2436079 (Refugee) - [2024] ARTA 886

2436079 (REFUGEE) [2024] ARTA 886 (13 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2436079

Tribunal:General Member R Mikhail
Date:13 December 2024

Place:Sydney
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 13 December 2024 at 10:03am
CATCHWORDS
REFUGEE – protection visa – Iran – political opinion – 2009 Green Movement protests – particular social group – returned asylum seeker – fear of killing – torture – arrest warrant – skipping bail – mental health issues – family land confiscation – conviction in absentia – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499, 501
Migration Regulations 1994, Schedule 2
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

The applicant, who claims to be a citizen of Iran, arrived in Australia [in] November 2012 on a Refugee (Subclass 200) visa granted to him [in] September 2012 whilst he was in Turkey. He was granted this visa after being assessed as a refugee by the United Nations High Commissioner for Refugees (UNHCR) in Ankara, Turkey [in] October 2010.
[In] September 2022, the applicant’s Refugee visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act). [In] May 2023, a delegate of the Minister for Immigration, Citizenship, and Multicultural Affairs refused to revoke the mandatory cancellation. [In] June 2023, the applicant applied to the Administrative Appeals Tribunal (AAT) for a review of that decision. [In] August 2023, the AAT set aside the reviewable decision and substituted a decision that the mandatory cancellation of the applicant’s Refugee visa be revoked.
[In] June 2024, the applicant’s Refugee visa was cancelled pursuant to s 501BA of the Act and he is currently held in immigration detention.
On 22 July 2024, the applicant applied for a permanent protection visa.
On 9 September 2024, a delegate of the Minister for Home Affairs refused the grant of the visa under s 65 of the Act.
On 30 September 2024, the applicant lodged an application for review of that decision with the AAT.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complementary protection. The relevant law and mandatory considerations are set out in the attachments.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
APPLICANT’S CLAIMS FOR PROTECTION AND EVIDENCE
Before the Department
The applicant’s claims, as outlined in his application for protection, can be summarised as follows:
·He was born in [specified year] in Ahwaz in Khuzestan Province, where he resided until August 2018.
·He is of Persian ethnicity and Shia religion.
·He left Iran [in] January 2010 legally via air.
·He is a political refugee and was brutally tortured in Iran and went to Turkey. The United Nations accepted him as a refugee and then Australia gave him a permanent visa and he entered Australia.
·If he returns to Iran, he will be killed, and his life is in danger in all parts of Iran.
·He has a de facto partner in Australia and two children born in Australia.
·He [changed] his name in Australia in 2021 [details deleted].
On 7 August 2024, the applicant was sent correspondence from the Department of Home Affairs (the Department) inviting him to provide additional information about his claims. He was also asked to complete and return a Form 80 – ‘Personal particulars for assessment including character assessment’.
In response to the above invitation, the applicant provided an email submission to the Department on 7 August 2024, which can be summarised as follows:
·He was a political refugee.
·The Department has his paperwork and documents from UNHCR Turkey.
·He is a UNHCR refugee and came to Australia legally.
·He did not understand why he should apply for a protection visa as he was assessed as a refugee by the UNHCR.
·He is in detention and does not know why he is being held there and why should apply for protection given that he is a UNHCR refugee and detaining him is illegal.
Attached to the above submission was a copy of his UNHCR Refugee Certificate issued to the applicant [in] October 2010 and a UNHCR Asylum Seeker Certificate issued to the applicant [in] February 2010, both issued by UNHCR Turkey.
According to the delegate’s decision, on 8 August 2024, the applicant was sent an email by the Department explaining the need to provide the requested information within the specified period in order that his protection claims can be fully considered. It noted it did not receive a response or additional information from the applicant.
