2018349 (refugee)
[2024] ARTA 702
•2 December 2024
2018349 (refugee) [2024] ARTA 702 (2 December 2024)
DECISION AND
REASONS FOR DECISION
Representative: Mrs Roya Majd (MARN: 0701239)
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 2018349
Tribunal:Senior Member J Marquard
Date:2 December 2024
Place:Sydney
Decision:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act
Senior Member J Marquard
2 December 2024, 14.45.00
CATCHWORDS
REFUGEE – Protection Visa – Iran –– race – an Indian Iranian – religion – an atheist – imputed Christian religion and atheism – attended political protests – political opinion – strongly opposed to the Iranian regime – applicant has a well-founded fear of persecution for reason of political opinion – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167Any 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
The applicant has sought review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 21 December 2020. The delegate refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
This is a review of that decision by the Administrative Review Tribunal (the Tribunal).
BACKGROUND TO THE REVIEW
The applicant is a citizen of Iran. He is [age] years old.
He first arrived in Australia on [date] May 2013 by boat.
He applied for the visa the subject of this review on 8 July 2020. He claimed to fear persecution for reasons of political opinion and religion, as well as ethnicity.
The Department of Immigration and Multicultural Affairs (the Department), as delegate of the Minister, refused to grant the visa on 21 December 2020. The delegate did not accept that the applicant’s claims were credible and found that there was no real chance of serious harm or real risk of significant harm.
The applicant lodged the application for review of the decision with the former Administrative Appeals Tribunal (the AAT). On 14 October 2024 the AAT was abolished and replaced with the Administrative Review Tribunal (the Tribunal).
If a proceeding commenced in the AAT but was not finalised before 14 October 2024, such as this one, it must be continued in the Tribunal in a manner that is efficient and fair. Under the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), applications for review that were not finalised before 14 October 2024 are taken to be applications for review to the Tribunal. The transitional provisions permit the Tribunal to continue and finalise the proceedings commenced under the AAT.
SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW
The applicant has applied for a Safe Haven Enterprise visa XE-790 (SHEV). Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Act.
Australia acceded to the 1951 Convention relating to the Status of Refugees[1] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[2] in 1973, thereby undertaking to apply the substantive provisions of the Convention and Protocol. For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[3]
[1] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).
[2] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).
[3] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’.
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.
An applicant must establish that they:
· are a refugee (the refugee criterion);[4] or
· qualify for complementary protection (the complementary protection criterion);[5] or
· are a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (family member criterion).[6]
[4] Section 36(2)(a) of the Act
[5] Section 36(2)(aa) of the Act.
[6] Sections 36(2)(b) and (c) of the Act.
Refugee criterion
Section 36(2)(a) of the Act 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, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of their country of nationality: s 5H(1)(a) of the Act.
Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.
The reason must be the essential and significant reason or one of the reasons for the persecution. The persecution must involve serious harm and systematic and discriminatory conduct (s 5J(4)). Indicative examples of serious harm are set out in s 5J(5) of the Act.
Conduct engaged in by an applicant in Australia must be disregarded unless the applicant satisfies the Tribunal that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee (s 5J(6) of the Act).
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‑5LA of the Act, which are extracted in Attachment A to this decision.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.
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) of the Act, which are extracted in Attachment A to this decision.
EVIDENCE CONSIDERED IN THE REVIEW
The Tribunal has considered the application to the Department and supporting documents, Departmental migration records and new evidence to this Tribunal.
The applicant appeared before the Tribunal on 7 November 2024 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The applicant was represented by Mrs Roya Majd. An interpreter assisted the Tribunal. The applicant confirmed that he could understand the interpreter clearly and was satisfied with the standard of interpretation.
Mrs Majd, in written submissions to the Tribunal, said that the applicant continued to rely on submissions from the applicant’s former representative dated 24 November 2020 (the November 2020 Submissions). These submissions referred to the Statement of Claims from an earlier application for protection dated 10 July 2017 (2017 Statement) and the further Statement of Claims dated 25 August 2020 (2020 Statement), the application and the Entry Interview dated 31 May 2013.
The Tribunal has also considered the Refugee Law Guidelines and Complementary Protection Guidelines prepared by the Department[7] and independent information about Iran, including the Department of Foreign Affairs and Trade (DFAT) Report prepared for protection status determination purposes.[8]
[7] These are mandatory considerations as prescribed by Ministerial Direction No 84, a direction made under s 499 of the Act (‘Direction No 84’).
[8] These are also mandatory considerations under Direction No 84.
The evidence and material before the Tribunal is referred to where relevant in the findings. The findings incorporate reference to information that the Tribunal has found to be material to the determination of the issues in the case.[9]
[9] The Tribunal notes that it is not required to make explicit reference to every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.
FINDINGS AND REASONS OF THIS TRIBUNAL
The Tribunal has determined that the decision under review should be remitted for reconsideration.
The reasons for this are set out below.
Nationality/right to enter and reside
For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) of the Act refers to this country as a ‘receiving country’.
For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.
The applicant claims he is a citizen of Iran, but that his passport was thrown into the sea on instruction from the boat operator who brought him to Australia. He has provided copies of his Iranian National Identity Card, Military Service Exemption Card, Driver’s Licence and Shenasnameh. The Tribunal is satisfied after citing these documents and hearing his testimony that the applicant is a national of Iran, and that Iran is the receiving country for the purposes of the legislation.
The Tribunal notes that the applicant’s father was from India and has considered whether the applicant also has citizenship of India. The applicant testified that he has never had Indian citizenship. He said that his mother told him that there was no dual citizenship available. He said that he was included as a dependent child on his mother’s passport and they were issued with visas each year.
The Tribunal accepts the applicant’s evidence and is satisfied that the applicant does not have Indian citizenship as India does not allow dual citizenship.[10]
[10] Australian High Commission India, <DUAL NATIONALITY>.
The Tribunal is not satisfied that the applicant has the right to enter and reside in India, as, according to the Government of India, persons of Indian origin who have migrated from India and acquired citizenship of a foreign country (except Pakistan and Bangladesh) are eligible to apply for the grant of Overseas Citizenship of India only if their home countries allow dual citizenship in some form or another under local laws’. [11] Iran does not allow dual citizenship.[12] Entry X visas, which allow entry for 5 years for those with an Indian parent, are only for dependent children.[13]
[11] Government of India (Ministry of Home Affairs), ‘India: The Citizenship Act 1955', 1 December 1955; Government of India, 'Overseas Citizenship of India (OCI)', 1 September 2011.
[12] United States Department of State, < Iran International Travel Information>.
[13] Indian Embassy, <Embassy of India, Hague, Netherlands : Entry Visa>.
Personal particulars
The Tribunal accepts the information provided by the applicant about his family and his background. This information has been provided consistently and there is no reason to doubt it.
The applicant’s mother was Iranian, and his father was Indian. His father was born in India and was an Indian citizen. During the regime of Mohammad Reza Pahlavi, in around 1979 his father travelled to Iran for work as a [Occupation 1]. He met his wife in Tehran. After this his father worked in [countries] as a [Occupation 1]. The applicant’s mother was a [occupation] in Iran and ran two [businesses] in India.
The applicant’s mother passed away in 2014 and his father passed away in 2021.
His uncles and aunts in India have mostly passed away.
The applicant’s maternal grandparents came from Tehran. His grandfather has passed away but his grandmother is still living in Tehran.
The applicant and all his brothers were born in Iran. After the revolution when Khomeini came to power, ‘circumstances were bad in Iran’, so his father took the family to India. The applicant was around [age] old. He lived in India for nearly 20 years, although the family came and went to Iran on summer holidays.
The applicant completed his secondary school in India. He told the Tribunal that his father inflicted domestic violence on his mother, and his parents separated. Following this, the applicant, his mother and his four brothers moved back to Iran in around 2002.
They lived in Tehran for a couple of months and then in Karaj, where he resided the rest of the time he was in Iran. Karaj is about 45 minutes’ drive from Tehran. The applicant’s mother had bought a house there before the revolution. This was leased out while they were in India, but when the family returned to Karaj, they lived in this house.
The aplicant said that when he first arrived in Iran he could not speak Farsi so he was unable to enrol in further study. For the first few months he did not have a job. After that he started coaching [sport]. He entered tournaments [and] was provided with an opportunity to coach. He also had many other ‘small jobs’, as coaching was not continuous and was primarily a summer job. He had jobs in [different field]. He also helped his brother in his [business].
The applicant travelled to India with his mother for two weeks in 2009. Although he said in the statement accompanying his application that he travelled for four months, this was later clarified as an interpreting mistake. They went to India because their aunt was sick, and they visited her. She had ‘helped their mother a lot’ when they were living in India. The applicant also had a holiday in [Country 1] in 2011.
The applicant’s eldest brother is still living in Iran and running his [business]. He is engaged to be married. His other brother is living with his mother, helping in the [business], and doing [specified work].
Assessing the credibility of the claims made about incidents which took place in Iran
The Tribunal has considered whether the incidents in Iran took place as described by the applicant.
Principles of credibility assessment applicable in this matter
The Tribunal is not required to accept uncritically claims made by an applicant[14] as an applicant is required to specify particulars of claims and make out the statutory elements.[15]
[14] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs[1994] FCA 1253; MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155.
[15] Section 5AAA of the Act; Abebe v Commonwealth of Australia197 CLR 510.
In making the assessment about the credibility of the applicant’s claims, the Tribunal has taken into consideration a number of factors.
Firstly, the Tribunal has taken into consideration the possibility of interpreting errors. In the November 2020 Submissions the representative submitted that no interpreter was present during the preparation of his 2017 Statement prepared by his former representative, such that there could be errors in that statement. Some of the errors were identified and are discussed later in this decision.
Secondly, the Tribunal has given some favourable consideration to the character references about the applicant’s honesty. [Name], General Manager for [Company 1] in a letter dated 28 October 2024, said that she had known the applicant for over two years, as one of her team members and a full-time [worker] at [Company 1]. She said that he displayed professionalism, work ethic and dedication to his role and was reliable and trustworthy. She said that he is kind and compassionate, was ethical and showed integrity.
In a letter dated 7 November 2023, [an] Area Manager, [Company 1], said that he had been the direct manager of the applicant for 18 months at [Company 1]. He said that the applicant provided exceptional customer service, [did specified work] at [Company 1]. He said that the applicant was reliable, honest and friendly. He said that the applicant received positive feedback from guests, colleagues and managers, was inspirational, and was trying to make the most of his life and to work as an [occupation]. He said that the applicant would be a valuable member of the Australian community.
While these character references are not given significant weight, given that the authors have no knowledge of the applicant’s background or personal life, they are given some weight in reference to his good character.
Thirdly, in assessing the credibility of the claims, the Tribunal has been mindful of cross‑disciplinary research about the fallibility of memory and difficulties in refugee decision‑making. Research is generally consistent that memory is not fixed, and that it is selective and fragmentary.[16] Memory may be impaired by emotion and affected by information a person receives after encoding an event.[17]
[16] Prof U Ecker, ‘Memory: Misconceptions, University of Western Australia, Australian Academy of Law, ‘Memory, Misconceptions, Mechanisms, Fallibility’.
[17] Prof U Ecker, ‘Memory: Misconceptions, University of Western Australia, Australian Academy of Law, ‘Memory, Misconceptions, Mechanisms, Fallibility’.
Furthermore, research in Canada has found that refugee decision-makers have unreasonable expectations of memory, and that ‘decades of psychological research’ has demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.[18] An Australian study has found that Tribunal members may rely on assumptions which can be inconsistent with psychological literature.[19] Madeline Holland in a paper on Narrative and Credibility in the United States’ Political Asylum Applications argues that the stories of asylum seekers are evaluated for their truthfulness ‘on the basis of criteria that align with Western literary standards of veracity’. That is, ‘Western literary standards shape our understanding of what a “true story” should sound like’.[20]
[18] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469–511< Hunter Dowd, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’
[20] M Holland, ‘Stories for Asylum: Narrative and Credibility in the United States’ Political Asylum Application’, Refuge: Canada’s Journal on Refugees, 10 December 2018.
The Tribunal acknowledges, in light of this cross-disciplinary research, that it must be vigilant in basing findings on evidence rather than assumptions, (which may be founded in cultural or social bias), and that it should be cognisant of the particular complexities in presentation of evidence in asylum cases. The Full Federal Court in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167 referred to these difficulties as follows:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
Experiences in an applicant’s home country may lead to nervousness and anxiety in presenting evidence to government authorities. Refugees and asylum seekers may have had traumatic experiences of the administration (or otherwise) of the rule of law in their own countries.[21] In this case, the applicant has had traumatic encounters with government authorities which may impact on how he deals with authorities in Australia.
[21] Judicial College (UK), Equal Treatment Bench Book, London, 2021, p 313.
Presentation may also be impacted by cultural behaviours, mental health issues or level of education, as well as stress caused by separation from home and family. An applicant may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons.[22] In this case, the events described by the applicant took place prior to 2013 such that it is likely the applicant would have forgotten some details.
[22] AAT, Migration and Refugee Division, ‘Guidelines on the Assessment of Credibility’.
The objective of taking a ‘reasonable approach’ to fact-finding, given the various impacts on presentation of evidence, is supported in numerous judgments.[23] Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 that it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
[23] See for example Full Federal Court in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133.
Was the applicant from a Christian family?
The Tribunal accepts the applicant’s claims that he grew up in a Christian family for the reasons provided below.
He has provided this evidence consistently. He confirmed his earlier evidence to the Department at the Tribunal hearing that his father’s whole family was Christian. He said that he thinks their denomination was Protestant, probably Baptist. He went to Sunday School and church. They had a strict family. His brothers also attended. They were baptised and he took communion when he was [age] years old.
The applicant was also able to provide a persuasive narrative about the interaction of his mother’s Shi’a Muslim religion with his father’s Christianity. He explained that after his parents met, it was difficult for them to marry so his father converted to Islam to get married in Iran. After the revolution they were the victims of racism, so they made the decision to go back to India. When they went to India, his father hid his Islamic conversion and he carried on with the Christian practice that his whole family had always practised. The applicant’s mother had ‘no choice’ in India but to also practise Christianity.
When the family moved back to Iran in 2002, his mother then had to live with the Islamic community, including her family. His mother had started believing in Christ in India after ‘praying and being in the church community’. There was no church in Karaj except for the Armenian church. She did not go to church. When they first arrived in Iran, in 2003/4 his mother was arrested. She was preaching Christianity at the house with neighbours and friends. The police arrived at the house. Through word of mouth, they may have heard about his mother’s Christian practice. His mother was detained for one month. They raised bail through a mortgage on the house. There was a charge, but she was not convicted. She ‘did not carry on in the church’ after her detention.
The applicant was also able to provide details of the church he visited in Tehran. The applicant said that he visited a church in Tehran for ‘peace of mind’ every now and then. He went there when he was visiting his grandmother or was in Tehran for [competitions] or with friends. The church he visited was [a] church, [Church 1] Church in Tehran, a Catholic [Church]. It was in the centre of Tehran. He chose this church because he had some [friends] who went there and also because it was close to his grandmother’s place. His brother also went from time to time. They did not go all together as a family. He went around five or six times a year. He provided photographs of the family attending this church. It was submitted that the church was an important institution in his life and the Tribunal accepts this, given his Christian background. There is independent information about a [church] called [Church 1].[24]
Did the applicant take two [sport] students to a Christian church in or around 2012, which led to a number of repercussions from authorities?
[24] [details deleted]
The Tribunal accepts the applicant’s evidence about taking some students to a church in around 2012.
This evidence has been provided consistently in the various forums it has been provided. The applicant claimed in the 2017 Statement, and confirmed in the November 2020 Submissions, that he took two Muslim [sport] students to [Church 1], in around 2012. He claimed that they went for a short visit, for 15 minutes or so.
The reasons he provided also appeared reasonable. He himself attended this church from time to time and he took them there because they were curious and had been asking about it for four or five months. He had attended this church multiple times and he had social connections there.
The Tribunal is also satisfied that his church visits led to repercussions from the authorities.
In his 2017 Statement, and elaborated on at the Department Interview, he said that three or four weeks after his visit to the church with the students, at around the end of 2012 or the beginning of 2013, he was approached outside the church by three plain-clothed police or intelligence officers, who questioned him. They asked him for identification and questioned him as to why he was in church. They asked him if he was Muslim because his first name was Islamic, and he looked like a Muslim. The applicant said that he resisted efforts to put him in a car and was pepper sprayed. He was locked in the boot of a car and driven for 30 to 40 minutes then taken to a building.
He claimed in his 2017 Statement that he was subsequently interrogated, tortured and subjected to attempted rape. He said that he was hung up for two hours and beaten. His middle finger was fractured and his eye injured.
There was some discussion during the interview with the Department about possible inconsistencies in his evidence, as he said ‘threatened’ with rape in his interview but referred to ‘attempted’ rape in the Statement. As referred to earlier in this decision, in the November 2020 Submissions, reference was made to possible interpreting problems in the 2017 Statement. The Tribunal accepts that the applicant claimed he was threatened with rape rather than that attempted rape took place, as it seems reasonable that there could have been miscommunication in interpretation of this matter.
The applicant claimed that he was released after signing an undertaking and saying he was Muslim and showing his circumcised penis as evidence. The interrogators questioned him about his Christian activity, and he told them he was at the church for the purpose of handing over money he owed to someone in the church. He was crying and tried to convince them he was Muslim.
The Tribunal is satisfied that these incidents took place. His evidence has been generally consistent, and he was able to provide relevant details. He was also able to talk convincingly about his reactions, saying that he did not attend church for a few months and did not tell anyone about the attack, and that he became terrified of authorities.
The Tribunal also accepts the applicant’s evidence that he was interrogated outside a church in Tehran when visiting his grandmother in April 2013.
He was able to provide significant detail about this incident, commensurate with direct experience. He said that at the time he was preparing for a [sport] competition. He went to the church because there were not many churches in Karaj (a detail he repeated on a number of occasions). He said that the church was on his way and he used to take people there. Two plain-clothed police officers were in a car and a third arrived in a separate car. He recognised one from the first attack. They attempted to detain the applicant. One of them took out a gun and pointed it at him. They tried to put him in the car, and he struggled and fought the policemen. He said that he ‘threw some punches’ and broke a policeman’s nose. He then escaped into a crowd. He found some bike taxis and went to Azadi.
The Tribunal is also persuaded by his description of the emotions he felt after encountering the police. He said that he was ‘terrified and confused’ because of the first time he had been interrogated. He said that the first time had been ‘very bad’ and he knew it ‘would be worse’. This does provide some explanation as to why he resisted the police and tried to run away.
Independent sources suggest that monitoring and harassment of Christians took place at the time.[25]
[25] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 2020.
The Tribunal accepts the applicant’s evidence about the circumstances of his departure. The Tribunal initially had some concerns about this evidence. In particular, the Tribunal queried whether, if he was of adverse interest as claimed, he would have been stopped at the airport[26] instead of being able to depart freely, as in fact happened. The Tribunal also had some concerns as to the fact that no statement was provided by the elder brother or other family members, which could have been expected given the incidents of harm which related to them. These concerns were not sufficient for the Tribunal to find that the applicant’s evidence was not credible, when considering the evidence in the totality. This is discussed further below.
[26] United States Department of State, ‘Country Report on Human Rights Practices, Iran’, 2014 refers to restrictions placed on foreign travel of religious minorities.
