1604816 (Refugee)

[2019] AATA 2351

1604816 (Refugee) [2019] AATA 2351 (29 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1604816

COUNTRY OF REFERENCE:                  Iran

MEMBER:Rodger Shanahan

DATE:29 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 29 April 2019 at 4:01pm

CATCHWORDS
REFUGEE – protection visa – Iran – religion – agnosticism – interest in Baha’i faith – claimed Christian conversion – imputed political opinion – attendance at political rallies in Australia – credibility issues – sole purpose of strengthening refugee claim – particular social group – failed asylum seekers from the West – discrimination against women in general – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 45AA
Migration Regulations 1994 (Cth), r 2.08F; Schedule 2

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 29 July 2013 and the delegate refused to grant the visas on 7 March 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 27 February 2019 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.

   CLAIMS AND EVIDENCE

   Protection Visa Application ([the first named applicant])

6. The applicant claimed to have been born into a conservative Muslim family. He began to question Islam and the way it was used by the regime.  He was running his own [stall] in 2000 and had Baha’I friends.  He knew little about their faith other than the regime was restricting people’s knowledge of it. he began to learn more about it through his friend [Mr A].  He was invited to a Baha’i ceremony one day in a member’s garden.  Part way through the ceremony it was raided by the Basij, but he managed to escape, and he had never seen [Mr A] since.  This increased his disillusionment with Islam.

7. After this raid the Basij visited his shop and forced him to close it down, and accused him of using it to spread information about the Baha’i faith.  He denied this but they shut his stall.  In early 2008 he met [the second named applicant] at a doctor’s clinic and they instantly connected.  She had also been born into a conservative family but she was liberal herself and they connected.

8. By mid-2008 they had decided that they wanted to marry and, although [the second named applicant] had been married before she was still a virgin and his parents gave them permission to marry.  They married in September 2008.  Mid-2009 they moved in together and [the second named applicant] began to assert her freedom by not wearing the chador and wearing makeup – she would occasionally be harassed by the Basij for this.

9. One evening in late 2009 they were eating dinner in a restaurant when they were approached by the Basij.  They were questioned about their relationship and asked to see their marriage certificate.  He argued and pushed one of them and was arrested. When they took him back to their office they told him they recognised him from the [stall] and had attended a Baha’i ceremony.  He was released after 24 hours.

10. Then in 2011 he was pulled over by a mobile Basij patrol and accused of playing his music too loudly in the vehicle. He was detained for a few hours and released.  Over time they became averse to the requirement to follow Islamic laws and that their families would report them if they believed the two of them had abandoned their religious faith.  They made plans to flee because of the pressure.

    Protection Visa Application ([the second named applicant])

11. The applicant claimed she had been forced to wear the hijab when growing up and beaten by her father when she disobeyed.  She continued to follow these practices to please her parents even though she was against them.  At 16 her parents began to arrange for her marriage to a man six years older than her who was a religious scholar.  She objected but was told that if she refused she would bring great shame on the family.

12. She was withdrawn from school and forced to marry him although they didn’t co-habit until the marriage was officially celebrated.  She attempted to commit suicide by taking an overdose , and her parents eventually agreed that she could divorce the scholar.

13. From this point on her claims mirror those of her husband (the first-named applicant)

    AAT hearing

14. It was explained to the applicants that they had some common and individual elements to their claims, some new ones appear to have been added and claims originally made appear not to have been continued.  They were asked to outline their individual and then common claims.

15. The first-named applicant stated that they feared physical and mental harm (up to execution) from the authorities because they had converted to Christianity.  This had followed a discussion about the need for the applicants to be specific as to their fears, given they were initially very vague.  They had no other joint claims.

16. It was put to them that they had claimed to fear being harmed as failed asylum seekers from the West and were asked if this was still a claim.  They replied in the affirmative and the second-named applicant said that all ordinary people were considered as enemies of the state unless they proved otherwise.  By claiming asylum they showed they were enemies of the state.  Asked what serious harm they feared she claimed they could be accused of being a spy for instance.  She agreed that they could be prosecuted.  They had no other joint claims.

