2109490 (Refugee)
[2025] ARTA 1763
•18 July 2025
2109490 (Refugee) [2025] ARTA 1763 (18 July 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship
Tribunal Number: 2109490
Tribunal:General Member B Goulding
Date:18 July 2025
Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.
Statement made on 18 July 2025 at 11:17am
CATCHWORDS
REFUGEE – protection visa – Iran – particular social group – member of the LGBTIQA+ community as a gay man – political opinion – opposed to Iran regime and military due to support they provide for Hezbollah in Lebanon – supports human rights and personal freedoms – active in protests – laws prohibit and punish people for being gay – fears being detained, interrogated and prosecuted – Iranian authorities continue to monitor dissidents, activists and protest movements, including those outside of Iran – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2Any 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 on 14 July 2021 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 national of Iran, applied for the visa on 23 July 2019. The delegate refused to grant the visa on the basis that the applicant is not owed protection by Australia. The applicant lodged an application for a review of that decision with the Administrative Appeals Tribunal (AAT) on 27 July 2021.
On 14 October 2024, the AAT became the Administrative Review Tribunal (ART). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the ART. The Transitional Act gives the ART the authority to continue and finalise any aspect of the review not already completed by the AAT. Following this, references in these reasons to ‘the Tribunal’ refers to the AAT prior to 14 October 2024 as well as the ART from that date.
The applicant appeared before the Tribunal on 30 May 2025 to give evidence and present arguments. The Tribunal also received oral evidence from Mr [A]. The Tribunal hearings were conducted with the assistance of an interpreter in the Persian and English languages. The applicant was represented at the hearing.
This decision and statement of reasons is made by the Tribunal.
BACKGROUND
The applicant’s personal background
The applicant is [an age]-year-old male from Tehran, Iran. He travelled to Australia on an apparently genuine Iranian passport. A copy of the biodata page of the applicant’s passport is contained in the Departmental file. He has at all times stated that he is a citizen of Iran and has been assessed on that basis by the Department. The Tribunal finds he is a Iranian citizen and has assessed his claims against Iran as the country of nationality and the receiving country.
At hearing, the applicant gave evidence that prior to traveling to Australia he lived his whole life in Tehran. He confirmed that his parents both still live in Tehran, and he speaks to his mother about once a month. However, the applicant described his relationship with his father as non-existent, and they have not spoken since the Persian New Year in 2021. The applicant gave evidence that his father does not accept that he is gay. The applicant also confirmed that he has extended family in Australia, and they are generally supportive of the applicant.
The applicant gave evidence that his mother arranged to send him to Australia to continue his education prior to turning [age]. The applicant arrived in Australia as the holder of a Student visa [in] February 2017. Initially, the applicant had accommodation in a home-stay arrangement. Eventually he moved and stayed at accommodation provided by his college.
The applicant completed a foundational course at [University 1] in 2017. Following this, he enrolled in [Course 1], however, he was unable to complete his studies due to health issues. The applicant gave evidence that he has worked in various [roles], including as an [Occupation 1].
The applicant applied for a Protection visa on 23 July 2019.
Consideration of protection application by the Department
In summary, in the protection visa application lodged with the Department, the applicant made the following claims:
a.He left Iran for two reasons. First, because it was not safe for him to live as a gay man. Second, in order to study abroad.
b.He has been gay since childhood, and his sexuality became known to his mother in May 2016 when she discovered him engaged in an intimate act with his friend, [Friend A].
c.The applicant’s mother took him to see a doctor as she believed he was suffering from an illness that could be cured. The doctor saw the applicant at three appointments, the last one in September 2016.
d.The applicant’s mother’s greatest fear was how his father would respond if he found out that the applicant was gay. His mother repeatedly reminded him of the consequences of being gay in Iran.
e.In October 2016, the applicant’s mother made arrangements for the applicant to travel to Australia to study. They planned for the applicant to study in Australia and then obtain a skilled visa so that he could remain in Australia on a permanent basis.
f.Whilst studying in Australia, the applicant experienced recuring health issues, and in mid-2018 he was diagnosed with [Medical condition 1]. Ultimately, the applicant was unable to complete his studies due to his health issues and ensuing poor course progression.