On 21 August 2024, the applicant was invited by the Department to comment in relation to concerns raised regarding his role and participation in protests following the 2009 Iranian Presidential elections. The applicant emailed the Department his response. In that response he questioned why he was in detention when he came to Australia from the UNHCR and he was given a permanent visa, and why he had been detained. He said his visa was cancelled without any reason and he was having a bad time in detention and was in a bad situation, mentally and physically.
The applicant was not invited to attend an interview with a delegate of the Minister for Home Affairs in relation to his application for protection.
In his decision the delegate accepted the applicant was at risk of, or subject to persecution in Iran, and was given protection by the UNHCR. He found that the applicant was an ordinary participant in the Green Movement protests. On the basis of the lack of any supporting evidence provided, he did not accept the applicant is subject to adverse mental or physical health conditions. The delegate found the applicant had not provided a satisfactory case that he would have a profile that would bring him to the attention of Iranian authorities on his return. The delegate stated he had no information that establishes the applicant was a prominent or key figure in the protests or that the applicant had been politically active since leaving Iran, either physically or virtually. He referred to country information which indicates that the Green Movement has little or no profile in Iran today and that ordinary participants are not of interest to the authorities. With the passage of time, he noted sources have indicated it unlikely that those arrested at the time, for simply participating in the protests, would remain imprisoned, or would face continuing surveillance or harassment, including being prevented from accessing employment in either the public or private sector. Therefore, he was satisfied that the applicant is unlikely to attract adverse official attention on his return to Iran. He found that the chance of the applicant facing serious harm on return to Iran for one or more of the reasons in s 5J(1)(a) of the Act, being his real or perceived political views, as remote rather than real. He also found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Iran, there is a real risk the applicant will suffer significant harm.
Review application
The applicant was represented in relation to this review.
On 11 November 2024, the Tribunal received a number of documents from the applicant, outlined below:
·A letter of support from [Community Organisation 1] dated 30 September 2024 which indicates the applicant had been an active member for years.
·A copy of his UNHCR Turkey Refugee certificate and UNHCR Turkey Asylum Seeker certificate.
·A photo image and an accredited translation of a Writ of Summons issued to the applicant by [Court 1] dated [in] September 2009. It requested that he attend court on [a day in] September 2009 on the basis that he had been accused of disruption in public order and destruction.
·A photo image and an accredited translation of a Court Ruling from [Court 2] in respect of the applicant and other defendants, dated [in] October 2009. The court ruling indicates he had been convicted of disrupting public order and peace by participating in the unrest following the June 2009 elections but was acquitted of the charges of [damaging a building] due to lack of evidence.
·A New South Wales (NSW) change of name certificate for the applicant dated [in] December 2021.
On 28 November 2024, the Tribunal received a submission from the applicant’s representative which included a legal submission and attachments. The legal submission stated the applicant was claiming protection on the basis of:
·Political opinion – A person who holds actual and presumed anti-Iranian Government views through his involvement in the Green Movement protests in Iran in 2009 and his generally liberal democratic values.
·Political opinion – Due to the applicant having a tattoo of [details deleted].
·Particular social group – People with anti-Government tattoos.
·Complementary protection – Person with an active arrest warrant.
·Complementary protection – Person with mental health issues.
The submission also noted that the applicant has extensive tattoos on his body including [details deleted] and that his claims and evidence were partially addressed in the AAT decision [of] August 2023, a copy of which was attached to the submission. The submission also cited and attached supporting country information. Attached to the submission was a photo image of [one tattoo], copies, and accredited translations, of the Iranian Court Ruling and Writ of Summons the applicant had already provided to the Tribunal. Also attached to this submission was a new statutory declaration from the applicant dated 28 November 2024 which can be summarised as follows:
·In June 2009, he participated in the Green Movement protests. He wanted to live in a country with more democratic rights. He is a proud Persian man, but he hates the current intolerant Islamic Government.
·He was taken from the protests by the Iranian police to a police station. He was held there for a few days. He was beaten. After a few days, he was taken to a larger police station where he was held and tortured for more than 20 days. From there, he was taken to [Location 1]. He was tortured there for a little less than a month.