17. They were advised that the member would do a joint hearing after dealing with the individual claims.  During the individual claims the other applicant would need to wait outside the room.  The second-named applicant was advised that prior to the hearing the Tribunal had asked for a copy of the applicant’s marriage certificate, contract and divorce certificate but none had been received.  She stated that she had some documents but no divorce certificate.  The adviser said that no request had been received, and the member advised that a request and a follow-up had been sent to the appropriate address when no response was received initially.

18. She claimed that she had no divorce documentation – in her new marriage certificate it was noted about her previous divorce at the end of it.  Divorce was registered at the registry office but no certificate was given.  She was asked if she had requested one or that she could ask the civil registry for one, she claimed she wasn’t sure and would have to ask her lawyer.

19. She claimed she would be subject to serious harm by her family, mainly from her father because she had converted to Christianity.  It was put to her this was a joint claim and she was asked what her individual claim was.  She claimed that because she had converted she would be unable to get a job.  She was again asked to speak of her individual claim separate from her husband’s.

20. She then said that as a woman she was suffering from a lot of harm in Iran.  Asked who would harm her, she claimed that she couldn’t name a specific person but in general women don’t have the right to speak or wear what they want or divorce rights.  She was asked to be specific about what applied to her.  Islamic dress rules for instance applied to all women and not just her, so this would be unlikely to meet the definition of serious harm.

21. She also needed to understand the difference between discrimination and persecution.  Being forced to wear a certain style of dress may be discriminatory, but not persecutory.  She said that she understood.  Asked again who was going to harm her and why, she claimed that the Basij and Ershad created a condition of fear throughout the country and try to scare people.  She would not obey the rules if she returned to Iran and would be in trouble.

22. Asked to be more specific, she claimed that they would control what she would wear, say and every aspect of life such as religion.  They interfered with everything and Islam was the only rule.  Asked what she was forced to wear, she claimed that before she was married her father had a strict rule and determined her dress; the chador.  After she married there was some relaxation but she had to have a hijab and long-sleeved clothes and socks when she left the house.

23. It was put to her that the member had been going to Iran for 20 years and women dressed in a wide range of clothes from very conservative to pushing the boundaries (including tattoos in north Tehran).  It was put to her that women’s dress in Iran existed along a spectrum (admittedly more limited than in the West) and she was asked why she couldn’t be the less conservative dresser. She claimed that she would like to wear what she wanted but the moral guidance patrol have harmed lots of people and take people to police stations and arrange prosecutions, pull women’s hair on the street.

24. Asked what the Basij had done to her, she claimed they hassled her lots of times as she was someone who wanted to be free.  Asked how often the Basij hassled her, she said it was more than twice but wasn’t sure if it was 2, 3 or 4 times.  She recounted that around 10 years ago (after she was married) they were in a park in Karaj with a group of friends and the moral police came and caused problems for women without proper hijabs.  She was wearing pants that were shorter than normal, had dyed her hair and was wearing a scarf. 

25. Another occasion she was with her husband for dinner and the moral police came and picked on her for her dress and makeup.  It was a private and special occasion but they spoke to her harshly.  This was inside a restaurant and it was put to her that it was unusual for the Basij to come inside a restaurant.  She claimed that there were some places that were coffee shop/restaurants that young people go to.  She began crying and promising not to do anything again, as she didn’t want to be taken to their base.  Asked if she had been detained by the Basij, she claimed that she hadn’t.

26. Asked if she had any other claims besides her one regarding her dress, she claimed that her personal matters would be addressed later.  Asked if she had any religious identity when she left Iran, she claimed that she was against Islam and didn’t consider herself to be a Muslim.  She was asked whether she still had a claim to fear her family (father) and she asked what part the Tribunal was referring to.  It was put to her that she had made a claim about her father and if she still had it she could make that claim.  She said that she feared her father if he found out about her conversion.  He was a harsh conservative man.

