2106742 (Refugee) - [2024] ARTA 705

2106742 (REFUGEE) [2024] ARTA 705 (26 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2106742

Tribunal:General Member Paul Noonan
Date:26 November 2024

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

Statement made on 26 November 2024 at 10:16am

CATCHWORDS
REFUGEE – protection visa – Iran – race – Kurdish – imputed political opinion – Democratic Party of Kurdistan supporter – assisting an injured Kurdish political protestor – religion – Sunni Islam – lengthy absence from Iran – exit procedures – political activities in Australia – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5AA, 5H, 5J – 5LA, 36, 65, 425, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Chan Yee Kin v MIEA (1989) 169 CLR 379
DBB16 v MIBP (2018) 260 FCR 447
MIAC v SZQRB [2013] FCAFC 33
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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 April 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands in 2012. An entry interview was held with the applicant on 31 October 2012.
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 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 (SHEV) is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.
The applicant, who claims to be a national of Iran, made a valid application for a SHEV on 18 August 2020. A SHEV interview was conducted by the Department on 9 December 2020.
The delegate accepted that the applicant is from Urmia in West Azerbaijan Province, Iran and that he is of Kurdish ethnicity. The delegate also accepted that the applicant’s religion is Sunni Islam and that he is a non-practising Muslim.
The delegate did not accept that the applicant had ever been of any adverse interest to the Iranian authorities prior to departing Iran. The delegate found that the applicant did not face a real chance of serious harm or a real risk of significant harm if he returned to Iran, now or in the reasonably foreseeable future, for reason of his ethnicity or his religion. Accordingly, the application was refused because the applicant did not satisfy s 36(2) of the Act.
On 20 May 2021, the applicant applied for a review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT). On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (the Tribunal).
If a proceeding was commenced in the AAT but not finalised before 14 October 2024, it must be continued in the Tribunal in a manner that is efficient and fair. Anything done in, or in relation to, the proceeding before the 14 October 2024 continues to have effect after that date. Anything done in, or relation to, the proceeding before 14 October 2024 that was validly done according to the applicable law at the time is taken to be valid under, or to have been done in accordance with, the law as it is now. Anything done in, or in relation to, the proceeding before 14 October 2024 by the AAT is taken, after that time, to have been done by the Tribunal: item 24 of Part 5 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).
In these circumstances, the Tribunal is satisfied that an invitation to appear before it validly issued under s 425 of the Act (as in force prior to 14 October 2024) is valid for the purposes of the hearing of the proceeding, being a Tribunal case event, under the Administrative Review Tribunal Act 2024 (Cth). Accordingly, the decision in this proceeding is made by the Administrative Review Tribunal.
The applicant appeared before the Tribunal on 1 November 2024 to give evidence and present arguments. The applicant is unrepresented in this matter. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
Evidence before the Department
The Tribunal has had regard to the record of the applicant’s entry interview with the Department conducted on 31 October 2012 and his SHEV application, statements of claim and interview.
Evidence before the Tribunal
The Tribunal has had regard to a translated online news article submitted by the applicant which reports on unrest between Kurdish youth and the authorities in the town of Urmia on 30 July 2012 as well as the delegate’s decision as supplied to the Tribunal by the applicant.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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). 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.
The DFAT Country Information Report: Iran, 24 July 2023 (the DFAT Report) is relevant to this proceeding.[1]
REASONS AND FINDINGS
[1] DFAT Country Information Report: Iran, 24 July 2023 (Version 2)* (country-information-report-iran.pdfhttps:// of nationality
There is no dispute that the applicant is an Iranian citizen who travelled to Australia on a genuine Iranian passport. The Tribunal has assessed his claims against Iran as his country of nationality and the receiving country.
The applicant’s personal background
The applicant informed the Tribunal that he works as [an occupation 1] in Australia. He has a female Australian citizen partner whom he has been with since 2019. In Iran he worked in a store run by his father. He has no post school education. His family members still reside in his home town in Iran. His father is in good health. His mother has suffered a [medical condition]. His siblings are all in good health and doing well. He is now around [age] years old. He has been visited by relatives from Iran and is in contact with his family there. He also has an uncle living in Tehran.
The Tribunal accepts the above to be true.
The Tribunal also accepts that the applicant is of Kurdish ethnicity and Sunni religion. Further, the Tribunal accepts that his family reside unharmed largely in a predominantly Kurdish area of Iran. He confirmed to the Tribunal that he has never been politically active, which the Tribunal also accepts.
The applicant’s claims for protection
It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510.
The applicant wrote in his claim for protection that he fears returning to Iran because he will be persecuted due to his imputed political opinion as a supporter of the Democratic Party of Kurdistan (KDPI) and his profile as a Kurdish Sunni man.
The applicant told the Tribunal that he fears persecution upon returning to Iran because, when he fled the country, he believed he was targeted for his imputed political opinion. This is because he was of adverse interest to the authorities when he departed Iran because he helped an injured Kurdish political protestor in his home town. He also fears persecution because, as a Kurd who has been out of the country for a long time, he will be adversely profiled as a spy upon his return. He is concerned that, given the current attitude of the authorities towards Kurds and a heightened level of paranoia due to the recent protests and attacks by Israel upon Iran, and having been overseas residing in Australia for so many years, this will cause him to come to the adverse attention of the authorities.
The Tribunal notes that, while the delegate assessed the risk of persecution to the applicant as a non-practising Muslim, the applicant has never claimed to fear persecution for this reason and he did not make this claim at the hearing. The Tribunal has checked the interviews of the delegate and the entry interview and he did not make this claim out in either interview. Further, he confirmed with the Tribunal that his imputed political opinion and related ethnicity and interrelated Sunni religion claim were the only reasons he fears returning to Iran. Accordingly, the Tribunal has not assessed this non-practising Muslim claim as the applicant has never expressed a fear of persecution for this reason and it does not arise as an implied claim. He has always been very clear, which he reiterated to the Tribunal, that he only fears persecution by the Iranian authorities because of his imputed political opinion and because of his general profile as a Sunni Kurd who has spent many years away from Iran, should he be required to return to Iran.
Consideration
Was the applicant of adverse interest to the Iranian authorities at the time of his departure from Iran?
With respect to the applicant’s claim that he had an adverse political profile with the Iranian authorities for reason of assisting a shot protestor in 2012, the Tribunal does not accept that this is the case. This is because, while accepting that the applicant found and assisted a person named [Mr A], who was a protestor injured in a Kurdish independence demonstration, the Tribunal does not accept that this caused him to come to the adverse attention of the authorities. This is for the following reasons, as discussed during the hearing with the applicant:
·Firstly, the applicant stated that he had sheltered [Mr A] for a few hours in his father’s house, until [Mr A] left of his own accord. His father had been at work, however, other members of his family were at home. The next day his father had been briefly questioned by the authorities, but no further action was taken. As discussed with the applicant, it appears from this sequence of events that the applicant’s father was briefly questioned by the authorities, however no further adverse action has been taken by the authorities against him or anyone else in the applicant’s family, which reflects that the matter was of no ongoing interest to the authorities.
The applicant responded to these concerns that this may have been because the authorities were only interested in himself, as the person who assisted [Mr A] directly. He noted that after his father had been questioned by the authorities, his father had rung him to warn him not to return home. He claimed this was because they were after him specifically for helping [Mr A] because this action had imputed him as a supporter of the KDPI.
The Tribunal put to the applicant that country information, as set out in the delegate’s decision, reflects that the authorities seek out and take action against Kurd activists who are fugitives and they assume that all members of the person’s family are politically affiliated.[2] The applicant submitted in response that they are only interested in young men such as himself and not an older man such as his [age] year old father. The Tribunal put to the applicant that this argument is entirely implausible in the face of the country information that family members of Kurd activist fugitives will be targeted by the authorities. On this basis, the Tribunal rejects the applicant’s explanation as to why his father and other family members have been unharmed for many years, despite his claim that he has an imputed adverse political profile with the authorities and as such departed as a suspected Kurd activist fugitive. The Tribunal considers that the applicant’s family remain uncontacted and unharmed because he does not in fact have an adverse political profile, as a supporter of the KDPI, with the Iranian authorities.
·Secondly, as discussed, the applicant departed Iran legally using his passport through the main airport in Tehran, which reflects that he had not been flagged with an adverse profile as there were strict security and screening procedures in place at the airport at that time. DFAT assessed in 2013 that:
it is possible to leave Iran to flee arrest warrants or charges. This is usually accomplished overland rather than through the main airports. Passport control checks are sophisticated in Iran. An outstanding warrant for arrest would not go undetected at the main airports but it is theoretically possible that an individual could convince an airport officer to allow them to proceed. Some charges—for example national security or media-related charges—result in confiscation or black-listing of passports. However, even in these cases, there are credible reports from a range of sources that many have been able to successfully cross borders overland.[3]
·The applicant claimed that an agent facilitated his exit through the airport, however the Tribunal considers the fact that the applicant chose to exit through the main airport, rather than overland, and using his passport, reflects that he was not flagged as a national security risk, being a person associated with the KDPI as he claims, as the DFAT Report reflects that such persons would have their passports confiscated and or be blacklisted. The Tribunal does not accept that such a person would have been able to talk or bribe their way through the main airport security checks given this country information.
[2] ‘2019 Iran Human Rights Annual Report’, Iran Human Rights Monitor, p.16, 6 January 2020, 20200420081401; ‘Situation of human rights in the Islamic Republic of Iran Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran’, UN General Assembly, 18 July 2019, p.20, 20190819104518
[3] DFAT Country Information Report: Iran, 29 November 2013, 5.20
In conclusion, the Tribunal is satisfied that the above two points, when considered cumulatively, reflect that the applicant was not of adverse political interest to the Iranian authorities at the time of his exit from Iran. The Tribunal therefore rejects the applicant’s claim that he would be adversely targeted for this reason should he return to Iran. The Tribunal is satisfied on this basis that there is not a real chance that the applicant would suffer persecution involving serious harm for this reason should he be required to return to Iran either now or in the reasonably foreseeable future.
Is the applicant’s fear of persecution for reason of his profile as a Sunni Kurd returning from a long period living in a Western country well-founded?
The Tribunal accepts that the applicant is a Sunni Kurd who has been out of the country and living in a Western country for many years. The Tribunal must now assess the current chance of serious harm for the applicant should he return to Iran, given this accepted profile.
Kurds are an ethnic minority of predominantly Sunni Muslim persons, while most Iranians are Shia Muslims.[4] The Tribunal has carefully reviewed country information with respect to Kurds in Iran and sets out key summarised points below:
[4] DFAT Country Information Report: Iran, 24 July 2023 (Version 2), 2.53
·There is currently a number of armed and violent insurgency groups fighting in Iran for an independent Kurdistan state although the majority of Kurds are not involved in armed separatism.[5]
[5] Ibid, 2.54
·The death of Mahsa Amini, a 22-year-old form Kurdistan Province, sparked nationwide protests, with the most intense being centred on Kurdistan from 2022 onwards.[6]
[6] Ibid, 2.56
·DFAT assesses that Kurds face a high risk of official discrimination and violence, however those not involved in insurgency activity are far less likely to come to the attention of the authorities. However, the arrest and detention of innocent Kurds is a low risk.[7] DFAT assesses low risk to mean as follows: “DFAT is aware of incidents but has insufficient evidence to conclude they form a pattern”.[8]
[7] Ibid, 2.57
[8] Ibid. p.6
·The UN Special Rapporteur has found that during the Mahsa Amini protests, ethnic and religious minorities, in particular the Baluchis and Kurds, were targeted and brutally repressed. The evidence and testimonies of systematic State killings, enforced disappearances, torture, severe bodily injuries, extreme repression, persecution, rape, violence, including sexual and gender-based violence, and mass and arbitrary arrests that have been presented to the Special Rapporteur since September 2022 (against these ethnic minorities) have led the UN Special Rapporteur to take the view of the possible commission of crimes against humanity.[9]
[9] United Nations Human Rights Council – Situation of human rights in the Islamic Republic of Iran, 9 February 2024. p.17
·Prior to 2022, the UK Home Office found that[10]:
[10] Country policy and information note: Kurds and Kurdish political groups, Iran, May 2022 (accessible) - GOV.UK. 2.4.3 - 2.4.4
o   In the country guidance case of HB (Kurds) Iran CG [2018] UKUT 430 (IAC) (heard 20 to 22 February and 25 May 2018 and promulgated 12 December 2018), the Upper Tribunal (UT) found: ‘Kurds in Iran face discrimination. However, the evidence does not support a contention that such discrimination is, in general, at such a level as to amount to persecution or Article 3 ill-treatment.’ (paragraph 98 (2)).
o   In HB, the UT also found:
o   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 than hitherto and are reasonably likely to be subjected to heightened scrutiny on return to Iran.
o   However, the mere fact of being a returnee of Kurdish ethnicity with or without a valid passport, and even if combined with illegal exit, does not create a risk of persecution or Article 3 ill-treatment.
o   Kurdish ethnicity is nevertheless a risk factor which, when combined with other factors, may create a real risk of persecution or Article 3 ill-treatment. Being a risk factor it means that Kurdish ethnicity is a factor of particular significance when assessing risk. (paragraph 98 (3) to (5)).
o   Evidence continues to support the findings in HB in that a person will not be at real risk of persecution or serious harm based on their Kurdish ethnicity alone, although when combined with other factors, may create a real risk of persecution or Article 3 ill-treatment. Each case must be considered on its facts and decision makers must take into account additional factors, such as actual or perceived political activity, when assessing risk.
·A Danish Immigration Service report of February 2020 assessed that Kurds have been subject to arbitrary arrest, for instance, for being in the general vicinity of a protest. Many individuals who are accused of having ties with Kurdish political parties can in fact be innocent. The report highlighted the case of a Kurdish man who was arrested because he walked past a demonstration and who was then tortured for a month. The UN Secretary General set out in 2020 that several death sentences against Kurds have been made and persons have been imprisoned for 10 years and tortured for attending religious ceremonies. In February 2021 it was reported that Kurds with no known history of activism were arrested in a violent manner.[11]
·A Danish Immigration Service report of February 2023 assessed that Kurdish protestors have been shot with live bullets, unlike protests in other areas of Iran. As at February 2023 numerous undeclared jails have been established in Kurdish areas which are used to torture detained protestors.[12]
[11] Ibid, 7.4.4 - 7.4.6
[12] Ministry of Immigration and Integration – The Danish Immigration Service, Country of Origin Information – Iran, March 2023, p.17

The Tribunal concludes from its review of recent country information with respect to Kurds, who are predominately Sunni, that they are at significant risk of serious harm if found to be politically active and or actively protesting for any reason. There is, however, also currently a low risk of targeting by the authorities of non-politically active Kurds, although some targeting of non-politically active Kurds can occur.
In assessing the risk of the applicant specifically being targeted for persecution, the Tribunal notes that the applicant’s entire family lives unharmed in Iran. He is not, and never has been, politically active either in Iran or Australia. The Tribunal has also found that he left Iran legally and that he was not of adverse interest to the authorities when he did so. As discussed with the applicant, some 10 percent of the Iranian population of 90 million are Kurds, which is a significant number in comparison to the numbers of innocent Kurds reportedly targeted by the authorities in recent times.[13] In addition, DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees, which includes failed asylum seekers, are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination.[14] Further, millions of Iranians travel into and out of Iran each year without difficulty, including the large Iranian diaspora residing in North America, Europe, the United Arab Emirates and Australia.[15] The Tribunal notes that this assessment by DFAT was issued post the 2022 protests discussed above.
[13] DFAT Country Information Report: Iran, 24 July 2023 (Version 2), 2.44
[14] Ibid, 2.203 - 2.204
[15] Ibid, 2.205
The applicant submitted that the Iranian government uses a lot of propaganda to influence these country assessments. He reiterated his view that lots of Kurds are being executed and he would certainly be looked upon as a potential spy if he were to return. He believes he will be of adverse interest to the authorities upon his return at the airport and does not accept the accuracy of the DFAT assessment with respect to returnees.
With respect to the current situation for Sunni Muslims in Iran, DFAT assesses that Sunnis do face arrest for reason of their religion on occasion, with 53 Sunnis recorded as being arrested and charged with charges such as “propaganda against the state” in 2017 to 2018. They also tend to be economically and socially disadvantaged, with bleak job prospects, however religious and ethnic discrimination tend to overlap in creating this outcome. DFAT assesses that Sunnis face a moderate risk (such that a pattern of behaviour is distinguishable) of official discrimination.[16] The applicant made representations that growing up he was not allowed to speak Kurdish. He also had trouble finding a job because of his ethnicity.
[16] Ibid, 2.67, 2.70, 2.71
The Tribunal is satisfied that the applicant’s profile is that of a Sunni Kurd with no adverse profile with the Iranian authorities. He has kept an extremely low profile in Australia and has not engaged in any form of political protest or online activities that may be considered adverse to the Iranian authorities. Should he be questioned upon his return to Iran there will be no material, either online or maintained internally on the record, that would come to the adverse interest of the Iranian authorities. As noted, DFAT assesses that millions of Iranians travel in and out of Iran each year, including from Western countries, without hindrance from the authorities. The Tribunal notes the applicant’s concerns about the possibility of heightened tensions since the Israeli actions against Iran. There was no country information before the Tribunal or any that it could discern, that may indicate this Israeli action has changed the conditions for returnees generally or from the West specifically from that set out in the recent DFAT assessment. The Tribunal places weight upon the most recent and contemporary DFAT assessment with respect to the general situation for returnees when assessing this risk.
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 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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; and (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
The Tribunal is satisfied that there is an insubstantial possibility, such that it is not a real chance, that a Sunni Kurd of the applicant’s profile with no political profile and no intent to become politically active or protest in any way, will come to the adverse attention of the authorities and as such be persecuted by the authorities, while re-entering Iran or while returning to his home area.
With respect to the real chance of serious harm to the applicant both now and in the reasonably foreseeable future while he resides in his home area, the Tribunal considers that, while DFAT notes the low risk of non-politically aligned Kurds being arrested and harmed and the reporting of such incidents as set out above in country information, this must be seen within the context of the millions of Kurds who live in Iran and the fact that a discernible pattern has not been established of this occurring. Further, while there is a moderate risk of official discrimination against Sunnis, who are mostly Kurds, and as such the reasons for this discrimination may be based upon their cumulative profile, the Tribunal places significant weight on the fact that the applicant’s entire family, who are all Sunni Kurds, have resided safely and unharmed within a Kurdish area of Iran for many years with the same accepted profile as that held by the applicant. While the applicant may have experienced some official discrimination in the past, such as being banned from using the Kurdish language at school, the applicant did not contend that either he or his family have been unable to subsist or will be unable to subsist for reason of official discrimination. On the basis of this assessment of the evidence before it, and considering the number of Sunni Kurds in Iran, the Tribunal is also satisfied that there is an insubstantial possibility, such that it is not a real chance, that a Sunni Kurd of the applicant’s low profile will come to the adverse attention of and be persecuted by the authorities in his home area of Urmia in West Azerbaijan Province, Iran, either now or in the reasonably foreseeable future.
Refugee conclusions
Overall, the Tribunal is satisfied that there is not a real chance the applicant would suffer persecution involving serious harm for reason of him being a Sunni, a Kurd, for reason of his imputed political opinion, as a returning failed asylum seeker after living for many years in a Western country such as Australia, or for reason of his accepted cumulative profile as a Sunni Kurd returning as a failed asylum seeker after living for many years in a Western country such as Australia, should he return to Iran, either now or in the reasonably foreseeable future. As such, his fear of persecution for these reasons, assessed both individually and cumulatively, is not well-founded.
Complementary protection
In considering whether there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of him being removed from Australia to Iran, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[17] It follows that there is also no real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of him being removed from Australia to Iran for reason of his profile as a Sunni Kurd returning as a failed asylum seeker after living for many years in a Western country or for reason of his imputed political opinion.
[17] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342]
Overall Conclusions
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).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under 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 criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing:   1 November 2024
Representative for the Applicant:      Self-represented
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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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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