g.Following his withdrawal from his studies, the applicant experienced anxiety due to his fear of returning to Iran. At the time, his father was insisting that he return to Iran to complete his military service. This situation eventually led to the applicant telling his father that he is gay.
h.The applicant fears that if he were to return to Iran, his sexuality would become known to the authorities and he would face harm for this reason. The harm he fears includes being detained, interrogated and being prosecuted.
i.Due to his sexuality, the applicant also fears the treatment he might be subjected to if he is forced to undertake military service. He is also ethically and morally opposed to the Iran regime and military due to the support they provide for Hezbollah in Lebanon. Furthermore, he disagrees with the Iranian regime which does not respect human rights and personal freedoms.
In support of his application, the applicant also provided a translated email from his father of 22 July 2019, in which his father disowns the applicant and threatens to report him to the Revolutionary Guards. The applicant also submitted a further statement after his Department interview. In summary, the statement dated 6 April 2021, sets out the following:
a.He repeated his claims to be gay and his fear of completing military service in Iran.
b.He now considers himself Christian, and he has told his parents this. If he has any interactions with the authorities in Iran he will declare his faith as Christian.
c.He fears harm from the authorities and the general population, including his father, due to his dissident political views, his sexuality and his faith.
d.He objects to the Iranian government’s laws which prohibit and punish him for being Christian and gay.
The Department conducted an interview with the applicant on 31 March 2021 to assess the applicant’s claims for protection. Notably, at interview, the delegate discussed with the applicant concerns regarding the timing of his protection visa application, his claim to be gay and his claim to have converted to Christianity.[1]
[1] Protection Visa Decision Record (Department of Home Affairs, 14 July 2021), pp. 3-9.
The delegate ultimately refused the applicant’s application for a Protection visa on 14 July 2021. In refusing the application, the delegate made the following findings:[2]
a. he is a non-practising Muslim;
b. he is not genuinely a homosexual, nor would he be imputed as such; and
c. he has not genuinely converted to Christianity and he would not practise Christianity if he returned to Iran.
[2] Ibid pp. 9-10.
Consequently, the delegate found that the applicant would not face persecution on account of his sexuality or on account of him being an apostate.[3]
[3] Ibid pp. 9-10.
In reaching this finding, the delegate found that the applicant’s evidence regarding his sexuality, his claimed relationship with [Friend A], and the falling out with his father to be vague, inconsistent and to not be credible.[4]
[4] Ibid pp. 4-7.
With respect to his claim to be Christian, the delegate found that there was insufficient evidence to demonstrate that the applicant was committed to the Christian faith.[5] The delegate also found that his claim to have engaged in Christian activities in Australia was undertaken solely for the purpose of advancing his protection claims.[6]
[5] Ibid, p. 9.
[6] Ibid.
The delegate then found that there was not a real chance that the applicant would be harmed for reason of him being a non-practising Muslim.[7] Similarly, the delegate also found that there was not a real chance that the applicant would suffer serious harm on the basis of his objection to military service in Iran.[8]
[7] Ibid. p. 12.
[8] Ibid. p. 13.
As such, the delegate refused the application on the basis that the applicant is not a refugee as defined in s 5H of the Act. Consequently, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. In relation to the complementary protection criterion, the delegate was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Iran, there is a real risk he will suffer significant harm as outlined in s 36(2)(aa) of the Act.
CONSIDERATION OF APPLICATION BY THE TRIBUNAL
The applicant lodged a review of the Department’s decision with the Tribunal on 27 July 2021.
On 24 April 2025, the applicant was invited to appear before the Tribunal on 30 May 2025. The applicant’s representative responded to the hearing invitation on 6 May 2025 and confirmed the applicant’s intention to appear before the Tribunal.
On 24 May 2025, the Tribunal received an updated statement of claims from the applicant dated 21 May 2025. In summary, the statement of claims outlined the following:
Claim regarding the applicant’s sexuality
a. He confirms that he is gay and he has been rejected by his father for this reason.
b. In response to the Department’s decision, the applicant believes that the case officer expected too much from him as a young man, and the Department’s finding was based on the delegate’s own personal assumptions.
c. He states that he and Mr [A] have been in a casual relationship and have known each other since November 2021. They met on [Dating app 1], a dating application for gay men.
d. He has not disclosed his sexuality on his social media accounts as he is concerned that hurtful comments might be directed at his mother if people found out that he is gay.
e. After arriving in Australia, the applicant did not feel a sense of urgency to seek protection as he held a student visa. He only sought advice on applying for protection after his family cut of financial support and his fear of returning to Iran intensified.
Claim regarding the applicant’s conversion to Christianity
f. The applicant withdrew his claim to be Christian, and noted that he now has serious doubts about the existence of god.
Claim regarding the applicant’s political activities
g. Following the killing of Mahsa Amini in Iran, he became actively involved in protests in [City 1]. He also attended a protest in [City 2] on one occasion.
h. He was seen on live television [protesting].
i. He opposes the Iranian regime and feels a moral obligation to protest against it.
Embedded within the applicant’s statement of 21 May 2025 were photographs of the applicant attending various protests and screenshots of the applicant’s [Dating app 1] account. Several of the screenshots provided were pixilated or blurry, with some words appearing to have been redacted. On 26 May 2025, the Tribunal wrote to the applicant’s representative and requested that clear unredacted screenshots be provided.
On 26 and 27 May 2025, the Tribunal received the following further documents in support from the applicant:
a. Screenshots taken from the applicant’s [Dating app 1] account;
b. Statutory declaration from Mr [A] of 26 May 2025 in which he confirms that he has known the applicant since 2021 and they have previously been intimate; and
c. Screenshots from 2022 of messages and emails from the applicant regarding protests that he assisted in organising.
A summary of relevant evidence taken at hearing is outlined below.
Evidence at hearing
At hearing, the applicant gave oral evidence regarding his personal circumstances, his experience of coming out as a gay man, his life in Australia, and his relationships with former partners. In summary, the applicant gave the following evidence:
a. The applicant described his experience growing up in Iran and his realisation that he did not feel the same way as his friends who were attracted to girls. Whilst he could not pinpoint an exact date that he realised he was different to his friends, he noted that by about the age of 8 or 9, he can remember being attracted to men that he would see playing sport on TV.
b. With respect to his relationship with [Friend A], the applicant confirmed that they met in school and they lived relatively close to one another. The applicant described [Friend A] as his best friend and noted the closeness of their relationship particularly given he did not have any siblings of his own. The applicant recalled being attracted to [Friend A], but cautious with how he dealt with this attraction. The applicant gave evidence that at the time, he was worried that he would lose his best friend if he opened up, but he was less aware of the broader consequences with being gay in Iran.
c. The applicant described [Friend A] as having similar emotions to him. Eventually this led the applicant and [Friend A] to kiss at about the age of [age]. The applicant was caught by his mother with [Friend A] not long before he turned [age]. It was following this that the applicant’s mother made arrangements for the applicant to travel to Australia to study.
d. Since departing Iran, the applicant has not had any significant contact with [Friend A], although he believes he is still living there.
e. The applicant described his family in Australia as being supportive, open-minded and accepting of his sexuality. However, he described being rejected by his father.
f. With respect to Mr [A], the applicant gave evidence that they met on [Dating app 1] in November 2021. The applicant described their relationship as ‘casual’ and now more of a friendship. The applicant was able to speak in some detail about Mr [A], including providing an overview of his personal circumstances and common interests that they share.
g. The applicant also gave evidence that he uses [Dating app 1] to meet other men, which is consistent with the screenshots that he provided. The Tribunal questioned the applicant about his use of [Dating app 1]. The applicant responded that he is discreet, including obscuring his face in his profile picture, but when he matches with a person he will send a photo of himself. When questioned about his reason for being discreet, the applicant gave evidence that he is open about his sexuality, but he is not the type of person to shout about his personal life and he is concerned about people in the Persian community identifying him.
The Tribunal also discussed with the applicant several concerns it held regarding the timing of his Protection visa application and of his coming out as gay to his father.
With respect to his delay in applying for protection, the applicant noted that he first arrived in Australia when he was [age] and stayed in a home-stay arrangement before moving on to accommodation at college. He gave evidence that at the time, he was a minor and he had no understanding of what his rights were in Australia. The applicant confirmed that he had his first relationship with a male about 2 years after arriving in Australia, and when questioned about this delay, the applicant gave evidence that he experienced culture shock on arrival, having travelled from a conservative Islamic country to Australia – which he described as being like day and night. The applicant gave evidence that it took a lot for him to get used to life in Australia, particularly given his young age. He also noted that his health issues, including [Medical condition 1], hit him hard. The applicant gave evidence that he felt like he had to go through these challenges by himself and emotionally he was not ready.
The applicant also gave evidence that he had to inform his father that he was dismissed from college in 2019, as he had been providing the applicant with financial support whilst he was studying. Given his sexuality, the applicant feared what would happen to him if he returned home so he felt compelled to tell his father that he is gay. The applicant explained that his father did not take this well, as he perceives the applicant’s sexuality to be a sickness, and he gave evidence that his father was disgusted by him.
The Tribunal also discussed with the applicant concerns raised by the Department delegate, particularly with respect to his process of self-realisation that he was gay.[9] In response, the applicant gave evidence that when he was first with [Friend A] he was a typical teenager and thought nothing could stop him. He described himself as being comfortable in his own skin, and he lacked appreciation of how afraid he should have been.
[9] Ibid. p. 4.
After taking evidence from the applicant, the Tribunal took evidence from Mr [A]. The evidence from Mr [A] was highly consistent with that of the applicant, including with respect to relatively small but important details, such as the frequency with which they see each other and their description of common interests. Critically, Mr [A] confirmed that his relationship with the applicant was of a sexual nature at times, but it was also a friendship and they have spent a lot of time with one another. Mr [A] confirmed that he knows the applicant to be gay.
When questioned about the situation he would face on return to Iran, the applicant gave evidence that it would not be possible for him to live as an openly gay man. He also expressed a fear that on return, he could be questioned and if his phone were checked, they would see material on there which would confirm his sexual orientation.
In addition to the above, the applicant also raised claims regarding his political activities in Australia. When questioned about this, the applicant gave evidence that he was opposed to the Iranian regime and, following the death of Mahsa Amini and the general treatment of women in Iran, he felt that he needed to respond by participating in protests in Australia. The applicant gave evidence that he supported the organisers of the rallies by attempting to gain media and political attention.
Notably, the applicant submitted evidence that he had been in contact with the offices of former Senator [A] and former Senator [B], inviting them to attend a demonstration for human rights in Iran.
The applicant also contacted [Journalist A], a journalist and news reporter, via social media. The applicant submitted screenshots of this communication to the Tribunal. In the screenshots provided, [Journalist A] acknowledges the contact made by the applicant and confirms that she would pass on the information to her newsroom.
The applicant also submitted screenshots of communications he had with [Activist A], whom he described as an activist and influencer. The applicant gave evidence that he assisted [Activist A] with organising Iranians to be interviewed by her about their experience in Iran and the treatment of women there. The screenshots provided by the applicant confirm this.
The applicant also claimed that whilst he was in attendance at one protest, he was filmed [protesting]. The applicant claimed that his friend later saw him on [a Persian language satellite television channel]. He also claimed that when he attended a protest in [City 2, photos were taken] of the faces of people in attendance at the protests. He gave evidence that he fears this information might be passed on to the authorities in Iran.
The applicant confirmed that whilst he has maintained an interest in the political situation in Iran since 2022, he has not attended any other protests.
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, the applicant 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) of the Act provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, 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.[10] 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.[11]
[10]Migration Act1958 (Cth), s 5H(1)(a).
[11]Migration Act1958 (Cth), s 5H(1)(b).
Under the Act, 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.[12] 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 the Act, which are extracted in the attachment to this decision.[13]
[12]Migration Act 1958 (Cth), s 5J(1).
[13]Migration Act 1958 (Cth), s 5J(2)–s 5J(6) and s 5K–s 5LA.
If a person is found not to meet the refugee criterion,[14] s 36(2)(aa) of the Act sets out that a person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).
[14]Migration Act 1958 (Cth), s 36(2)(a).
The Act sets out that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[15]
[15] Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are defined in s 5(1) of the Migration Act 1958 (Cth).
The Act also provides certain circumstances where it is taken not to be a real risk that a person will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[16]
Mandatory considerations
[16]Migration Act 1958 (Cth), s 36(2B).
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.
RELEVANT COUNTRY INFORMATION
Information regarding the LGBTIQA+ community in 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. The most recent DFAT Country Report for Iran considers the treatment of gay men and members of the LGBTIQA+ community in terms of both official and societal discrimination. Notably, DFAT assesses that LGBTIQA+ individuals in Iran face a ‘high risk of official discrimination and violence that may amount to risk of death’. DFAT applied this assessment to all LGBTIQA+ persons. It also assesses that all LGBTIQA+ persons, regardless of sexuality or gender identity ‘face a high risk of societal discrimination’.[17]
[17] Department of Foreign Affairs and Trade, DFAT Country Information Report Iran – Version 2 (24 July 2023) (2023 DFAT Report), at [2.153].
DFAT reports that:
2.147 Sexual intercourse between males is illegal and can attract the death penalty. The death penalty is carried out against men who have consensual sex with men. DFAT is aware of reports of executions in February 2022, for example. Gay men may be pressured to undergo sex-reassignment surgery to avoid legal and social discrimination. Gay men may also face homophobic violence, including members, from family members and others. …
…
2.149 In September 2022, two Iranian LGBTI activists were sentenced to death for offences in including ‘corruption on earth through the promotion of homosexuality’ as well as trafficking, though observers said that this charge related to assisting people at risk to leave Iranian territory.
…
2.151 LGBTI people may use social networking apps like Grindr, Bumble and Tinder to communicate. These services are accessed illegally through virtual private networks. There are no public gathering places for LGBTI people, for example gay bars, in Iran.
2.152 In-country sources told DFAT younger Iranians, particularly in more progressive parts of major cities, are increasingly more tolerant, but on balance, homosexuality is not openly discussed, and gay people face severe discrimination. Discrimination can include harassment and violence and harassment from family members, work colleagues, religious figures, and school and community leaders. Ostracism from family is common, particularly in the case of conservative families. DFAT understands gay men and lesbians face considerable societal pressure to enter a heterosexual marriage and produce children.[18]
[18] 2023 DFAT Report, [2.147]-[2.152]
Separately, the US Department of State also reports that the law in Iran does not distinguish between consensual and non-consensual same-sex intercourse.[19] Punishments under the Penal Code for same-sex sexual activity include 100 lashes or the death penalty, depending on the nature of the sexual activity and the number of convictions.[20] Same-sex sexual conduct between men and between women is criminalised, and both men and women can be sentenced to death on the fourth conviction for same-sex sexual conduct.[21] Security forces harass, arrest and detain individuals suspected of being LGBTIQA+.[22] They are sometimes subject to beatings or other abuse (sometimes including sexual abuse) while in detention.[23] People accused of sodomy often face summary trials where evidentiary standards are not always met.[24] Additionally, societal discrimination is widespread but nuanced, and occurs at a greater level in smaller cities and rural areas.[25] There is no law prohibiting discrimination against LGBTIQ+ individuals.[26]
[19] US Department of State, Country Reports on Human Rights Practices for 2023 - Iran (20 April 2024), Sec.6.
[20] Ibid; ILGA World, Laws On Us: A Global Overview of Legal Progress and Backtracking on Sexual Orientation, Gender Identity, Gender Expression, and Sex Characteristics (30 May 2024), p.52.
[21] Asylum Research Centre (ARC), Iran: Query response on the situation and treatment of the LGBTQI+ community (January 2024), pp.13-14; 'Iran', Human Dignity Trust (16 December 2024), < US Department of State, Country Reports on Human Rights Practices for 2023 - Iran (20 April 2024), Sec.6.
[23] Asylum Research Centre (ARC), Iran: Query response on the situation and treatment of the LGBTQI+ community (January 2024), pp.42-54; 'General Country of Origin Information Report on Iran', Ministerie van Buitenlandse Zaken (The Netherlands) (September 2023), pp.44-45; ‘The Iranian Prisons are Brutal for Queer and Trans Individuals: Five Eyewitness Accounts’, Radio Zamaneh (Netherlands) (30 July 2023), < 'A Dark History: Honor Killings of Iran's LGBTQ Citizens', Iran Wire (2 August 2020),< 'New Report Reveals the Torment of Iran’s LGBTQ Community', Iran Wire (17 September 2020), < US Department of State, Country Reports on Human Rights Practices for 2023 - Iran (20 April 2024), Sec.6.
[25] ‘Iranian translator of Blue Is the Warmest Colour 'declared persona non grata'’, The Guardian (United Kingdom) (13 February 2015), < ‘Military Service: A Nightmare for Minority Recruits’, IranWire (13 April 2015), < US Department of State, Country Reports on Human Rights Practices for 2023 - Iran (20 April 2024), Sec.6; Human Rights Watch World Report 2024, Human Rights Watch (HRW) (11 January 2024), p.316.
Information regarding Iranians engaging in political activity
DFAT reports that the Iranian constitution does provide some protections for freedom of political assembly; however, these freedoms are conditional on the requirement that they not be ‘detrimental to the principles of Islam’.[27] DFAT further notes that topics deemed sensitive by the government include ‘women’s rights, LGBTI rights [and] criticism of the regime’.[28]
[27] 2023 DFAT Report, [2.103].
[28] Ibid.
With respect to the Mahsa Amini Protests, DFAT reports that:
2.106 On 16 September 2022, a significant protest movement began following the death of 22-year-old Kurdish-Iranian woman, Mahsa Amini, while in the custody of Iran’s morality police. Amini was arrested in Tehran for breaching the strict Islamic dress code by allegedly not wearing the hijab appropriately. The protests, initially led by women and girls, took place across the country. Over the succeeding weeks, the protests garnered broad support, particularly among young people and students, and a range of celebrities and public figures. They have evolved into broader protests against the regime.
2.107 The government response to protest action has been harsh. Iran Human Rights Group estimated that, as at 3 April 2023, at least 537 people including 68 children and 48 women, died during the protests. While the death toll and the causes of death cannot be verified, reports indicate that the vast majority of deaths have been at the hands of security forces either by firearms or beatings. The government has imposed severe sentences on those arrested, including significant jail time, and in some instances, the death penalty. The response by security forces has been particularly harsh in majority Kurdish and Baluch regions.
2.108 While the exact number of death sentences imposed on protesters is difficult to determine, as at 13 January 2023, Iran Human Rights Group estimated at least 109 protesters were at risk of execution. DFAT understands at least 15 death sentences have been confirmed – two of which were carried out in early December 2022, with a further two in early January 2023 and three in May 2023.
2.109 While there are no official figures, as at 10 January 2023, reliable sources indicated around 20,000 people had been arrested since the protests began. Many have been released either without charge, or pending court hearings. DFAT is aware of harsh sentences being handed to many protesters, including long jail sentences. As at 19 December 2022, DFAT understood 400 protesters had been sentenced to jail, 160 of whom were sentenced to between five and 10 years in prison, 80 sentenced to two to five years, and 160 people to up to two years. Trials have occurred quickly without due process and in secret. DFAT has been told that many of those prosecuted have either had no legal representation or ineffective court-appointed lawyers. As at the time of publication, the government’s harsh response had significantly curtailed, but not stopped, protest activity. Social media activity reflects ongoing anger against the regime. These are the biggest and longest-running protests in the history of the Islamic Republic. They differ from previous protests in their overt call for social change and the overthrow of the regime.
Available country information indicates that the Iranian authorities continue to monitor dissidents, activists and protest movements, including those outside of Iran. Iranian intelligence agencies target Iranian dissidents, journalists and activists living overseas and use tactics such as online intimidation and physical stalking against them.[29] Family members of Iranian nationals who participated in anti-government protests abroad (including in Australia) have reportedly been harassed and arrested in Iran in 2022 and 2023.[30] Participants of anti-regime protests in Europe have had their Iranian passports confiscated by authorities on their return to Iran in 2024.[31] Iranian embassies in Europe have also refused to renew the Iranian passports of participants in anti-regime protests, journalists and political activists.[32] In January 2024, the Australian government announced it had disrupted the activities of suspected Iranian intelligence who had conducted surveillance of the home of an Iranian-Australian dissident.[33]
[29] 'IRN201321.E - Iran: Monitoring of Iranian citizens outside of Iran, including political opponents and Christians, by Iranian authorities; monitoring of Iranian citizens in Canada; consequences upon return to Iran (2021–March 2023)', Immigration and Refugee Board of Canada (2 March 2023) < '‘Silencing dissent by threatening family’: Iran cracks down on family of Australian protester', The Age (16 January 2023), < 'How the Iranian regime is intimidating and surveilling its former citizens in Australia', Australian Broadcasting Corporation (5 November 2022) <
[31] 'Crackdown on Diaspora Dissenters: Surge in Passport Seizures at Iranian Airports', IranWire (20 February 2024) < 'Iranian Embassies Deny New Passports to Islamic Republic Critics', IranWire (15 February 2024) < 'Australia 'Concerned' By Iranian Espionage Activities', Iran International Magazine (16 January 2024) < OF CLAIMS AND EVIDENCE
The Tribunal found the applicant to be a credible witness. At hearing, his evidence regarding his sexuality and process of self-realisation as a gay man was clear and consistent. In this regard, the applicant provided a frank account of his life in Australia and his fear of returning to Iran as a person who is same-sex attracted. The Tribunal accepts that the applicant went through a period of experimentation with [Friend A], and that he experienced a period of culture shock after arriving in Australia that ultimately delayed his coming out within the Australian community. Similarly, whilst Mr [A’s] evidence was brief, the Tribunal found him to be credible and his evidence was consistent with that of the applicant.
Given the totality of the evidence before it, the Tribunal is satisfied that the applicant is gay.
Although the applicant’s delay in applying for protection is significant, the Tribunal does not draw any adverse inference as to the applicant’s credibility, or the credibility of his claims on this basis. The Tribunal finds that the delay is primarily attributed to the applicant’s own personal circumstances upon his arrival in Australia. At the time, he was still a teenager and, in his own evidence, he experienced a degree of culture shock with which he struggled.
The Tribunal also notes that Department policy recognises that a delay in making a claim related to sexual orientation may occur where an applicant seeks to ‘avoid making sensitive claims until they have to do so’. [34] It also notes that many applicants ‘may not have talked to anyone about their sexual orientation or gender identity previously’. [35] Having regard to the totality of the applicant’s circumstances at the relevant time – including his hope to obtain permanent residency through alternate means upon the completion of his studies – the Tribunal accepts that some delay in applying for protection is reasonable.
[34] Department of Home Affairs, The Protection Visa Processing Guidelines (8 November 2024) [25.19].
[35] Ibid.
Accordingly, the Tribunal accepts that while the applicant’s decision to apply for protection was prompted by the realisation that he would be unable to complete his studies, this does not necessarily warrant adverse weight. Rather, it is accepted that this realisation, and his disclosure to his father that he is gay, served as the final catalyst for the applicant’s decision to apply for protection. Consequently, despite a delay of more than two years in lodging his protection visa application, the Tribunal does not consider the delay to be determinative and finds that it does not undermine the credibility of the applicant’s protection claims.
In addition to his claim regarding his sexuality, the applicant was able to express in relatively clear terms his opposition to the Iranian government and his motivation for joining protests in Australia in 2022. The Tribunal accepts that the applicant genuinely holds the anti-Iranian government political views that he expressed. Furthermore, the Tribunal accepts that the applicant has participated in political protests against the Iranian government in Australia.
With respect to his political claim, the Tribunal has not drawn any inference unfavourable to the credibility of those claims or that evidence that was presented to the Tribunal that was not previously submitted to the Department. In this regard, it is noted that the applicant’s active involvement in political protests occurred in 2022, after the Department concluded its assessment of the applicant’s case.
Given the applicant’s oral evidence and the documentary evidence submitted to the Tribunal, the Tribunal finds that the applicant’s participation in the protests was primarily as an attendee, but that he also supported the organisers in drawing political and media attention to the protests. Furthermore, given the country information above, the Tribunal accepts that the applicant may have been photographed and/or monitored by Iranian agents acting in Australia.
The Tribunal accepts the applicant’s explanation for his involvement in political protests in Australia despite not having previously engaged in any similar political activities. It is also accepted that the applicant engaged in these protests for a genuine reason and not for the purpose of strengthening his claims for protection.
Given his relatively low-level participation in the protests as a participant and supporter to the organisers, it is not accepted that the applicant’s political profile is such that he would necessarily be immediately questioned or arrested on return to Iran. However, the Tribunal finds that his cumulative profile as a gay man who has a relatively recent history of engaging in political protests outside of Iran, places him at a higher risk of coming to the attention of the authorities for this reason.
ASSESSMENT OF CLAIMS
Given the findings above, the Tribunal finds that the applicant would be a member of the following particular social groups on return to Iran:
a.Gay men; and
b.Members of the LGBTIQA+ community.
The Tribunal finds that these are particular social groups for the purposes of ss 5J(1)(a) and 5L of the Act. The characteristic shared by each member of the group is innate or immutable, distinguishes the group from society and is not a shared fear of persecution. Additionally, the characteristic is fundamental to the applicant’s identity or conscience, and he should not be forced to conceal it.
It is also accepted that the applicant holds an actual anti-government political opinion and that he has actively participated in political demonstrations in Australia.
After consideration of the evidence before it, the Tribunal finds that the applicant faces a real chance of serious harm in Iran for the essential and significant reason of his membership of the above particular social groups and his anti-government political opinion as required by s 5J(4)(a) of the Act. That harm includes but is not limited to exposure to criminal charges and other forms of punishment, including death, and/or other acts of discrimination and/or verbal and physical abuse and/or violence, capable of constituting significant physical harassment and/or significant physical ill-treatment, which would amount to serious harm for the purposes of s 5J(4) of the Act. The perpetrators of that harm include the Iranian authorities and members of the broader Iranian community. The Tribunal finds that the persecution feared by the applicant involves systematic and discriminatory conduct, as required by s 5J(4)(c) of the Act, in that the harm would involve the deliberate and targeted harassment of the applicant for reason of his membership of the above particular social groups and political opinion.
The Tribunal is satisfied that the persecution feared by the applicant applies to all areas of Iran as, on the country information before it, the treatment of members of the LGBTIQA+ community, same-sex attracted people, and political dissidents is consistent across the country. Consequently, the Tribunal finds that the real chance of serious harm extends to all areas of Iran for the purposes of s5J(1)(c). As such, relocation within Iran is not available to the applicant.
Additionally, given the country information cited above, the Tribunal is satisfied that effective protection measures would not be available to the applicant as the persecution feared by him involves state actors and agents acting throughout the country, or alternatively, by non-state actors whose actions are either condoned or encouraged by the state. Consequently, the applicant will not be able to access effective protection measures from the Iranian state for the purposes of s 5LA of the Act, and he is not excluded from having a well-founded fear of persecution by operation of s 5J(2) of the Act.
The Tribunal finds that any modification of the applicant’s behaviour to avoid a real chance of persecution in Iran on the basis of his sexuality or political opinion would conflict with characteristics that are fundamental to his identity or conscience, and would be undertaken only to avoid the threat of serious harm. Consequently, the applicant cannot be expected to take steps to modify his behaviour so as to conceal his sexuality or political opinion in order to avoid the feared persecution.
Given the above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant faces a real chance of persecution in the reasonably foreseeable future if he returns to Iran. As such, the applicant satisfies s 36(2)(a) of the Act and is a person in respect of whom Australia has protection obligations.
Section 36(3) of the Act provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside in a third country. The Tribunal is not satisfied that the applicant has any right to enter and reside in any other country and the Tribunal finds that s 36(3) does not apply in the circumstances of this case.
DECISION
The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date of hearing: 30 May 2025
Representative for the Applicant: Mr Farnam Razzaghipour (MARN: 9789359)
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.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
'Australia says it busted Iran surveillance op targeting activist', Agence France Presse (AFP) (14 February 2023) <
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