1820283 (Refugee)
[2020] AATA 648
•7 January 2020
1820283 (Refugee) [2020] AATA 648 (7 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1820283
COUNTRY OF REFERENCE: Stateless
MEMBER:Jason Pennell
DATE:7 January 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the directions that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 7 January 2020 at 2.43pm
CATCHWORDS
REFUGEE – protection visa – Stateless – Federal Court remittal – ethnicity – Faili Kurd born in Iran to Iraqi parents – discrimination, attack and threats – fear of arrest, torture and death – departed Iran on fraudulent passport – right of return – status of Faili Kurds in Iran – right to Iranian or Iraqi citizenship – religion – atheist of Shia Islamic background married to a Christian woman – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), 65, 91RCASES
Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
DZABG v MIAC [2012] FMCA 36
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Savvin (2000) 98 FCR 168Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
QAAE v MIMIA [2003] FCAFC 46
Rishmawi v MIMA (1997) 77 FCR 421
Savvin v MIMA [1999] FCA 1265
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 on 13 September 2013 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).
2.The visa applicant applied for the visa on 21 November 2012. The delegate refused to grant a visa on the basis that the applicant is not a person in respect of whom Australia owes protection obligations as outlined in s.36(2)(a) or s.36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations.
3.The applicant appeared before the Tribunal on 27 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Kurdish and English languages. The Tribunal also took oral evidence from Ms [A] (‘the applicant’s wife’). The applicant was represented in relation to his review and at the Tribunal hearing by his registered migration agent.
4.The Tribunal first heard the applicant’s claims for protection on 9 December 2014. By a decision dated 24 March 2015,[1] the Tribunal, differently constituted, determined that the applicant was not owed Australia’s protection obligations (‘the Tribunal’s decision’). The Tribunal’s decision included the applicant, his older brother [Mr B] (‘the applicant’s brother’) and the applicant’s mother [Ms C] (‘the applicant’s mother’). (‘the applicant’s family’). The applicant’s family appealed the Tribunal’s decision to the Federal Circuit Court (‘FCC’) [in] May 2015.[2] [In] June 2018, the FCC remitted the matter back to the Tribunal for determination on the basis that the Tribunal did not actively engage with the claim relating to the applicants’ relatives having been hanged or kidnapped by reference to the complementary protection criteria and thereby fell into jurisdictional error.[3]
[1] AAT decision, Review No. 1313924, dated 24 March 2015.
[2] FCCA [number].
[3] Although the Tribunal advanced reasons for giving the claim little weight, the Tribunal did not give that claim no weight. Therefore it remained a live claim that the Tribunal was required to deal with under the complementary protection provisions.
5.For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
RELEVANT LAW
Refugee Criterion.
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.Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
9.There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
10.Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant,[4] and systematic and discriminatory conduct.[5] Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
[4] s.91R(1)(b)
[5] s.91R(1)(c) of the Act
11.Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
12.Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared.[6]
[6] s.91R(1)(a) of the Act
13.Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
14.In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
15.Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
16.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’).
17.‘Significant harm’ for these purposes is exhaustively defined in s.36(2A).[7] A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally.[8]
[7] s.5(1) of the Act
[8] s.36(2B) of the Act
Mandatory considerations
18.In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
19.The issue in this case is whether the applicants meet the criteria set out in either of s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s migration history
20.The applicant’s protection visa application is contained in the Department’s file dated 16 November 2012.[9] By his application the applicant states that he was born [Date] in Tehran, Iran.
[9] Department file [number] Ref [number]
21.The applicant claims that his parents are both stateless being Faili Kurds.[10] As a result the applicant claims that he is also a stateless Faili Kurd who lived in Iran as an undocumented refugee. The applicant stated that he is a Shia Muslim and could speak, read and write Farsi and speak ‘Kurdish Faili’.[11]
[10] Ibid.
[11] Ibid.
22.In addition the applicant stated that his father, [Mr D] (‘the applicant’s father’), and younger brother [Mr E] (‘the applicant’s younger brother’), arrived in Australia by boat in 2010 and that they have since been granted protection and permanent residency in Australia.[12]
[12] Ibid.
23.The applicant arrived with his brother and mother in Australia [in] July 2012 as an unauthorised maritime arrival aboard a boat codenamed [Name].[13] The applicant claimed that he travelled on a fraudulent Iranian passport issued in his name, date of birth and with his photograph.
[13] Delegate’s decision, Department file [number], Doc Ref [number], p.1
24.The applicant claims that [in] June 2012 he departed Tehran, with his brother and mother, transiting through [Country 1] before entering [Country 2], where he spent around one week while waiting for his passage to Australia. The applicant and his family were held in immigration detention after arriving to Christmas Island [in] July 2012. The applicant was granted bridging visa on 7 November 2012.
Supporting documentation
25.In support of his protection visa application, the applicant provided the following to the Department and the Tribunal:
(a)Form 866, Application for a Protection (Class XA) visa, dated 16 November 2012.[14]
[14] Department file [number], Doc Ref [number]
(b)Statutory declaration outlining claims, dated 16 November 2012.[15]
[15] Ibid.
(c)Form 80, personal particulars form, dated 16 November 2012.[16]
[16] Ibid.
(d)the applicant and his wife’s marriage certificate dated [September] 2017;
(e)lease agreements;
(f)a Protection (Class XD) Temporary Protection (Subclass 785) visa grant notice for the applicant’s wife, dated 22 September 2016;
(g)various utilities bills.[17]
[17] Tribunal file 1820283 @ ff.21-35
(h)Letter from [a mental health service provider] in relation to the applicant’s mother advising she is on treatment for depression provided at start of hearing.
(i)Copy and English translation of handwritten document purporting to have been given to the applicant’s mother’s family upon their arrival in Iran.
(j)Letters from the applicant’s parent’s general practitioner regarding their mental health.
26.In addition the applicant provided the previous Tribunal review a copy of the delegate’s decision, dated 13 September 2013.[18]
[18] AAT file No 1313924 @ ff.8-23
27.The applicant consented to share information between his protection visa application with his mother and brother’s applications.[19] In addition he also consented to evidence and submissions provided in his brother and mother’s first Tribunal review applications to be used as evidence in his matter (discussed below).[20]
[19] Delegate’s decision, Department file [number], Doc Ref [number], p.1
[20] AAT file No 1313924 @ f.81
Claims for protection
28.The applicant provided a statutory deceleration dated 16 November 2012 attached to his application for a protection visa which details his claim for protection which states:[21]
[21] Department file [number], Doc ID 4794649 @ p.35
‘Why I left my country.
