2017662 (Refugee)
[2024] ARTA 105
•19 November 2024
2017662 (Refugee) [2024] ARTA 105 (19 November 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs
Tribunal Number: 2017662
Tribunal:General Member J. Pennell
Date:19 November 2024
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 19 November 2024 at 3:39pm
CATCHWORDS
REFUGEE – protection visa – Iran – arrival by sea – not unauthorised maritime arrival as defined and first application invalid – alcohol and other drug user – first conviction and lashing – second conviction but failed to attend for sentencing – extensive tattoos, including identifiable symbol – rehabilitated and non-user but drugs readily available – returned failed asylum seeker and imputed anti-government opinions – vague and inconsistent claims and no documentary evidence – lawful departure on own passport – country information – prevalence of tattoos and Western-style appearance – prevalence of alcohol and other drug use, rarity of arrests and availability of treatment – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AA, 5AAA, 5H(1)(a), 5J(1), (4), 5L(c), 36(2)(a), (aa), (2A), 65, 91K
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
DBB16 v MIBP [2018] FCAFC 178
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
MIMA v Khawar (2002) 210 CLR 1
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Savvin v MIMA [1999] FCA 1265
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF 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 26 November 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2.The applicant, who claims to be a national of Iran, applied for the visa on 14 July 2020. 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).
3.The applicant arrived in Australia [in] October 2012 and was processed at Ashmore Reef and attended an entry interview on 15 October 2012.[1] The applicant lodged his first Safe Haven Enterprise visa application on 26 June 2017 (the First SHEV application). On 19 June 2020 the Department advised the applicant that pursuant to DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178 (DBB16) the applicant is not an “unauthorised maritime arrival” within the meaning of s 5AA of the Act and that the First SHEV application was invalid. On 14 July 2020, the applicant lodged a second Safe Haven Enterprise visa application (the Second SHEV application). On 26 November 2020 the Department refused to grant the Second SHEV application. On 9 December 2020 the applicant made an application to the Administrative Appeals Tribunal (the AAT) for review of the delegate’s decision.
[1] Applicant’s submissions dated 13 September 2024; ART File No 2017662 Doc ID: 13574394
4.The applicant appeared before the AAT on 16 September 2024 to give evidence and present arguments. The AAT hearing was conducted with the assistance of an interpreter in the Persian and English languages.
5.On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
6.The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
7.The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.
8.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 Attachment B 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 Attachment B 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 where applicable, 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
Applicant’s identity
The applicant claims that he was born on [Date] in Tehran City, Iran and claims that he is a citizen of Iran. The applicant’s evidence to the Department was that on the instruction of the people smugglers, he destroyed his passport on the boat while traveling to Australia by throwing it into the sea.[2] Nevertheless, the applicant provided the Department with a copy of his birth certificate (untranslated),[3] Iranian Military Completion Card (untranslated),[4]expired Iranian passport,[5] Iranian National ID Card (untranslated) and Australian Government Evidence of Immigration Status Card[6] as evidence of his identification. The applicant’s expired Iranian passport confirmed his date and place of birth.
[2] Protection Visa Decision Record dated 26 November 2020; Dept File No [Reference] Doc ID: 7976192
[3] Applicant’s birth certificate (untranslated) Dept File No [Reference] Doc ID: 7976163
[4] Iranian Military Completion Card Dept File No [Reference] Doc ID: 7976166
[5] Iranian passport Dept File No [Reference] Doc ID: 7976167
[6] Australian Government Evidence of Immigration Status Card Dept File No [Reference] Doc ID: 7976169
The documents provided by the applicant are consistent with the applicant’s evidence to the Tribunal in relation to his identity. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that the applicant is a citizen of Iran and as such his protection claims will be assessed against Iran as the country of reference and ‘receiving country’ respectively.
Migration history
15.The applicant’s margination history was as follows:[7]
[7] Protection Visa Decision Record dated 26 November 2020; ART File No [Reference] Doc ID: 7976192
Date
Details
15 October 2012
Attended arrival interview.
26 June 2017
XE-790 (Safe Haven Enterprise visa – SHEV) application commenced.
14 October 2016
Applicant affected by DBB16.
19 June 2020
XE-790 (SHEV) application invalid pursuant to s.91K.
14 July 2020
Application for a SHEV lodged.
Applicant’s claims for protection
The applicant’s claims for a protection visa are detailed in his statutory declaration dated 22 June 2016 that was attached to the First SHEV application[8] and his statutory declaration dated 24 November 2020 that was attached to the Second SHEV application. The delegate summarised the applicant’s claims as follows (including typographical errors):[9]
[8] First SHEV application; Dept File No [Reference], Doc ID: 7976160
[9] Protection Visa Decision Record dated 26 November 2020; Dept File No [Reference], Doc ID: 7976192
(a)At the applicant’s arrival interview the applicant claimed:
· The applicant was a drug user and drank alcohol and quit these three years earlier.
· He is a member of Narcotics Anonymous (NA).
· Considering the situation in Iran he did not want to stay there any longer as he did not want to go back to drugs and alcohol, so he came to Australia.
· He has never been involved in any political groups and has never been involved in protests against the government.
· Five years earlier he was arrested and lashed for drinking alcohol. Last year he was arrested again for drinking alcohol but nothing serious happened.
(B) BY HIS STATUTORY DECLARATION DATED 22 JUNE 2016 ATTACHED TO THE FIRST SHEV APPLICATION THE APPLICANT CLAIMS:
· The applicant is a Shia Muslim of Azeri ethnicity.
· He left his country because he feared he would face persecution form the government as a recovering drug addict.
· When the applicant was growing up, he became aware that his father smoked opium in front of the family.
· He began smoking cigarettes at the age of 14.
· By the time he was 15 he had begun drinking wine with friends.
· This increased and he became a drunkard.
· He would drink almost every day and would only stop if he could not afford to buy alcohol.
· He had noticed his supervisor where he worked smoking opium and asked him about that. His supervisor told him opium would reduce the effect of alcohol on him.
· The applicant then began to smoke opium irregularly. By the age of 17 when he began military service, he was a regular opium smoker.
· The applicant has been arrested twice for being drunk, when he was 21 years old and then a year later.
· On the first occasion he was detained at a police station for one week and was sentenced to 80 lashes. The morning of the lashings he smoked opium to alleviate the pain.
· The applicant’s drug addiction advanced to ecstasy, ‘crack’ heroin and ‘Ice.’
· On the day of his second arrest he had been drinking and had taken crack heroin.
· He had heard about a fight that was happening between some friends and when he arrived where the fight was, security was also there.
· He warned the security not to interfere and threatened them with physical harm. He was later arrested by the police and detained for one week.
· At the police station he was beaten because of his drunk behaviour.