·His family had no idea where he was. Eventually, whilst at [Location 1], he saw an officer who was the brother of a friend. He begged him to tell his brother where he was, so he could tell his parents, which he did.
·His father, uncle and brother came to [Location 1] and begged the police to release him. They refused, but told them that he had court in a few days. The police told his father to bring the title deed to some land so he could bail him out.
·On [the day in] September 2009, he attended a court hearing. He could barely walk. He gave evidence and was then allowed to go home as his father gave the authorities the title deed to land they owned. Due to the events below, this land has been confiscated.
·[In] October 2009, he was convicted of disrupting public order and peace and sentenced to [imprisonment and] lashes. He could not surrender himself as he had suffered so much in pretrial detention. He fled his family home and went to stay secretly with his [Relative A].
·The police came to his family home every week demanding that he surrender himself. His father worked in [a state business], and he was pressured at work to have the applicant to surrender.
·[In] December 2009, [details deleted] he decided to join the student protests. It was so important to him to live in a better, democratic nation. The protests turned violent quickly and he spent most of his time trying to stop the police from beating and taking away young girls and women. After a few hours of the protests, his mother called him and demanded to know what he had done. She was very upset. The police were at the front of his house looking for him and he believes he was recognised at the student protests. He never went home again.
·He went back to his [Relative A’s] house for a few days while he organised to leave Ahvaz. After a few days, he and his cousin travelled to [a town] near Tehran where he had a family house. From there, they travelled to Turkey. They thought [Country 1] may take them, as there had been a rumour that [Country 1] was taking protestors. Instead, they were told this was a lie and they registered with the UNHCR instead and applied to Australia.
·While they were in Turkey, his mother called and said that he had been convicted of anti-government activities and sentenced to [period] imprisonment. This is in addition to whatever punishment he will get for not serving the first sentence of [imprisonment and] lashes. He cannot go to jail in Iran. He will be tortured, including being sexually assaulted, and may die.
·He finds talking about what happened to him in Iran very difficult. He has spent years trying to forget.
·He has lost contact with most of his family and friends in Iran. They are too scared to communicate with him. He still communicates with his mother, but they are very careful as to what they say in case their communications are being monitored.
·He did not previously provide the Writ of Summons and the court conviction because he did not really understand the protection visa application process. He arrived in Australia as a refugee from the UNHCR and thought he would always have that status and could not be returned to Iran. It never occurred to him that he could potentially lose that status. He did not understand that he needed to provide evidence that he was still (as in now) owed protection, and that he was being reassessed completely. He was asked to upload any evidence to an online ImmiAccount and had no idea how to do this.
·Approximately six years ago, he got a tattoo [details deleted]. As soon as anyone knows he has this tattoo, he will have [mistreatment specified] and probably be killed.
·Persia used to be a great empire. [Details deleted.] He hates the Iran we have now – it is not tolerant and only allows Islam.
On 2 December 2024, the Tribunal received further evidence, including a written statement from the applicant’s mother and its accredited translation and a statutory declaration from [Academic A] dated 2 December 2024.
On 3 December 2024, the applicant appeared before the Tribunal. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi and English languages. During the hearing, the applicant provided oral evidence in relation to his background and claims for protection.
On the day of the hearing the applicant’s representative also emailed the Tribunal medical documents from Iran confirming the applicant’s mother’s [medical condition 1] diagnosis.
On 9 December 2024, the Tribunal received an updated statutory declaration from [Academic A] which removed the previous reference to the applicant having departed Iran illegally that was in her first statutory declaration.
CONSIDERATION OF CLAIMS AND EVIDENCE
REFUGEE ASSESSMENT
Nationality and identity
Included in the Department file were documents the applicant provided to the Department in relation to his identity, including an Australian Titre De Voyage issued in his new name in 2023, as well as a copy of the biodata page of his expired Iranian passport issued in his former name in 2008. He also provided a copy of a change of name certificate issued in NSW, showing the legal change of his name.
On the evidence before me I am satisfied of the applicant’s identity and that he legally changed his original name in Australia [details deleted].
I am also satisfied the applicant is a national of Iran and that Iran is the receiving country for the purpose of this assessment.
I accept the applicant resided in Turkey for approximately two years where he was found to be refugee by the UNHCR.
Country information indicates that in 1994, the Turkish government introduced the Asylum Regulation which aimed to bring status determination under the control of the Turkish government. However, at the time the applicant was assessed by UNHCR in 2010, the UNHCR was performing de facto refugee status determination on behalf of the Turkey authorities. According to country information, the Turkish authorities were content to go along with UNHCR decisions as long as those who were recognised as refugees were resettled out of Turkey. The overwhelming majority of the recognised refugees were resettled out of Turkey including nearly 3000 Iranians resettled to Australia and New Zealand by January 2011.[1] Country information also indicates that before September 2018, asylum seekers in Turkey used to file two separate applications to both the Directorate General of Migration Management (DGMM) and the UNHCR. However, as of September 2018, UNHCR’s Turkey Office officially announced that the organisation had ended registration and refugee status determination procedures in Turkey. As of 29 October 2021, the DGMM became the Presidency of Migration Management (PMM). Currently, if someone is granted ‘international protection status’ by the Turkish government, they will be allowed to continue living in Turkey legally as long as the conditions in their country of origin remain unchanged, or unless they find another country agreeing to admit them for long-term settlement. A UNHCR Refugee certificate issued on the basis of their own mandate, does not have any direct impact on one’s legal status in Turkey.[2]
[1] K. Kemal, ‘Turkey's new draft law on asylum: What to make of It?’, Paçacı Elitok, Seçil Straubhaar, Thomas (Ed.): Turkey, migration and the EU, Hamburg University Press, Hamburg, pp. 63-83, available at
[2] ‘International Protection Procedure in Turkey, Rights and Obligations: Questions and Answers’, Refugee Rights Turkey, August 2017, available at ‘Rights and obligations of persons under international protection in Turkey: Questions and Answers’, Refugee Rights Turkey, July 2021, available at ‘Introduction to the asylum context in Türkiye’, 20 August 2024, Asylum Information Database, available at
The above information suggests that the applicant, having been resettled to another country many years ago as a UNHCR mandated refugee, does not have the current right to enter and reside in Turkey.

On the basis of the evidence before me, I am not satisfied the applicant has the current right to enter and reside in Turkey or any other country.
Fear of harm due to 2009 political activities and subsequent conviction
During the Tribunal hearing the applicant gave a very convincing and detailed account of how he developed his political opinion against the Iranian regime. He explained that he was born into a family that had regular political discussions and different views and that his family members would claim that Iran was better before that revolution. He detailed how, on one occasion, when he was in school, he questioned the civil history they were being taught in that they were being taught that the former Shah of Iran was bad. He claimed he and his father were subsequently warned by the school about the applicant expressing these views and he was subsequently suspended. He explained that, as he grew older, he learnt more about the history of Iran and developed a full understanding of the political situation at the time.
The applicant further explained that, at the time of the 2009 presidential election, there was much lobbying in his area to promote the different candidates and he was actively involved in promoting Mir Hossein Mousavi (Mousavi) by talking to people and distributing pamphlets. He explained that Mousavi eventually announced that the election was rigged, and subsequent to that, there were many demonstrations in Iran. He then explained that Neda Agha Soltan was killed in the demonstration and the images of her death were distributed over the internet and affected everyone. Country information confirms that on 20 June 2009 Iranian security forces violently cracked down on demonstrations and footage of a young woman, Neda Agha Soltan, dying after being shot, was seen around the world.[3] He said he was also affected by this and wanted to do something, so he and his cousin decided to conduct a demonstration in his area. They obtained [objects] and placed them in the street. He said plainclothes police were observing them and warned them not to set it on fire as they would be in trouble, but he did not care and started the fire and started chanting slogans against the Iranian regime. He said others eventually joined them to the point where several thousand people had gathered. He then said that [police] arrived, and things got heated and people started [attacking buildings] and the police used teargas against them. He said they used rubbish bins and set them on fire to slow down the movements of the police and this continued for several hours. He eventually returned home and went to sleep but woke up to a number of soldiers and other people in his house, with one person having their knee on his neck and holding him. He was then slapped and kicked and handcuffed and taken to a police station. He was eventually interrogated and was questioned by the two officers who had warned him not to light the fire. He then began to detail the torture he endured but I advised him he did not need to discuss it in detail as it was outlined in his recent statutory declaration to the Tribunal. The applicant then continued to detail what happened after he was released on bail, consistent with the information he provided in his recent statutory declaration.
[3] 'Iran: Elections Contested, Repression Compounded', Amnesty International, 1 December 2009, CIS18098
I asked the applicant why would join further protests on the national student day when he was in hiding from the authorities and had just been convicted for the same activity. He said he had aspirations in life, and he could not leave the situation at that and had to follow his feelings about it. He said he was against the regime and wanted to see it toppled and that he will continue his activities against the Iranian regime and had participated demonstrations against the regime in Australia. When asked if he had any supporting evidence of his activities in Australia, he said he did not participate in these activities to take photos and he had been through a lot. He said he had not participated in these activities ‘to be in front of the queue’ but to be part of the crowd. He said he had paid his dues for the cause in that he was not present when his father passed away in Iran and he is away from his mother and [other family]. He provided a very emotional and convincing testimony of how he had disregarded his family in pursuit of his political activities against the Iranian regime.
The applicant then outlined what happened after he attended the student day protests and that he had received a call from his mother, asking what he had done, as government forces had raided their house. He then outlined how he eventually left Iran. I asked him if he had found out why the authorities had raided his house again, and he said he thought they had identified him during the student day demonstrations and that was what the authorities had told his mother. He further explained that, when he was in Turkey, he found out that he had been convicted of anti-government activities and sentenced to [period] imprisonment. He said his family found out about this when they made enquiries about their land title with the Iranian authorities. They were told by the Iranian authorities that they would receive the land back when they brought the applicant to the authorities. When I asked what the additional prison time related to, he said he thought it was in relation to his involvement in the student day protests but the authorities never told his parents the reasons for it.
I asked the applicant how he travelled to Turkey, and he said he flew there legally with his passport. I asked him how he was able to do that, given he was of interest to the authorities and had not served his sentence. He said there was no process in relation to becoming someone who could not exit Iran as that requires a special process and, at the time, he was not barred from exiting. He said, even though he did not know whether he was barred from exiting at the time, he took the risk.
The applicant then outlined what happened when he went to Turkey. He said, when he entered Turley, he did not know what the United Nations was, but was eventually advised to go to the UNHCR. He said when he spoke to the UNHCR, he told them his story and they asked for evidence, and he showed them the court order he had received. He said he participated in an interview with UNHCR and after a few months he was provided with a document stating he had been accepted as a refugee.
The applicant further explained that, when he was in Turkey, the Iranian authorities would raid his house in Iran twice a week and harassed his father at his workplace and made his father’s life bitter. He said his family were sent a few summonses for him, but when his mother moved houses, she was very upset about the situation and threw them away.
When I asked the applicant when the last time was his family were contacted by the Iranian authorities in relation to him, he said he did not know and did not want to remind his family of the past as his mum is frightened. He said, when he asked her to write a statement for him for this application, she was fearful, and she has [medical condition 1], so the situation is very bad. A noted the applicant has provided medical evidence in relation to his mother’s [medical condition 1] diagnosis, and which I accept.
When I asked the applicant what would happen to him if he returned to Iran, he said he did not think he would make it alive due to the imprisonment and torture, and that the Iranian regime easily executes people. He said he knows they have been after him for the last 14 years but, until the last breath in his body, he will work against them.
When I asked him if he had any other reasons for fearing return other than the outstanding conviction, he said no because he had not done anything else when he was in Iran other than his political activism.
I found the applicant’s oral evidence to be very convincing. It was also consistent with his written claims outlined in the statutory declaration provided to the Tribunal. As noted, he provided very compelling evidence of his very strong political opinion against the Iranian regime.
In addition to his compelling oral evidence, I have given significant weight to the fact that his claims were consistent with the claims outlined in his application for a Refugee (Subclass 200) visa. In his decision, the delegate noted that evidence available to them in relation to the applicant’s Refugee (Subclass 200) visa application from 2012 stated:
a.PA [primary applicant] participated in anti-government activities (demonstrations, chanting anti-government slogans) following the 2009 elections. Was detained by the authorities, imprisoned and tortured over a period of weeks. PA has received a prison sentence of [period] for his anti-government activities but was released on bail when his parents put their house up as a bond. PA fled the country and believes if he returns he will go back to prison. PA has many friends who have been detained in prison for anti-government activities. Some have died.
I have also given weight to the fact that the applicant’s claimed experiences are consistent with country information about the events that occurred during the June 2009 presidential elections in Iran and the subsequent significant suppression of the Green Movement protestors.[4]
[4] 'From protest to prison: Iran one year after the election', Amnesty International, 1 June 2010, CIS18830; 'Iran: Elections Contested, Repression Compounded', Amnesty International, 1 December 2009, CIS18098
Country information confirms that, the first days of protests were largely tolerated. After a week of growing unrest, however, Iran’s Supreme Leader and other powerful figures permitted the security forces, including the volunteer Basij militia, to use violence and mass arbitrary arrests. In Tehran and many other cities, Revolutionary Guards, special riot police and the Basij were deployed in vast numbers to stop or disperse demonstrations, using live ammunition, tear gas and rubber bullets. At least 4,000 people were arrested during the post-election unrest, possibly many more. During the election period, a large number of arrests appear to have been made by plain clothed officials who failed to show or did not have identification, and who did not present written or verbal reasons for the arrest. People who were arbitrarily arrested, were ill-treated before being taken to a detention facility. The majority were detained in Tehran, but arrests were recorded in other cities, including Ahvaz. Often, vast sums of money were demanded for bail. Most of those detained were released within days but many hundreds were held incommunicado for weeks. As detainees began to be released or were finally allowed visits, accounts of torture and other ill-treatment emerged. Some of those arrested in connection with the election were tried individually, rather than in the ‘show trials’ that occurred at the time, particularly those outside Tehran. Some had been held outside the control of the Judiciary and often said they had been tortured or otherwise illtreated and denied access to medical care, lawyers, and their families. More than 80 defendants had been sentenced to imprisonment, some to long terms. Some of those tried had also been sentenced to flogging.[5] Although this information indicates that many protesters were arrested and released after a few days, I consider it plausible that the applicant was held for longer and subsequently charged and convicted of protest-related offences given he was observed by the police starting a fire (after being warned not to) and demonstration.