Due to the fact that I am stateless and a Faili Kurd, I have experienced an extremely difficult life in Iran. My parents are stateless and as a result I am also stateless. I was discriminated against in every facet of life. For example I as regularly required to move schools given we were not considered worthy to stay at many schools. When we were allowed to study, we were not able to obtain and recognition for our study. Further, we required to pay exuberant amounts of money in order to attend school. This put a lot of stress on our family. I was continually bullied by teachers and fellow students given my ethnicity and lack of documentation. I was taunted and called a ‘grass hopper eater.’ In the event I asked a question in class, the teacher would refuse to answer. They would however, provide a lot of assistance and advice to other students in the class. If we wanted to succeed, we would need to also engage the services of a private tutor. This however, would also be useless given we could not obtain official qualifications.
Furthermore, I was not offered access to employment. Workplaces in Iran are regularly subjected to checks. Given I had no documentation; I was concerned that I would be detected by the authorities and subjected to inhuman treatment that they are notoriously known to perpetrate. My father would work as a street vendor in order to support our family. My brother and I would occasionally assist my father. One day, my father was unwell and my brother and I set up the stall. My brother and I were approached by a man who told us to move our stall. I spoke back to him. he then asked for our identity documents. The man then called over another man and they both harmed my brother and I. My brother was trampled on and beaten in the chest. I was hit brutally in the head by a cane. As a result I sustained a broken nose and vision impairment. I also sustained broken teeth. I was left to roll into a creek. It was only after I was beaten I realised he was a member of the Basiji. I particularly noticed that he was carrying a walkie Talkie which further indicated he was a member of the Basjij. My brother eventually had to register me and take me home. Given I am stateless I was unable to obtain medical assistance after this incident rather had to go and visit an unregistered practitioner. This man had limited expertise to assist us. I still have vision issues as a result of the fight.
After this time my family and I were more apprehensive than before to try and live our life freely in Iran. We felt we could no longer work and spent the majority of time at home. As we had no documents, our movements around Iran were restricted. I could no longer live this way. Accordingly, we decided to flee Iran. Despite my parents originating for Iraq, we have no legal right to reside there. In the event we could return there, we could be subjected to harm. As such we decided to flee to another country in order to prevent us from being further deprived of our life and being harmed.
What I fear might happen if I go back to my country:
If I was forced to return, there is high likelihood I would be arrested and tortured if not killed.
Who I think will harm or mistreat me if I go back:
I believe I would be harmed by the Iranian Authorities including the Sepah and Basiji.
Why I believe they will harm or mistreat me if I go back:
I would be harmed upon my return given I am stateless Faili Kurd. Stateless individuals and individuals who are members of racial minorities are subjected to serious harm in Iran. Given we have escaped the country illegally and claimed asylum in a Western country; we would face serious harm upon return. My actions to claim asylum in the West would be construed by the Iranian regime. Given any individual who is viewed to be against the Iranian regime is subjected to serious harm, I would be seriously harmed for claiming asylum in Australia. I am also be considered a spy for the West. They may consider us a member of the Kurdish Party in Iran who is currently fighting against the government. The Iranian regime does not require legitimate means to perpetrate harm they will do anything they desire to individuals who believe oppose them.
Why I believe that the authorities in my country will not protect me if I go back:
The authorities in my country will not protect me given it is the authorities that I fear. The Iranian regime has become more brutal towards stateless Faili Kurds in recent times.
Why I believe I will suffer harm:
The Iranian regime is notoriously known to perpetrate significant harm against individuals who they believe are opposed to regime. They subject individuals to inhumane, degrading and cruel treatment and given I have fled the country illegal and I am of Kurdish Faili ethnicity I would be subjected to such treatment.’
29.During the course of the hearing the applicant confirmed his claim of being stateless as a result of being a Faili Kurd. In addition, the applicant claimed that he would suffer serious or significant harm upon his return to Iran by reason that he is:
(a) an atheist; and
(b) married to a Christian.
30.Finally he claims that he will be imputed with anti-government sentiments and seen as a spy in Iran due to having departed the country illegally and for having claimed asylum in a western country.
Evidence to first Tribunal review
30.In a decision dated 13 September 2013, the delegate accepted that the applicant was ethnically a Faili Kurd but did not accept that he was stateless and found that he was an Iranian citizen. The delegate found the applicant’s mother’s evidence inconsistent and her evidence to run contrary to known country information. The delegate accepted that the applicant was assaulted by Basij but not due to his lack of identity documents. The delegate further did not accept that the applicant departed Iran on fake passports.
31.The applicant’s evidence at the first Tribunal review hearing of 9 December 2014 was similar to that provided at the subsequent Tribunal hearing.[22] The applicant gave evidence about his schooling and life in Iran. He finished grade 12 but did not get any qualifications because he is Faili Kurd. He claimed that he never had any documents but that his mother did at one stage. He never saw anything his dad.
[22] Tribunal’s decision, Tribunal file 1313924 @ ff.106-7
32.The applicant claimed that he was not allowed to do any further studies. Sometimes he helped his father selling on the street. The last time he went to help because his dad was sick at home and he got beaten by Basij. They broke his nose and beat his body. His vision became weak because it affected his brain. His father did not allow him to help him after that.
33.That incident is said to have occurred about six or seven years ago; about a year before his father came to Australia. He was selling clothes on the street. He and his brother were there and two persons came towards them. They asked the applicants what they were selling and asked for their ID. The applicant said something in Kurdish to his brother and the men started saying bad words to them about being Kurds. They started beating them. His brother ran away because he was afraid. They beat the applicant and pulled him down on the street. Other people came and the men disappeared. He confirmed there were two people. His brother took him home. They took him to receive ‘local treatment’ – it was natural treatment but not from a doctor. The person fixed the applicant’s nose because it was broken. His wrist was hurt, his head was beaten. He was bleeding everywhere.
34.The applicant stated that after the incident he and his brother tried to get home by taking a bus. He had to beg the bus driver to let them inside the bus. The applicant claimed that he had eye problems. When they pulled him down to the street and his face was on the street. Dirty water on the street entered his eyes and for one week he had pain in his eyes.
35.On the first occasion it was local people who treated his nose. The second time he went to see a doctor for his eyes. He sees black things in front of his eyes; he uses cream and drops for his eyes. Sometimes he has discharge from his eyes. The left side of his nose is blocked. His brother got two kicks which only left some bruises and then ran away.
36.The applicant stated that there are thousands of Basij. He was asked if he had any other problems before or after with the Basij. He stated that many times he faced problems with Basiji because they always asked about documents and they didn’t have any. He claimed that one time while in high school he was on a bus when they asked for documents and he didn’t have any. The bus driver made him get out of the bus. He said that he had faced it many times.
Applicant’s evidence to the Tribunal.
37.The applicant’s evidence to the Tribunal was that he was born on [Date] in Tehran, Iran. He claimed that his parents are both stateless being Faili Kurds and as a result he is also a stateless Faili Kurd. He claimed that he lived Iran as an undocumented refugee. He claimed that his father owned and conducted a street hawking business in Iran.
38.The applicant claimed that he can be identified as a Faili Kurd by reason of his language, the traditional clothing worn by his parent’s. The applicant claims that his parent’s meet in Tehran but that they had both originally lived in Bagdad, Iraq. He claimed that they were expelled after the revolution. As a result they went to Iran. He claimed that his parents were initially placed in a detention camp before settling in Tehran.
39.The applicant stated that he was not certain but believed his family had green cards on their arrival Iran. He stated that he believes that after they arrived in Tehran his paternal grandparents attempted to apply for citizenship in Iran but their application was refused. In addition, the applicant stated that his parents and grandparents had applied for citizenship in Iraq but that their applications were ‘usually lost’. He claimed that the process was expensive and exhausting.
40.The applicant’s evidence was that he had not made any application for citizenship in Iran or Iraq. He claimed that he had not been able to obtain a birth certificate for either himself or his brother.
41.The applicant’s evidence was that he attended school in Tehran. He stated that he completed High School but was not able to attend College or University due to the fact that he is stateless. His evidence was that upon completing High School, he was not issued with any certificate of completion by reason that he was stateless. As a result he was not able to attend College or University in Iran. He claimed that as a Faili Kurd he had no documentation and as such was not entitled to higher education.
42.The applicant’s evidence was that after leaving school until he left for Australia (approximately three years) he spent his time working for his father in the street hawking business and at home with his mother.
43.The applicant confirmed that he arrived in Australia by boat from [Country 2] [in] July 2012 with his mother and brother. He confirmed that he departed Tehran airport [in] June 2012 with his brother and mother, transiting through [Country 1] before entering [Country 2], where he spent around one week while waiting for his passage to Australia. He said that they paid US$[amount] each for the boat ride to Australia. The applicant stated that his father and younger brother arrived in Australia by boat in 2010 and that have been granted protection visas.
44.The applicant’s brother and mother applied for a protection visas and their matters have also been remitted for review. As a result the applicant was asked by the Tribunal if his review should be heard with his brother’s and mother’s review applications. The applicant’s stated through his representative that his matter should be heard separately.
45.The applicant claimed that he travelled on an Iranian passport that had been obtained fraudulently but issued in his own name, date of birth and photograph. He claimed that his uncle had obtained a passport for him upon and that he had travelled from Iran to [Country 1] and onto [Country 2] on the passport. The applicant’s evidence was that he did not possess an ID card. As such he claimed that the passport was real but was based on false documentation. He claimed that his uncle knew a person in the Government department responsible for issuing passports who was able to arrange for a passport to be issued in the applicant’s name using his own details. The applicant said that his family paid US$[amount] for the passport. His evidence was that the passport had to be used within a certain time frame as it was to be deleted from the Iranian system after a certain period. He claimed that the passport was destroyed on the boat when traveling from [Country 2] to Australia.
46.The applicant’s evidence was that he no longer believed in Islam. He stated that he was an atheist and that he no longer believed in god. The applicant claims that in the event that he returns to Iran that he will speak openly about his beliefs. He claims that he will not be able to reply on the authorities to protect him. The applicant claimed that he has [Social media] accounts upon which he had expressed his atheist views. However, the applicant did not provide any evidence to the Tribunal of him having made such posts as claimed.
47.Finally, the applicant claimed that he was married to Ms [A] [in] September 2017. He claimed that he had meet Ms [A] on Christmas Island. Both the applicant and Ms [A] gave evidence that she is a Christian. As a result the applicant’s claims that there is a real chance he would suffer serious harm in the event that he returns to Iran by reason of the fact that he is married to a Christian.
48.Ms [A] has been granted a protection visa[23] on the basis that she was stateless and a Christian.
[23] Department of Immigration and Border Protection, Visa Grant Notice dated 27 November 2012; AAT file No 1820283 f.26
COUNTRY INFORMATION
49.In addition the Tribunal in accordance with the Ministerial direction No 56 made under s.499 of the Act the Tribunal also had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT). In particular, the DFAT report on Iran dated 7 June 2018 (‘the DFAT Report’) notes the following:
Faili/ Feyli/ Iraqi Kurds[24]
[24] DFAT Report p.18
3.13 The Faili (also spelled Feyli, and commonly known as Iraqi) Kurds are a subgroup of the larger Kurdish population. They originate from the Zagros Mountains which straddle the Iran-Iraq border, and many have family members on either side of the border. Faili Kurds in Iran typically reside either close to the Iraqi border, including Khuzestan, Lorestan, Kermanshah, and Ilam provinces, or in major cities. They are distinguishable from other Iranian Kurds by their religion (most are Shi’a), location, and distinctive dialect. Three main groups of Faili Kurds live in Iran: Iranian citizens, those of Iraqi origin who are registered refugees, and those of Iraqi origin who are not registered refugees. Accurate population estimates for the three groups or for the overall number of Faili Kurds in Iran are not available.
3.14 Upon seizing power in the 1960s, the Ba’athist government in Iraq adopted several policies with the effect of excluding Faili Kurds, most notably Decree No. 666 (1980) that cancelled the Iraqi citizenship of all Iraqis of ‘foreign origin’. Under the Decree, authorities seized the properties and documentation of Faili Kurds, and eventually expelled them by force from Iraq. The expulsion of Faili Kurds intensified during the Iran-Iraq War: some estimates of the numbers of Faili Kurds who crossed into Iran between the late 1970s and 1988 range up to 250,000 (although this estimate is very much at the high end). Iran recognised many (but not all) Faili Kurds as refugees. The number of those remaining in Iran is unclear. Many returned to Iraq after the fall of Saddam Hussein in 2003: UNHCR reported in 2008 that 7,000 registered Faili Kurds remained in Iran. Reports suggest that many Faili Kurds of Iraqi origin have applied for Iranian citizenship. However, the actual number of those who have succeeded in obtaining Iranian nationality is believed to be low due to the lengthy and complicated process and the high costs involved – this is also true for naturalisation applications for nationality from other groups, including those who have married Iranians or been in-country for generations. Others have not applied for naturalisation because they do not have the required family members in Iran to prove their Iranian nationality. DFAT is not aware of specific instances whereby authorities have singled out Faili Kurds for mistreatment, regardless of the category to which they belong.
