GSM18 v Minister for Immigration

[2020] FCCA 2225

FEDERAL CIRCUIT COURT OF AUSTRALIA

GSM18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2225

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed

Legislation:

Migration Act 1958 (Cth)

Cases cited:

BEL16 v Minister for Home Affairs [2019] FCA 1678

AWU16 v Minister for Immigration and Border Protection [2020] FCA 513

Applicant: GSM18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 683 of 2018

Judgment of: Judge Vasta

Hearing date: 28 July 2020

Date of Last Submission: 28 July 2020

Delivered at: Brisbane

Delivered on: 28 July 2020

REPRESENTATION

Counsel for the Applicant: Mr M. Gou

Solicitors for the Applicant: ESTRIN SAUL LAWYERS

Counsel for the First Respondent: Ms K. Hooper

Solicitors for the First Respondent: AUSTRALIAN GOVERNMENT SOLICITOR

ORDERS

1. That the Applications filed 21 December 2018 and amended on 19 June 2020 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00

IT IS NOTED:

A. That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. PEG 683 of 2018

GSM18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 4 December 2018, the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant the Applicant, GSM18, a protection visa.  On 21 December 2018, the Applicant asked this Court to review that decision. 

2. The background of the matter is that the Applicant is a national of Iran.  He arrived in Australia in 2013.  The claims are these:  when he arrived in Australia, and at the time of his Safe Haven Enterprise Visa application, he had said that he was born in Tehran, was of Persian ethnicity, and had no religion.

3. He said that he is one of three brothers, and that his younger brother still lives in Tehran with his parents, but his older brother travelled with him to Australia.  He said that he had studied at university in Iran and had begun his own business as a personal trainer.  From 2010 to 2012 he undertook his military service in Tehran, but, notwithstanding he was completing his military service, he still had time to work as a personal trainer at various gyms.

4. After he had concluded his military service, he said that he and his brother developed a good reputation as personal trainers and that what had occurred was that some people had heard about their reputations and began calling them, telling them to stop their work as personal trainers.  He said that this intensified during the winter of 2013 and he estimates that he was called about 15 times.

5. The Applicant said that he believed that these people were working for a well-known criminal gang in his neighbourhood.  He said that messengers from this gang were sent to him, and his brother, on two or three occasions. He said that those persons said that they were actually sent by two well-known criminals in the area, again telling him and his brother to stop working. 

6. The Applicant said that, in the winter of 2013, he was working at a particular gym and when he left he noted a car screeching to a halt nearby him, and four to five people got out.  One of those persons attacked the Applicant with a large Samurai sword which made contact with his back.  The Applicant said that he was taken to hospital and his wound received quite a deal of stitching and it needed two or three surgeries to get back to a point where the injury was fixed as best the medical people could do.

7. He said that he was in hospital for two to three days, and he recovered at home for two months.  He said that while he was at the hospital he was questioned by police.  He said that he had told his close friends what had happened, and that, the next day, messengers from this same gang came to the hospital to tell him to stop telling everyone that they were responsible for the attack.

8. He said that after he got out of hospital, he was told by a mutual acquaintance that the gang was going to attack him again because he had passed on information about them to the community.  He then made the decision to leave Iran. 

9. He said that he believed the gang was targeting body builders and personal trainers because they were helping people to get fit and healthy rather than use drugs.  He said that he doesn’t believe that the police can guarantee his safety.

10. He also spoke about being taken into custody three times by the Basij in 2007, 2009 and 2012.  He said this was because he had attended parties where both men and women were in attendance and because they were drinking alcohol.  He also claimed that, at a gym in Perth, he was punched by a stranger.  He said that his jaw was swollen and he was unconscious for a few seconds.  He said that he filed a police report.  He said that he believed that Iranian people in Perth had been passing information to the gangs in Iran.

11. He said that he fears harm, at the hands of the gang, throughout the whole of Iran. He also fears being harmed by the gang because he was affected by the data breach.  He believes that the authorities and the gangs will do him no good if he is sent back to Iran because he had sought refugee protection in Australia.

12. The IAA went through these claims.  The IAA looked at the claim regarding the criminal gangs, but did not find the claims to be credible.  The IAA looked at the response that the Applicant had given to the delegate when asked about the motivation of these gangs, and noted that they did not find the Applicant’s response convincing.  The IAA went through country information which looked at the drug problem in Iran and also noted that one of the places, in which there were drug problems, were gymnasiums.

13. The IAA looked at what the Applicant had said about the fact that he had 200 clients and that each day he would provide personal training services to six or seven people at six or seven gyms, and that the clients were mostly young people aged 18 to 20.  The IAA said this, at paragraph 20:

    …Whilst the Applicant had a positive influence on a small number of people I am not satisfied this would have an impact on the business of drug criminals to the point that they would go out of their way to intentionally target him given the size of Tehran’s population and the high number of drug addicts when all he was doing was promoting his services as a personal trainer.

14. The IAA noted that body building is a popular sport in Iran, but country information was that about 13.3 per cent, or one in eight, body builders reported using amphetamine; and that well‑educated body builders were more likely to use it.  The IAA noted that the Applicant made no reference to the illicit use of drugs amongst body builders, or the use or availability of drugs in gyms, and that this would have been going on for some time and be part of the gym culture.  The IAA noted that such was not apparent in his evidence.

15. The IAA also noted the country information did not seem to marry with the Applicant’s claim that the police took no action upon his complaint regarding the attack.  The Applicant claimed that police were corrupt and that 70 per cent or more police were on drugs, and the undercover cops were not paid enough and that they were “dealing” as well.

16. The IAA looked at country information, and because of what was contained in the country information regarding the official government response to drug taking and drug trafficking, did not accept that the police would have taken no action.

17. The IAA then looked at the fact that, when it was that the Applicant was talking about these matters to the IAA, there was displayed little actual fear of harm when talking about these threats.  The Applicant, it was noted, had not said anything in his written SHEV application, but during the interview told the delegate that he and his brother also had a business selling protein supplements for body builders.

18. The IAA found it “a little strange” that the Applicant did not mention his supplement business in his written claims.  The IAA noted that the Applicant showed the delegate his scar, but, other than that, there was no other medical evidence to confirm that the attack happened as claimed. 

19. The IAA noted the contradiction in evidence that the Applicant had given.  He was asked whether he returned to the gym after the incident and he said no.  He said that his mother was very concerned and advised him not to go near any gyms.  He said that he was scared, terrified and could not leave the house because this gang had continued to threaten him, saying, their business with him was not finished.

20. The Applicant was asked why a gang might continue to threaten the Applicant given he was no longer going to the gym, and the Applicant said it is because he was going out shopping, he was a social man and he wanted to be talking to people and could not sit at home and do nothing.  That statement was in complete contradiction to the initial statement that the Applicant said that he was terrified to leave the house. 

21. The IAA noted that the Applicant continued to undertake the supplement business from his home whilst allegedly recovering from an attack.  The IAA said that this did not indicate that he was scared and terrified, given that he was inviting people into his house to conduct the business.  The IAA said, at paragraph 26:

    26. Taking all of my above noted concerns into consideration I am not satisfied the applicant was threatened multiple times by criminal gangs and then attacked in the winter of 2013 when leaving the gym by four or five men and then struck on his back by one of them with a samurai sword because he was encouraging people to lead a healthy lifestyle.  Nor do I accept the Applicant continued to be threatened by the criminal gangs whilst he was recovering at home. I find the applicant has fabricated this claim in its entirety.  I do not accept he was of any adverse interest to criminal gangs or the authorities at the time he departed Iran.  I find he does not face a real chance of any harm on account of these claims on his return to Iran.

