2104954 (Refugee) - [2025] ARTA 853

2104954 (REFUGEE) [2025] ARTA 853 (25 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2104954
Tribunal:General Member Genevieve Hamilton
Date:25 March 2025

Place:Melbourne
Decision:The Tribunal affirms the decision under review.

General Member G Hamilton

Statement made on 25 March 2025 at 2:53 pm
CATCHWORDS
REFUGEE – protection visa – Iran – arrival by boat – statutory bar and later court decisions – two applications both valid – religion and political opinion – apostate from Islam and returned failed asylum seeker – mistreatment during military service – threat to be sent to another country to fight there – stabbing not linked to fear of future harm – summoned to court because of relationship with married woman – unlawful departure – family harassed and monitored – country information – inconsistent claims and evidence and unpersuasive explanations – no public renunciation of Islam – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 46A(1), 48A, 65(1), 91K
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
DBB16 v MIBP (2018) 260 FCR 447
MIAC v SZQRB [2013] FCAFC 33
MICMSMA v CBW20 [2021] FCAFC 63
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
BACKGROUND

This is a 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 arrived in Australian at [Location] by boat without a visa [in] May 2013. On 13 June 2013 he was granted a short temporary Class UJ Subclass 499 (Humanitarian Stay) visa and associated a Class WE Subclass 050 Bridging Visa E. 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.
The Minister lifted the s s46A(1) bar to permit the applicant, as an unauthorised maritime arrival, to apply for a further protection visa. The applicant lodged a protection visa application in July 2017 (the first application). This application is undecided.
Subsequent jurisprudence inadvertently caused confusion about the validity of the application. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at [Location] during the period the applicant arrived, was not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)). The Department notified the applicant that his application was therefore invalid due to s91K because he had failed to leave Australia after his subclass 449 visa ceased. The bar was purportedly lifted, and the applicant invited to apply for another protection visa.
The applicant lodged another protection application on 25 August 2020 (the second application).
However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K did not apply to a person who arrived in Australia by sea at [Location] because the subclass 449 visa itself was invalid, [Location] at the time not being properly excised and therefore not offshore. The first application was therefore valid. The second application was also valid, as the first application was not decided (i.e. there was no prior visa refusal) and therefore not prevented by s 48A).
The delegate refused to grant the visa on 24 March 2021. The decision was lodged with the review application.
The applicant attended a hearing of the Tribunal. 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. The representative attended the Tribunal hearing.
CRITERIA FOR PROTECTION VISA
Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.
The criteria for a protection visa are relevantly set out in s 36 of the Act. An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person.
Under s 36(3) Australia does not have protection obligatio5 ns to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.
Refugee
Refugee is defined in the Act. A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).
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.
One or more of the above-listed reasons must be the essential and significant reason or reasons for the persecution: s 5J(4)(a). Further, the persecution must involve systematic and discriminatory conduct: ss 5J(4)(b), (c).
The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also 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: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).
A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA). A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation).
In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).
Complementary Protection
If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm. S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment. “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.
Arbitrary deprivation of life and the death penalty carry their ordinary meanings. Torture and cruel or inhuman treatment or punishment both involve intentionally causing severe pain or suffering, whether physical or mental. Degrading treatment or punishment is defined as intentionally causing extreme humiliation.
Under s 36(2B) Australia does not have complementary protection obligations where:
·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;
·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or
·the risk is one faced by the population of the country generally and not by the applicant personally.
CLAIMS AND EVIDENCE
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.
The applicant arrived in Australia by boat and was interviewed in May 2013. At the beginning of the interview he was cautioned that the interview was his opportunity to give reasons why he should not be removed from Australia, and that he should give true and correct answers, as if he gave different information in future it could raise doubts about credibility. His privacy would be protected and the information would not be give to the authorities in Iran, unless he was being removed from Australia in which disclosure to the foreign government would be necessary.
According to the record of the interview the applicant said he was born in Iran in [Year] and had always lived in Tehran. He said he has an Iranian birth certificate and national identity document. He also has an Iranian military service card issued in [Year], and an Iranian driver licence. He completed high school in [Year] at [School].
