1824350 (Refugee)

1824350 (Refugee) [2021] AATA 3538 (12 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1824350
COUNTRY OF REFERENCE:                   Iran
MEMBER:Rodger Shanahan
DATE:12 July 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 12 July 2021 at 11:19am
CATCHWORDS
REFUGEE – protection visa – Iran – abusive husband in Iran – divorcee/single woman with children – religion – conversion to Christianity – outstanding court issues – found with a bottle of alcohol – employment as a female taxi driver – children imputed with being ‘Westernised’ – credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 July 2018 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Iran, applied for the visas on 31 August 2016.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Protection Visa Application
The following statement was provided as part of the applicant’s protection visa statement:
“I, [the applicant], unemployed, and currently residing at [Suburb 3][Address 1], make the following statement:
Summary of my claims.
1. The following is only a summary of my claims for protection. It is not an exhaustive statement of the reasons why I cannot return to my country of origin. I will provide further information in relation to my protection claims during my interview with the Australian Department of Immigration and Border Protection.
Entry Interview, POE, IPA and ITOA Assessment
2. Shortly after my arrival in Australia, I was interviewed (“the Entry Interview”) by an officer of the Department of Immigration & Border Protection. During the Entry Interview I was asked a number of questions including dates, biodata and my reasons for coming to Australia. I was not made aware before or during the Entry Interview that the information I provided during this interview would be used for the purposes of assessing my claims for protection.
3. As such I wish to clarify the following:
a.My Entry Interview states that I left Iran because my second husband told me to. I also stated that I left because I am a woman and I could not live in Iran without my husband, I had previously suffered discrimination as a divorced woman, and I was unable to work as a driver there.
b.I did not disclose all the reasons why I left my country of origin as I was scared. I did not know what kind of treatment I could expect from the Australian government, and I did not know if the details of my case would be protected. I was scared that if any of the details of my claims were leaked to Iran there would be consequences for my children there. My children did not leave Iran until 2013.
4. I underwent a Protection Obligations Evaluation on 30 June 2011 and an Independent Protection Assessment on 22 February 2012. I underwent an ITOA process in 2015. I continue to stand by the information I provided in these assessments.
Background
5. I am a citizen of Iran. I do not have a right to citizenship or a right to reside in any other country.
6. I am Persian and a Shia Muslim.
7. I was born on [date] in Tehran City, Tehran Province, Iran.
8. I have not provided any original identity documents with my application. When I arrived in Australian I had my original Shanesnameh and Original National ID card. The originals were shown to my Case Manager during my POE assessment or IPA assessment, I cannot recall which, and copies of these documents were taken. Since that time I have lost the original documents. I am still unaware of their location and as such am unable to provide original documentary evidence of my identity at this stage.
The court to which I fear returning
9. I fear returning to Iran.
Discrimination against divorced women
10. Approximately 23 years ago I married my former husband [Mr A]. [Mr A] was a member of Sepah. During the marriage [Mr A] often forced me to participate in public marches in favour of the regime. He was a strict Muslim and forced me to observe strict Islamic dress code – the chador and full hijab.
11. During our marriage [Mr A] subjected me to ongoing domestic violence. The abuse was both verbal and physical: he would insult me, slap me and hit me. I felt constant fear throughout our marriage.
12. Due to the ongoing fear and violence I divorced [Mr A] in 2005. When we separated he forced me to sign an undertaking declaring that I would not remarry. I was only allowed to have custody of the children in exchange for forfeiting my dowry.
13. After the divorce I was stigmatised. People in society looked down on me, as in Iranian culture it is the duty of a woman to be a good wife to her husband. Divorce is viewed as an affront to social and moral values. Consequently I was treated as immoral and struggled to find employment to support myself and my children.
Taxi Driver.
14. A few years after the divorce I was able to find work with a taxi company. I had to work for a private taxi company that provided services to females only. Iranian law is very strict and prohibits female drivers from taking male passengers.
15. Owing to the oppressive nature of Iranian society many females do not leave their houses without a male escort, and it was difficult for me to find enough female-only fares to support myself. As I had no previous work experience, however, and no connections or high school diploma, I was not able to find any other work. It was already difficult to find this job, owing to my status as a divorced woman. As a consequence I started taking male and female passengers.
16. usually when I took a male passenger I was harassed. They would insult me, or ask why a woman such as myself was working as a driver.
