2100656 (Refugee)

Case [2024] AATA 3671

2100656 (Refugee) [2024] AATA 3671 (19 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Israa AL-TAEE

CASE NUMBER:  2100656

COUNTRY OF REFERENCE:                   Iran

MEMBER:Catherine Wall

DATE:19 September 2024

PLACE OF DECISION:  Melbourne

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 19 September 2024 at 3:10pm

CATCHWORDS

REFUGEE – protection visa – Iran – political opinion – anti-government protests – rejection of Islam – extramarital relationship – murder of family member – detention – physical assault – anti-government social media activity – political activities in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5AA, 5H, 5J – 5LA, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2

CASES

DBB16 v MIBP (2018) 260 FCR 447
Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MICMSMA v CBW20 [2021] FCAFC 63
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347 at 348

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 11 January 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The applicant claims to be a citizen of Iran. According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] January 2013.  In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.

  3. The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 10 July 2013. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.

  4. The applicant applied for a Safe Haven Enterprise visa on 11 May 2016 (the…

Continue reading 2100656 (Refugee)

Sign in free to access the full text

Details
AGLC
2100656 (Refugee) [2024] AATA 3671
Case
[2024] AATA 3671
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an Iranian national. The applicant claimed to have participated in anti-government protests in Iran, been detained and tortured, and that his brother was murdered by authorities. He also stated he had ceased practising Islam and was in a de facto relationship, which would make him a criminal in Iran. The applicant sought review of a decision made by the Administrative Appeals Tribunal.

The primary legal issue before the court was whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth), which requires the applicant to be a refugee. This involved assessing whether the applicant had a well-founded fear of persecution for reasons of political opinion, religion, or membership of a particular social group, and whether Australia had protection obligations towards him.

The court acknowledged the difficulties asylum seekers face and the need for a reasonable approach to credibility assessments, noting that the benefit of the doubt should be given to generally credible applicants unable to substantiate all claims. However, it also stated that applicants' allegations are not to be accepted uncritically, nor is rebutting evidence always required before a factual assertion can be found not made out. The court found that the applicant's identity as an Iranian national was established, despite a discrepancy in his date of birth.

Ultimately, the court determined that the matter should be remitted for reconsideration. The Tribunal was directed to proceed on the basis that the applicant satisfies section 36(2)(a) of the *Migration Act 1958* (Cth), meaning Australia has protection obligations towards him as a refugee.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The applicant appeared before the Tribunal on 10 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, [Partner A] and the applicant’s friends, [Friend A] and [Friend B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant was represented in relation to the review and the representative attended the hearing.CLAIMS AND EVIDENCE In the visa application the applicant made the following claims:He was opposed to the lack of freedom and human rights in Iran and used to participate in anti-government protests. [In] June 2009 he and his brother joined a post-election demonstration in Tehran. They were arrested and he was detained for [number] days, during which time he was beaten by a baton to his head and tight handcuffs scared his hand. He described this as psychological torture. He was released without his brother. After one month the authorities informed his family that they could collect his brother’s dead body. He said that his brother was murdered by the police.After his brother’s death he was motivated to continue protests against the government. Prior to the elections in June 2013 he was involved in demonstrations organised by the opposition. He wanted to expose the inhumane aspects of the Islamic Republic to the world. During protests on [dates in] May 2013 two of his friends were arrested. He managed to escape and was so fearful of capture by the authorities that he decided to leave the country.Since living in Australia he has participated in numerous protests and events to promote regime change in Iran. He believes that his activities in Australia are being monitored by the Iranian authorities and he would be blacklisted upon return to Iran. Although he was raised as a Shia Muslim, he stopped practising when he was a young adult in Iran. He no longer has a religion. He is in a de facto relationship and his partner is pregnant with their first child. He will be considered a criminal in Iran for having a sexual relationship outside marriage.Evidence to the Tribunal The applicant told the Tribunal that he grew up in Tehran with his parents and two brothers, [named]. He and his family were Shi’a Muslims. His father owned a [specified] business in Tehran. As a young person he became increasingly concerned about the Iranian regime which denied people human rights. In 2009 he and his brother [Brother A] participated in a protest against the government. They were both arrested and detained. The applicant was interrogated and beaten over a period of [number] days. He was released however his younger brother was kept in prison. After one month his family was advised to collect his brother’s body. The applicant said that his brother was murdered by the authorities. His family was not allowed to hold any mourning event and they were told not to publicise the killing of his brother. As a condition of his release the applicant was required to report regularly to the police station. Despite this requirement and his brother’s death, the applicant continued to participate in political protests, although he was not a member of any particular organisation and did not align with opposition parties. In 2012 he and two friends participated in a protest leading up to the 2013 elections. His friends were arrested however he managed to escape. He was very scared and decided to leave the country for safety. He took a flight to Indonesia and paid people smugglers for travel on a boat to Australia.

Decision

Reasons for decision

For the reasons given about is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.Catherine WallMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant satisfies the criteria for a protection visa. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Identity The applicant arrived in Australia without travel documents. He claimed to be a citizen of Iran. He subsequently submitted translated copies of his birth certificate and Iranian Identity Card, both identifying him as [the applicant’s name], born on [DOB 1]. The delegate did not indicate any concerns about the applicant’s identity or nationality, however there were concerns about inconsistencies in his date of birth as Department records state his date of birth as [DOB 2 in the same year]. The applicant claimed that this error happened during his entry interview. As a result the applicant’s date of birth in the delegate’s decision and his date of birth in the review applicant are different. Despite this discrepancy, I am satisfied that the applicant is a national of Iran and I have assessed his claims against Iran as his receiving country.Does the applicant meet the refugee criteria? The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[1] It is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to applicants who are generally credible but unable to substantiate all of their claims. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[2][1] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court).[2] See Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547