During his military service he trained for two months in Kermanshah and then he was a [military task 1]. He only did eight months of military service. Asked why this was, he said his father was in the war as a [military task 2] so his sons have less service. Before and after service he worked as [an occupation]. His parents, and [brother] born [Year] live together in Tehran.
The applicant said he left Iran because it was not safe. Asked if anything happened to him he said he was threatened, and someone stabbed him in the [body part 1] nearly fatally in July or August 2012. He was summonsed to the Court so he had to go on the run. Asked why he was summoned he said the husband of a woman he had a relationship with, who did not tell him she was married, lodged a complaint against him, and there was a Court order for him to be arrested. He would be stoned or imprisoned for a long time. Cases of women with husbands were very sensitive and incurred severe sentences.
Asked if he had ever been arrested or detained by police or security organsiations, the applicant replied in the negative. Asked if the police and security or intelligence organsiations had an impact on his day to day life, he replied in the negative.
By February 2013 he had escaped to Mashhad. His father made the arrangements for him to leave Iran. He did not know who his father spoke to. His father told him he would be executed if he stayed in Iran. He went overland in the boot of a car through [Country 1] to [City, Country 2]. He was given a green-coloured passport with his own photo but someone else's name. It was taken off him when he arrived in [Country 3]. Then he went by boat to [Country 4] and finally Australia. Asked if anyone on the boat told him not to tell the truth, he replied in the negative.
Asked why he chose Australia the applicant said "she will get angry if I give my reasons". His father chose Australia. He said he was going to be victimised for something he had not done. The interviewing officer said they did not need to know any more about that.
With his protection visa application lodged in 2017 the applicant submitted a statutory declaration with the following claims: he has been imprisoned on many occasions for apostasy. He did not mention this in his entry interview because he thought the question related to criminal law. He also said he was stabbed about a month before he left Iran (i.e. not in 2012). He faces a real chance of being persecuted and killed for having openly declared his religious disaffiliation and for having been accused of adultery. The Australian government would inform the Iranian authorities of his return. His mother is a devout Muslim, his father is non-practising but he keeps his views to his close friends. At 16 the applicant decided that Islam was not for him and this got him into a lot of fights at school. During his military service he did not participate in religious observances. He was routinely punished for this. He was unable to answer religious questions. He was beaten up and put into solitary confinement more than 10 times. He was forced to stand guard wearing insufficient clothing. This happened more than twice a week especially in the last four months. The applicant fled the army and went into hiding with relatives in Ardabil in the north of Iran. His parents called him to say that the army had written stating that he had been fined 10 million toman and that there was a warrant for him to be imprisoned for four months. Two weeks later two military officials came to the family home, and returned two or three times, wanting to know where he was and threatening his parents. He had no choice but to pay the fine and serve the sentence. In prison he was accused of being an infidel and verbally abused, and threatened with being raped. He was released and his military discharge was issued stating that he had completed his service.
Some years later military officials came to the house and told his mother that he had to present to the Quds headquarters. There he was told he was going to be sent to [Country 5] to fight, as he was an infidel and could thus redeem himself as a Muslim. He was allowed a week to say goodbye to his family before reporting for duty. His friends told him that people who refused to go to [Country 5] would be imprisoned, falsely accused of crimes or disappeared. The applicant ran away to Kermanshah. Military officials came to the house three times to find him, and threatened his mother. On the third occasion they told his mother he was the subject of a warrant for having a relationship with a married woman, and for being apostate and for disobeying the order to fight in [Country 5]. The warrant doesn’t mention a reason. He did not know how the government found out about his relationship with a married woman.
The applicant stayed in Kermanshah for two months. He went for a short visit to Tehran to see his family. Walking towards his house he was stabbed in the [body part 1]. The perpetrator said it was his punishment for being an infidel. His mother said they looked like one of the officials that had been to the house. He was treated at the house of a family friend who was a nurse. He stayed there for a week and his father arranged for him to leave Iran. The officials went to his house several times since then, saying that he would be found and killed. About three months after he left there was another summons saying he had to present to court within three days.
The applicant submitted his military service discharge card issued in April 2013 September stating that he completed his service from [January] to [September] 2010. He also submitted a copy and certified translation of what purports to be a requirement to appear at [a] Judicial Complex in Tehran within three days from the date of issue which is [August] 2013. In the section “reason of appearance” it is stated, you are to appear in front of the court to follow up on the complaint made. Several other sections of the form are not completed, including reason of the violation. There are signatures on two parts of the document.
The applicant submitted photos of himself during military service, and two photos of a knife wound, one open and one stitched.
With his second application the applicant submitted a separate military service record, issued in March 2011, and certified translation, stating that the applicant had received 12 months of military service reduction. He also submitted a translation of a document which reads as follows, under the emblem “Judiciary”, Receipt of Reporting, referring to the applicant and a charge of [offence], and has the date [July] 2012 and a [time], and that the case is referred to the investigation section in the office of Public Prosecutor.
In a supporting statutory declaration dated August 2020 the applicant said he does not believe in or practise Islam. He said he was not stabbed in the month he said in the entry interview, but several months later. He reiterated the claims made in his previous statutory declaration, and added that his mother has been interrogated on four occasions in 2015, 2017 and 2019, and his brother has been arrested twice, in 2016 and 2018, and was interrogated under tortured about the applicant, due to the applicant having refused to fight, disobeying orders, having an illegal relationship and leaving Iran illegally. His father was also called in for interrogation on three occasions, and his neighbour was arrested and interrogated twice, in 2016 and 2018, to find out about the applicant. His family remains under surveillance, the house has been searched, and his father consequently has now disowned him.
In November 2020 the delegate wrote to the applicant inviting him to comment on the fact that in his arrival interview he did not mention having deserted his military service, or having been in a military prison, or being recruited to fight in [Country]. The delegate put to the applicant that the country information indicated that Iranians were recruited for fighting in [Country] voluntarily.
The previous representative made a submission in reply, urging caution about relying on the arrival interview to discredit the applicant, as the interviewees were expressly not guaranteed confidentiality. The representative cited country information to the effect that government employees who are identified opponents of the Iranian regime were in fact being sent to [Country 5] as a kind of release from prison. The applicant’s father, as a veteran, was a beneficiary of financial and other resources which he was able to call on to try to buy the applicant out of his troubles. It was easier for the regime to send the applicant to [Country 5] than to take action against the son of a veteran. His father was able to use his influence to make the applicant’s desertion temporarily disappear.
The representative submitted that the applicant will be detained on return to Iran as he has no passport and has absconded from the authorities. He will be interrogated. He will likely be tortured (based on country information). The submission goes on to cite country information relevant to the applicant’s claims.
The applicant made a further statutory declaration dated 14 December 2020. In it he said he was told during the entry interview that his information would be passed on to the Iranian authorities if his protection application was refused. He did not know that the Australian government would not pass on information to the Iranian authorities during the processing of his application. He thought the Department would cooperate with the Iranian requirement that he be conscripted to fight in [Country 5]. He said he would have had to serve a much longer than four month sentence in the military prison if his father had not been a veteran. He was released after three months. The applicant said that he did not have a relationship with a married woman.

The information about the difference between the applicant’s entry interview claims and his protection visa application claims is referred to in the Delegate’s decision. The decision also refers to confused evidence given by the applicant during this interview as to whether he was in prison during or after his military service. (In his December 2020 declaration the applicant responded that he was detained in military prison both during and after his military service). It is also referred to, that the applicant in his statement of claims had said that he did not know how the government found out about his relationship with a married woman, but now was saying that he never had one.
The Tribunal received a submission from the applicant’s representative dated 16 January 2025 and a further statutory declaration from the applicant dated the same day.
In his statutory declaration the applicant said that when he arrived in Australia he was a frightened [Age] year old who had never graduated from high school (he failed year 12 and then withdrew). During the journey he was advised not to mention that he left Iran to avoid fighting in [Country 5]. He was distrustful of authorities and did not understand in what circumstances Australian authorities might disclose his information to Iran. The applicant said he do not accept that Muhammad is the prophet of God or that the Quran is the word of God. He does not pray or follow any religion. He is at risk of serious harm because of apostasy, leaving Iran illegally, refusing to fight in [Country 5], his political opinion, and membership of particular social groups failed asylum seeker and (secular) returnee from the West.
