2015561 (Refugee)

[2021] AATA 3386

2015561 (Refugee) [2021] AATA 3386 (13 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2015561

COUNTRY OF REFERENCE:                   Iran

MEMBER:Roslyn Smidt

DATE:13 August 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 13 August 2021 at  3:58 PM

CATCHWORDS
REFUGEE – protection visa – Iran – particular social group – bisexual or homosexual man – mental health – credibility – no mention of sexuality in written application and expanding claims in interviews and hearing – some evidence concocted or exaggerated – supporting evidence given weight – country information – criminalisation and punishment, and societal attitudes – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 46A, 65, 91K, 91L
Migration Regulations 1994 (Cth), Schedule 2

CASE
DBB16 v Minister for Border Protection [2018] FCAFC 178

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who is citizen of Iran, applied for the visa on 1 April 2020. The delegate refused to grant the visa on the basis that she did not find the applicant to be credible.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. 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.

   BACKGROUND

9. The applicant is a [age]-year-old single man from Tehran in Iran. He arrived in Australia by boat [in] May 2013. He was in detention from then [until] July 2013. From then [until] January 2017, he held a bridging visa and lived in the community. His bridging visa was cancelled [in] January 2017 after he was charged with two offences involving violence. He was found not guilty of these charges in 2018. [In] November 2018, he was granted a bridging visa and released from detention. The bridging visa ceased [in] May 2019. The applicant was detained [in] July 2019 after being arrested in relation to a property offence. No charges were laid in relation to this incident. The applicant has remained in detention since that time.

   PROCEDURAL HISTORY

10. On 22 July 2013, the Minister for Immigration exercised his discretion under s 91L of the Migration Act 1958 (the Act) to lift the s 91K statutory bar to allow the applicant to make an application for a Temporary Safe Haven Subclass 449 (TSH) visa 2 and for a Subclass 050 bridging visa.

11. On 18 April 2016, the Minister, believing that the applicant was an UMA, purported to exercise his discretion under s 46A(2) to lift the application bar under s 46A(1) of the Act to allow the applicant to lodge either a Temporary Protection (Class XD) (Subclass 785) visa or a Safe Haven Enterprise (Class XE) (Subclass 790) visa (SHEV)3.

12. The visa applicant applied for a SHEV visa on 12 May 2016. This application was refused on 19 June 2017. The delegate’s decision was affirmed by the Immigration Assessment Authority (IAA) on 18 August 2017.

13. Following the judgment in DBB16 v Minister for Border Protection [2018] FCAFC 178 (DBB16) a person is not an UMA through the act of entering Australia by sea at the Territory of Ashmore Reef and Cartier Islands. Following this, the Department re-notified the applicant of the delegate’s decision on 25 July 2019. The applicant applied to the Tribunal for review of that delegate’s decision on 26 July 2019. On 18 November 2020, a differently constituted Tribunal set aside that delegate’s decision and substituted a decision that the application was not valid and could not be considered.

14. On 23 March 2020, the applicant was advised that the bar on further applications under s 91L(1) had been lifted and was invited to apply for a further SHEV. He lodged an application on 1 April 2020. That application was refused by a delegate on 7 October 2020. That is the decision currently before me.

    SUMMARY OF CLAIMS

15. The applicant claims that he is at risk of serious harm in Iran because he is bisexual and would continue to engage in homosexual relationships and liaisons if he returned to his homeland.

    THE APPLICANT’S MENTAL HEALTH AND ABILITY TO PROVIDE EVIDENCE

16. According to reports from STARTTS and the [immigration detention centre] medical staff and advice from the applicant’s representative, the applicant suffers from mental health issues including PTSD and depression and had a long-term and continuing substance abuse problem. He attempted suicide [in] February 2020. Some of the reports on his mental health submit that these problems have impacted on his memory and ability to provide evidence regarding past events. I have had regard to these reports in my assessment of his claims.

