention – fear of military service – political activities in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AA, 5H, 5J – 5LA, 36, 48, 65, 91, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
DBB16 v MIBP (2018) 260 FCR 447
MIAC v SZQRB [2013] FCAFC 33
MICMSMA v CBW20 [2021] FCAFC 63
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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The decision was submitted with the review application.
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands. He was granted a Temporary Safe Haven subclass 449 humanitarian visa on 23 July 2013 along with a bridging visa. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time.
The applicant was invited to apply for TPV or SHEV (785 or 790) on 8 July 2016. He lodged a SHEV application on 25 May 2017 (the first application). This application was not decided and therefore is not the subject of a review application.
Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447, the applicant is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Act) due to this arrival method. On 12 June 2020 the Department incorrectly advised that the first application was invalid due to the application of DBB16, and that 91K may be waived in order for him to lodge a second protection visa application. (As determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.)
The second application was lodged 20 July 2020.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2015544 (Refugee)

Details

AGLC: 2015544 (Refugee) [2024] AATA 2691
Case: [2024] AATA 2691
Decision Date: 9 April 2024

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an Iranian national. The applicant claimed he feared harm upon return to Iran due to his association with the Green Movement, his conversion to Christianity, and his past conduct involving public drunkenness and being in public with an unrelated woman. The Administrative Appeals Tribunal (AAT) affirmed the decision not to grant the visa.

The primary legal issue before the court was whether the applicant had established a real risk of significant harm if returned to Iran, thereby qualifying for a protection visa under Australian law. This involved assessing whether the claimed grounds for fear, including political opinion, membership in a particular social group, and religious persecution, were well-founded and whether any such risk was personal to the applicant rather than a general risk faced by the population. The court also considered the limitations on complementary protection obligations as outlined in section 36(2B) of the Act.

The Tribunal considered the applicant's claims in light of the evidence and relevant country information. It noted that the applicant's initial account of leaving Iran was vague, stating he was "sick and tired" and left for "freedom and peace." While the applicant later provided a more detailed account of fearing harm from the family of a powerful cleric due to a relationship with his daughter, the Tribunal found this explanation for not disclosing the information earlier to be unconvincing. The Tribunal also found that the applicant's alleged conversion to Christianity was not substantiated and that his past detentions for public drunkenness and being with a woman were not indicative of persecution based on political opinion or membership in a particular social group. Furthermore, the Tribunal determined that the risks the applicant claimed to face were either not personal to him or were risks faced by the general population in Iran, and that there were no complementary protection obligations engaged.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa, finding that he did not satisfy the criterion in section 36(2) of the Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CLAIMS AND EVIDENCE In his arrival interview on 18 June 2013 the applicant said he was born in Tehran in [specified year], is ethnically Persian, speaks Farsi and his religion is Shi’a. He provided his mother’s and his sister’s contact numbers in Iran. He said he has an Iranian national ID card. He has a military service exemption because he cares for his mother as he does not have a father. He said he believed his father has passed away, “we don’t have any news of him, my parents are divorced, I’ve never met my father”. [Details of family deleted.] He worked in a [business 1] [between specified years]. The applicant said he left for freedom and peace, and because he had the opportunity. Nothing happened specifically he just got sick and tired. Asked what would happen if he returned, he said he had never thought about it but things might happen including depression. Neither he nor any family members were involved in any political group or organisation, or any activities or protests against the government. He was arrested in 2008 because he was with his girlfriend and he was drunk. He was detained for a less than a day, a few hours. Both families came and wrote an undertaking and the police agreed to release them. He was again detained in 2011, for drinking alcohol, and held overnight. The applicant commented on the arbitrary application of the law in Iran. Asked if anyone had told him not to tell the truth, he replied in the negative. Asked if anyone told him what to say in dealing with the Australian authorities, he again replied in the negative. He travelled with a friend. His passport, which he acquired legally from the police, was taken off him and destroyed by the smugglers before getting on the boat in Indonesia. Asked why he chose Australia as his destination, the applicant said it was not his idea, the [business 1’s] deputy encouraged him because Australia offered a better and more peaceful future. In his first protection application the applicant confirmed that he is an Iranian citizen. He left Iran legally on his passport around [a date in] April 2013. In a statutory declaration dated 22 April 2017 he said he fled his country because he feared being harmed for dishonouring the family of a powerful cleric. He acknowledged he did not provide this reason at his arrival interview, and said this was because he had been told by other detainees not to say too much and he did not understand the importance of providing all the relevant information. He said his father had passed away and he and his siblings are responsible for providing for their mother. In 2008 he met a girl in a park. They were in a relationship for about 5 years. Her father is a powerful cleric. He was not aware of the relationship. Around 2009 the applicant was coming home from work and there was a Green Movement protest versus the Basijis. He was hit on the head and had to go to hospital. He spoke to his girlfriend. Her father (although he did not know of the relationship) assumed the applicant was injured in the protest and was opposed to the government. Then in 2013 he found out about the relationship and stopped the applicant’s girlfriend from seeing him. Soon after, the applicant found out that his girlfriend was pregnant, and his mother went to her house and asked if they could marry. They said no. Her mother called him to tell him to flee because her husband was looking for him and would hurt him. The cleric and his bodyguard went to his home and told his mother they would kill him if they found him. He fled to [Town 1] for a month and then went directly to the airport. His girlfriend was supposed to follow him but she was prevented from doing so and he had not been able to contact her, and his mother and sister went to her house but the family refused to tell them anything.

Decision

Reasons for decision

Accordingly, the applicant does not satisfy the criterion in s 36(2).DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Genevieve HamiltonMember

Ratio Decidendi

Legal Principle Established

Under s 36(2B) Australia does not have complementary protection obligations where:·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; ·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or·the risk is one faced by the population of the country generally and not by the applicant personally.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, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CLAIMS AND EVIDENCE In his arrival interview on 18 June 2013 the applicant said he was born in Tehran in [specified year], is ethnically Persian, speaks Farsi and his religion is Shi’a. He provided his mother’s and his sister’s contact numbers in Iran. He said he has an Iranian national ID card. He has a military service exemption because he cares for his mother as he does not have a father. He said he believed his father has passed away, “we don’t have any news of him, my parents are divorced, I’ve never met my father”. [Details of family deleted.] He worked in a [business 1] [between specified years]. The applicant said he left for freedom and peace, and because he had the opportunity. Nothing happened specifically he just got sick and tired. Asked what would happen if he returned, he said he had never thought about it but things might happen including depression. Neither he nor any family members were involved in any political group or organisation, or any activities or protests against the government. He was arrested in 2008 because he was with his girlfriend and he was drunk. He was detained for a less than a day, a few hours. Both families came and wrote an undertaking and the police agreed to release them. He was again detained in 2011, for drinking alcohol, and held overnight. The applicant commented on the arbitrary application of the law in Iran. Asked if anyone had told him not to tell the truth, he replied in the negative. Asked if anyone told him what to say in dealing with the Australian authorities, he again replied in the negative. He travelled with a friend. His passport, which he acquired legally from the police, was taken off him and destroyed by the smugglers before getting on the boat in Indonesia. Asked why he chose Australia as his destination, the applicant said it was not his idea, the [business 1’s] deputy encouraged him because Australia offered a better and more peaceful future. In his first protection application the applicant confirmed that he is an Iranian citizen. He left Iran legally on his passport around [a date in] April 2013.