2303205 (Refugee) - [2023] AATA 4099

2303205 (Refugee) [2023] AATA 4099 (17 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Sheri Enkeshafi (MARN: 0958723)
CASE NUMBER:  2303205
COUNTRY OF REFERENCE:                   Iran
MEMBER:Denis Dragovic
DATE:17 August 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 23 August 2023 at 2:48pm
CATCHWORDS
REFUGEE – protection visa – Iran – Federal Circuit Court remittal – physical disability – limp after injury to leg in car accident – societal isolation, discrimination in job interview and outburst against government – detained and forced to sign commitment not to insult government – court case and watch list – ‘smuggler’ paid departure official at airport – political opinion and participation in protests – detained and beaten – mental health – returned failed asylum seeker – exaggerated, inconsistent and contradictory claims and evidence – no current evidence or submissions provided and consent to decision without hearing – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
CLS15 v Federal Circuit Court of Australia [2017] FCA 577
DFO19 v MICMSMA [2023] FCAFC 38
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Iran, applied for the visa on 8 July 2013 and the delegate refused to grant the visa on 5 September 2014.
On appeal to a differently constituted Tribunal the then member affirmed the decision on 3 August 2015 based upon extensive credibility concerns.
The matter is before this Tribunal because of a Court order dated 2 February 2023 relating to the previous Tribunal decision. Taglieri J quashed the previous tribunal’s decision for the following reasons:
Jurisdictional error is made out. The construction by the Tribunal that the correction was made at the time of the statement being signed in June 2013 was demonstrated to be incorrect on the basis of the transcript. A material part for disbelieving the applicant was factual misconstruction that he had taken the opportunity to make corrections, when this was factually wrong.
The applicant’s claim that he had been rejected for a government job because of disability and come to the attention of the authorities was made before the delegate at interview. There was reference expressly to a claim about the government job interview being denied by the applicant’s representative during the interview with the delegate. The adverse credit finding made by the Tribunal about the claim being effectively an invention was based on a false premise and misconstruction, meaning that it constitutes jurisdictional error.
The Tribunal’s reasoning demonstrates jurisdictional error by failing to consider the claim of inability to subsist due to disability in the context of complementary protection.
It was a component of the applicant’s claims the applicant made that he feared harm of return to Iran due to illegally entering Australia. The Tribunal assumed the applicant would return voluntarily rather than enquiring about this, then making a finding and giving reasons for its conclusion. Its approach and reasoning reveal jurisdictional error.
On 3 July 2023 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. On 17 July 2023 the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.
The applicant was represented in relation to the review.
RELEVANT LAW
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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. 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.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
As the applicant chose not to appear before the Tribunal, I am limited to the evidence provided in earlier iterations of submissions by the applicant and his representatives along with the audio from the previous member’s hearing.
Mental health
At the previous tribunal member’s hearing in 2015 the applicant identified some personal mental health challenges and in turn was asked by the member whether he could proceed to give evidence, the applicant affirmed that he could and was provided additional breaks as requested.
At the time of the previous member’s hearing no medical practitioner’s evidence had been provided to inform the member of the state of the applicant’s mental health.
For the purposes of considering whether and to what degree the applicant’s evidence at the previous Tribunal hearing can be relied upon for the reasons of his then claimed mental health challenges, I note that without contemporaneous or even near cotemporaneous medical evidence I am unable to draw any conclusions about his mental health other than what can be deduced from the hearing itself. In listening to the audio of the previous member’s hearing I am satisfied that the applicant was lucid and was able to give detailed evidence in response to the questions being asked. I find that he was given a meaningful opportunity to give evidence and present arguments. Nevertheless, I acknowledge that the applicant’s mental health may play some role in his ability to recollect the past and as noted below, I have taken this into consideration where relevant.
Evidence and findings of fact
The applicant claims to be of Azeri ethnicity and a citizen of Iran. He claims that he is a person of Shia faith. He wrote in his application that he was born in [Year] in the city of Oromidayo, capital of West Azerbaijan Province.
In a statement dated 17 June 2013 that accompanied his application the applicant claimed that he was involved in a car accident in February 2011. As a result, his [Body part 1] was badly fractured that in turn led to a limp. He wrote that it took five operations and eighteen months of repeated hospitalization before he was able to walk again.
He claimed in the same written statement that as a result of his limp ‘Whenever I went to the relevant government organisations I was humiliated by the authorities. They would make fun of my disability. Even in society I was not treated like a normal human being, I was constantly discriminated because of my disability.’
Furthermore, the applicant claimed in his written statement that he was accused by three Basij officers of attending demonstrations against the regime but that he was not arrested.
During the Departmental protection visa application interview, as recorded in the delegate’s decision which was provided to the Tribunal, the applicant reinforced his claims of being discriminated against due to a disability. He gave the example of having to wait for his military exemption card longer than others and that society had been ‘picking on him’.
The delegate recorded that the applicant’s problems arising from his disability was claimed to have led to his father buying a business for him and his brother to work in. This claim does not align with the applicant’s work history as provided in his application which only shows the applicant being employed in one business since 2000 through to 2013. The notation alongside this employment indicates that it is his father’s business as he wrote, ‘Assisted father in [doing a job task]’.
In the Departmental decision the delegate recorded asking the applicant whether he had a problem leaving Iran to which the applicant replied that he did not.
At the previous member’s tribunal hearing on the 22 July 2015, the applicant expanded on his circumstances including introducing new evidence, at times contradicting his earlier evidence, along with new claims.
At the hearing the applicant claimed that his injury occurred in late 2009 whereas in his protection visa application he claimed that it was February 2011. He claimed that he couldn’t walk for a year and needed to regularly receive medical treatment. Despite at the time of the hearing being able to walk he said that he continues to have lower back pain and a limp.
