1702222 (Refugee)

1702222 (Refugee) [2019] AATA 5265 (17 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1702222
COUNTRY OF REFERENCE:                   Iran
MEMBER:Rodger Shanahan
DATE:17 November 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 18 November 2019 at 1:01pm

CATCHWORDS
REFUGEE – protection visa – Iran – race – religion – religion not recognised by Iranian government – social discrimination, threats and attacks – second applicant’s conversion to Christianity in Australia – credibility – inconsistent evidence – ‘flexibility’ of religion – previous travel to Australia without applying for protection – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424A, 424AA
Migration Regulations 1994 (Cth), 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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 10 January 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Iran, applied for the visas on 10 December 2015.
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 themselves 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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicants’ original applications were not included in the Tribunal’s file but they were provided post-hearing by the applicants’ adviser. The first-named applicant claimed that she left Iran because she had no rights and that they are doubly discriminated against because they are Arabs and Mandeans. They are not a protected religious minority according to the Iranian constitution.
Muslim doctors don’t treat Mandeans as they believe they are unclean and Mandean cemeteries are dug up and used for Islamic purposes. Mandean places of worship have been attacked and blood money is a quarter of that paid to Muslims. When a Mandean is murdered by a Muslim the law covers it up and treats it as suicide or an accident.
[In] December 1998 her [relatives] ([Mr A] and [Ms B], a married mother of two) were murdered by a Muslim man who had previously told her publicly that he wanted to have sex with her and to marry her. She told him to go away and her brother who was present got into a fight with this person.
A little later the Muslim man broke into her [relative]’s apartment, poured petrol over the two of them and set them alight causing an explosion in the apartment. Witnesses had heard the commotion and seen the man break into the apartment but the police classified it as an accident. Her relatives died in hospital. The father of [Mr A] went insane as a result, as did other relatives. Half their family moved away from where they lived and emigrated to [Country 1].
AAT Hearing
At hearing the adviser said that the applicant’s language was an obscure Arabic dialect but her Farsi was so-so. It was put to him that the applicant had lived in a farsi-speaking country her whole life, they had requested a Farsi interpreter and one was present. It was agreed that if there were any problems with the interpreting they would be addressed before the hearing continued.
It was put to the applicant that she could request a rest or break during the hearing and that the medical letters had been taken into account. They didn’t say that she was unable to attend but that she was liable to stress – it was also noted that other reports had noted her stress levels were linked to the uncertainty of her immigration status and that this hearing would help resolve this. If she was stressed then she just needed to highlight this and a short break in place could be managed.
The applicants agreed that they relied on the one claim and that the primary applicant would be the main applicant and the second-named applicant would rely on the first-named claim but could have any individual claims addressed if required.
The adviser was told that he had submitted a very large submission the day before but the member being only part-time and with an earlier hearing had not had time to go through all of it. The Tribunal raised a query with the adviser about his reference to the Iranian Islamic Communist Republic and why he thought it to be communist. He apologised and said he thought it was communist. It was put to him that he had made a range of assertions in the submission and if one of them was that Iran was communist this may impact on the weight given to other assertions.
The applicant claimed that if she returned to Iran, she was Sabaen-Mandean and they had no rights and her daughter had become a Christian in Australia. Asked to clarify what serious harm she feared in Iran, she claimed that the danger because her daughters had become Christian. She was told this would be addressed later, but she had to say what she feared because she was Sabean-Mandean.
She claimed that she was scared of the government but couldn’t say what of. It was put to her that a fear had to be well-founded and saying simply she was afraid was not sufficient. Her claim had to be tested. She claimed that some nosey people could say her daughters were Christian now.
She claimed that she feared being raped because she was Sabean-Mandean. Her son became engaged and they received threatening calls as a result and they threw stones at their house. They said unless they divorced they would kill one of her children. They made a complaint and were asked why they didn’t become Muslim. They were limited to what they could do – they could only be jewellers and not doctors or lawyers.
They also came after her daughter to kidnap her. Asked who ‘they’ were, she said they were Muslims. Her daughter was targeted because the applicant’s son didn’t leave his fiancé. They wanted to rape her daughter. She couldn’t say when it was as she only had two years of school. It was 5-10 years ago or maybe longer.
She also feared serious harm because if they were hit by a car nobody would look after them because they were Mandean. They could also be extorted because her husband was a jeweller and he had to put up the deed of his house – this happens all the time. They could get it back after paying a bribe. Asked if she had claimed this previously, she claimed that she had been too scared. It was put to her that she had previously talked about her children being raped and people being burnt in their house so it was strange she was too scared to talk about her property deed being taken. She then claimed that she had a bad memory.