[5] 'Iran: Elections Contested, Repression Compounded', Amnesty International, 1 December 2009, CIS18098
A June 2010 report by Amnesty International noted that most of those arrested had been released, although some have returned to prison to begin serving prison sentences. It noted the hefty bail sums often required for conditional release were usually met by the deposition of house deeds, often putting the family home at risk of seizure by the authorities, should the individual not return to prison. It also referred to one student who had [received] a 91-day prison sentence. It also noted, [the] Prison in Ahvaz where the applicant claimed he was detained, is known to house political prisoners. It further noted that some of those released had left the country, fearing re-arrest and the torture and other ill-treatment that may go with it. According to official statistics, asylum applications from Iranians increased significantly in the weeks and months after the June 2009 election. Some made it to countries in Europe or North America, but many first claimed asylum in Turkey.[6]
[6] 'From protest to prison: Iran one year after the election', Amnesty International, 1 June 2010, CIS18830
Country information published in 2013 also indicated that, while the law does not permit a person to leave the country through official channels if there is a criminal case pending, in practise, since 2009, the authorities have appeared to lift such restrictions in order to allow such individuals to leave Iran. A Western embassy also stated that there could be examples of cases involving prominent demonstrators being able to exit the country legally and that this could be the case if the authorities just want to be rid of them. The Iranian Head of Passport and Visa Department also stated that in some cases, it could take the court up to three months to issue an exit ban and depends very much on the circumstances of the individual case, and how long it would take to place such a ban on exit.[7] This appears to support the applicant’s account of how he was able to depart Iran legally at the time.
[7] 'Iran: On Conversion to Christianity, Issues concerning Kurds and Post-2009 Election Protestors as well as Legal Issues and Exit Procedures', Danish Refugee Council, Landinfo and Danish Immigration Service, 1 February 2013, CIS25114
I have also given weight to the documentary evidence the applicant provided including the Writ of Summons and Court Ruling which are consistent with his claims. I am prepared accept that he provided such evidence to the UNHCR in Turkey such that they also accepted his claims to be credible and found him to be a refugee.
The UNHCR asylum seeker certificate the applicant provided indicates that he entered Istanbul [in] January 2010 which further corroborates his claim that he fled Iran in the period of the suppression of the Green Movement and within a few months of having been convicted of the above offences.
The statement from his mother also provides a consistent account of the applicant’s claims and the events that led to his departure from Iran.
I accept, in total, the applicant’s claimed experiences in Iran and the events that led to his departure from Iran in 2010.
Although he has provided limited supporting evidence, I accept that he has been involved in political activities against the Iranian regime in Australia. I have given weight to the letter from [Community Organisation 1] which indicates it is a not-for-profit association whose role is to familiarise their compatriots with a history of Iran, defend and support the rights of Iranian people and other objectives and this includes holding peaceful demonstrations in support of pro-democracy movements of the Iranian people. Further, it states that the applicant had been an active member for years.
The most recent report published about Iran by the Australian Department of Foreign Affairs and Trade published in July 2023 (DFAT 2023 report) stated members of political groups whose ideology opposes the state can be subject to arrest, intimidation and bureaucratic harassment and ordinary protesters face a moderate risk of arrest and official violence. In relation to the Green Movement, it stated it had little or no profile in Iran today. Those who acquired criminal records because of their involvement in the Green Movement may face discrimination when applying for government employment, particularly if they played prominent, high-profile roles in the movement. It stated that local sources told DFAT that ordinary participants in the Green Movement are not of interest to the authorities. DFAT assessed that ordinary participants who avoided arrest face a low risk of official discrimination. DFAT was unable to confirm whether those who fled the country will face harassment or discrimination upon their return.[8]
[8] 'DFAT Country Information Report - Iran', Department of Foreign Affairs and Trade, 24 July 2023, 20230724110043 (DFAT 2023 report)
I note this is not a case where the applicant avoided arrest and, although he acquired a criminal record, he did not serve his sentence and fled the country. Given DFAT is unable to confirm whether those who fled the country will face harassment or discrimination upon return, I have given weight to the statutory declaration by [Academic A], who [has surveyed] the Iranian security apparatus, which I accept. In her statement, she notes that upon reviewing this case, she was of the opinion that the applicant would be very likely arrested and imprisoned should he return to Iran. She states that, given he escaped Iran whilst on bail and was convicted to a prison term in absentia, and his failure to respond to the summons to attend prison, his case remains active and at bare minimum he will be required to serve out his prison term. She was also of the opinion that it would be highly likely that the Iranian authorities would apply fresh charges against him as a result of the skipping bail. She also noted that if he is arrested, he would likely face torture and other human rights abuses in custody. She was also concerned about his prominent [tattoo], which proclaims [details deleted]. She noted it would be impossible for the applicant to disguise this tattoo should he be arrested and interrogated or kept in a prison facility. She said such a tattoo would immediately mark him out as an enemy of the [Islamic Republic].