· The applicant went to court and pleaded guilty and was convicted of being drunk in public.
· He was bailed subject to final orders, which could have included imprisonment.
· He received letters telling him to return to court but fearing he would be lashed again or sent to prison he did not obey.
· By this stage he had stopped taking drugs and drinking and his friends encouraged him not to attend. His family are still receiving letters demanding he attend the court.
· In Iran he had a [specified] symbol applied on his back. Since he arrived in Australia he has spent money getting other tattoos, and is now heavily tattooed.
· The applicant fears if he is returned to Iran he will be arrested for not attending the court to receive his punishment for the second arrest.
· He also fears he will be pursued by the police because of his tattoos.
In his statutory declaration dated 24 November 2020 attached to the Second SHEV application, the applicant claims:[10]
[10] Second SHEV application; Dept File No [Reference], Doc ID:7976165
· He will likely be sentenced to lashings or worse because it has been more than 10 years since his arrest, and as he would be returning as a failed asylum seeker the authorities would be easily able to confirm that he had fled Iran to evade punishment for a criminal offence of being drunk in public.
· The applicant states that although he was clean of drugs and alcohol for the three years prior to his departure and has been sober since, he worries that he may relapse if he returns to Iran.
· Drug abuse is much more rampant in Iran than Australia and drugs such as heroin and ecstasy are more easily available. Support in Iran is not as widely available in Iran as in Australia.
· He has been regularly attending NA meetings and he worries the emotional stress of being returned to Iran will cause him to relapse.
· In Iran people with a history of drug and alcohol; abuse are treated with suspicion and hostility, as drug and alcohol abuse are considered un-Islamic.
· Former addicts are ostracised and face discrimination in housing and employment.
· His criminal record which relate to drug and alcohol offences will make him readily identifiable as a former drug addict and he will struggle to get a job to support himself.
· In regards to his tattoos the Iranian government considered these to be a “Western phenomenon”, and they consider tattooed people un-Islamic. Tattooed people regularly get harassed by the police.
· The applicant fears that due to his profile as a heavily-tattooed, failed asylum seeker, who has spent around 8 years in a Western country, he will be imputed with an anti-Government political opinion, and therefore arrested, upon his return.
The delegate referred to an unsigned supplementary statement that was received via Refugee Legal, regarding the applicant’s claims on 24 November 2020, which provided the following information:
· The applicant was in a brief relationship with a woman he believes was an Australian citizen.
· He understands this woman might claim the applicant is the father of her son, although as far as he knows he is not registered on his birth certificate, and he has only had limited contact with the child.
· In September 2019 and intervention order was made against him that was due to expire on September 2020. He did not breach this intervention order and denies the allegations made in support of the order.
· Since his last statutory declaration dated 14/07/2020 he has had further tattoos made on his [body part].
The applicant’s evidence.
The applicant’s evidence to the Tribunal was that he was born on [Date] in Tehran City, Iran. The applicant’s evidence was that he is an ethnic Azari and Shia Muslim.[11] The applicant’s mother and father continue to live in Tehran, Iran. The applicant’s father worked as [an occupation 1] for the [Employer], and his mother was engaged in home duties. The applicant has one sister who continues to live in Tehran. She is married with two children.[12] The applicant is not married and has no children.
[11] Statutory declaration dated 22 June 2016; Dept File No [Reference], Doc ID: 7976160
[12] Ibid
The applicant attended [School] in [Location 1], Tehran and left secondary school in or about [Year].
The applicant’s evidence was that after school he started worked for approximately three years. However, the applicant’s evidence in relation to the work he performed after school was vague and lacking in any detail. The applicant did not provide any evidence of the type of work he performed or the name or location of his employer. The applicant’s evidence was that he commenced military service when he was around 20 years old. While in the military, the applicant worked in the service area including the [specified] services. The applicant’s evidence was that he did not receive any training with weapons due to him having injured his hand and fingers while he was intoxicated. Save that he was intoxicated, the applicant did not provide any specific evidence to the Tribunal as to how he had injured his hand.
The applicant’s evidence was that after leaving military service he bought a motorcycle and worked as [an occupation 2] for approximately two years. The applicant’s evidence was that he primarily [did job task 1]. However, his evidence was that from time to time he would [do job task 2]. In or about 2005 the applicant commenced work in [a workplace] in [Location 2], Tehran. He claims to have worked at the [workplace] for about 5 years. In or about 2010 the applicant commenced work as [an occupation 3]. The applicant worked as [an occupation 3] up until his departure for Iran in 2012.
The applicant’s evidence was that from an early age he was fascinated with smoking.[13] His father and grandmother were both smokers and his grandmother would allow him to light her cigarettes on the stove. Then applicant claims that his father would regularly smoke opium in front of the family. By the time the applicant was 14 years old he was buying packs of cigarettes and smoking regularly.[14]
[13] Ibid
[14] Ibid
The applicant claims[15] that his first experience with alcohol was when he was 14 years old. By the time he was 15 years old he was regularly drinking wine with friends.[16] Over time he began abusing alcohol. The applicant claims that he would drink alcohol every day. His evidence was that he would drink two glasses of spirits prior to work and drink with friends in the park after work.[17]
[15] Ibid
[16] Ibid
[17] Ibid
In his written claims to the Department,[18] the applicant claims that one day after work he attended a party where he drank so much, he vomited.[19] The applicant claims that at the party he noticed his supervisor smoking opium who advised him that it would reduce the effect of alcohol upon him. The applicant claimed that by the time he commenced military service he was smoking opium regularly.[20]
[18] Ibid
[19] Ibid
[20] Ibid
The applicant’s evidence to the Tribunal was that after his military service he started abusing alcohol and using opium and drugs. His evidence was that he became addicted to drugs and alcohol to the extent that he attended a drug and alcohol rehabilitation centre on several occasions for approximately a month, each time to help him with his addiction. However, his evidence was that on each occasion he started using drugs and alcohol soon after leaving the rehabilitation centre. The applicant’s evidence was that he had seen friends try to quit the drugs only to revert to using them again. The applicant’s evidence was that one friend was sent to jail and was still there in 2017. The applicant claimed that because of witnessing his friends’ struggle to quit drugs and alcohol, he became concerned for his own situation and feared that he would also be placed in jail. The applicant’s evidence was that since arriving in Australia he has been able to quit drugs and alcohol.
The applicant claims that he was arrested on two occasions because of his use of alcohol and drugs. The applicant’s evidence to the Tribunal was that he was first arrested by the police in or about 2005 (when the applicant was about [Age] years of age).[21] The applicant’s evidence was that he was detained for a week in the cell at the police station before being released on bail.[22] The applicant claims that when the case came to court, he was convicted and sentenced to receive 80 lashes.[23] The applicant did not provide any documentation in support of his claim that he had been arrested and convicted as claimed.