The applicant said that after the fight with the policeman, he fled to his grandmother’s house in Tehran, where his uncle came and brought some bread. He told his uncle what happened, and his uncle said that in Islam it is ‘bad to fight the police’ and told him he must leave the country. He said that his uncle made telephone calls on his behalf. The applicant then went to Karaj. In the interview he elaborated that he went to [a venue] the next day and asked his older brother to bring his passport, money and clothes to the [venue]. The brother arranged for a courier to do this. He then arranged his departure from Iran by air from Tehran airport. His uncle helped him. He called the owner of the [venue] and transferred his lease to one of his friends. He told the Tribunal that it was a very difficult decision to make, leaving his family.
He also said in his 2017 Statement that he rang his mother and said that he was going to [Country 1] or [a country] for a holiday. In the interview he clarified that he rang his older brother and not his mother. He did not want his mother to know what had happened as she had been detained for preaching for one month.
He claimed that he left the airport with no difficulty on [date] April 2013 using his genuine passport. The applicant claimed in his 2017 Statement that after he left the country, Iranian authorities went to his house in Karaj looking for him. He also claimed in his 2017 Statement that his older brother was subsequently detained and tortured, with the authorities demanding that the applicant surrender himself, and that the applicant’s brother would be detained until this point. He told the Tribunal that his mother was at home at the time and was terrified.
He claimed that his brother was released four days later when it became apparent that the applicant was outside the country. He said that the house remained under surveillance and periodically there were enquiries made about the applicant.
In the November 2020 Submissions, copies of emails between 1 May 2013 and 21 May 2013 with his second brother, with an English translation, were provided to the Tribunal to corroborate the evidence about his elder brother’s detention. In these submissions, it was claimed that he was aware of the risks of leaving through the airport as he had been briefed by his uncle, who had particular concerns as the applicant had fought with a police officer. At the Tribunal hearing he said that his name was not on a list.
The courts have indicated that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[27] In the November 2020 Submissions, his solicitor submitted that there was considerable consistency between the 2017 Statement and the Entry Interview and the Department Interview. The Tribunal acknowledges that his evidence has overall been consistent, and has taken into consideration, in assessing the credibility of the claims, the overall consistency and coherence of the applicant’s account.[28]
[27] SZLVZ v MIAC [2008] FCA 1816 at [25].
[28] As suggested in the former AAT, Migration and Refugee Division, ‘Guidelines on Assessment of Credibility’.
As the Tribunal has found the applicant to be generally credible, the Tribunal accepts the evidence that he was able to leave through the airport without detection as his name was not on a list, even though there was risk. The Tribunal also accepts the evidence about his brother’s detention in light of his generally credible evidence and the corroborative emails with the second brother. He was also able to provide details of his departure, such as his uncle bringing bread, and spontaneously described his feelings about how difficult it was to leave his family. This evidence was persuasive. In any event, these incidents are not essential to the findings of a real chance of serious harm, as set out later in this decision.
Did the applicant participate in political protests in Iran?
The Tribunal accepts that the applicant engaged in anti-government political activity in Iran, including attending two protest rallies in Karaj in June 2009 as part of the Green Movement.
He was able to provide information about the rallies and has expressed strong views about the Iranian regime, commensurate with the views of a person who may have attended those rallies. He told the Department at interview that the re-election of Ahmadinejad as President of Iran in 2009 was fraudulent. He said that he and other Iranians were disappointed with the outcome, and this was why they demonstrated on the streets. At the Tribunal hearing he said that this was the first and last vote he had in Iran. They went to fight for their rights, asking where their votes were going. Since then their candidate has been home arrested. He said that it was a ‘very big moment for Iran’.
He has also continued to attend protests in Australia, illustrating his political convictions.
Is the applicant an atheist as claimed?
The applicant claimed in his 2020 Statement that he is a ‘strong atheist’. He said that after his mother passed away, his life changed and he:
‘saw that all the problems which came to me, came from religion. I decided to leave all religions. I made my own principles. I follow them and I am very happy’.
He said that when he first came to Australia. he attended [a] church in Melbourne. He said that he had deep depression after his mother died.
The Tribunal accepts that the applicant is an atheist. He was able to enunciate why he became an atheist, saying that it was after seeing the fighting caused by religion, and following his depression. He told the Tribunal that he had a lot of trouble in the past and just wants to live in peace. He said that he has had ‘two different religions which caused trouble’ and he wants a chance to start a new life in Australia where ‘it is secular, and everyone lives in peace’. He wants to ‘start anew without any brainwashing’. The Tribunal accepts that he was able to express his views about atheism with conviction.
He has also told people about his beliefs, indicating that he holds them strongly. He said that he regularly speaks to his friends, including his housemate and his landlord, about his atheism and the principles he follows. He said that he [does a specified work], and he regularly speaks to [clients] about his principles and his thoughts on atheism and religion.
He also provided to the Tribunal some copies of [social media] posts which show that he has publicly pronounced his views. One, on 15 October 2022, stated ‘no more God, nor more Heaven, No more Islamic Republic. It’s time to kick everyone out and have a peaceful life’. There was a similar post in 2015 stating ‘God did not create humans. Humans created Gods’.
At the Tribunal hearing he was asked why he posted this material. He said that it was because of the killing of many people in Iran. He said that people ‘have to do something’ and ‘start anew’. He said that Princess Pahlavi has said that after this regime they will start a new life.
He was asked why he would express these views publicly if it may lead him to have problems in Iran. He said that he is concerned about this but needs to express himself and ‘cannot sit in silence’. The Tribunal accepts that he has posted on social media about his atheism because he believes strongly in it.
Assessing the claims about conduct in Australia
Has the applicant attended protests in Australia?
The applicant claimed in the 2020 Statement that he has attended political protests in Australia. He said he is not a member of any protest groups, but he checks Iranian groups on [social media] and also checks with friends to see if any events are scheduled.
The Tribunal accepts that the applicant has attended multiple protests against the Iranian regime in Australia, for the following reasons.
Firstly, he was able to articulate his motivation for attending these protests. He said that his motivation in attending the protests was to:
‘step forward for the right thing. I am against the religious regime. The regime supports and funds terrorism. There are no human rights in Iran, no freedom to even raise your voice and call for the right thing’.
He told the Tribunal that he opposes the regime because the ‘religious people sit there with a book written 100 years ago ruling the country’. He said that he wants democracy not ‘rigged elections’. He opposes the regime’s policies on forced religion and prayers, and the ‘coerced support of the government, forced Ramadan fasting and wearing black on certain days, monitoring of clothes, wearing long sleeves’ and ‘other constant limitations on every aspect of life’. He said that he also opposes the dress code for women and ‘many other things’.
Secondly, he was able to provide details and anecdotes about the protests. He said that he hears about the protests from friends, housemates and on [social media].
He said that the first protest he attended was in [Melbourne], in around 2013 or 2014. About 100 to 130 people attended and he was there for about half an hour. The participants called out mottos/slogans against the regime and ‘demonstrated solidarity with the people of Iran’. He said that he decided to attend to fight for the rights of people.
100. He said that the second protest he attended was in Sydney on 6 January 2018 and concerned the Iranian elections. He said that he was photographed and interviewed but he is not sure who conducted the interviews or took the photographs. There were about 300 people in attendance, and he was there for about two to three hours. The organiser was the [a] dissident organisation associated with Reza Pahlavi.
101. He said that the third protest he attended was in [a venue] in early 2020. This was to protest for the Ukrainian International Airlines crash. He believed the Iranian Republic must be held responsible. He said that he attended the protest in passing, as the car park he found was limited to 15 minutes. Some of his friends were in attendance. There were about 100 people there.
102. The fourth protest he attended was in 2024 in Melbourne, with respect to the death of Reza Barati on Manus Island.
103. At the Tribunal hearing he was asked about the most recent protest he attended. He said that it was one or two years ago after the death of Mahsa Amini. He said following her death ‘there was a big movement internationally’. He went to one protest at [various locations]. The speakers spoke about changing the regime in the land, and how Ali Khamenei is a dictator. One of them was on his way to work, and he dropped in to support his people. The applicant was able to describe the logos and anti-Islamic slogans at the protest.
104. His recollection of the details of these protests is highly suggestive that he did attend these protests as claimed.
105. Thirdly, there are photographs of him attending protests and he noted that at the second protest he attended he was photographed and interviewed. He said that the interviewers and photographers ‘could have been connected to the Iranian regime’. He provided copies of a number of photographs, depicting him attending protests. In one of these photographs, he can clearly be identified holding a poster which states, ‘[deleted]’.
106. In sum, the Tribunal accepts that the applicant attended these protests, given the passion with which he spoke about his opposition to the Iranian government, the detail of recollection, as well as photographs and social media posts provided.
Has the applicant advocated for atheism and attended protests in Australia for reasons other than to bolster his refugee claim?
107. The Tribunal is satisfied that the applicant has become an atheist and discussed atheism with others because of his beliefs rather than to bolster his refugee claim. He has spoken with passion of the reasons for his atheism, and the Tribunal accepts these reasons. Furthermore, were he embracing a belief in order to bolster his claim, it is more likely that he would have continued to practise Christianity, given that there is some persecution of Christians in Iran.
108. The Tribunal is also satisfied that the applicant has attended protests in Australia for reasons other than to bolster his refugee claim. The Tribunal has accepted that he holds political convictions opposed to the Iranian regime, as demonstrated in his attendance at protests in Iran, protests in Australia, and posting on social media. He was able to describe these convictions at the Tribunal hearing.
Does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?
109. 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.[29]
[29] Section 5H(1) of the Act.
110. The next issue for consideration by the Tribunal is whether the applicant has a well‑founded fear of persecution for one of the reasons set out in the legislation.
111. The applicant has submitted that he has a well-founded fear of persecution for reasons of political opinion and religion, as well as his ethnicity as an Indian Iranian.
112. The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that 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, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned above; and
· the real chance of persecution relates to all areas of a receiving country.
Is there a real chance of serious harm if the applicant were to return to their home country?
113. The Tribunal has considered first whether there is a real chance that if the applicant returned to Iran he would be persecuted. Section 5J(4)(b) of the Act provides that the persecution must involve serious harm. The Tribunal must assess whether there is a real chance of serious harm in the reasonably foreseeable future.[30]
[30] Mok Gek Bouy v MILGEA (1993) 47 FCR 1 at 66; and MIEA v Wu Shan Liang (1996) 185 CLR 259 at 279 where the High Court referred with approval to the test that the Tribunal had applied in Chen Ru Mei v MIEA (1995) 58 FCR 96.
114. The applicant said that he fears prosecution, house arrest and imprisonment if he returns. He claims that he will be persecuted for reasons of his political opinion, imputed Christian religion and atheism, and his ethnicity as an Iranian Indian.
115. He believes that he will be targeted because of his prior involvement in the church, even though it was in 2013 and 2014, as they have his records and took his brother into custody after he left. He claims he will be persecuted for his political activities in Australia ‘fighting for rights and against the supreme leader who is considered God in the country’. He claims that there are severe consequences for speaking out against him, including the death penalty.
116. For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act, provides an objective element to that concept,[31] - not only must a person fear persecution, there must also be a prospect of that fear being realised.
[31] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, < The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far‑fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J of the Act that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[32]
[32] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p171.
118. The Tribunal accepts that there is a real chance of persecution for the following reasons.
119. Firstly, the applicant has demonstrated through attendance at protests in Iran and Australia, and by making social media posts, that he is strongly opposed to the Iranian regime and is likely to speak out against it if he returns to Iran. The applicant has claimed that he would attend protests and speak out against the abuses of the Iranian government. He said that, if he was to return to Iran, he would ‘stand up for my beliefs so that change can happen’. He said that ‘I would be the same person that I am here’. He said that he cannot control his emotions or ‘the words coming out of my mouth’. He has [social media] account which are public, so he can post about events because he wants everyone to know what the regime is doing.
120. Secondly, the applicant’s social media posts and attendance at protests in Australia may have come to the attention of the regime, or they may do so once he arrives in Iran as a returnee asylum seeker.
In the 2020 Statement, he said that he had attended multiple protests in Australia (discussed earlier in this decision). He has also publicly exhibited support for protests of the regime on social media. Examples of this were provided. The applicant has liked posts from Iran National Council, which is an umbrella organisation of exile groups opposed to the Iranian regime. He has also liked posts of the official site of Reza Pahlavi, and Iman Pahlavi, one of Reza Pahlavi’s daughters. The posts include caricatures of Iranian leaders, images from protests and anti-regime material.
122. In addition to the posts, there are photographs of the applicant attending the protests. In one of these photographs, he is [doing an action]. While it is not clear that these photographs are publicly available, there is the possibility that one or more of the photographs have been seen by Iranians monitoring the diaspora. The applicant has claimed that they have seen people from the Iranian embassy at protests and they are certain they are being monitored. Within Iran, the authorities monitor social media[33] such that it is likely there is some monitoring of people active in protests overseas.
[33] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020.
123. DFAT maintains that in general, authorities pay little attention to failed asylum seekers on return and social media is not actively investigated.[34] DFAT states that returnees are questioned at Tehran airport about the circumstances of their departure, and why they are travelling on a laissez-passer, which usually takes 30 minutes, but if the applicant is evasive or there is a criminal history, this may take longer. DFAT states that arrest is not common.[35]
[34] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 24 July 2023.
[35] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 24 July 2023.
124. By contrast, some reports highlight the interest taken by the Iranian authorities in returnees who have been politically active or are Christian converts. In February 2021, a representative of the Human Rights Activists News Agency (HRANA) stated that there had been multiple reports of dissidents being arrested upon their return and ‘even lured into returning to Iran’ to then be arrested.[36] The UK Home Office, in a report on Kurds, also provides some examples of failed asylum seekers being prosecuted and/or punished for political or other activities upon return; these appear to have obtained a profile whilst abroad or else had a criminal record in Iran before leaving.[37] A Belgian report referred to a Christian convert who was deported from Germany in 2019 and was arrested at the airport.[38] The Christian organisation, Open Doors. suggests that Iran uses informers in Western countries to monitor Christians and report to intelligence agencies.[39]
[36] IRB, 22 February 2021, ‘IRN200457. E – Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019–February 2021)’,< UK Home Office, ‘Country Policy and Information Notes – Kurds and Kurdish Political Groups’, May 2022, < Belgian Office of the Commissioner General for Refugees and Stateless Persons, ‘Treatment of Returnees by their national authorities’, 20 March 2020.
[39] Open Doors, ‘Iran: Full Country Dossier’, 1 December 2023.
125. While DFAT suggests little interest in returnees, there is no doubt that Iran sends agents to overseas countries and that political activists may be reported. The former Home Affairs Minister, Clare O’Neil, singled out Iran as an offending government in respect of foreign interference, revealing ASIO had disrupted an operation on Australian soil targeting an Australian‑Iranian critic of the regime.[40] An SBS news article refers to comments by Professor Dara Conduit, a Middle East Specialist at the University of Melbourne, who said that most foreign interference from Iran is centrally organised through official government bodies and the Islamic Revolutionary Guard Corps.[41]
[40] SBS News, ‘They tried many times to corrupt me, Australians speak out against foreign spies’, 29 February 2024.
[41] SBS News, ‘They tried many times to corrupt me’, Australians speak out against foreign spies’, 29 February 2024.
126. The Australian Federal Police in 2022 urged Iranians in Australia to report harassment or surveillance by Tehran authorities to the national security hotline, including monitoring of social media.[42] Iran International reported on concerns by the Australian government of espionage by Iran in Australia, and the targeting of Iranians living in Australia.[43]
[42] The Guardian, ‘AFP urges Iranians in Australia to report harassment by Tehran authorities as anti-government protests escalate’, 21 December 2022.
[43] Iran International, 17 January 2024, < Australia ‘Concerned’ By Iranian Espionage Activities | Iran International (iranintl.com)>.
127. Kylie Moore-Gilbert has claimed that there is fear in the Australian community due to the involvement of agents and informers in Australia recording protests, sending threatening messages and letting people know they are being watched.[44] The Immigration and Refugee Board of Canada reported, in February 2021:
[44] Sydney Morning Herald, ‘Iran cracks down on family of Australian protestors’, 16 January 2023, < asked whether Iran monitors overseas anti-government activities, the retired Professor[45] responded that Iran’s government "sends people as agents to other countries" (Retired Professor 25 Jan. 2021). The Assistant Professor[46] indicated that the government "will try to find [anti-government activists] inside and outside of the country" and that the intelligence agency will help gather information (Assistant Professor 23 Jan. 2021). The same source noted that Iran uses refugees to monitor other refugees outside of the country (Assistant Professor 23 Jan. 2021). A December 2019 Associated Press (AP) article reports that in December 2019 an Iraqi man was charged with spying and was sentenced to two and a half years in prison for collecting information about Iranian refugees in Sweden, Denmark, Belgium, and the Netherlands (AP 20 Dec. 2019).
[45] This refers to information provided to the Canadian Immigration and Refugee Board (IRB) on 25 January 2021 by ‘a retired professor at York University, who has published books and articles in English and Persian on the leftist movement in Iran, religious fundamentalism, secularism, multiculturalism, and the diaspora’: ‘IRN200457.E – Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019–February 2021)’, < 22 February 2021.
[46] This refers to information provided to the IRB on 23 January 2021 by ‘an assistant professor of political science at the University of Tennessee at Chattanooga, who studies authoritarian regimes with a focus on the Middle East and North Africa and has written about Iran’: ‘IRN200457.E – Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019–February 2021)’, < IRB, 22 February 2021.
The Assistant Professor explained that people are "forced and coerced into working with Iranian security authorities" and that authorities will use personal information to pressure them (Assistant Professor 23 Jan. 2021). The same source indicated that "sometimes" prisoners are promised that they will be released if they collaborate (Assistant Professor 23 Jan. 2021). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
The Assistant Professor also noted that Iran's government monitors political opponents abroad to find out about their activities (Assistant Professor 23 Jan. 2021). The same source noted that the authorities "usually focus on important people, but they are interested in any information that they can use to put pressure on people," such as information about a person's consumption of alcohol or romantic relationships (Assistant Professor 23 Jan. 2021). The retired Professor indicated that Iran's government spies on the opposition and Iranians abroad (Retired Professor 25 Jan. 2021).
The Assistant Professor stated that the authorities will "hack" for information on a "mid‑rank" activist and will monitor "an ordinary Iranian," "because any information is useful" (Assistant Professor 23 Jan. 2021). Based on a report by the cybersecurity company Check Point, a February 2021 article by Arab News, an English‑language newspaper published in Saudi Arabia (Arab News n.d.), reports that "Iran is running two surveillance operations in cyberspace, using various methods to spy on more than 1,000 dissidents" and that "[p]eople in Iran, the UK, the US and 10 other countries have been tracked by Iranian hackers" (Arab News 9 Feb. 2021).[47]
[47] Canadian Immigration and Refugee Board, 22 February 2021, ‘IRN200457.E – Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019-February 2021)’, In September 2022, protests erupted across Iran over the death of Mahsa Amini, a 22‑year‑old Kurd who had been detained for inappropriate dress which led to heightened interest in the diaspora, which organised protests globally. One report on the protests said that there had been unprecedented solidarity between Iranians in the diaspora and Iranians within the country.[48] According to one report, the ‘international community’ has become the ‘voice of the Iranian people in an unprecedented way, and by disseminating information and taking various actions, they have attention to what is going on in Iran’.[49] During the protests, Australian Iranians called on the Australian government to sanction the Iranian government[50] and to list the Islamic Revolutionary Guard Corps as a terrorist organisation and address Iranian government infiltration domestically.[51]
[48] Human Rights Activists News Agency, September/October 2022, < Human Rights Activists News Agency, September/October 2022, < The Australian, 11 November 2022, < The Australian, 11 November 2022, An SBS article in 2024 refers to the case of an Iranian Australian pro-democracy activist, who found a body of a decapitated chicken outside her front door.[52] That same week relatives in Iran were taken for questioning and asked if she liked the ‘surprise on her doorstep’. The article refers to members of the Iranian-Australian community who had told SBS News that incidents of foreign interference had rapidly escalated since the protests in Australia. According to activists the Iranian regime’s spy networks are strong and active and take multiple photographs openly at protests.
[52] SBS News, ‘They tried many times to corrupt me’, Australians speak out against foreign spies’, 29 February 2024.
130. In Australia the applicant has attended multiple protests over a number of years and has been photographed. He has also posted numerous posts about the protests as well as anti-regime material. He was adamant that the regime monitor Iranians who attend protests or make posts in Australia and said that they have identified embassy people at protests, and anyone could be a spy.
131. The applicant submitted that conditions are ‘very bad in Iran due to the war and Israeli attack’ and ‘everyone is monitored coming in and out’. He said that ‘social media activities, people not following Islamic rules, protests’ are all being monitored. He said that the Iranian government has facial detection cameras, and they can find you anywhere.
132. As set out above, it is widely reported that there has been recent monitoring of Australian Iranians who have been politically active. In this environment it is conceivable that the authorities would be observing returnee asylum seekers much more closely than they have in the past. As suggested by the applicant, it is also possible that, with recent events in Israel, there is heightened sensitivity at the borders.
133. The applicant has been in Australia since 2013, such that there may be particular interest in why he has been out of the country for so long. The UK Upper Tribunal (Immigration and Asylum Chamber) has said that returnees are interrogated upon return, including being questioned about asylum claims[53] which in the applicant’s case may lead to questioning about his political opinion and beliefs. The Danish Immigration Service report, citing an unnamed source from Elam Ministries, states that those who spent extended periods outside Iran are more likely to be suspected of spying upon return.[54]
[53] UK Upper Tribunal, PS (Christianity-risk) Iran CG [2020] UKUT 00046 (IAC).
[54] Danish Immigration Service and the Danish Refugee Council, ‘Iran: Christian converts and house churches (1) – prevalence and conditions for religious practise’, February 2018.
134. The applicant only attended a few protests in Iran and this was a long time ago but it is possible his activities in Australia have come to the attention of authorities, given the evidence of monitoring in Australia referred to above. If the applicant is questioned at the airport, which seems to be a standard procedure, it is likely his beliefs would be exposed as he finds it difficult not to express himself openly. On investigation, they may discover his social media posts if they have not seen them already.
135. Thirdly, independent sources confirm that the Iranian regime deals harshly with people who speak out against the government.
136. The monitoring in Australia does appear to have repercussions for the families of protestors in Iran. A 2023 report in the Sydney Morning Herald[55] quotes Iranian democracy protestors in Australia who claim family members have been arrested in retaliation for their actions. One protestor has said that his mother has been arrested and asked questions about her son in Australia. While the reports are unverified, they have been widely accepted by academics in Australia, including Kylie Moore-Gilbert, who said that she had heard direct reports from other Iranian Australians whose relatives had been harassed and questioned about them.[56]
[55] Sydney Morning Herald, ‘Iran cracks down on family of Australian protestors’, 16 January 2023, < Sydney Morning Herald, ‘Iran cracks down on family of Australian protestors’, 16 January 2023, < A Melbourne lawyer and anti-regime activist is also quoted in the article. He said that he had direct knowledge of six Australian Iranians whose relatives had been arrested or interrogated since the protest movement began.[57]
[57] Sydney Morning Herald, ‘Iran cracks down on family of Australian protestors’, 16 January 2023, < The article also refers to the head of Britain’s MI5 intelligence agency claiming recently that Iran was plotting to kill or kidnap 10 British residents.[58]
[58] Sydney Morning Herald, ‘Iran cracks down on family of Australian protestors’, 16 January 2023, < With reference to protests which took place following the Amini protests in Iran, the Special Rapporteur found in March 2024 that:
The suppression of protesters was not limited to their acts in public spaces. Beyond the use of force against protesters, the Government also sought to suppress their expression online, through monitoring and surveillance, as well as intimidation of defenders on social media, and through internet shutdowns. The Government sought to quell all avenues of dissent, including in the digital space.[59]
[59] Special Rapporteur, Human Rights Council,’ detailed findings of the independent international fact-finding mission on the Islamic Republic of Iran’, 19 March 2024.
140. According to the Human Rights Watch 2024 report, ‘scores of activists including human rights defenders, members of ethnic and religious minorities, and dissidents remain in prison on vague national security charges or are serving sentences after grossly unfair trials. Security forces’ impunity is rampant, with no government investigations into their use of excessive and lethal force, torture, sexual assault and other serious abuses.’[60] The report referred to the arrest of hundreds of activists.[61]
[60] Human Rights Watch, ‘Events of 2023 Iran’, 2024.
[61] Human Rights Watch, ‘Events of 2023 Iran’, 2024.
141. The Special Rapporteur in the February 2024 Report of the Human Rights Council stated that they were: ‘concerned by reports of continuing arbitrary arrests and the frequent use of torture or other cruel, inhuman or degrading treatment or punishment, including kicking, flogging and beating with batons and cables, prolonged solitary confinement, deliberate denial of health care, electric shocks and mock executions. In addition, psychological torture methods reported by victims include degrading insults and profanities, death and rape threats, and threats to harm the family members of detainees.’[62] The same report also referred to increasing limitations on rights to freedom of opinion and expression.[63]
[62] United Nations Human Rights Council, ‘Situation of Human Rights in the Islamic Republic of Iran’, 24 February 2024.
[63] United Nations Human Rights Council, ‘Situation of Human Rights in the Islamic Republic of Iran’, 24 February 2024.
142. Recent reports have emphasised the increase in executions in Iran. The Special Rapporteur said in the February 2024 Report that he remains deeply concerned at the spike in death penalty sentences and executions observed during the reporting period. According to information received, at least 834 people were executed in 2023, a 43 per cent increase compared to 2022, when at least 582 persons were executed.[64]
[64] United Nations Human Rights Council, ‘Situation of Human Rights in the Islamic Republic of Iran’, 24 February 2024.