The applicant recounted his claims. He said his father and a lawyer represented him in court, and due to his father’s service he was able get a four month sentence and a 10 million fine. He was released after 15 weeks, and his first military card was issued [in] March 2011.
The representative submitted that the applicant was an apostate, and as such faced a real chance of serious harm. He was tortured in the army for his beliefs. He was also commanded to go to [Country 5], and then was stabbed. The representative addressed the discrepancy between the entry interview and later claims, and his fear based on what he was told, that his information would be shared with the Iranian authorities. His later claims were consistently narrated, and in detail. Apostasy, and flouting sharia law, was punishable with serious harm in Iran, as a theocratic state. The applicant had also absconded from military duties, thus becoming a deserter, and was opposed to the Islamic State. He was a refugee and also met the test for complementary protection.
At the hearing the applicant said his brother is [an occupation] in the family business owned by his father. The applicant worked there after finishing school and after doing his military service. The applicant said he studied up to the last year of high school but failed his final exam.
The applicant said he only did 8 months of service. He said this was not because of his father having served in the war, but because the applicant had religious troubles and then ran away. From the beginning he was not attending prayers and lectures because he had renounced Islam and thus came to the attention of the commanders, leading to abuse and beatings. They kept increasing the length of his shifts and put him outside without suitable clothing in the cold weather. They mocked his discomfort. In the last month it got worse and he was given a very long shift. His father told him to leave. He went to paternal relatives in Ardabil. He was there for two months. His father got a letter saying he had to go to military court. His father and the lawyer went, and they got a discount on his sentence. But he did not go immediately to the gaol he was supposed to report to (the address in the letter). The military went to the house a few times, his father put pressure on him, and in due course he served 15 weeks. Asked where he was held, the applicant said “a gaol in Tehran”. He was released in March 2011 and returned to the family business. Later he was told he had to report to the Quds office. He did not want to fight in a religious war so he went to Kermanshah. Military officials came to the house three times, saying he was a deserter and apostate and could be killed. The third time they were planning to arrest him, on the pretext that he was in a relationship with a married woman. Then occurred the incident where he was stabbed in the back. The applicant’s father decided the applicant needed to leave Iran.
There was a discussion of the document referred to at paragraph 35 above headed “Judiciary”. The applicant said he was the victim of a crime in 2012 (he was stabbed in the [body part 3]). It is not part of his claims.
The Tribunal asked the applicant whether he was the subject of an arrest warrant or summons. The representative said he was not. The Tribunal noted that the applicant’s claims referred to an arrest warrant that does not mention a reason. The applicant said his family told him they had received some documents and he asked for them to be sent to him, but his mother then told him they did not get any documents. The Tribunal noted that the applicant’s claims refer to a summons to appear in 3 days. The applicant said the Iranian authorities do not give written instructions to go to [Country 5]. And when they come to the house they do not issue a letter saying that someone has renounced Islam. Asked if there were any records of him being in a military prison, the applicant said his father received them but did not keep them. The Tribunal observed that it may not believe that the applicant had been imprisoned without any documents at all. The applicant said when he completed his discounted sentence he got the service completion card. It included the time served. That closed that part of his case.
The Tribunal put to the applicant that his entry interview was not consistent with his later claims. The applicant said his co-travellers warned him not to mention [Country 5]. He also was not sure of the confidentiality of the interview.
The Tribunal put to the applicant that the country information indicated that it is possible to be a non-practising Muslim in Iran. The applicant said it was possible not to follow Islam but not to publicly renounce it as he has.
The Tribunal noted that the applicant at his entry interview had said he served a reduced military service because of his father being a veteran. The applicant said this was not the case, he was given a reduced sentence. He did not want to talk about having been in the military prison during his entry interview.
The Tribunal put to the applicant that country information indicated that Iranians went to fight in [Country 5] voluntarily.
The applicant said he faced harsh punishment for disobeying a command, illegal departure, claiming asylum, and being opposed to the government.
The representative made a submission focusing on the unreliability of the entry interview as a means to assess credibility.
Country information
DFAT’s Country Information Report for Iran (July 2023) includes the following relevant assessments:
Apostasy is not specifically codified as a crime in Iran, however, is nonetheless a crime under Sharia law, which is enforceable under the constitution. Both moharebeh or ‘enmity against God’ and fisad fil-arz (corruption on earth) are codified in law and can include apostasy, according to the 2021 US Department of State Human Rights Report. According to the Iran Human Rights Documentation Centre, person can be found guilty of the crime of apostasy based on the testimony of two male witnesses, the knowledge of a judge or a confession. The death penalty is a potential punishment but very rare in practice.
…
In-country sources told DFAT many younger and wealthier Iranians, particularly in the major cities, are secular; a majority of the population does not attend mosque. Alcohol consumption is common among the youth. Official sources told DFAT that, despite government laws, religion was a private matter —beyond the expectation that people do not eat in public during the Muslim holy month of Ramadan or hold parties during the mourning months of Muharram and Safar - how one wished to observe Islam was an individual choice and was not a matter for the state. DFAT understands many Iranians do not observe Ramadan strictly, including by eating, drinking liquids and smoking at home. Most restaurants are closed during the day in Ramadan, although many (especially in Tehran) reportedly serve food discreetly. Those caught eating in public during Ramadan run the risk of arrest and prosecution.
A 2020 study from Utrecht and Tilburg Universities found that atheism was quite common; about 20 per cent of people do not believe in God. The study itself points to Iranians being uncomfortable speaking about religion; discussions about it are not tolerated in Iranian society. Figures about the number of atheists in Iran are, therefore, difficult to verify.
Those who publicly renounce Islam face apostasy charges (see Atheists). According to local sources, atheists are discreet about their non-belief beyond their close family and friends. Unless they widely publicise their non-belief, atheists are unlikely to come to the attention of the authorities. Atheists from conservative families might face familial pressure and potential ostracism if their atheism were revealed, however would generally not be subjected to physical harm. Sources told DFAT that atheists from more liberal families and parts of the country, like north Tehran, would face no such pressure.
DFAT assesses that non-practising Iranian Muslims face a low risk of official and societal discrimination, particularly in the major cities. DFAT assesses that atheists who are open about their non-belief face a moderate level of official and societal discrimination.
…
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. (See also Media.) Iranians have left the country in large numbers since the 1979 revolution, and authorities accept many will seek to live and work overseas for economic reasons. Those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are traveling on a laissez-passer. Questioning usually takes between 30 minutes and one hour, however may take longer if the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history on the part of the returnee. Arrest and mistreatment are not common during this process.
DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination. Local sources told DFAT the greater challenges for returnees are finding work and economic considerations, which will differ from person to person depending on the location of return, family support and skills and experience.
FINDINGS AND REASONS
Based on the information in his application, the Tribunal finds that the applicant’s country of nationality is Iran.
The applicant claimed to fear harm because of his religion and his actual or imputed political opinion, in that he is an apostate who has disobeyed an order to fight, and sought asylum in a western country.
The Tribunal does not accept that the claims made by the applicant are true. In his protection visa applications made claims very different from what he said at his entry interview. In his entry interview he said he was in trouble with the law because of having a relationship with a married woman. He said he was stabbed around the middle of 2012. He did not mention having been an apostate or a deserter who had spent time in military prison, or being lately ordered to fight in [Country 5]. He answered negative to questions about whether he had ever been detained or arrested, or whether the police or security forces had an impact on his life. He said his military service was shortened due to his father having served in the war.
The applicant’s explanation for this discrepancy was not persuasive. He was [three years older than claimed] when he was interviewed, not [Age[, and he was not uneducated, he had had 12 years of education on his own evidence. The purpose of the interview being to ascertain whether he had claims for protection was clearly explained to him, as was the need to tell his claims completely. He was assured of the confidentiality of his claims, but cautioned that if he was being deported some information would, naturally, need to be disclosed to the receiving country. He also said that no one on the boat had told him not to tell the truth. He certainly could have had no basis for believing the Australian Government would cooperate with the Iranian authorities in having him sent to fight in [Country 5]. After all, he was seeking protection supposedly to avoid that fate. And he did make claims for protection, just not the ones he later narrated. Indeed, even when he made his protection visa applications, he was still saying that he had been in a relationship with a married woman, which he later denied.
The Tribunal therefore does not accept that the applicant got into fights at school about religion, or that he was mistreated during his military service for lack of knowledge of Islam and failure to participate in religious observances. It does not accept that he deserted his post, or that he spent any time in a military prison. It therefore does not accept that he was verbally abused or threatened with rape in prison.
The Tribunal, further, does not accept that the applicant was ordered to go to fight in [Country 5]. It does not accept that officials have been to his house several times looking for him or threatening his family. It does not accept that his family members or a neighbour have been interrogated or tortured because of him, or that he is estranged from his father. It does not accept that he was stabbed in the street for refusing to go to [Country 5] (as implied in his claims).
Reinforcing these findings, the applicant’s service record and completion card indicate a normal service with a stipulated reduction of the service duration. The completion card was issued in April 2013, which is at odds with the claim that he was being pursued by the military in early 2013. The applicant contended that his time in military prison was included in his service, however he was able to provide no documents at all to support his claim to have been in a military prison, which was not persuasively explained. He gave confusing evidence at his protection interview, subsequently reiterated in writing, as to whether he was in a military prison before or after his claimed desertion. His evidence at the hearing about where he was imprisoned was quite vague.
A document submitted (but apparently not recalled by the applicant at hearing) states that he is required to report to the judiciary in August 2013. The Tribunal does not accept that this document is genuine, as it is incompletely filled out and contains no reason for the required appearance.
In his entry interview the applicant said he was stabbed in July or August 2012. He also submitted a document indicating he made a complaint to the police about this, in July 2012. He submitted photographs of a wound. At the hearing he said he was assaulted in 2012, resulting in a [body part 3] wound, but the document did not relate to his claims. He maintained that he was separately stabbed while visiting his family in Tehran. It was not explained why he submitted a document that was unrelated to his claims. It was also not explained why he would be stabbed in the street rather than arrested by the military or police if he was an absconder from military duty. The evidence points to the applicant having been assaulted in July 2012, but he has not linked that to any claims to fear harm in the future.
Having regard to the want of credibility in the applicant’s claims and evidence, the Tribunal does not accept that he has publicly renounced Islam. He is not an identified apostate. The country information indicates that religious observance is not mandatory in Iran and that many Iranians do not believe in religion.
The Tribunal is not satisfied that the applicant faces a real chance of harm due to his religious beliefs.
The applicant has not opposed the Iranian regime even if he does not support it. He does not have the profile of any of the groups referred to in the DFAT report as being of potential adverse interest to the Iranian authorities due to opposing the Iranian regime. The country information indicates that the Iranian authorities pay little attention to returned asylum seekers, including those from the West.
The Tribunal is not satisfied that the applicant faces a real chance of harm due to his political opinion, or membership of the iterated particular social groups.
In summary, the Tribunal does not accept that the applicant faces a real chance of serious harm for any of the reasons specified in s 5J(1). The applicant therefore does not have a well-founded fear of persecution as required by s.5J(1). The Tribunal finds that the applicant is not a refugee as defined in s.5H(1).
The Tribunal is similarly not satisfied there are substantial grounds to believe that on return to Iran there is real risk that the applicant will suffer significant harm as defined in s 36(2A), warranting complementary protection.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.
Accordingly, the applicant does not satisfy the criterion in s 36(2).
The applicant has a long-term partner who is an Australian citizen. He may therefore wish to engage with the Department concerning the compassionate circumstances affecting her, that may warrant the Minister intervening to substitute the Tribunal’s decision with one more favourable.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Representative: Ms Shahen Wheatley (MARN: 0701208)
Date of hearing: 20 January 2025