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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 2303205 (Refugee) [2023] AATA 4099
Case: [2023] AATA 4099
Decision Date: 17 August 2023

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an individual claiming to be an Azeri citizen of Iran. The applicant alleged he suffered discrimination due to a physical disability resulting from a car accident, including humiliation by authorities and societal isolation. He also claimed to have participated in protests against the government, been detained and beaten, and subsequently detained and forced to sign a commitment not to insult the government. The case came before the Administrative Appeals Tribunal for review of a previous decision.

The primary legal issue before the Tribunal was whether the applicant had established a real chance of suffering significant harm if returned to Iran, thereby satisfying the criteria for a protection visa under section 36(2) of the *Migration Act 1958* (Cth). This involved assessing the credibility and consistency of the applicant's claims, particularly in light of his failure to appear before the Tribunal and the absence of contemporaneous medical evidence regarding his claimed mental health challenges. The Tribunal was also required to consider whether any risk faced by the applicant was general to the population or specific to him, and whether internal relocation within Iran would be a reasonable option.

The Tribunal affirmed the decision under review, concluding that the applicant had not satisfied the criteria for a protection visa. The applicant's failure to appear meant the Tribunal relied on earlier submissions and hearing audio. While acknowledging potential mental health issues, the Tribunal found the applicant was lucid and able to provide detailed evidence at a prior hearing, and that no contemporaneous medical evidence was presented to support claims of significant mental impairment affecting his testimony. The Tribunal also noted inconsistencies and contradictions in the applicant's claims, and that the risk he alleged was not sufficiently particularised or evidenced to establish a real chance of significant harm. The Tribunal applied the principles outlined in section 36(2B) of the *Migration Act 1958* (Cth) regarding reasonable internal relocation and general risks faced by the population.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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’.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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.