1605959 (Refugee)

1605959 (Refugee) [2019] AATA 1513 (2 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1605959
COUNTRY OF REFERENCE:                  Iran
MEMBER:Angela Cranston
DATE:2 April 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 02 April 2019 at 10:51am
CATCHWORDS
REFUGEE – protection visa – Iran – forced marriage – consanguineous marriage – pressure of tribal customs and traditions – fear of discrimination – fear of serious harm – marriage to a Christian – mixed marriage – decision under review remitted
LEGISLATION

Migration Act 1958 (Cth), ss 5(H), 5(J), 5K-LA, 36, 65, 91, 412, 496, 499

Migration Regulation 1994, Schedule 2
CASES
DZAFH v Minister for immigration (2017) FCCA 387
MZAIC v MIBP [2016] FCAFC 25
SZJDS v MIAC [2012] FCAFC 27

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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 March 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Iran, applied for the visa on 16 February 2015. In her application, the applicant stated as follows:
I was born in Ahvaz-Khuzestan Iran. Arabs reside in most of this province and mostly live in villages or small cities. The big cities they live with other ethnics are Ahvaz, Abadan and Khoramshahr. They live as a tribe even if live in cities. They keep their traditions and primitive costumes including rules for marriage. The rules are explained in an attached chart. According to these rules, I should marry a paternal cousin or any paternal male of my grandfather’s grandfather family excluding my brother and my uncles. As you see in attached chart they are offspring of paternal cousins, which their parents are also offspring of paternal cousins or closely related. There arise 2 serious problems:
I should marry someone from my family without my consent, without regarding cultural differences no difference between a unlawful and highly educated, law obeying, clean person and live my whole life under his mercy. Males of this family actually own their wives, beating harsh treatment is considered a right, even her family cannot object. There is a movie made in this subject, Bride of Fire see attached chart. Last year case AN:23 of chart argued with his cousin wife who left home and stayed with her brother to settle the argument. The man stormed his cousin’s house, killing him and his boy, now in death row.
Because of so many successive inter-family mating, many diseases appear in family for example my maternal aunt married a cousin (their parent all cousins) gave birth to autism boy who about 10 years of age drowned in a river, doctors warned them, their next boy surely will be autism, now her husband seeking another wife to have a male child. We are worried to death what will happen to my nieces and nephews as my sister [(tertiary education)] trapped to marry a very close cousin. As another case S31 and S32 of the chart both have [related illness], offspring of parents of offspring of cousins. So many cases I cannot mention all.
Either stay unmarried for life or marry a cousin and giving birth to risk of up normal kids with genetic disorder and tolerate harsh, humiliating treatment of him. Of course you better know of inter family consequences, especially if it runs so deep. It is proven in our family and did not make a happy family either.
…cousin of my father married a very close relative who killed in [an accident]. Permission not granted to young woman for the second marriage. She moved to another [city] and married person there but soon mysteriously killed in [an] accident. Everybody knows she was killed by family members, but nobody was accused. So where can I go.
The authorities cannot help because inter family marriage is legal and sometimes encouraged, they only advise about the veto rule not preventing it. Killing a woman or a girl having an affair is not prosecutable, the murderer will walk away from court with no punishment. The government follows the religious code.
The delegate refused to grant the visa and the applicant applied for review.
At hearing on 25 March 2019 the applicant stated that she came to Australia in November 2014 and had completed the forms herself.
The applicant stated she was living with her brother who had arrived in Australia in June 2015 as a student. When she first came to Australia she was living with her father’s friend and family. In Iran she was in Ahvaz with her family. Her mother was a housewife, did not work and volunteered helping orphans and people who did not have family to take care of them. Her father was a [Occupation 1]. Her sister who was [a] housewife, had finished her [tertiary education in Occupation 2], and had married 10 years ago. Her unmarried [sister] aged [age], was a student studying [in] [Occupation 3]. Her brother was studying [a course] and working in Australia. The applicant stated her highest qualification obtained was a [postgraduate degree] in 2014. She had not worked in Iran but worked in Australia as [another occupation]. She came to Australia as a [temporary visa holder]. Her parents were the only people who knew that she had applied for a protection visa.
The applicant decided to come to Australia because she was an Arab and her tribe had specific laws about marriage. She stated her father would not prevent her from marrying someone that she wanted but he could only prevent the tribe insisting on marriage as long as she studied. She stated when she realised she was about to finish her thesis she started thinking of a way to get out. She stated once her sister finished her [tertiary qualifications] she married. She also stated she could not move to another city. She stated the tribe would not allow her to travel alone as a single woman but she eventually convinced her father to let her [visit] Sydney on the basis that he had friends in Australia.
The applicant stated her father was conservative and there were certain laws she needed to follow. She stated her father had studied in a foreign country, but on return to Iran had to follow the tribal rules. She also stated she was not allowed to leave the house without permission, was not allowed to wear what she wanted, was not allowed to travel with her friends and was not allowed to take any the profession that she wanted. She stated her family wanted what was best for her and wanted her happiness but they wanted that within the structure of the tribe’s rules and regulations. They also wanted her to marry and had [Mr A] a cousin in mind. [Mr A] did not have a job but had a wealthy father. She said she told her family she did not want to marry [Mr A] seven years ago. She stated although [Mr A] was now married, there were still other cousins she was expected to marry.
