2017693 (Refugee)

[2023] AATA 2589

2017693 (Refugee) [2023] AATA 2589 (9 June 2023)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Ehsan Azadi (MARN: 1279450)

CASE NUMBER:  2017693

COUNTRY OF REFERENCE:                   Iran

MEMBER:David James

DATE OF DECISION:  9 June 2023

DATE CORRIGENDUM

SIGNED:18 July 2023

PLACE OF DECISION:  Brisbane

AMENDMENT:  The following corrections are made to the decision:

1.In Paragraph 13, “PNG” should be “Iran”

2.In Paragraph 14:

(a)  Dot-Point 1, “bornin” should be “born in”

(b)  Dot-Point 4, “busses” should be “buses” 

3.Paragraph 78, move “s 36(2)(a) of the Migration Act” back onto the same line after “satisfies”.

David James
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Ehsan Azadi (MARN: 1279450)

CASE NUMBER:  2017693

COUNTRY OF REFERENCE:                   Iran

MEMBER:David James

DATE:9 June 2023

PLACE OF DECISION:  Brisbane

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 09 June 2023 at 11:47am

CATCHWORDS
REFUGEE – protection visa – Iran – membership of particular social group – person convicted and facing imprisonment – tour bus operator found with mixed gender groups and bottle of alcohol – detained, fined and warned – later convicted in absentia and sentenced to imprisonment – prosecutor’s appeal against leniency and applicant’s against sentence – religion – non-practicing Muslim – consistent and credible claims – court documents and independent news reports – new claim of participation in anti-Iranian government activities in Australia – no significant profile – country information – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 65, 411(1)(c)
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v MHA [2019] FCA 836
Fox v Percy (2003) 214 CLR 118
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
SZLVZ v MIAC [2008] FCA 1816

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 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 citizen of Iran, applied for the visa on 30 October 2019. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Iran, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.

3. The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal) on 19 December 2020. The applicant provided a copy of the delegate’s decision with the application for review.

4. As noted above, the applicant provided a copy of the delegate’s decision with his application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant’s protection visa having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.

5. The applicant was represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

6. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

7. 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.

8. 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).

9. 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.

10. 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.

11. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.

    Mandatory considerations

12. 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 (Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF Claims and evidence

13. The issues in this review is whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicant was returned to Iran he would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to PNG, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.

    Claims

14. The applicant, when applying for the visa, provided a signed ‘Statement of Claims’ dated 29 October 2019 which he referred to in his application for the Protection visa as containing his claims. His claims are as contained in that document and in summary and as relevant are that:

    ·He was bornin [City 1], Iran to a Shia Islam religious family. After his 20’s he decided that he no longer wanted to practice as a Muslim, and he stopped saying Muslim prayers or attending any Muslim gatherings

    ·He then travelled and worked in Iran and joined [a Group]] in [City 1] travelling with them and found that he enjoyed their [activities] and trips.

    ·In 2014 he studied English privately. Later in 2015 he attended a one-day tour in [City 1] which was run by a friend of his. He was later approached by some of the customers of the tour and asked to accompany them on their next tour. This led to him starting his own tours in [City 1].

    ·On [Day 1] June 2017 whilst he was operating a tour in the north of Iran at [Location 1] he also had two buses on a tour in [Location 2] with [Number] mixed gender people. This was during the month of Ramadan and the ‘Sepah’ detained the tour busses and their passengers including the team leaders for alcohol tests. The ‘Sepah’ located a bottle of alcoholic drink. Later the members of the tour were released but his tour leaders were arrested and he was asked to attend court where he was fined 1.4 Million Toman for promoting immorality and he had to sign an undertaking not to provide mixed gender tours.

    ·On [Day 1] April 2019 he was contacted by the Etelaat and told to report to the Etelaat Sepahon on [Day 2] April 2019 for a meeting about improving tourism and aspects of running tours. He presented himself for the meeting on [Day 3] April 2019 as he was unable to attend as requested on [Day 2] April 2019. When he attended, he was taken to another building and handcuffed and blindfolded. He was interrogated and asked to provide his access passwords for his mobile, [Social media], email and other social media accounts. He had four [Social media] accounts but while he was detained his staff changed the password access on two of those accounts.

    ·On his first day in custody the prosecutor met with him and on the following day he was moved to the [City 1] Central Watch House where his fingerprints were taken, and he was issued a prison number plate. He was made aware that he had been given an initial detention order of 30 days. In the ward he was housed in there were 200 people detained and they had no room to sleep. He was later moved to another ward where he remained detained for [Number] days. He claims that the prosecutor changed the 30 day detention to [Number] days due to a payment of 200 million toman for his bail.

    ·Later after he was released warnings were installed on two of his [Social media] accounts which he claims resulted in a loss of followers on those accounts. However, his main account ‘[Account name]’ was not affected, and it remained active with over [Number] followers as this was one of the accounts that his staff had changed the access password on.

    ·On [Day 2] June 2019 he returned to Court for a hearing and afterwards then decided to go away and travelled to [Country] on [Day 1] July 2019 for a month. During this time the applicant’s court hearing was finalised and he and his mother had also been granted visas to visit his brother in Australia. 

    ·He claims he had in absentia been convicted and sentenced to three months and one day imprisonment a 4 million Toman fine and a one-year ban had been imposed upon him running tour operations.

    ·His lawyer told him that he was probably not on the airport blacklist, so he travelled to Australia with his mother.

    ·He claims that the photographers who had also been imprisoned for 54 days in [City 1] were later sentenced by the court to 2 years imprisonment and 6 million Tomans in fines.

    ·He claims that the prosecutor has appealed his sentence seeking an increase in his penalty to the maximum of 10 years and that he be classed as Mofsed Feil Arz (God’s enemy on earth). His lawyer has also appealed to stop the actions of the prosecutor.

    ·The applicant does not know what sentence he will be given once the appeal is heard and as he is innocent, he cannot tolerate going to prison one more day as the prisons in Iran are very dangerous and people get killed easily.

    ·He claims if he was to return to Iran he would be put into prison and would lose his ability to work for a year and he then could not survive.

15. The applicant submitted the following documents with his application for the visa:

    ·Bail documents issued by [Branch 1] of the Public Prosecutor’s office of [City 1] dated [Day 6] April 2019.

    ·Letter of appearance issued by [Branch 1] of the Public Prosecutor’s Office of [City 1] dated [Day 1] June 2019.