[21] Corresponding to1384 or 1385 in the Persian calendar
[22] Statutory declaration dated 22 June 2016; Dept File No [Reference], Doc ID: 7976160
[23] Ibid
The applicant’s evidence to the Tribunal was that he received the 80 lashes in the basement of the court in [Location 3], Tehran. His evidence was that before receiving the lashes he smoked opium to alleviate the pain. The applicant claimed that a friend in the court bribed the soldier conducting the lashing so that he would receive the lashes more gently. The applicant’s evidence was that after 50 lashes he asked for a rest, which he received. The applicant then requested and received regular rests in receiving the balance of the lashes. The applicant’s evidence was that he suffered severe bruising to the back of his legs as a result of the lashes he received. [24]
[24] Ibid
The applicant’s evidence was that despite having been arrested and convicted and sentenced to 80 lashes, he continued to abuse drugs and alcohol including ecstasy, 'crack' heroin and 'ice'.[25] The applicant’s evidence was that he was arrested for a second time because of drinking and taking crack and heroin.[26] The applicant claimed that he was at a restaurant in the [Venue], Tehran, when he heard friends fighting. The applicant went to the fight to help his friends and warned and threatened the security guards not to interfere with the fight. As a result, when the applicant returned to his meal in the restaurant, he claims he was arrested by the police and taken to the police station.
[25] Ibid
[26] Ibid
In his written claim the applicant states[27] that at the police station he was very drunk and was beaten by the police. The applicant claims he was held at the police station for a week before being bailed. The applicant claimed that his case went to court where he pleaded guilty and was convicted of being ‘drunk in society.’[28] The applicant claimed he was bailed subject to being sentenced.[29] The applicant’s evidence to the Tribunal was that his father provided his payslip of IRR5,000,000.00 (approximately AUD$180.53)[30] as surety for his bail. The applicant claimed he received letters telling him to return to the court. However, the applicant did not obey the demand to return to court. Rather, he claims he departed the country because he feared receiving further lashes or a term of imprisonment.[31] The applicant claims that his family continue to receive letters demanding that he attend court. The applicant did not provide any documentary evidence in relation to his conviction, or any summons requiring the applicant to appear in court that may have been sent to his family as claimed.
[27] Ibid
[28] Ibid
[29] Ibid
[30] Xe.com; (calculated IRR0.000036 = AUD$1 on 9 November 2024)
[31] Ibid
The applicant’s evidence was that he departed Iran from Imam Khomeini International Airport, Tehran legally on his own passport. The applicant flew to [Country 1] and then to [Country 2] before traveling to Australia by boat.
Finally, the applicant claims he cannot return to Iran because he has tattoos on his body. The applicant’s evidence was that he had two tattoos applied in Iran, with one on his back featuring a [specified] symbol. Since being in Australia, the applicant has had further tattoos applied to his body. The applicant is now heavily tattooed.
In Australia the applicant worked in [a workplace 2]. His evidence was that he was injured at work and is now receiving WorkCover benefits.
The applicant claims that if he is returned to Iran he will be seriously or significantly harmed because he will be arrested for not attending court to receive his punishment for his second conviction for alcohol and drug offences. In addition, the applicant fears that if he is returned to Iran he will be punished by the police for his tattoos. The applicant claims that he cannot be protected in Iran because the police control the entire country.[32]
Applicant’s documents
[32] Ibid
The documents provided by the applicant in support of his protection visa application included:
(a)Applicant’s birth certificate (untranslated).[33]
[33] Application birth certificate (untranslated) Dept File No [Reference] Doc ID: 7976163
(b)Iranian Military Completion Card.[34]
(c)Iranian passport (expired).[35]
(d)Australian Government Evidence of Immigration Status Card.[36]
(e)Statutory declaration dated 22 June 2016.[37]
(f)Statutory declaration dated 24 November 2020.[38]
(g)Applicant’s unsworn statement dated 14 July 2020.[39]
(h)Applicant’s unsworn statement dated 24 November 2020.[40]
(i)Applicant’s statement dated 13 September 2024.[41]
(j)Applicant’s submissions dated 13 September 2024.[42]
(k)Applicant’s submissions dated 1 October 2024.[43]
[34] Iranian Military Completion Card Dept File No [Reference] Doc ID: 7976166
[35] Iranian passport Dept File No [Reference] Doc ID: 7976167
[36] Australian Government Evidence of Immigration Status Card Dept File No [Reference] Doc ID: 7976169
[37] Statutory declaration dated 22 June 2016; Dept File No [Reference], Doc ID: 7976160
[38] Statutory declaration dated 24 November 2020; Dept File No [Reference], Doc ID:7976165
[39] Applicant’s unsworn statement dated 14 July 2020 Dept File No [Reference], Doc ID: 7976171
[40] Applicant’s unsworn statement dated 24 November 2020 Dept File No [Reference], Doc ID: 7976187
[41] Applicant’s statement dated 13 September 2024; ART File No 2017662 Doc ID:13574394
[42] Applicant’s submissions dated 13 September 2024; ART File No 2017662 Doc ID:13574394
[43] Applicant’s submissions dated 1 October 2024; ART File No 2017662 Doc ID: 13668368
COUNTRY INFORMATION
In accordance with Ministerial Direction No. 84 of 24 June 2019 made under s 499 of the Act, the Tribunal also had regard to the country information assessments prepared by DFAT. The Tribunal has referred to the DFAT Country Information Report on Iran dated 24 July 2023 (the DFAT Report),[44] in particular, those parts of the DFAT Report marked as Attachment A to this decision.
[44] DFAT Country Information Report on Iran dated 24 July 2023 (DFAT Report)
CONSIDERATION OF CLAIMS AND FINDINGS
The issue in this case is whether the applicant is a person to whom Australia owes protection obligations pursuant to s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility
When assessing claims, the Tribunal must make findings of fact in relation to those 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 may answer 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, the fact 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 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. Nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant.[45]
[45] Section 5AAA of the Act; 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.[46] Care must be taken not to exclude from consideration the totality of some evidence, where a portion of it could reasonably have been accepted.
[46] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at 482
If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[47] 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.
Accepted facts
[47] The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196]
Based on the applicant’s evidence, the Tribunal accepts and finds that:
(a)the applicant was born on [Date] in Tehran City, Iran.
(b)the applicant is ethnic Azari.
(c)the applicant is Shia Muslim.
(d)the applicant’s mother and father continue to live in Tehran, Iran.
(e)the applicant has one sister who continues to live in Tehran.
(f)the applicant is not married and has no children.
(g)the applicant attended [School], Tehran and left secondary school in or about [Year].
(h)the applicant commenced military service when he was around 20 years old.
(i)the applicant worked as [an occupation 2], in [a workplace] and as [an occupation 3] in Iran prior to his departure for Australia.
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. The approach applicable under the Act is whether the applicant is outside his or her 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 or she is unable or unwilling, due to the present and well-founded fear, to avail himself or herself of the protection of that country.[48]
[48] 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
Findings in relation to past events can provide a rational basis from which to assess whether an applicant’s fear of being persecuted for a reason pursuant to s 5J(1)(a) of the Act is well-founded.[49] The extent to which past events are a guide to the future will depend on the probability that they have occurred, the regularity with which they occurred and the conditions under which they are claimed to have occurred.[50] In addition, the likelihood of such events occurring in the future will also depend on the introduction of any relevant new or other events.[51]
Applicant’s relevant grounds
[49] MIEA v Guo (1997) 191 CLR 559 at 574
[50] MIEA v Guo (1997) 191 CLR 559 at 574–5
[51] Ibid
The applicant submits that he will suffer serious harm if he is returned to Iran, within the scope of s 5J(1)(a) of the Act, as a a member of a particular social group (PSG) because of any or all of the following:[52]
·His drug addiction.
·His alcohol addiction.
·As a person who has been arrested for being drunk in public twice.
·As a person with tattoos.
·His status as a ‘failed’ asylum seeker returning from the West.
[52] Applicant’s submissions dated 13 September 2024; ART File No 2017662 Doc ID:13574394
When a person claims to fear being persecuted if they are returned to their country because of their membership of a PSG, the existence of such a group and the person’s membership are to be determined in accordance with s 5L. Section 5L provides:
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.
To be considered a member of a PSG it is necessary for the applicant to share (or be perceived as sharing) an innate or immutable characteristic with each member of the group that is fundamental to the member’s identity or conscience or distinguishes the group from society.[53] In MIMA v Khawar[54], the High Court, when considering the Refugees’ Convention, found that it would be open for the Tribunal to declare that ‘women in Pakistan’ meet the description of a PSG. On the issue of such a large group, His Honour Chief Justice Gleeson stated that:[55]
The size of the group does not necessarily stand in the way ... There are instances where the victims of persecution in a country have been a majority. It is power, not number, that creates the conditions in which persecution may occur.
[53] Section 5L of the Act
[54] MIMA v Khawar (2002) 210 CLR 1
[55] MIMA v Khawar (2002) 210 CLR 1 at [33]
In this case, the applicant claims that being a drug and alcohol addict, a person with tattoos, a person who has been arrested and being a failed asylum seeker either individually or together constitutes a characteristic that can be described as innate, immutable or fundamental to the applicant’s identity or conscience pursuant to s 5L(c) of the Act. Having considered the applicant’s claims and s 5L of the Act, the Tribunal accepts and finds that the applicant is a member of a PSG.
Whether the applicant has a 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 a particular social group or political opinion’ and 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[56] the Court held that consideration of ‘well-founded fear’ for the purposes of the Convention 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.[57]
[56] (1989) 169 CLR 379 at 396
[57] (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 stated:[58]
“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.
[58] Chan v MIEA (1989) 169 CLR 379 per Dawson J at 397
In MIEA v Guo, the Court stated that:[59]
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.
[59] 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 there is a real chance he will be seriously harmed if he is returned to Iran as a member of a PSG for the reasons detailed in paragraph 45 of these reasons. For the reasons detailed below the Tribunal has not accepted that the applicant has a well-founded fear of persecution if he is returned to Iran as claimed on either an objective or a subjective basis. Applicant’s tattoos
The applicant claims that there is a real chance he will be seriously harmed by the authorities upon his return to Iran because he has breached Islamic law by having tattoos on his body. The applicant’s evidence was that he received two tattoos when he was in Iran. There was no evidence to suggest that the applicant had experienced harm in Iran as a result of receiving his tattoos. Since his arrival in Australia, he has received a number of tattoos, including on his [body part]. The applicant’s evidence was that about [percentage] of his body is covered in tattoos. Based on the applicant’s evidence, the Tribunal accepts that the applicant has a substantial number of tattoos on his body.
Nevertheless, the country information reports[60] that having tattoos, ripped jeans, plucked eyebrows, jewellery (e.g., ear piercings), and Western-styled hair is common among young men in Tehran and other large cities. DFAT reports[61] that it is not aware of men who have Western-style appearance being targeted by the authorities. The Tribunal notes that the applicant received two tattoos when he was in Iran. Presumably, at the time of receiving the tattoos, the applicant was aware that he may be prosecuted by the authorities for having the tattoos, but proceeded to receive the tattoos because he did not fear being seriously or significantly harmed. As such, based on the applicant’s own evidence and the available country information, the Tribunal finds that there is no real chance he will be seriously harmed if he is returned to Iran by reason of him having tattoos as claimed.
Applicant’s arrest and convictions
[60] DFAT Report at p.30
[61] Ibid
The applicant claims that there is a real chance he will be seriously harmed if he is returned to Iran because he is addicted to drugs and alcohol. The applicant’s evidence was that he began smoking opium and drinking alcohol from an early age. The applicant claims that in Iran he regularly abused both alcohol and drugs.
The country information[62] reports that substance abuse is a major health problem in Iran. Afghanistan produces around 90 per cent of the world's opium, with Iran being a major transit point for Afghan-produced opiates being exported to Europe.[63] As a result, it’s reported[64] that Iran has the highest rate of abuse of opiates in the world and that the use of heroin, crystal methamphetamine and ecstasy have increased greatly in recent years. The DFAT report[65] notes that a 2020 study of a cross-section of 36,000 people across Iran published by the Iranian Journal of Public Health found that 4.6 per cent of participants tested positive for opiates, 6.1 per cent used ‘sedatives’ (described as ‘Diazepam, Lorazepam etc’), 1.9 per cent used alcohol (illegal in Iran) and under 1 per cent used cannabis or stimulants. Drug use is heavily stigmatised, and people may feel ashamed of their drug use and not receive treatment as a result.[66]
[62] DFAT Report at p.11
[63] BBC, ‘IRAN'S DRUG PROBLEM: ADDICTS 'MORE THAN DOUBLE' IN SIX YEARS’ 26 JUNE 2017; EAST-40397727
[64] PMC: 2015 Jun 24. Published in final edited form as: Curr Opin Psychiatry. 2010 May; 23(3):221–226. doi: 10.1097/YCO.0b013e328338630d http:pmc.ncbi.nlm.nih.gov/articles/PMC4479403/#:~:text=Iran%20has%20the%20highest%20rate,estimating%20the%20drug%20use%20situation
[65] DFAT Report at p.11
[66] Ibid
Even though alcohol is illegal and is banned in Iran,[67] it is available on the black market. It may be manufactured by bootleggers and as such can be dangerous to consume.[68] Nevertheless, it’s reported[69] that approximately 48% of adults in Iran drink alcohol, mostly from homemade alcoholic beverages. It’s reported[70] that alcohol use can be punished by 80 lashes and, upon multiple convictions, death. Amnesty International has reported that a man from Mashhad was executed for repeated alcohol convictions in July 2020. Nevertheless, it’s reported[71] that prosecutions for alcohol consumption are not common and are often resolved with the payment of a fine (or a bribe).
