1603224 (Refugee)

[2018] AATA 4588

1603224 (Refugee) [2018] AATA 4588 (2 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1603224

COUNTRY OF REFERENCE:                  Iran

MEMBER:Nora Lamont

DATE:2 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 02 October 2018 at 9:01am

CATCHWORDS

REFUGEE – protection visa – Iran – ethnicity – Lor – religion – Shiite Muslim – Christian convert – particular social group – married without consent – hairdresser who provides western haircuts – victim of assault – attempted honour killing – fear of applicant’s wife’s family – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 45AA, 65, 91R, 91S, 499

Migration Regulations 1994 (Cth), r 2.08F, Schedule 2

CASES

Appellant S395/2002 v MIMA (2003) 216 CLR 473

Pei Lan He v Minister for Immigration and Multicultural Affairs [2001] FCA 446

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of Iran applied for the visas on 18 June 2013 and the delegate refused to grant the visas on 25 February 2016.

3. The applicants applied for Protection (Class XA) visas. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the applications are taken to be, and to have always been, valid applications for Temporary Protection (Class XD) visas and are taken not to be, and never to have been, valid applications for Protection (Class XA) visas.

4. The applicants appeared before the Tribunal on 10 July 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

5. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

   RELEVANT LAW

6. 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.

   Refugee criterion

7. 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).

8. 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.

9. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

10. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

11. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

12. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

13. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

14. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

15. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

16. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

17. 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’).

18. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

19. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

20. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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.

    Member of the same family unit

21. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The applicants arrived in Australia without valid passports and stated they were nationals of Iran. Applicant one presented copies of his Iranian driver’s licence, his military card and a copy of his Iranian National Identification card. Applicant two presented a copy of her National Identification card and a University document with photo ID. The delegate had no issues with the applicant’s identity. Therefore, the Tribunal has assessed the applicant’s claims against Iran as their country of nationality and the receiving country for Complementary Protection purposes.

23. The applicants have added one of their children to the application. The dependent applicant is a member of the family unit but not making specific claims.

24. The applicants presented their claims in their protection visa application on 18 June 2013 and attended an interview with the Department on 17 July 2014. The applicant’s claims as summarised accurately by the Department are as follows:

    Applicant One

    ·He is a Shiite Muslim and Lor by ethnicity

    ·He left Iran illegally in 2013 to seek protection in Australia due to a series of incidents that put his and his wife’s life in danger

    ·He and his wife knew about the sensitivity associated with their relationship and were cautious not to be seen together in [City 1]

    ·His wife knew that her family would not approve of their marriage but he still went to her house to initiate a marriage proposal, which was rejected

    ·His wife’s eldest brother is a member of the Revolutionary Guard and the second eldest brother is [a member] of the Basij.

    ·Despite the hopeless conditions, he continued his relationship with his then fiancé

    ·[In] January 2013, his wife’s cousin observed him and his wife and reported them to his brother [Mr A]

    ·His wife went home and [Mr A] came home shortly after and tried to stab her with a knife but was stopped by her sisters and mother

    ·His wife came to his shop and they fled to his Uncle’s house and then to his sister’s house in Tehran.

    ·His shop was vandalised the following day

    ·He had organised a passport for his wife in March 2012 because he knew they would have to escape at some point

    ·He has no doubt that he and his wife will be killed by his wife’s family

25. New claims were made on Sunday 8 July 2018  prior to the Tribunal hearing on 10 July 2018 and can be summarised as follows:

    ·After the first interview here in Australia I experienced two heart attacks. I became depressed I felt useless and weak

    ·One of my friends saw how down I was and told me that I could find the answers to my life in church

    ·I went to [a] Church where they have an Iranian service

    ·I found Church to be a spiritually peaceful place and I feel safe and calm there

    ·None of my Muslim friends ever visited me or offered help. Only the Christian people visited and helped me and [my wife] get through this terrible time

    ·I saw the actions from Christians and I was amazed at the depth of their kindness and compassion and the peace that they had. It was that they were using Jesus as a model for kindness

    ·I do believe that Jesus saved me when I had my two heart attacks

    ·I also converted to Christianity I offer service to the church

    ·I have to be baptised though and I hope this occurs in a couple of months

    Applicant Two

    ·She is Lor by ethnicity. Lors have strict tribal rules which strongly prohibit any form of association with the opposite sex outside of marriage.