    ·Interrogation and Charge Sheet issued by [Branch 1] of the Public Prosecutor’s office of [City 1] dated [Day 2] June 2019.

    ·Public Prosecutor’s Final Writ dated [Day 3] June 2019.

    ·Notice of Court Appearance [in] August 2019 by [Branch 2] of [Criminal Court] of [City 1] dated [Day 2] July 2019.

    ·Court Order of [Criminal Court] of [City 1] dated [Day 1] September 2019.

    ·Three employment contracts.

    ·Military service exemption letter.

    ·Insurance certificate and payment receipt.

    ·Education certificates.

    ·Three country of origin information documents.

    ·Photos of tour group.

    ·Further photos.

    ·Agent’s cover letter and submission.

    ·Court documents relating to the applicant’s colleagues.

    ·Representative’s additional submission of 5 August 2020.

    Department interview 

16. On 18 August 2020 the applicant was interviewed by the Department.

17. Following his interview with the department the applicant provided to the department a Statutory declaration under his hand dated 11 September 2019, an employment contract dated 14 April 2017, a Notice of reduction of detention issued by [Branch] of the Public Prosecutor’s Office of [City 1] dated [Day 6] April 2019 and an electronic Notice of Court Order dated [Day 4] September 2019.

    Delegate’s decision

18. The delegate’s decision of 13 November 2020 to refuse the protection visa was made on the information before the delegate. The delegate accepted that the applicant was a non-practicing Muslim and that he had been managing and running tours using the [Social media] platform of ‘[Account name]’. However, the delegate did not accept that the applicant or his tour group was involved in an alleged incident on [Day 1] June 2017, that he was later asked to attend the office of the Depah Ettalaat in April 2019, or that he was questioned about his [Social media] accounts and that he was subsequently detained, charged and sentenced between April 2019 and September 2019. The delegate was therefore not satisfied that the applicant met the criteria in s 5H(1) of the Act, and was therefore not a refugee. The delegate for the same reasons was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Iran, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.

    Invitation to attend hearing

19. On 9 May 2023 the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on Thursday 8 June 2023 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.

    Pre-hearing submission and documents

20. On 3 August 2022 the applicant’s representative forwarded to the Tribunal a written submission and the following exhibits which they stated were provided in support of the applicant’s matter. Those exhibits are:

    ·Exhibit 1: Statutory declaration by the applicant, dated 3 March 2022.

    ·Exhibit 2: Statutory declaration by the applicant, dated 11 September 2020.

    ·Exhibit 3: Statement of claims by the applicant dated 29 October 2019.

    ·Exhibit 4: Translated screenshot of [Social media] post on [Account name], 12 July 2019.

    ·Exhibit 5: Translated screenshot of [Social media] post on [Account name], 5 May 2019.

    ·Exhibit 6: Translated copy of contract between [Company 1] and [Company 2], dated 14 April 2017.

    ·Exhibit 7: Translated copy of contract between [Company 1] and [Company 2], dated 12 April 2018.

    ·Exhibit 8: Translated copy of contract between [Company 1] and [Company 2], dated 17 April 2019.

    ·Exhibit 9: Translated copy of letter altering detention, dated [Day 6] April 2019.

    ·Exhibit 10: Translated copy of the notice to appear, archived [Day 1] June 2019.

    ·Exhibit 11: Translated copy of the interrogation transcript, dated [Day 2] June 2019.

    ·Exhibit 12: Translated copy of final writ, dated [Day 4] June 2019.

    ·Exhibit 13: Translated copy of electronic notice of trial date, dated [Day 2] July 2019.

    ·Exhibit 14: Translated copy of electronic notice and court order (sentence), dated [Day 4] September 2019.

    ·Exhibit 15: Translated copy of [News source 1] news article.

    ·Exhibit 16: Translated copy of [News source 2] news article, [Day 4] April 2019.

    ·Exhibit 17: Statutory declaration by [Mr A].

    ·Exhibit 18: Translated copy of [Mr A]’s passport’s entry and exit.

    ·Exhibit 19: Copy of expired Iranian passport of [the applicant].

    ·Exhibit 20: Translated copy of Iranian birth certificate (shenasnameh) of [the applicant].

    ·Exhibit 21: Translated copy of Iranian military service exemption card of [the applicant].

21. In the applicant’s representative’s submission, his relevant background is described in part as being:

    … Before arriving in Australia, the applicant owned and operated a tour company in [City 1] called [Company 1]. The applicant was detained and held for [Number] days from [Day 3] April 2019 to [Day 7] April 2019 before being released on bail. The applicant was charged and later sentenced to 3 months and one day imprisonment. His charges were:

    a.     encouragement of general public to corruption and depravity and facilitation of such activities;

    b.     production of immoral stuff with intention to spread corruption; and

    c.     dissemination of immoral stuff in virtual space through [Social media].

    The applicant arrived in Australia on [Day 4] September 2019 on a Visitor visa (Sponsored Family stream) (‘Visitor visa’). On 30 October 2019, he lodged an application for a Protection visa. The applicant attended a phone interview with the Department of home affairs on 9 September 2020…

    The submission addresses the Refugee and Complementary criteria and submits as to his claims that:

    The applicant’s claims have a basis in fact it should be accepted. In particular, it should be accepted that the applicant:

    a.     the applicant and his tour group were involved in an incident on [Day 1] June 2017;

    b.     the applicant was asked to attend the office of Sepah Ettalaat (the Islamic Revolutionary Guard Corps) in April 2019, and was detained; and

    c.     the applicant was charged and sentenced to 3 months and one day imprisonment, among other punishments, due to his [Social media] and tour activities between April 2019 and September 2019.

1. The submission refers to the applicant’s 2019 ‘Statement of Claims’ as to an ‘Incident in 2017’ and provides that:

   In 2017, the applicant was fined 1.4 million toman because Sepah believed he was promoting immorality on his tours.

   The submission with reference to a news report from [News source 1] of [Day 2] June 2017 in which it is reported that [Number] boys and girls in a mixed tour were arrested by Disciplinary Branch of I.R. Revolutionary Guard for [City 2] of [Province] submits that the applicant’s claim should be accepted.