27. Asked to say what serious harm she feared from him and why, she then said she didn’t know as she hadn’t been back for a number of years but his reaction would be very harsh.  She couldn’t say exactly what harm she would face.  Her parents were separated previously but were living together now.  Asked if they were divorced, she claimed they had been twice officially divorced but had reconciled. 

28. She didn’t have copies of the divorce certificates and was asked to get copies for the Tribunal.  She said she would ask her mother but didn’t know what her reaction would be or if she could even get them.  She was told that this information was quite important and the adviser said that it is often written on birth certificates.  He was advised that the Tribunal would require something that was not hand-written and preferably computer-generated.  He later said he couldn’t find the details but would ask the applicant to provide the necessary documents(s).

29. Asked how her father could do anything to her if she had a supportive husband and didn’t live at home, and country information indicated that most Iranians didn’t go to mosque except for large commemorations.  Being estranged from one’s parents was not unusual anywhere in the world.  She claimed that in Iran it was a bit different and even after you were married the shadow of your parents was constant.  If her father disapproved of how she lived, her father would harm her mother.  It was put to her that her mother was of no interest to the Australian government.

30. She was then asked why she and her husband could not move to a big city in Iran away from the influence of her parents.  She claimed that anywhere she went she would have to live under Islamic rule, and her kids.  It was put to her that this would relieve her of the influence of the father if she wanted to.  She said that this wouldn’t work – if they moved to Shiraz he would find her and look at how she lived and be harsh with her. 

31. It was put to her that there were 85 million people in Iran and 12 million in Tehran so he wouldn’t be able to find them.  She said that she would contact her mother and her father would find where they lived.  It was put to her that she could still contact her mother without revealing where they lived so the Tribunal couldn’t understand how her father could find out where they lived if they moved.  Even if he couldn’t find her the fact that she had to hide meant she was being harmed. 

32. She was asked why her mother didn’t just leave her father given they had been divorced twice already.  The right of divorce was with a man in Iran and he initiated it, but she wanted to return as she needed support and finance.  It was put to her that women can initiate divorce in Iran and she claimed that they can’t, but two sides could come to a mutual agreement.  If a man doesn’t agree then the woman can’t divorce.  It was put to her that country information indicated that men could initiate, it could be mutually agreed or in some circumstances women could initiate divorce.

33. She said that she had a very religious family.  Her father wasn’t a cleric but he was very observant and converses with clerics.  Asked if her brothers were clerics or sent to Qum or anywhere to study religious law and she said they weren’t and hadn’t.  Her maternal grandfather was a well-known [religious leader] and many people knew their family in the area because of this.  It was out to her that it was common for clerical families to have members continue the tradition in Shi’a Islam yet theirs hadn’t.  She claimed that her maternal great uncle was also a cleric but didn’t know much about him.  Her mother goes to Qur’an study. 

34. Asked if there was any evidence she could provide that the [religious leader] was her grandfather, she said that in her mother’s birth certificate her maiden name was mentioned which is how they know they are related.  It was put to her that this was likely based on a common family name and she was asked if she could prove any direct links between her family and the [religious leader].  She said it was two generations ago and perhaps her family had some documents but she didn’t.

35. The first-named applicant was then brought in and asked what, if any personal claims he had separate from those of his wife.  He claimed he had nothing specific of his own.  It was put to him that he had made an individual claim previously and he claimed that perhaps he had claimed to have taken part in political demonstrations.  Asked where this was, he claimed that there was a National Council and on [social media] they put information for people against the Islamic republic to take part in demonstrations.

36. He clarified that he was talking about protests in Australia.  He was again asked about the personal claim he had previously made regarding something in Iran.  Asked what harm he encountered in Iran he claimed that he couldn’t give any specific date but began when he could determine what was god and what was bad and he could disagree with religion.

37. Country information was put to him that Iran was considered to be one of the least personally observant countries in the Muslim world.  This meant the majority of the population had issues with Islam and he was asked what made his issues different to those of others.  He claimed that perhaps his case was exactly this; he didn’t want to cross the red lines in Iran as he would be detained and tortured so he left Iran.  He had never taken part in political protests in Iran.

