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

1. 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.

2. 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.

3. 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. 

4. 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.)

5. The second application was lodged 20 July 2020.  The delegate refused to grant the visa on 13 October 2020.  As the applicant was not an ‘unauthorised maritime arrival’, he is not a ‘fast track applicant’ (as defined in s 5(1)) and the subsequent decision to refuse to grant the applicant a protection visa is not a ‘fast track decision’ (as defined in s 5(1)). Instead, it is a Part 7-reviewable decision able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411.

6. The second application is considered valid as: no refusal decision had been made at the time of the second application and therefore the matter is not affected by the Section 48B determination in MS18-010982, and both visa applications were for TPVs, meaning the second application is not caught by Item 1403(3)(e) of Schedule 1 to the Migration Regulations 1994.

7. The applicant appeared before the Tribunal on 2 October and 13 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

8. The applicant was represented in relation to the review.  The representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

9. Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

10. The criteria for a protection visa are relevantly set out in s 36 of the Act.  An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person. 

11. Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.

    Refugee

12. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).  

13. 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.

14. The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted.  A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

15. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).

16. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA).  A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

17. In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).

    Complementary Protection

18. If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.  S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.

19. 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

20. 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

21. 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]. 

22. 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. 

23. 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. 

24. 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.

25. 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. 

26. He has been detained three times.  The first time for three or four hours for smoking during Ramadan, and was beaten.  They second was 2008 for drinking alcohol, he was handcuffed and detained overnight.  The third time around 2011 when walking the street with his girlfriend, he was detained for three to four hours and she was let go.  On each occasion he was require sign an undertaking of good behaviour.  He fears being arrested and imprisoned, because he has sought asylum in Australia and will be viewed as part of the anti-government movement.  And he fears harm because of his girlfriend’s powerful father.  Friends who had returned voluntarily to Iran had been arrested and imprisoned. 

27. The applicant submitted a translation of his national ID card and his military service exemption card. 

28. In the second protection visa application the applicant said his religion was agnostic.  He re-submitted his first statutory declaration and said that he continued to rely on it.  In a further statutory declaration dated 7 July 2020 he said he acknowledged that he had previously said he was Shi’a.  He said his views have evolved and although he still believes in a God he does not adhere to any formal religion.  He said that after his father’s death he and his siblings supported his mother and he also played [sport] in a [team].  He was exempted from military service for these reasons.  He is suffering a large amount of stress and anxiety and addresses these with exercise and self-help.  With regards to his existing claims he said he feared that his house may be surveilled and phone lines tapped but has no evidence if this is actually the case.  He said he was afraid that if he was arrested he might catch covid and might be discriminatorily denied health care on account of his religious beliefs and profile. 

29. In a further statutory declaration dated 1 October 2020 the applicant added that he has had tattoos since he was a teenager.  This was illegal.  Once he was caught by the Basij when he was wearing a T shirt and they saw his tattoos.  He was beaten, taken to a police station and held overnight.  And when he worked for the [business 1] his employer noticed them, considered them un-Islamic and questioned him for a few hours.  He now has a number more tattoos, including on his [body parts].  (Pictures of his tattoos were submitted.)  They symbolise how he is able to live his life as he could not do in his home country.  For example [details deleted].  In Iran he could be punished by lashings. 

30. The applicant was concerned his military exemption could be revoked.  It was only valid during peace time.  In times of war or emergency, he was told, he could be called up.  He believed the situation was unstable and that war may be imminent.  If he refused he could be detained and forced to serve.  If so, he would be mistreated because of his opposition to violence and war (especially based on religion) and his strong opposition to the Iranian government’s brutal and restrictive regime.  If he refuses to fight he would be targeted for his views.  He would also be targeted for nis non-Islamic beliefs and practices.  He does not know how to say prayers or how to wash his hands before prayers.  His tattoos, speech and behaviour would be identified as un-Islamic.  Physical punishment and abuse is common in the military. 

31. In a statement in support of his review application dated 25 September 2023 the applicant said he was interested in Christianity and exploring Christian faith.  He went back to saying that the reason he was exempted from military service was because he was supporting his mother.  Regarding his tattoos he said that sometimes the authorities force the person to burn them with chemicals or other dangerous substances. 

32. The applicant claimed he had participated in anti-government demonstrations in Melbourne and Sydney.  There were always informants who attend these demonstrations to film and photograph participants in order to identify them.  He said during the last 12 months he had been commenting and sharing posts on social media against the Iranian regime.  He speaks loudly during gatherings.  This will be used against him and he will be accused of a crime he has not committed.  He will also be seen as a Western-affiliated spy because he has lived in Australia for more than a decade and sought asylum.  He would be arrested on arrival. 

33. In a submission dated 25 September 2023, the representative referred to the protests following the murder of Mahsa Amini and the large number of people killed or mistreated as a result.  They also referred to the wide range of human rights abuses by the Iranian regime, and cited relevant reports. 

34. The applicant submitted a baptism certificate from [Church 1] stating that he was baptised [in] September 2023. 

35. At the hearing the applicant said his parents separated when he was about 7 and no one knows his whereabouts or whether he is alive.  Asked why he did not know what happened to his father, he said he did not visit or contact them and his father’s own family did not talk about what happened to him either.  His mother must have enquired but the applicant did not remember anything about it.  He said he was exempt from military service because his brother had completed it and he himself was looking after his family.  The Tribunal asked why he had said his father was deceased.  The applicant said if he was alive he would not leave a wife and [number] children.  As far as the applicant is concerned his father is deceased. 

36. Asked what would happen to him if he returned to Iran the applicant said he would be abused mentally and physically by the dictator regime of Iran.  Asked why this would occur the applicant said he was in the protests in Australia during 2023 and was opposed to the government.  They would know this because they have spies everywhere.  He has also changed his religion.  Asked why he changed his religion the applicant said his friends became Christians.  He heard a lot about Jesus and his generosity and peaceful nature.  He had a dream about Jesus and the Pastor confirmed it was Jesus and said he should become a Christian.  The Tribunal put to the applicant that his religious stance had evolved over the time he had been in Australia.  The applicant said he was only ever nominally Shi’a and he had never said he did not believe in Jesus. 

37. The Tribunal put to the applicant that his military service exemption did not on its face appear to be temporary.  The applicant said he had heard that people were being recalled to fight Daesh.  The Tribunal asked whether the applicant really thought this would happen to him.  The applicant said he was sure, because the Iranian government could not be trusted.  The Tribunal put to the applicant that he appeared to be speculating as to the prospect of a conflict that he would be required to fight in.  The applicant said people were being killed in Iran for no reason.  Asked if he feared anything else, he said he feared sexual abuse.  He had not even thought about being Iran after so many years.  He was afraid also because he does not have a passport, and had participated in protests, and would be labelled a spy.  Khamenei had labelled people who left Iran as traitors.  Iran calls them atheists and can harass and torture them.  The Tribunal put to the applicant that the country information did not accord with his claim that returned asylum seekers are targeted in this way.  The applicant said he did not trust the Iranian government at all. 

1. Asked whether anything bad happened to him in the past the applicant said just because he was smoking a cigarette during Ramadan they broke his rib.  The Tribunal put to the applicant that in his entry interview he had said that nothing happened other than being detained by the Basij on two occasions.  The applicant said they once broke his forehead when he was leaving work because they mistook him for someone else.  There had been a protest and he was in a crowd and they were bashing everyone.  Asked when this happened, the applicant said he could not remember.  Asked if he was ever detained, the applicant said once when he was with his girlfriend and had been drinking alcohol they saw his tattoos and handcuffed and detained him.

2. Asked about his girlfriend the applicant said her father did not approve of the relationship and he was a mullah in the Parliament.  That is what his girlfriend told him.  He threatened him over the phone.  The Tribunal put to the applicant that these events were more than ten years ago and that he may no longer be at risk in relation to his girlfriend.  The applicant said his life is at risk for any reason if he goes back to Iran.  There are spies everywhere and people are accused of espionage and treachery.  He is especially at risk now that he is a Christian.

3. The Tribunal asked the applicant if there was anything else that put him at risk.  The applicant mentioned again his religion.  The Tribunal reminded him that he mentioned in his written claims that he had tattoos.  The applicant asked what about them.  The Tribunal said he had said that this could cause him to be harmed.  The applicant said he would be pressured and questioned about them.  The Tribunal asked what the [specified] characters in one of his tattoos represented.  The applicant said they represented wealth – he was young at the time.  [Details deleted.]  This was also a youthful mistake.  He did not want to cover them up just to avoid being abused.  It was not the government’s business.  [One image] had got him beaten up when he was taken in for drinking. 

4. The Tribunal asked if he had to go to hospital after being beaten.  The applicant said he was in hospital for one night and has a scar on his [body part]. 

5. The Tribunal asked why the applicant did not mention having being beaten, when he arrived in Australia, and observed that his claims had evolved somewhat during the processing of his case.  The applicant said he did not have good information about what to say or how to say it. 

6. The representative made an oral submission referring to the time elapsed since the applicant arrived and his difficulties remembering and communicating all the information about his claims.  With the worsening situation in Iran people have been seriously harmed without having any profile.  He could be detained and tortured for no reason on an allegation of spying.  He has been in protests and there were informants there.  He has visible tattoos.  He has been detained before.  The length of time in Australia and having sought asylum would create suspicion (they referred to the Smart Traveller advice which says that dual nationals should not return to Iran).  Also he has changed his religion which is a crime in Iran.   

7. DFAT’s Country Information Report (July 2023) contains the following relevant information:

   Tattoos and People with ‘Western’ Appearance

   Having tattoos (including large tattoos that cover the entire arm (‘sleeves’)), ripped jeans, plucked eyebrows, jewellery (for example ear piercings), and Western-styled hair is common among young men in Tehran and other large cities. Women are subject to much stricter dress codes and are required to have most of their bodies covered (though may still wear western fashions). Tattoos are popular with young women.

   DFAT is not aware of men who have Western style appearance being targeted by authorities. Nor is DFAT aware of women who have a Western style appearance being targeted (with the exception of not wearing a hijab, see Women). DFAT is similarly not aware of tattooists being targeted. Some people in conversative communities or who have conservative parents may experience low-level discrimination, but this depends on the family.

   Atheists and Secular or Non-Practising Muslims

   In-country sources told DFAT many younger and wealthier Iranians, particularly in the major cities, are secular; a majority of the population does not attend mosque. Alcohol consumption is common among the youth. Official sources told DFAT that, despite government laws, religion was a private matter —beyond the expectation that people do not eat in public during the Muslim holy month of Ramadan or hold parties during the mourning months of Muharram and Safar - how one wished to observe Islam was an individual choice and was not a matter for the state. DFAT understands many Iranians do not observe Ramadan strictly, including by eating, drinking liquids and smoking at home. Most restaurants are closed during the day in Ramadan, although many (especially in Tehran) reportedly serve food discreetly. Those caught eating in public during Ramadan run the risk of arrest and prosecution.

   A 2020 study from Utrecht and Tilburg Universities found that atheism was quite common; about 20 per cent of people do not believe in God. The study itself points to Iranians being uncomfortable speaking about religion; discussions about it are not tolerated in Iranian society. Figures about the number of atheists in Iran are, therefore, difficult to verify.

   Those who publicly renounce Islam face apostasy charges (see Atheists). 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, however would generally not be subjected to physical harm. Sources told DFAT that atheists from more liberal families and parts of the country, like north Tehran, would face no such pressure.

   DFAT 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.

   Treatment of returnees

   …

   In general, authorities pay little attention to failed asylum seekers on their return to Iran. DFAT understands their actions (including social media posts about sur place activities) are not routinely investigated by authorities. Iranians with a public profile in Australia (or elsewhere) may have activities visible on social media tracked by the Iranian government. … Iranians have left the country in large numbers since the 1979 revolution, and authorities accept many will seek to live and work overseas for economic reasons. Those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are traveling on a laissez-passer. Questioning usually takes between 30 minutes and one hour, however may take longer if the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history on the part of the returnee. Arrest and mistreatment are not common during this process.

   DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination. Local sources told DFAT the greater challenges for returnees are finding work and economic considerations, which will differ from person to person depending on the location of return, family support and skills and experience.

   FINDINGS AND REASONS

8. Based on the information in his application the Tribunal finds that the applicant’s country of nationality is Iran.

9. The applicant claimed to fear harm on the basis of his religion and his political opinion. 

10. When he arrived in Australia the applicant did not express any fears.  He mentioned having been briefly detained for drinking alcohol.  On one of these occasions he was with a girlfriend.  These incidents took place in 2008 and 2011.  He expressed a general wish to have more freedom.  He stated that he was Shi’a. 

11. In the application under review, the applicant incorporated his statement made in relation to the first application, in which he had acknowledged that his later claims were not made at the arrival interview.  His reason for this was he was told not to make his claims.  The Tribunal does not accept this.  The applicant was specifically asked at the interview whether he had been told what to say, or not to tell the truth, and he answered in the negative.  Also, there was no logical reason why anyone would tell him not to reveal his claims.

12. The Tribunal therefore does not accept the claim that he was injured in a Green Movement protest and had to go to hospital.  It does not accept that his girlfriend’s father connected him to the Green Movement when he found out about the relationship in 2013.  It does not accept that the girlfriend’s father is a powerful cleric, or that the girlfriend was pregnant, or that he was told to flee Iran and did so in 2013 because of this. 

13. The Tribunal does not accept that the applicant was detained on a third occasion.  It does not accept that he was beaten during detention for having tattoos or any other reason.  The applicant did not claim to have been ever beaten in detention, or express any fears in relation to having tattoos, when he arrived in Australia.  He only raised this claim in October 2020.  The Tribunal does not accept that the applicant is afraid because of having tattoos.  The country information indicates that tattoos are common and not of interest to the authorities. 

14. The country information indicates that a lot of Iranians are secular and non-practicing Muslims without a real chance of serious harm.  The applicant has not been seriously harmed in the past for infringing Islamic practice and the Tribunal is not satisfied that he will be so harmed the future.

15. The Tribunal does not accept that the applicant is a Christian convert.  At most he is agnostic.  Shortly before the hearing he said no more than that he was exploring Christianity.  Yet within days he had a baptism certificate.  This was not credible.  Asked at the hearing why he became a Christian, he replied in terms that the Tribunal found vague and unconvincing.  There is no reason to believe his agnostic views will come to the attention of the Iranian authorities. 

16. The Tribunal does not accept that the applicant has attended anti-regime protests or that he has been active in social media against the regime.  There is no evidence of this before the Tribunal other than his own claim and the Tribunal did not find him overall to be a credible witness.  The Tribunal does not accept that any conversations he has had, loud or otherwise, have or will come to the attention of the Iranian authorities.  He has no history of political activism and the Tribunal is not satisfied that he will be politically active in the future.  He simply has no profile that would bring any of his conversations to the attention of the Iranian authorities. 

17. The applicant made a late claim that he was worried about having to serve in the military and that his religious and political stance would cause him trouble in that setting.  The Tribunal finds that the chance of the applicant being called to serve in the military is no more than speculative. 

18. The country information indicates that asylum seekers are not, as such, of interest to the Iranian authorities because it is understood that many Iranians leave to seek economic opportunities abroad. 

19. In summary, the Tribunal is not satisfied that the applicant faces a real chance of serious harm for the reasons specified in s 5J(1).  He therefore does not have a well-founded fear of persecution as required by s.5J(1).  The Tribunal finds that the applicant is not a refugee as defined in s.5H(1). 

20. Having concluded that the refugee criterion is not met, the Tribunal considered the application of the complementary protection provisions.  As the Tribunal has already found that there is no factual basis for the applicant facing a real chance of serious harm in relation to the claims discussed above, similarly it finds that he does not face a real risk of significant harm, as defined, in relation to those claims. 

    CONCLUSION

21. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).

22. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.

23. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    DECISION

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

    Genevieve Hamilton
    Member