Her daughter’s friends and family knew they were now Christian and meant there was danger for everyone. Asked why it would be an issue for her, she simply said she was scared and may be arrested – she could not say who would tell other people.
Asked how long she had been scared of the Iranian authorities, she claimed that it was since she was born. She had been to Australia previously when her husband was alive – asked why she had returned to Iran previously in 2000 and 2008 if she was scared, she said that she was with her husband then. She said that Iran’s situation had changed now and was worse for Sabean-Mandean. It was put to her that she had said she had this fear from birth so it was reasonable to think she had it when she travelled to Australia and returned to Iran. She said the family was no longer looking after them any more.
It was put to her that she had described a horrific episode where family members were raped and had petrol poured over them and their apartment burnt. The applicant had [number siblings]. The person who was burnt was [Ms B] married to her [relative] [Mr C], and [Ms B]’s husband ([Mr A]).
It was put to her that after the incident she had said that half the family had gone to [Country 1]. [Some of the siblings] left about 10 years ago. It was put to her that the incident occurred 20 years ago – she then said she wasn’t sure about the time as her memory wasn’t good. She was told about s 424AA and it was put to her that she had previously said that after this horrific incident half her family had left for [Country 1], yet in their 2008 tourist visa application for Australia her husband lists all [number] siblings as still being in Iran and hers listed [number] siblings all still in Iran. Ten years after the incident it appeared nobody from their families had left Iran. There was no supporting evidence such as death certificates that would support her claim regarding the incident. There were inconsistencies regarding her account which may impact on her credibility.
She said they were previously not allowed to go to [Country 1] but the doors were now open so they had been given refuge. She had not mentioned this before as she didn’t really know. Asked if she was an observant Mandean, she claimed that she was but in Iran they had problems. People threw stones and fruit at them at rivers for their ceremonies and came into their homes to make sure they were covered. Asked if she maintained contact with the Mandean community in Australia when she had come here in 2000, 2008 or 2015 and she said that she didn’t because they were too far away.
It was also put to her that the names her brothers had ([Mr C], [Mr D], [Mr E]) appeared quite Muslim, and with particular relevance for Shi’a Islam. She had been pressured to have these names that were given to them. It was put to her that there were more generic Arab names that didn’t have such Shi’a relevance and the Tribunal was unaware of any country information that indicated Iranian authorities forced them to give names. She said sometimes very religious people were in the registry and forced them to have Shi’a names. It was put to her that there were some concerns about her religious identity and she was asked for the Mandean community to provide some evidence to support her claim regarding her religious identity.
She still had [number] sons in Iran and they are employed but she said they were scared. She owns property in Iran. It was put to her that her children have jobs, [one child]went to university and she owns property so her life appears to be good in Iran. She claimed that things had now changed a lot. Asked to be more specific given she had said her house had been shot at and relatives raped and murdered which meant things would have been bad. She said people had kidnapped girls aged 13 from her husband’s family. Asked if she had any evidence or the Tribunal had to rely on her word, she said the evidence was in Iran. Asked how she found out about this she initially said she didn’t know and then claimed that she didn’t really know as she had explained everything to her lawyer.
She had also claimed her house was shot at in 2004 and she agreed this was the case and was because of her son’s fiancé and was told to let her go by Muslims. Asked to be more specific she said she didn’t know and they were threatened over the phone. Her son subsequently married someone else. The first fiancé was Mandean as was the second and she was asked why they didn’t target him again she said the (first) girl was from another city and maybe the attackers were from there.
Asked if she had any photos of the shots in her door she said it was long ago; the attackers broke their windows and attacked the door and they would have been harmed if they hadn’t been in another part of the house. It was put to her that she claimed only three bullets were fired at the door and there was a big difference between three bullets and much greater damage requiring re-building. She said it was a long time ago.
Asked if she was Christian or Mandean, she said she was still Mandean but respected Christians and went to bible studies classes. She said she was scared to say she was Christian. It was confirmed with her that she was not Christian and that she made no claim to fear harm as a Christian – it was because of her daughter’s conversion. If the authorities found out about her daughter’s conversation it would be dangerous for her but she didn’t know why.
Country information was put to her that indicated the Iranian authorities didn’t really care about people claiming to have converted in Australia as long as they didn’t have a pre-existing political profile. She claimed that if they were able then all Sabeans would leave Iran. Most of them had applications in [Country 2] – asked how she knew this she said most of the Sabeans said this.