    ·She and her husband knew about the sensitivity associated with their relationship and were cautious not to be seen together in [City 1]

    ·Her eldest brother is a member of the Revolutionary Guard and her second eldest brother is [a member] of the Basij

    ·[In] January 2013, her cousin observed her and her husband and reported them to her brother [Mr A]

    ·She returned home and shortly after [Mr A] came home and tried to kill her

    ·She was able to escape and fled to her husband’s shop and then to his Uncle’s house and then to Tehran to stay with her husband’s sister

    ·She has been assaulted by her brother in the past after refusing to marry people imposed on her

26. As above, there is a dependent applicant as a member of the family unit but not making specific claims.

27. Having given regard to the evidence presented to the Department, at the Tribunal hearing and in pre-hearing submissions, including statutory declarations, and arguments made orally by the Representative at the Tribunal hearing, for the following reasons the Tribunal has concluded that the decision under review should be affirmed.

    Applicant One

28. Applicant one claims to have been born and raised in [City 1] and claimed to be a Shiite Muslim (see below on Christianity claims) but does not come from a conservative Muslim family. The applicant stated he did not attend the Mosque and did not fast during Ramadan. The applicant went to school and trained to become a hairdresser and opened a barber shop in [City 1].

29. The applicant claims he met (his now) wife outside his barber shop and they started a relationship sometime in 2008. The applicant claims that they would spend time together in [Town 1] a town nearby and would meet each other regularly. The rest of the time they spoke on the phone. The applicant claims that he fell in love and asked her parents to marry her. This marriage proposal was rejected by his wife’s family but the applicant’s continued their relationship despite the marriage proposal rejection by her family. The applicant’s even got engaged and exchanged rings.

30. The applicant stated that [in] January 2013 he and his wife were coming back from [Town 1] from a rendezvous together when they were spotted by the applicant’s wife’s cousin as they were driving back into [City 1]. The cousin telephoned the applicant’s wife’s brother [Mr A] to tell him they were spotted together. The applicant’s wife went home and an altercation occurred. Her brother [Mr A] took a knife and attempted to stab her. However, the applicant’s wife’s mother and sisters were able to stop the attempted stabbing.

31. The applicant’s wife managed to get away from her brother and went to the applicant’s home. From there the couple went to the applicant’s Uncles house and he arranged bus tickets for them and drove them to the bus stop. From there they took the bus to Tehran where the applicant’s sister lived. The applicant claims he organised his wife’s passport in 2012 as he knew one day they would have to escape.

32. The next day [in] January 2013 the applicant’s barber shop was vandalised and shut down by the authorities. The couple remained in Tehran for 41 days before making an escape and eventually arriving in Australia by boat.

    Assessment of claims

33. The Tribunal has considered whether the applicant faces a real chance of serious harm or a real risk of significant harm arising out of the relationship with his now wife and her conservative family. On the basis of the documentary evidence before it and the oral evidence of the applicant, the Tribunal accepts that the applicant started a relationship with his now wife sometime in 2008.

34. The Tribunal does not however, accept that the applicant and wife managed to conceal their relationship for over five years or that they were subjected to threatening behaviour or an attempted honour killing when that relationship was discovered [in] January 2013. Nor does the Tribunal accept that the applicants would have continued a relationship after a failed marriage proposal and at the risk of the wrath of the applicant’s wife’s conservative family.

35. The Tribunal accepts that the applicant claimed to be a Shiite Muslim but that he did not practice his faith and did not adhere to fasting during Ramadan. Based on the applicant’s written and oral testimony and evidence the Tribunal accepts that the applicant’s family is not conservative nor do they strictly adhere to the Muslim faith.

