1803103 (Refugee)

[2021] AATA 3539

1803103 (Refugee) [2021] AATA 3539 (12 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1803103

COUNTRY OF REFERENCE:                   Iran

MEMBER:Sean Baker

DATE:12 August 2021

PLACE OF DECISION:  Melbourne

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

that the grant of the visa is not prevented by s.91W.

Statement made on 12 August 2021 at 3:08pm

CATCHWORDS
REFUGEE – protection visa – Iran – forced marriage – haram – adulterous relationship – marriage to an Australian citizen – two Australian citizen children – particular social group – separated/single woman with no family support – Kurdish woman – no employment history – significant economic hardship – capacity to subsist – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 91W
Migration Regulations 1994 (Cth), Schedule 2

CASES
MZAFZ v MIBP [2016] FCA 1081

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of the Islamic Republic of Iran (Iran)applied for the visa on 20 August 2013 and the delegate refused to grant the visa on 19 April 2016.

3. The applicant appeared before the Tribunal on 3 August 2008 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

4. The applicant was represented in relation to the review by her legal representative.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

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

10. The issue in this case is whether the applicant has a well founded fear of persecutioj on return to Iran or will face a real risk of significant harm if returned from Australia to Iran.For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Background and Family information

11. The applicant was born on [date] in Ilam, Iran. She is [age] years old of Iranian nationality, Kurdish ethnicity and Sunni Muslim faith.

12. In 1998 her family moved from Ilam to Tehran, Iran. She lived in Tehran until departing Iran [in] April 2013 transiting through [Country 1] to [Country 2]. [In] April 2013 she departed [Country 2].

13. The applicant is one of [number] children of her parents and has [number] elder sisters, one elder and [number] younger brothers. The applicant was separated from her then husband when she left Iran.

14. The applicant arrived in Australia [in] May 2013 with her claimed de facto partner, [Mr B]. They were initially held in immigration detention in Darwin.

    Claims before the Department

15. The applicant and [Mr B] were granted Bridging Visas E on 10 July 2013 and settled at an address in [Address 1] in Adelaide.

16. The applicant made separate but connected claims for protection from [Mr B][1], they can be summarised as follows

    [1] [Department file number] folios 45-50.

    ·She is seeking protection from Australia to prevent being returned to Iran, she fears persecution in Iran as she was involved in a relationship outside marriage prior to fleeing Iran, she fears persecution by the Iranian authorities, male members of her family and her husband. She fled Iran with her then de facto partner [Mr B].

    ·She had met [Mr B] in 2008 at the wedding of a cousin of [Mr B]. They began speaking on the phone on a weekly basis, the frequency of call increased when the applicant got her own phone. She and [Mr B] fell in love and would arrange to meet each other, pretending to be brother and sister or husband and wife.

    ·In 2011 her and [Mr B] decided they wished to marry. [Mr B]’s family would not permit this as they wanted him to marry his cousin.

    ·At around this time the applicant’s brother decided he wanted her to marry his friend [Mr C]. When she expressed her opposition to this her brother assaulted her, breaking her finger and burning her.

    ·The applicant and [Mr C] were married in ceremony toward the end of 2011 though did not live together at the time She resisted her husband’s affections for a year while pressure for [Mr B] to marry his cousin increased.

    ·In or around March 2013 [Mr B] had rented an apartment and moved out of his family home

    ·The applicant visiting [Mr B]’s apartment during which her husband and a police officer arrived. The police office beat the applicant while her husband beat [Mr B]. The police officer asked after the applicant’s presence in the apartment, and when [Mr B] explained their relationship the police office informed them what they were doing was haram and against the law and took her and [Mr B]’s identity documents.

    ·The police office then called for assistance to transport her and [Mr B] to the police station, the couple feared for their lives as adultery is punishable by death from stoning in Iran.

    ·While being transported to the police station a different police officer asked for a bribe, [Mr B] gave the police officer a gold ring and arranged to borrow [amount] Tomans from his friend [Mr D] to pay the bribe.

    ·When released by the police officer the couple went into hiding in [Mr D]’s carpentry shop. [Mr D] advise them to flee Tehran, and eventually to leave the country. [Mr D] knew of a way to acquire false passports and [Mr B] paid him to arrange their departure.

    ·The couple left Iran and transited through [Country 2] eventually making her way to Australia

    ·The applicant did not believe it is possible for her to relocate to another part of Iran, as her family and husband would track her down, and authorities would not offer her protection.

17. Department investigations reveal that the applicant and [Mr B] shared an address with a man name [Mr E] and a woman name [Ms F] at [Address 1]. It was noted one of the applicant’s elder sister was named [Ms F].[2]

    [2] Decision Record 9

18. The applicant and [Mr B] were interviewed separately in relation to their protection visa applications on 28 January 2015. The delegate asked the applicant of her older sister [Ms F]’s whereabouts to which the applicant replied saying [Ms F] was in Iran and married to a man named [Mr E], and the persons she lived with in Adelaide were friends of [Mr B]. When the delegate then presented the applicant with evidence that the woman she was living with was her sister, the applicant admitted this was the case.[3]

    [3] Decision Record 9-10

19. [Ms F] arrived in Australia in 2007 and was granted a protection visa in 2009. Her claims for protection, similar to those of the applicant, centred on fleeing Iran for fear of persecution for engaging in an adulterous relationship following a forced marriage.[4]

    [4] Decision Record 10

20. During her interview the applicant stated she was not aware of her sister’s situation or whereabouts prior to her arrival in Australia, other than that [Ms F] has also been forced to marry a man of her brothers choosing with whom she did not live prior to her disappearance. The applicant claimed her and [Ms F] did not have a good relationship, had only seen each other once since arriving in Australia, and that [Ms F] did not want anything to do with her.[5]

    [5] Decision Record 10

21. When asked about her relationship with [Mr B] during the interview the applicant stated she and [Mr B] had entered into a temporary marriage (sigheh) in 2010 or 2011 prior to her brother arranging her marriage to [Mr C]. She claimed this marriage had no legal weight, but was consent provided by an Imam to allow her to talk to and be seen with [Mr B].[6]

    [6] Decision Record 7-8.

22. When questioned about her marriage to [Mr C] and her relationship with [Mr B] at interview, the applicant stated that [Mr C] had bought her a ring, and a mullah had been booked to preside over the religious ceremony. Both her and [Mr C]’s family then attended a ceremony at the registry office. The applicant stated she did not live with her husband following this ceremony as it was accepted this would not occur until the actual civil ceremony took place.[7]

    [7] Decision Record 8.

23. During the interview the applicant stated she had continued to see [Mr B] before and after her marriage to [Mr C] and would visit him at his apartment over a period of 18 months – she would usually call [Mr B] to let him know she was coming. She stated that [Mr C] knew that she had rejected him and was waiting for him to grant her a divorce.[8]

    [8] Decision Record 9.

24. In response to a request under s.91W for identification documents on 26 February 2015 the applicant provided the delegate with a fresh statutory declaration[9] which can be summarised as:

    ·The applicant’s identity documents; birth certificate, national identity card and marriage certificate are with her family in Iran.

    ·She fears her family or husband will kill her as a matter of honour if she contacts them and discloses her location to obtain the documents.

    ·She has asked a friend in Iran to contact her family to obtain the documents and [University 1] to obtain education records. The friend says she was willing to help the applicant but has yet to do so.

    ·The applicant knows of no other way to obtain the documents

    [9] [Department file number] folios 201-202.

25. On 23 July 2015 [Mr B] informed the department that he and the applicant had ended their de facto relationship.[10] From this point their applications were dealt with separately.

    [10] [Department file number] folios 190-191.

    Findings of the delegate

26. On 19 April 2016 in refusing to grant the applicant a visa made the following findings that they did not accept:

    ·The applicant was ever married to [Mr C] or involved in an adulterous relationship with [Mr B].

    ·That the applicant and [Mr B] were arrested at [Mr B]’s apartment, nor were they confronted there by [Mr C] or a police officer.

    ·The applicant and [Mr B] departed Iran on fake passports in fear of prosecution

    ·The applicant had no idea what had happened to her sister [Ms F] following [Ms F]’s disappearance from Iran in 2008.

    ·The applicant had no idea of [Ms F]’s whereabouts’ prior to leaving Iran.

    ·The applicant and [Mr B] only became aware of [Ms F]’s whereabouts once in Immigration detention in Darwin

    ·The applicant was unable to produce identity documents.[11]

    [11] Decision Record 13.

27. The delegate refused the application on both the basis of finding the applicant did not satisfy s.36(2) and in addition did not satisfy s.91W.

    Application before the Tribunal

28. The applicant lodged her present application for review with the Tribunal on 2 May 2016.

29. On 12 February 2018 the applicant’s representative wrote to the Tribunal and confirmed that the applicant’s relationship with [Mr B] had ended; she had married an Australian citizen; and at that time she was pregnant and expecting the birth of her first [child].

30. On 30 July 2021 the applicant’s representative provided the Tribunal with submissions and documents consisting of:

    ·A marriage certificate relating to the marriage of the applicant and [Mr A] [in] august 2017

    ·A copy of [Mr A]’s Australian passport

    ·A copy of the birth certificate for the applicant and [Mr A]’s [Child 1] born [date].

    ·A copy of the birth certificate for the applicant and [Mr A]’s son [Child 2] born [date].

    ·A letter from the applicant’s treating clinical psychologist dated 5 April 2021.

    ·Photographs of the applicant, [Mr A] and their children

    ·Intervention Orders taken out against [Mr E] in the Magistrates Court of Victoria on behalf of the applicant and [Mr A] dated [January] 2019 and expiring [January] 2020

31. On 3 August 2021, the Representative submitted statements made by the applicant and [Mr A].

32. In her statement of 30 July 2021, the applicant addressed the findings of the delegate and outlined developments in her personal circumstances since the delegate’s decision as can be outlined below.

    ·The applicant continues to rely on the statements made to the department on 30 July 2013 and 26 February 2015.

    ·The applicant’s family remain living in Iran and she has not had contact with them since she fled. She does not know if they are aware of her relationship with [Mr B] ending; her marriage to [Mr A]; or the birth of her children. She does not know how her family would react to these developments.

    ·She only became aware that her sister [Ms F] was living in Adelaide following her own arrival in Australia. It was only after reuniting with [Ms F] that she became aware that they fled Iran in similar circumstances.

    ·She has again lost contact with her sister [Ms F]. [Ms F]’s husband [Mr E], suffering from issues connected to amphetamine addiction had made threats and accusations against [Ms F], [Mr A] and the applicant.

    ·[Ms F] stayed with the applicant and [Mr A] for a time during 2018 when the applicant’s daughter was approximately [number] months old. [Mr E] came to the house carrying a weapon and threatening the occupants. Police intervention was required and this led to the Intervention Orders being made by the Magistrates Court of Victoria. The applicant has not had contact with her sister since.

    ·Restated that she was unable to access identity document from Iran due to the breakdown of her relationship with her remaining family there. Her attempts to obtain documents from [University 1] were unsuccessful.

    ·Her claims for protection still centre on the harms she fears from either her family or her former husband [Mr C] on the basis of her relationship with [Mr B].

    ·She claimed that [Mr B] struggled to adapt to life in Australia and blamed the applicant and her family for their need to flee Iran. This led to the breakdown of their relationship.

    ·She married [Mr A] who, while now an Australian citizen originally came to Australian seeking protection from harm in Iran. Their children are Australian citizen and have not travelled outside Australia.

    ·Her mental health has suffered particularly following the incident with [Mr E] in 2018. However this is also informed by the trauma of the circumstances surrounding her forced marriage to [Mr C], her departure from Iran, the breakdown of her relationship with [Mr B] and post-natal depression.

    ·[Mr A] fears returning to Iran, and will not do so were she forced to return. She fears she cannot return to either Illam or Tehran for fear of discovery by her family or [Mr C]. She does not feel she could obtain protection from authorities in Iran, and rather she would be targeted by the authorities owing to the events surrounding her departure.

    ·She believes [Mr A] would not permit their children to be taken to Iran with her – however she fears for their safety for being perceived as westernised and anti-Islamic should this occur.

33. In his statement [Mr A] stated:

    ·He was born in Iran and travelled to Australia by boat, where he was granted a Protection visa on account of the persecution he feared in Iran. He was granted Australian citizenship in 2014.

    ·He first met and married the applicant in 2017, and they have since had two children together

    ·He fears returning to Iran and will not do so. He does not want his children travelling to Iran and would hold grave fears for their safety should they do so.

    ·He would be devasted should the applicant be required to return to Iran and be fearful for her safety.

    ·He fears for the wellbeing of his children should they be forced to be separated from either one of their parents.

    Certificates

34. On the Department file are several certificates. The first, which is unpaginated but is dated 19 January 2020 and refers to only one page, folio 166.  is not relevant to the applicant because it concerns exclusively information relating to her former de facto partner. I have not provided this information to her because it is not relevant to her case, and I have therefore not considered whether this certificate is valid. (there is an earlier certificate for the same page but dated 16 January 2020).

35. At folio 230 there is a further certificate purported to be issued under s.438 which states that disclosure of the information for a number of pages (including that in the above certificate(s)) is contrary to the public interest because those pages contain information relating to an internal working document and business affairs. On the face of it this ‘certificate’ does not explain or demonstrate a reason that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding because the ‘reasons’ are too brief and undetailed, do not identify the harm to the organisation, and do not appear to adequately relate to the folios in question. : MZAFZ v MIBP [2016] FCA 1081. I find that the certificate at folio 230 is not a valid certificate.

    Findings on s36(2)

1. As did the delegate, I share very serious reservations about the applicant’s claimed marriage to [Mr C]. She was unable to provide clear details about when she was married to him. She was clear that they remained married but was unable to explain why they she was able to validly marry [Mr A]. I have reached a positive state of disbelief that the applicant was married to anyone called [Mr C]. I do not accept that she would be harmed on return for any reason connected to this claimed marriage.

2. The applicant claims that she cannot return to Iran because she will be harmed by her family. I do not accept that her family will harm her because of any claimed marriage to [Mr C].

3. However. I have had regard to the information I do accept. I accept that the applicant has married [Mr A] and has two Australian citizen children with him. I accept that they were forced to take out an intervention order, a copy of which has been provided to me, against the applicant’s brother-in-law due to his threatening and violent behaviour against them in Australia. I have also carefully considered the information that the applicant has consistently provided that she fears her family and has not had any contact with her family in Iran since she departed. Having carefully considered her evidence given at hearing I found her to be evasive in her responses about her family but not untruthful. I accept that at the very least if she returned to Iran her family would not support her.

4. I have also considered and accepted her evidence and that of [Mr A] that he would not return to Iran if she was returned. I accept that he was granted protection in Australia on the basis of fear of harm on return to Iran. I also accept that he would not allow for their children to return to Iran with the applicant. This would cause very real and significant harm to these children, but this is beyond the scope of this assessment.

5. I find therefore that the applicant would return to Iran as a separated woman without the protection of her family. I accept that the applicant is Kurdish, and is able to be identified as such from her name and background. She has not worked in Iran or Australia.

6. I have also had regard to the applicant’s evidence that she has not worn a head covering in Australia because she is more comfortable that way. I note that in photographs and her Australian licence she does not have a head covering. She said that she had covered her head in Iran and would do so if returned only because it was mandatory, this would not be her choice. 

7. Country information indicates that women’s ability to participate in Iranian society is limited despite some formalised measures, and DFAT has assessed that ‘…most Iranian women face persistent societal discrimination and the threat of gender-based violence. Legislation, longstanding traditional values and gender roles continue to restrict the participation of women in the workforce and community. Activists attempting to promote women’s rights face a high risk of official discrimination.’[12] Other reports note that female divorcees frequently face discrimination and single women may live alone but often face difficulties due to societal suspicion.[13] Further, that whilst single and divorced women may be more accepted in Tehran, an uneducated woman will most likely have to go back to her family as she will find it hard to support herself financially.[14] I have also had regard to information that Kurdish people face discrimination in a range of areas including employment and economic aid.[15]

   [12] DFAT Country Information Report Iran, 14 April 2020, 3.120 – 3.135.

   [13] ‘Perception of Identity Threat as the Main Disturbance of Iranian Divorced Women: A qualitative study’, Zare, S, Aguilar-Vafaie, ME, Ahmadi, F, Journal of Divorce & Remarriage, vol., 58, no. 1, 11 January 2017, pp. 4–8, 10 CISEDB50AD5992; ‘More women in Iran are forgoing marriage. One reason? The men aren't good enough’, Los Angeles Times (United States), 11 November 2016, CX6A26A6E17124.

   [14] 'Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc.', Danish Immigration Service, Danish Immigration Service, 01 April 2009, p.24, CIS17329

   [15] 'Country Reports on Human Rights Practices for 2020 - Iran', United States Department of State, 30 March 2021, p.54, 20210331113214; ‘DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, p.27, 20200414083132; ‘Rights Denied: Violations against ethnic and religious minorities in Iran’, Ceasefire Centre for Civilian Rights (United Kingdom), Centre for Supporters of Human Rights (United Kingdom), Minority Rights Group International (United Kingdom), 13 March 2018, CIS7B83941441; ‘Iran – Failing on all Fronts’, Amnesty International, 30 June 2019, p. 9, 20190704101420

8. Social support in Iran is structured around payments from current or previous employers. Those such as the applicant who have not worked are not eligible. The applicant is too young for the aged pension. Whilst there is very limited services for vulnerable women such as the applicant from the State Welfare Organization (SWO), the services of this organisation are significantly stretched with a larger number of vulnerable women than they are able to care for.[16]

   [16] Landinfo, Iran, the Iranian Welfare System, 12 August 2020.

9. It is indisputable that the applicant will return to Iran as a Kurdish, separated/single woman with no family support and no employment history. I find on the country information before me that she will struggle to gain employment and accommodation and other basic necessities of life, on the basis of her membership of the particular social group of divorced/single women, and as a Kurdish woman. Whilst many women in this situation would rely on their families for assistance, I have accepted above that the applicant cannot. I find on the country information before me that this will be so severe as to constitute a real chance of the applicant suffering significant economic hardship that threatens the person's capacity to subsist, and that therefore reaches the level of serious harm. I find that such harm will be for the essential and significant reason of her membership of the particular social group of divorced/single women, and as a Kurdish woman. This persecution is systematic and discriminatory because the treatment of single/divorced women targets such women on this basis. The systems of social protection have been put in place around employment (where women are massively underrepresented) and older persons rather than to protect vulnerable but discriminated groups such as divorced/single women.

10. Such harm will not be ameliorated by the authorities of Iran, who have demonstrated an unwillingness and inability to address the inequality of women in their society that leads to such harms, indeed, it is part of official government policy of the Iranian theocracy. The applicant would not be able to relocate to another area of Iran, as the information before me indicates that treatment for single/divorced women is worse in other areas of Iran.

    Findings on s91W

11. For the reasons above, I accept that the applicant is not in contact with, and is not supported by, her family. I accept that without being present in Iran and with no family support, it is practically very difficult and may be impossible for the applicant to provide the identity documents requested. I accept that she has taken reasonable steps including seeking identifying information from friends or others to obtain identifying information. As such I find that subsection 91W(2) does not apply to prevent the grant of the visa.

    Conclusions

12. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

13. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act; and that the grant of the visa is not prevented by s.91W

    Sean Baker
    Member