17. Eventually it was reported to the police that my taxi had been seen taking male passengers. The taxi agency was shut down for several weeks, and I was taken to the police station for questioning.
18. Eventually the woman who managed the agency was able to obtain permission to reopen the agency. I resumed driving male and female passengers. Although I was afraid I had no other means of making enough money to support myself and my children, and my new husband could not afford to do so.
19. Several weeks after this incident I picked up two male passengers. As we were driving I began talking to the men. From the way that they spoke to me I began to suspect that they may not be regular people. When we stopped they proceeded to search my car and I realised they must have been undercover police officers. During the search they found a bottle of alcohol. After abusing me the men then let me go.
20. A document included in my FOI released, dated [in] October 2014, states that I bribed the under-cover officers. This is not the case. This document was written over three years ago. I know that around this time I wrote a document in Farsi to support my visa application, and sent it to a friend to informally translate into English. I believe that this may be that document, and that my friend may have misunderstood or misinterpreted what I said.
21. After that incident I faced increasing harassment. On one occasion my car was vandalized. On another a car was tailing me and forced me to pull over. When I did two men approached me and began to shout at me and cut me on my forearm. Approximately a week after that incident I received a letter advising me that I was to report to the police station.
22. When I went to the police station I was held there for two days. The police told me I was facing allegations including alcohol possession and taxiing male passengers. I was released after my brother posted bail for me. A short time later I appeared before court where I was given a fine and sentenced to 40 or 70 lashes.
23. The document dated [in] October 2014, states that I was only threatened with a fine and lashes. This is not true. I believe that the reason that this document states this is also because of a mistranslation made by my friend, who is not an accredited interpreter. I believe that I clariid that I was sentenced and fined, with the interviewing officer, during my ITOA assessment.
24. A short time after I was sentenced my car was set on fire.
25. The combination of the ongoing harassment, and the impending lashes sentence was too much for me. I was afraid to remain in Iran, and what I would suffer in the future. My husband had been pressuring me for some time to leave Iran, and I finally agreed.
26. [In] November 2010, I and my first husband, [Mr B], flew from Tehran to [Country 1]. We departed from the country on false passports provided by ana gent. I feared that the authorities had placed my name on a black-list so that I could not leave the country, as so I gave my sisters name to the agent to have put on the passport.
Other reasons I fear persecution.
Single mother
27. Since coming to Australia I have given birth to two daughters, [Child C] (DOB: [date]) and [Child D] ([date]).
28. Fifteen days after the birth of [Child C] I separated from [Mr B]. During our marriage he had subjected me to ongoing domestic violence like my first husband. He used to slap me and pull my hair, and verbally abuse me. After the birth of [Child C] I decided I could not stand the violence any longer, and I left him.
What I fear may happen to me, by who and why, if I return to that country
29. I fear that if I return to Iran I may be subjected to serious discrimination affecting my ability to subsist, and physical harm in the form of physical assault and arbitrary detention, arrest and torture.
30. I fear that I will be arbitrarily detained, arrested and seriously harmed because I departed Iran in the face of a court sentence. Because I have not received the set penalty of lashes I fear that the authorities will still have a file open against me. When I return the authorities will immediately identify me, detain me, punish me for departing illegally in breach of my bail conditions, and seek to enforce the lashing sentence.
31. I fear that I will suffer harm because I will return to Iran as a single woman with [number of] children, [number] of whom are infants. Women are discriminated against in Iran, particularly women who are divorced. We are seen as a social and moral disgrace. I fear I will be targeted by the police and the wider community.
32. I have already attempted to work as a single female in Iran. Due to the persecution that I faced I was forced to leave my job. I have no qualifications and no other work experience, and [number of] children to support, [number] of whom are infants. I fear that if I return I will be unable to find work sufficient to support my family and we will be left destitute.
Why I think the authorities of that country cannot or will not protect me if I were to go back to that country
33. As it is the Iranian authorities form whom I fear harm I would not be able to avail myself of protection from them.
Why I think relocation to another area in my country would still befall me to the same harm
34. I cannot relocate to another part of Iran. The Iranian authorities operate across the entire country, and they are the ones that will punish me. There is no place that I would be safe.
Why I think relocation to another area in my country would be unreasonable
35. As a single woman with four children there is no where I would be able to relocate to in Iran. I would be viewed as a social and moral disgrace and would struggle to find employment to support us. Single women are not even legally able to rent their own home.”
AAT Hearing
The applicant was told about the existence of a s 438 certificate on her file but that the Tribunal had examined the information and none of it was relevant to her claim and would therefore not be taken into account by the Tribunal in making its finding. She was asked if her daughters had any claims that were separate to her own and she stated that they were too young and relied entirely on her claim. She stated that whatever problems she had on return to Iran they would also have.
She claimed that if she returned to Iran she would be persecuted, she had become Christian and she was a woman. Asked to be more specific, she claimed that she would be persecuted by the Iranian government because of events before she arrived in Australia. Asked what they would do to her, she claimed that they were after her because they found a bottle of wine in the back of her car and she was detained for three days, had to pay a fine and was due to be lashed. This was only because she was a taxi driver and they found one bottle of wine at the back of her car and alcohol was not permissible in Iran. She was due to go to court but escaped before the case was heard. Her criminal file is open and she had become Christian since she had come to Australia. Her car had been set fire to, she had been summoned to court but didn’t attend.
She would be killed if she returned because the government didn’t like anyone who opposed them. It was put to her that she was being quite general and was asked if she had other claims other than being found with a bottle of wine in her car. She said that her file was still open and she didn’t pay her fine, or report to court or to get her lashes. Asked if this all stemmed from a bottle of wine being found, and she claimed that this was how it started but she said they also accused her of being in prostitution and being involved in alcohol smuggling. They tried to pin other things on her.
She had converted to Christianity in Australia. Asked what harm she feared experiencing as a woman in Iran, and she claimed that Iran is a gender-biased country and women don’t have freedom of speech and have their rights deprived. Asked what her specific fears were in Iran as a woman, and she claimed that she had no freedom of choice or speech, she couldn’t choose where she went to or what she wore. She had worked for a private, non-government taxi agency and she had men in her car and there were reports that she was taking men in the taxi which she wasn’t allowed to and the business was closed down. If she talked to a man that she picked up in her car and talked to him it was like adultery and they would stone you to death.
Asked if she was currently married, she claimed she was single. Asked if she was divorced, she said that she wasn’t and had tried many times and two years ago she tried but they told her she had to pay money and she couldn’t afford it. Asked who told her this, she said a lawyer from the Family Court called her and said that she would have to pay the fee, and a case worker in Australia she followed up with also told her the same thing. She was asked to provide statutory declarations from the lawyer and case worked that indicated she was provided with this advice by them. She said that she had no idea where the case worker was any more because her case worker had changed. She also couldn’t find the lawyer any more as she had no case number. It was put to her that it was up to her to provide the information requested.
She agreed that she had been separated for nine years. Asked how much the cost of divorce was, she claimed that she didn’t know and two of her friends advised her that it cost $600 and another Australian place said $500. Asked again when she separated, she claimed that she separated when her [age]-year old daughter was only [number] days. She would love to be divorced but couldn’t afford it. She was told that she would be given time post-hearing to track down her former case worker and the Family Court lawyer. She said that she had an AVO against her husband and she promised to chase this up with her lawyer and the case worker. The member told her the Tribunal wanted to satisfy himself that what she said was true. Asked why her husband didn’t initiate divorce, she said she had no idea what decisions he made.
She had been married previously and had two children both of whom were in Australia and had come by boat in 2013. Asked if their claims had been accepted she claimed she had no news from them and had no idea. Asked when she last spoke to them she said that they spoke but lived separately but she did not know their circumstances. They had applied for protection but had not been interviewed by DIBP. Asked if she was sure of this, she said she wasn’t sure. Asked why she didn’t know their status given they had been here for seven years, she claimed that they originally applied together but then when her son grew up they had to have different files.

It was put to her that the Tribunal understood this but it was strange that she didn’t know their status. Asked if their claims had been heard, she claimed that her son had not been interviewed and her daughter was on temporary visas every six months but she didn’t know her daughter’s refugee status. She found it hard to concentrate. It was put to her that the tribunal found it hard to believe that she wouldn’t know the status of her daughter’s claims.