143. Fourthly, there are other aspects of the applicant’s profile which may well compound the harsh treatment he receives in Iran. He is an atheist, has a Christian background and is half Indian. While secularism and atheism are widespread in Iran,[65] along with his Christian background, this may cause extra adverse treatment once he has come to the attention of authorities.[66]
[65] DFAT Country Information Report: Iran’, Department of Foreign Affairs and Trade, 24 July 2023, para 2.99; LSE Middle East Centre (United Kingdom), ‘The Revival of Nationalism and Secularism in Modern Iran’, November 2015, p. 5; Austrian Centre for Country of Origin and Asylum, ‘Iran: Treatment of atheists by State and non-State actors’, 12 June 2017, p. 2; Danish Immigration Service ‘Update on the situation for Christian Converts in Iran’, June 2014.
[66] See DFAT Country Information Report: Iran’, Department of Foreign Affairs and Trade, 24 July 2023 for treatment of atheists and Christians.
144. The applicant’s ethnicity may amplify any harm he will suffer. As discussed earlier in this decision, the applicant’s father was Indian. He said that his last name is ‘distinctively Indian’ and ‘this causes people to be suspicious of me and scrutinise me’. He said that he had often been stopped by police and had his papers inspected because of his heritage and appearance. He said that police suggested that his identification card might be fake or forged. He also said that he was harassed and bullied by authorities and private institutions, including offices and banks, because of his surname. He said ‘everything took much longer for me than it did for others’. He said that he had also been ridiculed and told he was an outsider. He said that his skin is a little darker than most Iranians, and he was criticised and called a spy.
The Tribunal questioned the applicant about how his brothers could live there safely as Indian Iranians and Christians. The applicant told the Tribunal that they live ‘under bad circumstances’ and have not attended church since he left. He said that they have wanted to leave the country. Asked if they speak out against the regime, he said that as far as he knows, they do not. He said that his brothers experience discrimination as half-Indians all the time but just ‘have to live with it’. The Tribunal notes that the applicant was employed and was able to travel (he travelled to India with his mother in 2009/2010 and also went to [Country 1] for a holiday in 2011). However, independent information does suggest that ethnic minorities suffer discrimination. The DFAT Report states:
Ethnic minorities report political and socioeconomic discrimination, particularly in relation to their ability to access economic aid, business licences, university admissions, job opportunities, permission to publish books in their languages, and housing and land rights. In-country sources report the Government suppresses minorities by permitting only Farsi and Shi'a Islam within their communities. DFAT is aware of reports that several minority groups have had the traditional names of their villages changed, land requisitioned, and community members forced to relocate. Ethnic minorities are rarely awarded senior government or military positions. DFAT assesses that members of ethnic minority groups face a moderate risk of official and societal discrimination, particularly where they are in the minority in the geographic area in which they reside. Discrimination may take the form of denial of access to employment and housing, however, is unlikely to include violence on the grounds of ethnicity alone.[67]
[67] DFAT Country Information Report: Iran’, Department of Foreign Affairs and Trade, 24 July 2023.
146. The applicant claimed that his Indian ethnicity would heighten the persecution against him, and the Tribunal accepts this, given information about the treatment of minorities and his evidence about his treatment in the past and that of his brothers.
147. In MIEA v Guo (1997) 191 CLR 559, the Court stated that 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. A fear of persecution is not well-founded if it is merely assumed or if is mere speculation.’
148. Considering all of the factors set out above cumulatively, the Tribunal is satisfied that the fear is well-founded in that there is a real substantial basis for it.[68] The Tribunal is satisfied that the applicant’s political activities in Australia, and future activities in Iran, will lead to adverse attention from the authorities, and possible arrest, violence and loss of liberty. The Tribunal is satisfied that the harm to him may be compounded by his atheist views (and prior Christian activity were this to be discovered) and his Indian ancestry. The Tribunal is satisfied that the applicant has a well-founded fear of persecution for his political opinion were he to return to Iran in the reasonably foreseeable future.
[68] See also Chan v MIEA (1989) 169 CLR 379.
Does the real chance of persecution relate to all areas of the receiving country?
149. The Tribunal has considered whether there is a real chance of persecution in the area of the receiving country in which the applicant will return or be returned.[69] As set out above, the Tribunal is satisfied that there is a real chance of persecution in Karaj and Tehran, which are the places he resided. However, s 5J(1)(c) of the Act requires consideration of whether the risk is localised to that particular area or exists elsewhere. Under s 5J(1)(c) of the Act, the real chance of persecution must relate to all areas of the relevant receiving country.
[69] CSO15 v MIBP (2018) 260 FCR 134 at [42].
150. At the Tribunal hearing the applicant said that he does not believe that he could move anywhere else in Iran, as the regime is ‘the same’ and they have recognition cameras set up everywhere.
151. As the applicant fears harm from the Iranian authorities, the Tribunal is satisfied that the persecution relates to all areas of Iran.
Is effective protection available?
152. Section 5J(2) of the Act provides that a person does not have a well-founded fear of persecution if effective protection is available. As the Iranian authorities are likely to be responsible for the harm, the Tribunal is not satisfied that effective protection would be available.
Could the applicant modify his behaviour?
153. Section 5J(3) of the Act provides that a person does not have a well-founded fear of persecution if they could take steps to modify their behaviour. The Tribunal accepts that should the applicant return to Iran, the applicant would wish to express his opinions openly, and that to renounce or cease to express his opinions, whether political or religious, in order to avoid harm from the Iranian authorities, would be an impermissible modification of his behaviour for the purposes of ss 5J(3)(a) and (c)(i) and (iii) of the Act.
Would the applicant face serious harm for the essential and significant reason of political opinion, and would the persecution involve systematic and discriminatory conduct?
The Tribunal is satisfied that the applicant faces a real chance of serious harm for the essential and significant reason of his political opinion. The Tribunal is satisfied that the harm would involve serious harm (s 5J(4)(b)) as it is described in s 5J(5) of the Act, as it is likely to involve deprivation of liberty or physical ill-treatment. The Tribunal is satisfied, given the conduct of the regime in recent years towards political opponents, that the harm would involve systematic and discriminatory conduct (s 5J(4)(c) of the Act).
Does the applicant have a right to enter and reside in a third country?
155. The Tribunal is satisfied that the applicant does not have a right to enter and reside in India. Reasons for this were provided earlier in this decision. There is no information before the Tribunal that the applicant has the right to enter and reside in any other third country.
Finding
156. 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.
DECISION
157. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies36(2)(a) of the Act.
ATTACHMENT A - 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.
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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.
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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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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Citations2018349 (refugee) [2024] ARTA 702
Cases Citing This Decision0
Cases Cited9
Statutory Material Cited0
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317Minister for Immigration and Citizenship v SZRKT [2013] FCA 317Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22