Conditions for Returnees
5.23 Iran has historically refused to issue travel documents (laisser passers) to allow the involuntary return of its citizens from abroad. On 19 March 2018, however, Iran and Australia signed a Memorandum of Understanding (MOU) on Consular Matters that includes an agreement by Iran to facilitate the return of Iranians who arrived after this date and who have no legal right to stay in Australia.
5.24 The International Organisation for Migration (IOM) runs a program to assist voluntary returnees to Iran, in cooperation with the country from which they are returning. Iranian authorities cooperate with the IOM in this regard. In cases where an Iranian diplomatic mission has issued temporary travel documents, authorities will be forewarned of the person’s imminent return. Authorities will usually question a voluntary returnee on return only if they have already come to official attention, such as by committing a crime in Iran before departing. DFAT is not aware of any legislative or social barriers to voluntary returnees finding work or shelter in Iran, nor any specific barriers to prevent voluntary returnees from returning to their home region.
5.25 According to international observers, Iranian authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government – heavy internet filtering means most Iranians will never see them – converting to Christianity, or engaging in LGBTI activities. In such cases the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists.
Prevalence of Fraud.[25]
5.32 Iranian identity documents include sophisticated security features and would be difficult to manufacture for fraudulent use. 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. In February 2016, the International Business Times reported the arrest in Thailand of a passport forger who admitted to selling forged passports to people from Iran, Iraq and Syria. The majority of forged passports sold by the forger were allegedly used to travel to Europe.
5.33 According to Article 34 of the Penal Code, the penalty for leaving the country without a valid passport (or similar travel document) is between one and three years’ imprisonment, or a fine of between 100,000 and 500,000 rials (AUD4-20). A special court located in Tehran’s Mehrabad Airport deals with such cases. The court assesses the background of the individual, the date of their departure from the country, the reason for their illegal departure, their connection with any organisations or groups, and any other circumstances. This procedure also applies to people who are deported back to Iran and who are not in possession of a passport containing an exit visa. DFAT understands that illegal departure is often prosecuted in conjunction with other unrelated offences.
[25] DFAT Report @ p.50
ASSESSMENT OF CLAIMS AND FINDINGS
Credibility
50.When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.
51.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. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[26]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[27]
[26] s.5AAA Migration Act 1958.
[27] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
52.A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[28] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
[28] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482
53.If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[29] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
[29] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196
54.The Tribunal is aware that vulnerable asylum seekers will have difficulties in providing documents or expressing their fears.
Statelessness
55.Based on the applicant’s own evidence, and consistent with the finding of the previous Tribunal, the Tribunal accepts and finds that the applicant is a Faili Kurd.
56.The applicant claims that as a Faili Kurd he is not a citizen of Iran and is stateless. The Tribunal acknowledges that the applicant’s father and brother were found by the department in 2010 to be owed protection on the basis that they were stateless Faili Kurds. However, it notes that it is not bound by the department’s decision in relation to the applicant’s father and brother. Based on the applicant’s evidence to the Tribunal and the available country information, the Tribunal has concerns about the applicant’s claim that he was undocumented and stateless.
57.The applicant claims that his parents and grandparents as a Faili Kurd were evicted from Iraq to Iran and stripped of their Iraqi citizenship. The applicant himself was born [Date] in Tehran, Iran. As a result of his family being stateless Faili Kurd’s the applicant claims that he is also stateless.
58.In the 1960s to 1980s, the Iraqi Ba’ath regime expelled those it viewed as Iranian, disloyal to Iraq and opposed to the Government.[30] These included Faili Kurds. Tens or hundreds of thousands of Faili Kurds were stripped of their Iraqi nationality, had their property, assets and documents confiscated, and were expelled from Iraq, mostly to Iran.[31] Refugees in Iran have been issued with registration documents including the blue, green and white refugee registration cards. Faili Kurds who arrived in Iran prior to 1979 were mainly issued with white cards, and the majority of those who arrived in the 1980s received green cards.[32]
[30] “Feyli Kurds – obtaining identity travel documents”, DIBP Tehran, 17 September 2015, CISEC96CF13392.
[31] Department of Foreign Affairs and Trade (DFAT), “DFAT Country Report Iraq”, 13 February 2015, CISE96CF1160, 3.8; “Feyli Kurds – obtaining identity travel documents”, DIBP Tehran, 17 September 2015, CISEC96CF13392.
[32] “Feyli Kurds – obtaining identity travel documents”, DIBP Tehran, 17 September 2015, CISEC96CF13392.
59.The applicant’s evidence was that he believed his grandparent’s were issued with a green registration card. In addition he claims that both his parents and grandparents had tried to obtain citizenship from both Iraq and Iran but had failed due to the fact that their applications became lost.
60.The Tribunal notes the country information in which the UNHCR reported in 2008 that 7,000 registered Faili Kurds remained in Iran and suggested that many Faili Kurds of Iraqi origin have applied for Iranian citizenship. However, it is noted that the actual number of those who have succeeded in obtaining Iranian nationality is believed to be low due to the lengthy and complicated process and the high costs involved.
61.In relation to Iraq, the 2005 Iraq Constitution[33] provides that:
Anyone who is born to an Iraqi father or to an Iraqi mother shall be considered an Iraqi. This shall be regulated by law.
An Iraqi citizen by birth may not have his citizenship withdrawn for any reason. Any person who has a citizenship withdrawn shall have the right to demand its reinstatement. This shall be regulated by law.
[33] The Constitution of Iraq, 13 January 2005 Articles 18(2) and 18(3)(a)
62.In addition, the 2006 Iraqi Nationality Law[34] provides that:
A person shall be considered Iraqi if he/she is born to an Iraqi father or an Iraqi mother. [35]
And:
Any Iraqi, who was denaturalised on political, religious, racist or sectarian grounds, shall have the right to restore his Iraqi nationality, subject to submission of an application to this effect. In the case of his death, his children, who have lost their Iraqi nationality consequent to his father’s loss of nationality, shall have the right to submit an application to restore Iraqi nationality. [36]
[34] Iraqi Nationality Law (Iraq) 7 March 2006
[35] Iraqi Nationality Law (Iraq) 7 March 2006 Article 3(a)
[36] Iraqi Nationality Law (Iraq) 7 March 2006 Article 18(1))
63.The country information refers to the fact that the Iraq Constitution states that citizenship is the right of every Iraqi and is the basis for nationality, noting that anyone born with an Iraqi mother or father are Iraqi. In addition, it notes that the Nationality Law (2006) is more progressive and inclusive than previous legislation having removed previous distinctions between Arabs and non-Arabs for the naturalisation process and repealing legislation that revoked the citizenship of the Faili Kurds.[37]
[37] DFAT Report @ p.31
64.A Landinfo report[38] confirms that Faili Kurds stripped of their citizenship during the period of Saddam Hussein in the 1980’s have the right to get their Iraqi citizenship reinstated. The right to demand citizenship also applied to descendants of Faili Kurds born outside Iraq. The report indicates that reinstatement of a person’s citizenship can be applied for through embassies outside Iraq and can be granted to both former citizens and their children. Therefore based on the country information it appears that the applicant was entitled to apply for and be granted Iraqi citizenship.
[38] ‘Iraq: Travel documents and other identity documents’, Landinfo- Country of Origin Information Centre 23 January 2014 CIS28535 p.22
65.It has been previously reported that since 2003, Faili Kurds have been returning from Iran to Iraq, and have since been able to reclaim their Iraqi citizenship.[39] According to Iraqi authorities, 97 per cent of ‘denaturalised’ Faili Kurds have had their Iraqi nationality restored.[40] The UNHCR and other observers have reported that the government did not release any baseline data indicating the total target group on which this statistic was based. Reportedly, the process of reinstatement is slow and bureaucratic, sometimes taking years to complete, and often requires applicants to pay bribes to officials. Moreover, the documentary requirements are fairly onerous, requiring applicants to provide a copy of their registration from the 1957 census, amongst other documents that many Faili Kurds are unlikely to possess. According to recent statistics from the Minister of Immigration, between April 2003 and April 2013, only 16,580 Faili Kurds had their nationality reinstated and 6,853 were in possession of national identification documents, out of an estimated total population of at least 150,000 Faili Kurds denaturalized during the Ba’ath era.[41]
[39] DFAT, “DFAT Country Report Iraq”, 13 February 2015, CISE96CF1160, 3.9.
[40] “Feyli Kurds – obtaining identity travel documents”, DIBP Tehran, 17 September 2015, CISEC96CF13392.
[41] Minority Groups International, applicant claims that he initially travelled to [Country 1] and then to [Country 2] on a passport that was purchased for him by his uncle illegally. The applicant’s evidence to the Tribunal was that as a stateless Faili Kurd he did not have a national ID number or a birth certificate. As a result the Tribunal questioned how he was able to obtain a passport without such documentation. In particular the following information in the DFAT report was put to the applicant:[42]
‘All Iranian passports have been biometric since February 2011. Iranian passports include the following data: holder’s signature, country of residence, place of issue, name and position of issuing authority, passport type, country code, passport number, national ID number, holder’s name, father’s name, date and place of birth, sex, date of issue, and date of expiry. Applicants for passports are required to provide their original Iranian Birth Certificate (shenasnameh), photocopies of all of the pages of the Birth Certificate containing an ID photograph, the original and a copy of their Residence Permit, and three passport photographs taken within the past three months.’
[42] DFAT Report @ p.50
67.The applicant’s response was that his uncle knew a person ‘within the system’ who was able to input the appropriate information to allow an authentic passport to be produced. That is, false information concerning the applicant’s birth certificate and national ID number were supplied to the system for the purposes of producing an Iranian passport. That is, a legitimate passport that was improperly obtained. As a result his evidence was that he was required to travel within a certain time frame as the false information supplied would be deleted and the passport would become invalid.
68.The country information notes[43] that while it may be possible to obtain a genuine identification document with the intention of impersonating another person, Iran’s sophisticated border control procedures make it difficult to for any person using any such document to leave Iran. The method by which the applicant described in obtaining his passport was extremely elaborate and sophisticated requiring detailed knowledge of the government operations and controls. It involved the fabrication of the applicant’s identification details and inputting them into the Iran passport system to produce a passport that would be valid for use only for only a limited period of time.
[43] DFAT50
69.The Tribunal has serious doubts about the ability of his uncle to obtain a false passport in the sophisticated manner described. The applicant did not provide any independent evidence to the Tribunal which indicated that he or his uncle had the necessary skill, knowledge or influence to arrange for such a passport. The country information indicates that Iran’s passports have been biometric since February 2011. That is, techniques such as face scanning and /or fingerprints are used to identity a holder of a passport. The applicant did not provide any evidence of him having provided his fingerprints or face scanned for the purpose of issuing the passport. His evidence was that his uncle arranged for all the information to be provided to his contact for the purposes of obtaining the passport. In such circumstances, the Tribunal has concerns about the applicant’s evidence in relation to obtaining his passport for the purposes of traveling to [Country 2].
70.The applicant confirmed to the Tribunal that he was aware that it was possible to obtain citizenship in both Iraq and Iran legitimately. His evidence was that he had not made any application for citizenship in either country himself, but stated that his father and grandfather had made attempts to obtain Iranian citizenship. His evidence was that their applications had not been successful due to the fact that they had been lost.
71.Therefore, in circumstances where the applicant was able to legitimately apply for citizenship in either Iran or Iraq, there appeared to be little reason for him to have incurred the costs and the risk of obtaining an illegal false Iranian passport in the manner he claims. The fact that his grandfather and father had applied for Iraqi citizenship indicates that they at least had some ability to meet the documentary requirements necessary for him to obtain Iraqi citizenship. Nevertheless, the Tribunal accepts that the process of obtaining citizenship in both Iran and Iraq can be lengthy and administratively complex. In such circumstances the applicant and his family may have believed they had more of a chance in obtaining a passport by illegal methods than through more legitimate means of obtaining citizenship in either Iraq or Iran.
72.Therefore, despite the Tribunals concerns in relation to elaborate and sophisticated method by which the applicant obtained his passport to travel to [Country 2], in the absence of any information indicating that a passport could not be obtained in such a manner, the tribunal is prepared to give the applicant the benefit of the doubt and accepts and finds that he is a Faili Kurd and stateless as claimed.
Country of Reference
73.The applicant having been born, education and lived in Iran all his life, the Tribunal finds that Iran as the applicant’s country of former habitual residence. Accordingly, the Tribunal finds that the applicant’s receiving country for the purposes of the definition of refugee pursuant to s.5H(1) of the Act and complementary protection pursuant to s.36(2)(aa) of the Act is Iran.
The applicant’s protection claims
Applicant’s Relevant Grounds
74.The applicant submits that his claims falls within the scope of Article 1A(2) of the Convention ( or s.5J(1)(a) of the Act) by reason of his ethnicity, religion and member of a particular social group. That is as a Faili Kurd, as an atheist and the fact that he is a Faili Kurd married to a Christian. Based on the applicant’s evidence and the evidence of Ms [A] The Tribunal accepts the applicant’s evidence in relation to his ethnicity and religion and finds that he is a Faili Kurd and an atheist. As such, the Tribunal accepts that his claims fall within Article 1A(2) of the Convention.
75.In addition, the applicant claims to be a member of a particular social group by reason that he is a Faili Kurd married to a Christian woman. Ms [A] has been previously found to be a Christian and as such the Tribunal accepts and finds that she is a Christian woman. To be considered as a member of a particular social group it is necessary for the applicant to share certain characteristics or elements which unite him with a particular group that sets it apart from society at large. That is to say, not only must the applicant with his group exhibit some common element, it must also unite them, making them a cognisable group within their society.[44]
[44] Applicant A v MIEA (1997) 190 CLR 225 per Dawson J at 241, McHugh J at 264-266 and Gummow J at 285.
76.While the Tribunal has some reservations that the applicant being a Faili Kurd married to a Christian woman constitutes membership of a particular group within the scope of Article 1A(2) of the Convention, for the purposes of this decision the Tribunal is prepared to accept, and as such finds, that the applicant is part of a particular social group.
Applicant’s well-founded fear.
77.Pursuant to s.5H(1) of the Act or Article 1A(2) of the Convention an applicant will not be provided a protection visa merely because they are stateless and unable to return to their country of former habitual residence. Given the specific requirements of s.36(2)(aa), the same would apply to complementary protection.
78.In MIMA v Savvin the Full Federal Court held that Article 1A(2) of the Convention is to be construed as including the requirement that a stateless person, being outside the country of his or her former habitual residence, have a well-founded fear of being persecuted for a Convention reason.[45]
[45] (2000) 98 FCR 168. Although the members of the Court arrived at this conclusion by slightly different paths, their ultimate position regarding Article 1A(2) was the same. See also Rishmawi v MIMA (1997) 77 FCR 421, Diatlov v MIMA [1999] FCA 468 (Sackville J, 25 October 1999) and DZABG v MIAC [2012] FMCA 36 (Brown FM, 25 January 2012) (undisturbed on appeal: DZABG v MIAC [2012] FCA 827 (Dowsett J, 7 August 2012)).
79.In QAAE v MIMIA the applicant sought to rely on the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness in support of his claim for a protection visa. The Court held that as those Conventions had not been incorporated into Australian municipal law and the applicant had not identified any particular provision which might have created an expectation as to how his application would be treated, there was no basis for invoking them in support of his refugee claim.[46]
[46] [2003] FCAFC 46 (Spender, Finn and Dowsett JJ, 17 March 2003) at [12].
80.The question for determination is whether the behaviour of which an applicant complains amounts to persecution and not the circumstances or impact of an inability to return. In DZABG v MIAC, the court observed that it would be erroneous for an individual’s subsequently arising statelessness to be regarded as adding to his disadvantageous circumstances such that he or she could be regarded as a refugee rather than as a stateless person.[47]
[47] DZABG v MIAC [2012] FMCA 36 (Brown FM, 25 January 2012) at [132] (undisturbed on appeal: DZABG v MIAC [2012] FCA 827 (Dowsett J, 7 August 2012)). The Court further commented at [137] that it is unnecessary to consider the circumstances an individual may face because of their statelessness which might arise upon his or her return as a consequence of the absence of any necessary documents such as a passport. The Court also observed at [135] that, although statelessness may be a significant disadvantage, the absence of nationality per se is insufficient to satisfy the requirements for protection.
81.Under the Convention, whilst a stateless claimant must demonstrate a well-founded fear of being persecuted, the second limb of Article 1A(2) does not require an inability to return to their country of former habitual residence to be linked to that fear. The applicant must be either unable to return (for any reason) or, owing to their well-founded fear, unwilling to return. Although the structure of the definition of ‘refugee’ in s.5H(1) is slightly different, with the effect that the person must be unable or unwilling to return to their country of former habitual residence owing to a well-founded fear of persecution, the distinction is unlikely to be of any practical effect.[48]
[48] The Explanatory Memorandum to the Bill which introduced s.5H(1) states that it was intended to codify Article 1A(2) as interpreted in Australian case law and provides no indication that the difference in wording was intended to have any significant effect: Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014, p.169 at [1167].
82.In Chan v MIEA[49] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[50]
[49] (1989) 169 CLR 379 at 396.
[50] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.
83.The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case, based on the evidence of the applicant, the Tribunal accepts that the applicant has a subjective fear of being harmed or being persecuted in the event that he returns to Iraq.
84.However, to hold a ‘well found fear of persecution’ on an objective basis, the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J [51]stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.’
[51] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397
85.In MIEA v Guo, the Court stated that: [52]
‘’Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’
[52] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.
86.The applicant claims that if he is returned to Iran there is a real chance he will suffer serious harm by the authorities by reason of ethnicity and religion and as a member of a particular social group. That is, by reason of being an undocumented Faili Kurd, as an atheist and the fact that he is married to a Christian woman.
A past fear of persecution is not sufficient
87.A past fear may be relevant consideration in determining of an applicant has a well-founded fear of persecution but is not sufficient for the purposes of the Convention. In Rishmawi v MIMA Cooper J expressed the opinion that a past fear as the reason for being outside the former country of nationality or former habitual residence is sufficient.[53] However, this view has not been supported by other authorities. In Savvin v MIMA, Dowsett J suggested that such an approach was inconsistent with the approach adopted by the High Court in Chan v MIEA.[54] His Honour considered that the test was not whether an applicant had the relevant well-founded fear at two different points in time. It was whether the applicant was outside the country of nationality owing to a present, well-founded fear of persecution for a Convention reason; and unable, or owing to such present, well-founded fear, unwilling to avail him or herself of the protection of that country.[55] This approach is applicable to s.5H(1) and to the complementary protection criterion pursuant to s.36(2(aa).
Applicant as a Faili Kurd
[53] Rishmawi v MIMA (1997) 77 FCR 421 at 430. In some respects it is difficult to reconcile this view with Cooper J’s own reasons for the conclusion that statelessness alone is not sufficient to attract refugee status, particularly his references at 427 to the object of the Convention, that is, “to provide sanctuary for those persons who had a well-founded fear of persecution for a Convention reason and not for any other reason”.
[54] Savvin v MIMA [1999] FCA 1265 (Dowsett J, 13 September 1999) at [61]-[62], referring to Chan v MIEA (1989) 169 CLR 379.
[55] [1999] FCA 1265 (Dowsett J, 13 September 1999) at [60]. See also Diatlov v MIMA [1999] FCA 468 (Sackville J, 25 October 1999) at [32] and DZABG v MIAC [2012] FMCA 36 (Brown FM, 25 January 2012) at [134] (undisturbed on appeal: DZABG v MIAC [2012] FCA 827 (Dowsett J, 7 August 2012)). This point was not expressly discussed by the Full Court in MIMA v Savvin (2000) 98 FCR 168, but Dowsett J’s view is consistent with the Full Court’s construction of Article 1A(2).
88.The applicant claims that he will be persecuted in the event that he returns to Iran by reason of the fact that he is a Faili Kurd. However, the DFAT report[56] notes that many Faili Kurds in Iran have applied for citizenship in Iran[57] (although is not known how many have obtain citizenship) or alternatively returned to Iraq and regained their citizenship. It is estimated that approximately 7,000 Faili Kurds remain in Iran.[58] As a result, DFAT reports that it is not aware of specific instances whereby authorities have singled out Faili Kurds for mistreatment, regardless of the category to which they belong.[59]
[56] DFAT Report @ p.12
[57] DFAT Report @ p.19
[58] ibid
[59] ibid
89.The applicant claims that he was born in Iran. He completed High School but could not to attend College or University due to the fact that he is stateless. He claims that upon completing High School as a result of being stateless he was not issued with any certificate of completion and as a result was not able to attend College or University in Iran. After leaving school he working in his fathers street hawking business.
90.The claims that on one occasion approximately on year before his father arrived in Australia he went to help run his father’s business. The applicant claims that his father was sick at home and he was running the business with his brother. The applicant claims that he was beaten by Basij. He claims that two men approached them and asked for their ID. He claims that they started beating them. His brother ran away and he suffered a broken nose and badly beaten body. He claims that as a result of the beating his vision became weak because it affected his brain.
91.In the absence of any evidence to the contrary the Tribunal accepts that he was attacked as claimed. However, the incident described by the applicant appeared to be a one off incident rather than as part of any course of conduct against the applicant. Save to say that the men asked for his I.D, the applicant was otherwise not able to say how he was aware that the men who beat him were from the Basji. It was possible that the attack was a random incident, unrelated to the Basji or the applicants I.D documentation. In any event even assuming the attack was conducted by members of the Basji it appears to have been a one of incident and as such does not constitute serious harm.
92.The applicant claimed that he had many problems with the Basji as an undocumented Faili Kurd. Save for an incident where he was put off a school bus while attending high school the applicant did not provide any details of incidents in which he was seriously harmed. While the Tribunal accepts that the Basji operates throughout Iran and that the applicant from time to time may have been questioned about his identity documents, it does not accept that any such action would constitute serious harm. The Tribunal notes that DFAT report states that DFAT not aware of specific instances whereby authorities have singled out Faili Kurds for mistreatment.[60] It is possible that the requests for identity documents are the regular enquires made by the Basji in the course of carrying out their policing duties and as such an inconvenience experienced by the general population in Iran.
[60] ibid
93.Finally, from the applicant’s evidence it appears that his family were comparatively well off in Iran. He claimed that his family paid US$[amount] each for a passport and US$[amount] each for a boat from [Country 2] to Australia. As a result it appears that the applicant’s family has the resources to seek and obtain citizenship in Iran or to return to Iraq and apply for citizenship. While the Tribunal recognises that the process of obtaining citizenship in both Iran and Iraq can be lengthy and administratively complex, in circumstances were the Tribunal has found that the applicant was not subjected to persecution in Iran as a result of being a Faili Kurd and appears to be financially well resourced, there appears to be no impediment to the applicant obtaining citizenship in Iran.
94.The Tribunal has found and accepts that the applicant is a Faili Kurd. However, based on the applicants own evidence and the available country information, the Tribunal does not accept that there is a real chance the applicant will be seriously harmed in the event that he returns to Iran by reason of him being a stateless Faili Kurd as claimed.
The applicant as an atheist
95.The applicant claims that he no longer believes in God. He stated that he preferred the theories of Charles Darwin and Stephen Hawkins. The applicant claims that he attends Church in Australia but states that he does so for the benefit of his wife, Ms [A], rather than by any reason of having been converted to Christianity. However, he did admit that having attended Church he does have a leaning toward Christianity. The applicant and his wife were married [a] Church in [Suburb 1], Victoria [in] September 2017[61] and claim to attend [a] Church in [Suburb 2] on a regular basis.
[61] Certificate of Marriage dated [September] 2017; AAT file No1820283 @ f.35
96.The country information refers to the fact that under Iranian law, a Muslim who leaves his or her faith or coverts to another religion can be charged with apostasy. A person of any religion may be charged with the crime of ‘swearing at the Prophet’ (blasphemy) if he or she makes utterances that are deemed derogatory towards the Prophet Mohammed, other Shi’a holy figures, or other divine prophets. The Penal Code does not specifically criminalise apostasy, but provisions in the Penal Code and Constitution state that sharia applies to situations in which the law is silent, and judges are compelled to deliver sharia-based judgements in such cases. Although the Koran does not explicitly say that apostasy should be penalised, most Islamic judges in Iran agree that apostasy should be a capital crime. This ruling is based both on oral traditions attributed to the Prophet Mohammed and to Shi’a Imams, whom Shi’a consider the Prophet’s rightful successors. Chapter Five of the Penal Code specifically criminalises swearing at the Prophet as a capital offence, although a clause states that the sentence can be reduced to 74 lashings of the whip if the accused states the insults were the result of a mistake or were made in anger.[62]
[62] DFAT Report @ p.24
97.The DFAT report notes that ‘[W]hile apostasy and blasphemy cases are no longer an everyday occurrence in Iran, authorities continue to use religiously-based charges (such as ‘insulting Islam’) against a diverse group of individuals. It refers to the fact that in recent years, the group has included Shi’a members of the reform movement, Muslim-born converts to Christianity, Baha’i, Muslims who challenge the prevailing interpretation of Islam (particularly Sufis), and others who espouse unconventional religious beliefs (including members of recognised religious groups). The Report states that ‘some religiously-based cases have clear political overtones, while other cases do seem to be primarily of a religious nature, particularly when connected to proselytisation.’ [63]
[63] ibid
98.The DFAT report states:[64]
Death sentences in apostasy and blasphemy cases are now rare. However, in March 2017 the Supreme Court upheld the decision of a criminal court in Arak to sentence a 21 year old man to death for apostasy. Authorities had arrested the man after he made social media posts considered critical of Islam and the Koran while on military service in October 2015. Human rights groups claim authorities tricked the man into confessing to the charges with the promise of release if he did so. The death sentence had not been carried out as of March 2018. The court also convicted two co-defendants of posting anti-Islamic material on social media, sentencing them to prison.
[64] DFAT Report @ p.25
99.DFAT assesses that those accused of religiously-based charges are also likely to face charges related to national security and are unlikely to have adequate legal defence, and are likely to be convicted. [65]
[65] ibid
100.The applicant did not provide any material to the tribunal indicating that he was an atheist. However, Ms [A] gave evidence in support of the applicant’s claim that he was no longer believed in Islam. The applicant stated that given the new found freedom in Australia he would not be able to prevent himself from declaring his beliefs as an atheist.
101.In the absence of any evidence to the contrary the tribunal accepts that the applicant is an atheist as claimed. As a result based on the country information the Tribunal finds that there is a real chance that he will be seriously harmed in the event that he returns to Iran by reason of the fact that he no longer believes in Islam and that he has the desire to express his views publically.
Applicant married to a Christian.
102.The Tribunal has accepted and found that Ms [A] is a Christian. The applicant and Ms [A] were married [in] September 2017 at [a] Church, [Suburb 1], Victoria.[66] The applicant provided a copy of the marriage certificate to the tribunal. In addition he provided a copy of the residential tenancy agreement[67] which showed that both the applicant and Ms [A] were tenants to a residential property in [Suburb 3] Victoria. As a result the Tribunal accepts and finds that the applicant is married to Ms [A] as claimed.
[66] Marriage Certificate AAT File 1820283 @ f.35
[67] AAT File 1820283 @ f.34
103.The country information reports that under Islamic law, regardless of the school of thought, Muslim women may not marry non-Muslim men, while Muslim men may only marry non-Muslim women who meet the definition of Kitabia (also spelled Kitabi, Kitabiyya, Kitabiyah, or ahl al-Kitab), or “people of the book,” which typically refers to followers of Christianity and Judaism.[68] The Civil Code of the Islamic Republic of Iran prohibits marriages between Muslim women and non-Muslim men. Article 1059 explicitly states, “[m]arriage of a female Moslem with a non-Moslem is not allowed.”[69] According to one source, this ban applies unless the man first converts to Islam.[70] There is no similar provision in the Civil Code prohibiting the marriage of a Muslim man to a non-Muslim woman, although according to the same source the woman must believe “in one of three religions recognized by Islam as ‘religion with a scripture (Christianity, Judaism, and Zoroastrianism)’.
[68] Library of Congress, Prohibition of interfaith marriage. Civil Code of the Islamic Republic of Iran art. 1059, unofficial English translation containing amendments through Dec. 29, 1985, available on the UNHCR RefWorld website, at adb27.html. This report relies primarily on the translation provided by RefWorld, which has been compared by the Law Library staff with the English translation in Civil Code of Iran (M.A.R. Taleghany trans., Fred B. Rothman & Co. 1995) and with the latest available Persian text of the code, Qānūn-e Madanī [Civil Code] 18/2/1307 (May 8, 1928), as last amended 19/8/1381 (Nov. 10, 2002), available on the Islamic Parliament Research Center website at and on the Iran Law Database at detail.asp?id=16686. The family law provisions of the Code were codified in 1935 and, like other parts of the Code, are based on Shiite Muslim law. Nadjma Yassari, Who Is a Child? Consideration of Tradition and Modernity in Iranian Child Law, 22 Recht van de Islam 17 (2005), recht22_yassari.pdf.
[70] Elton L. Daniel & Ali Akbar Hahdi, Culture and Customs of Iran 167 (Greenwood Press, 2006)
104.While it may be technically legal for applicant as a Muslim male to marry a Christian woman in Iran, the fact that he has married to a Christian would likely lend weight to a charge of apostasy as a fallen Muslim. As a result, the Tribunal finds that there is a real chance that the applicant would be seriously harmed in the event that he is returned to Iran by reason of the fact that he has married a Christian woman. .
Complementary Protection Criteria
105.In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it 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 the applicant will suffer significant harm.
106.The applicant claims that he satisfies the requirements under s.36(2)(aa) by reason that he faces a real risk of significant harm including arbitrary deprivation of life, torture, cruel, inhuman and degrading treatment or punishment. In particular, the applicant claims that there is a real risk he will suffer significant harm in the event he is returned to Iran by reason that he is a stateless Faili Kurd, that he is an atheist and that he is married to a Christian
107.In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[71] The Tribunal has made earlier findings that the applicant does not face a real chance of serious harm arising from the applicant’s claims. As the ‘real risk’ test is the same as the ‘real chance’ standard, for the reasons stated above in relation to each of the applicant’s claims, the Tribunal does accept that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia and returned to Iran.
[71] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].
108.The applicant made a general claim in relation to the general violence that Faili Kurds suffered under the regime in Iran. However, based on the reasons detailed above and the relevant country information, the Tribunal finds that there is no real risk of the applicant being significantly harmed by reason of being Faili Kurd upon his return to Iran.
109.Nevertheless, the Tribunal accepts and finds that there is a real risk that the applicant will suffer significant harm in Iran by reason of him being an atheist and married to a Christian woman.
110.At no stage did the applicant advance any other reason in his written or oral claims that the applicant is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.
111.Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds 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 he will suffer significant harm as required by s36(2)(aa).
CONCLUSION
112.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 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) and as a result ss.36(2)(a) of the Act.
113.Having concluded that the applicant does meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa) and is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
DECISION
114.The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Jason Pennell
Senior Member
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