38. He was asked about an incident he had previously mentioned in his claim regarding an incident involving a Baha’i friend.  It was put to him that he had claimed to have been interested in the Baha’i faith in Iran and learnt more form his friend.  He was then asked if, on arriving in Australia he pursued this interest and went to the Baha’i temple in Sydney for example.  He said that his friend was Baha’i and questions came up in conversation but he wasn’t interested in following the faith.  It was put to him that he went to a Baha’i ceremony and he said that he did as he asked his friend if he could come. 

39. Asked what the ceremony was, he said he didn’t really understand what went on.  It was put to him that his friend surely explained about the ceremony before he went, and he claimed it was a party celebrating something to do with their faith.  It was put to him strange that the Baha’i would hold such a ceremony and then invite a random non-Baha’i to attend.  He said he was allowed and they must know what they were doing.

40. He was asked why the authorities would zero in on him and his store given he allegedly escaped from the ceremony when it was raided by the authorities (and hence his identity was never revealed).  He claimed he doubted it was related to his attendance at the ceremony, more because he didn’t have a licence for the shop.  It was put to him that he had previously claimed the Basij accused him of distributing Baha’i material through the stall.  This was strange if they simply closed him down for being unlicensed, and coincidental for doing so immediately after attending a Baha’i ceremony that was raided.

41. He claimed it was his mistake that he mentioned this during the interview as he thought it may have been linked but it wasn’t.  It was put to him that he did not say this during an interview but he wrote this in a statutory declaration which is a powerful document.  He claimed that the closure was owing to not being properly licenced and he thought it was linked to the Baha’i attendance but it was a mistake – the truth was what he was saying now.

42. He had begun anti-regime protests since he arrived in Sydney. Asked when this was, he claimed that he had demonstrated twice – [in] [2018] [and] [2019]. The protests were with the National Council (NCRI). Asked why he began now, five years after he arrived in Australia, never having protested in Iran. He claimed he wasn’t aware of these organisations and their activities until recently. He found out about them via [social media].

43. He was advised about a section of the Migration Act (s 5J(6)) and it was put to him that he had never been politically active in Iran or Australia until after his protection visa application was rejected and the concern was that he was doing this simply to create a potential refugee profile. He claimed that while it may look like this, the truth is that regardless of what deceision is made he believes it to be his duty not to be silent about the problems being created by the Islamic Republic. He didn’t want to cross the red lines in Iran, but now he was free.

1. Asked if anyone in Iran knew he was doing this, he claimed that there were lots as he was sharing this via [social media].  It was put to him that many sites were blocked in Iran and there were hundreds of millions of [social media] sites so not all could be monitored.  It was also put to him that Iranian authorities knew people may seek to create profiles while overseas and if they returned to Iran without a pre-existing profile they were usually not of interest to the authorities.

2. He claimed that this may be true but he had lots of friends on [social media] inside and outside Iran.  The authorities didn’t want to make a fuss by arresting people at the airport but that later on they would be arrested and interrogated.  Asked if he had any country information to support this claim, given the Tribunal was unaware of groups like IOM issuing reports into this even though they had an office in Iran.  He claimed that the state ran the media in Iran so they didn’t make news about failed asylum seekers returning to Iran.  These people were arrested under other accusations.

3. Their common claims were then examined.  Regarding their conversion to Christianity, they claimed that they were born in a country where believing in God was embedded in them.  This wasn’t the way he could connect with God.  But when they came to Australia, and Christianity is the main religion and the main way to reach God.  It was put to them that they had both said they didn’t believe in any God when they came to Australia, and there was a big population of atheists in Australia so they could have remained not believing in God.

4. He claimed he had never said he didn’t believe in God, he said he believed in God as it had been embedded in him. He had said that he didn’t believe in any religion but he believed in God.  Asked why he needed to join a formed religion if he was happy believing in God, he said his friend introduced him to Christianity and he found it brought him humanity and love.  He found Christianity [in] October 2016 in [a named church] and he was baptised [date] December 2016.

5. He still went to church every Sunday and in Iran his siblings knew because he told them but perhaps they had told his mother.  The second-named applicant said that her siblings knew but her father didn’t.  They were advised about s 5J(6) and s 424AA it was put to them that the timing of their conversion was convenient.  They had professed no interest in formed religion but then did so after the rejection of their protection visa which may call into question the genuineness of their conversion. 

6. Under s 424AA it was put to them that the [named church] had previously claimed to have baptised over [number] Iranians and had refused only [a number of] people (of whom one was subsequently baptised), so there was a [high] per cent chance of being baptised if one turned up there.  This meant that being baptised at this church wasn’t necessarily a strong indication of one’s religious faith.

7. The first-named applicant said that the first step was evangelisation, then baptism then bible studies.  This was their procedure and he didn’t know anything of Christianity on his own.  He didn’t know about other denominations and was introduced there by his friend.  He was affected by the people’s kindness and he was absorbed and this was the way to be saved.  He had been going there regularly for two years.

8. They were asked why they didn’t have any interest in organised religion before their visa refusal but only got it following the rejection.  The second-named applicant claimed that perhaps it looked like convenient timing but when they were living in Brisbane her [age] year-old brother [died].  She became badly depressed and they also got their rejection letter.  They decided to move to Sydney to be with friends for a change and had a connection with a friend [Mr B], who was a Christian.  They started to change their view of religion.

9. They were advised that people who returned to Iran were of no interest to Iranian authorities unless they had a previous political profile according to country information.  The second-named applicant said this may be true in the beginning but the authorities were always doubtful about people like them, so the harm from the authorities comes later but is not told in the news.

10. The first-named applicant said that he knew he said he had originally said he didn’t believe in any religion, but it wasn’t until he found Christianity that he began to believe in religion.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The applicants arrived in Australia unlawfully by boat [in] May 2013.  The Tribunal accepts that the applicants are Iranian nationals and their applications will be assessed as such.

12. The applicants are a [age] year-old man, a [age] year-old woman and a [age]-year old girl.  The first two-named applicants have common and individual claims, while the daughter has no claims of her own and relies entirely on the claims of her parents.  

13. Each of the first two-named applicants will have their own decision.  The findings will be written as common for both applicants, but with individual sections for claims that relate solely to one of the claimants.  In this case the first-named applicant has claimed that the Iranian authorities closed his shop down and accused him of using it to spread the Baha’i faith, that he was detained by the Basij for pushing one of them after they asked to see his marriage certificate when out for dinner with his wife (the second-named applicant, and that he was also detained by the Basij for playing the music too loudly in his car.  He also claimed that he would be arrested and interrogated because he had taken part in anti-regime protests in Australia.

14. Their common claim was that they feared being executed for having converted to Christianity, and that they would be harmed because they would be considered failed asylum seekers returning from the West.    

15. In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth.  Nor can significant inconsistencies or embellishments be lightly dismissed.  The Tribunal is not required to accept uncritically any and all claims made by an applicant(s).   

16. I found the applicant’s evidence regarding his claims to lack credibility.  For reasons set out below I did not find the applicants to be reliable, credible or truthful witnesses, and find that he and they fabricated the claims in order to be granted a protection visa.

    Closure of shop

17. I do not accept that the applicant ever attended a Baha’i gathering in Iran at the request of a friend, that his shop was closed down because he was accused of spreading the Baha‘I faith or that it was closed at all.  He did not initially make this claim during the hearing and had to be asked about it by the member

18. To begin with, it lacks credibility that a friend of the applicant who was Baha’i (a religious minority discriminated against by the Iranian regime)[1] would take the risk of inviting the applicant to one of their ceremonies.  It is not clear that they were very close friends and, regardless of their closeness the Baha’i was potentially exposing other members of the Baha’i community to an unknown Iranian non-Baha’i guest. Then, despite the applicant claiming (folio 112) that he was interested in the religion and that he began to learn more about it through his friend he was unable to say what the purpose was of ceremony he attended or what went on.  Since he arrived in Australia he has shown no interest in pursuing any interaction with the Baha’i faith. Neither of these actions are consistent with someone was interested in the faith as he claimed.