36. The Tribunal does not accept that the applicant arranged a passport for his now wife because he knew they would need to escape one day, rather the Tribunal considers that the applicant and his no wife pre planned leaving Iran and this is why they had previously arranged their passports.

37. In considering whether the applicant has a real chance of serious harm or a real risk of significant harm from his wife’s family, the Tribunal has taken into account the facts as accepted above. The Tribunal does not accept that the applicant’s family or anyone associated with them had or has any intention of harming the applicant.

38. Looking to the future, the Tribunal considers the chance the applicant faces a reprisal from his wife’s family on return to Iran is remote. The Tribunal does not accept that the applicant has a real chance or a real risk of harm to Iran on this basis.

    Western Haircuts and destruction of his shop

39. During the hearing the applicant said that he may be charged for giving people Western haircuts and this is why his shop was vandalised and shut after her left. The applicant stated in his written claims to the Department that the day after the incident the authorities shut down his shop and put up a banner that said the business was closed for non-compliance with Islamic codes and cutting Western designs. Country information shows that Iran has long been intolerant of western style barbers and hairdressers and they have been shutting down western style barbers for many years. [1] Most of the country information the Tribunal found was from 2007 with updates in 2015 about the Islamic approved haircuts, so the applicant would have been well aware that he was no allowed to provide western style haircuts within his business before his shop was shut down by the Islamic authorities.

    [1] type="1">

40. The Tribunal finds that the applicant’s shop was shut down due to the fact that he was providing a service of western hairstyles when the Islamic code and enforcement of that code did not allow it. The applicant’s own written claims are that the sign posted on the shop clearly indicated that the shop was closed for providing western style haircuts. Therefore it stands to reason that the Tribunal does not accept that the shop was closed due to the applicant’s relationship with his wife.

41. Having found that the applicant’s hairdressing salon was closed due to providing western style haircuts the Tribunal finds that the applicant is a member of a particular social group namely ‘hairdresser who provides western haircuts’.  Therefore the Tribunal turns its mind to whether there is a real chance that the applicant will be harmed due to his membership of this particular social group namely “hairdresser who gives western haircuts” including the applicant’s future risk profile.

42. Having regard to country information the last published article the Tribunal could find on western style haircuts was dated 2010. [2] The penalty for a hairdresser giving western haircuts is having their shop closed down. There is no country information that indicates a harsher penalty imposed. As such, the Tribunal finds that the chance of the applicant facing serious or significant harm as a result of giving western haircuts upon return to Iran is remote. 

    Religious Conversion

    [2] >

    The issue of religious conversion was not considered by the delegate when the primary decision was made. This is because the applicant had yet to start attending church services. The Tribunal considers this to be a new claim.

43. The Friday prior to the Monday Tribunal hearing the Tribunal received an unsigned statutory declaration from the applicant. (A signed declaration was provided to the Tribunal on the Monday at the hearing). In the declaration was a new claim of conversion to Christianity. The applicant said that he had experienced two heart attacks and had two stents put in his heart. He felt depressed and weak. One of his friends saw how down he was and told him he could find the answers at Church. The applicant then went to [a] Church where they held Iranian services.

44. The applicant said he found church to be a spiritually peaceful place. He felt calm and safe there. The applicant said he never clicked with Islam and as an adult he never went to the Mosque or fasted at Ramadan. The church people comforted him and provided emotional and spiritual help. The applicant claims none of his Muslim friends ever visited him or offered him help. Only the Christians helped him through this terrible time. The applicant was amazed at the depth of their kindness and compassion.

45. The applicant said he has converted to Christianity. He also offers service to the church. However, he is yet to be baptised as he needs to wait but he is hopeful this will be in a few months. The applicant provided a letter to the Tribunal from the Rev [Iranian pastor] indicating that the applicant has been attending the church since November of 2017. The Rev also said that the applicant helped with AV equipment and participates in small group prayer at the end of the worship service.

46. The practice of Christianity has a strong social element in Australia and could be motivation for involvement, for new arrivals to the country. The Tribunal does however accept that the applicant does attend the church on a regular basis and has done so since November of 2017. The Tribunal hearing was held in July 2018 and therefore the applicant had only been attending the church for six months and has yet to fully commit to the church by being baptised. The applicant provided the Tribunal with a letter dated [in] June 2018 from the Rev [of] the [Church] which stated that the applicant had been attending church services since November of 2017.[3]

    [3] Folio page 52

47. The applicant also wrote in his declaration that ‘they may say I am “mortad” in Iran because of my change in religion. I will not deny that I am a Christian because I believe that Jesus saved me twice before with my heart attacks. I trust whatever Jesus has for me in life’. However, the Tribunal notes that the applicant told the Tribunal he had his two heart attacks in 2015 yet he did not begin to attend church until 2017.

48. According to the World Values Survey nearly a quarter of Iranians never attend religious services and another 23% only attend on holy days.[4] This would suggest that his lack of faith or having rejected Islam as was his oral testimony would not be noticed. As the applicant himself stated he did not attend the Mosque nor did he fast at Ramadan and no harm was experienced whilst living in Iran. As such the Tribunal finds that the chance of the applicant facing serious or significant harm as a result of rejecting Islam upon return to Iran is remote.

    [4] World Values Survey, ‘Iran Wave 2005-2009 Online Data Analysis: V186.- How often do you attend religious services’, available at

49. The Tribunal finds the applicant has a new found commitment to attend church, participate in bible readings, and helping out with the AV equipment. The Tribunal now turns its mind to consider, as per Justice Ryan in Pei Lan He v Minister for Immigration and Multicultural Affairs, ‘how the applicant would be likely to manifest his or her religious beliefs upon return to Iran and the likelihood of that manifestation attracting a persecutory reaction from the authorities.[5] Although the applicant attends church in Australia this is not necessarily an indication of whether he would attend were he to return to Iran as the reasons for his attendance in Australia may be varied including for social engagement, to find comfort, or for spiritual fulfilment. Further, whilst the applicant was a Shiite Muslim he did not practice that faith.

    [5] Pei Lan He v Minister for Immigration and Multicultural Affairs [2001] FCA 446 (23 April 2001) at [31]

50. In considering motivational factors of behaviour the High Court in Appellant S395/2002 v MIMA[6] noted that fear could shape individual’s behaviour in their country of origin and that this behaviour changing fear can in of itself be considered persecution and as such past behaviour should be used judiciously in decision making. But as the applicant converted to Christianity while in Australia there is no baseline showing how he would practice Christianity in Iran, influenced by fear or not. The Tribunal recognises that what motivates the applicant to partake in Christian activities in Australia may differ were he to return to Iran and the Tribunal is then left with identifying and considering the motivation that is shaping how the applicant practices in Australia.

    [6] Appellant S395/2002 v MIMA (2003) 216 CLR 473

51. There is some information available that indicates that Iranians who have converted to Christianity while overseas may be subject to mistreatment following their return to Iran, although this may depend on their activities following their return. According to DFAT Iranians who convert to Christianity outside the country are unlikely to face adverse attention from authorities upon return to Iran, provided they have not previously come to the attention of authorities for political activities conducted in Iran, maintain a low profile and do not engage in proselytization or political activities within the country. [7] The applicant has only been attending Christian church for six months and is yet to be baptised. Whilst the applicant said in his written declaration and at the hearing that he will not deny that he is a Christian there is nothing in his written words or oral testimony to suggest that if he is returned to Iran he will proselytize or attempt to spread Christianity. The applicant himself said he was never interested in Islam and did not attend the Mosque or fast during Ramadan therefore the Tribunal does not believe that upon return to Iran the applicant would adhere to strictly practicing the Christian faith. The applicant has found comfort in Christianity while here in Australia and found this comfort after a period of serious health issues. However, following on from above, the Tribunal finds the applicant’s behaviour as a converted Christian will mirror his past behaviour as a Muslim and that he will not engage with Christianity and follow traditions and customs of the Christian faith upon return to Iran.