22. The IAA then looked at the Applicant’s claim that he was attacked in Perth.  The IAA said that the Applicant had not provided any other material, such as a copy of the police report, or anything else to show where this complaint had been made, and where it was going.  The IAA was not satisfied that that attack against him was related to past events in Iran, or that he has any well-founded fear of harm on any basis on his return to Iran.

23. The IAA noted that the Applicant, post the interview with the delegate, had been baptised and accepted into a Christian community.  The IAA looked at everything that the Applicant had said about religion, especially in the SHEV interview.  In that interview the Applicant said that he had no religion, he did not believe in any religion because it separated people from each other, and as a child he studied religion at school because he was forced to do so.  He said that he had been somewhat ostracised in small ways in Iran because of his not believing in any religion.

24. The IAA then contrasted that with the new information which suggested that, within a few weeks of saying all of that to the delegate, the Applicant had converted to Christianity.  The IAA accepted all of the statements that had been put before it as new information and accepted what persons had said about the Applicant’s participation in religious services. 

25. However, given that what it is that had occurred – in that he was baptised about three weeks after the delegate’s decision, after what he had said during the SHEV interview, and that there had been no explanation as to what led the Applicant to change his mind and suddenly wish to be part of a religion – the IAA concluded that they were satisfied that the Applicant did not have a genuine, ongoing interest in Christianity and that his baptism was done for the sole purpose of strengthening his claims for protection.

26. The IAA then looked at what would occur to someone who was practising no religion in Iran and whether they would be charged with apostasy.  The IAA concluded that there would be no harm done to the Applicant because of this, and that the Applicant would not attend a Christian church or do anything with regard to his recent Christian conversion once he returned to Iran, and so therefore the IAA was not satisfied that the Applicant faced a real chance of harm for any reason of religion.

27. The IAA looked at the Applicant’s evidence about being targeted for attending parties, and noted whilst the Applicant said that he was arrested on three occasions, the Applicant did not speak of there being any harm associated with those arrests. The IAA said that they were not satisfied that there was a real chance that the Applicant would face any punishment on his return because of these three previous incidents.

28. The Applicant did say to the delegate that he was a person who utilised the social media platforms, Facebook and Instagram.  The Applicant said, in that interview, that he had been expressing his views against the Iranian government.  When he was asked how he had been expressing his views, the Applicant said that he spoke of the recent demonstrations and on his social media was encouraging people to continue because they needed to have freedom and a free country to live in.

29. He was asked how he was supporting them to continue to demonstrate, and he said that he was making comments and talking against the religion, and that there needed to be freedom of religion as occurred in Australia.  When he was asked about the forum that he was doing that, he said that he was just commenting on Facebook and Instagram at the time of the presidential election, which was the previous year, and he was asking people not to vote.

30. The Applicant further stated in relation to his body building that if the delegate checked his Facebook and Instagram, it is inspiring about body building and being healthy, and that there were lots of people following him and making comments and giving him energy.  The IAA noted that the Applicant had not provided any examples of his Facebook or Instagram posts that were allegedly critical of the Iranian government.

31. The IAA found that his evidence in that regard was vague and evasive, and, in the end, the IAA was not satisfied that the Applicant had a well-founded fear of any harm on this basis on return to Iran. 

32. The IAA then looked at the data breach and was not satisfied that the Applicant had a well-founded fear of any harm from criminal gangs on account that he was affected by the data breach, noting that the data breach showed in February 2014, that he was in immigration detention.

33. Other than that fact, there were no other details about any claim that the Applicant had made for protection. The IAA noted that the Applicant had not actually made any claims for protection until April 2017, and so therefore there would not be any information about the refugee protection claims in any data breach, in any event.

34. The Applicant made a submission that he, during his military service, had a very important role regarding the top echelon of security in Iran.  The IAA accepted that the Applicant may have had the responsibility of guarding a building, or providing security where high‑ranking officials were based, but they were not satisfied that the Applicant would have been privy to any highly secure or confidential information on matters of national security, other than the time where high-level officers would arrive when they went to work, and when they would leave and go home.

35. The IAA noted that the Applicant was able to leave Iran legally with his own passport and that, if he were a security risk, the Iranian authorities would have issued a travel ban and none was issued.  The IAA noted that there was nothing before them to indicate that the Applicant had been involved in any activities in Australia that would have brought him to the adverse attention of Iranian authorities. 

36. The IAA noted that Iran did not accept involuntary returnees and that if he were to return to Iran it would be as a voluntary returnee and made their assessments about his return to Iran on that basis.  The IAA found that the Applicant would not attract the adverse attention of the Iranian authorities, or be of interest to the authorities, if he were returned.

37. The IAA accepted that he might be questioned, or even detained for a brief period of time as a returnee, but was not satisfied this treatment would amount to serious harm.  Therefore the IAA concluded that the Applicant did not meet the criterion as a refugee.

38. The IAA then looked at the complementary protection provisions and assessed whether the Applicant met that criterion.  The IAA said, at paragraph 58:

    58. I have concluded that the applicant does not face a real chance of any harm resulting from his work as a personal trainer promoting a healthy lifestyle as I have rejected his claims in their entirety that he was threatened and harmed by criminal gangs.  Given a real chance and real risk involving the same standard, I am not satisfied he faces a real risk of harm on these bases.

39. The IAA then looked at the religious aspect and his conversion to Christianity; looked again at the previous times that the Applicant had been caught for drinking alcohol; and, looked at the Applicant being an asylum seeker returning to Iran.  Having looked at all of those matters, the IAA concluded that there were not substantial grounds for believing that as a necessary and foreseeable consequence of being returned to Iran from Australia that there was a real risk that the Applicant would suffer significant harm.

40. For those reasons then the IAA found that the Applicant did not meet the complementary protection criteria, and therefore then affirmed the decision not to grant the Applicant the protection visa. 

41. The application today has proceeded upon one ground, and that ground was contained within an amended originating application that was filed on 19 June 2020.  The ground is that the IAA unreasonably, irrationally, or illogically, rejected the Applicant’s claim that he had been attacked by relying on its finding that the Applicant’s evidence about the state of mind of the persons who had attacked him was speculative, even though the Applicant could not have known the state of mind of those persons and only providing those answers in response to questions he was asked by the delegate at an interview he was required to attend.

42. In essence, the basis of complaint for the Applicant stems from paragraph 18 of the reasons of the tribunal.  I will read it in full into the record:

    18. I have considered carefully the applicant’s claims regarding his fear of harm from criminal gangs but I do not find his claims to be credible. Whilst I accept the applicant worked as a body builder in Iran and that this would have been seen as promoting a healthy lifestyle the applicant was not otherwise outspoken or openly critical of criminal gangs such as to draw attention to himself or be seen as actively competing against them. In his written claims he only stated he ‘believed’ gangs were targeting body-builders and personal trainers because they were helping people to be fit and healthy.  At his SHEV interview on 13 February 2018 when asked what the purpose of the threats were and why they were threatening him, the applicant said he didn’t know but his opinion was that he was doing the right thing helping people. He didn’t know if they were jealous or what their problem was. Again he repeated he didn’t know what was their real problem, because of his religion or because he was helping people, they were jealous of him and everyone was talking about them, and that ‘these guys are good, healthy and going to the gym’ which was not the same as other ‘guys’ who were taking drugs. I find the applicant’s response somewhat speculative and given he claimed to have been threatened numerous times including being called about 15 times and messengers sent to him, I do not find his response convincing.

1. The submission of the Applicant is that the Applicant has never claimed to actually know why it was that he was attacked, and logically he could never have known. The Applicant submitted that unless the attackers actually told him the reason why he was being attacked, the best he could do was draw inferences and make an educated guess, which was a guess nonetheless.

2. The answers were, of course, therefore necessarily somewhat speculative.  The submission followed that the IAA was making a negative finding regarding credibility based upon what the Applicant clearly acknowledged was speculation.  It was submitted that in making such a credibility finding, such was illogical because it was based upon something that the Applicant simply could not know.

3. The Applicant referred me to two Federal Court authorities.  They are single judge authorities, but they were sitting on appeal from this Court. Those authorities are BEL16 v Minister for Home Affairs [2019] FCA 1678 and AWU16 v Minister for Immigration and Border Protection [2020] FCA 513. 

4. In BEL16 (Supra), the Applicant in that case was a Sri Lankan national and he had spoken of actions that had been committed by the CID.  The Tribunal in that case had said that that Applicant, BEL16, had given differing accounts of why the CID was pursuing his father and uncle.  It then gave a number of examples of what the Applicant had said. 

5. At paragraph 31, Beech J said:

   31. It should be apparent that the appellant had no personal knowledge of why the CID was so acting. At most the appellant’s belief could only have been informed by compounded hearsay. Of course the perception of risk of harm and the reasonableness of that risk is central to the Tribunal’s consideration. But in terms of assessing the credibility and truthfulness of the appellant himself, discrepancies concerning his speculation as to the motivations for conduct of a third party are far less significant and meaningful than discrepancies concerning the appellant’s version of his own conduct, his own motivations and what he could reasonably be expected to have first-hand knowledge of. I will return to this topic later, but for the moment let me address the so-called discrepancies.

   At paragraphs 55 and 56, his Honour said:

   55. Moreover, if the appellant speculated wrongly, it does not follow that he was not to be believed on the objective factual elements of his version of events where he did have first-hand knowledge. Any number of other explanations could be plausible as to his wrong speculation. For example, wrong speculation might more readily be explained by the innocent possibility of the appellant simply guessing wrongly, misunderstanding what he had been told, being given only a partial explanation, or being misinformed. But none of such possibilities could justify a finding that the appellant was not truthful or credible on the essential factual elements of which he had first-hand knowledge.

   56. Indeed, and as counsel submitted, the appellant’s knowledge of the CID’s motivations based on second-hand speculation was peripheral in one sense. The central aspects relevant to the appellant’s truthfulness were what had happened to the appellant.

6. In AWU16 (Supra), Mortimer J followed what Beech J had said.  In that case the issue there was an Ethiopian Applicant who had been speaking of matters dealing with his wife and the contact that she had had with a driver and what the motivations for that could be. At paragraph 45, Her Honour said:

   45. There is certainly a danger in a decision-maker asking a protection visa applicant to speculate about the motivations, reasons or circumstances of a third party in the visa applicant’s country of nationality. It is unlikely to be productive of probative material on which the decision-maker can rely in her or his reasoning, for the reasons explained by the High Court in WET040. The method is unlikely to give rise to a jurisdictional error. Reliance on the evidentiary product of such a method may be another matter.

   46. I do not accept the Minister’s submissions that all the Tribunal was doing in this one of its six credibility findings was rejecting the underlying plausibility of the appellant’s account. The Tribunal was expressly measuring the speculation it had invited the appellant to engage in against its own speculation. Having regard to the introductory part of [29], it did so expressly to find that the appellant and his wife were not giving true and accurate evidence to the Tribunal. The appellant’s speculation about the driver’s motivations was not rationally or logically capable of supporting the Tribunal’s disbelief of his detailed, fact-intensive first-hand account of his arrest and detention – being a large body of facts with which the Tribunal simply did not engage in its decision making. Nor was the Tribunal’s own speculation on the same matter.

7. The Applicant says that the present case is not distinguishable because the Applicant in this case did not ever claim to know why the gang attacked him.  The IAA referred to the interview that the Applicant had had with the delegate, and the questions pressing him to explain why the gang did what it did; that the IAA then disparaged these answers as speculation, and then the IAA relied upon the speculation, together with other factors, to find that the claim to have been attacked by the gang or the sword had been fabricated in its entirety.

8. The Applicant submits that speculation about the gang’s motive was a matter never in the Applicant’s state of mind, and that it was irrelevant to whether the gang had attacked him, and for the two to be linked was unreasonable, irrational or illogical.

9. It seems to me, though, that one has to have a look at the actual claim that the Applicant had made.  Whilst it was summarised by the IAA, one can actually go back to the claim that had been made.  It is relevantly reproduced at pages 66 and 67 of the Court Book.  The Applicant said at paragraph 31 of his application:

   31. Over the course of 2012 and 2013, myself and my brother were working as personal trainers in Tehran, and we were developing a good reputation.  Our clients were members of the general public. During this time, some people heard about our reputations and they started to send us messages and calling us telling us to stop working as personal trainers.  This harassment intensified in the winter of 2013.  Over the course of three to four months, they called me about 15 times.

   32. During these calls, they would not tell me their names, but they would say, “you know who we are”, and from this I was able to guess that they were working for a gang that was well-known throughout my neighbourhood as a criminal gang.  They also sent their messengers to me 2-3 times.  These messengers would say that they were sent by MM and HB, who are well‑known criminals in my area. They sent me messages through people I knew through working at the gym. They also harassed my brother.  When they called, they would identify myself and my brother by name.  They would tell the two of us to stop working.  They were treating me in a really serious way, they told me that they didn’t want me to stop working at a particular place and start placing at another place. They wanted me to stop working completely.

   33. In the winter of 2013, I was working out at T Gym.  When I left the gym, a car screeched to a halt near me, and about 4-5 men got out of the car.  One of them was carrying a really large Samurai-style sword.  This man swung his sword at my face, but I turned away and the sword made very hard contact with my back. After that, they got in their car and drove away.  Nearby people helped me and took me to a hospital on B Street. My wound had three layers of stitches over the muscle and the skin.  It required 2-3 different surgeries.  I still have a scar.  I was in hospital for 2-3 days, and my recovery at home went for two months.  I believe that these attackers were sent by the gang that had been harassing me, due to the harassment I had previously received from them.

   34. While I was in hospital, I was questioned by police about what had happened. Also, my close friends visited me and asked what happened.  I told them both. Then, the next day, messengers from the gang came to the hospital and asked why I was telling everyone that they were responsible for my attack. They told me to stop telling people that they were responsible. 

   35. After I got out of hospital, I kept being told by the mutual acquaintances between myself and the gang they were going to attack me again because I had passed on information about them to the community.  They were warning me that this kind of attack would happen again.

   36. As a result of these warnings, I decided to leave Iran.

   37. I believe that the gangs are targeting body builders and personal trainers because body builders and personal trainers are helping people be fit and healthy, and they don’t like that personal trainers are encouraging people to live healthy lives rather than use drugs. [Identifying information omitted]

10. In my view the facts of this matter are different to that in AWU16 (Supra) and BEL16 (Supra).  In those matters the Applicants had simply made comments as to what happened.  It was then that the Tribunals, or delegates, had started asking questions as to why this happened or why that happened.  In this case, the claim that the Applicants were making was full of speculation, but speculation they had made to found the basis of the claim itself.

11. Objectively speaking, the only matters to which the Applicant could talk about is that he was running, in effect, a personal training business;  that he received a number of phone calls that simply told him not to work anymore;  that he was approached on two or three occasions by people who said that they were representing two criminals, and, again, just simply told him not to work anymore;  that a group of four or five people approached him out of a car, and one of them attacked him with a Samurai sword, but none of those people said anything;  that while he was in hospital the other messengers who again said that they were from the gang told him not to tell anyone that they, the gang, were responsible, and that other people then told him that the gang would hurt him again.

12. Those are the matters that were objectively known.  None of those, realistically, was able to found a proper claim for protection as a refugee without the speculation that the Applicant himself brought into his tale.  It was the Applicant himself who said that his work as a personal trainer was, in effect, muscling in on the territory of the criminal drug dealing gang because he was reaching into the hearts and minds of these people by showing them a heathy way to live which didn’t involve drugs.  It was the Applicant himself who said that these drug people wanted him to stop doing so, and when he wouldn’t stop he was attacked by using a sword and given a warning, whilst he was in hospital, and afterwards, that if he continued to do that, this would occur again;  that is the essence of his claim.

13. When it is, at paragraph 18, that the IAA looks at what the delegate had asked, and what the Applicant himself had said, it was a confirmation of what the Applicant himself said on a number of occasions: that while he was speculating, that speculation was still very much the basis of his claim.

14. The IAA said that they did not find his response convincing.  The IAA later explained that it was not just what he said but how he said it.  The IAA were noted that the Applicant did not speak as if he were scared of these threats, or that they were threats that affected him.  The statement of the IAA, that they did not find his response convincing, does not just relate to the content of the “speculation”, but to the whole response.

15. But unlike BEL16 (Supra) and AWU16 (Supra), the IAA was not looking at speculation that had been elicited solely by the delegate or the questioner and then finding that the speculation was not credible.  What the IAA has said is that the response was not convincing.  The issue of credibility then came from the whole of what the Applicant was saying, especially as he was the one trying to give a motivation for this attack.

16. In the end, when looking at the refugee criteria, the IAA must be satisfied that the person fears persecution and that he would be persecuted in all areas of Iran;  that the persecution involves serious harm and systematic and discriminatory conduct, and that the essential and significant reason for the persecution was for race, religion, nationality, membership of a particular social group or political opinion.  And therefore it was incumbent on the IAA to look at what evidence there was that the Applicant was actually persecuted.

17. His claim was that he was a member of a particular social group; that is a personal trainer who was trying to get people to live in a healthy way which did not involve drugs and, for this reason, he was persecuted.  This is why this matter is totally different to that in BEL16 (Supra) and AWU16 (Supra). 

18. The submission of the Applicant goes further; that if it is that what I have said so far is correct, that does not mean that such a logical finding must then be carried over to the complementary protection criteria.  What is said there, that, at paragraph 58 of the IAA’s reasons, the IAA has found that they were not satisfied that the Applicant faces a real risk of harm on the basis of being threatened and harmed by criminal gangs.

19. The Applicant contends that if it is that the IAA has looked at the circumstance that the Applicant claims, that he was attacked by a Samurai-wielding assailant, and has rejected the claim that this occurred at all, partly because of the credibility finding over “speculative” matters, then it means that the IAA has not properly assessed the complementary protection criteria.

20. This is because all that needs to be satisfied in this criteria is whether there were substantial grounds for believing that if the Applicant is returned to Iran from Australia, there was a real risk that he would suffer significant harm.  If the IAA has rejected that he was attacked at all, that rejection must necessarily be based on the assessment of his credibility, which also stems from a disregarding of speculative matters.

21. However, it seems to me, that it was correct for the Tribunal to look at what it was that the Applicant was saying as to why it was that he was attacked.  It is the Applicant himself who was not even contemplating that this sword attack was anything other than related to his being a personal trainer who was not doing what the gang members wanted him to do.

22. For that reason it was still proper for the IAA to take into account what the Applicant had said about that aspect in looking at whether it is that the Applicant faced significant harm if he returned to Iran.  In my view, it was proper for the IAA to do what they have done in paragraph 58. 

23. Having looked at all of the matters that have been put before me by the Applicant, I do not find that there has been any jurisdictional error established. 

24. I therefore dismiss the application with costs in the sum of $7467. 

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 21 August 2020