The second-named applicant said that she had converted to Christianity in Australia. She was practising the Mandean faith in Iran but just followed her parents. She was forced to practise Islam at school and in society but Mandean at home. At home they prayed and travelled twice a month to Ahvaz but this was difficult. In primary school she was forced to read Qur’an, wear the hijab and the like. Her parents told her to pretend to be Muslim at high school. She felt rejected and persecuted.
Asked if she had photos of them attending ceremonies in Iran, she said they weren’t in Australia and she was told she would be given time. They said they could provide identity cards about the Mandean faith and she was told that photos from Iran would carry more weight as the veracity of cards couldn’t be guaranteed.
At university she claimed to be a Muslim. Asked why she had to hide being a Mandean, she claimed that Mandeans were discriminated against at university. She went to [university] which was private in Ahvaz and she was always fearful of being kidnapped and this affected her mental health leading a double life.
One day she got bad depression and she was wondering what she could do and that night she saw a vision of a man who told her that she wouldn’t die and the light would come. She had been told to fear God by her parents and that Islam was perfect at school but her heart was empty. She began searching and reading as an 18 year old but she couldn’t get accurate sources and the books talked about the benefits of Islam.
When she came to Australia she knew Jesus as a prophet and not God. Her sister had converted previously and spoke to her about Christianity and she thought her sister was crazy. She was asked if she had been caught between religions and had freedom in Australia why did she need another formed religion rather than just believe in God without reference to a faith. The Tribunal needed to point out that a private relationship with God wouldn’t form the basis for a refugee claim but joining an evangelical group may. So the Tribunal needed to explore the genuineness of their claimed adherence to faith.
She came here for six months and was so depressed and asked Jesus for help one night to prove to her. She waited for ten days and then he came to her and touched her head. Her migraine and stomach pain had gone from that time so she knew from then that there was something in Jesus. She wasn’t a Christian straight away and it took another six months of studying the bible.
She was asked what, given all the freedom available to her on coming to Australia whether she undertook a faith journey in exploring other faiths by speaking to people she claimed that she read articles about other faiths. Asked what she did in a practical extent to understand other faiths as part of her spiritual journey, she said that she had a Buddhist and Hindu friend at school and Hindus had a lot of Gods and Hindus just prayed to statues. She had an encounter with Jesus but realised that her encounter in Iran was with Jesus even though she didn’t know it at the time. God was sending her a message and she learnt the truth from the bible. She read the bible for six months and read other stuff to make sure it was correct.
She had previously said that she had been unable to get a job in Iran because of her Sabean-Mandean faith, but it was put to her that there was large youth unemployment given the sanctions and related economic difficulties. She claimed that even when she gave someone her resume she had to tell them her religion and they would asked her for sexual favours in return for a job when they found she was a non-Muslim.
It was put to her that it was impossible to look into someone’s heart to discern genuine conversion and so evidence had to be examined. It was put to them that she was granted a visa in May 2015 yet she didn’t leave for another four months even though she claimed the situation was so bad. The second-named applicant was baptised in 2014 but didn’t apply for protection until December 2015.

The first-named applicant had come twice with her husband and returned and then on the third occasion she came after her husband died and with her daughter and then applied for protection. There was a concern that they had taken deliberate steps to have both daughters in Australia before applying for protection perhaps with a view to get the sons over at a later date. The second-named applicant said that when their parents came for the first two occasions they still had three children working in Iran. When her father passed away and these things happened to the second-named applicant and she came to Christianity she didn’t know what would happen if she returned.
In 2014 she had no idea what would happen to her if she returned. She was full of joy at that time. It was hard to get a plane ticket after her mother received the visa. She also began hearing about the persecution of Christians in Iran from her friends which is why she applied for protection.
The witness was brought in asked how he attested to the genuineness of the applicants’ faith. He claimed he had a number of people from Islamic background and it wasn’t hard to tell the difference between genuine and non-genuine conversion. One couldn’t pretend to be a Christian for years and the applicant was genuine. He was asked how he made the determination and assessed the veracity of their claims to their lives before they came. He claimed it was about their life now. He said he had a daughter-in-law from Iran but he had never been there so he claimed he knew the situation from her.
Christianity was about living a Christian life and not knowing facts per se. Their church was not about just coming in on Sundays but was a community. Asked if he had refused to support someone before and he said he had written letters for Iranians before but not appeared on their behalf. He was asked whether, if someone who had a conflicted experience with organised faith before coming to Australia came to Australia and joined an organised church and put in a protection visa application without exploring other faiths raised questions in his mind. He claimed that everyone should have an individual relationship with God and that he believed she was genuinely searching for faith.
The second witness said it was a hard life in Iran and they had been persecuted. She was asked about the particular circumstances of her mother and the fact she had voluntarily returned twice which may indicate she wasn’t persecuted. She said they couldn’t work for the government and people were being kidnapped. Asked if she could provide evidence and she said it was impossible to do this as the government was a black hole. It was put to her that she needed to get information from objective organisations such as neutral government sources and/or academic papers. She claimed that there was no evidence of gunshots, kidnapping and persecution.
Regarding her family’s circumstances she was asked to provide photos of her family involved in Mandean religious ceremonies. Asked why they would be in trouble she said they would be rejected by the community and this was her only protection. The Mandeans already knew it and her [siblings] had been threatened and their lives were in danger unless they rejected her. It was put to her that she had converted five years ago and nothing appeared to have happened to her family in Iran. She claimed that her [siblings] had rejected them.
The applicant was asked why they couldn’t relocate to Tehran where jobs were more plentiful and there were 12 million people. She said she would have to tell them she was Christian and couldn’t go anywhere to practise her faith. The witness said that people in Australia had made problems for their [siblings] and they had to disavow [the applicants] as a result.
The adviser said it didn’t matter when their family emigrated to [Country 1], it was because of the horrific deaths of their relatives and the US had only recently opened the gates to their emigration. It was put to him that the timing and circumstances of the relatives’ emigration could be included in a submission and he undertook to do this. He was advised that the concern was about the causal link between the event and the emigration and that nobody appeared to have left shortly after the alleged incident.
He also said the applicant was taken medication that affected her memory and she had experienced traumatic events and this was in her medical reports. It was put to him that the reports were based on self-reporting of the event, and the Tribunal required a medical certificate saying how long she had been on the medication and what impact it had on her memory written by a doctor and not just a photocopy of the possible side-effects. This was the same as for the letter from the ophthalmologist – he had not said that she was unable to attend the hearing and the Tribunal required a letter from the doctor. He also said that he wished to give evidence that the delegate was working with mistranslated material. It was put to him that this was a fresh hearing and unless he could link any alleged shortfall with someone relevantly raised at the hearing then there wouldn’t be anything to be gained by it, so it was up to him.
CONSIDERATION OF CLAIMS AND EVIDENCE
The first-named applicant arrived in Australia for the third time on a [temporary] visa [in] September 2015. The second-named applicant (the first-named applicant’s daughter) arrived in Australia [in] August 2013 on a student visa. The Tribunal accepts that the applicants are Iranian nationals and their applications will be assessed as such.
The first-named applicant is a [age] year old widowed Iranian woman and the second-named applicant a single [age] year old woman. They agreed that they relied on the one claim and that the first-named applicant was the primary applicant and the second-named applicant would rely on the claims on the first. As it turned out the second-named applicant did have her own claims and they were addressed separately.
The first-named applicant claimed that she feared being raped because she was Sabean-Mandean and that she feared the Iranian government because of unspecified reasons other than that they had no rights. She also claimed that she would be in danger because her daughter had converted to Christianity. The second-named applicant claimed to fear serious harm because she had converted to Christianity.
The applicant’s adviser raised a number of issues that he claimed needed to be taken into consideration and that could impact on the first-named applicant’s testimony. The first was the claim that the first-named applicant’s Farsi was average and she spoke an obscure Arabic dialect. I note that she lived in a Farsi-speaking country for more than 60 years and as an alleged member of a religious minority it is reasonable to believe that she had a good working knowledge of Farsi simply as a consequence of living for so long in the country and having to interact with the general population in simple daily activities.
I also note that she and the Farsi interpreter spoke without difficulty and, while she was offered the opportunity to stop and address any interpreting issues if they arose, there wasn’t any need which would confirm my view that she was proficient in spoken Farsi.
The adviser also proffered that the first-named applicant had health issues such as stress and poor memory brought on by the medication she was taking. No letter from a medical practitioner was advanced in support of this claim and when one was asked for post-hearing, a mental health assessment from the applicant’s GP was provided that noted a ‘reduced’ memory, but did not link it to any medication use.
A letter from a counsellor (folio 102) was also submitted that gave a diagnosis of PTSD. I lend this little weight given that it is based in whole or in part on accepting that she has been exposed to a series of traumatic events that I have found (see below) to have been fabricated. Another letter from Maronite Care Services hypothesised PTSD also but it too was predicated on acceptance of a series of events that I do not believe ever occurred.
The adviser also provided a generic medical note requesting a postponement because she was required to be in a ‘stress free environment’ after cataract treatment. A more detailed letter was requested and was provided. It was different in tone, noting that under stressful situations blood sugar levels can be impaired which may lead to ocular complications. It asked that this be taken into consideration when considering the case. This was taken into account and she was offered the opportunity to rest if she felt too stressed during the hearing. She never requested a rest nor did she appear stressed or incoherent due to stress.
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.
I found the applicant’s evidence regarding her claims to lack credibility and do not believe this was due to issues to do with age or any medical condition. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and find that she fabricated his claim in order to be granted a protection visa.
Mandean Identity
I accept that the applicants are Sabean-Mandean and, while I accept that this religious group experience discrimination I do not accept that this discrimination amounts to serious harm. There is a limit to the types of employment categories that Mandeans may enter, but they are represented (although not formally recognised) as a separate religious group and talk to the Iranian government in this capacity. They can attend school and university and have their children given Mandean names.[1]
[1] accessed 21 October 2019
The applicant’s family have been jewellers which is a common trade for Mandeans and they own property in Iran and their daughter went to a private university in Iran which would indicate that they have access to sufficient funds to lead a comfortable life.
The applicants claimed to have experienced a litany of extremely serious persecutory behaviour including institutionalised rape and even murder. These included, but were not confined to the following:
a.The first-named applicant’s relative was to be married and the day before his fiancé was kidnapped and forced to marry a Muslim. When he complained they tied him to a ceiling fan and beat him. He withdrew the complaint under duress;
b.One of her husband’s [relatives] and mother to [number] children was kidnapped and forced to convert and marry a Muslim. Her previous husband had a heart attack and died;
c.In December 1998 her relatives [Mr A] and [Ms B] were set on fire and killed because [Ms B] refused the sexual advances and marriage offer of a Muslim man;
I can find no evidence to support any of these claims and find that they were fabricated. Regarding the most serious claim, that her [relatives] were set on fire and killed, I requested birth and death certificates for the two people in question post-hearing. I received two photocopies of handwritten documents that were alleged to be the death certificates or notification of the deaths.
I can lend them little weight given they are handwritten and their veracity is indeterminate. Even if I were to accept that the documents are genuine, neither of them note the cause of death and they have different dates of death ([Mr B] on [a day in] 12/98 and [Mr C] on [three days later in] 12/98) even though they were allegedly killed after a Muslim man who had raped [Ms A] poured petrol over them and set them alight at the same time. It is quite possible that the two have died close to each other for any number of reasons. Motor vehicle accident are common for example, and Iran has one of the highest rates of traffic accident deaths in the world with an average of 43 people dying every day.[2]
[2] accessed 21 October 2019
There are a number of other issues that make me disbelieve that this event ever occurred. The applicant claimed that as a result of the deaths [Mr A’s father] and some other relatives went insane and half the family emigrated to [Country]. Yet despite claiming this, ten years after the alleged incident, her late husband’s visitor visa application indicated that all of his siblings were still in Iran. I do not accept that they had not gone previously because they hadn’t been allowed to go to [Country] but that ‘the doors were now open’. She provided no evidence to support this claim, nor had she mentioned the delay in leaving previously.
I also do not accept the adviser’s post-hearing claim that the member confuses the Iranian concept of family with the Western concept. The adviser never indicated any regional academic expertise himself – indeed, at the start of the hearing it had to be pointed out to him that him describing Iran as an Islamic Communist country was factually incorrect.
Not only does the member have a Masters degree in Middle Eastern studies and a PhD in Arab and Islamic Studies, I have lived in five Middle Eastern countries and travelled around Iran on several occasions. I am well aware of different concepts of family. I do not however, accept that the alleged event would scare extended family members sufficiently that they would need to leave the country, yet not a single sibling would feel the need to leave. Conversely, if the siblings hadn’t previously been allowed to go to [Country 1] it lacks credibility that the extended family members would have been.
I also do not accept that the alleged murder was covered up by authorities because when a Mandean is killed by a Muslim it is classified as suicide or an accident. I could find no country information to support such a claim, nor was any provided. Indeed, there is general country information that disputes this. A photo essay on the Iranian Mandeans includes a photo of a Mandean man killed in his shop by thieves and, while it notes that the court would give different sentences to the perpetrators if they were Christian or Muslim, it doesn’t claim that the Mandean’s death would be covered up.[3]
[3] accessed 26 September 2019
I also do not accept her claims of the forcible conversion and marriage of Mandean women that Mandean women were targeted for rape or that as a non-Muslim the second-named applicant would be asked for sexual favours in return for a job. Nor do I accept that the second-named applicant had to be escorted by male relatives whenever they went out because of the fear of being bashed, kidnapped, raped or forced to marry, or that her son had been threated to call off his marriage or that the applicant had been threatened that one of her children would be killed if they didn’t.
There is no country information available to me, nor was any provided, that would support a claim regarding the systematic kidnapping, rape and/or conversion of Mandean women in Iran. By way of contrast the photo essay of the Mandean community in Ahvaz referred to above shows Mandean women walking freely without male companions, and indicates that the youth are torn between staying in an Iran that they like and the lack of economic opportunities in that country.
I note that the first-named applicant was able to leave Iran twice and voluntarily re-entered that country with her husband while he was alive. She has inherited their property, and her [children] live and work in Iran. These are all indicative of someone who is able to live, work (albeit with restrictions) and own property in Iran and travel freely outside of the country.
I also do not accept the claim that in 2004 unknown callers threatened to rape all the women in the house, or to kidnap and rape the second-named applicant or that shots were fired at their house. In their unsigned statements of 3 December 2015 provided by the adviser (folios 247 and 304) the applicants claimed that they were about to enter the house when three men on a motorbike shot three bullets at them but they missed and lodged in the front of the house. Yet during the interview she claimed they would have been harmed had they not been in another part of the house when the shots were fired.
I do not accept that the inconsistency could be put down to a poor memory given there were also other implausibilities inherent in the account. Firstly, despite this allegedly unsuccessful targeted killing and all the other events she claimed to have occurred to her and her family she willingly returned to Iran after she visited Australia in 2008. This is not something that a person legitimately fearing such serious harm would do.
I do not accept that she returned because her husband was still alive at the time. Even when he was alive he was unable to stop the alleged events occurring and the police were allegedly dismissive of them, detained and assaulted her son and required a bribe from her husband to get him released so it lacks credibility that she believed he would be able to prevent such alleged occurrences on their return if such a danger actually existed.
The other issue relates to the actions allegedly taken to target her son because he was going to marry a Mandean woman. It lacks credibility that a group of Muslim men would be so incensed that a Mandean man was marrying another Mandean girl. And then, if that was enough to incense a group that they were no longer incensed enough to attack the house when the son got engaged to another Mandean girl. I do not accept that it was because the attackers were from the town that the first girl had been from – there is no country information available to the Tribunal to support the claim that Mandean men are attacked for trying to marry a Mandean woman, nor was any provided to the Tribunal.
I do not accept that the applicant had to pretend to be a Muslim at university, given that the Iranian government considers them as Christians even if they do not consider themselves to be.[4]
Conversion to Christianity
[4] accessed 8 November 2019
I do not accept that either of the applicants has, or would be considered to have converted to Christianity. The issue of genuine or non-genuine religious belief can be a difficult one to discern because religious identity is a personal issue. The first named applicant had previously claimed that she had started the process to become Christian and would be persecuted if/when she arrived back in Iran (folio 241). During the hearing however she did not advance a claim for having converted to Christianity and stated that she was still Mandean. She simply claimed that it would be dangerous for her because her daughter had converted but she couldn’t say why this would be the case.
I do not accept that the second-named applicant has genuinely converted to Christianity. It is reasonable to believe that people who are interested in issues of faith would be pro-active in finding out about the precepts of the religious faith(s) they have an interest in. She has not provided any evidence of a search for faith (apart from allegedly having a Buddhist and Hindu friend) and, after having allegedly suffered at the hands of people from an organised religious faith such as Islam for her own Mandean faith, it appears anomalous that she would very quickly after arriving in Australia seek solace in yet another religious identity.

There is no indication that she has made any effort to speak with any other faith leaders such as priests, rabbis or monks or academics who may have been able to explain more about their faiths other than her perception that ‘Hindus had a lot of gods’ and Buddhists ‘just prayed to statues’. A few months after arriving in Australia her sister took her to a church and she was baptised in October 2014.
Despite this, she didn’t apply for protection until December 2015. I do not accept that she only did this because she found out that Christians were persecuted in Iran after speaking to some of her friends. It lacks credibility that she would have been unaware of this given her sister had also previously converted to Christianity and the pastor who came as a witness had previously written letters and/or acted for Iranian converts who had applied for asylum.
I am more convinced that the delay in her applying for protection was to wait for her mother to arrive in Australia. They both applied for protection at the same time even though the second-named applicant had allegedly been a Christian for over a year by that stage. That does not indicate any great fear of serious harm as a result of a conversion and hence calls into question the genuineness of her conversion.
I have taken into account the evidence from the witnesses and while I believe they were giving an honest opinion I lend it little weight. There are too many inconsistencies in the applicants’ overall claims, a lack of an inquisitive spiritual journey and a quite deliberate delay in submitting the protection visa application that means I am not satisfied that her conversion is genuine or that it would be considered genuine by others.
I also note that Pastor [F] in January 2017 wrote (folio 105) that he was qualified based on his experience and qualifications to state that the first named applicant displayed a genuine interest in Christianity and in being baptised. In October 2019 however, she stated at hearing that she was not Christian and remained Mandean – this raises questions about the accuracy of the pastor’s beliefs regarding a person’s religious views.
I have also taken into account a statutory declaration from the father of the second-named applicant’s brother-in-law attesting to the genuineness of the second-named applicant’s Christian belief and that both applicants had been shunned by the Mandean community in Australia and Iran. I do not however give it much weight. The declaration states that the first-named applicant stopped attending church in late 2016 so that her two sons wouldn’t lose the protection of the Mandean community in Iran.
Yet this is inconsistent with the church pastor’s January 2017 letter that states the second-named applicant was attending the church and studying the bible. I also find that it lacks credibility that the author’s children converted to Christianity but that his wife thought it was a passing phase and didn’t disown them until five years later. Five years is an extraordinarily long ‘passing phase’ and I note that the ostracism only came into place after the applicants submitted their protection claims which appears to be suspiciously convenient timing for a family/community rift to occur.
I have also taken into account a statement and statutory declaration by Mr [G] and some country information provided (no folio). The country information is largely general in nature and deals mainly with Iraqi Mandeans rather than Iranian. There is information from a Mandean text book indicating that those who convert from the faith may be killed, but no evidence has been presented that such killings have occurred in any era.
Because I do not accept that the second-named applicant’s conversion to Christianity has been or would be perceived to be genuine, it follows that there hasn’t been a rift within the family and her [siblings] have had to disown her or that there has been a broader split with the community. It also follows that the first-named applicant won’t be persecuted because she is the mother of a Christian convert.
I also have concerns about the ‘flexibility’ that the applicants and their family appear to have towards religious identity and that they may be ‘gaming’ the system to achieve a favourable migration outcome. As part of the protection visa application, the applicants provided photographic evidence showing [Ms H] and [Ms I]’s son [Master J] being baptised into the Mandean faith at [Suburb] in 2009 (folio 6).
Yet when the Tribunal examined a previous (2008) visitor’s visa application submitted on behalf of the first-named applicant and her husband, the reason was to attend the Christian baptism of their grandchild [Master J]. A supporting letter from the Holy Apostolic Church Catholic Assyrian Church of the East dated 15 July 2008 confirming [Master J]’s christening on 5 October 2008 was presented as part of the application.
This desire to baptise [Master J] in 2008 is also inconsistent with the statutory declaration (see para 85) that indicates his children and grandchildren (including [Master J]) became Christian in 2011. If there was a genuine desire to baptise [Master J] in 2008 it also calls into question why [Ms K] ([Master J]’s grandmother) would think their 2011 conversion was just a passing phase. I also note that neither of the applicants nor any witness (religious or otherwise) made any mention of the 2008 baptism registration of [Master J] into the Assyrian Catholic church which raises concerns as to its genuineness.
Concerns were put to the applicant regarding this information via 424A letter. I do not accept that the baptism was delayed because the (now deceased) husband of the first-named applicant objected to it and in order to avoid family dissent they agreed to a Mandean baptism instead. Not only was this issue never raised until the information was discovered by the Tribunal and put to the applicants in a 424A letter, it is convenient that the person who raised their objections is now dead.
Further, it lacks credibility that the first-named applicant and her husband would be sponsored to come to Australia to attend their grandson’s Christian baptism if the first-named applicant’s husband objected to it so strongly. It also doesn’t say much about the strength of [Master J]’s parents’ faith that (regardless of the first-named applicant’s husband’s feelings) they would not proceed with a baptism even though [Master J]’s maternal grandparents weren’t going to be in the country at the time.
The response to the 424A letter also included a baptism certificate for [Master J] that said he was baptised [in] April 2012. This is inconsistent with the statutory declaration (para 85) and also statements provided by the first-named applicants’ daughter and husband that says they and the children (including [Master J]) became Christian in 2011 (attachments 31, 32). They also said that they began attending the [Church] once a month – the pastor of the same church also stated in a December 2015 letter (attachment 27) that the first-named applicants’ daughter and husband and their children had been members of his church for some years.
If this was the case then it lacks credibility that [Master J] would be baptised in an Assyrian Catholic church in April 2012. The response to the 424A letter said that this was because [Master J]’s parents were attending church there at the time. It is strange that neither they nor any of their witnesses (religious or otherwise) mentioned their relationship with the Assyrian catholic church as part of their faith journey, nor why neither they nor any of their other children were baptised into that faith.
I have already noted that I do not accept that the applicants will be ostracised from the Mandean community for a real or perceived conversion to Christianity. This is reinforced by the fact that the applicant’s family sought to baptise one of their grandchildren/nephews in 2008 without any communal repercussions.
Other Issues
I do not accept that Muslim doctors do not treat Mandeans because they consider them unclean or that Mandean cemeteries are dug up and used by Muslims, that Mandean places of worship are attacked, fruit and stones are thrown at them during their baptism ceremonies or their houses are entered to make sure they’re covered, or that blood money is a quarter of that paid to Muslims . No evidence in support of such claims was provided, nor does the Tribunal have access to any such information.
I also do not accept that her husband had to put up the deed of his house and received it back after paying a bribe. It wasn’t exactly clear what the purpose was of him doing this, but no such claim had been made prior to the hearing. I do not accept that she had been too scared to raise the issue previously as it is inconsistent that she would be too scared to raise an issue of a bribe even though she had raised far more serious issues such as an alleged double-murder coverup, a police assault, rape threats and a drive-by shooting.
The adviser has made a range of claims in his submissions that lack basic evidentiary support. He had previously written to the delegate in January 2017 criticising her decision stating that her decision ‘…is incorrect and you have committed jurisdictional error on several occasions…’. He claimed that the delegate ‘…(did) not have much knowledge on cross cultural awareness.’ yet at the hearing he referred to Iran as a communist Islamic republic before it was pointed out to him by the member that it was most certainly not communist.

100. The quality of his submissions must be seen in this light. I place little weight on these submissions given they are large in volume but do nothing to address the individual circumstances that the applicants claim to have found themselves in. I place more weight on the inconsistencies and implausibilities that I have outlined in this finding than I do on the voluminous information provided by the applicants’ adviser.
Failed Asylum Seeker
101. Although they made no claim regarding this, I will address the issue for completeness’ sake. To begin with I am not satisfied that the applicants will be involuntarily returned to Iran with or without a passport 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.[5]
[5] Given that the Iranian government has indicated that it will not accept involuntary returnees, the only way that the applicant will return to Iran in the reasonably foreseeable future is as a voluntary returnee. I do not accept that the applicant will be harmed on voluntary return to Iran 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’[6] and that Iranian officials have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims.[7]
[6] DFAT Country Information – Iran, 7 June 2018, p 49
[7] Ibid
103. As the applicants haven’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 applicants do not have a well-founded fear of persecution for any 5(J) reason either now or in the reasonably foreseeable future.
Complementary Protection
104. I do not accept that the applicants have genuinely converted to Christianity, or would seek to practise or promote Christianity in Iran, or that anyone in Iran is or was aware, or is likely to become aware that they have any interest in Christianity or that the Mandean community believes them to have genuinely converted to Christianity.
105. I also do not accept that the applicants family members were raped and burnt to death in Iran, or that relatives’ fiances were made to convert to Islam and marry Muslims and the would-be grooms were beaten, threats were made to rape their female members of the family or that shots were fired at their house, that female Mandeans could only walk escorted for fear of being raped, were required to give sexual favours in order to get a job or that their son was detained by police until a bribe was paid.
106. 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.
107. 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
108. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
109. The Tribunal affirms the decision not to grant the applicants protection visas.
Rodger Shanahan
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.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)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.
(2)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.
(3)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 the 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.

(4)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.
(5)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.
(6)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
(1)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.
(2)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.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(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 5265

17 November 2019

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction