1714256 (Refugee)

[2022] AATA 513

1714256 (Refugee) [2022] AATA 513 (4 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1714256

COUNTRY OF REFERENCE:                   Iran

MEMBER:Mara Moustafine

DATE:4 January 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 January 2022 at 9:49am

CATCHWORDS

REFUGEE – protection visa – Iran – Federal Magistrates Court remittal – race – imputed political opinion – Faili Kurd – nationality – stateless – religion – conversion to Christianity – undocumented Iraqi refugee – failed asylum seeker – fear of arrest – physical harm – deportation to Iraq – Iranian citizenship – education – departure on a fraudulent passport – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 46, 65, 425, 499
Migration Regulations 1994, Schedule 2

CASES

Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 22 June 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

   Procedural History

2. The applicant claims to be a stateless Faili Kurd born in Iran and [age] years old. He arrived in Australia as an unauthorised maritime arrival (UMA) [in] April 2010.

3. He applied to the Department for a Refugee Status Assessment (RSA) on 27 June 2010 and on 7 September 2010 was assessed as being a person to whom protection obligations were not owed.

4. His subsequent application for Independent Merits Review (IMR) of the RSA assessment on 16 September 2010 resulted in a recommendation dated 20 June 2011 that the applicant should not be recognised as a person to whom Australia had protection obligations.

5. He then applied for judicial review of the IMR decision. [In] February 2013 the Federal Magistrates Court of Australia (FCMA) found that the IMR failed to deal with the applicant’s claim alleging a well-founded fear of persecution by reason of his imputed political opinion as a Faili Kurd, although it did not raise any concerns about the IMR’s reasoning behind its finding that the applicant was an Iranian citizen[1]. The matter was referred back to the Department in June 2013.

   [1] As noted in the delegate’s decision.

6. In November 2014 the applicant was notified that the Protection Obligations Evaluation was that he was stateless. The 46a bar was lifted allowing the applicant to apply for a protection visa.

7. On 9 October 2015 the applicant lodged an application for a Protection visa (subclass 790) Safe Haven Enterprise visa (SHEV). The delegate refused to grant the visa on 22 June 2017.

8. The applicant applied to the Tribunal for a review of that decision on 4 July 2017. He was represented in relation to the review by his registered migration agent.

   Evidence before the Department

   Protection visa application

9. In his Protection visa application, the applicant identified himself as a stateless Faili Kurd, born in [Village 1], [District 1], Ilam province, Iran in [year], to parents who were born stateless in Iraq and forced to move to Iran. He indicated that he had never been married, could speak, read and write Kurdish, Farsi and English and was Christian by religion. He lived in [District 1] until July 2009, where he was employed as a labourer ([from specified year] to 2009) and then in Tehran until his departure in March 2010, where he worked as a retail assistant in [a location]. He stated that his parents [and siblings] were living together in Iran and that he was in telephone contact with his mother about once every three months. He claimed that he departed Iran by plane from Imam Khomeini International airport in Tehran on a false passport, issued in the name of [Alias A], which was taken from him by the 'people smuggler' who brought him from Indonesia to Australia.

10. In a statement dated 1 October 2015 submitted with his application, the applicant said he relied on the claims made in his RSA application of 27 June 2010 and related agent’s submissions, copies of which were provided. He stated that he continued to fear returning to Iran because he is a stateless and undocumented Faili Kurd and as a person who has converted from Islam to Christianity.

11. He noted that, in its re-assessment of his case following review by the Federal Magistrates’ Court, the Department, found him to be a person in respect of whom Australia had protection obligations and provided copies of letters from the Department notifying a re-assessment of his status (12 November 2014) and inviting him to apply for a Temporary Protection Visa (SHEV) (31 August 2015); as well as a copy of his [Australian] Driver’s License.

12. Key relevant points made in the applicant’s RSA statement of 27 June 2010 were:

    a.He is a Faili Kurd and a Shiite Muslim, whose parents were born in Iraq.

    b.He understood from his parents that around 1980 the Iraqi government announced that any Iraqi from Iranian background who did not have any documents was asked to report to the local police to be issued documents. But a few months later, Iraqi security forces stormed the houses of those who came forward to the authorities. Elderly men, women and children were sent to Iran and adult men were detained and killed by the Iraqi authorities.

    c.Due to their fear of being captured or separated, his parents fled from Iraq and travelled to an Iranian town called [Town 1].

    d.In Iran, his parents were too frightened to approach the authorities to register their details or obtain any identity documents or a green card because of what happened to Faili Kurds in Iraq. Therefore, he was unable to obtain any documents and when he was older, he too was afraid to register with Iranian authorities for fear of being deported to Iraq.

    e.His relatives told his father that if the Basij caught a Faili Kurd without documents in Iran they would transfer them to the Iranian police and have them sent back to Iraq.

    f.As an Iraqi refugee in Iran, he was denied basic rights, such as access to education, the right to own property in his own name or to register a marriage. He could not even enrol in basic schooling and never received any form of education in Iran.

    g.Due to his lack of documentation, he lived in constant fear of being detained, beaten or possibly deported by the Basij.

    h.Around 2005, he was stopped by the Basij while travelling through a nearby village and asked for his identity documents. When he failed to provide them, he was taken to the Basij office and detained for 24 hours. During questioning, he was beaten and his collarbone broken. The next morning an elderly Basij, on seeing that his shoulder was broken and he was covered in blood, agreed to release him.

    i.In 2009 his family faced problems when their neighbour, [Neighbour A], who was captured one night by the Basij and Revolutionary Guards after the applicant’s father was forced to reveal that he was hiding in their stable. [Neighbour A] and his family belonged to one of the biggest tribes in Iran and part of an armed group opposing the Iranian government that hid and operated in the mountains around their village. The applicant was at work at the time of this incident but fled with his family to Tehran to escape from them.  

    j.In Tehran, his family lived in constant fear of being arrested, detained, beaten or deported by the Iranian authorities due to their lack of documentation. They also feared being found and attacked or killed by [Neighbour A’s] family or armed group out of revenge.

    k.The applicant and his family became too frightened to leave their homes. Fearing for his safety in Iran, the applicant decided he needed to flee the country. His family could not afford to leave with him and continue to live in hiding in a village in Tehran in fear of being targeted by the Basij or out of revenge by [Neighbour A’s] family or group.

    l.As a Faili Kurd, he is denied the right of nationality, return and protection by both Iraq and Iran. He fears that if he returns to Iran, he will be detained, beaten and possibly killed as a stateless Faili Kurd and an undocumented Iraqi refugee.

    m.He also fears that [Neighbour A’s] family and their armed group will find and kill him and his family in revenge for their involvement in his capture by the Basij. As he is not an Iranian citizen and a Faili Kurd, he will receive no protection against this armed group from the Iranian authorities. Nor can he even approach the authorities for protection for fear of being detained and deported.

    n.He fears he would continue to face harassment, arrest, possible deportation and violence by the Basij and Iranian authorities. As these groups operate all over the country, he would not be safe anywhere.

13. In her submission of 26 July 2010 supporting the applicant’s RSA application, the migration agent submitted that as a stateless Faili Kurd, the applicant had a well-founded fear of persecution in Iran on the basis of his ethnicity, imputed political opinion as being pro-Kurdish, as an Iraqi refugee or as someone perceived to be without a nationality. The submission cited general country information in relation to these claims.

14. In her submission of 19 June 2013, the migration agent introduced a new claim based on the applicant’s conversion to Christianity while at the [named] Detention Centre. She stated that he was attending mass and had been baptised by [Leader A] [in] October 2011. Included with the submission were a baptism certificate and a letter of support from the minister of religion at the [named] Detention Centre, [Leader B], dated 15 November 2011, stating that the applicant had been actively involved in many Christian services and studies he had run since July 2011. The migration agent submitted that the applicant had a well-founded fear of persecution should he be returned to Iran as a Faili Kurd, an undocumented Iraqi refugee, a Christian convert, a failed asylum seeker/Western returnee to Iran and because of his actual/imputed political opinion of opposition to the Iranian regime as a Faili Kurd and an asylum-seeker in Australia.  Supporting documents were also provided, including a copy of the agent’s generic submission for Faili Kurd asylum seekers’ dated 30 March 2011, setting out country information on a range of issues without specifying its particular relevance to the applicant’s review.

    Protection Visa Interview and post-hearing submission

15. The applicant attended an interview with the delegate on 1 May 2017, a summary of which is contained in the Department’s decision record. The Tribunal has listened to a recording of the interview. Where relevant the applicant’s oral evidence to the delegate is discussed below.

16. According to the Department decision record, with regard to his Christian practice, the applicant stated that he attended churches close to where he then lived in Sydney and had a Bible in the Farsi language but was unable to give specific details of the church he claimed to regularly attend. At the end of the interview, the applicant was offered the opportunity to provide supporting evidence about his alleged conversion to Christianity, including evidence as to his religious practices in Australia in a post interview submission.

17. In the submission received by the Department on 6 June 2017, the applicant's representative stated that the applicant had renounced Islam and was no longer a practicing Muslim, had been baptised into the Christian religion in Australia and feared persecution by the Iranian authorities as he would be considered an apostate in Iran. However, the submission presented no evidence which would support the applicant's claim that he had genuinely converted to Christianity and was a practicing Christian, as he had been invited to do.

    The Delegate’s Decision

18. In his decision of 22 June 2017 the delegate refused to grant the applicant a protection visa as he was not satisfied that the applicant was not a person in respect of whom Australia had protection obligations under either the refugee or complementary protection criterion. While accepting that the applicant was a Faili Kurd, the delegate was not satisfied that he was stateless, but found that he was an Iranian citizen. Nor did the delegate accept that the applicant had genuinely converted to Christianity.

    Application for Review

19. On 4 July 2017 the applicant sought review of that decision, providing a copy to the Tribunal for the purposes of the review. The applicant is therefore taken to be on notice of its findings and reasons.

20. The applicant was represented in relation to the review by his registered migration agent. In the course of scheduling the hearing, the Tribunal was advised by the migration agent’s law firm of a change in representative for the applicant. However, no formal advice to this effect was provided to the Tribunal, in spite of numerous requests being made over several months.

21. On 28 April 2021, 40 minutes before the scheduled hearing was due to commence, the Tribunal received an Appointment of Representative form and hearing response from the new representative. In relation to the applicant’s requirement for an interpreter, the hearing response indicated ‘Persian Farsi preference  - or Kurdish (Faili) if appropriate dialect is spoken as second preference’.

22. Also submitted was a letter from [Leader C] of [Church 1], [Suburb 1], who was nominated as a witness to give evidence regarding the applicant’s ‘genuine conversion to Christianity and activities’.  Key points in the Pastor’s letter were that he had known the applicant since June 2017, when he visited his church and that the applicant regularly attended Sunday morning church services. He also listed the applicant’s attendance at Bible classes in 2019, 2020 and 2021, the subjects he had completed and other activities, including twice sharing the Gospel in [Suburb 2], bringing at least four people to the church who have become Christians, putting the Pastor’s messages on his [social media site] and wanting to help Muslims see the error of Islam and to become Christians.

    The hearing

23. The applicant appeared before the Tribunal on 28 April 2021 to give evidence and present arguments, accompanied by his representative. The Tribunal also took evidence by telephone from [Leader C] of [Church 1], [Suburb 1].

24. As specified in his application to the Tribunal, an interpreter in the Kurdish Southern (Feyli) dialect had been arranged to assist the applicant in the hearing. At the commencement of the hearing, however, the applicant’s migration agent requested a Farsi interpreter. He indicated that the request for the change in interpreter language was based on his advice to his client that his review of previous interviews conducted through a Kurdish Feyli interpreter, suggested that ‘certain things were not translated properly’. Asked if he was a Kurdish speaker, the representative said he understood ‘a little bit’ but was not a native speaker. He identified himself as a Farsi speaker.

25. The Tribunal attempted to accommodate the request for a Farsi interpreter. However, as the only Farsi interpreter that could be located at such short notice was driving his car on the freeway and would not reach his destination for another hour, the Tribunal did not consider it appropriate to use his services. The Tribunal noted that to do so would not give the applicant a fair hearing opportunity and would be dangerous for the interpreter. The Tribunal confirmed that the interpreter who had been arranged was experienced in translating Kurdish Feyli and the applicant had no difficulty understanding her. With the agreement of the applicant, the Tribunal hearing proceeded with the assistance of an interpreter in the Kurdish Southern (Feyli) dialect and English languages.

26. In his evidence at the hearing, [Leader C] told the Tribunal that he considered the applicant to be a very committed, dedicated Christian in his church. He said the applicant would be one of the first to arrive for Bible study, help to set up and later take things down and took notes in class. He said he would have no hesitation in recommending him and contrasted the applicant favourably with others who had ‘been approved’, saying he was ‘about 100 times better than the other guys who have been approved’ and ‘should never have been approved’. 

27. In an oral submission at the end of the hearing, the representative requested and was granted an extension of time to provide a post-hearing submission. The representative also indicated that he was uncomfortable with the interpretation at the hearing. In particular he said:

    ·Although he was not a fluent Kurdish speaker, he expressed at the beginning of the hearing a preference for an Iranian (Farsi) interpreter ‘because an Iranian interpreter would have a higher standard of interpretation’ and there was ‘a standardised dialect’, while ‘the issue with Kurdish interpreters is that each village speaks a different dialect’.

    ·There was substantial information that was misinterpreted and missed from what the applicant said, although it was not up to him to decide whether that information was material to the hearing. He gave the example of information which was not translated in in the discussion of the Gospel. 

    ·Throughout the hearing there were many times where there was back and forth with the between the interpreter and the applicant for clarification, many of which were ‘ultimately not resolved’.

28. The Tribunal invited the representative to address any issues in his submission.

29. Invited to comment, the interpreter, stated that:

    ·there was no issue with the language as she clearly understood the applicant and he understood her: ‘If he had issues he would say, “I don’t understand you.”  While she was not from the Faili area or there may be a dialect issue, it was just like with English: ‘I have accent in English, but that doesn’t mean my word doesn’t make sense’. 

    ·She asked for clarification not because of the language but because of the way he was putting the sentence or the answers – to make sure that she was not missing any words or when it was not clear. At various times, the applicant was talking a bit softly or a bit quickly, ‘going from here to there’ or talking to the Member in English and cutting the interpreter off without letting her interpret what the Member was saying. She was very conscious of her responsibility to facilitate communication between the applicant and the Member and understood the importance of the hearing for the applicant’s future. She would ask for clarification or ask the applicant to repeat to make sure that she did not missing anything.

    ·When the applicant was talking about the prophets she immediately alerted the Tribunal that she was not familiar with biblical names and language.

30. The applicant made no comment when invited to do so.      

    Post hearing submission

31. In his submission provided on 4 May 2021, the applicant’s representative addressed several issues arising out of the hearing, including the applicant’s identification and conversion to Christianity and provided generic country information. With regard to the interpretation issues during the hearing, the representative identified discrepancies in three area of the applicant's evidence as follows:

    i.The reasons why [he] was arrested we note the evidence regarding those who came to assist him be released was misinterpreted

    ii.The evidence regarding the reasons for [his] leaving [Village 1] was misinterpreted we note that the interpreter could be heard stating they needed to check the evidence of [the applicant]

    iii.The evidence regarding his Christianity conversion required a level of

    familiarity with Christian-based words which were not interpreted correctly or were simply left out of the interpretation.

1. The Tribunal wrote to the representative on 5 May 2021 asking that he provide the basis for his comments and specific details of what he believed to be the correct translation, noting his advice at hearing that he was not fluent in Kurdish and the applicant’s evidence that he was not fluent in English. He was also asked to identify the intervals at which he considered the interpreter errors occurred in the hearing recording which had been sent to him earlier at his request. However, no response was received.

2. On 9 November 2021 the Tribunal wrote to the representative, providing him with a transcript of the relevant segments of the hearing recording relating to the issues he had identified. The Tribunal again requested him to indicate what he believed was incorrectly translated and to provide what he considered would be the correct translation. No response has been received from the representative.

3. The Tribunal is satisfied that the applicant was afforded a fair hearing as required under s 425 of the Act and given every opportunity to address any issues of concern about interpretation at the hearing. In the absence of any response from the representative to multiple requests by the Tribunal to specify details of alleged mistranslations and to provide corrections, the Tribunal is satisfied that the interpretation was accurate and accepts the explanation offered by the interpreter at paragraph 29 regarding the issues raised by the representative. As well as speaking through the interpreter in Kurdish, the applicant frequently responded directly to the Tribunal’s questions in fluent English. At no stage in the hearing did he indicate that had problems understanding what the Kurdish interpreter was saying.

4. The Tribunal accepts that, as submitted by the representative, the interpreter did not translate some of the discussion of the Gospel. At this point in the hearing, she appropriately, alerted the Tribunal to her unfamiliarity with Christian biblical names and references. As the applicant identified most of the biblical names in English, the Tribunal responded that this was not a concern. Moreover, as observed by the representative, it was not up to him to decide whether that information was material to the Tribunal’s findings, which are discussed further in this decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Relevant Law

5. 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.

6. 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.

7. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

8. 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.

9. 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.

10. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration[2].

    Credibility

    [2] Including its most recent DFAT Country Information Report: Iran, 14 April 2020.

11. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451.

    Analysis, Reasons and Findings

12. The issues that arise on review are whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.

    Country of Reference

13. The applicant arrived in Australia undocumented. He claims that he is a stateless Faili Kurd who was born in Iran in [year] to parents born in Iraq who were forced to flee or were deported to Iran in 1980. He claims that neither he, nor his parents, hold documentation that might prove a right to a nationality in either Iraq or Iran. As he has not resided in Iraq at any time of his life but has resided in Iran and the Tribunal finds for reasons discussed below that the applicant is, in fact, an Iranian citizen, it has assessed his claim against Iran as his country of reference.

14. Accordingly, the Tribunal has not identified or addressed in this decision the claims made by the applicant and his representatives against Iraq.

    Claims

15. In summary, the applicant has claimed that due to his lack of documentation, he was denied basic rights in Iran, such as access to basic schooling, the right to own property in his own name or to register a marriage, never received any form of education and lived in constant fear of being detained, beaten or possibly deported by the Basij. He fears that if he returns to Iran, he might face harassment, be detained, arrested, beaten and possibly killed or deported by the Basij and Iranian authorities as a stateless Faili Kurd, an undocumented Iraqi refugee and as a Christian convert. He also fears he might be killed in revenge by the family or armed group of his former neighbour [Neighbour A] over his capture by the Basij at his family’s house and receive no protection against them from the Iranian authorities.

16. Further, the applicant’s representative has submitted that the applicant has a well-founded fear of persecution in Iran as a Faili Kurd, an undocumented Iraqi refugee, a Christian convert, a failed asylum seeker/Western returnee to Iran and because of his actual/imputed political opinion of opposition to the Iranian regime as a Faili Kurd and an asylum-seeker in Australia.

17. In assessing the applicant’s evidence, the Tribunal has carefully considered and weighed a range of independent materials relating to the situation of Faili Kurds in Iran and other relevant issues, including that provided by the applicant and his representatives. The Tribunal is also mindful that undue weight should not be placed on a degree of confusion and omission in accounts presented at various stages of the refugee determination process, leading to a conclusion that a person is not telling the truth. However, in the Tribunal’s view, the applicant’s evidence on a number of issues central to his claims which was inconsistent with independent country information, implausible and unsupported, raises serious doubts about his credibility and cannot be disregarded in assessing his claims. 

18. For reasons detailed below, the Tribunal did not find the applicant to be a credible and truthful witness about his experiences in Iran and questions whether any of his evidence can be relied upon. It has concluded that the decision under review should be affirmed.

    The applicant’s claimed identity and persecution as an undocumented/stateless Faili Kurd and an undocumented Iraqi refugee

19. As discussed with the applicant at hearing, a central issue for the Tribunal is the question of his identity and whether he is who he claims to be – a stateless and undocumented Faili Kurd and Iraqi refugee, rather than a citizen of Iran. Moreover, while the applicant identified himself as [the applicant’s name], he presented no evidence to substantiate that he was known by this name in Iran.

20. According to the most recent DFAT report:

    The Faili (also spelled Feyli, and commonly known as Iraqi) Kurds… originate from the Zagros Mountains, which straddle the Iran-Iraq border, and many have family on either side of the border. Most, but not all, Faili Kurds originate from Iraq (some have lived in modern-day Iran for centuries). Faili Kurds in Iran typically reside either close to the Iraqi border, including in Khuzestan, Lorestan, Kermanshah and Ilam provinces, or in major cities. They are distinguishable from other Iranian Kurds by their religion (most Faili Kurds are Shi’a), their location and their distinctive dialect. Three main groups of Faili Kurds live in Iran: (1) Iranian citizens; (2) those of Iraqi origin who are registered refugees (Amayesh cardholders); and (3) those of Iraqi origin who are not registered refugees (non-Amayesh cardholders).[3]

    [3] DFAT Country Information Report: Iran, 14 April 2020, p.27

21. On the basis of his fluency in the Kurdish (southern) dialect, claimed origins in Ilam province and previous identification as a Shia Muslim, the Tribunal accepts that the applicant is a Faili Kurd.  However, as discussed with the applicant at hearing, the Tribunal has serious reservations as to whether he is a stateless and undocumented Iraqi refugee, as claimed, rather than a Faili Kurd who is an Iranian citizen. 

22. The applicant’s evidence regarding the circumstances surrounding his parents arrival in Iran from Iraq in 1980 was vague and inconsistent between his RSA statement and evidence at hearing and with country information from independent sources. In his RSA statement the applicant stated that he understood from his parents that around 1980, the Iraqi authorities invited undocumented Iraqis with Iranian origins to report to local police to be issued with documents but a few months later, sent them to Iran, detained or killed them. He claimed that it was in this context that his parents fled from Iraq to an Iranian town called [Town 1] as they were afraid of being captured or separated.

23. At hearing, however, the applicant told the Tribunal that his parents, like all the Faili Kurds, were expelled when Iraq and Iran went to war. He initially said that any identity documents they held were taken away when they were expelled, but when asked which documents his parents had, responded that he ‘didn’t mean documents’, rather that the Iraqi authorities asked them for details about their identity for the purpose of issuing them documents, but instead, expelled them from Iraq several days later. Asked where his parents were expelled to, the applicant responded variously: to Iran, Ilam, the Iraq-Iran border and [Town 1]. The applicant also told the Tribunal that no Faili Kurds had citizenship in Iraq.

24. The applicant’s account is inconsistent with independent country information reports from DFAT and other sources, including those referenced in submissions by his representatives over the course of his review. These reports explicitly refer to the cancellation of the Iraqi citizenship of all Iraqis of ‘foreign origin’, including Faili Kurds in 1980 by Saddam Hussein’s Ba’athist government as per Decree No. 666 (1980). Under the Decree, authorities seized their properties and documentation and expelled them by force from Iraq on the charge that their Shia faith made them ‘Iranian’[4]. The representative’s submission of 19 June 2010 also quotes at length from an IRIN article which refers to Faili Kurds being ‘stripped of their Iraqi citizenship’ as well as having their property confiscated[5]. While the representative’s post-hearing submission of 4 May 2021 only mentions that Faili Kurds were stripped of their property and had their assets confiscated, the Tribunal notes that the footnoted sources cited state explicitly that they were also stripped of their Iraqi citizenship[6].

    [4] DFAT Country Information Report: Iran, 14 April 2020, p.19; Minority Rights Group International, IRAQ: Faili Kurds, November 2017, IRIN, IRAQ: Fayli Kurds face difficult return, 21 May 2003, available at

    [6] Elizabeth Campbell, 2010, The Faili Kurds of Iraq: Thirty Years Without Nationality, opens with the line: ‘Thirty years ago, in April 1980, between 220,000 and 300,000 Iraqi Faili Kurds were stripped of their Iraqi citizenship.’; Minority Rights Group International, Assimilation, Exodus, Eradication: Iraq's Minority Communities since 2003, February 2007, available at: >

    While the applicant attributed to his parents his account of the circumstances in which they left Iraq, the Tribunal found no evidence to corroborate the claim that undocumented Iraqis with Iranian backgrounds were called to provide their details in order to be issued documents and instead deported. Country information also indicates that on reaching Iran the expelled Kurds were first taken to refugee camps which they could leave under the auspices of any Iranian citizen pledging to offer accommodation, work and medical care for them at which time they were issued an identity card (green card)[7]. However, when asked if his parents were ever in a camp after their expulsion, the applicant said no. The Tribunal finds implausible that, if his parents had been expelled from Iraq in 1980, the applicant would have such poor knowledge of this seminal event in his family’s life. It raises doubts that the applicant’s parents were ever among the Iraqi Faili Kurds who were expelled to Iran in 1980, as opposed to Iranian Faili Kurds living in Ilam province.

    [7]‘The Faili Kurds’, The Faili Kurds Homepage, 2 May 2000, CX41478 cited in RRT, cited in DIAC Country Information Research Response 22 March 2011.

25. The Tribunal’s doubts as to whether the applicant’s parents were Faili Kurds expelled from Iraq are compounded by his evidence that, after arriving in Iran in 1980, they were too frightened by what happened to Faili Kurds in Iraq to register with Iranian authorities as refugees to obtain identity documents or a green card. Given his claim that relatives in Iran warned his father that a Faili Kurd caught without identity documents by the Basij could be deported to Iraq, the Tribunal finds it dubious that they would not have availed themselves of the benefits of registration as refugees, like most Faili Kurdish refugees from Iraq at that time:

    Registered refugees are granted legal recognition under a system known as Amayesh. An Amayesh card proves legal right of residence and entitles the cardholder access to government services, including healthcare and education…. In 2015, the government granted Amayesh cardholders access to Iran’s national universal health insurance scheme… Amayesh cardholders are eligible to receive work permits from the government, giving them the legal right to employment. While Amayesh cardholders can move freely within the province in which they are registered, they are subject to restrictions regarding their ability to relocate to other parts of Iran[8].

    [8] DFAT Country Information Report: Iran, 14 April 2020, p.57

26. In a discussion about his family’s nationality and citizenship, the applicant told the Tribunal that his grandparents on both sides were born in [District 1] in Ilam province but went to work as labourers in Iraq, while their siblings remained in Iran. Asked if his grandparents had Iranian citizenship, he responded variously that he didn’t know, that they didn’t have it and when asked how he knew this, asked rhetorically ‘did anyone have citizenship or a birth certificate at that time in Iran’? After saying categorically that his grandparents did not have birth certificates, he then said he wasn’t sure as it was a long time ago. To the Tribunal’s suggestion that there were birth certificates in Iran a long time ago[9], the applicant repeated that his grandparents didn’t have them.

    [9] Birth certificates have been issued in Iran since 1918. >

    As for his parents, the applicant claimed that both were born in Baghdad, where they married, and that they did not have Iraqi citizenship because no Faili Kurds had Iraqi citizenship. As the Tribunal has noted above, this is incorrect. Significantly, the applicant told the Tribunal that, when they came to Iran, his parents went to live in [District 1] because they had cousins there who helped them settle – children of his grandparents’ siblings who had remained in Iran and were Iranian citizens. Throughout the hearing he also referred frequently to a maternal uncle, who was also an Iranian citizen living in Tehran. He variously, provided the applicant’s parents with a house in [Village 1], paid their rent when they first moved to Tehran and arranged and funded the applicant’s journey to Australia.  

27. Country information reports indicate that Faili Kurds in Iran who can provide evidence to establish their Iranian ancestry, especially paternal, are eligible for Iranian citizenship, although the process can be a lengthy, complex and costly[10]. As put to the applicant at his hearing, given the existence of such close relatives with common forebears, the Tribunal finds it implausible that his parents would not have sought to reclaim Iranian citizenship on their alleged arrival from Iraq. The applicant offered no explanation as to why they would not have done so, just repeating several times ‘I wish I had something’.

    [10] [10] DFAT Country Information Report: Iran, 14 April 2020, p.27

1. The applicant claimed that as an undocumented Iraqi refugee, he had no right to remain in Iran, was denied basic rights, including access to education, the right to own property in his own name or to register a marriage and lived in constant fear of being detained, beaten or possibly deported by the Basij. Surprisingly, the applicant made no mention of being unable to apply for a work permit, a major concern for undocumented refugees, as highlighted in the post-hearing submission from the applicant’s representative. According to a Human Rights Watch Report cited by the representative in his submission:

   In June 2001… all refugees except those with old work permits were classed as illegal workers and thereby subject to expulsion under a law known as Article 48. A new policy of fining and imprisoning the employers of undocumented workers was also introduced. Many refugees were instantly fired from their jobs, and thereby also lost their homes and all entitlement to medical care[11].

   [11] Human Rights Watch, Unwelcome Guests: Iran's Violation of Afghan Refugee and Migrant Rights, 20 November 2013, ISBN: 978-1-62313-0770, available at: p.36. The representative has submitted that, although the report is written with reference to Afghan refugees in Iran, ‘many of the report’s observations retain relevance to stateless Faili Kurds who previously held (or whose ancestors previously held) Iraqi citizenship, given that many of the same legal mechanisms (and bureaucratic procedures) govern the rights and status of both’.

2. Yet in spite of his claim of being undocumented, by his own evidence, the applicant and his family lived in the same location in [District 1] for over 25 years, where, along with his father, he worked on a farm from a very young age. In 2009, the applicant and his family were able to move and find accommodation in the capital Tehran, where the applicant worked full time in a [product 1] business, earning enough money to pay rent. The applicant told the Tribunal that since his departure, his family moved to another location near Tehran, that his father is still employed at the [product 1 business] and his [siblings have] married Faili Kurds who are Iranian citizens and own shops. The Tribunal is dubious that the applicant and his family could have accomplished all this without apparent impediment if they were, as he claimed, undocumented Iraqi refugees.

3. The Tribunal also has reservations about the veracity of the applicant’s claim that he did not receive any form of education in Iran. For a start, the applicant gave inconsistent evidence regarding his language knowledge. In his RSA application, he indicated that he could speak, read and write Kurdish, Farsi and English. When questioned about this at hearing, however, he shifted his evidence several times. He initially said, ‘we don’t have reading and writing in Kurdish’, that his Persian (Farsi) was weak and that he learned English in Australia, though he later said that he could understand and communicate, but not read and write. This was inconsistent with his evidence at his Department interview, as recorded in the delegate’s decision, that he could read Farsi and write in Farsi to 'some extent' and read the Bible in Farsi.

4. The applicant’s evidence regarding his knowledge and use of Farsi was also inconsistent. According to the decisions record, the applicant told the Department that he learned the Farsi language through 'social interaction' in his village and by watching TV but had advised the IMR previously that he was taught to read and write in Farsi by his parents, which would be strange if they came from Iraq, where Arabic is spoken. By contrast he told the Tribunal that his parents were not educated and that when living in [District 1], like most people there, he mostly  spoke Kurdish and did not have much need to speak Persian, although the radio broadcasted only in Persian. He said that it was when he moved to Tehran that he ‘had to learn Persian and speak in Farsi like the Persians’.

5. The Tribunal accepts that the applicant would have some knowledge of Farsi, the national language of Iran. However, it finds it implausible that someone who spent most of his life in in a rural village in Kurdish-speaking Ilam province and only learned or began using Farsi as his main language in Tehran, where he allegedly moved a year before coming to Australia, would have acquired the level of fluency in the Farsi language to speak, read and write (as identified in his RSA application) or to read the Bible in Farsi (as claimed at his Department interview). Further, the Tribunal considers it unlikely that the applicant would have accepted his representative’s advice to opt for his hearing to be conducted with assistance of a Farsi interpreter, unless he had a strong command of the Farsi language, which it considers inconsistent with his claimed profile as described above.

   Departure from Iran through Imam Khomeini International Airport Tehran

6. The applicant told the Tribunal that he departed Iran in 2010 through Imam Khomeini International Airport on a passport in a false name and did not encounter any problems in doing so.  He claimed that his [uncle] paid $[amount] for ‘the whole thing’, including his plane ticket, subsequent journey from Indonesia and passport, which he said, ‘looked like a real passport, but …was a fake one, but hard to tell’.  

7. As discussed with the applicant, the Tribunal does not find it credible that he would have been able to leave through this airport on a passport in a false name. According to DFAT and country information from multiple sources, including those cited in the department’s decision, Iranian passports have advanced security features, including chips with the bearer’s biometric data, making them difficult to forge. These features also make fraudulent passports easy to detect. Moreover, Iran’s sophisticated border control procedures would make it difficult to use such a document in order to leave Iran, especially through Imam Khomeini International Airport in Tehran. Source told DFAT that it was ‘next to impossible’ to bypass security procedures at this airport, because they include computerised cross-checking and multiple layers of physical security and document checking.

8. At the hearing the applicant made no comment in response to this information, other than to say that this was the reason for the rejection of his protection visa application previously and that his uncle arranged everything.  In his post-hearing submission, the applicant’s representative confirmed the applicant’s evidence that he ‘obtained genuine Iranian documents fraudulently obtained which would have mitigated the risk of discovery during departure’. The representative noted that ‘DFAT’s country information provides the possibility that a person may be able to obtain fraudulent identification in Iran.

9. The representative’s submission cited an extract from the DFAT report:

   While it may be possible to obtain a genuine identification document with the intention of impersonating another person, DFAT assesses that sophisticated border control procedures would make it difficult to use such a document in order to leave Iran.  

10. The representative stated that the report ‘provides the possibility that a person may be able to obtain fraudulent identification in Iran and states that while it is difficult to depart Iran, the information does not confirm complete impossibility of departure in such manner’.

11. The Tribunal finds this unpersuasive. It attaches more weight to the information in the subsequent paragraphs of DFAT’s report that ‘obtaining these documents is considered beyond the technical and financial means of most Iranians’, that, in DFAT’s assessment, ‘the chances of obtaining a fraudulent Iranian passport or a genuine passport through fraudulent means are low’ and that it was ‘next to impossible’ to bypass security procedures at Imam Khomeini International Airport’[12].

    [12] DFAT Country Information Report: Iran, 14 April 2020, pp.72-73

12. As well as being a travel document, as noted in the DFAT Report, passports serve as proof of Iranian citizenship. They are issued on the basis of original copies of a shenasnameh (birth certificate), residence permit and recent photographs[13]. In his evidence at hearing, the applicant told the Tribunal that, while his uncle was able to get him a false passport by paying for it, ‘for the shenasnameh, the document, you won’t be able to get it, even if you pay for it’, This was affirmed in the representative’s post-hearing submission referencing a quote from the DFAT Report that ‘Iranian identity documents include sophisticated security features and are difficult to manufacture for fraudulent use’. The Tribunal considers it implausible that the applicant could have been issued a passport on which he could depart Imam Khomeini International Airport Tehran without any difficulty, as he claimed he did, if he did not have a shenasnameh. It is the Tribunal’s view that the passport which the applicant used to depart Tehran was his own genuine passport, be it in the name of [Alias A], as claimed, or some other name.

    [13] ibid.

13. Having considered the applicant’s vague and implausible evidence regarding the experience of his parents as alleged Faili Kurds expelled from Iraq and his own experiences as an undocumented/stateless Faili Kurd in Iran, as well as inconsistencies with country information, the Tribunal is not satisfied that the applicant has been truthful about these issues. The Tribunal’s concerns are compounded by his evasive answers regarding his grandparents’ citizenship and nationality.

14. According to Iran’s nationality law as defined in Article 976 of the Civil Code of Iran, persons considered to be Iranian subjects include:

    Those whose fathers are Iranians, regardless of whether they have been born in Iran or outside of Iran[14]

    In this context, the Tribunal considers that the applicant’s grandparents, like their siblings, were Iranian citizens, as were his parents, whether born in Iran or Iraq. The Tribunal also finds that the applicant is an Iranian citizen, not an undocumented stateless Faili Kurd, as claimed.

    [14]

15. Consequently, the Tribunal does not accept the applicant's claims that he was denied basic rights and access to services in Iran, nor that he was persecuted as a stateless Faili Kurd, an undocumented Iraqi refugee or someone perceived to be without a nationality in Iran by the Basij or other authorities.

    Persecution by the Basij and authorities as an undocumented Faili Kurd, Iraqi refugee or Faili Kurd

16. The applicant claimed that because they had no identity documents, undocumented Faili Kurds or Iraqi refugees were at risk of being apprehended and beaten by the Basij or other authorities and face possible deportation. Yet the applicant told the Tribunal that he only had one such encounter with the Basij in 2005, when he was detained and badly beaten after failing to provide his identity documents. Significantly, his accounts of this encounter were inconsistent between his evidence to the Department and the Tribunal.

17. In his RSA statement, he stated that he was held for 24 hours and released after an elderly Basij saw that his collarbone had been broken and he was bleeding. By contrast, at hearing he told the Tribunal that he was first held at a Basij station overnight, then taken to [District 1] and again held overnight. The next day three elders from his area came to intercede with the authorities and secured his release: ‘Just by talking to them, saying that I’m not a criminal, I haven’t done anything… Just by talking to them, I was out. They let me go’. The applicant said this was a common thing that would happen if someone got arrested. Yet later in the hearing when asked if any money had to be paid, the applicant said ‘Yes, they did pay, like bribed them’ but said he didn’t know exactly how much and that the money probably came from his father. In the Tribunal’s view, these inconsistencies in the applicant’s account raise doubts that the encounter with the Basij happened at all. 

18. The Tribunal has had regard to the representative’s submission that the evidence regarding those who came to assist the applicant to be released was misinterpreted. However, as the representative has failed to detail the errors or to provide a correct translation, as requested, the Tribunal does not attach weight to this submission. 

    Imputed political opinion against Iranian government as a Faili Kurd or supporter of Kurdish political groups

19. Both the applicant and his representatives have posited that he would be at risk of harm in Iran because of his Faili Kurdish ethnicity and his imputed political opinion of opposition to the government. The applicant also told the Tribunal at the hearing that he feared returning to Iran because he was Kurdish and might be suspected by the authorities of anti-government political involvement and put in prison. He said the authorities were suspicions about Kurdish people, whom they regarded as spies and hanged them because they thought of them as evil.  

20. The applicant told the Tribunal that neither he nor his family were involved in any political movements in Iran and he was not aware of any Faili Kurds who were involved in political movements. He said he would have liked to be involved in the independence of Kurdistan, but because of the situation wasn’t able to do anything, although most other Kurds were politically involved. He knew that people were politically involved in groups like PJAK, but he wasn’t involved.

21. As discussed with the applicant at hearing, according to country information, including DFAT reports cited in the Department decision, a distinction should be drawn between Faili Kurds, who, like the majority of Iranian Muslims, are predominantly Shia and the rest of the Kurdish population in Iran who are mostly Sunnis. DFAT is not aware of specific instances whereby authorities have singled out Faili Kurds for mistreatment and Faili Kurds who are Iranian citizens can access services on the same basis as other Iranian citizens and appear to face little to no discrimination on the basis of their ethnicity or religion.

22. These reports indicate that there is no country information suggesting any significant political movement of opposition to the government amongst the Faili Kurdish population in Iran, nor Shia Kurdish involvement in armed struggle against the government, which would potentially put them at risk of being targeted by the Iranian authorities. Country information about Kurdish groups opposing the Iranian government shows such groups consist primarily of Sunni Kurds in the west and north-west of the country, in particular with PJAK (Kurdistan Free Life Party), a known Kurdish political and militant organisation.

23. The Tribunal has had regard to the submissions from the applicant’s representatives regarding the persecution of Kurds and denial of their rights by the Iranian authorities. However, it notes that these reports relate to Sunni Kurdish activists in the north west of Iran, not to the Faili Kurds from Ilam province with no political profile like the applicant.

24. In view of the above, the Tribunal is not satisfied that the applicant faces harm on the basis of his imputed political opinion against the Iranian government as a Faili Kurd or as a supporter of Kurdish political groups.

    Persecution as a Christian convert and a Muslim apostate

25. The applicant’s fear of persecution on the grounds of his conversion to Christianity was a late claim introduced in his migration agent’s submission of 19 June 2013, after his matter was referred back to the Department following judicial review of the IMR’s decision in June 2013.

26. In a discussion of the circumstances in which he first engaged with Christianity, the applicant told the Tribunal at hearing that, after his application for protection was twice rejected, he felt hopeless about being able to help his family, depressed and suicidal. At the time, he was a Muslim and had not thought about Christianity. However, after one of the women who used to come to the [named] Detention Centre to talk about religion started talking to him and told him she would pray for him. His spirits and self-esteem were lifted. He said to him she was ‘like an angel’. He started to feel more positive and started going to her Bible study classes. The applicant claimed that he realised that he had ‘picked something right in getting close to the Christian religion and thought that maybe God had sent these women to him so he chose this religion. Asked what appealed to him in Christianity, he said the whole Bible talked about loving and caring. The Tribunal suggested that loving and caring were universal values that were elements of most religions. Asked what was special that had driven him to become a Christian, the applicant responded that he felt there was someone listening to his prayer and making him stronger and giving him hope.

27. The applicant said that after leaving [the] Detention Centre  and coming to Sydney he first went to [Church 2] for prayer for three or four years but not every week and not very often. He claimed he was ‘not that good at the time’ and was not happy in that church because there was no Bible study and no improving. He has been going to the [Church 1] since his friend took him there in 2017. He said he liked it because it was ‘Bible based’ and he studied the Bible, which he could now read in English.

    We don’t have study rights. So that’s why I go like to church and like to improve my English, practice English. We can do that but we don’t have study rights, we can’t study.

28. Asked about his Christian practice, the applicant said he read the Bible, went to church every Sunday, went to Bible study and prayed all the time. Asked several times what he learned in the Bible study groups, the applicant said he did not understand everything but liked reading the Bible. As for what Christianity meant to him, he told the Tribunal that he felt an inner peace and that God was closer to him now. He said he also went out evangelising with the Pastor and other friends and recruiting people, who were mainly Kurdish, to the Church. He said he always had a Gospel leaflet with him (a copy of which he submitted to the Tribunal) and if someone was interested, he would invite them to the church to meet the Pastor. Asked about the 45 Old Testament prophecies noted in the Gospel leaflet, the applicant responded by naming a number of the prophets, demonstrating a familiarity with the material. The applicant also showed the Tribunal his [social media site] which had a photograph of a cross on it and links to Christian material.

29. As explained to the applicant at hearing, s.5J(6) of the Act requires the Tribunal to disregard his conduct in Australia unless it is satisfied that he has engaged in that conduct otherwise than for the purpose of strengthening his refugee claims. On the basis of the Baptism certificate and letter from the Minister at the [named] Detention Centre, the Tribunal accepts that the applicant went through a Baptism ritual in 2011, attended church and participated in Bible study groups there. The Tribunal also accepts that the applicant has been attending [Leader C’s] [Church 1] in [Suburb 1] since June 2017, has attended Bible classes in 2019, 2020 and 2021 and is familiar with some of the Gospel materials, participated in other activities, including sharing the Gospel, inviting others to join the church and has put Christian messages on his [social media site], as outlined in his own evidence and the Pastor’s written and oral testimony.

30. While such conduct may be in keeping with that of a genuine Christian convert, it might also reflect the behaviour of someone who engages in conduct in Australia solely for the purpose of strengthening their refugee claims. Claims of Christian conversion are not uncommon among asylum seekers from Iran and not all are genuine, as acknowledged by the church pastor and the applicant’s representative, who noted in his post-hearing submission that the Pastor’s testimony ‘indicated his belief that the applicant was one of a few genuine converts and setting him apart from other converts … due to his consistent commitment to the church’. For reasons outlined below, the Tribunal is not satisfied that the applicant has engaged with Christianity in Australia as a genuine Christian convert, but solely for the purpose of strengthening his claims for a protection visa. Pursuant to s.5J(6) of the Act, it must therefore disregard this conduct.

1. As discussed with the applicant at the hearing, it has serious concern regarding the timeframe in which his engagement with Christianity and the church occurred. By his own evidence, the applicant became involved in Christian activities at [the named] Detention Centre in July 2011, the month after his application for a protection visa was rejected by the IMR and his active involvement with the [Church 1] followed the Department’s refusal of his SHEV visa in June 2017.  

2. The applicant gave inconsistent evidence regarding his church attendance when he first came to Sydney at his Tribunal hearing and his Department interview. According to the Department decision record, he gave generally vague responses when asked about any church related activities and was unable to give specific details of the church he claimed he regularly attended in Sydney. He also failed to take up the opportunity offered to him to provide evidence after his interview which would support his claim that he had genuinely converted to Christianity and was a practicing Christian. By contrast, he told the Tribunal that he attended [Church 2] for prayer for three or four years, although infrequently. When queried as to why he did not provide evidence about this to the Department, the applicant told the Tribunal that this was because he was upset, angry and confused that his case was being reviewed again. He went on to say that at that time, he didn’t know much about the Bible and was not going to Bible study. Moreover, he considered belief and religion to be private matters, so didn’t want to provide a letter or give more detail. The Tribunal considers this explanation disingenuous. In its view, the applicant did not continue his Christian practice after he left the [named] Detention Centre and only actively engaged with it again following refusal of his SHEV visa in June 2017.  The reason he was unable to give details of [Church 2] to the Department was that he did not attend it, even infrequently, and his evidence to the Tribunal that he did not like it because it had no Bible study and improvement was fictitious. 

3. As the Tribunal has not accepted that the applicant is a genuine Christian convert, the Tribunal is dubious that he has spoken to his parents and [siblings] about his conversion to Christianity, as claimed, and notes his evidence that he has not been able to talk to his [siblings] about the Bible because of his mother. Nor does the Tribunal accept that, if he had to return to Iran, the applicant would try to explain to his family that the Christian religion was ‘their way to be saved’, as claimed, nor that he will engage in any Christian-related activity, such as attending church, proselytising or posting messages on social media, including [his specified social media], which is, in any case is blocked in Iran.

4. The Tribunal has considered submissions by the applicant’s representatives that, as he has renounced Islam, is no longer a practicing Muslim and has been baptised into the Christian religion in Australia, the applicant fears persecution by the Iranian authorities as an apostate. In the post-hearing submission the representative posited that apostates and converts in Iran face persecution if they reveal their religious opinions as they truly are and cannot be expected to restrain themselves in their expression, nor to feign affinity to a faith with which they no longer abide. As the Tribunal is not satisfied that the applicant’s conversion to Christianity is genuine, it does not consider this is relevant to his circumstances.

5. In a discussion about his family’s religious beliefs in Iran, the applicant told the Tribunal that he had grown up in a Shia Muslim family in which only his mother was practicing and taught the children to recite prayers and fast at Ramadan when they were young, while his father was not religious. For his part, the applicant said he was now more familiar with the Koran than he had been previously and preferred the Bible, which has more in it about love and caring and women’s rights. The Tribunal accepts that the applicant may no longer accept Islam or the Koran and no longer be a practicing Muslim. However, given his evidence that he does not go around abusing the Muslim religion and regards belief and religion to be a private matter, the Tribunal is not satisfied that he has renounced Islam in any formal way, nor that he will not seek to publicise his views in Iran.

6. The Tribunal also notes that, according to the DFAT report:

   Secularism is widespread, particularly in the major cities and among younger and wealthier Iranians. A significant proportion of the population does not attend mosque or pray on a regular basis, and alcohol consumption is common. Official sources told DFAT that religion was a private matter — that, beyond the expectation that people do not eat in public or hold parties during the holy Muslim month of Ramadan, how one wished to observe Islam was an individual choice and was not a matter for the state[15].

   [15] DFAT Country Information Report: Iran, 14 April 2020, p.36

7. In light of the above, the Tribunal is not satisfied that the applicant will be persecuted as an apostate in Iran, as claimed.

8. While the applicant has engaged in [social media] activity in Australia, including displaying a photograph of a Christian cross on his page and posted links on Christian matters, the Tribunal does not consider that this will put him at risk of serious or significant harm on his return to Iran. According to international observers referenced in the DFAT Report, Iranians who convert to Christianity abroad are unlikely to face adverse official attention upon their return, provided they have not previously come to the attention of the authorities for political activities, maintain a low profile and do not engage in proselytisation activities. This includes individuals who publicise their conversion online while abroad[16].

   [16] ibid, p.70

9. As the Tribunal does not accept that the applicant is a genuine Christian convert and would engage in Christian activities in Iran, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk he will suffer significant harm, including being arbitrarily deprived of his life, being subjected to the death penalty, tortured, subjected to cruel or inhuman treatment or punishment, or subjected to degrading treatment or punishment, if the applicant is returned to Iran now or in the reasonably foreseeable future.

   Failed asylum seeker returnee to Iran from a Western country

100.   The applicant told the Tribunal at the hearing that he feared that if he returned to Iran he might be imprisoned or harmed by the authorities for leaving the country.  The representative also posited in his submission that an application for asylum abroad may be regarded as evidence of anti-regime sentiments; that the Iranian regime will perceive persons who return from other nations without appropriate identity documents or permits as having applied for asylum abroad; and that people perceived to be failed asylum seekers may be persecuted upon return to Iran.

101.   This is not borne out in country information cited in the delegate’s decision and discussed with the applicant at the hearing, including from DFAT and other sources that failed asylum seekers are unlikely to be targeted by the Iranian authorities for the sole reason of having applied for asylum overseas.

102.   Further, as discussed with the applicant at the hearing, according to the DFAT’s most recent report, Iranian authorities pay little attention to failed asylum seekers on their return as 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. DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination. The report further notes that the 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, converting to Christianity or proselytising while abroad[17].

[17] Ibid.

103.   The Tribunal has concluded above that the applicant left Iran lawfully on his own passport and was not of interests to the Iranian authorities at that time.  Given his evidence that he was never a political activist prior to leaving in Iran, the Tribunal is not satisfied that he will be arrested or harmed by authorities, although he may be detained for a short period for questioning at the airport on arrival.

Harm in revenge from family of former neighbour [Neighbour A] or Kurdish armed group

104.   The applicant and his family fled to Tehran from their home in [Village 1] after an incident in 2009 in which their former long-term neighbour [Neighbour A] was hunted down by the Basij and Revolutionary Guard and captured at the applicant’s house where he was hiding. The applicant has claimed that he fears harm in Iran from the family or armed group of his former neighbour [Neighbour A], who might seek to attack or kill him in revenge; and, as a stateless Faili Kurd, he will receive no protection against this armed group from the Iranian authorities, nor be able to seek their protection for fear of being detained and deported.

105.   The Tribunal found the applicant’s account of the incident vague, unconvincing and inconsistent with country information, raising doubts as to whether it really occurred.   

106.   The applicant stated in his RSA statement that [Neighbour A] and his family belonged to ‘one of the biggest tribes in Iran’ and were part of an armed group operating against the government. However, when asked at his Department interview to elaborate, was unable to identify the tribe or explain why they were armed against the government, saying that only [Neighbour A] may have been working for 'PJAK' or another armed group[18]. By contrast at hearing the applicant told the Tribunal that the whole family were involved with PJAK and dealing in weapons. 

[18] Detailed in the Department decision record.

107.   The Tribunal finds [Neighbour A’s] alleged involvement with PJAK dubious given that the applicant told the Tribunal that, like most of the people in his area, [Neighbour A] and his family were Faili Kurds and Iranian citizens. Such involvement is inconsistent with country information noted at paragraph 82 and the applicant’s own evidence at hearing that he was not aware of Faili Kurds getting involved in political movements.

108.   In any case, even if the Tribunal were to accept that the incident that drove the applicant’s family to leave [Village 1] and move to Tehran occurred, which it does not, the Tribunal is not satisfied that the applicant will be targeted or harmed by the [Neighbour A’s] family or armed group. For a start, the applicant’s claim is purely speculative as he and his family fled [Village 1] the same night as the incident out of fear. He told the Tribunal that he was ‘sure’ that if they stayed, ‘they would have assaulted my [family]… would have killed us, things would have happened to us’. Yet, if, as the applicant claimed [Neighbour A’s] whole family was involved with PJAK and dealing in weapons, the Tribunal considers it likely that they would also have been arrested as well as [Neighbour A]. 

109.   The Tribunal has considered the submission of the representative that the evidence regarding the reasons for the applicant leaving [Village 1] was misinterpreted as the interpreter could be heard stating that she needed to check the applicant’s evidence.  However, as the representative has failed to detail the error or to provide a correct translation, as requested, the Tribunal does not attach weight to this submission. 

110.   Further, it is unclear to the Tribunal why it is the applicant, who was not at home when the incident in [Village 1] took place, would be the target for [Neighbour A’s] family or armed group on his return to Iran, rather than his father, who gave away [Neighbour A] to the authorities. By his own evidence, in over a decade since the incident, his family in Tehran have had no contact from [Neighbour A’s] family or the armed group and have faced no harm.  While the applicant claimed in his RSA statement, that he and his family were too frightened to leave their homes and that his family later hid in a village, he told the Tribunal that both he and his father worked at a [product 1 business].

111.   In view of the above, the Tribunal is not satisfied that the incident in which [Neighbour A] was captured at the applicant’s house in [Village 1] actually took place or that the applicant and his family fled to Tehran for that reason. Nor does the Tribunal accept that the reason the applicant decided to flee Iran in 2010 was his fear of being targeted by the Basij or by [Neighbour A’s] group or family, as claimed in his RSA statement. The Tribunal puts more weight on the applicant’s evidence at hearing where he told the Tribunal that, after living in Tehran for a while, his family decided that it would be good for them to help him to get out of Iran, with the hope that he would later be able to help them get out also.

Summary Findings on Refugee Criterion

112.   Considered together, the multiple concerns outlined above lead the Tribunal to conclude that the applicant has not been a truthful or credible witness about his experiences in Iran and the reason he fears harm there or that any of his evidence can be relied upon. The Tribunal is not satisfied that the applicant is a stateless Faili Kurd or an undocumented Iraqi refugee, whose parents fled from Iraq; who, due to his lack of documentation, was denied basic rights in Iran, such as access to basic schooling, the right to own property in his own name or to register a marriage; nor that he never received any form of education and lived in constant fear of being detained, beaten or possibly deported by the Basij. The Tribunal does not accept that while living in Iran, the applicant was detained, beaten and had his collarbone broken by the Basij in 2005 because he could not provide identification.

113.   The Tribunal does not accept that the applicant had a neighbour, [Neighbour A], who was involved with an anti-government armed group, who was captured by the Basij and Revolutionary Guards in his family’s stable in 2009 after the applicant’s father was forced to reveal that he was hiding there; nor that he and his family had to flee to Tehran as a result, and live in constant fear of being arrested, detained, beaten or deported by the Iranian authorities due to their lack of documentation or being harmed or killed by [Neighbour A’s] group or family out of revenge. Neither does the Tribunal accept that the applicant decided to flee the Iran fearing for his safety in Iran for these or any other reasons. Further the Tribunal is not satisfied that the applicant is a genuine Christian convert. 

114.   It follows that the Tribunal is not satisfied that, if he returns to Iran, the applicant will face harassment, be detained, arrested, beaten and possibly killed or deported by the Basij and Iranian authorities because he is stateless, a Faili Kurd, an undocumented Iraqi refugee and a Christian convert, a Muslim apostate, a failed asylum seeker/Western returnee to Iran or because of his actual/imputed political opinion of opposition to the Iranian regime as a Faili Kurd and an asylum-seeker in Australia.  Neither is the Tribunal satisfied that the applicant will be harmed or killed in revenge by the family or armed group of his former neighbour [Neighbour A] or be denied protection against them from the Iranian authorities. In the Tribunal’s view, the applicant fabricated these claims for the purposes of seeking a protection visa in order to remain in Australia.

115.   Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence before it, the Tribunal is not satisfied that there is a real chance that on return to Iran the applicant will suffer serious harm amounting to persecution for reasons of his religion as a Christian convert or a Muslim apostate, as a Faili Kurd, an undocumented Iraqi refugee, a failed asylum seeker/Western returnee to Iran and because of his actual/imputed political opinion of opposition to the Iranian regime as a Faili Kurd or supporter of Kurdish political groups, or for any other Convention reason. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason should he return to Iran now or in the reasonably foreseeable future.

Complementary Protection

116.   The Tribunal has also considered the applicant’s claims under the complementary protection criterion – that is, whether on the evidence before it, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Iran.

117.   The applicant’s representative has posited in his post-hearing submission that, in the event that the Tribunal does not accept that the applicant will suffer persecution because he has sought asylum abroad, he will nonetheless be detained upon his return to Iran pending the determination of his identity and that there is a ‘real risk’ that, while in detention, he will experience ‘significant harm’, even if this ‘significant harm’ is not inflicted for any Convention reason. However the Tribunal notes that in support of this proposition, the representative has referenced country information relating to torture and abuse of prisoners detained in jail, variously while awaiting trial, convicted on politically-motivated charges.

118.   The Tribunal does not accept the representative’s submission as relevant to the case of the applicant as it has found that the applicant is an Iranian citizen who left Iran on his own passport and did not have an adverse profile with Iranian authorities before his departure and other reasons addressed in paragraphs 101-103 above.

119.   The Tribunal accepts that although the applicant was born into a Muslim family, he will have no interest in the practice or profession of any Islamic beliefs. However, as set out earlier in this decision, a large proportion of the Iranian population is not religiously observant and do not face any harm from Iranian authorities for this reason.

120.   The Tribunal accepts that the applicant has engaged in various Christian-related activities in Australia while at the [named] Detention Centre and with the [Church 1] in Sydney and has posted some Christian materials on [social media]. However, the Tribunal has not accepted that the applicant is a genuine Christian convert or has a genuine commitment to the practice of Christianity and does not accept he will engage in Christian activities in Iran now or in the reasonably foreseeable future. Accordingly it finds he will not face a real risk of suffering significant harm for these reasons if he is removed to Iran.

121.   As already noted, according to the DFAT Report, 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. The report also notes that Iranian authorities pay little attention to failed asylum seekers in Iran and 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 or converting to Christianity.

122.   The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that he would suffer significant harm, which includes arbitrary deprivation of life, the death penalty, torture or cruel or inhuman treatment or punishment, or degrading treatment or punishment.

CONCLUSIONS

123.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

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

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

DECISION

126.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Mara Moustafine
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

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

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

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

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

…

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

(a)     that is not inconsistent with Article 7 of the Covenant; or

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

…

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

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

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

…

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

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…