[67] Washington Post, ‘Iran is opening 150 alcoholism treatment centers, even though alcohol is banned’ Adam Taylor, 9 June 2015; DFAT Report at p.12
[69] Iran Open data Centre ‘Alcohol Consumption in Iran: A More Common Occurrence the State-Run Media Claims’, 25 September 2021, DFAT Report at p.12; Washington Post, ‘Iran is opening 150 alcoholism treatment centers, even though alcohol is banned’, Adam Taylor, 9 June 2015; Ibid
The country information reports that drug addiction in Iran is generally treated as a medical problem rather than a criminal issue. It’s reported[72] that treatment or harm reduction services (needle exchange and opioid substitution therapy) and residential addiction treatment facilities are available free of charge in all provinces and most large cities for both men and women. It is reported[73] that in 2018, there were 196 government-run outpatient clinics and 7,029 private outpatient clinics that administered methadone maintenance treatment (MMT) with around 60,000 prisoners and 720,000 community residents having received MMT.[74] In addition, facilities for homeless or marginalised drug users and antiretroviral therapy for people living with HIV are available free of charge.[75]
[72] DFAT Report at p.12
[73] AMERICAN JOURNAL OF PUBLIC HEALTH, ‘HOW SUBSTANCE USE TREATMENT SERVICES IN IRAN SURVIVED DESPITE A DUAL CATASTROPHIC SITUATION’ ALI FARHOUDIAN MD, AND SEYED RAMIN RADFAR MD, MPH DATED MARCH 29, 2022; IBID
[75] Ibid
The applicant’s evidence was that he began drinking alcohol at about 14 years of age and by the time he was 15 years old he was drinking wine regularly with friends.[76] The applicant claims that over time he began abusing alcohol to the extent that he was drinking two glasses of spirits prior to work and then drinking with friends after work.[77] Based on the applicant’s own evidence and the available country information, the Tribunal accepts that he abused alcohol and drugs in Iran as claimed.
[76] Ibid
[77] Ibid
The applicant’s evidence was when he was about 21 years old, he was arrested and charged with being drunk in public. The applicant notes that on his own evidence he had been abusing alcohol for approximately five years without harm prior to being arrested. In addition, the Tribunal notes that the applicant’s evidence about the circumstances in which he was arrested and charged was vague and lacking in detail. The applicant did not provide any specific evidence in relation to his arrest, including where or when he was arrested. The applicant did not provide any evidence of what he was doing at the time of his arrest, how he was treated by the police or how he was transported to the police station. Nevertheless, the applicant claims that when he was arrested, he was held in police custody for a week before being released on bail. The applicant did not provide any evidence of him being held by the police, including the name and location of the police station or the conditions in which he was held (e.g., the number of prisoners to a cell). In addition, the applicant was not able to provide the Tribunal with any documentation relevant to his arrest or bail.
Nevertheless, the applicant’s evidence was that he was convicted and sentenced to receive 80 lashes.[78] The applicant’s evidence to the Tribunal was that he received the 80 lashes in the basement of the court in [Location 3], Tehran. The applicant claims that before receiving the lashes he smoked opium to alleviate the pain. In addition, he claims that a friend who worked in the court bribed the soldier conducting the lashing to ensure that they would be delivered more gently. The applicant did not provide the Tribunal with the name of his friend. The applicant’s evidence was that after 50 lashes the applicant asked for a rest, which he was given, and for the balance of the lashes he sought and received regular rests. The applicant’s evidence was that he suffered severe bruising to the back of his legs because of the lashes he received. The applicant did not provide any documentation, such as a doctor’s report or photos of his injuries, in support of his evidence that he had been severely bruised as claimed.
[78] Ibid
Based on the lack of evidence provided by the applicant about the circumstances of his arrest, the Tribunal does not accept the applicant’s evidence that he was arrested and charged for alcohol consumption as claimed. In addition, based on the available country information that reports that prosecutions for alcohol consumption are not common and are often resolved with the payment of a fine,[79] the lack of documentation in support of the applicant’s claim that he was arrested and convicted as claimed and in circumstances where it was his first time being arrested and convicted for alcohol consumption, the Tribunal does not accept the applicant’s evidence that he was convicted and sentenced to 80 lashes as claimed.
[79] DFAT Report at p.12
Therefore, having not accepted the applicant’s evidence about being convicted and sentenced to 80 lashes as claimed, the Tribunal finds that there is no real chance he will be seriously harmed if he is returned to Iran because of having received 80 lashes as claimed.
The applicant’s evidence was that despite having received the lashes, he continued to abuse alcohol and drugs. In fact, his evidence was that he has started using crack, heroin, and ecstasy.[80] However, the applicant’s submissions[81] to the Tribunal, while confirming that he had suffered drug and alcohol abuse, claimed that he had participated in Narcotics Anonymous (NA) after his first arrest and that he had remained sober for two years prior to leaving Iran for Australia.
[80] Applicant’s statement dated 12 September 2014
[81] Applicant’s submission dated 1 October 2024; ART File No 2017662 Doc ID: 13668368
Nevertheless, the applicant’s evidence was that he was arrested for being drunk in a public place for a second time. The applicant claims that he was arrested at a restaurant in the [Venue] for being ‘drunk in society’[82] after having warned security guards not to interfere in a fight between two of his friends. The applicant’s evidence was that he was held at the police station for a week and that he pleaded guilty and was convicted for being drunk in a public place. The applicant’s evidence of him being arrested and held in the police station was vague and lacking in detail. In addition, his evidence in relation to him pleading guilty and being released on bail was vague and illogical. In any event, his evidence was that he was released on bail to be sentenced at a later date.[83] The applicant claims his father provided the security for the bail by providing his payslip of IRR5,000,000.00 (approximately AUD$180.53).[84] The applicant’s evidence was that despite receiving a letter from the court instructing him to return to be sentenced, he departed the country out of fear of being sentenced to lashes or a term of imprisonment. The applicant’s evidence was that his family continue to receive letters from the court instructing him to return to be sentenced.
[82] Ibid
[83] Ibid
[84] Xe.com; (calculated IRR0.000036 = AUD$1 on 9 November 2024)
Despite the applicant’s evidence to the Tribunal that he was in regular contact with his family in Iran, he did not provide any documentation in relation to him being arrested and convicted as claimed. In addition, the applicant did not provide the Tribunal with any evidence of his father having provided the surety for his bail as claimed. While the Tribunal accepts that it may have been more difficult for the applicant to have obtained documents from the court, in circumstances where his father provided bail for him and his family continue to receive correspondence from the court, the Tribunal would have expected the applicant to have been able to provide copies of such documents to the Tribunal. Given the availability of electronic communication and the time the applicant has been in the country, the Tribunal would have expected the applicant to have provided documentary evidence of him being arrested and charged as claimed. The applicant submitted that he was hesitant to obtain copies of the court documents from the authorities out of fear of alerting the authorities of the case against him. However, the Tribunal notes that given he is seeking a protection visa, such action would only have helped his claim for protection.
Finally, the applicant’s evidence was that he left Iran from Imam Khomeini International Airport, Tehran legally, with his own passport. The country information reports that the security procedures at Imam Khomeini International Airport in Tehran are robust.[85] It’s reported[86] that the authorities may impose a travel ban on a person because of security concerns, financial debts, outstanding taxes and outstanding sentences awaiting enforcement. It’s reported[87] that citizens with ongoing charges or outstanding court matters, including those released on bail or parole, are subjected to travel bans.[88] The applicant was not able to explain to the Tribunal how he had been able to leave the country in circumstances where he had been released on bail pending being sentenced for his conviction of being drunk in a public place.
[85] DFAT Report at p.41
[86] DFAT Report at p.40
[87] Ibid
[88] Ibid
Therefore, given that the applicant’s evidence was vague and lacking in detail and at time contrary to his submissions to the Tribunal, the lack of documentary evidence in relation to his arrest and conviction as claimed and the fact that he was able to leave the country legally without any travel ban despite his evidence that he had been released on bail pending being sentenced, the Tribunal does not accept that he was arrested and convicted on the second occasion as claimed. As such, the Tribunal finds that there is no real chance the applicant will be seriously harmed if he is returned to Iran because he was arrested and convicted of being drunk in a public place on the second occasion claimed.
Applicant’s drug and alcohol addiction
The applicant claims that he experienced drug and alcohol addiction (including opium. methamphetamines and heroin) in Iran. The applicant claims that if he is returned to Iran there is a real chance, he will suffer serious harm because he will be relapsing into his prior drug and alcohol addiction.
The country information reports that substance abuse in Iran is a major health problem with approximately 4 million people being addicted to drugs.[89] Iran shares a border with Afghanistan, the world’s leading producer of opium poppies and a major producer of methamphetamine and heroin.[90] Iran is a major transit route for the supply of drugs from Afghanistan. It’s reported[91] that countering narcotic use and trafficking is a government priority.
[89] DFAT Report at p.12
[90] Ibid
[91] Ibid
As referred to above, the country information reports[92] that drug addiction in Iran is generally treated as a medical problem[93] rather than a criminal issue. The Iranian Government has identified "a community-based approach to drug control" as a top Government priority.[94] It’s reported[95] that Iran has established many successful programmes related to drug prevention, treatment, and care. It’s reported[96] that treatment or harm reduction services (needle exchange and opioid substitution therapy) and residential addiction treatment facilities are available free of charge in all provinces and most large cities for both men and women. Hundreds of thousands of people have been reported to have benefited from outreach programmes and Drop-In Centres as well as other innovative initiatives. In addition, it’s reported[97] that Non-Government Organisations (NGOs) have been actively involved in programme implementation and direct service delivery. The United Nations Office on Drugs and Crime reports[98] that its drug prevention programmes in Iran are operated in close cooperation with the Drug Control Headquarters (DCHQ) of Iran and address all forms of drug abuse (e.g. amphetamine-type stimulants, cannabis and opiates). The programmes provide services to different walks of life: families, in educational settings, to high-risk groups, prisons, and in the workplace, with special emphasis on "at risk" youth exposed to drugs.[99]
[92] DFAT Report at p.12
[93] American Journal of Public Health, ‘How substance use treatment services in Iran survived despite a dual catastrophic situation’, ALI FARHOUDIAN MD, and SEYED RAMIN RADFAR MD, MPH, dated March 29, 2022; United Nations Office on Drugs and Crime, 9 September 2014; nodc.org/islamicrepublicofiran/en/unodc-supports-monitoring-and-evaluation-leading-to-more-effective-community-based-drug-prevention-in-iran.html#:~:text=The%20Islamic%20Republic%20of%20Iran%20has%20established%20many%20successful%20programmes,well%20as%20other%20innovative%20initiatives
[95] Ibid
[96] Ibid
[97] Ibid
[98] Ibid
[99] Ibid
Based on the applicant’s evidence, the Tribunal accepts that he suffered from drug and alcohol abuse in Iran. The Tribunal notes that the applicant attended Narcotics Anonymous in Iran and was drug free and sober for the two years prior to his departure from Iran to Australia. The applicant claims that in Australia for the past 11 years he has remained sober.
Based on the available country information, the Tribunal accepts that drug and alcohol abuse is generally treated as a medical rather than a criminal issue. The country information indicates that the Iranian government has positively recognised the importance of dealing with drug and alcohol abuse within society and has acted positively towards those suffering from such substance abuse by the establishment and implementation of treatment and harm reduction services. As a result, the Tribunal does not accept the applicant’s evidence that as a person suffering from drug and alcohol addiction, he would not be able to access the necessary care or treatment. The country information indicates that care and treatment is available for victims of substance abuse for those who require it. Based on the country information, the Tribunal is not satisfied that the government of Iran would deny the applicant, as an Iranian citizen, access to available substance abuse care and treatment or refuse him access to such services to the extent that it would amount to a deliberate act or omission on the part of the Iranian authorities. While the applicant claimed that he would relapse into substance abuse if he was returned to Iran, the Tribunal notes that he claims to have been sober for two years prior to his departure and has continued to be sober for the past 11 years while in Australia. There was no suggestion by the applicant that he would be denied access to treatment and care services to the same level as other Iranian citizens or that he would be specifically denied such services. As a result, the Tribunal finds that the Iranian state has not demonstrated systematic and discriminatory conduct towards the applicant or people who suffer from drug and alcohol abuse. As a result, the Tribunal finds that the applicant’s fear of persecution by reason of him having suffered from drug and alcohol abuse as claimed does not satisfy s 5J(4) of the Act.
The Tribunal accepts that it is not possible to monitor whether the applicant would access drug and alcohol treatment services in Iran and that there is a risk that he will avoid accessing such services. In the event that the applicant fails or refuses to access drug and alcohol support services in Iran, the Tribunal does not accept that the applicant possesses a well-founded fear of persecution because of addiction to drug and alcohol. That is, any failure of the applicant to access such services in Iran would not involve systematic and discriminatory conduct[100] and as such would not amount to a well-founded fear of persecution in the event he is returned to Iran.
[100] Section 5J(4) of the Act
Therefore, based on the country information, the Tribunal finds that the applicant will be able to access drug and alcohol treatment and care services in Iran for his addiction to drugs and alcohol as claimed. As a citizen of Iran, he would not be denied such care on a systemic or discriminatory basis.
Applicant as a failed asylum seeker
The applicant claims that if he is returned to Iran there is a real chance, he will suffer serious harm for being a failed asylum seeker and returning from a Western country after a prolonged period in Australia. He claims that he will be interviewed upon his arrival, at which time he will be detained and questioned.
The country information states that the authorities in Iran pay little attention to failed asylum seekers on their return to Iran.[101] Iranians have left the country in large numbers since the 1979 revolution and the authorities have accepted that many will seek to live and work overseas.[102] It is reported that those returning on laissez-passer are questioned by the Immigration Police upon their arrival and asked about the circumstances of their departure and why they are travelling on a laissez-passer. The DFAT Report states[103] that while it is possible that a known dissident may be prosecuted, it is unlikely that an individual simply claiming asylum overseas will be prosecuted as an asylum seeker.
[101] DFAT Report at p.40
[102] Ibid
[103] Ibid
In this case, the applicant claims that he will be questioned about his outstanding conviction upon his arrival in Iran. As a result, he claims that he will be arrested and detained upon his return. However, the Tribunal has not accepted the applicant was arrested and convicted as claimed. As such, it does not accept that the applicant will be detained or arrested upon his arrival in Iran due to having been served the summonses as claimed.
Therefore, based on the available country information the Tribunal finds that there is no real chance the applicant will be seriously harmed for being a failed asylum seeker. In addition, having found that the applicant was not arrested or convicted on the two occasions as claimed, the Tribunal finds that there is no real chance he will be seriously harmed upon his return to Iran due to his prior convictions or because he departed the country prior to being sentenced in relation to his second arrest as claimed.
Having considered the applicant’s claims, singularly and cumulatively, the Tribunal finds that there is not a real chance that the applicant will suffer serious harm. As a result, the Tribunal finds that the applicant does not face a real chance of serious harm, now or into the reasonably foreseeable future, for any reason.
The Tribunal is therefore satisfied that the applicant does not satisfy the criterion set out in s 36(2)(a) of the Act for a protection visa and as such he is not a person to whom Australia has protection obligations. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution.
Applicant’s complementary protection claim
The applicant claims that, without conceding in any way his claims under s 36(2)(a) of the Act, the same factual matrix may invoke Australia’s protection obligations under the complementary protection criterion pursuant to s 36(2)(aa) of the Act. Accordingly, the Tribunal has also considered the application of s 36(2)(aa) to the applicant’s circumstances. That is, the Tribunal has considered if the applicant faces a real risk of significant harm on his return to Iran based on his claims detailed above. The Tribunal notes that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[104]
[104] MIAC v SZQRB [2013] FCAFC 33
The Tribunal has made earlier findings that the applicant does not face a real chance of serious harm arising from his claims. As the ‘real risk’ test is the same as the ‘real chance’ standard, for the reasons stated above in relation to each of the applicant’s claims, the Tribunal does not accept there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of the applicant being returned to Iran because he was twice arrested and convicted of having consumed alcohol in a public place as claimed or because he departed the country prior to being convicted of the second offence as claimed. In addition, for the reasons stated above the Tribunal does accept there is a real risk the applicant will suffer significant harm because he has tattoos on his body as claimed.
Applicant as a failed asylum seeker
The Tribunal has considered that if the applicant is removed from Australia to Iran as a failed asylum seeker there is a possibility that, because of his prolonged stay in Australia, he may be imputed with an adverse political opinion or imputed with a political opinion of being opposed to the Iranian regime and having alleged persecution by the regime abroad.
While the country information reports[105] that it is possible that a known dissident may be prosecuted, it is unlikely that an individual simply claiming asylum overseas will be prosecuted as an asylum seeker. Accordingly, as referred to above, the Tribunal has assessed the applicant’s case on the basis that he is likely to be stopped, interviewed, and have his case ‘examined in detail’.
[105] DFAT Report at p.40
For the reasons expressed above, the Tribunal has not accepted the applicant’s evidence that he will be seriously harmed upon his return to Iran because he was arrested and convicted of consuming alcohol as claimed or because he departed the country prior to being sentenced in relation to his second conviction. The Tribunal has not accepted the applicant’s evidence in relation to him being arrested and convicted on the two occasions as claimed. Therefore, if the applicant is stopped and interviewed, the Tribunal finds that there is no real risk he will be significantly harmed because of him being arrested and convicted of the offences as claim or because he departed the country prior to being sentenced as claimed. In addition, having not accepted the applicant’s evidence that he was arrested and convicted as claimed, the Tribunal finds that there is no real chance he will be seriously harmed upon his return to Iran because he was charged and convicted of having consumed alcohol as claimed. Therefore, the Tribunal does not accept that there is a real risk that the applicant will be significantly harmed on return to Iran, either now or in the foreseeable future.
Applicant’s health claim
The applicant claims that if he is returned to Iran, he will be significantly harmed because he suffers from drug and alcohol addiction. The Tribunal has accepted that he did suffer from such a condition. However, based on the available country information in relation to the treatment and care for substance abuse in Iran, as referred to above, and the fact that the applicant was sober in Iran for two years and has been sober in Australia for the past 11 years, the Tribunal finds that the applicant will be able to access the necessary care and support in relation to drug and alcohol abuse when appropriate. Based on the available country information, the Tribunal finds that he will be able to receive adequate treatment for his condition. Accordingly, for the reason expressed above, the Tribunal finds that there is no real risk that he will suffer significant harm by reason of his drug and alcohol addiction as claimed if he returns to Iran.
Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk he will suffer significant harm as required by s 36(2)(aa).
CONCLUSIONS
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 the Act for the reasons mentioned in Article 1 of the Convention. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s 36(2)(aa) and is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) based on 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. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 16 September 2024
Representative for the Applicant: Mr Hugo Sidney Neilson Balnaves
ATTACHMENT A
Drugs and Alcohol[106]
[106] DFAT Report at p.11
2.24Substance abuse is a major health problem in Iran. According to UN sources, about 4 million people in Iran (likely both Iranians and Afghans) have a serious addiction to drugs. A 2020 study of a cross-section of 36,000 people across Iran published by the Iranian Journal of Public Health found that 4.6 per cent of participants tested positive for opiates, 6.1 per cent used ‘sedatives’ (described as ‘Diazepam, Lorazepam etc’), 1.9 per cent used alcohol (illegal in Iran) and under 1 per cent used cannabis or stimulants. Sources report methamphetamine is easily obtained.
2.25Countering narcotic use and trafficking is a government priority. The country shares a border with Afghanistan, the world’s leading producer of opium poppies, and Iran is a major transit route for heroin. According to UN sources, Afghanistan is now also a major producer of methamphetamine which is the source of Iran’s supplies. Drug trafficking carries the death penalty (see Death Penalty). Drug addiction may be treated as a medical rather than criminal problem. Treatment or harm reduction services (needle exchange and opioid substitution therapy) and residential addiction treatment facilities are available free of charge in all provinces and most large cities for both men and women. There are reports that authorities have pressured several harm reduction centres to close, in the belief that they inadvertently drive further drug abuse. Drug use is heavily stigmatised, and people may feel ashamed of their drug use and not receive treatment as a result. Women may experience more stigma than men and have access to far fewer support services.
2.26Alcohol is illegal in Iran. Exceptions exist for religious minorities, who may use alcohol sacramentally. Alcohol is available on the black market but may be manufactured by bootleggers and may be dangerous; DFAT is aware of reports of alcohol and methanol poisoning related to black market alcohol. Police may make enquiries of those taken to hospital with alcohol-related illnesses. Alcohol use can be punished by 80 lashes and, upon multiple convictions, death. Amnesty International reported that a man from Mashhad was executed for repeated alcohol convictions in July 2020. DFAT understands that prosecutions for alcohol consumption are not common and are often resolved with the payment of a fine (or a bribe).
……………………………………..
TORTURE[107]
[107] DFAT Report at p.35
2.176 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.
2.177 Despite 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. The US Department of State 2021 Human Rights Report notes torture is especially practised in pre-trial detention and can include threats of execution or rape, forced vaginal and anal examinations, sleep deprivation, suspension, forced ingestion of chemical substances, deliberate lack of medical care, electric shock (including to the genitals), burnings, use of pressure positions and severe and repeated beatings.
2.178Political prisoners are at particular risk of torture, especially those held in pre-trial detention, as torture may be used to extract confessions. Prisons, including unofficial secret prisons, may also be the site of torture, according to human rights groups. People who violate dress codes or drink alcohol face a low risk of torture.
2.179DFAT assesses that the authorities use violence or other pressure tactics to extract confessions from defendants, including those charged with security-related offences.
CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT[108]
[108] DFAT Report at p.35
2.180Article 39 of the constitution prohibits all affronts to the dignity and repute of detained persons. The law allows for Sharia law punishments that include amputation, flogging, blinding and stoning and the Government does not consider these to breach constitutional provisions.
2.181More than 100 offences attract the punishment of flogging, including dress code violations, same-sex sexual activity and alcohol consumption. Flogging has been used in political cases where offences are often vaguely worded, such as ‘propaganda’, ‘defamation’ or ‘rebellion’. Amputations, of the fingers or hands for example, may be applied for property offences such as theft.
…………………………………………..
TREATMENT OF RETURNEES[109]
[109] DFAT Report at p.41
2.202The Iranian Government has a longstanding policy of not accepting involuntary returns. Voluntary returns are possible and are sometimes assisted by returning governments or the International Organization for Migration (IOM). In cases where an Iranian diplomatic mission has issued temporary travel documents, authorities will be forewarned of the person’s imminent return. DFAT is not aware of any legislative or social barriers to voluntary returnees finding work or shelter in Iran, nor any specific barriers to prevent voluntary returnees from returning to their home region.
2.203In 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. (See also Media.) 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.
2.204DFAT 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.
Exit and Entry Procedures
2.205Millions of Iranians travel into and out of Iran each year without difficulty, including the large Iranian diaspora residing in North America, Europe, the United Arab Emirates and Australia. Iranian nationals must pay an exit tax each time they depart Iran, which increases with each outbound journey. Payments of exit taxes are made at the airport as one is departing Iran. An exit permit for foreign travel is required for Iranians employed in fields considered sensitive (e.g., employees of the Iranian Atomic Energy Organisation); those studying abroad (whether on government scholarships or privately-funded); and all males aged 18-30 who are yet to complete military service (principally those who have deferred military service to undertake tertiary studies). To obtain an exit permit, citizens must provide proof of their status (e.g., a letter from their university confirming their enrolment) and pay a bond (the bond is retrievable on return). Iranian nationals resident in Iran who require an exit permit must obtain one each time they leave the country (multiple exit permits are not available for Iranian nationals resident in Iran). Exit permits are issued electronically.
2.206In some cases, citizens require special permission to obtain a passport (see also Passports). This includes minors under the age of 18, who require the permission of their father/custodian; males who have not completed their military service; and married women, who require their husband’s permission. Beyond their passport and, where it is required, an exit permit, Iranians exiting Iran are not required to present any other documents.
2.207Government authorities can impose travel bans on Iranian citizens. Reasons for a travel ban can include security concerns, financial debts, outstanding taxes and outstanding sentences awaiting enforcement. Citizens with ongoing charges or outstanding court matters and those released on bail or parole are subjected to travel bans. Civil and political activists may also be subjected to travel bans. Husbands of married women and fathers of unmarried women and underage children can request travel bans against their dependents. Intelligence and law enforcement services have the power to impose travel bans without judicial oversight. (See Judiciary) Iranians under travel bans are often unaware of their status until they reach passport control at the airport and are turned back. The presence of security organisations in all Iranian airports, particularly those with border checkpoints, enables authorities to determine whether any Iranian citizen can leave the country by air.
2.208It is not possible to assess or profile travellers who will be successful in a border crossing attempt; chances of success depend on individual circumstances of the traveller and individual sanctions against them by the government, which are not always clear. Sources report the government knows of those who have departed illegally, such as via an unauthorised border crossing, and that such people will face consequences such as the inability to get a passport in the future. Passengers undertaking domestic air travel are usually only required to present their ticket. Passengers may be asked for identification, however DFAT understands this practice is not consistent. Overland border crossing, including via rugged mountain areas, is more achievable for some Iranians than crossing at official crossing points. Such actions can be very dangerous because of the risk of violent crime.
2.209Security procedures at Imam Khomeini International Airport in Tehran are robust. They include computerised cross-checking and multiple layers of physical security and document checking. Immigration officials are considered highly competent. A source told DFAT that it was ‘next to impossible’ to bypass security procedures at Imam Khomeini International Airport. DFAT assesses that the likelihood of an individual exiting Imam Khomeini International Airport with a fraudulent passport is extremely low. DFAT assesses that it is easier to depart Iran on a fraudulent passport at land border crossings, where immigration authorities deal with a greater volume of people and their capacity can be stretched.
ATTACHMENT B - 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
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
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.
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.
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.
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.
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.
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
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.
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.
…
Protection visas – criteria provided for by this Act
…
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.
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