    [1] DFAT Country Information Report – Iran, 7 June 2018, p 22.

19. During the hearing he also sought to distance himself from the claim previously made that the closure of his [stall] was linked to his attendance at the Baha’i ceremony.  In a statutory declaration signed by the applicant on 26 July 2013 (folio 112) he stated that the Basij ‘claimed that I was using the stall as a way to distribute information about the Baha’i faith.  This was not true and I denied these accusations. They forced me to shut the shop.’

20. During the hearing he claimed that it was a mistake to mention that the closure and the Baha’i ceremony attendance were linked simply because he thought they were, and that the closure was actually because the stall was unlicenced.  He never mentioned the fact that his stall was unlicenced in his statutory declaration, and he claimed in it that the Basij directly accused him of using the stall to distribute information about the Baha’i faith. I am satisfied that the inconsistency between his claim in his statutory declaration and at his hearing regarding the stall and its closure is because the whole account has been fabricated.

    Political Activity

21. While I accept that the first-named applicant has taken part in two anti-Iranian government marches in Sydney, I do not accept that this is indicative of any particular anti-government views held by the applicant, or that his participation would be known by the authorities in Iran. Although the applicant’s adviser made a supplementary submission (no folio number) that the applicant had been active in participating in protests in and around Sydney since the applicant arrived in Australia, this was not supported by the applicant’s evidence.

22. The applicant said that he had attended only two gatherings of the NCRI; in [2018] and [2019] and that he only became aware of the activities of the NCRI via [social media] Having never been politically active in Iran nor for the five years he had been in Australia, The timing of his attendance certainly appears suspicious, given it came after the rejection of his protection visa application. 

23. These are not the actions indicative of someone with an anti-regime political opinion.  As I advised the applicant during the hearing, s.5J(6) requires me to disregard this conduct in determining whether the claimant has a well-founded fear of persecution if I found that it was carried out for the sole purpose of strengthening his refugee claim.

24. I note that the applicant has posted some images of his attendance at a protest on a [social media] site.  Given that the applicant had no political profile while in Iran, as well as the fact that there are over [a large number of] active [social media] users[2] I do not accept that there is a real chance that the applicant’s [social media] page is known, let alone monitored by Iranian authorities.  Regardless, country information indicates that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including being critical of the government, and that most Iranians would not see the social media posts anyway given the heavy internet filtering.[3] 

    Christian Conversion and Islam

    [2] [Source deleted]

    [3] DFAT Country Information Report – Iran, 7 June 2018, p 49.

25. Whilst I accept that the first-named applicant was baptised into the [Christian] faith [in] December 2016 I do not accept that it was a genuine conversion.  Matters of faith can be difficult to pass judgment on, but in this case the Tribunal has been guided by concerns over the credibility of the applicants in determining that their Christian conversion claim is also fabricated.

26. The first-named applicant said during the hearing that he had never claimed that he didn’t believe in God, or imply that he didn’t believe in any religion.  Yet this is inconsistent with his claim in July 2013 where he claimed to fear harm in Iran because he was agnostic (folio 110 – applicant’s statutory declaration but held on wife’s file).  I also note that the applicants went to the [named church] whose pastor has baptised [a number of] Iranians by his own admission and only refused to baptise [a number] in all that time.  This is not evidence of a church that takes much time to examine the true motivations of those who seek baptism.

27. I also note that the desire to become Christian only emerged after they learnt of the adverse decision on their protection visa application.  The second-named applicant claimed that it followed the death of her [age] year-old brother in Iran.  No evidence was offered in support of this claim and I place more weight on their alleged agnosticism and convenient timing of their conversion in determining that it was targeted and not genuine. 