    FINDINGS OF FACT

17. There are numerous significant problems with the applicant’s evidence regarding his sexuality. There was no mention of his sexuality in his initial application for protection. When he first raised that issue during his interview with the first delegate, he said that he was homosexual but had limited experience with men in Iran and had no problems because he was not very active. Later in the same interview, he claimed that he had been in at least one long‑term relationship. In later submissions, he said that the was bisexual and had had relationships with both men and women in Iran and Australia. His written and oral evidence in support of his current application is at odds with the information provided to the first delegate and contains significantly different and sometimes contradictory accounts of his relationships with men and women in Iran and Australia and the problems he faced because of his sexuality in Iran. For example, he has stated at different times that he did not experience any problems in Iran and that he was detained once or twice for extended periods. The dates and circumstances of these periods of detention also varied significantly. Despite claiming that he had had numerous sexual liaisons in Australia, he was unable to provide any independent or convincing evidence of this. There are also problems with other aspects of his evidence. For example, he claims to be estranged from his father and most of his family, but also stated that he continued to speak to his father regularly.

18. As result of these and other issues with the applicant’s evidence, I find that he is not an entirely credible or truthful witness. While some of the confused and contradictory nature of his evidence may be the result of his mental health issues, I do not accept this explains all of the problems with his evidence. I believe that he has at least exaggerated the number and frequency of his gay relationships in Iran and I am not satisfied that he was ever arrested or imprisoned in Iran because of his sexuality. I believe that he knowingly concocted at least some of these claims in order to support his protection in Australia.

19. However, I am aware that applicants from countries such as Iran may be reluctant to disclose issues relating to sexuality, which may account for the applicant’s failure to raise this issue in his initial application. I also note that according to his evidence, most of his sexual activity in Australia involved brief encounters with men at gay sex clubs and that he appears to have fallen out with many of his former friends after being charged with assault in 2018, which could account for his inability to provide supporting evidence from people in Australia. Finally, I note that applicants who genuinely fear harm may exaggerate and concoct claims in the mistaken belief that this will ensure that they obtain protection. The applicant is clearly deeply distressed by his situation and has ongoing problems with depression and substance abuse. While I do not accept that this overcomes all of the problems with his evidence, it may explain some of the confusion in his evidence and his apparent inability to grasp that providing exaggerated or untrue evidence is not helpful to his case.

20. In the applicant’s case, there is evidence which in my view suggests that despite these problems, he is homosexual or bisexual.

21. In October 2017, the applicant discussed his sexuality and the problems he faced because of this with medical staff at the [immigration detention centre]. While I do not appear to have a complete record of the applicant’s interactions with medical staff, subsequent health records indicated that he continued to raise his sexuality as an issue of concern with medical staff following that time. These consultations were related to the applicant’s mental health and problems he was facing in detention. They were not related to his application for protection, and there is no reason to suppose that he believed that discussing his sexuality with medical staff and the [immigration detention centre] would assist him to obtain protection.

22. I have also given some weight to the evidence from [Mr A]. [Mr A] who is gay himself was a regular visitor at [the immigration detention centre] as part of a group which provided support to detainees. He befriended the applicant while he was detained at [the detention centre], and in written and oral evidence said that he had no doubt of the applicant’s sexuality, in part because he provided credible descriptions of his visits to gay venues.

23. I have also given some weight to the fact that the applicant raised his sexuality during court proceedings in relation to assault charges in 2018. He claimed that the altercation in which he was involved was related to the fact that members of the Iranian community knew or believed that he was homosexual. While some of his evidence regarding who from the Iranian community knew or believed he was gay was confused and unconvincing, in my view the fact that he raised his sexuality in circumstances unrelated to his claim for protection provides further support of his claim to be homosexual.

24. In these circumstances, despite some residual concerns, I accept that the applicant is bisexual, that he was aware of his sexuality and perhaps had some limited sexual contact with other men in Iran and that he has had sex at gay sex clubs in Australia. I also accept that he would continue to have gay liaisons or relationships if he returned to Iran.

    COUNTRY INFORMATION

25. According to DFAT’s 2020 Country Information Report on Iran, the Penal Code criminalises all sexual relations outside of traditional marriage and Chapter 2 of the Penal Code explicitly criminalises same‑sex relations. Depending on the circumstances, punishment can include execution, imprisonment or flogging. Lack of publicly available information makes it difficult to clearly determine when these punishments are applied, but execution appears to be applied mostly in cases involving non-consensual sexual encounters, including against minors. Flogging appears to be a more common form of punishment.

26. The government censors all materials related to LGBTI issues and NGOs are unable to work openly on LGBTI issues. The law does not prohibit discrimination based on sexual orientation or protect LGBTI people from hate crimes.

27. The prevailing view among Iranian healthcare professionals is that homosexuality is a psychosexual illness. Official ‘treatment’ includes prescription medications (such as Valium), gender reassignment surgery (GRS) and ‘corrective treatment’, which allegedly can include electric shock therapy on the hands, prescription of psychoactive medication, hypnosis and coercive masturbation to pictures of the opposite sex.

28. According to reports, some younger Iranians in more progressive parts of major cities are reportedly increasingly more tolerant of homosexuality, and homosexual and bisexual persons who do not openly reveal their sexual orientation and keep a low profile are able to move freely within society, particularly in larger cities that offer greater anonymity. However, there continues to be a strong societal taboo against homosexuality, particularly among older, more conservative Iranians. While official rhetoric against homosexual individuals and practices has reduced since the Ayatollah Khomeini era, high-level officials continue to issue derogatory statements about homosexuality and gay people face severe discrimination. This includes abuse and harassment from family members, work colleagues, religious figures, and school and community leaders.

    CONSIDERATION OF THE APPLICANT’S CLAIMS

29. On the evidence currently before me, I am satisfied that the applicant faces a real chance of experiencing serious harm amounting to persecution for reasons of his membership of the particular social group of homosexual men in Iran if he returns to Iran within the reasonably foreseeable future.

30. As set out below, a particular social group is one that is identifiable by a characteristic or attribute common to all members of the group, which is not the shared fear of persecution, and which must distinguish the group from society at large. In order to be considered a member of particular social group, an applicant must share or be perceived to share this characteristic or attribute and the characteristic must be innate or so fundamental to their identity or conscience, that they should not be forced to renounce it. I am satisfied that homosexual men in Iran constitute a particular social group and that homosexuality is an innate characteristic fundamental to the identity of members of the group. While the applicant identifies a bisexual rather than exclusively homosexual, I am satisfied that his engagement in homosexual liaisons and relationships means that he shares a characteristic common to all members of the particular social group of homosexual men in Iran and that he is a member of that group.

31. The advice from DFAT set out above clearly indicates that homosexual men in Iran who have sexual encounters or enter same-sex relationships face a real chance of suffering serious harm including detention and significant physical ill‑treatment in the form of lashings. The evidence also suggests that homosexual men who are not sexually active may be compelled to undergo treatment including electric shocks and prescription of psychoactive medication in an attempt to ‘correct’ them. In my view, such treatment administered without proper consent also constitutes serious harm amounting to persecution.

32. In considering the applicant’s case, I have noted that gay men in Iran may sometimes avoid problems by concealing their sexuality. However, as set out below, it would not be reasonable to expect the applicant to alter or conceal his sexual orientation in order to avoid persecution on return to Iran.

    CONCLUSIONS

33. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    DECISION

34. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Roslyn Smidt
    Member

    
    

    ATTACHMENT - Extract from Migration Act 1958

    5 (1) Interpretation

    …

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

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

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

    but does not include an act or omission:

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

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

    …

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

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

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

    …

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

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

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

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

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

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

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

    …

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

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

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

    …

    5H    Meaning of refugee

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

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

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

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

    …

    5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    (b)     significant physical harassment of the person;

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

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

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

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

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

    5K    Membership of a particular social group consisting of family

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

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

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

    (i)the first person has ever experienced; or

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

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

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

    5L    Membership of a particular social group other than family

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

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

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

    (c)     any of the following apply:

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

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

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

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

    5LA Effective protection measures

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

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

    (i)the relevant State; or

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

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

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

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

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

    …

    36     Protection visas – criteria provided for by this Act

    …

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    …