1707570 (Refugee)

1707570 (Refugee) [2018] AATA 3707 (13 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1707570
COUNTRY OF REFERENCE:                  Iran
MEMBER:Michael Hawkins
DATE:13 August 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 13 August 2018 at 6:37am

CATCHWORDS

REFUGEE – Protection visa – Iran – Nationality – Stateless – Ethnicity – Faili Kurd – Religion – Non-practicing Shia Muslim – Christian convert – Secondary applicant – Woman in the west – Imputed political opinion – Critical of Iranian government – Particular social group – Unregistered married couple – Women with children born out of wedlock – Illegal entrant – Failed asylum seeker – Birth certificate from a western country – Undocumented child – Fear of arrest and interrogation – Subjected to mistreatment by Sepah – Extortion and harassment by Basij – Attempted kidnap of son – Fear of corporal punishment – Restricted access to health and education – Original claims recanted – New protection claims – Applicants disposed of identity documents – Circumstances preventing the grant of the visa – Witness credibility – Inconsistent information – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 91WA, 46A, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB (2013) 210 FCR 505
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
SZATV v MIAC (2007) 233 CLR 18

SZFDV v MIAC (2007) 233 CLR 51

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 9 March 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 30 March 2016. The delegate refused to grant the visas on the basis that the applicants are not refugees as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to their receiving country, there was a real risk they would suffer significant harm.

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.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Relocation

Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

State protection

Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.

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.

CLAIMS AND EVIDENCE

The issue in this case is whether the applicants meet the refugee criterion, and if not, whether they are entitled to complementary protection. For the following reasons, the Tribunal affirms the decision not to grant the applicants protection visas.

Background (as claimed in Protection Visa Application Form:

The first-named applicant (“applicant” or “husband”) is [age] year old man from the city of Ilam, province of Elam, Iran.
The applicant is married and has [a number of] children.
The applicant is of no religious faith, is of Kordish ethnicity and speaks Persian, Kordish and English.
The applicant states his parents and [sisters] live in Iran.
The applicant states he is Stateless.
The applicant attended and completed Primary, Secondary and High School in Iran, from [year] to [year] inclusive.
Since completing school the applicant has worked as [an occupation] until 2001, and thereafter as [another occupation].
The second-named applicant (“second applicant” or “wife”) is [age] year old woman from the [province] of Elam, Iran.
The second applicant is married to the applicant and has [number of] children.
The second applicant is of no religious faith, is of Kordish ethnicity and speaks Persian, Kordish and English.
The second applicant states her parents live in Iraq and [sisters] live in Iran.
The second applicant states she is Stateless.
The second applicant attended and completed Primary, Secondary and High School in Iran, from [year] to [year] inclusive.
Since completing school the second applicant has never worked and states her occupation as home duties.
The third-named applicant (“third applicant” or “child”) is [age] year old boy and is the son of the applicant and second applicant.
The third applicant states he is stateless.
The fourth-named applicant (“fourth applicant” or “child”) is [age] year old boy and is the son of the applicant and second applicant.
The fourth applicant states he is stateless.

Background (Immigration)

Applicant, Second applicant and Third applicant.

[In] March 2011, the applicant arrived on [Australian territory] on a vessel code-named “[name]”. He was accompanied by his spouse and oldest child. The applicant and his family members were detained under s 189 of the Act.
On 16 March 2011, the applicant took part in an Entry Interview.
On 14 May 2011, the applicant submitted a claim for Protection Obligation Evaluation (POE) outlining his circumstances in Iran.
On 17 May 2011, the applicant was interviewed in relation to his protection claims.
On 7 June 2011, the applicant (and his family members) was refused protection visas.
On 26 July 2012, the decision was affirmed by the Independent Protection Assessment.
On 11 September 2012, the applicant requested the Minister to intervene pursuant to s.46A(2) of the Act.
On 22 January 2013, the Minister refused to intervene.
On 7 February 2013, the applicants were referred for removal from Australia.
On 31 January 2014, the applicant was in detention and his personal details contained on data was subject to a privacy breach through the department's website in February 2014.
On 6 June 2016, the Minister decided to remove the bar at s46A preventing the applicant from lodging a further application.
On 26 February 2016, the applicant lodged a valid application for a Temporary Protection (XD 785) visa.
On 17 March 2016 the applicant lodged a letter with the Department retracting certain claims and made new claims for protection.
On 13 December 2016, the applicant was interviewed by the delegate in relation to his claims for protection.

Fourth applicant

The fourth applicant was born in Australia.
On 9 July 2013 the fourth applicant lodged a Protection (Class XA) Visa, claiming to be a stateless Faili Kurd similar to the status of his parents.
On 19 August 2013 the application was refused.
On 10 March 2014 the decision was remitted by the Refugee Review Tribunal.
On 13 March 2015 the fourth applicant lodged an application for Australia citizenship.
On 15 January 2016, the fourth applicant was notified that his PVA was invalid by reason of the legislative changes that came into effect on 16 December 2014.
On 29 June 2016 the fourth applicant’s application for citizenship was refused as he was found to be an Iranian citizen.
On 30 March 2016 the fourth applicant was included in a valid application for a Temporary Protection (XD 785) visa made by the applicant.

Claims:

Claims mentioned at Arrival Entry Interview and as stated for POD
Applicant:

He was born in [a] village, Ilam, Iran. He is Faili Kurd and Shia Muslim.
Both his parents were born in Iraq. They told him that they moved to Iran in 1970 or 1971 but he is not sure of the exact reason. He thinks they may have been expelled under Saddam Hussein's regime.
He never had a white card or any type of identification in Iran; he never applied for one because he was scared he would be deported if he did.
He completed high school in Iran which was extremely costly because he was undocumented and he was not given a certificate because he is a Faili Kurd.
He is unable to live in Iran. He is stateless and unable to legalise his situation, he has no documents, cannot obtain a drivers licence and is not entitled to medical insurance. His marriage is not recognised by authorities and therefore he could not register his son's birth because his wife would be seen as having a child out of wedlock, which is punishable under Sharia law.
If he returns to Iran he will be arrested at the airport and imprisoned because he left on a false passport. He will probably be killed.
He will be persecuted for reasons of his race, for being seen as opposing the Iranian government for seeking asylum in a western country, and for an imputed political opinion.
He will not be able to find suitable employment because he is a Faili Kurd and therefore will not be able to earn an income for his family.

Second applicant:

Her parents were born in Iraq and in 1980 they were expelled under Saddam Hussein's regime and went to Iran. She was born in Iran.
She has never had the opportunity to walk in the streets or go to the park with her son and husband as normal couples do because if they are stopped by the Basij they will be asked for identification and because they do not have any and are Faili Kurds they will be arrested and detained.
In the summer of 2010 when they were travelling to her uncle's village they were stopped by the Basij. As soon as the Basij realised they were Faili Kurds they were dragged from the taxi. They had to pay a bribe to be left alone. The Basij took every cent they had but they were let go.
She never had a white card or any type of identification in Iran; she never applied for one because she was scared she would be deported if she did.
She completed high school in Iran which was extremely costly because she was undocumented and she was not given a certificate because she is a Faili Kurd.
She is unable to live in Iran. She is stateless and unable to legalise her situation, she has no documents and is not entitled to medical insurance. Her marriage is not recognised by authorities and therefore she could not register her son's birth because she would be seen as having a child out of wedlock, which is punishable under Sharia law.
If she returns to Iran she will be arrested at the airport and imprisoned because she left on a false passport. She will probably be killed.
She will be persecuted for reasons of her race, for being seen as opposing the Iranian government, for seeking asylum in a western country, and for an imputed political opinion.
She will not be able to find suitable employment because she is a Faili Kurd and therefore will not be able to earn an income for her family.

