2102294 (Refugee)
[2024] AATA 4422
•24 September 2024
2102294 (Refugee) [2024] AATA 4422 (24 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Carina Ford
CASE NUMBER: 2102294
COUNTRY OF REFERENCE: Iran
MEMBER:Adrienne Anderson
DATE:24 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 24 September 2024 at 2:44pm
CATCHWORDS
REFUGEE – protection visa – Iran – arrival by sea – not unauthorised maritime arrival or fast-track applicant as defined and statutory bar does not apply – ethnicity, religion and political opinion – Kurdish and Sunni Muslim – brother killed while fighting for separatist militia, and applicant assisted militia members on one occasion – house damaged and mother beaten by authorities – lawful departure via major airport – protest and community activities in Australia – country information – returnee on temporary documents after long residence likely to be questioned – high risk of detention and violence – wife and children Australian citizens – decision made without hearing necessary – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), (3), (4)(b), (c), (5), 5LA, 36(2)(a), 65, 91K, 425(2)(a)
Migration Regulations 1994 (Cth), Schedule 2CASES
Applicant NABD of 2002 v MIMIA [2005] FCA 29 at [35]
Chan Yee Kin v MIEA (1989) 169 CLR 379
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
MZZEO v MIBP [2013] FCCA 1570
W352 v MIMA [2002] FCA 398
WAFH v MIMIA [2002] FCAFC 429Any 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
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Iran, applied for the visa on 21 August 2020. The delegate refused to grant the visa on 16 February 2021. The applicant was represented in relation to the review.
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.
The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 7 May 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. Therefore, the application for a Safe Haven Enterprise visa is not subject to the s 91K bar and the applicant made a valid application for review on 21 August 2020.
In reaching its decision on this application the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 425(2)(a) of the Act.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has reviewed the documentary evidence and material before it, which includes the applicant’s statutory declaration and submissions to the delegate, identity documents pertaining to the applicant and his children, and photographs of the applicant participating in various Kurdish community events in Australia. It has also listened to the audio recording of the protection visa interview with the departmental delegate.
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds or is a member of the same family unit as such a person and that person holds a protection visa of the same class. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Country of nationality
Departmental records indicate that the applicant arrived by boat [in] January 2013 without a valid travel document. The delegate’s decision records that the applicant’s Iranian passport was confiscated by people smugglers on route to Australia. The applicant has consistently identified himself as [the applicant], born [Date] in [Village], Urmia, West Azerbaijan Province in Iran.
The applicant provided translated copies of his Iranian national identity card and his Iranian birth certificate to the Department. The delegate accepted the applicant’s identity as stated and that the applicant is a national of Iran. The Tribunal accepts that the applicant is a citizen of Iran and has assessed his claims against Iran as the country of nationality and the receiving country.
The applicant’s personal background
The applicant is a [Age]-year-old man from Urmia, Iran. He is married with [children]. His wife and children are Australian citizens.
The applicant’s father is deceased; his mother remains living in Urmia. The applicant has [siblings]. One brother is deceased; another resides in [Country 1]. The applicant’s other siblings reside in Urmia, Iran.
The applicant completed primary school in Iran and worked as a manufacturer of [products]. In Australia he works as [an occupation].
The applicant’s claims for protection
In summary, the applicant claims to fear harm from the Iranian authorities on return to Iran because he is suspected of cooperating with the Party of Free Life in Kurdistan (PJAK).
In his visa application, the applicant stated that he is a Sunni Muslim Kurd. He stated that one of his brothers, [Mr A], left Urmia for [Country 2] in 2002. Because the applicant and his family lost contact with [Mr A] in 2003, the applicant visited [Location 1] in [Country 2] to look for him. The applicant discovered that [Mr A] had lied about finding work there and could not find him. The family subsequently found out from [Mr A] that he had joined PJAK. The government authorities became aware of [Mr A]’s membership of PJAK and visited the applicant’s home asking for information about [Mr A]. They damaged the house and beat the applicant’s mother. The applicant was not home at the time. With the help of PJAK members, the applicant’s mother later visited [Mr A] in [Country 2].
The applicant claimed that in 2012, three members of PJAK visited the applicant’s home seeking transport. The applicant gave them a lift to the outskirts of Urmia. The following day, the applicant heard that the PJAK members had been caught by the authorities. Two of them had been killed and the third was captured. The applicant immediately knew he was in danger and hid in farms and forests near his house for approximately a week before he returned home. Shortly afterwards, government forces came to the applicant’s home asking for him. The applicant answered the door and pretended that he was not who the authorities were looking for. He was able to escape and fled Iran a few days later.
The applicant claimed that in Australia he had continued supporting the Kurdish community and had participated in community meetings, Kurdish events and public gatherings in support of Kurdish people and rights.
The applicant provided the following in support of this aspect of his claims:
a.Photograph of the applicant at a rally supporting Kurdish fighters against ISIS in [Location 2] in 2017;
b.Photograph of the applicant and his sister in front of a memorial to his brother [Mr A] at a Kurdish community centre;
c.Three photographs of the applicant and his wife at Kurdish community celebrations for Nouruz in 2018; and
d.Letter of support from [Mr B], Co-Chair of the [Organisation], stating that the applicant is an active member of the centre working voluntarily with the community.
In post-interview submissions responding to concerns put by the delegate at interview, the applicant provided, through his representative at the time, further information about his ability to depart Iran through the Imam Khomeini airport in Tehran and why he was personally at risk from the Iranian authorities. The applicant also stated that he supported and believed in the Kurdish nation achieving freedom in all four zones of Kurdistan (Iran, Turkey, Iraq and Syria) and that he had been active in promoting this belief and condemning the four government’s treatment of Kurdish people through his participation in the Kurdish-Australian community and social media posts.
In his decision, the delegate accepted that the applicant is a Sunni Muslim Kurd and that he participates in community meetings, Kurdish events, and public gatherings in Australia in support of the Kurdish community and against the violation of Kurdish rights and freedoms. The delegate also accepted that the applicant’s brother was a member of PJAK and that he was killed in battle in 2016. The delegate accepted the applicant went to [Country 2] in 2003 and that his mother was later assisted by PJAK members to visit [Mr A] in [Country 2].
Additionally, the delegate accepted that the Iranian authorities had ransacked the applicant’s house and beaten his mother when they had questioned her about [Mr A] and his location. Finally, the delegate accepted that in 2012 the applicant had been requested to provide assistance to PJAK and that he had done so through providing transport to three of its members.
The delegate cited country information indicating that Kurds who publicly assert cultural or political rights have an increased risk of coming to the attention of the government and face a high risk of official harassment, monitoring, imprisonment and mistreatment. The delegate also cited information on the disproportionate percentage of political prisoners who are Kurdish as well as the disproportionate targeting of people in Kurdish regions following large-scale protests in Iran.
However, the delegate did not accept that the authorities came to the applicant’s house looking for him or that the applicant was able to escape them and depart Iran. The delegate found the applicant’s evidence on this point to lack detail and found his escape implausible given country information on the difficulties faced by Iranian nationals of interest to the authorities in departing Iran legally through Imam Khomeini airport.
The delegate assessed the applicant’s risk of harm as a Sunni Muslim, finding that despite discrimination against Sunni Muslims, the applicant would not be denied employment or otherwise experience ‘serious harm’ as defined in s 5J(4)(b) of the Act. In respect of the applicant’s risk in relation to his association with PJAK and the Kurdish community, the delegate found that the applicant did not face a real chance or real risk of serious or significant harm. This was because he considered that the applicant did not hold a significant profile with the Iranian authorities and because the applicant’s family had not been subjected to harm since the applicant’s departure from Iran, despite having the same association with [Mr A] as the applicant. The delegate accepted that the applicant’s family had been questioned about the applicant’s whereabouts and about [Mr A] but found that this did not amount to serious harm. Accordingly, the delegate found that the applicant would not face serious or significant harm on return to Iran.