He said that his medical situation began to improve about 1.5 years before he came to Australia. The applicant arrived in Australia [in] March 2013.
In considering the applicant’s conflicting claims of when the accident occurred, I note that by working backwards from March 2013 with one year covering the period that he was unable to walk and another one and a half years covering the period during which it was improving, the estimated date of the accident is about mid to late 2011. This aligns with the date first provided to the Australian government by way of the applicant’s statutory declaration accompanying his protection visa application.
Other potential sources of information include alternative timelines, for example, his education history. His education history as recorded in his entry interview has two gaps which could support both the 2009 and 2011 date but as the applicant did not provide specific months and instead indicated that he studied from ‘2010 to 2011’ and again from ‘August 2012 to 2013’ it is not possible to ascertain whether there was a gap in 2011 or that the accident occurred before he started his adult education in 2010. That is because country information indicates that Iranian school years run from September through to June[1] and as such when the applicant noted 2010 as being the first year of his studies, it is not clear whether that is September 2009 with the majority of his school year running through 2010 and hence the reference to 2010 or if it meant a start date of September 2010.
[1] >
Three school certificates were provided to the Department, but they were not translated and as such I cannot deduce any details from them.
Alternatively, the applicant’s protection visa application has only a single entry for his education running from June 2011 through to February 2013 and a notation ‘Completed 2^nd and 3^rd year’. There is no mention of 2010. This evidence is either strongly indicative of the accident being in 2009 or alternatively that the impact on the applicant was not as serious as he had claimed and that he continued to study while recovering from his injury.
As is discussed further below, the applicant claimed to have been at a demonstration in 2011. Country information indicates that these demonstrations were in April, July and September 2011 which suggests that the applicant’s accident could not have been in February 2011 assuming the accident was as severe as he claimed and his recovery as long as he claimed.[2]
[2] and
A psychiatrist’s letter from 2018 mentions the accident as being reported to him as occurring in 2009.[3] A general practitioner’s letter from 2017 mentions the accident as being reported to have occurred in 2009.[4]
[3] Peter Churven, Consultant Psychiatrist, dated 11 April 2018
[4] Dr Janet L. Bodycomb, dated 1 August 2017
Other evidence relating to his injury includes letters from various medical practitioners detailing the pain medication the applicant was taking at earlier points in time. The most recent list of medication the applicant is taking does not include pain medication.[5]
[5] Letter from the ASRC dated 19 November 2019
With regards to the medical treatment he received in Iran, the applicant said that he was treated in his home city; [a neighbouring city] which had better facilities; as well as in Tehran where they had an MRI facility.
The applicant provided evidence at the hearing regarding a job interview with a government department in 2013. He claimed that he didn’t get a job that he had applied for but was invited to sit for other tests and after passing the written test stage he was invited to an interview. At the interview, he claimed that he was told that he wouldn’t get the job because of his limp. He said that he became angry and denounced the government and the parliament, he claims to have suggested that bribery would get him a job and that the government was ruining everything.

The applicant claimed that as a result of his rage, he was taken away by the police, detained 4-5 hours and told to sign some papers. He was then told that he could go but that they would later come back to see him. He said that it was clear that he was accused of insulting the government and parliament. The papers he signed, he recalled, as being a commitment not to insult the government again and another that they can arrest him any time.
Subsequently, he claimed that his father would get calls from a security agency about him. He claims that he only learned about this after the passing of his father that led to his older brother telling him about it. His brother told him that his father hadn’t mentioned the calls to him because his mental health wasn’t good after the accident.
The applicant claimed at the hearing that this was the reason for him leaving Iran. When the previous tribunal member raised a concern that there was no mention in his visa application regarding the job interview which he was now claiming to be the reason he left Iran, the applicant said that he didn’t know that it was relevant. The previous member also noted that he had the support of a registered migration agent when completing the protection visa application form and noted that the form asks if he had ever been investigated or whether there were charges pending, in response to which the answer recorded was marked as no. The applicant said that he didn’t know what was happening when he was coming out of Iran, so he was scared to give answers.
Regarding his passage out of Iran, the applicant recalled at the previous tribunal hearing that his father told him that he had to leave Iran and when the day came for him to go a man took him to the airport and through immigration. The previous member asked for details. The applicant initially said that the ‘smuggler’ paid the one person at the immigration booth to let him through even though he had less than six months left on his passport’s validity and that he was then told to go quickly before the person manning the booth changed. When the previous member pressed him about there being only one immigration official, the applicant claimed that it was at the [Airlines] gate, but when it was noted that airports don’t have immigration control at specific gates the applicant changed his story and said that he remembered that the smuggler took him through immigration. The previous member expressed doubt that a smuggler could go into immigration (which I do not accept as a valid concern considering it is not clear who the smuggler was or what clearance he had), and the applicant then, again, changed his story saying that the smuggler went with him through immigration and came with him to [Country]. The previous member noted his concern about the changing narrative and in response the applicant affirmed that the smuggler was with him all the way to [Country].
The applicant claimed in the previous hearing that his name was on a list of people who were not permitted to leave Iran. He claimed that security officials came to his father’s house two days after he left. In his representative’s submission of July 2015, it is claimed that the applicant believes that this visit was for the purpose of arresting him.
He then mentioned a court case which had not previously been mentioned. The applicant said that he hadn’t mentioned it earlier as he only learned about the reasons he had to leave Iran after the death of his father. He said that he learned about the court case about 6 months. The previous member noted that the submission from the applicant’s migration agent to the Tribunal didn’t include a mention of a court case despite being dated from the previous week. The applicant responded that he doesn’t have a full understanding of everything that happened even at the time of the hearing.
The previous tribunal member noted that other people who have limps are employed in the government and questioned whether him not being given the job was because of the limp. The applicant responded that he hasn’t seen people with limps employed by the government in his city.
The applicant claimed at the hearing that after his accident he was isolated from society. He said that society did not accept that he could do anything. But it was noted at the hearing by the previous member that the applicant was running his father’s business most of the time. The applicant said that he started looking for a government job because he didn’t want to be isolated from society.
The applicant’s employment history as presented at the hearing is different to what was provided in his application form. At the hearing the applicant mentioned that he worked in a factory before his accident and then after being dismissed due to his injury he worked for his father in their family business. Whereas in his application form he listed having worked only with his father from 2000 to 2013.
The applicant fleetingly mentioned at the previous member’s hearing that he was once a member of a political group but when pressed, noting that there had not been such a claim before, the applicant could not provide further information and reverted to claims of his memory failing him.
The applicant mentioned at the previous member’s hearing that he had been involved in a protest regarding the damming of Iran’s second largest salt sea near his home. In his representative’s pre-hearing submission, it was described as a ‘series of demonstrations’. The applicant said that during the government’s construction of the dams in 2011 many people demonstrated. He estimated that seventy percent of the population of his home city were demonstrating. The previous tribunal member asked if they faced persecution because of it to which he said that the authorities took photos of the protestors. He claimed that he and a friend of his were detained for 2-3 days. In the representative’s submission it is stated, ‘He reports that once he was beaten up by the Baseejis’, in the context of the Lake Uremia protests.
In a submission by the applicant’s representative dated 10 July 2015 at [14], prior to the hearing being held on the 22 July 2015, it is stated that the applicant:
holds anti regime political views. He actively participated in the post election demonstrations in 2009 and the demonstrations held in support of Lake Orumieh but did not get arrested. He asserts that he will keep opposing the regime if he returns to Iran by supporting the Green movement.
The evidence before the Tribunal is that the applicant has a widowed mother who has Alzheimer’s and is on a government pension and an older brother, both of whom live in Iran. With regards to the father’s shop, it has been closed since the applicant left Iran as his brother is cited as being unable to run it.
In a submission by the representative dated 17 July 2023 the applicant was claimed to have attended a protest against the Iranian government in Australia in 2022 in support of the women, life, and freedom movement.
Findings of fact
Based upon the submission of Iranian identity documents and school certificates that appear to be Iranian I am satisfied that the applicant is an Iranian national. There being no evidence to suggest he has another nationality or right to citizenship and Iranian citizens do not have the right of entry to another country, I am satisfied that the applicant does not have a right to reside in any other country.
I accept that the applicant was involved in a car accident that led to a year of medical treatment and eventually leaving him with a limp. With regards to the question of when this happened, I note that the evidence strongly indicates a 2009 date for his injury which aligns with his oral evidence given at the previous member’s hearing and also aligns with the timing of the accident given to medical practitioners the applicant engaged with subsequently. As such, based on the evidence before me, I find that the applicant’s injury arose from an accident in 2009.
I accept the applicant’s narrative of the extent of injuries and the medical treatment he received in Iran following the accident.
The applicant claimed that he was dismissed from his factory job following the accident. I accept this to be the case as I have accepted that he was severely injured and unable to walk for a year. Flowing from this I find that the applicant was working in a factory prior to the accident and that after the accident he joined his father’s business which had been operational prior to the applicant’s injury based on the applicant listing his employment with his father as being since the year 2000. That the applicant potentially had two jobs, both a factory job and helping his father’s business is not extraordinary and not a reason to question his credibility. That the applicant did not list his factory job is of concern but a relatively minor concern.
With regards to the applicant’s claims of being involved in a job interview with a government department which involved the applicant abusing the officials and claims of security officials subsequently pursuing him, I have some concerns over these claims. The applicant did not include any information relating to such an incident in his protection visa application. Instead, these claims were first raised at the Departmental interview stage.
The applicant gave numerous reasons for why the claims were not mentioned earlier including lacking confidence to tell others, not knowing that it was relevant and that he was scared to tell the truth.
It is difficult to believe or sustain that the applicant contrived the entire scenario. If he were to do so, I would have imagined that he would have contrived a more compelling set of circumstances, but having said that, it is not unreasonable to question whether the entirety of the claimed consequences that arose from the failed job interview were as he said they were or whether he had exaggerated or completely contrived some of them.
I am satisfied that the applicant participated in a job interview and that he was not offered a job. I give the applicant the benefit of the doubt and accept that he abused the officials and spoke ill of the government which in turn led to the applicant being escorted out of the interview, detained 4-5 hours, told to sign some papers and subsequently told that some security officials will follow up. I accept that the papers he signed included a commitment not to insult the government again and another that they can arrest him at any time.
But then the applicant claimed that he was placed on a watch list at the airport, that the intelligence services, Ettela’at, called his father repeatedly and that there was a court case that found against him. I question these claims. In doing so, I note the applicant’s mental health challenges and how they may impact his memory recall but as is shown below, the issue with his evidence isn’t a matter of gaps in the narrative potentially arising from lapses in his recall, but rather claims that are contrary to country information and have been repeatedly changed through the course of a single hearing.
Country information regarding the situation at the Imam Khomeini International Airport is provided below. This information from 2006, prior to the applicant’s departure, indicates the following:
After check-in, passengers go upstairs to the first floor. Here they arrive at the last passport checkpoint, which forms the actual exit control. This is where travel documents are examined in detail. Two passport inspectors sit in each passport control booth. Each inspector normally has a separate queue to deal with. Passengers can usually stand in either queue without awaiting further instructions from an official.
Once a passenger reaches the passport inspection booth, he gives his passport to the two passport inspectors. Married couples, however, are dealt with together. In the case of Iranian nationals, the information contained in the passport is checked against data stored in a computer system to which the inspectors have access. The data stored in the computer system cover both Iranian nationals and persons permitted to reside in Iran.
According to the passport inspectors and the Iranian police (LEF), this system indicates whether an individual passenger has any unsettled matters with the Iranian authorities. If so, the person concerned is refused permission to leave Iran. However, a person may be permitted to leave the country even if he has an outstanding matter. In such cases he must present a written order from a judge. Whether an exit permit will be granted depends on the nature of the individual case.[6]
[6] Canada: Immigration and Refugee Board of Canada, Iran: Exit and entry procedures at airports and land borders, particularly at Mehrabad International airport; identity documents such as birth certificates, and marriage and divorce certificates; incidence of bribery of Iranian border officials to facilitate departure by individuals with fraudulent travel documents or outstanding financial, military or legal obligations, or who are sought by the government for political reasons; the punishment for border officers caught taking such bribes (2004 - February 2006), 3 April 2006, IRN101052.E, available at: >
That this information uses the term ‘each passport control booth’ suggests that there were more than one control booths which is what would be expected at a major international airport.
The above country information reports that the passport system alerts officials of any unsettled matters. The scale and extent of such matters, whether they are parking fines or murder cases, is not clear.
Instead, I revert to relevant information but from 2017, a few years after the applicant’s departure, which I nevertheless accept as being relevant as such matters would not change rapidly nor substantially over a period of a few years. The relevant country information includes:
A report by the Danish Refugee Council (DRC) and Danish Immigration Service (DIS), based on interviews in Tehran and London conducted in September and October 2017, indicates that Iran will not automatically issue a travel ban after a civil or criminal sentence, but that cases involving debt, national security and "political cases," along with cases where "there is no access to the accused person," will trigger a travel ban (DRC and DIS of Denmark Feb. 2018, 8). The same source also states that the prosecutor's office has a border authority-linked database of individuals on the travel ban list, and reports the following:
One source added that when judges issue travel bans, these are received by other authorities without delays/in "real time". Furthermore, exiting the country legally when a travel ban has been issued is next to impossible. According to the source, the security at the border is very strict; additionally, the borders are highly controlled by the military. At the same time, it would be very costly to arrange an illegal departure. (DRC and DIS of Denmark Feb. 2018, 8-9)[7]
[7] 10 March 2020 IRN200128.E Iran: Exit and entry procedures at airports and land borders, particularly at the Imam Khomeini International Airport; whether authorities alert border officials of individuals they are looking for; incidence of bribery of Iranian border officials to facilitate departure; the punishment for border officers caught taking bribes (2017–February 2020), Research Directorate, Immigration and Refugee Board of Canada
According to this information the specific types of matters that lead to an exit ban include debt, national security and political cases, along with cases where ‘there is no access to the accused person.’ It is not claimed that the applicant was somehow involved or accused of being involved in a debt or national security matter. Considering that the applicant continued to live in the same house as he had in the past, I find that he could not have been considered as having absconded or was somehow unavailable or inaccessible to the authorities. As for whether the applicant’s tirade against some officials at interview amounts to a political case, I suspect that it would technically, but not practically in his case. That is because of the nature of the authorities’ response, namely detaining him for a few hours and then releasing him, asking him to sign two documents but not charging him and then not following up with him in the immediate aftermath. This suggests that this incident was considered low level, a view that aligns with information in a contemporaneous DFAT report, namely that the authorities tolerated some degree of criticism.[8]
[8] DFAT Country Information Report: Iran, 29 November 2013 at [3.51]
Having found that the situation was found to be low level and there were no charges laid against the applicant and no follow up while the applicant remained in Iran, I also find that the applicant’s father was not visited or called by security officials two days after the applicant left.
Noting the repeated changing narrative of the applicant’s departure through the Imam Khomeini International Airport I am not convinced that he used a people smuggler to get through immigration control and board a plane while claiming to have less than six months validity left on his passport. The extent of changes to his narrative, claims that don’t align with country information such as the single immigration official, and unlikely, but possible, claims such as the smuggler travelling with him, are collectively too vexing to set aside. I note that at the Departmental interview, as recorded in the delegate’s decision, the applicant indicated that he did not encounter any problems departing Iran. I accept this evidence as the actual situation, namely that he did not use or need a smuggler and that he left legally without encountering any problems exiting Iran.
I do not accept that there was any court case against the applicant as he claimed, for the first time, at the hearing of the previous tribunal. That this claim was not raised at the protection visa application stage or at the departmental interview nor in the detailed submission by the applicant’s representative prior to the hearing weighs heavily against the veracity of this claim. That there aren’t any supporting documents or mention of documents arising from a court case in absentia such as a summons that would have been delivered to his home address or alternatively published in a major newspaper, further undermines his claims and leads me to not accept them.[9]
[9] Canada: Immigration and Refugee Board of Canada, Iran: Trial in absentia in criminal cases (follow-up to IRN35620.E of 10 November 2000), 29 November 2000, IRN36156.E, available at: [accessed 16 August 2023]
With regards to the treatment the applicant experienced as a person who limps, I firstly note the general context and specifically that there are many people with disabilities in Iran. The Iran-Iraq war is believed to have led to over three hundred thousand men being maimed and requiring some form of ongoing support.[10] In addition, based upon global averages, a Human Rights Watch report estimated that there are 12 million Iranians with some form of disability.[11]
[10] Salamati P, Razavi SM, Shokraneh F, Mohazzab Torabi S, Laal M, Hadjati G, Khaji A, Rahimi Movaghar V. Mortality and injuries among Iranians in Iraq-Iran war: a systematic review. Arch Iran Med. 2013 Sep;16(9):542-50. PMID: 23981159.