The applicant stated it was her idea to go to university and her family also wanted her to go. The Tribunal asked why they supported her education if all they wanted was for her to marry. She stated her father was educated and did not want his family to be uneducated. He also stated he tried to break the traditions of the tribe because he felt trapped but it was very difficult. The Tribunal put to her that if she had a father who was supportive of her education and her coming to Australia then it seemed she came from a different family to that of others trapped in an arranged marriage. The Tribunal also put to her that it seemed that she came from a privileged family and one that was capable of standing up to tradition. She stated her sister married someone who did not have as much education as she did and who she didn’t love at all. She stated her father was good but there were pressures. The Tribunal put to her that she was [age] years old and had managed to remain single in a society where she stated she was the subject of forced marriage. She stated she left Iran when she was still a student at [age]. The Tribunal asked why the tribe cared whether she was a student or not. She stated the tribe would not care but it was her father’s way of finding her time. The Tribunal put to her that if the tribe did not care whether she was educated or not then it sounded like her father could make up any reason. It also sounded like he was capable of saying no to the tribe. She stated the problem was she could not marry any person other than those chosen by tradition.
The applicant stated she could not return to Iran because she would not have a social life, would not be prepared to go back to the strict religious policies and would not have employment. She stated when she came to Australia her main reason was she was escaping a forced marriage but she had come to the realisation that there were a lot of differences between here and Tehran and whatever they pushed in the name of religion was a lie. She said if she were to return to Iran she would not have any job as her family only allowed her to have a government based job where she would have to have a religious interview which she did not believe in. She also stated her family would not let her do a menial job which would disgrace the honour of the family.
The Tribunal put to her that it understood that unemployment was high in Iran because the economy was not good but that may not make her a refugee because the entire community faced unemployment. She stated no one would hire Arabs. The Tribunal put to her that her family appeared to do incredibly well. She stated her father was not a new person looking for work and had obtained his university degree and job a long time ago.
The Tribunal put to her that in her [temporary] visa application she had said that her mother had been a [occupation 4]. She stated she did that as a volunteer. The Tribunal put to her that she had earlier said that she volunteered with poor people. The applicant stated she would assist poor [people]. The Tribunal put to her that in her [temporary] visa application she said her father was a retired [Occupation 1], her mother was a [Occupation 4], her sister was a [Occupation 2], her brother was a [Occupation 5] and her other sister was a [Occupation 3]. The Tribunal put to her they were impressive jobs. She stated they didn’t do any jobs at the moment. The Tribunal asked whether she was saying they had previous jobs and she stated she wrote those answers on the basis of their education. She stated her sisters were unemployed at home and her brother was a [Occupation 5] in Australia.
The applicant stated that when she came to Australia she met her boyfriend and their feelings grew and they started a relationship. She stated her brother but no one in Iran knew they were in a relationship. She also stated according to the law no Muslim woman was allowed to marry a Christian and punishment could be death. When asked why she could not marry in Australia, she said they were planning on doing so.
The Tribunal then asked a series of questions about her relationship. She stated they met through three years ago at [a] club. When asked how they first talked she stated he approached her, she was drunk and he gave her a ride home. The next time they met they went for coffee in [Suburb 1]. He lived in [suburb]. When asked when he came to Australia she said in 2012-13. When asked where he went to church she said [Suburb 2] but did not know the church. The last time he went was at Christmas.
She stated they had spent yesterday together and had had lunch together at her house. When asked if they’d planned a marriage date she stated they had planned to marry in about a year to year and a half’s time because they were still not quite ready and wanted to save money.
The Tribunal then spoke to [Mr B] who stated he got a protection visa in 2013 because he was born in [a Christian minority region] and was Christian. He stated he was [of a particular religion], had last gone to church at Christmas and went approximately once a month. He stated he went two weeks ago. When asked where he went to Church he said in [Suburb 2] there was a meeting where he prayed together with Protestants. When asked for the name of the Church, he stated it was not a real church, they met and prayed at a Christian meeting. When asked about the Bible, he stated there was the Old and New Testament. He named three of the Gospels which he said talked about Jesus. He stated he was Christian and went to a Catholic school. He met the applicant 3 years ago in the [club] where she was drinking. He next met her after a couple of days and they walked around the city. The Tribunal put to him that she said they had coffee at [Suburb 1]. He said they went to the city one day.
[Mr B] stated they were boyfriend/girlfriend and wanted to marry in the future. He had talked to her brother but not her family. He stated the last time he saw the applicant was yesterday and they had lunch at her house.

Country Information

Consanguineous marriage traditions in Iranian Arabic tribes

The practice of consanguineous marriage in Iran was discussed in a 2008 article in the Journal of Biosocial Science. The paper analyses data from a 2002 Iran Fertility Transition Survey that collected information on the degree of relationship of marriage partners from the provinces of Gilan, Sistan and Baluchistan, Yazd and West Azerbaijan. Based on the survey data which indicated that ‘the level of marriage to biological relatives ranged from 23% in Gilan to 78% in Sistan and Baluchistan’, the paper found that consanguineous marriage is greatly determined by area of residence. The article also reports findings that ethnicity is a strong determinant of consanguineous marriage. Using language to indicate ethnicity, a 2005 Persian-language paper reportedly found that Arab women had the second highest rate of consanguineous marriage at 68.1 per cent, following Baluchi women at 80.5 per cent.[1] A 2006 conference paper by the same authors refers to similar data.[2]
[1] Abbasi-Shavazi, M, McDonald, P, & Hosseini-Chavoshi, M 2008, ‘Modernization or cultural maintenance: The practice of consanguineous marriage in Iran’, Journal of Biosocial Science, Vol.40, No.6, April, pp.911-912 < <CIS956B8881535>
[2] Abbasi-Shavazi, M J, McDonald, P & Hossein-Chavoshi, M 2006, ‘Modernization and the cultural practice of consanguineous marriage: A study of four provinces of Iran’, Session Paper for Value Changes and Family Formation of the European Population Conference Population Challenges in Ageing Societies, 21-24 June < <CISBE8E6BE718>
A 2004 report details the results of a national research project on the prevalence of consanguineous marriages among 12 different ethnic and religious groups in Iran. Although described as ‘a long-standing social habit among Iranians’, the report found ‘statistically significant differences…in the patterns of consanguinity between ethnic/religious populations and geographical regions’. The overall proportion of consanguineous marriages in the country was found to be 38.6 per cent, with first cousin marriages the most common. Southern and eastern regions had the highest proportion of marriages involving a relative, with 43.8 per cent and 47 per cent respectively. In contrast, the northern provinces recorded a rate of 15.9 per cent. The highest rates of consanguineous marriage were also found among the poorest sections of the population. In terms of ethnicity, the report indicates that 49 per cent of marriages in Arab communities are consanguineous, compared to 59.9 per cent of Baluchi marriages and 35.6 per cent of Persian (Shi’a) marriages. The high level of consanguineous marriages in Arab communities, primarily located in south-eastern Iran, has been partly attributed to a culture in which ‘fathers continue to be the prime decision-makers for the marriages of both sons and daughters’.[3]
[3] Saadat, M, Ansari-Lari, M & Farhud, D D 2004, ‘Short Report: Consanguineous Marriage in Iran’, Annals of Human Biology, Vol.31, No.2, March-April, pp.263-267 < <CISD49C2F4591>
Nevertheless, the 2008 Journal of Biosocial Science paper noted that although consanguineous marriages remain a traditional practice in Iran, acceptance of marriage with non-relatives is increasing.[4] A 2008 country study on Iran by the US Library of Congress similarly reported that traditionally, there was a ‘distinct preference’ for consanguineous marriages, accounting for a high rate of marriages between first and second cousins. The most preferable union was between the children of two brothers. However, over time this has become less common. By the early 2000s, although most marriages still involved people with ‘some kinship relationship’, surveys indicated ‘that more than 60 percent of men and more than 40 percent of women disapproved of such marriages’.[5]
[4] Abbasi-Shavazi, M, McDonald, P, & Hosseini-Chavoshi, M 2008, ‘Modernization or cultural maintenance: The practice of consanguineous marriage in Iran’, Journal of Biosocial Science, Vol.40, No.6, April, p.911 < <CIS956B8881535>
[5] Curtis, G E & Hooglund, E 2008, Iran: A Country Study, United States Library of Congress, UNHCR Refworld, p.114 < <CIS956B8881536>
Undated information on Iran’s culture on the Countries and the Cultures website states that although a ‘love match’ with a non-relative is possible, the ‘historical preference’ for consanguineous marriages is still common, particularly in rural settings:
Marriage within the family is a common strategy, and a young man of marriageable age has an absolute right of first refusal for his father’s brother’s daughter—his patrilateral parallel cousin. The advantages for the families in this kind of marriage are great. They already know each other and are tied into the same social networks. Moreover, such a marriage serves to consolidate wealth from the grandparents’ generation for the family. Matrilateral cross-cousin marriages are also common, and exceed parallel-cousin marriages in urban areas, due perhaps to the wife’s stronger influence in family affairs in cities.[6]
[6] ‘Iran’ n.d., Countries and their Cultures < <CISEC96CF13807>
However, it should be noted that a report submitted by the Islamic Republic of Iran in 2009 to the United Nations regarding the International Covenant on Civil and Political Rights states that:
Regarding the sacred religious law and Islamic law, marriage to consanguineous relatives that be of next kin, having close relation, and with a group of person because of relative-in law is always banned.[7]

Female Muslims marrying a non-Muslim man

[7] UN Human Rights Committee 2010, Consideration of reports submitted by States parties under article 40 of the Covenant: International Covenant on Civil and Political Rights: 3rd periodic reports of States parties: Iran, CCPR/C/IRN/3, UNHCR Refworld, 31 May, para.699, p.147 < <CISDCDCAAB1775>

According to ‘Gender Inequality and Discrimination: The Case of Iranian Women’, Iran Human Rights Documentation Centre (United States), 8 March 2013, p. 24, CIS25511 Muslim women are not allowed to marry adherents of another religion under any circumstances. It is asserted that a Muslim woman who marries a non-Muslim man, under his influence, will convert from Islam to her husband’s religion. The Civil Code is not detailed about the issue and only one article deals with this requirement. Article 1059 of Civil Code stipulates:
“Marriage of a female Muslim with a non–Muslim is not allowed.”

As a result, a non-Muslim man, in order to marry an Iranian Muslim woman, must convert to Islam. Moreover, this requirement must continue through the whole period of marriage; otherwise the marriage will be at risk. So, if for example, a Christian woman becomes Muslim while her husband retains his Christian faith, she is entitled to apply for divorce.
There is also a restriction of marriage of Iranian women with foreigner men. Article 1060 of Civil Code, provides a rule which violates the freedom of marriage of Iranian women even further:
“Marriage of an Iranian woman with a foreign national, even in cases where there is no legal impediment, is dependent upon special permission of the Government.”

Extra-marital sex (zina), including rape

Frequently mistranslated as adultery, zina means extra-marital sex, and is illegal in Iran. There are numerous articles in the Penal Code that distinguish the different types of zina (and resultant punishment), including actions that, in the Australian context would be regarded as adultery.[8] Should a marriage be declared invalid, it is possible that judicial authorities might pursue the applicant for committing zina. A recent report by the Danish Immigration Service stated that legally unmarried, cohabitating couples will generally not be pursued by authorities unless they are reported by a third party.[9]
[8] 19 ‘New Islamic Penal Code of the Islamic Republic of Iran, Books I and II 2013 (unofficial translation)’, Articles 221–232, among others, CIS36DE0BB2877
[9] 20 ‘Iran: Relations outside of marriage in Iran and marriages without the accept[ance] of the family’, Danish Refugee Council and Danish Immigration Service, February 2018, p. 5, CIS7B83941639
According to Iran’s Penal Code: see is defined as sexual intercourse of a man and a woman who are not married to each other. Article 224(c) of the Iran’s Penal Code states that zina of a non-Muslim man with a Muslim woman will result in the death penalty for the man. Punishment of the woman who has committed zina in paragraphs (b) and (c) shall be in accordance with other provisions of zina.

Christians from [a certain region]

[Details deleted].
[Details deleted].

Criteria for a protection visa

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

Preliminary issue

On 17 April 2016 the Tribunal received 13 pages of a 13 page transmission that consisted of the Department of Immigration’s protection visa decision in relation to the applicant.
On 7 June 2017 the Tribunal wrote to the applicant care of the migration agent as follows:
It appears that your application is not a valid application as it was not lodged within the relevant time limit. Pursuant to r4.31(2) of the Migration Regulations 1994, the period in which an application for review of a part seven reviewable decision must be given to the Tribunal is 28 days, commencing on the day the applicant is notified of the decision. In DZAFH v Minister for immigration (2017) FCCA 387, the Federal Circuit Court held that the prescribed period in r.4.31 commences on and includes the day the applicant is taken to have been notified of the decision: at (44)-(46).
The primary decision was posted to you on 17 March 2016 meaning that 30 March 2016 was the date on which you are taken to have been notified. In accordance with DZAFH, the last day for lodging the application for review was 26 April 2016. As the application was not received until 27 April 2016, it appears to be out of time. However this is a matter which must be determined by a member.
The Tribunal received the following response:
On 17/04/2016 documents relating to review of a protection visa application, in relation to the above named applicant was faxed to the AAT, please see fax transmission report attached.
Ten days later i.e. on 27/4/2016, I had not yet received confirmation of application hence I contacted the AAT by telephone. I was advised that a fax had been received on 17/4/2016 but was advised to refax the application form i.e. form R1 only. Instructions were followed and form R1 only was faxed. I recall contacting case officer after refaxing to ensure form was received. Please see fax transmission report and copy of form R1 which was signed and dated 14/4/2016 attached.
Unfortunately, it appears that form R1 was not successfully transmitted in the original fax of 17/04/2016. It is however clear that the DIBP decision record did transmit successfully based on advice I was given during telephone call of 27/04/2016.
No further attention was paid to this matter given that the applicant remained lawful with a bridging visa A and no issues brought to our attention since April 2016.
It appears that a technical and/or administrative error has occurred. It is reasonable to expect that the AAT should have noticed, at any time during the remaining nine days, that what was received on 17/04/2016 appeared to be incomplete and attempt to contact me (at least via the incoming fax number that would have been recorded at time of transmission) and clarify.
I have been dealing with the MRT and RRT in excess of 20 years and similar errors have occurred previously. Both the MRT and RRT have previously been very mindful of their duty of care and notified me previously of similar technical or administrative errors.
It is requested that the Member take into consideration that an application was made to the AAT nine days prior to expiry of time limits. Unfortunately, neither the AAT nor this office was aware that there were issues with what was faxed or received. It is logical to expect that if a notification of refusal of an application for a protection visa is faxed to the AAT, particularly one received within the required time limits for an application, then in all likelihood it is intended as an application. Clearly the AAT received the DIBP notification but did not question its purpose nor note an incomplete transmission.
Is requested that the member view this matter as a series of unfortunate events and that attention and actual attempts were made to ensure an application was lodged in a timely manner.
There are two jurisdictional issues that arise in the present circumstances. The first question is whether the application lodged on 17 April 2016 is a valid review application. The second issue arises if the answer to that question is no, the 17 April 2016 application was not valid. The second issue is whether the application made on 27 April 2016 was made within the proscribed time limits for lodging an application.

Approved Form

Section 412(1)(a) of the Act requires that an application for review of an RRT-reviewable decision must be in the approved form. The expression “approved form” is defined in s.5 of the Act as a form approved by the Minister in writing. Under s.495 of the Act, the Minister may, in writing, approve a form for the purposes of a provision in the Act in which the expression “approved form” is used. The power to approve forms has been delegated to the Principal Member in accordance with s.496 of the Act.
For the purposes of s.412, the approved form for a review of a refusal of a Protection visa is Administrative Appeal Tribunal 'R1' or 'eR2'.
Therefore, the approved form on which to make an application for review of a refusal of a Protection visa is Administrative Appeal Tribunal Form R1. That form asks for details of the person applying for review, the representative details, where correspondence about the application is to be sent, communication by email, and the decision to be reviewed. Previously, there was no scope for partial or substantial compliance with the requirement to use the approved form (see SZJDS v MIAC [2012] FCAFC 27 (Rares, Cowdroy & Jessup JJ, 13 March 2012) per Rares & Cowdroy JJ at [26]-[28].) If the approved form is not used, there is no valid application (SZJDS at paragraphs [34] and [63]). However, the Full Federal Court in MZAIC v MIBP [2016] FCAFC 25 held that the correct question to be asked is whether the application for review was made in, or substantially in, the approved form. MZAIC concerned the use of a superseded version of the approved form.
Looking then at what was contained in the fax of 17 April 2016, the person applying for review has been identified as well as the decision to be reviewed. While it is more difficult to establish the representative’s details and where correspondence about the application is to be sent, such information could be obtained from the fax transmission report. It has also been argued that it is logical to expect that if a notification of refusal of an application for a protection visa is faxed to the AAT, then in all likelihood it is intended as an application.
In all these circumstances and even though there was no form used, the Tribunal accepts that there was substantial compliance with the approved form on 17 April 2016 since there was the necessary information available to enable the Tribunal to proceed with the review.

Substantive issue

The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five refugee reasons and if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia to Iran, there is a real risk that she will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
The applicant has stated in her protection visa application that she was born in Ahvaz, Khuzestan and is part of a tribe that follows rules which state she should marry a paternal cousin, or any paternal male of her grandfather’s grandfather family, excluding her brother and uncles. She has also stated that her options were to either stay unmarried for life or marry a cousin.
Although the Tribunal accepts that consanguineous marriage is a traditional practice in Iran and is prevalent in Arab communities, the Tribunal does not accept that the applicant’s family is traditional in its views or that the applicant will be forced to marry against her will. That is because the applicant who was [age] when she arrived in Australia, remained unmarried and presumably if at risk of a forced marriage, would have already been forced to marry. When queried about this at hearing she stated that her father had managed to circumvent the tribe’s laws through education however she would have to marry once she completed her university, however she herself agreed that the tribe did not value education for women and the Tribunal does not accept that if the tribe or her father had wanted her to marry [Mr A] or another cousin then her enrolment in education would make a difference in the timing of that forced marriage. Neither does the Tribunal accept that the applicant’s family follows tribal traditions or that the tribe will somehow force her into marriage. That is because the Tribunal’s impression of the applicant is that she is from an educated, progressive and privileged family who has selective opinions on desirable work, who has seen fit to support the applicant’s desire to study and who has educated not only the applicant but also her sisters. They have even allowed the applicant to travel unaccompanied to [Australia]. In reaching this conclusion, the Tribunal finds that the applicant’s father has worked as a [Occupation 1], her mother a [Occupation 4], her older sister a [Occupation 2], her brother a [Occupation 5] and her [other] sister a [Occupation 3]. When this was put to the applicant at hearing, she stated that her mother had never worked and only volunteered helping orphans and people who did not have family to take care of them, that her older sister was a housewife who had finished her [tertiary education] in [a certain field] and that her [other] unmarried sister was a student however the Tribunal does not accept that given the answers she gave on her additional information form which was lodged in support of her [temporary] visa application. Although the applicant stated that she wrote those things because that is what her siblings were studying, the Tribunal does not accept that the applicant, who is fluent in English could have been confused by the form’s question which clearly asks for the occupation of her family members.
In sum, the Tribunal does not accept that the applicant will be pressured to adhere to consanguineous marriage traditions by her family, tribe or the Arab communities. On the contrary, the Tribunal finds that the applicant is from a family that provides an environment in which the applicant is able to make her own decisions which in turn are respected and supported by her family. Neither does the Tribunal accept that the tribe has any control over her choices or that her family is somehow accountable to tribe rules, customs or traditions or that the tribe will persecute the applicant or her family if those tribe rules, customs or traditions are not followed.
Given the above, the Tribunal is not satisfied that the applicant will face the prospects of a forced marriage at the hands of the applicant's family or her tribe in the reasonably foreseeable future.
However, the applicant has stated that she is now in a serious relationship with a Christian who she intends to marry. The Tribunal accepts, based on [Mr B]’s evidence at hearing and independent articles that identify his family name as one of the families in [a certain region]’s [Christian] community, that he was born and is a Christian. Indeed, [Mr B] was an impressive witness who provided unexpected and unprompted evidence and who presented as sincere when he stated that he intends to marry the applicant. However, the Tribunal has some concerns about the applicant’s credibility given that it does not accept that she has been telling the truth about pressure imposed upon her to adhere to consanguineous marriage traditions. However, the Tribunal also finds that the applicant’s evidence in relation to when and where she met [Mr B] as well as the development of their relationship was corroborated by [Mr B] at hearing and the Tribunal observed the couple to be at ease with one another.
Against these considerations, and giving the applicant the benefit of the doubt, the Tribunal accepts that the parties are in a serious relationship, intend to marry and, according to Iranian law, would be unable to do so in Iran. While the inability to marry the person of one's choice is questionably serious harm, the Tribunal accepts that there is a real chance that if the applicant’s relationship becomes public there would be a breach or perceived breach of social norms which at worst could result in the possibility that any relations between them could be considered as extra-marital sex (zina) by the Iranian authorities and/or Iranian society and that there is a real chance that the applicant would suffer harm in Iran from the authorities and society in all areas of Iran. The Tribunal is satisfied that the treatment that the applicant fears, namely arrest, interrogation and imprisonment, and involves 'serious harm' as defined in s.91R(2), and thus amounts to persecution as defined in s.91R(1)(b) of the Act. The Tribunal is also satisfied that the harm feared would be the result of conduct which is systematic, in the sense of being deliberate and premeditated, and directed at the applicant in a non-random way by the Iranian State. In addition, because the Iranian State will be the agent of harm, there are no effective protection measures that could be provided to the applicant by the State.
The Tribunal also finds that the essential reason for the harm would be religious based because despite the marriage law appearing to be one of general application, its effect is that it discriminates against mixed marriage on the basis of religion. The Tribunal also accepts that the applicant cannot be required to take steps, for example, by repressing her relationship or being discreet, to avoid offending her persecutors to avoid persecution. Neither is there any evidence before the Tribunal that the applicant has a right to enter and reside in a third country.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

DECISION

The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Angela Cranston
Member

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:

(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
receiving country, in relation to a non-citizen, means:

(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5J Meaning of well-founded fear of persecution

For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures

For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 1513

2 April 2019

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Immigration

Administrative Law

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Procedural Fairness

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