    [7] DFAT Country Information Report Iran June 7 2018 page 23

52. According to DFAT Iranian authorities pay little attention to failed asylum seekers on their return to Iran. International observers report that Iranian authorities have little interest in prosecuting failed asylum seek for activities conducted outside of Iran including converting to Christianity. It is only those with a high profile who may face a higher risk of coming back to Iran.[8] However, in this case the applicant does not have a high profile therefore he will not come to the attention of the Iranian authorities.

    [8] DFAT Country Information Report Iran June 7 2018 page 49

53. In considering whether the applicant has a real chance of serious harm or a real risk of significant harm based on his Christianity beliefs, the Tribunal has taken into account the facts as above. The Tribunal does not accept that the applicant will proselytize or attempt to spread Christianity upon return to Iran.

54. Looking to the future, the Tribunal considers the chance that the applicant will face reprisal from the authorities in Iran for his Christian beliefs to be remote. The Tribunal does not accept that the applicant has a real chance or a real risk of harm in Iran on that basis. 

    Imputed political opinion as a Christian convert

55. The Tribunal has considered whether the applicant will face a risk of being harmed for reasons of having a political opinion by converting to Christianity and whether the applicant may face charges related to national security. The Tribunal has regard for DFAT country information that those accused of religiously-based charges are likely to face charges related to national security.[9]

    [9] DFAT Country Information Report Iran June 7 2018 page 25

56. As discussed above, the Tribunal finds that the applicant will not proselytize upon return to Iran or draw attention from Iranian authorities upon return. Therefore the Tribunal does not accept that the applicant faces a real chance or a real risk on the basis of an imputed political opinion.

    Applicant Two

57. Applicant two claims to be a Lor by ethnicity and from a conservative tribal family. She claims to be a Shiite Muslim from [City 1] Iran who grew up in an extremely strict, fundamentalist Muslim household. The applicant claims that her brother [Mr A] is a Basij [member] and her other brother [is] part of Sepah. On several occasions her brother [Mr A] tried to arrange a husband for her and when she refused he beat her. This happened when she was [age], [age], and [age]. Every time she refused she was beaten.

58. The applicant claims she met her now husband out the front of his shop and they became friends then fell in love. He was not from a conservative family and he did not practice Islam. Despite this his family approached hers and made a traditional marriage proposal. It was rejected but despite this they kept their relationship going.

59. The applicants continued to see each other and frequently went to [Town 1]. The couple bought engagement rings for each other and planned to leave the country. Around the end of 2011 or the beginning of 2012 her fiancé arranged to get her a passport. In her statutory declaration the applicant states that usually a woman can only get a passport if her father or husband gives consent so her boyfriend paid someone to get her a passport. She lied to her father and said she needed his national ID and birth certificate for university enrolment. The applicant said that her brothers never discovered her passport.

60. The applicant told the same story of having been in [Town 1] and returning when they were spotted by her cousin and reported to her brother. This was [in January] 2013. Upon her return home her brother [Mr A] immediately started assaulting her. He said she was a slut and brought shame to the family. He then went and got a knife and her mother and sisters blocked his way and she was able to run out of the house. The applicant then went to her boyfriend’s house and they went to his Uncles and he sent them to Tehran.

    Attempted honour killing

61. The applicant stated in her statutory declaration that after her cousin spotted her and her fiancé in the car he called [Mr A] her brother who then immediately returned to the home. He began to assault her and got a knife. [Mr A] was going to kill her but he was stopped by her mother and sisters. The Tribunal finds that if the family was really that strict and the applicant’s brother was the ultimate authority the mother and sisters would not likely interfere and allow the applicant to leave the house. If this was an attempted honour killing the family would not interfere as the brother is the ultimate authority in the house. This issue concerns the Tribunal and its overall findings.