2. As to the issue of ‘Detention in April 2018’ the submission provides that:

   The applicant was detained from [Day 3] April 2019 to [Day 7] April 2019, when he was released on bail. He was originally going to be held for 30 days; however, on [Day 6] April 2019, an order was issued to discontinue their detention and release them on bail after payment of 2 billion rials…

   The submission references a news report of [Day 4] April 2019 from [News source 2] which reported that [Redacted]:

   The submission addresses the delegate’s decision and provides explanations as to purported inconsistencies raised by the delegate and identifies relevant country information and submits that:          

   In light of the above, it is our submission that the applicant’s claims vis-à-vis the incident in 2017, and his arrest, detention, sentencing and departure from Iran in 2019 should be accepted.

   It then addresses the statutory framework of the Refugee and Complementary Criteria. It concludes with the statement that:

   In sum, the applicant satisfies the refugee criteria because he has a well-founded fear of persecution on the basis of his membership in a particular social group. Therefore, it is our submission that he is a refugee under s 36(2)(a) of the Act.

   Alternatively, the applicant meets the complementary protection criteria under s 36(2)(aa) of the Act.

   Therefore, we respectfully ask the Tribunal to remit the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) or (aa) of the Act.

3. In the applicant’s Statutory Declaration of 3 March 2022, he repeats his claims and corrects some dates and other inconsistencies that were identified in the delegates decision. He explains as to his detention under the heading of ‘Date I was charged with the offences’ at paragraphs 10 and 11 stating that:

   On [Day 5] April 2019, my brother, [Mr A], visited me while I was in detention. I was issued a notice on [Day 6] April 2019 that the temporary detention order had been reduced from 30 days without bail to bail set at 2 billion Iranian Rials (200 million Toman). A few days later on [Day 7] April 2019 my family put up my brother, [Mr B]’s shop for bail and I was released the same day.

   On [Day 1] June 2019, I was given a notice to appear at Public Prosecutors Office of [City 1] in the next five days for the purpose of ‘presenting the last defence’. This was before the matter had gone to trial and was still being investigated. I went to the public prosecutor’s office on [Day 2] June 2019, and I made a statement in writing. During this, they told me my charges and I stated that I denied the charges.

   The applicant in this Statutory Declaration under the heading of ‘Fears’ at paragraphs 19 to 20 further states that:           

   If I returned to Iran, I still fear that I will be harmed by the Iranian authorities. I have been sentenced to imprisonment in Iran, which I have not yet served, and I fear that I will be arrested and detained. The present conditions in Iran are terrible and I fear that I will be tortured and subjected to inhumane conditions. I believe that I have done nothing wrong and will be falsely imprisoned.

   I also fear that the reigning authorities will harm, harass, arrest and/or detain me again if I return. I am known to the authorities and have been outside Iran for over two years. If I return and try to work as a tour guide again, I fear they will harm and target me. They have already targeted me and banned me from working as a tour guide and I worry that will happen if I go back to Iran

4. In the applicant’s Statutory Declaration of 11 September 2022, he addresses the issue of him not declaring his Iranian criminal charges on his Australian Visitor visa application and provides a timeline as to his charges and the progress of same through the Iranian Courts. He explains at paragraphs 4 to 7 that:

   At the time that I went to [Country], I had no sentence against me. Therefore I left Iran to [Country] and returned to Iran without any incident at the Tehran Khomeini airport.

   My return from [Country] was [in] 08/2019 and my departure to Australia was on [Day 2]/09/2019. During that period, I was under no threat in [City 1]. My lawyer before my sentence had told me that he had a conversation with the judge, and my lawyer thought that we would not be receiving any sentence and the charges would be dropped or the case dismissed. This is why I returned to Iran and felt that I was not under any threat at that time. I waited for my mother to receive her Visa for Australia and then we travelled to Australia on the [Day 2]/09/2019. As I was not feeling threatened at the time, I did not hurry to exit Iran. I was totally unaware of the sentence. It had not been announced.

   On [Day 2]/09/2019, I departed Iran from [City 1] airport which is a relatively small and relaxed airport. I didn’t have any problem at the time of exit. Please note that at that time, my sentence had not yet been announced or notified. Still I was under the impression that my case would be dismissed, as my lawyer had told me that it would be.

   The court sentence was finalised on [Day 1] 09/2019 but it was announced to my lawyer on [Day 4]/09/2019. Therefore, at the time of leaving Iran, I was not aware of my sentence. It was over a week after I became aware of my sentence and [in] 10/2019 that I contacted [Migration Agents] to assist me with this PV application.

   At paragraph 8 he further states that:

   After the PV interview, I contacted my lawyer in Iran to ask him about the date that he became aware of my sentence, he told me that he received written notification on [Day 4]/09/2019. I attach the notification and its translation to this declaration.

5. In a further pre-hearing submission dated 12 May 2023 the applicant’s representative submitted that since their earlier submission the applicant’s circumstances have evolved. In this submission they raise a new claim of the applicant having developed an anti-Iranian government political profile through his involvement in anti-Iranian government demonstrations and activities in Australia. It is submitted in part at paragraphs 1, 4 to 6 and at 15 of this submission that:

   …the applicant has a well-founded fear of persecution on the basis of his political opinion and participation in anti-government activities, and is therefore a refugee in accordance with s 36(2)(a) of the Migration Act…

   …In his first submission to the Administrative Appeal Tribunal, the applicant advised that he feared persecution in Iran on the basis of his political opinions and his previous arrest and detention for activities which were considered crimes by the reigning authorities.

   We submit that, since the applicant’s arrival in Australia on [Day 3] September 2019, the applicant’s circumstances have continued to change, especially given the current socio-political climate in Iran.

   People all over Iran have been peacefully protesting the death of Jina Mahsa Amini, a 22-year-old woman who, on 16 September 2022, passed away following her arrest by the Iranian morality police, since the day of her death. While Iranian authorities claim that Jina Mahsa Amini died of a heart attack, eyewitnesses claim to have seen her being beaten by morality police…

   Further to this, we submit that, as someone who is in support of, and openly advocates for the rights of Iranians and, in particular, Iranians and women, the applicant at this instance is at high risk of both official and social discrimination and persecution, including arbitrary arrest and detention, harassment, torture, or even the death penalty, for his opinions in support of women’s rights.

   Enclosed with this submission was a series of copies of undated photographs of the applicant purporting to show the applicant at gatherings with other persons holding an anti-Iranian government placard or sign, a copy of a photograph of the applicant in attendance at a street location with a small number of other purported demonstrators and a series of snap-shot copies of social media posts and purported supportive comments made by the applicant.