Claims raised in Protection Visa Application
Applicant:

He is a Shia Muslim and a Faili Kurd. He is not entitled to any citizenship and nor does he have the right of residence in any country. He is stateless and undocumented.
He and his [sisters] were born in [a village], Iran. His parents were born in Iraq and moved to Iran in around 1970 or 1971, as they were probably expelled by Saddam Hussein's regime.
He and his family, consisting of [number] members, lived in a small two-room house made of rocks and stones in [a village]. They later moved to [the city] where they lived in a two-room house again as they could not afford anything larger.
Being Faili Kurds, they were not allowed to work. They were forced to work illegally. As a result, work was inconsistent and the salary was a third of what an Iranian citizen would earn doing the same work.
At one point, his father did have a green card; however, at the time of renewal, his father was refused another card.
He has never had a white card or any other form of identification in Iran. He never applied for any identification as he feared that he would be deported, if he did so.
He completed his primary and high school education in Iran. His parents had to pay for his education, which was extremely costly and although he completed his [schooling], the authorities would not issue him with a certificate because he is a Faili Kurd.
His wife is his cousin. They were married in 2001 by a religious ceremony and their [son] was born in [year].
His son was born in a private hospital which was extremely expensive. Being Faili Kurds they were not accepted in the public hospital system and they did not have medical insurance.
Being stateless and undocumented, he was unable to legalize his situation in Iran. He is not entitled to any medical insurance and is not able to further his education. He cannot obtain a driver's license nor marry legally.
He is a moderately religious man who likes his origins and respects tradition. He however is able to wear his traditional clothes only at home. This is because it attracts the attention of the Basij and he prefers to avoid issues with them.
He could not register the birth of his son. In addition, his marriage is not recognised by the Iranian authorities. Hence his wife would be seen as having had a child out of wedlock and this is punishable under Sharia Law with lashes or death by stoning.

Second applicant:

She is a Shia Muslim and a Faili Kurd. She is not entitled to any citizenship and she does not have the right of residence in any country. She is stateless and undocumented.
She and her [sisters] were born in Ilam, Iran. Her parents were born in Iraq and were expelled to Iran in 1980, where they lived in a refugee camp for about two months.
She and her family, consisting of five members, lived in a small two-room house made of rocks and [stones]. They later moved.
Her parents were green card holders but never obtained a white card once their green cards were cancelled by the Iranian authorities.
She never applied for a white card because it had no other value other than to identify the holder as an Iraqi refugee.
She completed her primary and high school education in Iran. Her parents had to pay for her education, which was extremely costly and although she completed her [schooling], the authorities would not issue her with a certificate because she is a Faili Kurd.
Her husband is her cousin. They were married in 2001 by a religious ceremony and their [son] was born in [year]. Because her marriage was unofficial in Iran, she could not register it. In addition, being a Faili Kurd, she could not register the birth of her son.
As her marriage is not recognised in Iran, she lives in fear, as she knows what happens to women in Iran who have children out of wedlock.
Her son was born in a private hospital which was extremely expensive. Being Faili Kurds they were not accepted in the public hospital system and they did not have any medical insurance.

Being stateless and undocumented, she was unable to legalize her situation in Iran. She is not entitled to any medical insurance and is not able to further her education. She cannot obtain a driver's license nor marry legally.
Her husband is unable to secure adequate work to provide for their family because it is unlawful for Faili Kurds to work in Iran. Her husband works illegally and as his employers know this, they only pay him a third of the wage they would normally pay an Iranian.
She has never had the opportunity to walk in the streets or go to the park with her husband and son, as normal couples do, because if the Basij happen to stop them, they risk being arrested and detained or even worse, as has happened to many others.
In the summer of 2010, she and her family had to travel to another village for her uncle's funeral. On the way, they were stopped by the Basij. When the Basij realized that they were Faili Kurds, they were dragged out of their taxi and were forced to pay a bribe in order to be released.
She wants her son to learn about his origins but teaching of this is not permitted in Iranian schools. The study of the Faili Kurd language is not allowed and everything about a Faili Kurd is unlawful in Iran. She firmly believes that this is an effort by the Iranian authorities to eradicate Faili Kurds from Iran in the form of ethnic cleansing.
If she returns to Iran, she will be arrested at the airport and detained, because she left Iran on a false passport. She will be imprisoned and will probably be killed and no one will know.
In Iran, she will be persecuted because of her Faili Kurdish race and because she will be seen as opposing the Iranian government because she sought asylum in a western country.
She will be persecuted by the Iranian authorities for not allowing her husband to work in an employment that will provide an appropriate income, because he is a Faili Kurd.
She is unable to relocate to any other part of Iran or Iraq, as no matter where she goes, she will still be an undocumented stateless Faili Kurd.

Claims raised in supplementary written statement dated 17 March 2016

At the time of making his application to the Department of Immigration and Border Protection he did not disclose all information relevant to his application.
When he was in [Country 1], the people smugglers who brought him to Australia told him that he must not provide any information about his identity documents or his family to the Australian Government. They told him that the less information he provides the less questions he will be asked. They also told him if he gives this information to the Australian Government, he will be returned to Iran.
He would like to tell this information to the Department of Immigration and Border Protection because he understands it is important to tell all information. He understands that the information the people smugglers provided was wrong and harmful to his application.
He has attached to this statement true and certified copy of his Iranian Identity Cards and also his wife's Identity Cards.
The original documents cannot be provided because they are in Iran with his mother.
The Identity documents show he is a citizen of Iran and not stateless.
The details of travel from Iran to [Country 1] as per supplementary statement (points 7— 15).
He has an Australian born child. He has [number of] sisters. He only has told the Department of Immigration and Border (DIBP) about [a few] sisters. He did not tell the DIBP about his other [sisters] because the people smugglers told him he must not tell the DIBP or they will ask him many questions. His other [sisters] names are;[names].
All of his sisters are Iranian citizens.
He has [brothers-in-law], his wife's brothers, both live in [Australia]. He did not tell the DIBP their names were [names].
He has other family in Australia. [Some] of his wife’s uncles are in Australia.[Sentence deleted]. They are [citizens] of Iran.
He has [brothers]. He did not tell the DIBP about his brothers in his application. His brother's names are; [names].
His brother [named] is missing since around [date in] September 2007.
His brother went missing after he killed a member of Basij. He was in a gathering of people and Basij were hitting the people. They took his brother as he tried to protect himself. Since that day they have not seen him or heard from him.