62. The applicant then said she managed to get out of the house and fled to her husband’s house. When questioned at the Tribunal hearing as to how she got to her husband’s house she said she was able to get a taxi. The Tribunal finds it farfetched that the applicant was immediately able to escape and get a taxi thus thwarting her brother’s plans to kill her. In a panic to leave and get away from her brother the applicant claimed she was able to run out of the house and into a taxi. This suggests that there just happened to be a taxi on the street she could immediately get into and get away. The Tribunal does not find this account to be credible as the applicant claims she was not only able to get away from her brother who wanted to kill her but she was also able to run outside and into a taxi. No explanation was provided to the Tribunal as to how there came to be a taxi outside the house or whether her brother chased her out the door onto the street.

63. Country information on Lor’s is difficult to find and apart from the oral and written testimony of the applicant’s they did not provide any country information on Lor’s and the social structures and norms in that community.  However, the Tribunal did find that Lor’s are somewhat less conservative when it comes to the women in their society. The authority of tribal elders remains strong among the nomadic Lor population but it is not dominant among the settled urban population. Lor women have much greater freedom than women in other groups within the Lor regions of Iran. The women have much greater freedom to participate in different social activities, to wear female diverse clothing and to sing and dance in different ceremonies. [10]

    [10] >

    The applicant was living with her parents and attending University. The applicant was able to go out unsupervised and was able to continue a relationship for five years without detection. This included by the applicant’s own testimony, secret meetings, and telephone conversations. According to relevant country information while honour killings can take place in all kinds of families from different social classes and educational backgrounds, the likelihood of honour killings is likely to decrease with education, urbanisation, and access to social services. [11]

    [11] DFAT Country Information Report Iran 7 June 2018 page 34

64. Further country information from the UK Home Office states that honour killings are most common among nomads and uneducated people. The applicant was neither from a family that was nomadic nor uneducated. She herself was attending University. [12] The applicant also stated in her statutory declaration dated [in] July 2018 that her brother tried to arrange marriages for her at [age], [age] and [age]. But she refused and when she refused he beat her. However, despite these attempts to arrange a marriage she was allowed to refuse three different times, and whilst she says she was beaten her brother did not in fact force her to marry anyone of these men. The Tribunal is of the view that had the brother been that controlling he would have forced her to marry and not simply allowed it to go on three separate occasions. The applicant was [age] years old when she left Iran to come to Australia and the last time she claims there was an attempted forced marriage by her brother was over 10 years prior. Therefore, the Tribunal does not accept that the applicant’s brother or anyone in her family attempted to force her to marry on three separate occasions.

    [12] Country Policy and Information Note Iran: Honour crimes against women October 2017 page 8

65. The applicants claim to have been living at the applicant’s sister’s house in Tehran for 41 days. During that time they did not hear from or have any encounters with their relatives who would be looking for them. The applicant’s claim that should they be returned to Iran they will be able to be traced by their ID Cards. However, immediately after this incident there were no signs of anyone looking for them nor did the applicants have any trouble whilst in Tehran as they arranged their travel to Australia. When asked at the Tribunal hearing what they did for 41 days the applicant said they mostly hid inside. However, the Tribunal finds that during this time they would have had to arrange their transportation to Australia and find people smugglers and pay them. The applicants also both flew out of Iran on valid Iranian passports as they claimed and they were not stopped at the border.

66. As discussed with the applicant at the hearing country information on the Revolutionary Guard shows that the top leadership comprises conservatives and hard-line ‘principlists’ deeply opposed to political reform. However the rank and file of the organisation reflects Iranian society and politics at large and includes many reformists. Further DFAT reports that the Basij’s membership includes both sexes and a wide range of ages and membership provides access to privileges such as university places, access to government jobs and other preferential treatment.[13]

    Applicant two’s passport

    [13] DFAT Country Information Report Iran 7 June 2018 page 44

67. The delegate addressed the issue of how applicant two obtained her passport. Applicant two stated that she gave her documents to Applicant one and he got the passport for her in 2012. As of 2013 when the applicants arrived in Australia the law in Iran did not require that single females needed permission from their father or a male guardian. Married women in Iran do need permission but anyone over the age of 18 who is single can obtain a passport.[14]

    [14] >

    In her written declaration Applicant two states that ‘Usually, a woman can only get a passport if her father or husband gives consent, either in person or in writing. Around the end of 2011 or the beginning of 2012, [(applicant one)] paid someone to organise a passport for me. I needed my father’s national ID card and his birth certificate, so I lied to my father and told him I needed his national ID card and his birth certificate because of an issue with my university enrolment. I gave them to [(Applicant one)] to give it to someone to get my passport. According to Immigration and Refugee Board Canada in order to obtain a passport the applicant must apply for and pick up their passport in person.[15] Further, the Tribunal could not find any documentation or evidence that requires a single woman and in this case in 2012 Applicant two was [age] years old and well over the age of 18 to have her father’s permission to get a passport or that she needed his National ID or birth certificate in order to get a passport.

    [15] type="1">

68. Based on the above, the Tribunal does not accept that applicant two obtained her passport from her (now) husband as claimed.

    Facebook posts

69. After the Departmental hearing the delegate contacted both applicants about their Facebook posts and their contacts back in Iran. The delegate found that both applicants were on social media, and engaging with people who have the same names as applicant two’s brothers that being [Person A] and [Person B]. The applicants responded to the Department in a letter from their Representative dated [in] December 2014 that the [Person A] and [Person B] they were friends with on Facebook was not applicant two’s brothers but was in fact her cousins. Further they claim that the cousins would not and do not speak with her brothers therefore no one in applicant two’s immediate family would know what they were doing in Australia.[16]

    [16] Folio Page 108

70. In his statutory declaration given to the Tribunal Applicant one stated that [the Person A surname] is a common family name coming from tribal connections. Applicant one claims that he opened his account in 2012 and he had two friends on the account named [Person C] and [Person D]. His wife did not know these men. He then says that after he got to Australia a different [person with the same name as Person C, called Person B,] and a different [person with the same name as Person D, called Person A,] connected with him on Facebook and these are his wife’s cousins. He claims his wife does not know [Person C] and is not friends on Facebook with him. He also claims he came to his barber shop for haircuts as he groomed and cut hair in a western way. He also said that when his wife’s first cousin [Person A] sent a Facebook request his wife said it was fine as he was not like her brothers.

71. Applicant two stated in her statutory declaration that she opened her Facebook account when she arrived in Australia. She felt safe in Australia and states that her brothers and father would not have a Facebook as they believed it was an evil Western creation. She further stated that some of her cousins are trustworthy and they would not say anything about her and her husband to her immediate family.

72. Given that the applicants both have fairly open Facebook pages and given that they claim to have fled Iran and given their visa status the Tribunal finds it highly unusual that the applicant’s would want to post pictures and details of their lives for anyone to see. Further, the explanation that there are multiple people including cousins with the exact same name is not plausible. The Tribunal noted at the hearing that several of the posts that the delegate had sought comment on were now taken down from the Facebook page. The applicant said he did not know which ones the Tribunal was talking about.

73. It follows from above that the Tribunal does not accept the claims of having fled due to a potential honour killing and trouble with the conservative family, that the Tribunal does not accept that the applicant’s Facebook friends are the applicant’s wife’s cousins or clients of the applicant from his former hair salon. While the Tribunal accepts that one of the applicant’s brothers is in the Basij and the other brother is part of Sepah the Tribunal does not accept that one brother tried to kill the applicant or that he or the family objected to the relationship of the applicants to the point of attempting to murder the applicant.

    Representative

74. At the end of the hearing the Tribunal asked the Representative if she would like to make an oral submission to the Tribunal. The Representative stated that firstly there were a lot of assumptions being made by the Tribunal that are really concerning about Iran and comparisons to Western culture. The Representative said that Western culture is actually in the minority as far as how things are done. The Tribunal responded that the job of the Tribunal was to ask the questions and make a fresh decision, which is what the Tribunal did and the Tribunal did not presume or make assumptions about the arguments or evidence given by the applicants during the hearing rather the Tribunal was fact finding.

75. The Representative put to the Tribunal that even though people may be religious fundamentalists they may allow their daughters to have mobile phones. She said that they are not all like Osama Bin Laden living in caves. Further, she said that education of females in Iran is highly prized and even Saudi Princesses are restricted but they are educated at Oxford.  The Representative also stated that [Mr A’s] wife is educated and has a high job within the police force. The Tribunal agrees that women in Iran are allowed an education and more women than men are enrolled at Universities. However, the applicant is claiming she comes from an extremely religious family who adhere to strict religious and cultural norms yet she is allowed to travel freely to and from school, has unsupervised time where she can sneak off with her boyfriend over long periods of time and her father gives her an allowance to have a mobile phone which she uses to call her boyfriend who was rejected by the family.

76. The Representative submitted to the Tribunal that marriage is arranged in other cultures unlike in the west, therefore it makes sense that the applicant would have her husband chosen by her family and her true love rejected. The Tribunal is fully aware of arranged marriages in other cultures; however, as stated above the Tribunal finds it odd that the applicant was allowed to continually refuse these arranged marriages and whilst the applicant claimed her brother beat her when she refused she was not forced into a marriage over a lengthy period of time.  During the time of the alleged forced marriages, [age], [age] and [age] the applicant continued to live at home and attend the University and was able to continue to see her fiancé and it wasn’t until this final incident that she claims her brother then tried to kill her.

77. The Representative said that the applicants will be able to be traced by their national ID card by one of the brothers in the Revolutionary Guard or the Basij and Sepah.  The Tribunal has covered this claim above.

78. The Representative said if the authorities’ suspect someone has converted they prosecute them on other grounds. The Tribunal does note that DFAT asses that those accused of religiously based charges are also likely to face charges related to national security. [17] However, as stated above whilst the applicant said in his written declaration and at the hearing that he will not deny that he is a Christian there is nothing in his written words or oral testimony to suggest that if he is returned to Iran he will proselytize or attempt to spread Christianity. The applicant himself said he was never interested in Islam and did not attend the Mosque nor fast during Ramadan the Tribunal does not believe that upon return to Iran the applicant would adhere to practicing the Christian faith. Therefore the Tribunal does not find that the applicant will be suspected of converting to Christianity. The applicant has found comfort in Christianity while here in Australia and after a period of serious health issues. However, following on from above, the Tribunal finds the applicant’s behaviour as a converted Christian will mirror his past behaviour as a Muslim and that he will not engage with Christianity and follow traditions and customs of the Christian faith.

    [17] DFAT Country Information Report Iran 7 June 2018 page 25

79. The Representative requested three weeks in which to make further submissions to the Tribunal. She said that she had a lot of country information that could be presented to the Tribunal. The Tribunal told the Representative that they had two weeks in which to get the submissions into the Tribunal however, no submission was ever received from the Representative or the applicants as of the date of this decision.

80. Considering both applicant’s individual circumstances and the country information before it, the Tribunal does not accept that there are grounds for believing that as a necessary an foreseeable consequence of being returned to Iran, there is a real risk that the applicants will suffer significant harm from applicant two’s family including her brothers, the authorities for a Christian conversion, or anyone else. The Tribunal finds neither applicant faces a real risk of significant harm on return to Iran.

81. The Tribunal has considered the applicant’s claims singularly and cumulatively. On the evidence before the Tribunal and having regard to the Tribunal’s findings of fact above, the Tribunal does not believe that as a necessary and foreseeable consequence of the applicants being removed from Australia to Iran, there is a real risk that they will be arbitrarily deprived of their lives, that the death penalty will be carried out or they would be subjected to degrading treatment or punishment as defined. Accordingly, the Tribunal does not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s being removed from Australia to Iran, there is a real risk that they will suffer significant harm for the purpose of s.36(2)(aa). 

82. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant’s do not satisfy the criterion set out in s.36 (2)(a).

83. 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

84. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Nora Lamont
    Member