   Country information

6. The Tribunal has taken into account the DFAT Country Information Report Iran, 14 April 2020, as relevant, including the information under the heading of ‘Alcohol Consumption’ at 2.32 to 2.35 where at 2.34 it is reported that:

   Prosecutions for alcohol consumption are not common. DFAT understands that police do not actively investigate or seek to entrap individuals consuming alcohol in their own homes, and will generally act only if the activity comes to public attention or if specifically instructed to do so. Payment of bribes is common. Where enforced, the punishment for alcohol consumption is normally a fine, usually paid on the spot. Floggings may be imposed periodically, but are rare. NGOs working in the health sector report that the government has changed its approach to the use of alcohol in recent years from a purely law and order focus to one emphasising treatment and rehabilitation. Several official alcohol treatment and rehabilitation centres operate in major cities, along with support groups such as Alcoholics Anonymous, and authorities are more prepared to allow NGOs to work in this field.

   Under the heading of ‘Atheists and Secular or Non-Practising Muslims’ where at 3.70 to 3.72 it is reported that:

   Local sources told DFAT that secularism is widespread, particularly in the major cities and among younger and wealthier Iranians. A significant proportion of the population does not attend mosque or pray on a regular basis, and alcohol consumption is common. Official sources told DFAT that religion was a private matter — that, beyond the expectation that people do not eat in public or hold parties during the holy Muslim month of Ramadan, how one wished to observe Islam was an individual choice, and was not a matter for the state. DFAT heard anecdotally that many Iranians do not observe Ramadan strictly, including by eating, drinking liquids and smoking at home. Most restaurants are closed during Ramadan, although many (especially in Tehran) reportedly serve food discreetly. Those caught eating in public during Ramadan run the risk of arrest and prosecution.

   A Muslim who renounces Islam and becomes atheist is considered apostate and risks state persecution and, potentially, the death penalty (see Religiously-Based Charges). DFAT is unable to verify what proportion of the population is atheist. According to local sources, atheists are discreet about their non-belief beyond their close family and friends. Unless they widely publicise their non-belief, atheists are unlikely to come to the attention of the authorities. Atheists from conservative families might face familial pressure and potential ostracism if their atheism were revealed, but would generally not be subjected to physical harm. Local sources told DFAT that atheists from more liberal families and parts of the country, like north Tehran, would face no such pressure. DFAT is unaware of individuals being prosecuted for atheism.

   DFAT assesses that non-practising Iranian Muslims face a low risk of official and societal discrimination, particularly in the major cities. DFAT assesses that atheists who are open about their non- belief face a moderate level of official and societal discrimination.

   As to the heading of ‘Religiously-Based Charges’ it is reported at 3.73 to 3.77 that:

   Under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. Separately, a person of any religion may be charged with the crime of ‘swearing at the Prophet’ (blasphemy) if they make utterances that are deemed derogatory toward the Prophet Mohammed, other Shi’a holy figures or divine prophets. The Penal Code does not specifically criminalise apostasy, but provisions in the Penal Code and the constitution stipulate that sharia applies to situations in which the law is silent, and judges are compelled to deliver sharia-based judgements in such cases. Although the Quran does not explicitly say that apostasy should be penalised, most Islamic judges in Iran agree that apostasy should be a capital crime. This ruling is based both on oral traditions attributed to the Prophet Mohammed and to Shi’a Imams, whom Shi’a consider the Prophet’s rightful successors. Chapter 5 of the Penal Code specifically criminalises swearing at the Prophet as a capital offence, although a clause states that the sentence can be reduced to 74 lashings of the whip if the accused states the insults were the result of a mistake or were made in anger.

   Politically-motivated apostasy charges were frequent in the years following the Iranian revolution, often leading to death sentences. However, in the vast majority of cases, defendants charged with apostasy also faced other charges related to national security. Many of these cases were quickly tried, ending in execution, so apostasy was not fully discussed in the prosecution of these defendants.

   While apostasy and blasphemy cases are no longer an everyday occurrence in Iran, authorities continue to use religiously-based charges (such as ‘insulting Islam’) against a diverse group of individuals. This includes Shi’a members of the reform movement, Muslim-born converts to Christianity, Baha’is, Muslims who challenge the prevailing interpretation of Islam (particularly Sufis) and others who espouse unconventional religious beliefs (including members of recognised religious groups). Some religiously-based cases have clear political overtones, while other cases seem to be primarily of a religious nature, particularly when connected to proselytisation.

   Today, death sentences in apostasy and blasphemy cases are rare. In March 2017, the Supreme Court upheld the decision of a criminal court in Arak (Markazi Province) to sentence a 21 year-old man to death for apostasy. Authorities arrested the man after he made social media posts considered critical of Islam and the Quran while on military service. According to publicly available information, the death sentence had not been implemented at the time of publication. The court also convicted two co-defendants of posting anti-Islamic material on social media, sentencing them to prison.

   DFAT assesses that those accused of religiously-based charges are also likely to face charges related to national security. They are unlikely to have adequate legal defence, and are likely to be convicted.

   Under the heading ‘Media’, at 3.107 to 3.119, at 3.113 and 3.115 it states in part that:

   DFAT assesses that the authorities do not comprehensively monitor Iranians’ online activities. Individuals with a public profile (including with large social media followings, particularly on Instagram), who are politically active, advocate for greater human rights, have connections to foreigners and are otherwise perceived as threats to the Islamic Republic are more likely to have their social media monitored – and, concomitantly, face a higher risk of arrest or harassment – than other Iranians.

   Authorities are sensitive to foreign satellite broadcasting that they deem hostile to the regime. Dozens of Farsi-language television and radio stations broadcast into Iran from abroad, including the US, Europe and the United Arab Emirates… In practice, satellite dishes are widespread and largely tolerated. According to local sources, while satellite dishes are sometimes confiscated, fines are rare. There are reportedly 8 million satellite dishes in Iran, and up to 85 per cent of the population has access to satellite channels. Authorities engage in regular (but not comprehensive) jamming of foreign satellite signals for viewers in Tehran and other cities, targeting in particular BBC Persian and Iran International. Channels such as BBC Persian can also be accessed via the Internet, using VPNs…

   Under the heading of ‘Unmarried Couples’ at 3.138 to 3.139 it is reported in part at 3.138 that:

   Close contact between unmarried men and women is illegal, as is being in a de facto relationship. While prohibited by the law and frowned upon by the religious establishment and more conservative Iranians, relations outside of marriage occur in practice. DFAT assesses that there is greater tolerance today for mixed-gender interactions, particularly in the larger cities.

   Under the heading of ‘Islamic Revolutionary Guards Corps (IRGC)’ at 5.2 to 5.3 it is reported at 5.2 that:

   The Islamic Revolutionary Guards Corps (IRGC) is Iran’s most powerful security and military organisation, responsible for the protection and survival of the Islamic Republic. Ayatollah Khomeini established the IRGC after the 1979 revolution to enforce his concept of an Islamic state governed by a Velayat-e-faqih (see Political System). The IRGC played a crucial role in suppressing early opposition to Khomeini’s vision and in repelling the 1980 Iraqi invasion. Since then, the IRGC has eclipsed the regular military as Iran’s pre-eminent internal and external security force. The IRGC operates substantial land, sea and air forces independent of the regular military, including the Basij (see Military and Basij Resistance Force). The IRGC also has a cyber command and a powerful intelligence arm that conducts domestic intelligence operations, including against political activists. The IRGC maintains its own detention facilities. The IRGC helped to suppress the Green Movement demonstrations in 2009 and, together with other parts of the security apparatus, played a role in responding to the December 2017, January 2018 and November 2019 protests.

   Under the heading ‘Exit and Entry Procedures’, at 5.22 to 5.26, it is reported at 5.24 in part that:

   The authorities impose travel bans on some 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 be subjected to travel bans.

   Under the heading ‘Conditions for Returnees’, at 5.27 to 5.31, at 5.27 and 5.30 to 5.31 it is stated that:

   Iran has a global and longstanding policy of not accepting involuntary returns. Historically, Iran has refused to issue temporary travel documents (laissez-passers) to facilitate the involuntary return of its citizens from abroad. In March 2018, Iran and Australia signed a Memorandum of Understanding on Consular Matters. This includes an agreement by Iran to facilitate the return of Iranians who arrived after March 2018 and who have exhausted all legal and administrative avenues to regularise their immigration status in Australia. A laissez-passer can be obtained from an Iranian diplomatic mission on proof of identity and nationality.

   International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government (heavy Internet filtering means most Iranians will never see them), protesting outside an Iranian diplomatic mission, converting to Christianity or engaging in LGBTI activities. In such cases, the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists. The treatment of returnees, including failed asylum seekers, depends on the returnees’ profile before departing Iran and their actions on return. According to local sources, the greatest challenge facing failed asylum seekers on return is reintegrating economically and finding meaningful employment.

   DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination.

   And under the heading of ‘Prevalence of Fraud’ at 5.41 to 5.45 it is reported in part at 5.42 that:

   Paper-based documents, including court documents, summonses, bank letters, real estate documents and tertiary certificates, are relatively easier to obtain through fraudulent means.

1. The Tribunal has also considered the Joint report by the Norwegian Country of Information Centre (Landinfo), the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) and the State Secretariat for Migration (SEM), December 2021 Country Report – ‘Iran Criminal procedures and documents’ which provides at page 69 under the heading of ‘What is the typical amount of a bail arrangement?’ that:

   The amount of a specific bail arrangement depends on various factors, such as in particular the severity of the crime and the expected severity of the punishment. According to article 219 CCP, the amount of bail should in any case not be less than the losses claimed by a private plaintiff. The judicial authority dealing with the case has the authority to specify the specific amount of bail. In political or security-related cases, such bail amounts have increased considerably in recent years, often totalling the converted value of tens of thousands of US dollars.

   According to article 244 CCP, a prosecutor can ask the investigating judge during the investigation to reduce or increase the amount of bail. A prosecutor can also ask the competent court to alter the bail arrangement after the issuance of the indictment. A defendant, too, has the right to ask the competent court to change the bail arrangement. Both the prosecutor and the defendant can only make such a request once.

2. This report under the heading of ‘When does a bail arrangement end?’ and the sub heading of ‘Failure of the defendant to appear before judicial authorities’ provides that:

   There are three scenarios in which a bail arrangement comes to an end, each with different outcomes for the accused and the deposited bail.

   2. Failure of the defendant to appear before the judicial authorities

   According to article 230 CCP, when a defendant fails to appear before the judicial authorities after being summoned, the prosecutor can order the confiscation of the security. The same applies to the surety, if the bondsman fails to present the defendant to the judicial authorities within one month after having been served an appropriate summons.

   According to Alikarami, if a court convicts a defendant who has failed to appear before the judicial authorities, it collects the bail. If it acquits her/him, but she/he has a civil liability to a private claimant, the due amount is paid from the bail and the rest returned to the defendant or the bondsman.

   According to article 235 CCP, both the defendant and the bondsman have the right to appeal the confiscation of the bail at the competent court within 10 days.

3. At page 71 under the heading of ‘Who can be subjected to a travel ban’ it is reported that:

   Within a criminal context, judicial and government authorities can issue travel bans against the following persons:

   -    A defendant during the investigation or trial procedure

   -    A convicted person who has not presented himself for the implementation of sentence or has not served his sentence entirely

   -    Tax debtors & other debtors including to banks

   Security forces can, in practice, prevent anyone from leaving the country even without an official court decision.

4. At page 76 of the Joint Report under the heading of ‘Judgement/verdict’ it provides the following description of the content of same as being:

   Content

   According to articles 374 & 375 CCP, the verdict should:

   - Be well reasoned and explicitly refer to the relevant articles of law

   - Mention the type of judgement (in presence or in absentia)

   - Mention potential retrial and appeal options and periods

   According to article 378 CCP, court verdicts should further contain the following information:

   - The case number

   - The number of the judgement of the court

   - The date of issue

   - The particulars of the court and the judge(s)

   - The particulars of the involved parties (and their lawyers)

5. At page 77 of the Joint report at 3.2.4 – ‘Court verdicts in absentia’, it is reported that:

   According to article 406 CCP, a court can issue a verdict in absentia if the defendant or his lawyer do not appear in any of the trial sessions, or if they do not present a defence statement. Verdicts in absentia are possible for all types of crimes, except for convictions in hard crimes like e.g fornication, homosexuality.

   According to article 406 CCP, a court can issue a verdict in absentia if the defendant or his lawyer do not appear in any of the trial sessions, or if they do not present a defence statement. Verdicts in absentia are possible for all types of crimes, except for convictions in hard crimes like e.g fornication, homosexuality.

6. At page 81 under the heading of ‘Are verdicts implemented directly after issuance?’ it is reported that:

   The implementation of a verdict only starts after all appeal rights have been exhausted. According to Alikarami and Hedayati-Kakhki, in practice this can take months or even years.

   If the convict is not already in detention, or if she/he fails to present herself/himself to the implementation unit or the prison, the implementation unit issues an arrest warrant. Such an arrest warrant usually authorizes the law enforcement agencies to enter private properties in order to locate and arrest the convict. The implementation unit might also issue a travel ban and ask the Attorney General to communicate the travel ban to the security forces responsible for border control.

   And under the sub heading of ‘Imprisonment’, it is further stated that:

   In the case of imprisonment, the Unit for the Implementation of Criminal Sentences is responsible for supervising the implementation of the prison sentence, from the time a convict is presented to the prison until her/his release.

7. At page 82 of the Report under the heading of ‘Does a convict receive a confirmation of the implementation of the sentence?’ its reported that as to sentences of imprisonment that:

   In cases of imprisonment, the implementation office sends a criminal conviction letter (nāmeh-ye e’lām-e mahkūmiyat-e qat’ī-ye keifarī) to the prison in order to introduce the convict. The convict might be able to access this document in the case file. It further sends a summons (ehzārīyeh) to the convict ordering her/him to present herself/himself to the prison, if she/he is not already in (pre-trial) detention. Once released from prison after having served the sentence, the convict should receive a printout from the Prison Organization indicating the total length as well as the end of the sentence. In practice, prisons often do no provide this letter automatically, but the convict or his lawyer can make a request for it. A criminal records check should also mention served prison times. Further documents attesting a prison sentence may include prison documents such as the receipt that lists the personal items confiscated on arrival, receipts for the payment of money into the prisoners’ money account or cash card, or visitor permissions.

8. At page 83 under the heading of ‘Summons & arrest warrant & travel ban’ the report provides in part that:

   According to article 500 CCP, the implementation unit summons the convict for the implementation of the verdict. If the convict fails to present herself/himself, or if a bondsman fails to present her/him, the judge in charge of implementing criminal judgements can issue an arrest warrant against the convict. If the judge fears that the convict might abscond or hide, he can issue an arrest warrant without first summoning him. According to Hedayati-Kakhki, an arrest warrant is also issued for a convict who has been sentenced in absentia and whose whereabouts are unknown (see chapter 3.2.7). According to Alikarami, summonses can also be issued for the implementation for hadd-punishments (e.g. for floggings). They do, however, usually not mention the specific form of punishment in the content.

   According to article 509 CCP, the judge in charge of implementing criminal judgements can also issue a travel ban against a convict whose whereabouts are unknown.

9. In the Report’s Annexure 2. ‘Table overview of moral offences’ of the Joint report (at page 108) an overview of moral offences identifies the following offence:

   Article 639 – Encouraging people to depravity and immorality (Moral offences) – 1 to 10 years (Punishment) – Morality Police and Police (Law enforcement) – Criminal Court II (Court).

10. The Tribunal has also considered guidance on social media comments made in the the United Kingdom’s Upper Tribunal (Immigration and Asylum Chamber) of the Administrative Appeals Chamber in the decision of XX(PJAK) – sur place activities – Facebook) Iran CG [2022] 00023 (IAC) where at paragraphs 127 to 129 Keith J provided the following guidance in the conclusion of his decision that provided:

    Guidance on social media evidence generally

    Social media evidence is often limited to production of printed photographs, without full disclosure in electronic format. Production of a small part of a Facebook or social media account, for example, photocopied photographs, may be of very limited evidential value in a protection claim, when such a wealth of wider information, including a person’s locations of access to Facebook and full timeline of social media activities, readily available on the “Download Your Information” function of Facebook in a matter of moments, has not been disclosed.

    It is easy for an apparent printout or electronic excerpt of an internet page to be manipulated by changing the page source data. For the same reason, where a decision maker does not have access to an actual account, purported printouts from such an account may also have very limited evidential value.

    In deciding the issue of risk on return involving a Facebook account, a decision maker may legitimately consider whether a person will close a Facebook account and not volunteer the fact of a previously closed Facebook account, prior to application for an ETD: HJ (Iran) v SSHD [2011] AC 596. Decision makers are allowed to consider first, what a person will do to mitigate a risk of persecution, and second, the reason for their actions. It is difficult to see circumstances in which the deletion of a Facebook account could equate to persecution, as there is no fundamental right protected by the Refugee Convention to have access to a particular social media platform, as opposed to the right to political neutrality. Whether such an inquiry is too speculative needs to be considered on a case-by-case basis.

    Review hearing – 8 June 2023

11. The Tribunal hearing was conducted at the Brisbane Registry in the English and Persian languages.

12. The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a Protection visa afresh. The applicant when questioned by the Tribunal as to his understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criteria explained that his representative had explained the criteria to him and that he understood the criteria.

13. The applicant adopted his Statutory Declarations 11 September 2022 and 3 March 2022 together with his ‘Statement of Claims of 29 October 2019 as being his evidence. Through his representative when questioned as to whether he wished to add or delete any of that information he corrected the year of a date in his chronology of events in his Declaration of 11 September 2019 in relation to the date of his release from detention after his family provided bail from [04]/2018 as recorded to the correct date of [04]/2019. He further in reply to questions from the Tribunal explained he was familiar with his representative’s comprehensive submission to the Tribunal and the attached 21 exhibits which had been received on 3 August 2022 that was in compliance with the Tribunal’s practice direction and included a contents page with all the material paginated in accordance with same. He explained he adopted those submissions and all the information and exhibits enclosed were true and correct to the best of his knowledge.

14. The applicant explained that when he arrived in Australia with his mother in September 2019, he was met by his brother [Mr A] who resides in Australia and is a citizen of Australia. He explained he initially stayed with his brother in [Suburb 1] Brisbane for about two and half months before he moved to [Suburb 2] in Brisbane where he resided with his cousin [Mr C] for a period of about two and half years. He explained that [Mr C] works at a [Workplace] as a sales assistant. He further explained that he then became involved with a woman, and they moved in together in [Suburb 1]. He stated that this relationship later broke down but that he still resides at their house in [Suburb 2] where his brother [Mr A] now also lives with him.

15. He explained that he maintains contact with his parents, [brothers] and a sister who remain in Iran.

16. As to his court proceedings he explained under questioning that they are yet to be finalised due to the prosecutor’s appeal as to the sentence imposed upon himself and some of his co-accused. He outlined his arrest, detention and prosecution in accordance with his earlier Declarations and ‘Statement of Claims’ and this was consistent with the exhibited Iranian court documents that had been exhibited to his representative’s submission.

17. He explained that the initial court verdict or judgement was that he be fined 4 Million Toman and ordered to serve three months and one day imprisonment less the time he had initially served in detention after his arrest, [Number] days and that he be banned from conducting tours for a period of 12 months. However, he explained that his lawyer having received notification of the appeal has not received any further material from the prosecutor or the court at this stage. In particular his lawyer has not received any order for the applicant to report for the implementation of this sentence order. He has been in contact with his Iranian lawyer who is waiting for a listing of the appeal instigated by the prosecutor on the basis that the sentence imposed upon the applicant and some of his co-accused was too lenient and should be increased.

18. The applicant conceded that if he was to return to Iran now no sentence would be implemented and that until his appeal is finalised, he would not be imprisoned and ordered to serve the current verdict or sentence that included an imprisonment component of three months and one day. However, under questioning he explained that once his appeal is finalised, he would be required to serve his current sentence order which included a period of three months and one day imprisonment, or any new order of increased imprisonment as sought by the prosecutor in the yet to be heard appeal of his sentence.

19. Additionally, he explained that his bail surety that his family had put up and resulted in his release from custody was for the payment of 200 Million Toman, or the unused shop that his family had used as security for the monetary bail amount. He stated that he had discussed with his family the possible forfeiture of this unimproved investment property which was an unused shop and that his family were prepared to have the shop confiscated and forfeited when and if he does not attend the final hearing (appeal) and/or a summons for the implementation of his final sentence and period of imprisonment.

20. In accordance with his earlier Declarations and ‘Statement of Claims’ he explained that he feared returning to Iran as he had been sentenced to a period of imprisonment for an alleged morality offence and would at some time after his return and the finalisation of the prosecution appeal of his sentence be ordered to attend for the implementation of his sentence. As such if he returns to Iran, he will in due course be imprisoned for either the current sentence of three months and one day imprisonment or any greater period ordered at his appeal less the [days] he initially served. He further explained that the conditions of inmates of Iranian prisons is very poor, and he is concerned as to his ability to survive any such incarceration as he had previously stated in his material.

21. As to the applicant’s new claim raised in his pre-hearing submission of 12 May 2023 the applicant under questioning explained his views and his belief that given the death of Ms Amini in 2022, he believed he needed to express his condemnation of the Iranian government’s treatment of women in Iran and did so by attending and supporting anti-Iranian government demonstrations in Australia. However, in response to the Tribunal highlighting that the material provided to the Tribunal did not support that the applicant had been involved in organising or promoting any of these demonstrations the applicant conceded that he had not been so involved or had obtained a leadership or promotional profile as to these demonstrations and meetings.

    FINDINGS AND REASONS

22. The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.

    Country of reference

23. According to the protection visa application, the applicant claims to be citizen of Iran and provided a copy of his Iranian passport, copy of Iranian Travel documents and translated copies of his National ID Card and Birth Certificate. Based on this material the Tribunal finds that the applicant is who he says he is, and a national of Iran. Iran is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.

    Analysis

24. The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.

25. The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[1] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[2] This is consistent with the established proposition that it is for the applicant to make his or her own case.[3]

    [1] Section 5AAA of the Act.

    [2] Ibid (with effect from 14 April 2015).

    [3] Abebe v Commonwealth (1999) 197 CLR 510 at [187].

26. The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’.  It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out.  A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.

27. The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[4] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[5]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.

    [4] Fox v Percy (2003) 214 CLR 118

    [5] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

1. In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[6] A similar approach is taken in the Department’s Refugee Law Guidelines[7] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[8] which provides useful guidance for this Tribunal.

   [6] SZLVZ v MIAC [2008] FCA 1816 at [25].

   [7] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)

   [8] UNHCR, re-issued February 2019 at [203]–[204].

2. The applicant’s evidence under questioning by the Tribunal was consistent with his Statutory Declarations and his ‘Statement of Claims’. The Tribunal noted that under questioning the applicant was not evasive, his replies were immediate, relevant, and that he made some concessions which may have been viewed as adverse to his review application and his own interests.

3. The Tribunal found that the applicant was an accurate historian who provided consistent and credible evidence as to his claims.

   Membership of a particular social group – ‘Iranian citizens convicted and/or facing sentencing on morality offences and facing imprisonment’.

4. The Tribunal having accepted the applicant as a reliable witness is satisfied on the evidence before it, which includes copies of contracts for the provision of bus tours by the applicant through his [social media] platform of ‘[Account name]’ that he was managing, operating and running [bus tours] which had a customer base of younger less religious motivated customers in northern Iran.

5. The Tribunal also accepts the applicant’s evidence as to the incident on [Day 1] June 2017 where the Iranian authorities detained [Number] people who were passengers on bus tours organised by the applicant. The Tribunal accepts that these passengers and guides were detained as a result of the younger passengers being of mixed gender with some of the females not wearing the Iranian Hijab and that some alcohol had also been located on one of the busses by the authorities.

6. Notwithstanding that one of the new articles (news report of [Day 2] June 2019 from [News source 1]) exhibited (refer paragraph 20 above at Exhibit 15) to the applicant’s pre-hearing submission does not list any names it does report that [Number] boys and girls in a mixed tour were arrested by the Iranian Disciplinary Branch of I.R. Revolutionary Guard for [City 2] of [Province] and that wine was located during the arrest of the tour members. This report is consistent with the applicant’s claims of being held responsible and subsequently being fined 1.4 million tooman for promoting immorality on his tours.

7. Further having read this article in conjunction with the additional news report from [News source 2] of [Day 4] April 2019 (refer paragraph 20 above at Exhibit 16) which the applicant has submitted and relies upon and noting that this article reports that tour leaders ([Number]) attended a briefing with the Revolutionary Guard on [Day 2] April 2019 and were arrested. And further that two days later another group of tour leaders were also arrested with the article listing the names of those arrested, and that list included the applicant’s name. The Tribunal is satisfied that the applicant was so arrested and detained from [Day 3] April 2019 to [Day 7] April 2019. Such arrest of the applicant arising from him, and others having been directed to attend a meeting with the Revolutionary Guard Intelligence Branch as to the conduct of bus tours. It is also accepted by the Tribunal that following his arrest he and others were charged with morality offences because of the alleged manner these tour operators were conducting their tours.

8. The Tribunal finds that the news reports submitted by the applicant and independently confirmed by the Tribunal provide significant corroboration to the applicant’s version of events and his claims and provide a genuine basis as to his fears of persecution.

9. As such the Tribunal having accepted the applicant’s evidence as to having been earlier fined in 2017 for the manner in which bus tours were managed, organised and conducted by him and others, that he was later in 2019 as claimed arrested and detained and subsequently charged with morality offences under the Islamic Penal Code (ICP). Those offences were under article 639 of the Penal Code and were particularised as ‘encouraging general public to depravity and corruptive acts’ and ‘facilitation of such criminal activities’. Having reviewed the Iranian court documents (which had earlier been provided to the Department) and are exhibited to the applicant’s pre-hearing submission together with their translations, and with reference to the relevant country information as outlined above at paragraphs 27 to 35, and in particular with reference to the normal contents of verdict documents as outlined at paragraph 30. The Tribunal is satisfied that the court documents relied upon by the applicant at this review are genuine and that they support his claims

10. Therefore, given the court documents, the news reports and the evidence of the applicant having been assessed as being reliable the Tribunal is satisfied on the evidence before it that the applicant as outlined above was managing and conducting bus tours using the [Social media] platform of ‘[Account name]’. Further that a tour group organised and managed by him was involved in an incident on [Day 2] June 2017 where two buses were intercepted, and [Number] passengers and guides were arrested and detained. It is also accepted that the applicant had been invited with other tour operators to attend a briefing in April 2019 with the Iranian authorities (IR Branch of the Revolutionary Guard) and that upon his later attendance as invited that he was detained, questioned and later arrested and prosecuted in relation to morality offences. Additionally, the Tribunal is satisfied that the applicant was detained for [Number] days from [Day 3] April 2019 to [Day 7] April 2019 and then released on bail after his family pledged surety for his bail. It is also accepted by the Tribunal that he has been sentenced by [Branch] of the [Criminal Court] of [City 1] to a fine of 4 million toman and a period of imprisonment of three months and 1 day less the [days] he had originally served in detention for these offences. And that such sentence has not yet been implemented and finalised as the prosecution have appealed the sentence as being too lenient.

11. The Tribunal also accepts that the applicant has been maintaining contact with his Iranian lawyer who continues to act for him in these matters and that the prosecution appeal is yet to be heard and finalised.

12. Therefore, the Tribunal is satisfied that if the applicant was to return to Iran he would likely be imprisoned in the reasonably foreseeable future for the period of three months and one day less the [days] he has already served or a greater period of imprisonment and possibly some other form of additional cruel and inhumane punishment if the prosecution appeal to increase his punishment is upheld by the Iranian appellate courts.

13. As such the Tribunal is satisfied that if the applicant was to return to Iran in the reasonably foreseeable future that he would face a real chance of persecution involving serious harm for reasons of his membership of a particular social group being ‘Iranian citizens convicted and/or facing sentencing on morality offences and facing imprisonment’. Additionally the Tribunal finds that given the applicant is a non-practising muslim who has conducted bus tours viewed by the Iranian authorities as having been conducted in an immoral manner and given the available relevant country information as outlined above at paragraph 26 as to ‘atheists’ and ‘religiously based charges’ he may additionally face a real chance of persecution involving serious harm for reasons of religion.

14. Therefore for the reasons outlined above, the Tribunal finds that the applicant’s fears in this regard are well-founded.

    New Claim – Political views expressed by attendance at Australian anti-Iranian government demonstrations

15. The applicant claims that since the death of Ms Amini in Iran in 2022 that he has been involved in anti-Iranian government demonstrations in Australia and has such given his open support for this recently inspired world-wide anti-Iranian government movement. He claims his support and involvement in this movement is evidenced by his attendance at some demonstrations has and will result in him being at high risk of being subject to both official and societal discrimination and persecution for his political views if he was to return to Iran. He claims in this regard to fear arrest, detention, harassment, torture, or even the death penalty.

16. In regard to this new claim the Tribunal accepts as reasonable that the applicant has genuinely been upset at the death of Ms Amini in Iran at the hands of the morality police and like many others throughout Australia and elsewhere joined in expressing his anti-Iranian government views by participating in and supporting anti-Iranian government demonstrations. However, as the applicant has not been involved in organising and promoting these demonstrations nor as he been the subject of any media reports that have recorded and disseminated his views through any form of media it is not accepted that he has obtained an anti-Iranian government profile here in Australia or elsewhere. Additionally, as to the copies of ant-Iranian government social media articles that the applicant has purportedly ‘liked’ or made supportive comments on. The Tribunal given the country information outlined above at paragraph 36 which provides guidance on social media generally has treated this material as being neutral and as such has given little weight to that material and is of the view that in any that it has not resulted in giving the applicant an anti-Iranian government profile of any significance.

17. Therefore, as to the applicant’s new claim of him having an anti-Iranian government political opinion and resultant anti-government profile with the Iranian authorities. The Tribunal is not satisfied that the applicant faces in the reasonably foreseeable future a real chance of persecution involving serious harm if he was to return to Iran arising from his political opinion and anti-Iranian government activities here in Australia since 2022.

18. The Tribunal finds that the applicant’s fears in the regard are not well-founded.

    Refugee criterion

19. The Tribunal, having considered all of the applicant’s claims both individually and cumulatively, does accept that the applicant faces a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of his membership of a particular social group, being ‘Iranian citizens convicted and/or facing sentencing on morality offences and facing imprisonment’ in all areas of his receiving country, Iran, s 5J(1)(c). The Tribunal finds on the evidence before it that the applicant in this regard cannot rely upon the Iranian authorities or any other authorities and/or organisations in Iran to provide protection to him and as such there are not effective protection measures available to the applicant from the Iranian authorities: s 5J(2).

20. Therefore, the Tribunal finds that the applicants’ fears of persecution arising from his membership of the particular social groups of being ‘Iranian citizens convicted and/or facing sentencing on morality offences and facing imprisonment’ are well-founded as required by s 5J of the Act, and therefore, the applicant is refugee within the definition of s 5H of the Act.

21. Having found that the applicant is a refugee the Tribunal has also considered whether the applicant have a right to enter and reside in another country other than Australia. The Tribunal finds that the applicant does not have such a right to enter and reside in another country other than Australia: s 36(3) of the Act.

22. 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) of the Act.

    Complementary protection

23. Having concluded that the applicant does meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has not considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.

    DECISION

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

    David James
    Senior 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.

    …