Claims contained in response dated 31 October 2016 to natural justice letter sent on 27 September 2016:

If they were to return to Iran, as soon as they are returned, his wife and he will be accused of promoting false propaganda against the government because they sought asylum in another country. They would also be accused of passing on information to a foreign power and spying.
This accusation would mean they would be interrogated and their daily lives monitored. It is likely they would be imprisoned.
His wife and he have not raised their children with any religious belief or education. Since living in Australia, their children have enjoyed the freedom of not having any religious education and if they were to return to Iran, their lack of knowledge would be very apparent.
According to the current Islamic Iranian government, by not raising their children with Islamic education, they are interfering with the law and with God. This is punishable by hanging (the Iranian term is Moharebeh).
Because of their lack of religion and having lived in the “west” for six years, if they were to return, their family would be labelled as “Mofsed fel arz”, literal translation is “bad from head to toe”, with a strong emphasis on disrespect towards God. This is punishable by hanging.
If their family was to return to Iran, their children would be taken away, and if not killed, would be raised by the religious state, without the prospect of seeing their parents ever again.
Approximately [number] months ago he (the applicant) posted criticisms of the current Iranian government on [social media]. This action caused the Basij to visit his family members and question them about his whereabouts and why he had posted those [views]. His wife's family were also visited by the Basij and questioned on her whereabouts. Although these actions were done here in Australia and he has since deactivated his [account], if he was to return to Iran, these actions would be persecuted and punished.
He would be accused of insulting the sanctities of the Government and charged with "enmity against God" which is punishable by imprisonment.
Due to their ethnicity of Kurd, it is likely that the Iranian Government would also accuse them of having affiliation with a Kurdish political group. They would be accused of assembly and collusion against national security if they were seen with other Kurds or due to existing [social media] posts they have made since being here in Australia. This would result in imprisonment and interrogation.
In addition to the immediate likelihood of persecution if they returned, their family would face the same discrimination and disadvantage due to their ethnicity as a minority (Kurds) that caused them to leave in the first place. After living overseas for six years, this discrimination would be far greater and they would be treated as outsiders.
Their children, who only speak Kurdish and English, would face restrictions to their education and would face discrimination in the education system after being raised in Australia for six years and speaking English very well.
They will continue to have the restricted employment opportunities they faced prior to leaving Iran, due to their ethnicity, and these will be greater as employers would be wary to hire them as they would fear repercussions from the Government and monitoring from the Government
The second applicant will have very limited employment opportunities being both a woman and Kurd.
The second applicant will face increased scrutiny by the Basij and Gasht-e Ershad as a woman who lived in the "west" for several years.
All aspects of their daily lives will be significantly monitored — their internet and telephone use, their location and social lives — until the Government finds any excuse to accuse and persecute them on the grounds listed above.
Their youngest son was born in Australia and will be considered 'undocumented if he was returned to Iran. This will mean he is ineligible to access a range of services such as health and education, and would face uncertainty for his entire life in Iran.

Claims summarised at interview with delegate:

The applicant claims he will be persecuted as a non-practicing Muslim in Iran.
The applicant claims he has an interest in Christianity.
The applicant claims that his children will be taken away, and if not killed, would be raised by the religious state.
The applicant claims that he has made [social media] entries critical of the Iranian Government and that he has “liked” and “shared” various postings. He claims that he will be persecuted by reason of his imputed political opinion.
The applicant claims that he will be persecuted because of his Kurdish ethnicity.
The applicant claims he will be persecuted as a consequence of the data breach on 31 January 2014. He claims that there is a danger in returning to Iran given that the Iranian government may have accessed the website at the time.
The applicant claims he will be persecuted as a failed asylum seeker.
The applicant claims he will be persecuted as a failed asylum seeker from a western country.
The second applicant has made identical claims to the applicant but with the addition that she fears persecution as a Kurdish woman.
The third and fourth applicants claim through their parents as members of a family group.

Claims raised in submission dated 16 April 2018

Applicant

I am a Faili Kurd and was working and living in Ilam City, Ilam, Iran, until 2007. As a Faili Kurd, I experienced general discrimination and persecution on a daily basis. I was not permitted to express my Faill heritage and Faili Kurds are treated as second class citizens in Ilam.
In 2007, I began to receive more targeted persecution. This first occurred when I was arrested by plain clothed police officers after my friend cursed the leader of the Islamic Republic. I was intensely questioned and after one day, I was freed. My friend was with me at the time of the arrest and he was also arrested. A few days after the arrest, my friend's dead body was returned to his family.
I was required to report to the Sepah (Iranian Revolutionary Guard Corps) [for number] months after my release.
Shortly after my arrest, my brother, [was] involved in a situation where he was attacked and killed his attacker during the fight. This attacker was a neighbour. The neighbour was trying to rape my brother and [my brother] fought him off and killed him In the fight.
[My brother] was arrested for [months] and after trial was released as the neighbour had history of criminal activity, including raping other men. When my brother was, he fled the country as the attacker's family had threatened to kill him. I do not know where he is.
In ilam City the practice of raping vulnerable and Faili men was common. After the rape, the rapist would seek money from the victim's family and threaten to tell everyone about the rape if the money was not paid. I believe that this was the plan for my brother and our family.
The neighbour who attacked my brother was heavily protected by the Sepah as his father was a plain shirt Sepah.
After the incident with my brother, my family moved immediately to [City 2] for our safety as we were worried the rapist's family would attack our family. Because the rapist's father is in a high position in the Sepah, we were very worried about what charges the Sepah might try to put on me, and worried about the family having revenge for giving their family a bad name.
Within the first six months of moving to [City 2], we received verbal threats from the family and Sepah and someone attempted to abduct our son from school.
I do not know exactly who tried to kidnap my son, but plain clothes people pretending to be my family came to the school to ask for my [son]. After this, we moved my son from this school.
12 months after I moved to [City 2], my [beehives] were destroyed by the government with no declaration or reasoning provided. Men arrived at my house and did not identify themselves but were wearing uniforms, and said that all my hives were sick and needed to be destroyed.
Only my beehives and the beehives of my father and brother were destroyed. Our [City 2] neighbours had hives but these were not destroyed which is why I believe it was a targeted attack on me and [our] family.
Before they were destroyed, I had [a number of] beehives as you need many beehives in Western Iran to make honey. After our beehives were destroyed, my father bought new ones from the neighbourhood and gave me a few to start again, but it was not sufficient to make an income. It would have taken many years to build up to [the same number of] beehives again.
When I fled for [City 2], I left behind my house and land and our family business in Ilam city. This land has now been taken over by the family of my brother's attacker. I still hold the title for this land but can no longer access it as it has been seized by the Sepah and that family.
After the loss of my house and business in Ilam city and loss of my beehives in [City 2], plus the constant threat and worry of the Sepah, and fear for our son, we did not feel that we had anywhere else to go.
We fled to [City 2] because it has lots of Faili Kurds and our extended family that we thought could protect us. But this did not happen, we were still worried that the family's attacker and Sepah would continue to mistreat our family.
I did not consider moving anywhere else in Iran was an option as we are Faili Kurd and my ethnicity is very important to my identity.
Second applicant
I am a Faili Kurd and was living in Ilam City, Ilam, Iran, until 2007. As a Fa ill Kurd, I experienced general discrimination and persecution on a daily basis. I was not permitted to express my Faili heritage and was in constant fear of the Basij who are additionally judgemental of Kurdish women.
In addition to the information provided above, the attempted kidnapping of my oldest son has had dramatic impact on my mental health. Immediately after the event, I began to have nightmares and these still occur but not as frequently as when I was in Iran.
I am fearful of my youngest son being taken from me and do not like him being from sight.

Evidence:

The Tribunal has before it a range of material, including, relevantly:
·The applicant’s protection visa application form completed and signed on 11 February 2016, lodged on 30 March 2016 (“visa application”);
·Submissions and letters referenced above;
·The applicant’s identity documents being certified copies of a birth certificates;
·The protection visa decision record (‘delegate’s decision record’) of 9 March 2017;
·The review application form which included a copy of the delegate’s decision record;
·Country information from the applicant’s submissions and other sources. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on Iran, published on 7 June 2018.
·Submission by representative provided to the Tribunal at the hearing which included:
oCharacter reference from Pastor [A] dated [in] June 2017
oCertificate of Baptism
oStatement of applicant addressing decision of delegate dated 16 April 2018;
·Post-hearing submission from applicants dated 4 July 2018

Country of reference / receiving country

The applicants claim to be Iranian nationals. Based on the copy of their identity documents provided to the Department of Immigration and Border Security (the Department) by the applicants, the Tribunal finds that Iran is their country of nationality and also their receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicants do not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicants are not excluded from Australia’s protection obligations under s36(3).

Hearing:

The applicants attended the hearing on 16 April 2018. They were represented. The hearing was assisted by an interpreter in the Kurdish Feyli and English languages.
The applicants handed up a detailed submission at the hearing, including a character reference from Pastor [A] dated [in] June 2017, Certificate of Baptism and a Statement of applicant addressing the decision of the delegate dated 16 April 2018.
The Tribunal discussed the documentation submitted at the hearing, noting how extensive it was and advising that it may need to take direction from the representative during the hearing as to its contents.
The Tribunal confirmed with the applicant that the protection visa application form was completed by the applicant himself, was in his own handwriting, and was signed by him. The applicant confirmed that it was prepared by his wife and they were assisted by lawyers in its preparation. He confirmed that they signed the forms.
The Tribunal noted the evolving nature of the applicants’ claims and that some claims had been recanted and new claims made.
The Tribunal read to the applicant his claims as summarised by the delegate in paragraphs 131 - 140. He confirmed that the claims were accurate.
The Tribunal queried whether the sons would be claiming persecution by reason of having limited access to education and health services. The representative confirmed they would be. She said the fourth applicant would also be claiming that he will be persecuted by reason of having a birth certificate from a western country.
The applicant also added that the third applicant might be seized or arrested and interrogated when he returns to Iran and taken for military action and brainwashed into going to war. He said his son will be treated as an adult, and not as he is treated in Australia, especially as one not believing in religion.
The applicant also stated that they have converted to Christianity. The Tribunal noted the Baptism Certificate in the submission. The applicant stated that they started specifically as Christians one year ago.
The Tribunal discussed with the applicants the issue of credibility. It noted particularly the protection visa application and the claims therein dated 26 February 2016 and then the letter from the applicants of 17 March 2016 which effectively stated that they had all previously lied to the department. The Tribunal asked what it was, or what happened, within that three week period, that made them change their minds to want to now tell the truth. The applicant replied that the people smugglers told them to tell that story. They told them to hide information from the department.
The Tribunal asked again why it was that they changed their stories. The applicant stated that they stayed in [Country 1] for 110 days and that they must get rid of their ID’s. He said the people smugglers told them not to give the Government any information otherwise they would be sent back to Iran.
The Tribunal asked again why they changed their minds and decided to now tell the truth. The applicant said they were detained by [Country 1] police for about twenty days.
The Tribunal asked them again why it was that between 26 February and 17 March 2016 they changed their stories. The applicant responded that he had two sisters in Australia and they had claimed they were stateless. One sister changed her mind and told the department she was from Iran. And then the other sister got caught through data matching. He said that they decided to tell the truth then as he was worried that he might be found out too.
The wife then stated that the department called them in as one of her brothers, who had gone back to Iran, got caught by Immigration when he returned to Australia. The department called them in to take part in an interview and data matching of the wife’s brother revealed them.

The Tribunal thanked them for that information.
The representative stated that the applicant was not privy to this – he didn’t know what was going on within his wife’s family. The Tribunal noted that the applicant did participate in the interview and must have been aware of what was going on.
The Tribunal reiterated to the applicants the need for them to tell the truth. They must give the Tribunal an honest account of their recollection of events as they actually happened, and not tell the Tribunal what it is that they think they told other people in other interviews or tell the Tribunal what it thinks it needs to know. The applicants said they understood. The Tribunal said that their credibility was at issue and it had taken five times to extract an answer to the one question.
The Tribunal discussed with the applicants how many relatives they had in Australia.
The applicant stated that his younger sister came to Australia two to three months ahead of him. His other sister came in 2013.
The wife said she had [brothers] in Australia. [Sentences deleted]. [One brother] claimed he was stateless and claimed harassment from his father over religious issues.
The second applicant stated that the people smugglers told them to say they were stateless. The Tribunal noted that the wife’s [brothers] had also made similar claims and that was also their plan.
The Tribunal discussed with the applicants their journey to Australia. It clarified that they had made no attempt to secure legal visas. The applicant confirmed that was the case and said that he didn’t know he could get a legal visa to come to Australia. He said the smuggling operation began in Iran. Some friends in Tehran put them in contact with a people smuggler. He told them that if they paid him money, he could get them to Australia. Two weeks after meeting the smuggler they left for [Country 1].
The Tribunal asked how much they paid for this service. He said it was [amount]. Asked which currency, US dollars or local currency, he said he couldn’t remember. After taking some time, he then said he thought it was in US dollars.
The Tribunal clarified with the applicant that he knew he was dealing with a smuggler. He confirmed he knew that. It clarified that he knew that what he was doing was illegal. He said he knew that.
The Tribunal asked did they leave Iran with their own passports, and were they real, legitimate passports. The applicant confirmed they were real passports and that they had no problems getting through immigration.
He confirmed they had no problems in [another country] either when they transited through.
The applicant said that when they arrived in [Country 1] they had to pay a bribe. The passport officer told them that he knew they were headed to Australia and that they had to pay him money to say nothing. They paid him. The applicant said they went through the airport, bought a SIM card, and then rang a number and they were then picked up.
The applicant said they were taken to [City 3]. They stayed in a villa for two weeks. There were about a hundred other Kurds with them, but they didn’t know them.
From there, they drove for 32 hours to get to [City 4]. He said about 110 of them were kept in a small room, not much bigger than this hearing room (indicating Hearing [Room]). He said they stayed there for two weeks.
After that, they were put onto small boats for two or three hours and then onto a bigger boat. After two or three hours, the engine stopped. The applicant said they were scared. They had stopped near an island, so the island people came out and took them back to the island. The local police arrested them and put them into a “zoo-like” facility. The locals came and visited them and looked at them like they were zoo animals. The police returned them to [City 4].
In [City 4], the police fingerprinted them, photographed them and took their passports to take copies. The police told them they would bring their passports back, but the applicant said they didn’t return them. He said they were in prison for twenty one days. He said that some of the people decided to go back to Iran. However, he said that he and his family decided to escape from prison and got on another boat back to [City 3]. They went back to the smuggler.
The applicant said they waited another one to two months again. They were told to stay inside as they had no papers. From there, they went back to [City 4] and were there for another two weeks. Then they went by car through a jungle to catch another boat. But as they drew near the beach, they found the place surrounded by policemen. They were in a convoy of ten vans, and theirs was the first van. They said they managed to escape but the other nine van loads were arrested. They ran and hid.
Eventually they found some Afghans on cycles and they took them back to [City 3]. From there, they went on another boat. After [number] days at sea, the boat engine stopped. The Australian Navy picked them up. They spent [number] days at sea in the navy boat then landed [on Australian territory].
The Tribunal said that it had some concerns with that recount of events. It referred to and discussed with the applicant’s their entry interviews noting that at entry interview, they told a very different story and that accordingly, the Tribunal might have difficulty believing their current recounts of events. The applicant told a very compacted version wherein they caught a taxi from the airport, they were in the taxi for 2 – 3 hours and it was night. They didn’t know where they were. They were taken in a van for ten minutes to a house. There were other people there but they didn’t speak to them. They were given a room in the house. They stayed there for six or seven days. They handed over their passports there. Then they were collected at 10pm by three people in a van for 40 minutes to an hour and taken to a bus. They drove for 24 hours in the bus to a jungle. Then they walked through the jungle on a path to the shore. They took a small boat to a larger boat. They were on the boat for [number] days when the pump stopped and they were about to sink before being picked up by the Australian navy.
The Tribunal noted that the second applicant’s story was virtually the same, allowing for different estimates of time. The Tribunal also noted that the applicant and second applicant were interviewed separately.
The Tribunal pointed out that this account was quite different from the evidence provided earlier. The Tribunal indicated to the applicant’s that this might suggest that their evidence was unreliable. The applicants both said they were now telling the truth.
The Tribunal then referenced what the applicant’s had said earlier in relation to their passports. The applicant was saying in evidence that the passports were handed over to the police who kept them in [City 4]. Yet in the entry interviews, the applicant said that he handed over his passport at the house they were staying at, and the wife said that they handed over their passports to the smugglers on the shore before they got on to the boat. The Tribunal put this inconsistency to the applicants again asking them to tell the truth. It stated that it was having difficulty trying to ascertain which story was the truth. The applicant said that this confirmed that they did not tell the truth at the entry interview.
The Tribunal discussed with the applicants that it would need to consider the application of s.91WA.
CIRCUMSTANCES PREVENTING THE GRANT OF THE VISA
The Tribunal has considered whether the applicant’s visa application is required to be refused under s.91WA of the Act on the basis that he disposed of, or caused to be disposed of, or destroyed an identity document.
Section 65(1) of the Act states that the Minister (or the Tribunal on review) must refuse to grant a visa if the grant is precluded by s.91WA of the Act (emphasis added). Section 91WA(1) of the Act requires the Minister to refuse to grant a protection visa to an applicant who provides, or causes to be provided, a bogus document as evidence of their identity, nationality or citizenship, or if the Minister is satisfied the applicant has destroyed or disposed, or caused the destruction or disposal of, documentary evidence of their identity, nationality or citizenship. However, the requirement that the Minister must refuse to grant a protection visa in circumstances contemplated by s.91WA(1) of the Act will not apply if the applicant: first, has a reasonable explanation for the provision, destruction or disposal; and second, either provides relevant documentary evidence or has taken reasonable steps to provide such evidence: s.91WA(2) of the Act. Section 91WA is extracted in the attachment to this decision.
The provisions of s.91WA of the Act were introduced into the Act with effect from 18 April 2015 and apply to all applications currently before the Tribunal as at that date, including this application.
Did the applicant dispose of or destroy documentary evidence of his identity?
The applicant gave evidence that he gave his passport to the police in [City 4]. In his entry interview he said that he gave his passport to the people smugglers at the house they were staying at shortly after arriving in [Country 1].
The second applicant said that she gave the passports over to the people smugglers on the shore before they got into the boat.
Having considered all of the evidence the Tribunal finds that the applicants caused the disposal of their passports being documentary evidence of their identity, nationality or citizenship, and for purposes of hiding their identities.
Does the applicant have a reasonable explanation for disposing of documentary evidence of his identity?
The Tribunal asked the applicant whether he had an explanation for disposing of his passport.
The applicant replied that everyone was told they would have to destroy their passports closer to [Australian territory]. The Tribunal asked where they were when they were told this. He said they were at [City 3] when they were told they would have to destroy their passports and they were given advice about what to say in Australia.
The applicant said he was fearful for the family and didn’t want to ask the police for the return of their passports.
The Tribunal asked the applicant how they escaped from the police. The applicant said that they were in a compound, a residential compound where the families of the military lived. It was surrounded by barbed wire. One night they went to the fence and lifted up the barbed wire and ran away.
The Tribunal referred the applicant to his letter of 17 March 2016. In that letter, the applicant stated that when they were in jail in [City 4], they were told they could go back to Iran or go to the UNHCR. The applicant stated that he told the police they were going to go to the UNHCR, and when the police released them, they escaped. The Tribunal again highlighted this apparent inconsistency.
The Tribunal noted that notwithstanding this, the applicant and his wife were both aware of the plan to claim they were stateless and the need for them to dispose of their passports. That at some stage, close to [Australian territory], they would have to destroy their passports.
The applicant said they were telling the truth now. He also said that they may have miscommunicated the facts when advising the people at [a legal centre].
The Tribunal noted that they understood the need to dispose of their passports, not just based on what the people-smuggler had told them, but on the experience of their relatives who had trod the same path before them. The relatives before them had also claimed to be stateless.
The Tribunal advised the applicant and the representative that it was quite concerned by the inconsistencies within the evidence and the prior statements of the applicants, even within the statements made in March 2016 which were purportedly “now the truth”. The Tribunal would need to consider the evidence presented. The Tribunal needed to consider the evidence as to which story it could accept as to the circumstances of the disposal of the passports and then whether it could be persuaded as to the reasonableness of the explanation for disposing of the passports. It advised that the outcome of the hearing was somewhat dependant on the Tribunal’s finding on this aspect. It suggested that it would not consider further the claims of the applicant until the Tribunal’s consideration of the evidence and submissions to date. If the Tribunal was satisfied as to the explanation, it would invite the applicant to a further hearing during which the applicant’s claims would be further considered. But if it was not satisfied with the reasonableness of the explanation, it would make a decision accordingly.
The Tribunal has considered carefully all of the applicants’ claims, individually and cumulatively, and makes the finds set out herein.
As stated earlier, the Tribunal found that the applicants caused the disposal of their passports being documentary evidence of their identity, nationality or citizenship, and for purposes of hiding their identities.
The Tribunal has considered the question of the reasonableness of the explanation for disposing, or causing the disposal of, the passport.
In considering this issue, the Tribunal has taken account of the fact that destroying asylum seeker’s documents is commonplace. According to a number of articles, it is "well known that agents or 'people smugglers' who arrange unauthorised passage for refugee will confiscate or order identity papers destroyed".[1] This could be for a number of reasons but likely because the people smugglers "who want to ensure there is no paper trail that might lead authorities to their eventual arrest"?
[1] Jay Fletcher, "Busting three asylum seeker myths", Greenieft Weekly (online) 11 July 2013 < Refugee Action Coalition, Why Do Asylum Seekers Destroy Their Passports? (.d.) <>
It is also stated by the Refugee Advice & Casework Service ("RACS") that:
People smugglers may confiscate documents or require people to destroy their documents In order to protect smuggling networks. In circumstances in which documents are retained by smugglers, the asylum seeker may be Instructed by the people smuggler to tell Australian officials that the asylum seeker discarded the document.[2]
[2] Refugee Advice & casework Service, Migration Amendment (Protection and Other Measures) Bill 2014 Submission by the Refugee Advice & Casework Service (Aust) Inc. (4 August 2014) page 10 <>
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
Throughout the hearing, the Tribunal emphasised to the applicants that given the history of their claims, the fact that they had recanted their original claims and then made a new set of claims, their credibility would be a serious consideration in the success or otherwise of their visa applications.
The applicant stated that the advice he [received] was very poor, however the Tribunal is of the view that whether they had received advice or not, does not detract from the requirement, clearly stated on the application form, that they sign the form having stated the truth. The applicants have admitted that they had previously lied, and lied about their claims.
To that end, the Tribunal expressed its concern to the applicant about his inability to answer a fairly basic question that had to be asked five times. The applicant was asked what it was, or what happened, between 26 February 2016 and 17 March 2016 (when the department received a letter which effectively stated that they had all previously lied to the department about their claims), that made them change their minds to want to now tell the truth. The Tribunal was satisfied that the applicants understood the question, and was more than satisfied that the applicant was determined to obfuscate his answer. The wife finally answered that it was because one of their relatives had changed her story, and that another had been caught at immigration, that they came clean and decided to tell the truth.
The Tribunal again raised its concerns with the applicants about their credibility. This leads to the Tribunal’s assessment of the reasonableness of the applicants’ explanation for disposing of their passports. The applicants had variously stated that they gave their passports to someone at the house, to the police, or to someone on the shore as they were getting onto the boat – either way, they disposed, or caused the disposal of, their passports.
The Tribunal does not accept the applicant’s evidence. Despite many times saying he was now telling the truth, the applicant continued to hide the truth. When asked to explain inconsistencies in his evidence, his explanation was that he was now telling the truth, or that it was proof that he had previously lied. The Tribunal accepts the wife’s evidence as she finally told the Tribunal how it was that they came to amend their claims. The wife gave evidence at the entry interview that was somewhat more detailed than the applicant and reasonably consistent with the applicant except for when they handed over their passports. She stated that they gave over their passports at the shore as they got onto the boats.
The Tribunal accepts this explanation as the Tribunal does not accept at all the applicant’s account of giving his passport to the police. It does not accept the explanation as to how they came to be in police custody as none of those events were recounted at the point of the entry interview. His evidence was inconsistent as to how they came to escape police custody and it is more plausible that the applicants would have required their identity documents when moving around [Country 1].
Furthermore, the applicants did not attempt to travel to Australia legally. They did not make inquiry about obtaining legal visas. They knew that coming to Australia in the way that they did was illegal. The path through [Country 1] was intentional as was their intention to engage with a people smuggling operation. They knowingly participated in the operation as their relatives had before them.
The applicant embarked upon the journey by boat with people smugglers with his wife and child knowing the risks involved and willingly undertook them. He knew he was involved in a scam and that deception of the authorities would be involved by virtue of the fact that the whole operation was covert.
The Tribunal is satisfied that when the applicants were asked to hand over their passports, they did so willingly, knowing it was just another step in the pathway to getting to Australia illegally and that when they landed in Australia, they would seek protection as their relatives had before them.

The Tribunal has considered whether the applicant may have been under duress when handing over his passports, or was afraid for his own and his family’s safety or was afraid of harm and felt he had no choice but to hand his passport over. The Tribunal does not accept that the applicant was at all fearful for his life or the safety of him or his family in obeying any instruction to hand over his passport. The applicant had stated in his written statement that they had discussed how they would claim they were stateless, when they were at the house just after arriving in [Country 1]. The Tribunal confirmed specifically with the applicant that he knew that what he was doing was wrong, and that his entry would not be legal. The Tribunal discussed with the applicant that he knew he was disposing of his passport to hide his true identity. The Tribunal noted this and replied that this was the reason he disposed of his passport – to hide his identity in order to claim that he was stateless. The Tribunal is satisfied that the applicant was absolutely prepared to do what was required to protect his “non-identity”. Overlaid with this is the matter of the credibility of the applicant – an applicant who has admitted to lying in his first set of written claims, and then into his interview with the delegate, only coming clean with the truth when faced with the inevitable prospect that he would be discovered as his relative had changed her status and another relative had been caught at immigration. The Tribunal finds that the applicant disposed of, or caused to be disposed of his passport as just another step in his illegal journey to Australia.
Further, the Tribunal accepts that destroying asylum seeker documentation is common place, and that was the mischief that s.91WA was attempting to remedy in its enactment. The Tribunal acknowledges that this may be due to the fact that people smugglers often confiscate and destroy documentation to protect themselves. But as already found by the Tribunal, the applicant willingly handed over his passport to the smugglers, as it was just one other thing he had to do to get to Australia, on a journey that he knew was unlawful, to make claims about his identity that he knew to be false, and a position he was to maintain through application processes and interviews.
Accordingly, the Tribunal finds that the first, second and third-named applicants do not have a reasonable explanation for disposing of documentary evidence of their identity, nationality or citizenship.
For the reasons given above, s.91WA(1)(b) applies to the first, second and third-named applicants. Therefore the grant of visas to the first, second and third-named applicants is prevented by s.91WA.
Claims of fourth-named applicant
The fourth applicant was born in Australia. Accordingly the Tribunal must consider his separate claims.
The fourth applicant is [age] year old boy and is the son of the applicant and second applicant.
The fourth applicant states that he is stateless.
The Tribunal will also consider the following claims, taken from the various statements of the applicant and second applicant:
oSince living in Australia, the child has enjoyed the freedom of not having any religious education and if they were to return to Iran, his lack of knowledge would be very apparent.
oThe child, who only speaks Kurdish and English, would face restrictions to his education and would face discrimination in the education system after being raised in Australia for six years and speaking English very well.
oThe child was born in Australia and will be considered “undocumented” if he was returned to Iran. This will mean he is ineligible to access a range of services such as health and education, and would face uncertainty for his entire life in Iran.
oThe child will be persecuted by reason of having a birth certificate from a western country.
oThe child will be persecuted because of the Christian faith of his father.
The Tribunal re-read the aforementioned claims to the applicants. They confirmed the claims were accurate and complete.
The Tribunal discussed with the applicants that the fourth applicant is not an Australian national because he was born here. It explained that country information states that he will acquire the nationality of his parents.[3] The applicants understood that. The Tribunal restated that the fourth applicant is an Iranian national.
[3] Princeton University Iran Data Portal, “Nationality Law”, Princeton University Iran Data Portal, 1 July 2013
The Tribunal asked the applicants’ where they would live if they had to return to Iran. They said they would have to return to Ilam, which is a Kurdish speaking area. They said it is a Persian controlled area.
The Tribunal noted the fourth applicant’s claim as to access to education. The Tribunal shared with the applicants a summary of the following country information[4]:
Article 30 of the Constitution commits the government to providing all citizens with free education up to the secondary level, and with expanding free higher education to the extent required for the country to attain self-sufficiency. The Qom-based Supreme Council of the Cultural Revolution is the highest authority in education affairs, and wields far-reaching control over policies and regulations. Several bodies oversee education policies, including parliament and the cabinet. The Ministry of Education is responsible for financing and administering primary and secondary education. At the local level, provincial authorities and district offices oversee education. All primary and secondary schools are single-sex.
The Ministry of Science, Research and Technology supervises all institutions of higher education except medical institutions, which are supervised by the Ministry of Health, Treatment and Medical Education. The Technical and Vocational Training Organisation oversees post-secondary vocational education. After the 1979 Revolution, the government banned private universities, but allowed them to operate from 1988 when a large increase in the youth population overwhelmed the public university sector. Their independence is limited: they may charge tuition fees, but the Supreme Council of the Cultural Revolution must approve all their courses. The private education sector has grown exponentially over the past decade, and now accounts for the overwhelming majority of Iran’s tertiary enrolments.
Iran has a high literacy rate by regional standards. According to the CIA World Factbook, in 2015 86.8 per cent of Iranians aged over 15 were literate (91.2 per cent of males and 82.5 per cent of females). The literacy rate among 15 to 24 year olds was even higher at 98 per cent. Almost all Iranian children of both sexes complete primary education (97.5 per cent in 2014), and most complete at least some secondary education. The World Economic Forum’s Global Competitiveness Index for 2016-17 ranked Iran 70th out of 137 countries for the quality of its primary education system, and 94th for the quality of its education system overall. At the same time, standards in science, technology, mathematics and engineering at the top of the education system are among the world’s highest.
[4] DFAT Report, paragraphs 2.26 – 2.28
The Tribunal noted the fourth applicant’s claim as to access to health. The Tribunal shared with the applicants a summary of the following country information:[5]
Article 29 of the Constitution states that every Iranian has the right to enjoy the highest attainable level of health. The Ministry of Health and Medical Education is responsible for planning, monitoring, and supervising health-related activities for the public and private sectors. Health care and public health services are delivered through a nation-wide network, based on a referral system that starts at primary care centres in the periphery and proceeds through secondary-level hospitals in provincial capitals and tertiary hospitals in major cities. While the government remains the main provider of primary health care services across the country, the private sector also plays a significant role in health care provision, mostly through secondary and tertiary health care in urban areas. Numerous NGOs are active on health issues, particularly in specialised fields.
Health care is a major government priority, with expenditure accounting for 6.9 per cent of GDP in 2014. Iran has good health indicators by regional standards. According to the World Health Organization, life expectancy for both sexes increased by four years between 2000 and 2012. In 2017, the CIA World Factbook estimated life expectancy at 74 years (72.7 years for males and 75.5 years for females). Iran has achieved significant reductions in the rates of both under-five and maternal mortality. All Iranian citizens are entitled to basic health care coverage provided by the government, and 90 per cent have health insurance. In 2014, the country introduced a Health Transformation Plan aimed at improving efficiency, equity and effectiveness, particularly in poorer and rural areas.
[5] DFAT Report, paragraphs 2.18 – 2.19
The Tribunal suggested to the applicants that it appeared that the fourth applicant, as an Iranian, would be entitled to a full education, that the quality of the education would be very high and that he would also have access to the health service. It invited the representative (who was unfortunately absent for this part of the hearing) to make a submission in reply.
The Tribunal asked the applicant if his son was a Christian. The applicant replied he had no religion.
The Tribunal noted that the applicant had become a Christian one year ago. It noted the advice the delegate had given the applicant about engaging in conduct, including becoming a Christian, to enhance his protection claims. The Tribunal clarified that it was the fourth applicant’s claim that because his father was a Christian, he would be therefore persecuted. The mother confirmed it was.
The Tribunal confirmed that the applicant was not himself proselytising. He said he was not. The Tribunal asked whether, if he returned to Iran, he would attempt to talk to others about his Christianity or attempt to convert others to Christianity. He said he might. The Tribunal asked him who he might talk to. He said friends of his. The Tribunal asked were they already Christian. He said some were, but he might also talk to Muslims. He said he would not convert them though. He would only talk to them out of interest. The Tribunal again noted he had only himself converted twelve months ago.
The Tribunal shared with the applicants a summary of the following country information relating to the practice of Christianity.[6]
International observers advise that Iranians who convert to Christianity outside the country are unlikely to face adverse attention from authorities upon return to Iran, provided they have not previously come to the attention of authorities for political activities conducted in Iran, maintain a low profile and do not engage in proselytisation or political activities within the country.
[6] DFAT Report, paragraphs 3.34
The Tribunal suggested to the applicants that the applicant would not appear to have a problem in Iran, as he had not come to the attention of authorities for political activities (his previous evidence was that they were not political at all). Further, the applicant had given evidence that he would maintain a low profile and not proselytise as he had not done this before, there was no question of behaviour modification, and that accordingly his son would not have an issue upon return.
The mother stated that the fact that they had not educated the fourth applicant about religion would be a very big problem for them. She said their families have strong views about Islam. The applicant said the Basij will quickly see that. He said the city only has about 50,000 people and it will be seen that his son has not been brought up in the Muslim religion. The Tribunal noted however that not all Iranians observe their religion and noted the following country information:
Non-practising Muslims are unlikely to come to the attention of authorities unless they make a public statement attesting to their lack of or rejection of faith. Mosque attendance in Iran is not usually monitored, and a large proportion of Iranians do not regularly attend mosques.[7] Iran has seen a growing trend of nationalism (i.e. an attachment to pre-Islamic Persian myths and traditions) and secularism, as the children born since the 1979 Revolution have come of age.[8] One of the reasons for the increasing secularism is a rejection of the type of Islam pushed by Iran’s theocratic leaders.144[9] Surveys indicate that up to half of Iranians informally view themselves as agnostic or similarly disinterested in Islam.[10] During Ramadan, most restaurants are closed during daylight hours, though many people eat at home.146[11] There are numerous examples of people arrested and prosecuted[12] for eating during Ramadan, though it cannot be determined how wide widespread eating in public is, or consequent judicial actions are.[13] In recent years, young people in Iran — particularly in Tehran — have incrementally but increasingly pushed the boundaries of accepted behaviour.[14] While the regime largely tolerates many small such actions, it will punish those it believes are purposefully attempting to ‘insult’ Islamic values or undermine the Islamic Revolution.[15]
There has been no evidence found of individuals recently being prosecuted for atheism. That said, it is legislatively possible for Muslims to be sentenced to death in Iran for atheism.[16] However, a range of sources indicate it is unlikely the regime will become aware of atheists’ beliefs unless they seek to publicise their views, and few do so publically (though there are several active groups on social media).[17]
[7] ‘The Revival of Nationalism and Secularism in Modern Iran’, LSE Middle East Centre (United Kingdom),
[8] ‘The Revival of Nationalism and Secularism in Modern Iran’, LSE Middle East Centre (United Kingdom),
[9] ‘Iran's Other Religion’, Boston Review (United States), 1 June 2003
[10] ‘Iran's Other Religion’, Boston Review (United States), 1 June 2003; ‘Iran: Treatment of
[11] Restaurants in hotels and on some highways remain open (when travelling, people may be exempt from
[12] Article 638 of the Penal Code provides up to two months’ imprisonment or up to 74 lashes for openly
[13] ‘The Story Of Treatment Of People Accused Of Eating In Public In Ramadan’, Iran Human Rights Monitor
[14] ‘Young Iranians affected by the embargo, tired of political Islam’, Asia News IT, 1 April 2015
[15] For instance, two women have been sentenced (as of late-May) to prison terms after being arrested for
[16] It remains legally possible for converts to be charged with apostasy; although the penal code does not
[17] ‘Iran: Treatment of atheists by State and non-State actors’, Austrian Centre for Country of Origin and Asylum
The Tribunal raised the issue that the fourth applicant might be regarded as a Faili Kurd and explored whether there may be an issue with that. The Tribunal shared with the applicants a summary of the following country information:[18]
DFAT is not aware of specific instances whereby authorities have singled out Faili Kurds for mistreatment, regardless of the category to which they belong.
[18] DFAT Report, paragraphs 3.14
Finally the Tribunal shared with the applicants a summary of the following country information:[19]
According to international observers, Iranian authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government – heavy internet filtering means most Iranians will never see them – converting to Christianity, or engaging in LGBTI activities. In such cases the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists.
[19] DFAT Report, paragraphs 5.25
The Tribunal considered the post-hearing submission of the applicants dated 4 July 2018. The applicants restated their concerns about being identified as Faili Kurds. The Tribunal is satisfied that that issue has been considered aforementioned.
The applicants expressed their grave concerns about the existence of corporal punishment in Iran, within the education system, noting that it is a part of the culture of education. Combined with the fact that the fourth-named applicant has not received any education in Islam, they claim that the fourth-named applicant may be a target for corporal punishment. They cited reports that state that in 2014 and 2015, 1,274 cases of reported corporal punishment were recognised as justifiable. They cited another report that stated that “4.5% of boys reported having had their hands burnt as punishment as school, and 6.4% of boys having had bones broken as punishment at school”. The applicants admitted that the report did not give reasoning for the extreme physical punishment, but noted that the study was conducted in Ilam.
The applicants also noted country information in relation to the treatment of returnees, noting particularly that whilst the DFAT Report states that Iranian authorities pay little attention to failed asylum seekers, there is evidence to the contrary and international observers note they are unable to track all returned asylum seekers.
The Tribunal noted that country information suggested that the Iranian authorities would have little interest in, and would pay little attention to, any of the activities the applicant has been engaged in, including Christianity or living in the west. As the fourth applicant is even further removed from those activities, the Tribunal finds that the fourth applicant would have no cause for concern and the authorities no interest in him.
The Tribunal accepts the country information referenced by it aforesaid, and finds that the fourth applicant’s claims have not been substantiated.
The Tribunal noted the applicants’ submission and concerns in relation to corporal punishment and how the lack of knowledge of the fourth-named applicant of the teachings of Islam may make him a target for punishment. But the Tribunal also noted that the applicants could not substantiate that corporal punishment will be meted out to their son on the basis of his lack of knowledge. The fourth-named applicant is only [age] years old and, as the applicants state, will be enrolled in elementary school – he will be at the beginning of his education. The applicants have provided no information that elementary school students are subjected to corporal punishment or considered that his lack of knowledge may be attributable not to him, but to his parents having taken the family abroad. The Tribunal further considered paragraph 4.19 of the most recent DFAT Report. It states that whilst Article 158 of the 2013 Penal Code explicitly provides for the right of parents and guardians to impose corporal punishment on children, the Schools Executive Directive ratified by the Higher Council of Education in August 2000 advises against the use of corporal punishment in schools. Corporal punishment is prohibited in juvenile correction centres. The weight of country information suggests that the applicants will not be punished because of their activities abroad or having lived in the west.
The Tribunal is not satisfied that there is a real chance that the fourth applicant will be at risk of serious harm for reason of race, religion, nationality, membership of a particular social group or political opinion if he returns to Iran now or in the reasonably foreseeable future.

Accordingly, the Tribunal is not satisfied that the fourth applicant is a person in respect of whom Australia has protection obligations for the purposes of s.36(2)(a).
Cumulative claims
Having considered all of the fourth applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the fourth applicant, the Tribunal finds that the fourth applicant will be considered as an Iranian national and that there is no real chance that the fourth applicant will suffer harm on the grounds of having been born abroad and having an Australian birth certificate, as a returnee from a western country, not having observed any religious teachings, or having a Christian father, or on account as being identified as a Faili Kurd, or on account of speaking English and Kurdish or being undocumented or any other reason if he returns to Iran now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the fourth applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Iran. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm
The Tribunal has considered the fourth applicant’s claims under complementary protection.
In view of the above findings as to the real chance of serious harm, the Tribunal is not satisfied that there is a real risk that the fourth applicant will suffer significant harm for any of the reasons claimed if he returns to Iran now or in the reasonably foreseeable future.
Having considered all of the fourth applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the fourth applicant, the Tribunal is not satisfied that the fourth applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Iran now or in the reasonably foreseeable future.
Accordingly, and applying the authority in MIAC v SZQRB (2013) 210 FCR 505, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the fourth applicant being removed from Australia to Iran, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the fourth applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the fourth applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the fourth applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the fourth applicant being removed from Australia to Iran that there is a real risk that he will suffer significant harm.
Overall Conclusion:
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. As found above, s.91WA(1)(b) applies to the applicant, the second applicant and the third applicant and therefore the grant of visas to them is prohibited. The fourth applicant does 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 visas.

DECISION

The Tribunal affirms the decision not to grant the applicants protection visas.

Michael Hawkins
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.
…

November 2015, p. 11

November 2015, p. 5; ‘Iran: Treatment of atheists by State and non-State actors’, Austrian
Centre for Country of Origin and Asylum, 12 June 2017, p. 2; ‘Update on the situation for
Christian Converts in Iran’, Danish Immigration Service, June 2014,
Research and Documentation, 12 June 2017, p. 2

atheists by State and non-State actors’, Austrian Centre for Country of Origin and Asylum
Research and Documentation, 12 June 2017, p. 2,

fasting). ‘Travelling to Iran during Ramadan- a Survival Kit’, PersiaPort (France), 25 June 2017; ‘5 Tips for Traveling Iran during Ramadan’, Searching for Iran (Iran), 8 June 2016

committing a ‘haram’ (i.e. sinful) act in public. ‘Arresting People for Eating in Their Cars During the Ramadan
Fasting Month in Iran is Illegal’, Center for Human Rights in Iran (United States), 2 June 2017,

(United States), 26 June 2017; ‘At least 20 Iranians lashed for breaking Ramadan fast’, Trend
News Agency (Azerbaijan), 11 June 2017; ‘IRAN: 92 arrested in restaurant during Ramadan’,
National Council of Resistance of Iran, 27 June 2015,

waving their hijab in the air in early 2018, rather than the usual $25-equivalent fine for ‘bad hijab’. ‘Shaparak
Shajarizadeh Twice Arrested For Allegedly Removing Her Headscarf in Public in Iran’, Center for Human Rights in Iran (United States), 12 May 2018, CXBB8A1DA27118. In 2005, a court summoned an editor of a weekly magazine that published agnostic articles. ‘Iranian court reportedly summons Kurdish journalists’, Iranian Labour News Agency (Iran), 20 April 2005, CX119248 (No further information about the editor was located.)

explicitly address apostasy, both the penal code and Constitution decree that where there is a gap in the penal
code, judges should apply sharia. ‘Christian Converts in Iran’, Finnish Immigration Service, 21 August 2015, p. 6

Research and Documentation, 12 June 2017, p. 2

[2018] AATA 3707

13 August 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction