1502018 (Refugee)
[2017] AATA 3031
•20 December 2017
1502018 (Refugee) [2017] AATA 3031 (20 December 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1502018
COUNTRY OF REFERENCE: Iran
MEMBER:Sean Baker
DATE:20 December 2017
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.
Statement made on 20 December 2017 at 4:09pm
CATCHWORDS
Refugee – Protection visa – Iran – Ethnicity – Faili Kurd – Political Opinion – Imputed Pro-Kurdish – Social group – Membership of family – Woman in Iran – Fear of sexual harassment – Subject to house arrest and court attendance – Failed asylum seekers – Credibility concernsLEGISLATION
Migration Act 1958, ss 36, 499
Migration Regulations 1994, Schedule 2CASES
Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997)
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
The applicants are citizens of Iran and claim to be Kurdish Faili ethnicity and Shia Islam religion. [The name of the first applicant] (the first named applicant or the applicant) claimed to fear harm because of his actual or imputed pro-Kurdish political opinion, and that of his father. [The name of the second applicant] (the second named applicant) fears harm as a member of her husband’s family unit, and also because she has been discriminated against and harmed as an Iranian woman and Faili Kurd woman.
The delegate refused the application. The delegate found that the applicant did not have a real chance of suffering serious harm on return to Iran, and that there was not a real risk that he would suffer significant harm. A copy of the delegate’s decision was not provided to the Tribunal.
A summary of the relevant law is set out at Attachment A. I have taken the policy guidelines prepared by the Department of Immigration and the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) into account to the extent that they are relevant.
The issues in this review are whether either or both of the applicants have a well-founded fear of being persecuted in Iran, and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of either or both being removed from Australia to Iran, there is a real risk that they will suffer significant harm.
CONSIDERATION OF CLAIMS AND EVIDENCE
Identity and nationality
To the Department [the applicant] provided a copy of his shenasnameh, (birth identity booklet), National Identity card and marriage certificate as well as an Iranian Driver’s licence. [The second applicant] provided copies of her shenasnameh and National Identity Card. At hearing both applicants agreed that they were citizens of Iran. On the basis of this information I find that the applicants are citizens of Iran, which is also their receiving country for the purposes of the complementary protection assessment.
There is no evidence before me to indicate that either applicant has a right to enter and reside in a third country. I find that neither applicant has a right to enter and reside in a third country.
The applicants’ claims
[The applicant’s] claims can be summarised as follows:
·He fears harm from the Iranian authorities because as a Faili Kurd he faces extreme discrimination and does not live with full human rights. He also fears harm because as a Faili Kurd he is imputed to be against the Iranian regime;
·Family life was difficult. His father does not have Iranian citizenship. Although his mother had Iranian citizenship and he was able to obtain citizenship when he was [age] years old, his family had to pay a large sum of money. In spite of this he is viewed by the Iranian authorities as a Faili Kurd and faces discrimination and abuse in his daily life;
·His father worked as [an occupation] but was not able to get any formal employment. In about 1993 his father was arrested and held in prison for a month. Because of this his father suffered depression and they had to move from Tehran to Ilam. His father found it incredibly difficult to find work and the applicant had to find work when he was [age] years old to help support the family;
·They are not able to dress in their traditional clothes or speak publicly in their own language or they will be abused and insulted;
·Between June 2011 and August 2012 he was forced to undertake military service. He was forced to do the most difficult and unpleasant jobs. He found this humiliating. Despite this he completed his military service;
·After this he applied for many jobs but was refused because he was a Faili Kurd. He was unable to work in any government department. He applied for many but was told he was not eligible as his father does not have Iranian citizenship;
·On many occasions the Nerou Intezami[1] (NAJA) or Basij would come to his house and search the premises. The Basij considered they were against the regime. On many occasions after this the applicant would be taken to court. He would be accused of having a pistol or a satellite dish. The satellite was removed from the house and the accusation about the pistol was not true. He had to pay fines because of these incidents. The authorities harassed them because they are Faili Kurds;
·Faili Kurds are prevented from accessing government funded medical assistance. Private medical care is very expensive. Faili Kurds also cannot access social security;
·The applicant could not stand living in Iran with no human rights and no hope for the future and paid a smuggler to leave. He left on his own passport but he had to pay a bribe for this because his father is not an Iranian citizen;
·He fears he would be arrested detained and tortured by the authorities because he is a Faili Kurd and left Iran, and is considered anti-government, it is also difficult to find employment and support him and his family;
·He cannot move anywhere else and live safely;
·His mother told him the Basij come and ask about his whereabouts every day.
[1] Iranian police force, Nīrū-ye entezāmī-ye jomhūrī-ye eslāmī-ye Īrān, abbreviated as NAJA, CIA World Factbook: Iran,
[The second applicant’s] claims can be summarised as follows:
·She fears harm from the authorities because of her ethnicity as a Faili Kurd, because she would be imputed to be anti regime and as a woman who does not want to conform to the regime;
·When she was studying at University Heresat would stand outside the university and check their hijab and clothing. If a woman’s hair was sticking out of their hijab they would cut the hair off. On many occasions she was targeted because she was not wearing the hijab correctly or her clothing was considered too tight. She would be insulted and harassed. This also happens on the street from the Basij;
·She wished to be free to wear the clothes she wanted to. As a woman she had no rights. She was not able to study what she wished to study;
·She has suffered discrimination and abuse as a Faili Kurd. At university other students would insult and abuse her because of her background;
·She fears she would be arrested, detained and tortured by the authorities because she is a Faili Kurd and left Iran, and is considered anti-government, it is also difficult to find employment as a Faili Kurd and a woman and support her and her family;
·She cannot move anywhere else and live safely.
On 8 May 2017 the applicant’s representative provided documents with translations relating to both [the applicant] (two documents requiring his presence at the Ilam Sepah, a judgment against him from the Ilam revolutionary court in absentia, and a letter from the spokesperson of [Association 1]); and [the second applicant] (a letter from the Disciplinary committee of [an] education institute stating that she was permanently expelled, discussed below, and documents titled ‘Explanations on DIBP officers concerns’, [the second applicant’s] statement and [the first applicant’s] statement.
At the hearing both applicants presented claims, discussed below.
After the hearing documents headed ‘[the applicant]’ and ‘[the second applicant]’ were provided, with a further letter from the chairperson of [Association 1].
Consideration of claims
The documents
On 8 May 2017, a week before the Tribunal hearing, the applicants’ representative provided documents relating to [the applicant] including two attendance notices from the Ilam Sepah intelligence department, dated [in] April 2015 and [in] March 2016 addressed to [the applicant] and requiring him to attend the Sepah Department within 48 hours and noting failure to do so would warrant an arrest, and a document from the Ilam revolutionary court sentencing the applicant to 5 years imprisonment dated [in] July 2016 for activities in favour of opposition groups and propaganda activities against the regime.
These documents were provided late in the process. Their sequence is implausible for the reasons below, and some of the documents lacked some expected information. I also discussed with the applicant country information that indicates a range of fraudulent documents can be obtained in Iran, including a range of official documents, specifically Court documents. For these reasons, as set out below, I find that these documents are fraudulent and non-genuine.