[11] >
The applicant claimed that he was humiliated by Iranian society and government authorities due to his limp. The applicant gave examples of being laughed at and made fun of. I accept that some individuals laughed and/or made jokes about the applicant’s limp.
In the same HRW report there were findings that ‘people with disabilities in Iran face discrimination, abuse, and an inaccessible environment,’ but I note that the individuals interviewed had disabilities that were far more debilitating and evident than a limp which is the applicant’s only visible disability. Nevertheless, I accept the applicant’s claims that he did not progress in the job interview as a result of his disability, but it is unclear whether this was because of prejudice as opposed to a perceived inability of the applicant to fulfil the role.

That the applicant had not seen others with disabilities in government jobs is relevant generally, but it would be wrong to apply a population level observation to an individual case. I find that it would be speculative to determine that the reason he was rejected was for the reason of prejudice.
The applicant claimed that he also faced an extended delay in receiving his military exemption. While I accept the applicant’s claims that it took some time to get his exemption, again, there is no evidence to suggest that it was for the reason of prejudice or that it was unduly delayed. A military exemption is for the reason of being unable to participate in military service and as such it is difficult to appreciate how the applicant can say that it took longer than others because of his disability when the only others who would receive it would be those who are unable to participate in military service for reasons predominantly arising from disabilities.
I note that there are other means by which Iranians may avoid participating in military service such as deferrals for reasons of studying at university or travelling overseas, but these are deferrals and not exemptions.[12] As such, I find that the applicant’s military exemption was not intentionally delayed nor that it was delayed for the reason of it being of a particular class of people.
[12] Country Policy and Information Note Iran: Military service, UK Home Office, November 2022
The applicant described some political activity which varied through the different opportunities he had to present evidence to the Australian government. In one instance, he wrote of being accused of attending demonstrations by three Basij officers, in another he spoke of being a member of a political party, and in another that he participated in two different political demonstrations. Whether he was ever arrested or detained is unclear as he provided conflicting information stating that he was and that he wasn’t.
Giving the applicant the benefit of the doubt, noting that there is no information that contradicts the applicant’s claims other than an inconsistent narration, which could arise from his deteriorating mental health, his reticence to share the full story, or confusion over the process; and considering that country information indicates that the two protests the applicant claims to have participated in were widely supported by the population and as such it is possible that he did as well, I accept that he was involved in both the 2009 Green Revolution protests and the Lake Orumieh dam protests and as such I also accept the claim of Basij officers noting his attendance at some demonstrations.
The applicant did not claim to have been arrested or detained during the 2009 protests. The applicant claimed that he wasn’t detained and he also claimed that he was detained for 2-3 days in 2011 following the Lake Orumieh protests. He also claimed at one point that he was beaten during this period. Preferring to err on the side of caution, I accept that he was detained and beaten.
I do not accept that the applicant was a member of a political group as he had never made such claim other than verbally at the previous member’s hearing at which point, he did not provide any further information and when pressed about it described his participation in protests. While I accept that the applicant has a failing memory, considering the numerous opportunities the applicant has had in submitting information or providing oral evidence to the Department and the previous Tribunal, I do not accept that his memory is a reason for why he did not expand on this claim. Instead, I find that he responded by describing his political activities and that this is an indication that his reference to being a member of a political group was an inferred association with the political activities of political groups such as the Green Movement rather than an official card carrying membership of a group.
I accept that the applicant has a mother who has Alzheimer’s and receives a widow’s pension and a brother who continue to live in Iran.
The applicant’s health is relevant in so far as it may both be a trigger for harm and/or exacerbate his vulnerability. As such I now outline the evidence in addition to that already listed above regarding his mental health.
The applicant submitted a letter from his general practitioner dated 1 August 2017 which identified the applicant as having diabetes for which he requires medication. Regarding the status of his [Body part 1] following the vehicle accident in 2009 the general practitioner described the applicant’s condition as leading him to walk with a ‘marked limp’ and that he ‘has a stiff [Body part 1] and constant pain.’ The general practitioner also notes a fall in 2017 which injured his [Body part 1] exacerbating the pain to his [Body part 1] arising from the 2009 accident. As a result, he has ‘severe arthritis of his [Body part 1]’. At the time of the report the applicant was walking with the assistance of a single crutch.
The previous member hearing the matter asked the applicant to stand and pace the room. His observations were recorded orally in the audio of the hearing and in the decision at [28] as:
At the Tribunal hearing, [the applicant] demonstrated his walking capacity albeit pacing the short distance of the hearing room, and I was able to discern a very slight limp, which might even be more discernible under other conditions such as over distances. [The applicant] also rose and sat seemingly as ably others in the room, but he indicated plausibly that any abilities he has with the [Body part 1] diminish with exertion.
Without further information I find that the applicant’s current physical health situation resulting from his accident and fall is as described by the most recent general practitioner and psychiatrist reports that mention it, namely those from 2017 and 2018, which speak of the applicant walking with the assistance of a crutch.
Regarding the applicant’s mental health, the applicant provided a copy of a treating psychiatrist’s report dated 11 April 2018 for the purposes of the then Federal Circuit Court of Australia matter. The report notes that the applicant had been seen on four occasions after being referred by the applicant’s general practitioner. The psychiatrist noted:
[The applicant] has significant symptoms of depression that include low mood, anxiety, lack of energy, insomnia with frequent waking. His lack of drive and energy and poor memory arise out of his level of distress and distraction, make it difficult for him to properly complete tasks such as shopping or helping with the house work.
[The applicant’s] condition has arisen since he lost his work rights some years ago. A few months after he arrived in Australia he was distressed to learn that his father had died unexpectedly and [he] felt bad about not being there. When he wa sable to obtain work as [an Occupation], a career he had previously held in Iran, he found that getting busy and being active, and employed, and self supporting enabled him to cope with his grief. Since he has lost work rights and the ability to support himself, he has struggled to achieve any sense of well being and is at times suicidal.
…
Significantly depressed and may have some PTSD features so that he finds it difficult to function or even perform day-to-day tasks.
The report notes that the applicant was at that time being treated with antidepressants and with a drug for insomnia.
Subsequent medical evidence provided to this Tribunal includes:
a.Letter dated 19 November 2019 by a General Practitioner listing medicines that have been prescribed to the applicant for the purposes of Hyperchole sterolaemia (a cholesterol drug), Depression, and Diabetes
b.Letter dated 15 July 2023, by [Ms A], Clinical Psychologist. The psychologist diagnosed the applicant with severe anxiety, major depression, and posttraumatic stress disorder.
c.Letter dated 28 July 2023 from a General Practitioner indicating that the applicant has ‘complex chronic diabetic [Body part 2]’ requiring medication for treatment
It is not clear from the any of the psychological assessments as to what degree the uncertainty of the applicant’s visa circumstances, and the repeated rejections of his protection visa along with a lack of professional support over the past several years while in Australia are at the heart of the anxiety and depression if not the PTSD, as opposed to the experiences he lived through including coming by boat to Australia or his underlying cognitive profile. This is relevant as returning to Iran may not be the trigger for his mental state as opposed to the years of lack of support or the trauma of the journey to Australia. For example when [Ms A] writes, ‘[The applicant]’s presentation is consistent with having experienced severe trauma in his life,’ it is not clear what the source of the severe trauma is as it is not apparent from the evidence before this Tribunal.
Without professional insight into this question, I cannot make a finding that would suggest his situation would improve for reasons of being with family and among culture or deteriorate for reasons of some past trauma in Iran being re-enlivened. For this reason, I find that the applicant’s mental health situation will continue as it has been described by the clinical psychologist, [Ms A] in her 2023 report.
Regarding the applicant’s claimed attendance at a protest against the Iranian government in Australia in 2022 in support of the women, life, and freedom movement as presented in a submission by the representative, I note that the applicant did not provide such evidence to the Tribunal other than through a third person, namely the representative, which makes it problematic. Nevertheless, considering the circumstances of his health and inability to present at this hearing and noting that protests against the Iranian regime included thousands of Iranians in Australia and as such it would not be surprising that the applicant also attended, I accept that the applicant participated in one such protest.
Considerations
The applicant has made various claims of harm including permutations of claims arising from his seeking asylum in Australia such as using a people smuggler to enter Australia, entering Australia ‘illegally’ and being a failed asylum seeker.
In considering the situation of the applicant returning to Iran, I note that the Iranian Foreign Minister, during his March 2016 visit to Australia, stated that Iran would only accept failed asylum seekers from Australia who returned voluntarily.[13] On 19 March 2018 Iran and Australia signed a Memorandum of Understanding (MOU) on Consular Matters that includes an agreement by Iran to facilitate the return of Iranians who arrived after this date and who have no legal right to stay in Australia.
[13] ‘Iran would welcome back asylum seekers “with pride”, Iranian Foreign Minister says’, 2016, ABC News, 16 March, < accessed 25 January 2019.

100. Charlesworth J in CLS15 v Federal Circuit Court of Australia [2017] FCA 577 stated at [64] that, ‘It is for the Tribunal to determine, on the evidence before it, whether or not the appellant can be forcibly returned to Iran and hence whether a fundamental premise of this aspect of his claim exists.’ Based upon the long history of the Iranian government not accepting involuntary returnees and that only in recent times a diplomatic breakthrough led to a change of position, I find that into the reasonably foreseeable future the Iranian government will not again give ground and revisit its agreement not to accept involuntary returnees prior to the date of the MOU. For this reason, if the applicant chooses not to return voluntarily, then I find he would not return at all, and as such would not face a real chance of serious harm or a real risk of significant harm. This approach, of finding that if the applicant did not choose to return voluntarily then he would not return and as such there isn’t a prospect of persecution, was upheld by the Full Bench of the Federal Court in DFO19 v MICMSMA [2023] FCAFC 38.
101. Alternatively, accepting that there is a possibility that the applicant will choose to return voluntarily, for example after spending some years in immigration detention and deciding that he did not want to remain, I now consider such a circumstance.
102. No evidence is available to this Tribunal to suggest that the use of a people smuggler or entering another country ‘illegally’ (I note that under international law entering Australia as an unauthorised maritime arrival seeking protection is not illegal)[14] can lead to any harm in Iran. On the contrary country information that was discussed with the applicant and remains the case based upon the most recent DFAT report is that Iranian authorities ‘pay little attention to failed asylum seekers on their return to Iran.’[15] When similar information from 2015 was put to the applicant at the previous member’s tribunal hearing, he responded that he has lived in Iran for [Number] years and all of the things that others say aren’t happening are actually happening and can happen. While I accept that the applicant has a unique insight, I note that DFAT reports are compiled through wide consultations including with experts on Iran and in country specialists:
[14] Australian Human Rights Commission, ‘Seeking Protection: refugees and asylum seekers’ Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Iran’, July 2023 at [2.203]
This report is informed by DFAT’s on-the-ground knowledge and discussions with a range of sources in Iran and elsewhere. It takes into account relevant and credible open source reports, including those produced by: the United Nations and its agencies; the US Department of State; the UK Home Office; the World Bank; the International Monetary Fund; leading human rights organisations such as Amnesty International, Human Rights Watch and Freedom House; and reputable news sources.[16]
[16] DFAT p7

103. Other information suggests that the Iranian authorities are not concerned with what their citizens do while overseas[17], which is an overarching assessment by DFAT that I find encompasses whether someone used a smuggler to travel to Australia by boat and enter the country ‘illegally’. The same country information is indicative that Iranian authorities are not concerned about individuals’ participating in protests in Australia unless they had a prior history of political activism.[18]
[17] DFAT at [2.203[ and [2.204] and see also the earlier DFAT report from April 2020 at [5.29]
[18] DFAT at [2.203]
104. That the applicant participated in two protests over a decade ago in which thousands of others did and he was detained but released on one occasion and had no subsequent follow up activity for a number of years leads me to conclude that the applicant can not be considered to have a profile of past political activism, a term that suggests more than ad hoc attendance at two protests.
105. Separate and more recent country information reports that Australian security agencies have identified Iranian actors who have monitored Iranian-Australian critics of the Iranian regime and subsequently threatened their families in Iran.[19] While this is a risk that has been identified, considering that the applicant has not reported his family having been approached, that the applicant doesn’t have a similar profile to the case identified by ASIO and that he only participated in one protest in Australia suggests that the general DFAT assessment that Iranian authorities pay little attention to failed asylum seekers including in situations where they have posted on social media about their sur place activities I find to be more applicable to the applicant’s circumstances than what has been identified in The Guardian’s reporting.
[19] ‘Australia foils Iran surveillance plot and vows to bring foreign interference ‘into the light’’, The Guardian, 14 February 2023 For these reasons I find that the applicant returning as a failed asylum seeker who had entered Australia ‘illegally’ through the use of a smuggler (to enter Australia as opposed to departing Iran), does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal.
107. The applicant claimed to fear harm as a result of his past protesting and political activity. I accepted that the applicant had participated in two protests in Iran and that he was detained after one. But I note that the first protest was in 2009 and he was not pursued or of interest to authorities since. The second protest was in 2011 and he remained in country for another two years without being pursued further.
108. Country information states that ‘Local sources told DFAT ordinary participants in the Green Movement are not of interest to the authorities.’[20] Similarly, when considering his Lake Orumieh protests, DFAT notes that there have been many protests since the Green Movement and, ‘authorities are more likely to be interested in those protest movements than historic examples.’ I note that there have been substantial protests in December 2017, January 2018 and November 2019 and some of the most pressing against the regime over the past several months following the death of Mahsa Amini. As such I find that based upon the lack of interest in the applicant while the applicant remained in Iran, his ability to leave Iran and country information that speaks of a government disinterested in people who participated in historical protests, which I interpret to include those over a decade ago, I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal.
[20] DFAT at [2.116]
109. I have also considered whether the applicant would participate in protests while living in Iran arising from the applicant holding anti-regime views if he was free from fear. I find that the applicant would but at levels similar to his past level of political participation which could be best described as very low.
110. Notably, there is no evidence before the Tribunal to suggest that he had posted on social media, spoke to any media, organised protests or contributed at some level to political agitation, whether in Iran or in Australia, other than over a period of fifteen years having participated in three protests.
111. In considering whether the applicant would face a real chance of serious harm, or a real risk of significant harm arising from very low level political involvement by participating in a protest in Iran into the reasonably foreseeable future, I note that the major protests and crackdowns arising from the death of Mahsa Amini ended in 2022 with limited spill over into 2023.[21] At the time of this decision there were no news reports available to this Tribunal to suggest that there were current protests in Iran. Undoubtedly, there will be future protests, whether economic as the 2019 protests were, access to water as the 2021 protests were or about rights as were the 2022 Mahsa Amini protests. Regardless, noting that the applicant does not have a profile that has been identified by DFAT as someone that would lead him to be of interest to the authorities, and if he protested once in a cycle of protests, as has been his past history, I find that it then is a matter of random chance whether he is collected by security officials.

[21] Country information[22] indicates that the size of the protests is large, but the number of people arrested or even detained is relatively small. For example, the Green Revolution protests that the applicant participated in once had ‘3 million’ protesters and 4,000 arrested. Whereas the Mahsa Amini protests were smaller with a higher number of protestors detained, an estimated 20,000, there are no figures on the total number of participants. The 2019 price hike protests had 200,000 participants with an estimated 4,000 arrests.
[22] United States Institute of Peace, ‘The Iran Primer’, May 30, 2023 Based upon the number of protestors and those arrested in the past, I find that the chance of his being collected during a protest in the reasonably foreseeable future is less than a real chance and less than a real risk, despite the applicant being collected once before (simply because he was collected then doesn’t mean that he would be again). As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm into the reasonably foreseeable future.
114. I have also considered whether the applicant would find himself in a situation where he loses control and abuses government officials as he had before which led to him briefly being detained and warned. The applicant is more than a decade older than he was then, he presented through the audio of the previous member’s hearing as a measured man. One presumes that with age and maturity people would approach challenging situations with greater calm, but that is a generalised proposition that I cannot rely upon, and it would be speculative to assume as much based only on the evidence provided at the previous member’s hearing.
115. Instead, in considering the material before me, I find that there is no evidence that suggests he would find himself in a similar situation into the reasonably foreseeable future. He has not claimed that he would seek a government job and considering his past animosity towards the government it would be strange were he to considering his past rebuttal and there is a private sector in Iran; in addition, there is no evidence before me that he would be required to go through any lengthy engagement with the government during his reintegration into the Iranian community.
116. The applicant identified concerns arising from his disability including being harmed verbally, emotionally and through omission by society and the authorities along with a lack of opportunities for people with disabilities in Iran. I will go through each below.
117. A Human Rights Watch report, “I Am Equally Human” Discrimination and Lack of Accessibility for People with Disabilities in Iran[23] reporting on the situation of people with disabilities found areas that impacted individuals included failures of the State Welfare Organisation tasked with supporting people with disabilities, existing discriminatory laws, inaccessible buildings and public transport, and a lack of access to appropriate health care.
[23] Human Rights Watch, 2018
118. Considering the applicant would not have problems accessing buildings and public transport as do people using wheelchairs or the blind, two groups mentioned in the report as being inhibited due to the nature of the Iranian infrastructure, I do not engage with this further.
119. With regards to the failures of the State Welfare Organisation (SWO), the nature of the identified failures broadly speaking include how support staff treat patients, lack of available and quality equipment and a general lack of services. The applicant did not indicate that he had any engagement with the State Welfare Organisation through his time in Iran following his accident nor do I find after reviewing the HRW report and the nature of those who receive support from the organisation that the applicant would qualify for support from the SWO. For example, the report quotes the Director of the SWO as saying, ‘only those having severe or very severe disabilities are covered by the SWO,’ and another official explained that it only covered those who require rehabilitation.[24] This is not unexpected considering the limited financial resources the SWO operates under which has been identified as an impediment.[25] Nor is the applicant’s mental health a reason to be registered with the SWO as the report notes,
[24] “I Am Equally Human” Discrimination and Lack of Accessibility for People with Disabilities in Iran p37
[25] persons with psychosocial disabilities, only those who are identified as having “chronic mental disease” are registered as persons with disabilities with the SWO. A person with a “chronic mental disease” is defined by having a psychological disease that has been continuous for at least the past two years and who has been hospitalized for their mental condition more than once in the last two years. The individual must also currently face social or professional dysfunction.[26]
[26] Ibid p37-38

120. For the reasons of the applicant’s moderate physical disability and a mental health situation that does not align with the SWO criteria, noting that he has not required physical rehabilitation in Australia and not having had past support from SWO, I do not consider the ramifications of any engagement with SWO any further as I find that he would not be engaging with them.
121. The applicant’s past experience with regards to accessing medical support was that he was treated locally and had access to additional support in neighbouring cities including in Tehran. The applicant’s evidence supports a view that he was not discriminated against in accessing health facilities. I note that recent reforms have expanded access to the health system to an ‘almost universal basis,’ according to international assessments.[27] As such any future need to access health facilities will be open to him as it was in the past and as it is to other Iranian citizens. For this reason, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from his ability to access medical health in Iran.
[27] Report Iran: The Iranian Welfare System, Landinfo, 12 August 2020 at p13 With regards to the report’s identification of existing discriminatory laws I note that the main issue the authors had with the Iranian government’s approach is that it adopts a medicalisation strategy rather than looking at how to remove barriers for people with disabilities in their environment and eliminate discriminatory attitudes. The report references as examples, the usage of derogatory language in laws when referring to people with disabilities including for example, ‘eyeless’ or ‘retarded’.
123. Despite the policy setting being focused on the medicalisation of people with disabilities, as noted above, since the applicant would not qualify for support, regardless of the type of support being provided, this medicalisation strategy does not impact the applicant. While I accept that work needs to be done to align Iran’s approach to supporting people with disabilities and the report acknowledges that some work has been done, I find that such references in laws or the medicalisation approach do not lead to the applicant facing a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal.
124. The applicant claimed that he would be denied access to government support more broadly. There is no evidence before me that suggests that the various types of government support available to Iranian citizens are being withheld discriminatorily from people because of a disability. The applicant’s only example, that his military exemption was delayed, is not evidence of discrimination for the reasons described earlier. On the basis of his claims of facing a denial of access to government support, I find this not to be the case and as such I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal.
125. In considering whether the applicant would be able to sustain himself, he has his mother and brother to return to in Iran. The applicant’s representative wrote in his submission that the applicant does not have a meaningful relationship with his brother, but this does not go so far as to say that his brother would not support him. He also wrote that the applicant’s mother has Alzheimer’s and that she has no support network.
126. Other evidence before this Tribunal is that the family have a home, and the mother receives a widow’s payment. While it may be challenging for the applicant to find work, particularly given his mental health situation, until such time as he does find some work, he can live with his family members and receive support from them. As such, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from an inability to sustain himself.
127. As noted above, it is not clear from any of the mental health reports as to what degree the uncertainty of the applicant’s visa circumstances, and the repeated rejections of his protection visa along with minimal support, are at the heart of the anxiety and depression if not the PTSD, as opposed to the experiences he lived through and his underlying cognitive profile. Putting aside how the environment may impact the severity of his mental health challenges and in turn the potential for recovery, and assuming that his current situation will continue, I note that the applicant has family in Iran and that even were his situation not to improve, he will not be left on his own, as the clinical psychologist inferred was the case during his time in Australia. Noting that Iran has a near universal health care system, and it is not claimed nor is there a reason to suspect that the applicant’s medication needs for depression, diabetes and cholesterol are uniquely available only in Australia, I find that he will have access to medication and some degree of emotional and practical support from his family such that he will not face a real chance of serious harm or a real risk of significant harm arising from his mental health situation.
128. No claims were raised relating to the applicant’s Azeri ethnicity nor is any evidence available to the Tribunal that suggests that there is a reason to consider his ethnicity as a basis of a claim. As such, to avoid any doubt, I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal.
Cumulative considerations
129. In considering the circumstances the applicant faces as a whole, namely that he has a physical disability, mental health challenges, that he would be a failed asylum seeker who had entered Australia ‘illegally’, used a people smuggler to enter Australia, had participated in historical protests, has participated in a single protest in Australia, will participate in a future protest, and over ten years ago abused some officials at an interview that led to him making written commitments but no charges being laid against him. When considering the entirety of these circumstances cumulatively as well as considering how they may interact and amplify the impact, such as how his vulnerabilities may exacerbate harm so that it becomes serious harm when it otherwise would not for someone without those vulnerabilities, I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal.
130. For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I considered the alternative criterion in s 36(2)(aa). I am 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 criterion in s 36(2).
DECISION

133. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Denis Dragovic
Deputy President