The Tribunal notes the delegate’s concern that the applicant gave vague evidence in respect of the circumstances leading to his departure from Iran in 2012, namely that the authorities were pursuing him. However, it does not necessarily share those concerns. The Tribunal has had the benefit of listening to the audio recording of the interview and notes that there were acknowledged difficulties in finding an interpreter who spoke the applicant’s dialect and who could adequately communicate with the applicant. The Tribunal notes that four different interpreters were used during the interview and that because a suitable interpreter could not be found the applicant had to provide further evidence in writing after the interview. During the point of the interview where the applicant was asked questions about the 2012 visit from the authorities the interpreter stated that she could not understand the applicant’s evidence because of the [dialect] he was speaking. The applicant then gave his evidence in English, a language in which he is not fluent. He explained to the delegate that he could not explain everything well in English.
If the Tribunal deemed it necessary to evaluate the credibility of this aspect of the claims, in these circumstances it would exercise considerable caution in making an adverse finding based on a lack of detail. However, the Tribunal does not consider it necessary to address this aspect of the applicant’s claims because, for the reasons discussed below, it is satisfied that the applicant faces a real chance of serious harm on return to Iran even in the absence of adverse attention from the authorities towards the applicant immediately prior to his departure.
Below, the Tribunal has assessed the applicant’s risk on the basis of the following accepted circumstances:
·The applicant is a Sunni Kurd;
·The applicant’s brother [Mr A] was a member of PJAK and was killed in battle with ISIS forces in [Country 2] in 2016;
·The applicant travelled to [Country 2] ([Country 2] Kurdistan) in 2003 to search for his brother;
·The applicant’s mother was escorted by members of PJAK to visit [Mr A] in Iraq;
·The applicant’s house was ransacked, and his mother was beaten by Iranian authorities when being questioned about [Mr A]’s involvement with PJAK;
·The applicant assisted three members of PJAK in 2012;
·The applicant has been in Australia since 2013 and does not hold valid travel documents for return to Iran;
·The applicant has participated in Kurdish community events in Australia including commemorating his brother and celebrating Nouruz (Kurdish New Year);
·The applicant has participated in gatherings in Australia to show support for Kurdish people and opposition to violations of their rights;
·The applicant holds beliefs in support of Kurdish rights and against the Iranian regime.
Risk of harm on return to Iran
In assessing the applicant’s claims to fear harm in Iran, the Tribunal must consider the risk of harm to the applicant in the reasonably foreseeable future. This assessment is a forward-looking test. The criterion in s 5J(1)(a) contains a subjective requirement that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50%: Chan Yee Kin v MIEA (1989) 169 CLR 379.
As indicated above, the Tribunal is satisfied that the applicant faces a real chance of harm on return to Iran, either now or in the reasonably foreseeable future. Central to this assessment is the independent country information discussed below which suggests that Kurdish people are ordinarily subject to heightened scrutiny and questioning by the authorities, that even low-level political and Kurdish cultural activities are viewed with deep suspicion and met with harsh and disproportionate punishment, and that since the 2022 protests there has been a further crackdown on the expression of Kurdish culture and beliefs in support of Kurdish rights or against the violation of such rights by the Iranian regime.
Country information relating to 2023 indicates an increasingly restrictive human rights environment in Iran. The US Department of State (US DOS) reports that a total of 798 citizens were executed during 2023, marking a 37 percent increase from 2022.[1] According to US DOS, while some political prisoners, including approximately 22,000 persons detained in connection with the 2022-23 protests, were released from prison in February as part of a general amnesty, many were later rearrested.[2]
[1] United States Department of State (US DOS), Country Reports on Human Rights Practices for 2023 – Iran (20 April 2024).
[2] Ibid.
In relation to Kurdish people in particular, arbitrary arrest, enforced disappearance and unfair trials, including those resulting in the death penalty, have been credibly alleged. According to a 2023 report by the UN Special Rapporteur on Human Rights in Iran (the Special Rapporteur), ethnic and religious minorities have increasingly been arbitrarily arrested and detained in connection with peaceful activities, organizing or taking part in protests, being affiliated with opposition parties, or simply participating in religious or cultural activities.[3] The Special Rapporteur also noted in 2022 that between 1 January and 15 May 2022, at least 223 Kurdish individuals had been arrested, most charged with cooperation with Kurdish political parties.[4] In June 2023, the UN Commissioner for Human Rights reported that death sentences relating to Kurds appeared disproportionate relative to the general population.[5] According to the UN Secretary-General, between January and June 2023, the government of Iran executed 14 Kurds.[6]
[3] UN General Assembly, Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran, Javaid Rehman, A/78/326 (24 August 2023) [38].
[4] UN General Assembly, Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran, Javaid Rehman, A/77/181 (18 July 2022) [51].
[5] UN Secretary General, Situation of human rights in the Islamic Republic of Iran, A/HRC/53/23, (15 June 2023) [49].
[6] Ibid.
A 2020 report by the Danish Immigration Service (DIS) states that the level of monitoring in majority Kurdish areas is higher than the average level of monitoring elsewhere in the country and the risk of being monitored increases if an individual engages in any sort of activism.[7] The same report states that monitoring of individuals dates back a long time and that an individual’s activities from years or even decades earlier can be brought forward upon an individual’s arrest.[8]
[7] Danish Immigration Service (DIS), Iranian Kurds: Consequences of political activities in Iran and KRI (February 2020) 20.
[8] Ibid 22.
DFAT assesses that there is a pattern of arbitrary arrest, detention and/or killing of Kurds such that there is a high risk of official discrimination and violence.[9] While DFAT notes that it can be difficult to assess the circumstances leading to such treatment in individual cases, there is a higher risk for people involved in insurgent activity of coming to the attention of the authorities.[10]
[9] Department of Foreign Affairs and Trade (DFAT), Country Information Report Iran (24 July 2023) [2.57].
[10] Ibid.
It is widely accepted that attention and pressure on Iranian Kurdish parties and those suspected of involvement intensified in the wake of protests arising from the death of Mahsa Amini, a Kurdish woman, while she was in the custody of Iran’s morality police.[11] At least 537 people were killed during the mass protests, largely at the hands of security forces, and severe sentences, including the death penalty, were imposed on many involved. Following Amini’s death, Iranian Kurdish parties called for a general strike, allowing the Iranian authorities to frame the protests as rooted in Kurdish separatism.[12] This led to a particularly harsh response to protestors by security forces in majority Kurdish areas.[13] According to a 2024 report by DIS, during the 2022 protests Kurds were disproportionately targeted by the Islamic Republic, including for arrest, torture, and execution.[14]
[11] Ibid [2.56]. See also UN Secretary General, Situation of human rights in the Islamic Republic of Iran, A/HRC/53/23, (15 June 2023) [6], [49].
[12] DIS, Iranian Kurds in the Kurdistan Region of Iraq (25 June 2024) 10-11.
[13] DFAT, Country Information Report Iran (24 July 2023) [2.107].
[14] DIS, Iranian Kurds in the Kurdistan Region of Iraq (25 June 2024) 10-11.
The Tribunal does not consider the experience of the applicant’s mother and siblings who have remained living in Urmia to be indicative of the risk to the applicant in this case, which, as explained above, must be assessed on a forward-looking basis. In that light, the Tribunal does not consider the circumstances of any of the applicant’s family members comparable to those of the applicant, who would have to return to Iran on a temporary travel document after an extended period in Australia. Nor have the applicant’s relatives in Urmia in fact provided support to PJAK or engaged in any pro-Kurdish activities and are thus less likely to be suspected of having the same level of knowledge, commitment and involvement in PJAK and/or pro-Kurdish activities as that which the applicant may be imputed with upon return to Iran.
In relation to returnees, including failed asylum-seekers, the DFAT report states that:
In general, authorities pay little attention to failed asylum seekers on their return to Iran. DFAT
understands their actions (including social media posts about sur place activities) are not routinely investigated by authorities. Iranians with a public profile in Australia (or elsewhere) may have activities visible on social media tracked by the Iranian government. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept many will seek to live and work overseas for economic reasons.[15][15] DFAT, Country Information Report Iran (24 July 2023) [2.203].
For those returning on temporary travel documents, DFAT further advises:
Those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are traveling on a laissez-passer. Questioning usually takes between 30 minutes and one hour, however may take longer if the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history on the part of the returnee. Arrest and mistreatment are not common during this process.[16]
[16] Ibid.
DFAT concludes that unless returnees were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination.[17]
[17] Ibid [2.204].
However, the above advice in the DFAT report relates to returnees generally and does not address the situation for Kurdish returnees. The Tribunal is mindful that the courts have held that where there is evidence that members of a group ‘generally’ are not persecuted, it would be wrong to draw a conclusion about whether a particular applicant will be persecuted without paying close attention to the effect of the qualification provided by the word ‘generally’.[18]
[18] Applicant NABD of 2002 v MIMIA [2005] FCA 29 at [35].
Moreover, the Tribunal must assess the applicant’s risk in all of his circumstances;[19] it is not appropriate to deal with aspects of the applicant’s risk profile in isolation. In the Tribunal’s view, in the applicant’s case it must consider the situation for returnees in light of the broader context applying to Kurds, which as explained above, includes an assessment by DFAT that there is enough evidence to conclude a pattern of arbitrary arrest, detention and/or killing of Kurds and that Kurds face a high risk of official discrimination and violence.[20]
[19] See eg WAFH v MIMIA [2002] FCAFC 429 at [50]; W352 v MIMA [2002] FCA 398 at [21]; MZZEO v MIBP [2013] FCCA 1570 at [28].
[20] DFAT, Country Information Report Iran (24 July 2023) [2.57].
The treatment of Kurdish failed asylum-seekers was considered by the UK Upper Tribunal in HB (Kurds) Iran CG.[21] In that case, upon examining the expert evidence, the Upper Tribunal found that increasing sensitivity to Kurdish political activity on the part of the authorities was a relevant factor in considering the risk for Kurdish asylum-seekers returning to Iran. The Upper Tribunal noted that:
since 2016 the Iranian authorities have become increasingly suspicious of and sensitive to Kurdish political activity. Those of Kurdish ethnicity are thus regarded with even greater suspicion and are reasonably likely to be subjected to heightened scrutiny…
The evidence also indicates that the Iranian authorities demonstrate what could be described as a ‘hair-trigger’ approach to those suspected of or perceived to be involved in Kurdish political activities or support for Kurdish rights. By ‘hair-trigger’ we mean that the threshold for suspicion is low and the reaction of the authorities is reasonably likely to be extreme.[22]
[21] HB (Kurds) Iran CG [2018] UKUT 00403 (IAC).
[22] Ibid [94]-[95], emphasis added.
Other sources also describe the heightened suspicion with which all Kurdish activities are viewed. The 2020 DIS report contains the observations of academic researcher Hemn Seyedi that:
[o]ver the last four decades the Iranian Government has enforced strict security on the Kurdish region of Iran. Any activity in this region has been seen through a security lens; even civil and cultural activities have been interpreted as political and individuals conducting civil or cultural activities are given the same punishment. Many people in Iran and in particular in the Kurdish region of Iran were arrested and have been sentenced for cultural activities, as well as for environmental activities, in more recent times. The Kurdish question in Iran is broadly linked to the security status of the country.[23]
[23] DIS, Iranian Kurds: Consequences of political activities in Iran and KRI (February 2020) 76-77.
An example analogous to leaving Iran and/or claiming asylum abroad arises in the context of Kurds refusing or deserting their military service obligations. A report of the European Union Agency for Asylum notes that if Kurds evade their obligations they are readily suspected of opposition to the regime and consequently vulnerable to being treated much more severely by the authorities than any other Iranian who evades their service.[24] This is because the Iranian state views Kurdish desertion ‘as a sign of disloyalty and distrust to the state’.[25]
[24] European Union Agency for Asylum (EUAA), Iran - Country Focus (June 2024) 75.
[25] Ibid.
In the English case of HB, mentioned above, the Upper Tribunal noted that while there was an absence of direct evidence before them of the treatment of Kurdish returnees, it was clear that a returnee not in possession of a valid passport was likely to be questioned on return.[26] While the Upper Tribunal did not consider that being of Kurdish ethnicity alone gave rise to a risk of persecution for those returning,[27] it found that Kurdish ethnicity in combination with other factors may create such a risk.[28] These other factors included residing in the KRI,[29] being involved in Kurdish political groups, even at a low-level,[30] expressing peaceful dissent or support for Kurdish rights, and engaging in social welfare and charitable activities on behalf of Kurds.[31] The Upper Tribunal considered that involvement with any organised activity on behalf of or in support of Kurds can be perceived as political and therefore give rise to a risk of adverse attention by the Iranian authorities on return.[32]
[26] HB (Kurds) Iran CG [2018] UKUT 00403 (IAC) [97].
[27] Ibid [98](4).
[28] Ibid [98](5).
[29] Ibid [98](6).
[30] Ibid [98](7),(9).
[31] Ibid [98](8).
[32] Ibid.
Consistently with the DFAT report, the Tribunal accepts that the applicant will be detained and/or questioned upon arrival in Iran. The Tribunal also accepts that as a Kurd who has spent time overseas and who had a brother in PJAK, the applicant will likely be subject to particular scrutiny and a longer than usual questioning process. Given the documented disproportionately harsh treatment of Kurds by the Iranian authorities, the Tribunal finds that this heightened scrutiny could expose the applicant to serious harm including detention and/or significant physical mistreatment, particularly if the applicant’s past assistance for PJAK and continuing broad support for Kurdish rights is discovered through this process.
Even if the applicant is permitted to return to his home area of Urmia following the ordinary airport process, the Tribunal finds, as accepted by the delegate, that there is a real chance that the applicant will subsequently be subject to repeated questioning from the Iranian authorities in Urmia. The Tribunal notes that the delegate did not consider such treatment to amount to serious harm. However, the Tribunal has considered this question in light of the worsening situation for Kurds who are suspected of political activities or association with Kurdish parties since 2022.
The Tribunal notes that Australian courts have held that brief periods of detention and questioning may fall within the description of physical harassment, with the question of whether it is significant physical harassment, and therefore serious harm, being one of fact and degree.[33] Considering the totality of the applicant’s circumstances, and the current environment in majority Kurdish areas such as Urmia, the Tribunal considers there to be a real chance that the applicant will be subjected to questioning so frequent and intense, and treatment so serious from the authorities, that it would amount to significant physical harassment or harm, and/or threats to the applicant’s life or liberty as contemplated by s 5J(5).
[33] MIBP v WZAPN (2015) 254 CLR 610 at [51].
The Tribunal finds, for the purposes of s 5J(1)(a), that the essential and significant reasons for the harm feared are the applicant’s actual or imputed political opinion and his Kurdish ethnicity.
The feared harm involves systematic and discriminatory conduct, as required by s 5J(4)(c) in that it is deliberate and involves his selective harassment for reason of his actual or imputed political opinion and his Kurdish ethnicity.
The Tribunal is therefore satisfied, when considering the applicant’s cumulative profile, that there is a real chance he will face serious harm from the Iranian authorities if he returns to Iran, either now or in the reasonably foreseeable future.
As the Iranian government is the perpetrator of the harm feared by the applicant, and it maintains effective control throughout the country, the Tribunal finds that the real chance of persecution relates to all areas of Iran as required by s 5J(1)(c).
The Tribunal also finds, for the same reason, that effective state protection will not be available to the applicant for the purposes of s 5LA(2).
The Tribunal accepts that the applicant’s political opinion is fundamental to his identity and conscience and that his Kurdish ethnicity is an innate and immutable characteristic. Pursuant to s 5J(3) of the Act he cannot be required to modify his behaviour to avoid a risk of persecution where to do so would require him to alter or conceal these characteristics.
Accordingly the Tribunal accepts that the applicant has a well-founded fear of persecution in Iran for reason of his political opinion and Kurdish ethnicity. It follows that he meets the definition of a ‘refugee’ in s 5H of the Act.
CONCLUSIONS
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).
There is no evidence to suggest that the applicant has any right to enter and reside in a third country and the Tribunal finds that s 36(3) does not apply in the applicant’s circumstances.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Adrienne Anderson
MemberATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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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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