The applicant claimed that the authorities would be aware he was out of the country because he had departed on a passport in his own name. I expressed doubt that Sepah would then be sending requests for him to attend their department to his family home. He said that they know exactly where he is but they want to know where he lives now. I discussed with him the wording of these Sepah documents, which required him to attend within 48 hours and that failure to attend would warrant an arrest. The only other document he had provided was a notification of a court document given in absentia. I noted that he had not provided arrest warrants in relation to his failure to attend the Sepah Department, or a summons to the court when these would seem logically to be required before a judgment was given. I noted that he had not given any other documents, nor had he claimed his family had received arrest warrants or a summons. The applicant explained that what happened is they had said they wanted him and then after a while they came looking and said if the applicant is not going to present himself they will take his father, and when the applicant comes they will give his father back. Then after that they issued a verdict in absentia. He said the next time they come and send you another letter and a certain day you have a court hearing and you must have a lawyer and he did not have a lawyer and after that they arrested his father, it was complicated. I noted the difficulty was that he had not provided these other documents or explained why he had not. I noted that his explanation also didn’t seem to match with the dates of the documents – Sepah had again notified him to attend [in] March 2016, after he said they had taken his father and told his family they would do some kind of exchange for the applicant. He responded saying that after they arrested his father they sent him another paper saying they wanted him to go to the Court. I noted that this was not what he had given me, the notice was the same as they sent in 2015 and was for him to attend the Sepah Department, I noted I did not have before me a summons, that is, a document saying that the applicant needed to go to the revolutionary Court, and I understood that to make a judgment, even in absentia, the authorities had to provide a summons,[2] which can be left with the family.[3] The applicant then said that after they arrested his father they asked him to go back to Sepah, not to the court. I noted again that it appeared strange that there was no document requiring him to go to the court before they issued a judgment, which country information indicated was required. The applicant said maybe they thought because he was outside the country, maybe the situation was different, they knew he was out of the country so they didn’t send an early letter.
[2] Canada: Immigration and Refugee Board of Canada, Iran: Court summonses and arrest warrants, including issuance procedures, methods of delivery, description of the documents and the information they contain; prevalence of fraudulent court documents , 29 September 2014, IRN104955.E, available at: 8 December 2017]; Austria, Austrian Red Cross, Iran: Procedural and legal information about arrest and detention procedures by different security organs, Query Response [a-10097], 12 June 2017, available at: [accessed 8 December 2017]
[3] Danish Immigration Service, Report on fact-finding mission to Iran (9 - 17 September 2000), 1 October 2000, available at: 8 December 2017]
Later in the hearing I raised with the applicant a related concern – he had departed Iran in April 2013 but the first document from Sepah was dated [in] April 2015, and I noted to him that it seemed strange that the authorities did not seem to have shown any great interest in him for two years after he departed. The applicant said that when he was in Iran Sepah and the Basij used to come and search their house for reasons or non-reasons to show they were strong and put pressure on them – after he left Iran the issue became very sensitive and he was in Australia and other groups used to go to his place and ask his family about him and sent letters to go and present himself to the authorities, and then after that they arrested his father and the court issued a judgment in absentia against him.
I also discussed with the applicant my concerns with the presentation of the documents – they did not have any identifiers of the applicant such as his National Identity Card number or his address which I understood were commonly used on such documents to identify the recipient.[4] I noted also that on the two documents asking him to come in to the Sepah Department, there was no number of the document above the date on either of them. I noted that these things, taken together, caused me to have doubts that these were genuine documents as they appeared to be missing key or usual information. I also explained that country information indicated that a range of documents could be fraudulently obtained in Iran, including official documents, and court documents were specifically mentioned. In response the applicant said that if these documents were fake or someone had arranged them, he believed they would have put on them all the correct numbers and information, they don’t forget numbers, and so he believes these are genuine. I confirmed that the applicant was saying that because information was missing this therefore meant they were genuine and he said he was, if they are fake they definitely put all the details and everything to make it real. He said these documents had been provided by his family to him and he had provided them to me. He went on to say that the translator had not wanted to translate the documents from Sepah because the translator said the revolutionary guard are criminals, he did not know who the applicant was to give these documents to and the translating job was too dangerous and he didn’t want to translate it. He said maybe the translator was going to give it to the Iranian authorities.
[4] Danish Immigration Service, Report on fact-finding mission to Iran (9 - 17 September 2000), 1 October 2000, available at: 8 December 2017]
In the submission provided after the hearing, the applicant said that these documents were adjudicated (sic) by the Iranian government and he didn’t have any information about them, how should he know why they have different dates or don’t have details. He said that after the hearing he called his mother and she said they had not received any other documents, just those. He then goes on to explain that under Article 118 of the Iranian criminal code, when there is no address they can make a decision and judge without sending a subpoena for the accused, so he believes because they did not have an address where he is living now they didn’t send a subpoena. He repeats that if the documents were faked they would make ones without any missing details.
I have carefully considered the claims of the applicant about the documents. I do not accept his explanations. I found the applicant’s explanation for the provision, timing and logic of the documents to be implausible – he claims that his father was taken after the first notice was issued and his family were told that they would exchange him for his father, but then he was unable to explain why a further notice would be provided for him to attend the Sepah Department. He was unable to clearly explain why they would issue him with these notices if they were aware that he had departed the country. He did not explain why the authorities would wait two years after his departure to summon him to attend the Sepah Department. He was unable to satisfactorily explain why his family had not been provided with warrants for his arrest, or with a summons to Court prior to the judgment in absentia. I have had regard to his comments after the hearing in his statement but I do not find this convincing – I have had regard to Article 118 of the Iranian Criminal Code of Procedure (1999),which states that a judge can issue an order for arrest without a summons where the accused’s address of residency is not known,[5] but I do not accept that this demonstrates or indicates what the applicant claims it does – firstly it refers to a step prior to the issuing of a judgment, and secondly because country information indicates that this article refers to those who have no fixed address or vagrants, and country information also indicates that subpoenas can be lodged at the last known address and could be given to a family member[6] – just as the letters from Sepah were.
[5] Available at:
[6] Canada: Immigration and Refugee Board of Canada, Iran: Court summonses and arrest warrants, including issuance procedures, methods of delivery, description of the documents and the information they contain; prevalence of fraudulent court documents , 29 September 2014, IRN104955.E, available at: 8 December 2017]
I have carefully assessed the documents but my concerns with the lack of address of the applicant or other identifiers on the documents, and the blank ‘number’ field, presumably document number, on the letters from Sepah remain. I do not accept his argument that fraudulent documents would contain all the details and that the absence of detail is an indication that the documents are genuine – this argument is illogical. I also do not accept that the accredited translator that the applicant hired to translate his documents was afraid of translating the documents – I find this claim not to be credible and I note that if this rather remarkable interaction had in fact occurred I would have expected the applicant to mention this earlier in the process. I note also that the translator is accredited and I reject utterly any suggestion that they would provide the documents to the Iranian authorities.
I note that there are a range of sources attesting to the availability of fraudulent documents in Iran.[7] An unspecified Western embassy in Tehran stated that ‘it is possible to buy legal documents in Iran and obtain genuine documents in a fraudulent manner’. Consular officers at the U.S. embassy in Ankara have stated that ‘documents are easy to get in Iran through bribery and connections’, including civil documents.[8] In relation to fraudulent court documents, DFAT reported in October 2009 it was ‘aware of cases where court documents, such as summonses, have been forged’ and that ‘[o]peration outside the rules is common in Iran and with the right connections it may be possible to obtain documents for illegitimate purposes.’[9]
[7] Canada: Immigration and Refugee Board of Canada, Iran: Court summonses and arrest warrants, including issuance procedures, methods of delivery, description of the documents and the information they contain; prevalence of fraudulent court documents , 29 September 2014, IRN104955.E, available at: 8 December 2017]
[8] Danish Immigration Service, Landinfo and Danish Refugee Council 2013, On Conversion to Christianity, Issues concerning Kurds and Post-2009 Election Protestors as well as Legal Issues and Exit Procedures: Joint report from the Danish Immigration Service, the Norwegian LANDINFO and Danish Refugee Council’s fact-finding mission to Tehran, Iran, Ankara, Turkey and London, United Kingdom 9 November to 20 November 2012 and 8 January to 9 January 2013, February, p.68 available at: [Accessed 8 December 2017]
[9] Department of Foreign Affairs and Trade 2009, RRT Country Information Request IRN35547, 30 October <CX235773>
Given this information, and my concerns above, I find that these documents are not genuine, and have been obtained fraudulently by [the applicant] or someone on his behalf. This also leads me to doubt the claims which these documents are intended to evidence, as below, and to doubt [the applicant’s] general credibility.
[The applicant’s] father’s political opinion and arrests
[The applicant] claims that the authorities imprisoned his father in about 1993, which led to them having to leave Tehran and go to Ilam. At the hearing he claimed that his father had also been imprisoned in around January 2016 and was still in jail at the time of the hearing. At the hearing the applicant claimed that his father had been imprisoned on both occasions because he would talk about the Kurdish case – that they did not have a state, things like this, and someone reported his father. However, later in the hearing, as noted above, he also said that his father had been imprisoned the second time in the applicant’s place and to be exchanged with the applicant if the applicant returned.
About the first arrest, in approximately 1993, the applicant said he was [age] years old, that his father was in prison for a month and that during this time his father was subjected to severe torture, and as a result his father developed some mental health issues, he became angry, upset, and was mentally unstable. The applicant said at the hearing that until he arrived in Australia he did not know the precise reason why his father had been arrested and jailed on this occasion, but it was because his father would talk about the Kurdish situation.
About the second arrest he said that Etelaat arrested his father because his father was talking to his friends about Kurdish history. He said often they would ask about the applicant and this time they asked about the applicant and said ‘Where is [the applicant] and if you don’t tell us we are going to arrest you.’ Then the applicant’s family asked them why are you arresting his father and the authorities said ‘[The applicant] is making propaganda, promoting opposition parties and he is active in Kurdish opposition parties and that is the reason we wish to get him.’ The applicant said then a month after they said this, with no court order, they arrested his father. He said for two months his mother could not find his father and then she found him at the jail of the secret service in Ilam. I asked if they or he had a clearer idea of why his father was arrested. The applicant said his father told his mother that the applicant is in a very risky situation because he is relating with Kurdish opposition parties and is at risk of something. He said that they did not have any documents relating to his father’s arrest. He also claimed later that his father had been arrested and imprisoned in January 2016 in the applicant’s place and to be exchanged with the applicant if the applicant returned.
I asked the applicant if his father was a member of an opposition group or party. He said his father stood for culture and for language of the Kurds. I asked again and he said that as far as he knew he was not sure but his father did not have membership of an opposition group or party.
I noted that there was information that Sunni Kurdish political dissidents were harassed and harmed by the Iranian regime,[10] but that country information indicated that Shia Faili Kurds tended to be harassed less, particularly in Ilam where they formed a large part of the population, because they were Shia, the religion of the Iranian regime.[11] The applicant said he was not talking about religion, what he said was his father was talking about his language. I noted that what I was suggesting on the basis of the country information was that the authorities, particularly in Ilam, may be more tolerant of Faili Kurds, being Shia, than of Sunni Kurds from other areas of Iran. The applicant said that his father, as a Kurdish person, wanted to wear his traditional dress, his father’s issue was never to do with religion, he talked about the future, freedom, culture and language.
[10] Canada: Immigration and Refugee Board of Canada, Iran: Treatment of anti-government activists by authorities, including those returning to Iran from abroad; overseas monitoring capabilities of the government (2012-2013), 20 January 2014, IRN104730.E , available at: 5 December 2017]; International Federation for Human Rights, The Hidden Side of Iran: Discrimination against ethnic and religious minorities, 21 October 2010, N° 545a, pp.17-18, 22; available at: 5 December 2017]; Refugee Appeal No. 1222/93, Re KN, No. 1222/93 , New Zealand: Refugee Status Appeals Authority, 5 August 1994, available at: 5 December 2017]; Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), Iran: Freedom of Religion; Treatment of Religious and Ethnic Minorities: COI Compilation, September 2015, available at: 5 December 2017].
[11] DFAT Thematic Report - Faili Kurds in Iraq and Iran, 3 December 2014, [2.8, 5.10];
I noted he claimed his father had been arrested around 1993 in Tehran for a month, when the applicant was [age], and the applicant said after his father was released that time the authorities harassed him and anytime anything happened they questioned his father and his father said he had to go far away to avoid this harassment. I noted that the applicant claimed the family had moved to Ilam when the applicant was [age], so approximately four years after his father was released from prison, and noted that if this was so, then it seemed a long time after that to move if it was because the authorities were harassing his father. The applicant said his father had told him he had tried to cope with the situation but after three years he was sick of the pressure and they moved. The applicant then said that he wished to add also that his father had mental health issues because of the imprisonment and torture and he decided to go to Ilam to live as it was easy and less expensive.
The applicant said at the hearing that his father was talking about the Kurdish identity and culture and issues such as education in Tehran and he continued this in Ilam. I asked if his father had had any further difficulties with the authorities in Ilam for talking about these things. The applicant said the authorities would come and search their house and come and check and he thought this was to do with his father. I asked if the authorities had arrested or taken his father to court in this period. The applicant did not answer the question but repeated that they came and searched the house looking for weapons and a satellite dish. I repeated the question. The applicant said they had not arrested his father in this period, but they were under pressure, subject to bad treatment and discrimination. I noted that it seemed strange that his father continued to talk about these things but that the authorities took no further action against him other than searching their house for satellite dishes or weapons, that they had not imprisoned his father again for some 18 years between 1997 – 2016 nor taken him to court, but only the applciant. He said he thought there was nothing worse than the authorities searching the house whenever they wanted without a warrant. He said the way the authorities tortured them in this time was they would come anytime, day or night and search, looking for documents to implicate them. I noted that the country information indicated that Iranian state authorities acted with impunity so I was not sure that they would need proof to detain or arrest his father. He said it was their purpose to traumatise them.
I raised a concern with the applicant that I was concerned that his claims about his father appeared to have evolved over time as doubts with his claims were put to him – I noted that in his statutory declaration of [August] 2013 which he provided to the Department, he did not mention that his father had engaged in any activities or discussed Kurdish rights, there was no mention of his father’s political opinion, or of the applicant’s own political opinion. It was only in the statements supplied to the Tribunal on 8 May 2017 that the applicant claims that his father was a member of a Kurdish group that were doing Kurdish rights activities, and that they had to go to Ilam from Tehran because of his father’s mental illness and secondly because of a security reason which his father never talked about, which was because of doing Kurdish rights activities and opposition to discrimination for Kurdish people, and for this reason the Basij and authorities always followed him, but his father did not stop his activities, and the authorities searched their house for weapons and satellite.
The applicant said that he had always said his father was jailed for a month in 1993 (1372 Persian calendar) and then that his father and the family had moved to Ilam for two reasons – his father was not feeling well and some other reason that the applicant did not know. He said that when the applicant arrived in Australia it was important that he knew why they had moved from Tehran to Ilam. I noted that what was significant was that prior to the statement to the Tribunal in May 2017, he had not mentioned the political activity of his father as a reason for either of these things, so I was not sure that this was one of the reasons for his father and the family moving to Ilam. I read to him from paragraph 4 of his 2013 statutory declaration. I noted that this didn’t mention his father’s political activities or statements. The applicant responded that he had said today that there were two reasons, one reason he was not doing well and after the applicant arrived in Australia he asked his father and he gave him that answer. He said his father had only told him in the last year or two.
In his post hearing submission the applicant says that he did not earlier say anything about his father’s imprisonment as he really didn’t know the main reason of his father’s imprisonment that time, he got to know about that after the interview and asked his father. He also said his father was not arrested in those 19 years because the authorities could not find any documents against him or make him guilty. Then when the applicant exited Iran it was their best chance to arrest his father until they can get more information from the applicant.
I have carefully considered the claims of the applicant for his father being jailed and harassed by the authorities and I find I am not convinced by them. He has been unable to explain what I believe to be a fundamental difficulty with the story he is now advancing – why he did not include in his statutory declaration to the Department any indication of his father’s claimed political opinion/advocacy of Kurdish identity and culture, and nor did he indicate that his father was jailed in 1993 for this reason, nor that they relocated to Ilam for this reason. I do not accept as plausible that the applicant did not become aware of these things until he had been in Australia for some time/after the interview with the delegate, I find it implausible that he would seek to claim protection for his actual or imputed political opinion as a Kurd and for reasons of his family without seeking information from his family about these things. I find that the applicant has sought to use this as a device to explain his late introduction of the claim that his father was political. It is significant that in his statutory declaration of August 2013 he indicates they moved to Ilam because of his father’s mental health, and does not mention the reason for the imprisonment of his father, and it is only in the statement provided in May 2017 that the applicant claims there was a second reason for them moving, which his father had not told him previously. There are other difficulties with his claims. As I noted to him, it appears implausible that the applicant’s father would be released from prison in Tehran for reasons of his political opinion, continue to express his views and continue to be harassed by the authorities but delay moving to Ilam for some 3-4 years. Even if this were the case, I find it extremely implausible that, having arrested and detained his father for a month in Tehran, the authorities then limited themselves to harassment and searching the family home, despite the applicant claiming that his father continued his activities of talking about Kurdish culture and identity. At hearing the applicant emphasised that he was sure that this was because of his father’s history, but this claim has difficulties because he had not claimed this earlier and as discussed below the applicant’s evidence was that the authorities took him, not his father, to court twice in this time. I find the applicant’s claims that his father spoke of Kurdish identity and culture, that this was the reason he was detained in 1993 and why they moved to Ilam implausible. Given this, I do not accept that his father has spoken about Kurdish identity or culture at any time to anyone. I do not accept that this was the reason or part of the reason for the applicant’s father being jailed in 1993. I do not accept his explanations that his father was not arrested, detained or jailed, but they only had their house searched, for 19 years to be implausible – I do not accept that the authorities would need documents or ‘proof’ to detain his father – the country information indicates that the authorities have broad powers to detain people with no proof.
Given these findings, I have real concerns about the claims about his father’s profile, the harassment by the authorities of his father, or that the applicant’s father was jailed in 2016, and concerns about the general credibility of the applicant. I find that the applicant’s father has no interest in politics, Kurdish identity or culture, and has not spoken about these things to anyone, nor does his father have any actual or imputed profile as a Kurdish activist or supporter. While I accept that the applicant’s father was jailed in 1993 I find that it was not for the reasons claimed. Given my credibility concerns with the applicant’s claims I do not accept that his father was tortured while in jail in 1993. Given the problems with the applicant’s claims and evidence and my credibility concerns, I do not accept that his father was jailed in 2016 or that his father has the profile the applicant claims that he has.
House searches and being taken to court
An interlinked claim with the above is that his family were harassed by the authorities who came to their house looking for a satellite dish and weapons. Again, his evidence on this has varied over time. In his statutory declaration of 2013 he said that Nero Intezami (the police, NAJA) and the Basiji would come to his house and search the premises, during the day and night, the Basij considered they were against the Iranian regime. He claimed that on many occasions he would be taken to court and accused of having possession of a pistol or having a satellite dish on his house. Because of the accusations he was forced to pay fines.
At hearing he said, as above, that the authorities harassed his father because of his political opinion by searching their house during their time in Ilam. He stated clearly a number of times that the authorities were searching the house and coming to check for weapons or satellites because of his father – but again as above this is absent from his statutory declaration which indicates that they searched his house and took him, rather than his father, to court. I accept that he is referring to the family home, but the emphasis at that point was on the authorities’ searches in relation to him.
I find that the applicant’s evidence about the searches of their home, and the reasons for this, whether focused on the applicant or on his father, have changed over time. I find that this is because, as above, the applicant has tailored his claims to address concerns raised during the process and has introduced the political opinion of his father.
The applicant’s evidence at hearing about this claim also differed in a significant and material aspect. He said at the hearing that the authorities came searching their house for weapons and a satellite dish. He then said that he had been taken to court twice, once because of the satellite dish and he was fined, and the second time because of a land dispute as he was farming some land and the authorities told him he was not allowed to and took him to court and he signed that he was not going to approach this land and they left him. He said that this land had become national land but before had belonged to their ancestors. He said he was hoping the authorities forgot that they had said his family could not use this land but he was arrested and told not to use the land anymore. I confirmed he had been taken to court because of the satellite dish and then the land issue and he said that was correct. I asked if he had been taken to court or accused of anything else and he said he had not been. I then noted in his statutory declaration of 2013 he said he had been taken to court and accused of having possession of a pistol.
The applicant said that he was saying they had searched the house for satellite dishes and weapons, they had found a satellite dish but had not found weapons. I noted that this was different from his statutory declaration, where he said he had been taken to court and said he would be accused of having possession of a pistol, or a satellite, the accusation he had a pistol was not true but as a result of these incidents he had to pay fines. I also noted to him that he had not mentioned the land issue in his statutory declaration at all. The applicant reiterated that he had been taken to court because of the satellite dish and maybe he had forgotten to mention the land issue in his statutory declaration.
Later in the hearing, after discussing his claimed political opinion, discussed below, when asked if he had ever been arrested by the authorities the applicant said that he had not been arrested in Iran. He said he was very aware and conscious of what he was saying when in Iran.
In his post hearing submission the applicant said that they searched his house without any letter, his neighbours would know this but what should he do now.
I have considered the applicant’s evidence on these claims. I have profound concerns because of the way the applicant has represented this evidence which I find has changed over time. I also have concerns that the applicant claimed earlier to have been taken to court or at the very least accused of having a pistol by the authorities, but was clear at the hearing that this was not one of the reasons he was taken to court, nor had been accused of this. He also introduced a new claim; that he had been arrested and fined for the farming of land which had once belonged to the family. I do not accept that the applicant would have forgotten this in his statutory declaration. I do not accept that his evidence at the hearing in relation to the pistol accusation or offence is the same as that in his statutory declaration, I find it was materially different as set out above. Later in the hearing he said that he had not been arrested in Iran. Whilst this was asked in a slightly different context (discussing his political activities) – it casts further doubt over his claims to have been arrested and taken to court for some or all of these offences.
These concerns lead me to have no confidence that the applicant has been telling the truth about these claims, either earlier in his statutory declaration or at the hearing. I find I can have no confidence that these things have happened. I do not accept that the applicant’s family home was searched by NAJA and the Basij at any time, either because of his father’s history, the applicant’s, because of their ethnicity or the family’s actual or imputed political opinion. I do not accept that the applicant was accused of any offences. I do not accept that he was taken to court and fined for having a satellite dish, falsely accused and/or fined for having a pistol, accused or fined or had to sign a guarantee in relation to his farming of land that used to belong to the family or accused or taken to court or fined for any other reason.
[The applicant’s] political opinion
[The applicant] has also claimed that the authorities have sought him because he disappeared suddenly and they are aware or presume that he is anti-regime and doing political activities against the regime. He claimed this, in the context of providing the documents I have found not to be genuine above, in his statement to the Tribunal.
In his statutory declaration of 2013, he claims that the authorities would search their house as they considered that they were against the regime. He claims he was fined for offences, which I have rejected above. He does not indicate that he engaged in any political activities in Iran, but that his ethnicity and that of his family as Faili Kurds led the authorities to consider that they were against the regime.
At the hearing I asked the applicant if he had talked about Kurdish issues, using their language, their traditional dress, any of these issues whilst in Iran. He responded that he never forgot his culture and identity, however he was aware to whom he was talking, used to talk to people he knew very well, because of what happened to his father he never talked in public. I asked if he was ever a member of a political party and he said he had never been a member of any political party.
In the submissions provided on 8 May 2017 prior to the hearing is an undated letter from the spokesperson of [Association 1]. The letter discusses their work to build a strong and connected community of Kurdish people, the organisation of many events to promote Kurdish identity and states that the applicant has been a supportive staff member assisting in the organisation and ideas of these community events and seminars. The letter notes that the applicant identifies as Kurdish Faili and lives in the Kurdish community, that Kurdish Faili people are subject to persecution in Iran and are some of the most disadvantaged people in the country due to their identity and history, are excluded from being given citizenship and any other recognised identity document in Iran and thus they flee Iran to seek asylum in other countries, and the letter concludes that the applicant’s dedication, hard work and effort and relation to the organisation has jeopardised his safety in Iran.
At the hearing I asked the applicant if he had engaged in any political activity in Australia. He said that since being in Australia he felt he is free, he defends his culture and ethnicity and history, and he attended seminars and public meetings. I asked if he could give me any details of these things he does and he said that there is an [organisation] and they have sessions and celebrate their culture and events and have activities with other Kurds to show the culture of the other people. I asked how he specifically had defended his culture and ethnicity and history. He said that he contributes and is known as an active member. I asked him again if he could give me specific details. He said that part of this is they have a seminar and they talk about how they present Kurdish culture, they present and stand for Kurdish people, there was a leader who is now in jail and there was a prize in Sydney and they promote this kind of thing and show the world that this person deserves this thing. He said that in the last session they talked about Abdullah Öcalan. I noted that Öcalan was a Kurdish dissident from Turkey and asked if they had discussed any Iranian Kurdish dissidents. He did not answer the question but said that they talk about one Kurdistan, they don’t have a state, they cannot have their nation, so the Iranian authority considers this as propaganda against them, promoting the idea of them all living together. He said when they talk about Kurdish ideas it makes him happy, in Iran he was under pressure and not allowed to talk of all these things and here he can express an opinion. I asked when he had joined this group and he said after he arrived in Australia, 2-3 months he was looking for a group and he joined in 2014. I noted that the letter supplied did not discuss anything he specifically had done at the organisation and that it appeared a cultural association. He said that in Australia this is a human right, not a political thing, but in Iran this is a political issue. I noted that there was a lack of detail in the letter. He said that they perhaps misunderstood him; they are standing for the Kurdish case, the Kurdish question, in Iran when you talk about culture, and the authorities think this is a political issue.
After the hearing a further letter from the spokesperson of [Association 1] was provided in support of the applicant and his wife’s claim. This reiterated he had been a supportive staff member, tat Kurdish members of this community who are actively following the goals of this group including protesting for human rights for the Kurdish people of Iran who are subject to discrimination due to their origins and beliefs, are subject to persecution in Iran, and reiterates that the applicant’s work for them has jeopardised his safety in Iran.
Having considered the applicant’s claims on his political opinion I continue to have concerns. Given his vague and undetailed evidence on whether he held or expressed political views in Iran, my findings that his father also did not hold or express such views and my other credibility concerns, I do not accept that the applicant held any political views in Iran, either pro-Kurdish or otherwise. I do not accept that the applicant expressed any political views about the language, traditional dress, culture, ethnicity or history, to close friends or to anyone. I do not accept that he wanted to express these views but was aware to whom he was talking, only talked to people he knew very well, never talked in public due to what happened to his father, in Iran was under pressure and not allowed to talk of these things. I do not accept that the applicant wished to express an opinion in Iran but modified his behaviour in any way to avoid harm.
Turning to his behaviour in Australia, I accept that the applicant joined [Association 1] around 2014, but I do not accept that the applicant has had a prominent role. I accept that the applicant may have helped in a very low level manner to organise some seminars and do other work for the organisation but I also note that his evidence on this was undetailed and vague, and that the two letters, despite the second one being an attempt to clarify the situation of the applicant, do not detail any of the events or activities he organised or took part in or detail in any way how the applicant would be prominent. I do not accept that he supplied ideas for seminars or community events, nor that he organised community events. I find that the applicant has been involved in the organisation at a low level. I do not accept that he himself has had a speaking role or discussed one Kurdistan, that the Kurds cannot have their own nation or anything else which the Iranian authorities may be concerned about. I do not accept, given my findings above and my credibility findings, that the applicant has expressed views in Australia that he was unable to express in Iran. As far as the two letters from the spokesperson discuss the applicant I am willing to accept them but I do not accept the inference in those letters that the applicant will be persecuted because of his involvement, because there is so little detail of why this would happen in the letters and give this inference no weight, and give the letters in themselves little weight for this reason. The applicant, and the spokesperson of [Association 1], have been unable to explain or detail how or why the applicant’s low level involvement with the organisation would lead to difficulties for him if he returned to Iran. There is no suggestion that the organisation has any affiliations with Kurdish dissident parties in Iran, or even with any individual Kurdish dissidents or activists in Iran, and the only detail the applicant was able to give was of Öcalan, a Kurdish dissident in the Turkish context. I do not accept that the applicant took part in any discussion or seminar in relation to Öcalan in anything more than that of an audience member given his lack of detail about this. I do not accept that the Iranian authorities would be aware of his low level activities in Australia and even if they were I do not accept they would be concerned about the applicant’s involvement in low level organisation of some seminars, as an audience member at a seminar about Öcalan, nor that the applicant has discussed broader Kurdistan issues about one Kurdistan, not having a state and cannot have a nation, nor that the authorities would consider this as propaganda against them, promoting the idea of them all living together. The applicant has provided so little detail of anything he has done in Australia, and the letters of support are so lacking in detail, that I do not accept these claims are made out.
As above, I find his political opinion and involvement in Iran to have been non-existent. I find his political involvement in Australia to have been very low level. I do not accept that the applicant has engaged in Kurdish politics or is concerned about Kurdish political, cultural and social issues such that he would engage in any political activities, or wish to do so but be unable to due to fear of harm, were he to return to Iran.
Credibility conclusions because of the above
Because of the above findings, I have credibility concerns with [the applicant’s] evidence – in particular that he has provided or caused to be provided fraudulent documents and that he has tailored his evidence about his claims including his father’s political involvement/profile and the interest of the authorities in him over time as it became apparent that his claims were insufficient. Central to my concerns is his shifting and inconsistent evidence over his and this father’s political opinions and the treatment they received in Iran. The applicant’s evidence on these matters has changed over time, and whenever concerns such as those above are put to him he claims that the authorities either have too much power or not enough – for example they were able to search the family home without any warrant for 19 years, yet did not have evidence to detain or jail his father in this time. These are serious and significant difficulties which lead me to find that I cannot rely on his evidence and to lead me to find that he is not credible or a witness of truth.
[The second applicant’s] experiences
[The second applicant] claims to fear harm as a Faili Kurd for reasons of her ethnicity and the antigovernment political opinion imputed to her, and as a woman who does not conform to the regime’s dress requirements for women. She claims she was harassed for these reasons by Heresaat and then expelled from university. She says that she wishes to wear what she wants and that she has been denied education and could not find work.
In the statement provided to the Tribunal prior to the hearing she says that she was not going to demonstrations against America and Israel at University as was expected, she did not want to be a member of the Basij and because of her dress code she was expelled from University, she believes it was also because of her Kurdish background. She says she also was harassed by the Basij because of her dress outside the university with friends but they ran away.
Also provided was a document from [an education institution] dated [in] March 2013 which states that as she does not adhere to the rules and code of behaviour of the University as well as lacking attendance at student activities she is permanently expelled from the University.
At the hearing the applicant gave evidence without her husband present. She indicated that she wished to discuss a further claim of sexual harassment. I noted that she did not have to tell me of the actual event but if she could give me as much detail as possible that would be helpful. Her responses were unclear but she eventually indicated that a security guard associated with the University had touched her hair inappropriately and had wished to sexually assault her.
After the hearing she provided a statement in which she said that she wanted freedom of choice, freedom of talk, freedom of religion, and discrimination, and that she was talking about sexual abuse, she could not talk about what was happening to her at university, even to her mother. She cannot study anywhere else as she has been expelled. She says she may be questioned on return and there is no guarantee she is not arrested or taken to prison or suffer the same thing happening in University. She fears the university may have prepared a document against her. She fears being sexually harassed or abused in the workplace. In Iran you cannot rely on the authorities to protect you. She does not wish to wear the hijab.
Despite some concerns with the timing of the provision of the document, the reasons why she left University and her claims about what happened with the security guard I accept that the applicant was dismissed from the University as claimed because she did not engage in protests, did not wish to be a member of the Basij and because of her dress code, that she had her hair cut and would have her dress or shoes criticised by Heresat / security guards outside the University gates. I do not accept that this was for reasons of her ethnicity – although she claimed that she believed it was also for this reason she has not advanced any reasons why she thought this. I also accept her evidence that one security guard touched her hair and may have wished to sexually assault her. I spent a considerable time trying to discuss with her what had actually happened with the security guard. Her evidence at the hearing changed considerably but what she stated clearly towards the end is that she feared the security guard may sexually assault her, and she clearly indicated she had not been sexually assaulted. Her response after the hearing raises some doubts about her evidence. Ultimately I do not think it is necessary to precisely determine what did or did not happen to her, for the following reasons.
As I explained to her, the question is whether she would suffer harm now or in the reasonably foreseeable future. She said she did not know what was in their mind, she had a problem with the Islamic dress and did not want to wear it. She said because she had been expelled and then went overseas she does not know what will happen if she goes back, and claimed after the hearing that the University may have prepared documents against her. I noted that this appeared speculative rather than based in any factual information. She said that the authorities would consider her antigovernment as she was not following whatever they wanted her to do so it was not easy for her to go back.
The facts which are not in dispute are that [the second applicant] is no longer attending University, and I am willing to accept that this was because she was expelled for the reasons above. Even if I accept all of the things she claimed happened to her in the past, including the implied sexual assault, I do not accept that this leads to any chance of future harm. As I noted to her, she had married and moved to Ilam before her departure. There appears no chance of her being further harmed by anyone at the University in Tehran or the security guard attached to that University. She had ceased study at University after her expulsion and her evidence is that she would not be accepted back to that or any other University. I do not believe that this is, in and of itself, a breach of her rights so fundamental that it leads to serious or significant harm. She completed her high school studies. As I explained to her, I believe she could return to Ilam and have some prospect of gaining employment. She said that there is discrimination against women and without qualifications it is not easy to get a job if she has only high school qualifications. I note that she has also claimed in her statutory declaration that even women who have university degrees find it very difficult to gain employment, so I am unconvinced of her argument. I find that the applicant has been denied the opportunity to attend University, which she wishes to do. But I do not accept that this leads to serious or significant harm.
She agreed that she was an Iranian citizen and had departed on her own passport and had had no problems obtaining her passport or leaving through the airport.
I accept much of her claims made at the hearing, but I also note that in the hearing and in her post hearing statement she has demonstrated some exaggeration of the things that have happened and what she argues this will lead to. For the reasons discussed below I do not accept that what I accept of her claims about Islamic dress and her appearance, leads to a real chance of her being persecuted for the reasons below, and nor do I accept that it leads to a real risk of significant harm.
Do either or both of the applicants have a well-founded fear of being persecuted for a Convention reason on return to Iran?
On the basis of the findings above, I make the following findings in relation to the applicants. In relation to [the applicant], I accept that:
· He is a Faili Kurd and Shia Muslim;
· He holds Iranian citizenship through his mother, an Iranian citizen, as does his sister, this having been acquired for them when he was [an age] by his mother;
· He lived in Tehran until he was approximately [age], when the family moved to Ilam;
· The applicant attended tutoring and/or school until the family moved to Ilam, and has some ability to read and write ;
· Apart from when he did military service, the applicant worked from the age of [age] until he departed Iran to support his family;
· His father was jailed in 1993, when the applicant was [an age], and after this his father suffered depression and had difficulty working, which was why the applicant had to start work at [age];
· His father does not have Iranian citizenship, having been born in Iraq. He held a Green card (amayesh) for some of this time but stopped renewing it at some indeterminate date;
· The applicant undertook military service between June 2011 and August 2012, and he has completed his military service (although he claims he did not receive his completion card, he conceded he had a letter which indicated to employers that he has completed his military service). I accept that he may have been harassed and given unpleasant tasks to do;
· He applied for many jobs in Ilam but was not successful;
· His maternal uncle has consistently supported the family, including helping the applicant to leave Iran, and this uncle continues to support the family now;
· He left Iran [in] April 2013 with his wife on a legitimately issued passport in his name;
· He has had some low level involvement with the [Association 1].
For the reasons given above, and on the basis of my credibility findings, I do not accept that:
· His father has expressed a pro-Kurdish political opinion, has spoken with people about Kurdish traditions, language, culture or a Kurdish state, or any other political opinion, at any time;
· His father was jailed in 1993 for expressing a political opinion or for any reason connected with this. Nor do I accept that his father was tortured in jail in 1993;
· The applicant would suffer any ongoing problems because of his father’s jailing in 1993, given that I have found this was the only problem his father has had, that his father was not jailed for political reasons, that it was a considerable time ago, that the applicant has been able to work and support the family. Whilst I accept his father suffered depression and this was the reason the family moved to Ilam, I do not accept that the applicant would suffer any further harm on account of his father’s depression;
· The authorities harassed the applicant’s father and/or the applicant which caused them to move to Ilam, nor do I accept that the family moved for any reason other than his father’s depression and inability to find work;
· That the applicant having been harassed and given unpleasant tasks during his military service was because of his ethnicity. I do not accept that there are any future implications for him because of his unpleasant experiences during military service – this was some time ago and as he conceded he has a letter of completion of his military service;
· The applicant was refused employment because of his ethnicity, or because his father is not a citizen. Rather, I find that he had difficulty finding a job because of the general employment situation in Iran;
· There are any implications for the applicant because his father does not have Iranian citizenship – the applicant has acquired Iranian citizenship himself, and has completed his military service. He has been able to work. I do not accept that any of the difficulties he has faced which I have accepted, are related to or compounded by his father’s lack of Iranian citizenship;
· that NAJA, the Basiji or any other authorities searched the applicant’s family home at any time, neither because of his or his father’s political opinion, or for any other reason
· The applicant was arrested and taken to court on several occasions, facing accusations of having a satellite dish, a weapon, or because of a land dispute, nor do I accept he was required to pay any fines;
· The applicant’s family, with the exception of his father, were unable to access medical care or social security from the state;
· Sepah sent the applicant two letters ordering him to attend their offices in 2015 and 2016 and that if he did not he liable to arrest;
· The applicant was tried and sentenced in absentia by the Ilam revolutionary court sentencing the applicant to 5 years imprisonment dated [in] July 2016 for activities in favour of opposition groups and propaganda activities against the regime;
· The applicant has engaged in any level of criticism of the Iranian regime or in favour of Kurdish separatism in Iran or in Australia that would bring him to the attention of the Iranian authorities or cause them any concern if they did become aware of it;
· The applicant’s father was jailed in January 2016 or at any other time other than 1993, for any reason whatsoever;
· The applicant or his father are of any interest to the authorities;
· That the Basij or any other authorities have come looking for the applicant at any time asking about his whereabouts;
· And I place no weight on the documents said to be from Sepah and the Ilam revolutionary Court.
In relation to [the second applicant], I accept that
· She is a Faili Kurd who holds Iranian citizenship;
· She completed high school and went on to University in Tehran;
· She did not attend demonstrations or join the Basij, and on a handful of occasions her manner of dress was found to be unacceptable, and that for these reasons she was expelled from University;
· That she may have been harassed by the Basij at other times out on the street because of her dress;
· That she may have been sexually harassed and possibly assaulted by a security guard associated with the University;
· She married her husband in March 2013 and moved to Ilam where she lived with his family until they departed iran;
· She departed Iran on her legitimately issued passport in her name.
However, I do not accept that she is or would be perceived as a woman who does not want to conform to the regime because of these things I have accepted or for any other reason. I do not accept that her expulsion from the university would lead to ongoing difficulties for her from the authorities, because it happened some time ago, happened in Tehran not Ilam where she would be returning to. I do not accept that any of the other behaviour I have accepted or what has or may have happened to her will lead to her being considered to be a woman who does not want to conform to the regime. I do not accept that, returning to Ilam, and given the country information below, that she would find it difficult to find employment as a Faili Kurd. I do accept that as a woman she would find it difficult to find employment, and will discuss this further below. As a Faili Kurd with Iranian citizenship, I do not accept that these things I have accepted above had happened to her because of her ethnicity, nor that this cumulatively leads to a risk of her being harmed.
I have real sympathy for the applicants – their past experiences that I have accepted indicate difficult lives in which [the applicant] was required to start work from a young age to support his family and in which [the second applicant] has been subjected to harassment and possibly an assault and is unable to study at university. However, for the following reasons, I have considered the chance of harm that the applicants, in their particular circumstances, would face if returned to Iran and find that they would not be persecuted for a Convention reason.
The country information in relation to Faili Kurds, which I discussed with them at the hearing, indicates that Faili Kurds who are citizens have access to employment, education and health care on the same basis as other citizens.[12]
[12] DFAT Thematic Report - Faili Kurds in Iraq and Iran, 3 December 2014.
3.6 Following discussions with a range of credible non-government sources, DFAT is not aware of cases where Faili Kurds who are also Iranian citizens have faced adverse attention specifically because of their ethnicity. Contacts are not aware of Faili Kurds not approaching Iranian authorities due to fear of mistreatment, although they were not prepared to rule this out.
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3.53 Faili Kurds in Iran who are Iranian citizens can access services on the same basis as other Iranian citizens. They appear to face little to no discrimination in access to services on the basis of their ethnicity or religion.
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3.62 Faili Kurds who are Iranian citizens have access to employment on the same basis as other Iranian citizens.
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3.66 DFAT has been told that pay and working conditions for Faili Kurd refugees are often significantly worse than for Iranians doing the same work. However, in Ilam and Kermanshah provinces, where locals speak the same dialect as Faili Kurds, there is considerable sympathy for Faili Kurds so working conditions might be better there than in other parts of Iran. Sympathy from low-level local officials such as policemen might also lead to a lower level of official attention in those provinces.
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4.4 DFAT has spoken to a range of credible contacts in relation to the societal treatment of Faili Kurds. Contacts have not reported instances of Faili Kurds being targeted for extortion or being subject to harassment, detention or physical assault. However, contacts were not prepared to rule out the possibility of this occurring to individual Faili Kurds, due to their vulnerability as refugees and their Kurdish identity.
4.5 On this basis, DFAT assesses that this type of societal discrimination against Faili Kurds is not widespread, but cannot be ruled out in individual cases.
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5.10 The Iranian Government has been engaged in a low-level insurgency with Kurdish militias in border areas between Iran and Iraq. As a consequence, Kurds and those in Kurdish areas might face harassment or additional attention from police and military forces. However, in general Kurds in Ilam and Kermanshah are Shia, so would normally face less challenges in interacting with the Government than other (Sunni) Kurds. Incidents between Government forces and Kurdish militia in Kermanshah have reported been infrequent in recent years.[13]
[13] DFAT Thematic Report - Faili Kurds in Iraq and Iran, 3 December 2014.
Ilam is one of the four largest provinces in Iran with a predominantly Kurdish population,[14] and Kurdish dialects are spoken and Farsi used less,[15] but it is also one of the poorer areas of Iran.[16]
[14] DFAT Thematic Report - Faili Kurds in Iraq and Iran, 3 December 2014 [5.16]; CXC9040666457: "IRAN'S KURDISH OPPOSITION GROUPS CALL ON PEOPLE OF EASTERN KURDISTAN TO BOYCOTT OF IRAN'S ELECTION", Iran News Update, 30 April 2017, (Opens in a new window
[15] DFAT Thematic Report - Faili Kurds in Iraq and Iran, 3 December 2014 [2.13]
[16] Rebin Rahmani, "Risking Life to Earn Bread", Foreign Policy Centre, 01 February 2017, CISEDB50AD345
The applicants continued to assert that they had been discriminated against on the basis of their ethnicity.
On the basis of the country information I do not accept that the applicants have been discriminated against to the levels they claim on the basis of their ethnicity. The country information establishes that, as Faili Kurds with Iranian citizenship, they are largely dealt with, officially and socially, as other Iranian citizens. The country information also indicates that, living in Ilam, with a majority Kurdish population, they face little to no chance of official or social discrimination.
I consider that much of the concerns that they hold are ones that affect people in Iran generally – the economic situation means that many people are unable to secure permanent paid employment. I find that this, rather than discrimination for his ethnicity or because of his father’s status, is the reason [the applicant] was unable to secure government employment or permanent non-government employment, but I note his evidence that he was employed until he departed for Australia.
I find that, if the applicants return to Ilam, [the applicant] would have prospects of finding employment – [the applicant] was previously employed there. Whilst I accept, as above, that [the second applicant] as a woman would find it difficult to gain employment, I do not accept that this would threaten her capacity to subsist – I consider that [the applicant] and his family would support her. I note also that [the applicant’s] maternal uncle has been able to support the family in their absence, so I consider that he would also be able to assist the applicants on return. I find that, on the country information, they would have access to health care and social security on the same basis as other citizens. I find that, in Ilam, they would face only a remote chance of official or societal discrimination on the basis of their ethnicity.
The applicants both departed Iran lawfully on their own passports. I therefore find that they would not be subjected to any sanctions for the manner of their departure.
Country information in relation to the return of failed asylum seekers is in the following terms:
Conditions for Returnees
5.33 Iran says it does not accept involuntary returnees. However, in practice, border authorities regularly accept Iranians with valid Iranian travel documents returned involuntarily or even those without documentation if persuaded they are Iranian. Iranian overseas missions will not issue travel documents to an Iranian whom a foreign government wishes to return involuntarily to Iran. Officials provide assistance to Iranians who wish to voluntarily return to Iran, even if they left irregularly. Strong anecdotal evidence suggests that officials do not attempt to prosecute a voluntary returnee—largely because most failed asylum seekers leave Iran legally (e.g. regular departure through airports or with passports).
5.34 From DFAT’s anecdotal observation at airports, a voluntary returnee (complete with IOM bags) does not attract much interest from authorities amongst the large regular international movements of Iranians. Credible sources have told DFAT that returnees will generally move quickly through airports – usually Tehran Imam Khomeini – without official interest. Where temporary travel documents have been issued by Iranian diplomatic representatives overseas, authorities at the airport will be forewarned about a person’s return because of Iran’s sophisticated government systems. Irrespective of whether a returnee is travelling on a temporary travel document or their ordinary passport, credible sources have told DFAT that they will generally only be questioned if they had done something to attract the specific attention of authorities. The vast majority of people questioned would be released after an hour or two.
5.35 In some communities, particularly Kurdish and Arab, cultural factors involving ‘face’ will ensure that a voluntary returnee is unlikely to draw attention to themselves for having ‘failed’ to leave Iran upon their return to the country but generally DFAT is not aware of any legislative or social barriers to voluntary or involuntary returnees finding shelter or work in Iran, provided they have sufficient identification to enter Iran. DFAT is also not aware of any specific barriers for voluntary returnees to travel to their home region, including for unaccompanied women. Some women from minorities or rural areas may feel culturally unable to travel unaccompanied within Iran.[17]
[17] DFAT Country Information Report – Iran, 21 April 2016.
I explored this information with the applicants at hearing.
I find that, as failed asylum seekers who departed on their own passports they would face minimal questioning, if at all, from the authorities, and would then be able to return to their home area of Ilam. I do not accept that in this process they would be harmed in any way. I find that they would not face any harm for living in Australia, a Western Country for a number of years – they have not explicitly claimed this and there are many Iranians who remain in Australia for work or study and then return.
I have also considered whether [the applicant’s] activities in Australia with [Association 1] will lead to him facing any chance of harm on return, or increasing the chances of him being harmed. I have considered the two letters from [Association 1’s] spokesperson. However, as my findings above indicate, on this minimal information and the applicant’s own vague and limited evidence as discussed above. As discussed more fully above, I do not accept that the Iranian authorities would be aware of the applicant’s minimal involvement with [Association 1], nor that he has been involved or taken any active role in discussions or activities or events that would lead to them being concerned even if they did become aware, nor do I accept that he would engage in any political activities or wish to but be fearful of harm on return to Iran. Taking into account all of the evidence before me in relation to his activities, and following my findings above, I do not accept that there is more than a remote chance the applicant will be harmed for reasons of his activities with [Association 1] in Australia. Nor do I accept that the applicant would continue to express any views in favour of a separate Kurdish state were he to return to Iran, given my credibility findings.
I have given considerable thought to [the second applicant’s] claims that she does not wish to wear the hijab and wishes to have freedom to express herself in how she dresses, her education and choices about her life, which would be denied her in Iran. I have considerable sympathy for her views. Numerous observers agree that Iran is a country with a State-promoted institutional structure based on gender-biased interpretations of Islamic jurisprudence. According to NGOs and international government-sponsored programs, many laws discriminate against women.[18][19][20] In 2013 the U.S. State Department listed among ongoing human rights problems in Iran “legal and societal discrimination and violence against women”. Provisions in the Islamic civil and penal codes, particularly sections dealing with family and property law, discriminated against women. Discrimination restricted women’s economic, social, political, academic and cultural rights.[21] Although more women than men were studying at Iran’s universities, the report observed that women comprised just 16% of the workforce.[22]
[18] 2006, UN High Commissioner for Human Rights, ‘Integration of the Human Rights of Women and a Gender Perspective: Violence Against Women’, United Nations Economic and Social Council, E/CN.4/2006/61/Add.3, 27 January
[21] 2013 U.S. Department of State, 2012 Country Reports on Human Rights Practices – Iran
[22] UN Secretary General’s February 2015 Report on the Situation of Human Rights in the Islamic Republic of Iran, Iran Human Rights Documentation Center, 20 February
The applicant is educated to a high school standard and married. She has not been charged with criminal offences and does not claim to be a victim of domestic violence. She was not denied the right to subsist because she was a woman and there is no reason why she would be in the reasonably foreseeable future. Looking at the reasonably foreseeable future the Tribunal is not satisfied that there is a reasonable possibility that she would be subjected to conduct of sufficient severity to amount to persecution and denied protection.
I must make an assessment of the applicant’s particular circumstances: she is a married woman who has completed high school. I accept that the applicant had to adhere to a dress code in Iran and dress conservatively. I accept that she has in the past been stopped and targeted outside her university and on the street by Heresat or the Basij and insulted and harassed for offences relating to proper hijab and proper Islamic dress, that she was expelled for this and for refusing to take part in demonstrations and join the University Basij, and that she was sexually harassed and/or assaulted by a security guard associated with the University. I accept that she wishes to be free to wear the clothes she wants to. I accept that she was not able to study what she wished to. However, I do not accept that the requirement to dress modestly in Iran is a breach of the applicant's fundamental human rights or amounts to an intolerable situation because I find that, although discriminatory, the requirement to dress modestly does not amount to serious harm or significant harm as defined in the Act. I do not accept that the requirement and expectation that she dress conservatively, for the applicant, constitutes physical or emotional harm so severe as to be considered serious or significant harm. I do not accept, as a married woman who is no longer attending University, that there is any chance she will face sexual harassment or assault form the Security guard associated with the University. I do not accept that there is more than a remote chance that, as a married woman living in Ilam, she will face sexual harassment or assault. I do not accept that being expelled from University, and not being able to study what she wants to constitutes serious or significant harm – she has not been denied education having completed high school. I do not accept that these things, cumulatively, lead to serious or significant harm.
The Tribunal finds that there is no reasonable possibility that the applicant would experience serious harm amounting to persecution in the reasonably foreseeable future for the reason that she is a woman. The Tribunal finds that her fear on this basis is not well-founded. The Tribunal finds that the applicant does not have a well-founded fear of persecution for reasons of her membership of the particular social groups of women in Iran or young women in Iran or young women who breach Islamic dress codes/morality codes.
On the basis of the above findings, I find that there is no real chance that [the applicant] will be subjected to persecution amounting to serious harm for reasons of his ethnicity as a Faili Kurd who has Iranian citizenship, for reasons of his political opinion (either that he claims to have expressed in Iran which I have rejected, or his limited involvement with [Association 1] in Australia), for reasons of his imputed political opinion as a member of his father’s family, for reasons of his membership of a particular social group, being his membership of his family, his status as a failed asylum seeker or returnee, his remaining in Australia, a Western country or for any other Convention reason. I have considered his claims individually and cumulatively and I find that his fears of harm are not well founded.
On the basis of the above findings, I find that there is no real chance that [the second applicant’s] will be subjected to persecution amounting to serious harm for reasons of her ethnicity as a Faili Kurd who has Iranian citizenship, for reasons of her actual or imputed political opinion (either as a member of [the applicant’s] family or for any other reason), for reasons of her membership of a particular social group, being women in Iran, her family, her status as a failed asylum seeker or returnee, her remaining in Australia, a Western country or for any other Convention reason. I have considered her claims individually and cumulatively and I find that her fears of harm are not well founded.
Complementary protection
I have considered whether there are substantial grounds for believing that the applicants will face a real risk of significant harm on being returned to their receiving country, Iran. I have found above that there is no real chance that they will be seriously harmed on return in the reasonably foreseeable future for any of the reasons claimed or any other reason apparent.
At hearing I asked the applicants if they feared harm for any other reason and they did not indicate any other basis to fear harm. I have considered the claims of harm, individually and cumulatively, of the applicants, and the Tribunal’s assessment of the situation for the applicants if they return to their home area of Ilam in Iran.
I find, for the reasons above, that the applicants do not face a real risk of significant harm in Iran from the authorities or anyone else for any of the reasons identified above.
I accept that the applicants would find it distressing and difficult to return to Iran. However, as above I have found that [the applicant] would face reasonable prosects of being employed, as he was before. I find that [the applicant’s] maternal uncle would be able to assist them financially to some degree, as he has in the past. I accept that [the second applicant] as a woman will face discrimination on return to Iran in relation to the requirement to dress modestly, and to restrictions on her ability to find employment, but I do not accept that this leads to a risk of significant harm as defined. I accept that the applicants may face considerable difficulties in returning, but I do not accept, at their highest, on the information before me, that they constitute significant harm to either of the applicants.
Therefore, having regard to these findings and the findings above, both individually and cumulatively, I find that there are not substantial grounds for believing that there is a real risk that either applicant will suffer significant harm upon being removed from Australia to Iran.
Conclusions
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants Protection visas.
Sean Baker
MemberATTACHMENT A - RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Credibility
As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’. However this should not lead to ‘an uncritical acceptance of any and all allegations made by suppliants’. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):
‘Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another’ (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282)
As the Full Court noted in that case, this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:
‘in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.’
If, however, the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.
[19] Mansharof, Y. 2006, ‘Human Rights in Iran: Women’s Struggle Against Discrimination by the Regime’, Middle East Media Research Institute website, 29 September
[20] Landinfo 2009, Honour killings in Iran, 22 May, UNHCR Refworld, pp.9-10
Key Legal Topics
Areas of Law
Immigration
Administrative Law
Statutory Interpretation
Legal Concepts
Judicial Review
Natural Justice
Procedural Fairness
Statutory Construction
Jurisdiction
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