28. I have further taken into account some pro-Christian social media posts that is claimed are from the applicant.  For the same reasons outlined at paragraph 67 I do not accept that there is a real chance that they will be known by the Iranian authorities but, even if they were they would be of no real interest to Iranian authorities.

29. I also do not accept that the applicant has abandoned his Islamic faith.  This relies entirely on his oral testimony, which I have found lacks credibility.  Whilst I accept that they may not be observant Muslims, country information indicates that the Iranian authorities do not normally interfere in the private religious lives of their citizens[4], and that low levels of mosque attendance have also been indicated amongst the general Iranian population[5].

    Other Issues

    [4] Landinfo 2011, Iran: Christians and Converts, 7 July p 15

    [5] Tezcur, G et al 2006, ‘Religious Participation Among Muslims: Iranian Exceptionalism’, Critique: Critical Middle Eeastern Studies, vol 15, no 3, p 222

30. I do not accept that the first-named applicant was detained by the Basij after pushing one of them in an argument when he and the second-named applicant were married and eating in a restaurant and asked for their marriage certificate.  To begin with, this relies solely on the first-named applicant’s testimony, which I have found lacks credibility.  It also lacks credibility that the Basij would enter a restaurant and ask for a couple at or above the average age of marriage[6] to produce a marriage certificate.  And there is no country information available to the Tribunal that indicates that carrying one’s marriage certificate is compulsory, so the fact that the Basij asked them to produce it appears strange.    

    [6] accessed 17 April 2019

31. I also do not accept that the applicant was detained for a few hours by the Basij for playing his music too loudly in his vehicle.  Again it relies on his oral testimony, the credibility of which is questionable.  Regardless, even if it were true, the one instance of detention for a few hours is neither an example of systemic behaviour nor does it reach the threshold of serious harm for s 5J purposes.    

32. I also do not accept that the applicants would be considered as enemies of the state simply for claiming asylum in the West.  To begin with I am not satisfied that the applicants will be involuntarily returned to Iran either now or in the reasonably foreseeable future.  The Iranian Foreign Minister during his March 2016 visit to Australia stated that Iran would only accept failed asylum seekers from Australia who returned voluntarily.[7]  While a MOU between Australia and Iran was signed regarding facilitation of the return of Iranians, this only applies to those Iranians who arrived after 19 March 2018.[8]

    [7] accessed 17 April 2019

    [8] DFAT Country Information Report – Iran, 7 June 2018

33. Given that the Iranian government has indicated that it will not accept involuntary returnees, the only way that the applicants will return to Iran in the reasonably foreseeable future is as a voluntary returnee. If they do so I do not accept that the applicant will be harmed simply for being a failed asylum seeker.  Country information indicates that Iranian authorities pay little attention to failed asylum seekers on their return to Iran.[9]     

    [9] Ibid, p 49.

34. As the applicant hasn’t raised any other claims to fear persecution and, having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.

    Complementary Protection

35. Although I have disregarded the applicant’s church attendance and baptism, and attendance at political rallies in Australia for the purposes of the applicant’s refugee claims, I have had regard to them in assessing his claims relating to s.36(2)(aa).  I do not accept that the applicant has genuinely converted to Christianity or holds a genuine anti-regime political opinion, has or would seek to practise or promote Christianity in Iran or partake in anti-regime demonstrations in Iran, or that the applicant will be imputed with being a Christian and/or apostate through his church attendance, religious education and activities or baptism, or that he has or will come to the attention of the authorities for being a non-observant Muslim or not believing in any religion. I also do not accept that he will be imputed with a political opinion through attendance at these rallies or that he has or will come to the attention of the Iranian authorities for his attendance.

36. I do not accept that the applicant ever attended a Baha’i ceremony in Iran or had his stall closed down because of this, was detained for pushing a Basiji or for playing his music too loudly in his car, would be prosecuted as a voluntary returnee or for seeking asylum.  Because of these reasons I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.

37. As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).

    CONCLUDING PARAGRAPHS

38. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

39. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

40. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Rodger Shanahan
    Member

    
    

    ATTACHMENT 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 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.