I have also considered other sources which indicate that, if someone had been sentenced to punishment in Iran and absconded abroad, and then returned to the country, the sentence will be enforced as soon this will be possible.[9] Another source stated that people who attended protests and then went abroad and were not politically active while abroad will not face ‘consequences’ when they return unless there are ‘open files’ and charges or sentences. If there are open files and charges or sentences, though, the person will be arrested.[10]
[9] 'Iran - Release on temporary bail, court documents, exit from Iran - EASO COI Query Response', European Asylum Support Office (EASO), 21 April 2020, 20200423095708
[10] 'IRN200457.E - Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019-February 2021)', Immigration and Refugee Board of Canada, 22 February 2021, 20210315091836
In its 2023 report, DFAT stated that the Iranian Government has a longstanding policy of not accepting involuntary returns, but voluntary returns are possible. In cases where an Iranian diplomatic mission has issued temporary travel documents, authorities will be forewarned of the person’s imminent return.
I am satisfied that, if the applicant were to return to Iran, it would likely be on a voluntary basis. Further, as his Iranian passport has expired, I am satisfied there is a real chance he would return on temporary travel documents.
The DFAT 2023 report also noted that, in general, authorities pay little attention to failed asylum seekers on their return to Iran. Those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are traveling on a laissez-passer. Questioning usually takes between 30 minutes and one hour, however, may take longer if the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history on the part of the returnee. Arrest and mistreatment are not common during this process. DFAT assessed that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination.

The DFAT 2023 report also noted that international human rights organisations report that torture and other mistreatment of detainees occurs in Iranian detention facilities, especially as a means to extract information. Political prisoners are at particular risk of torture, especially those held in pre-trial detention, as torture may be used to extract confessions. Prisons, including unofficial secret prisons, may also be the site of torture, according to human rights groups. [11]
[11] DFAT 2023 report
Having considered the above information and evidence before me, I am satisfied there is a real chance the applicant will be arrested on return to Iran and detained for having not served his previous sentence of imprisonment and lashes. I am satisfied there is also a real chance he will face further charges for not having served his sentence and for leaving the country. I am satisfied there is a real chance he will be detained. I am satisfied that, as someone who has been accused of political activities in Iran, there is a real chance he will be tortured in detention as he had previously. I am satisfied there is a real chance he will be further mistreated in detention for having the tattoo [specified].
I am satisfied that such harm would amount to a threat to his liberty, significant physical harassment and significant physical ill-treatment and would amount to serious harm.
I am satisfied that this harm is systematic and discriminatory conduct carried out by the Iranian authorities against political dissidents for the essential and significant reason of their political opinion.
As the harm would be perpetrated by the Iranian authorities who exert tight and effective control over most of Iran’s territory,[12] I consider the real chance of persecution relates to all areas of the receiving country and do not consider there to be effective protection available to the applicant. I also consider that the applicant cannot reasonably be expected to alter or conceal his political beliefs to avoid a real chance of persecution.
[12] Ibid.
I am satisfied the applicant’s fear of persecution on the basis of his political opinion is well-founded.
As I have found that the applicant has a well-founded fear of persecution in respect of his political opinion, I have not considered his other claims for protection.
The applicant meets the requirements of the definition of refugee in s 5H(1).
I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Hearing: 3 December 2024
Representative: Ms Alison Mary Battisson
ATTACHMENT A - CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in Attachment B.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in Attachment B.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ATTACHMENT B- Extract from Migration Act 1958
5 (1) Interpretation
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cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…