2311317 (Refugee) - [2025] ARTA 1488

2311317 (REFUGEE) [2025] ARTA 1488 (31 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Representative: Dr Sirous Ahmadi (MARN: 0854826)
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2311317
Tribunal:General Member W Pennell
Date:31 March 2025

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

Statement made on 31 March 2025 at 5:17pm
CATCHWORDS
REFUGEE – protection visa – Iran – religion, political opinion and particular social group – applied for partner visa and granted visitor visa – relationship ceased, domestic violence protection order made and application for partner visa withdrawn – questioning Muslim converted to Christianity – musician playing at mixed-gender events – attendances at protests and churches in Iran and Australia – physical and mental health – fear of harm from authorities and Islamic extremists – delay in departing after visitor visa granted and unhindered departure – vague, inconsistent and contradictory claims, evidence and supporting statements – no evidence of political activity in Iran – first church attendance in Australia after separating from wife and two days before making protection application, soon before visitor visa due to expire – attendance at two protests after making protection application – late claims of harassment, violence and threats by wife to report to authorities – submissions by representative unsupported by evidence – no recent mental health consultations – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Administrative Review Tribunal Act 1958 (Cth), ss 50, 52
Migration Regulations 1994 (Cth), Schedule 2
CASES
ABT16 v MHA [2019] FCA 836
Chan v MIEA (1989) 169 CLR 379
Kavan v MIMA [2000] FCA 370
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo Wei Rong (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Selvadurai v MIEA (1994) ALD 346
Subramaniam v MIMA (1998) VG310 of 1997
Zhang Su Rong v Refugee Review Tribunal [1997] FCA 423
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for a review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (‘the delegate’) to refuse to grant the applicant a Protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]
[1]The delegate’s decision of 28 July 2023.
The applicant, who is a citizen of Iran, applied for a Protection visa,[2] and at that time, he was represented by a migration agent. In undertaking an assessment of his application, the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Iran, there was a real risk he would suffer significant harm, and his application was refused on the basis that he was not a refugee as defined by the Act[3] and therefore he was not a person in respect of…

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.

Continue reading 2311317 (Refugee)

Details

AGLC: 2311317 (Refugee) [2025] ARTA 1488
Case: [2025] ARTA 1488
Decision Date: 31 March 2025

CaseChat Overview and Summary

In the case of 2311317 (Refugee), the applicant, an Iranian national, sought a protection visa in Australia, claiming fear of persecution due to his conversion to Christianity, his involvement in mixed-gender musical performances, and participation in protests. The application followed the cessation of his relationship with his wife and the withdrawal of his partner visa application, amidst allegations of domestic violence and a protection order against him. The applicant also cited health issues, including severe depression and anxiety, to support his claim.

The primary legal issues revolved around the credibility of the applicant's claims, the relevance and sufficiency of the provided evidence, and the application of mandatory considerations under the Migration Act 1958. Specifically, the court had to determine whether the applicant's claims were vague, inconsistent, and contradicted by the evidence, and whether he had a genuine fear of persecution warranting protection under Australian law.

The Tribunal found that the applicant's claims were vague, inconsistent, and contradictory, with significant discrepancies in the timing of events and the provided evidence. The applicant's claims of religious persecution and political activities were not substantiated, particularly given the lack of evidence of political activity in Iran and the timing of his church attendance and protest participation in Australia. The Tribunal also noted that the applicant had not consulted a mental health professional recently despite his claims of severe mental health issues. Given these findings, the Tribunal concluded that the applicant did not meet the criteria for a protection visa. The decision to affirm the review of the earlier decision denying the protection visa was upheld.

The Tribunal's decision affirmed the earlier determination that the applicant did not have a right to enter and reside in any other country, thereby not excluding him from Australia’s protection obligations. The Tribunal applied the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs, as well as country information assessments from the Department of Foreign Affairs and Trade. Ultimately, the Tribunal found that the applicant did not qualify for a protection visa based on the evidence presented.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations.[21][21]Migration Act 1958 (Cth), s 36(3).MANDATORY CONSIDERATIONS In accordance with Ministerial Direction No. 84 made under the Act,[22] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and the 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.[22]Migration Act 1958 (Cth), s 499.APPLICANT’S APPLICATION Prior to the hearing, the applicant’s representative provided to the Tribunal a number of documents which included pre-hearing submissions and evidence. Within those submissions and the evidence, it shows that [in] October 2022, the applicant arrived in Australia subject to a Visitor visa, and in respect to a chronology of events, the following has taken place. Returning to the applicant’s Protection visa application, the protection claims as they were outlined in his application were: On 7 February 2023, the Department sent him a letter (by email to his representative) acknowledging the receipt of his valid application and advised him that an opportunity was available to provide additional information relating to his claims, and that there were a number of ways for him to do that; including through his ImmiAccount, or by mail. Within the Department’s acknowledgment letter, the applicant was invited to attend an appointment with the Department scheduled for 5 April 2023. The purpose for that appointment was for the applicant to provide his personal identifying particulars, and if he chose to, he could take with him to that appointment any other information, material or evidence to support his application. Although he attended that appointment, he did not provide any further information, material or evidence to support his application at that time. On 9 May 2023, the Department sent a letter to the applicant (by email to his representative) and invited him (the applicant) to attend an interview with the Department, scheduled for 5 June 2023. In readiness for that interview, on 1 June 2023, the applicant’s representative sent to the Department the following documents.(a)Medical certificate from [Dr D] dated 16 May 2023. In that certificate, [Dr D] explained that the applicant had presented to the doctor’s practice in January 2023 with severe depression and anxiety. The certificate went on to say that the applicant was still suffering from major depression and generalised anxiety and he was on different medications, and that he had been diagnosed with diabetes and severe dyslipidemia. [Dr D] believed that the applicant required a non-stressful life due to his medical conditions.(b)Psychological assessment report dated 22 May 2023 compiled by psychologist [Mr E] from the [Psychological Clinic] in Sydney. Aspects of this report are discussed in greater detail later in these Reasons.(c)Two A4 pieces of paper consisting of six photographic images. The first piece of paper contained four photographs, and the second contained the remaining two images. Although the Tribunal recognises that the applicant is shown in all of those images, the Tribunal finds that there was no description provided on any of the images to identify who the other people are, or what occasion or event those images relate to.(d)Two A4 pieces of paper, each containing four images. The first piece of paper contains two images of what is purportedly an exchange of text message conversation involving the applicant on 27 February 2023. A further image depicts a spreadsheet making reference to the old Testament and the new Testament. (e)Psychological assessment report dated 18 January 2023 compiled by psychologist [Mr E] from the [Psychological Clinic] in Sydney. Aspects of this report are discussed in greater detail later in these Reasons.(f)Letter dated 17 May 2023 from [Dr D] addressed to ‘Doctor A & E, [Hospital]’. The letter addressed the medications prescribed to the applicant at that time, along with a diagnosis on 18 April 2023 that the applicant had diabetes, dyslipidaemia and hypertension. The letter also refers to the applicant’s brother telling [Dr D] of the applicant’s severe depression, anxiety and suicidal ideation.(g)Letter dated 19 May 2023 from [Associate Pastor C] from [Church 1], Brisbane. It was noted that the letter was not on any formal letterhead for the church, and it outlined that [Associate Pastor C] and the applicant had met for the first time on 18 January 2023.(h)Applicant’s statement of claims dated 1 June 2023.(i)Character reference from [Mr F] dated 27 January 2023 who indicated that he had known the applicant since he (the applicant) arrived in Australia.