She was divorced from her first husband in Iran in 2005 and had no relations with him at all. Asked who initiated the divorce, she claimed that she was under a lot of pressure and he was very controlling forcing her to do a range of things such as protest. Asked to answer the question, she eventually said that she initiated the divorce at the court. He beat her up and broke her jaw. Asked if this was the basis of her divorce, she said that it wasn’t and was because he was in Sepah. Asked to confirm that she sought the divorce in court, she agreed on the basis of his cruelty and because he was in Sepah.
He forced her to agree to things in order to accept the divorce. It was put to her that this would be in the divorce document and she was asked to provide the divorce document. She said that she had nothing. It was put to her that the member was familiar with the divorce procedures in Iran and there were only a few reasons that a woman could initiate divorce in Iran so the Tribunal wanted to be satisfied that what she said was true. She again said that her husband beat her and also said that he wanted anal sex and beat her when she refused.
Asked what the conditions of the divorce were that the court agreed to, she claimed that she wouldn’t get the remainder of the mehr or alimony (and would keep the children) and that she couldn’t re-marry. It was put to her that while the member was aware of the mehr being sacrificed in order to get access to children, he had never heard of the court ordering someone not to re-marry. She agreed the court couldn’t do this but this was what her husband imposed on her.
She then said that her husband wanted anal sex which she didn’t like and he hit her when she refused and broke her jaw. Asked what her husband did in Sepah, she claimed that he never told her what he did but she knew he was a Sepahi. He used to take political prisoners from one place to another. He used to come home with a gun in his belt and she was always frightened. He refused to talk to her. He was severely violent to their children many times.
When she left Iran the children stayed with her mother and brother. Asked if they had anything to do with their father after she left Iran, she said that he saw them fortnightly and they could go to his place. Asked how it was that she claimed her children were beaten by her husband but yet she left without them and let them stay over with their father. It was put to her that if he was beating the children surely she would have raised this with the judge. She claimed that in Iran men had control over the children. It was put to her that if the issue of children being beaten was raised with the judge then this could have been taken into account. She claimed she had no medical evidence to give the judge.
It was put to her again that if she was concerned that her husband beat the children why she would leave them in his care while she left Iran without them. She claimed that she wasn’t there for that time so he may have become more loving but she didn’t know. She kept on telling them to be patient while she was away.
Asked if Sepah was his full-time job, she said it wasn’t and she didn’t know if he was full- or part time. Asked if he left in uniform, she claimed that he left in plain clothes with the weapon behind his back. He also owned a [business]. Asked why he took a weapon when he [went to work], she said she didn’t know as he told her nothing. Asked how she knew he was in Sepah taking political prisoners. She said his father was in Sepah and also transported prisoners and she saw he had an ID card. She didn’t know what rank he was.
It was put to her that the Tribunal found it hard to believe that her husband ran a [business] and was in Sepah transporting political prisoners as well. Sepah had large numbers of personnel so it didn’t make sense they would need someone part-time to transport prisoners. She said that clerics were also businessmen and she didn’t know why her husband was doing both jobs.
The applicant was a taxi driver for a private agency that was a shop. Government agencies drove green cars and could only take women. Asked what the name of the agency was, she said it was [Agency 1] and was written on the shop window. Asked if it had a website she said she didn’t know. It was put to her that taxis were competitive in Iran and elsewhere so they must have had some advertising. She was asked if she could provide any evidence of this agency. She said that she had been away for 11 years and couldn’t remember much of it, only where it was.
She was asked to provide post-hearing as much information about this taxi agency such as company documents, or any internet presence it may have had. She said she was just a driver and knew nothing and could not provide any information and didn’t know the internet. It was put to her that the Tribunal had asked her to provide information and if she elected not to even attempt to do this the Tribunal may draw an adverse inference from her unwillingness to attempt it.
She claimed that she appreciated the opportunity but there was no Facebook or any means of advertising. All she knew was that they were so busy working and taking passengers. Asked iof she had any photographic evidence that she worked for the taxi company, she claimed that she was too busy taking passengers and had no photographs.
She was asked if she could provide some company records such as when it started or closed down or anything that may support her claim of having worked for this agency. She claimed that there must be business cards but she only worked as a driver and a lady rented the shop. It was shut down and then re-opened but knew nothing else.
Asked why she feared serious harm in Iran, she said that there was an open file on her as there was a summons against her and she had not gone to court. There had been a bottle of wine in the back of her car that was found by a passenger who had a box of wine and he gave her one when he found out how much pressure she was at home, and said it would relax her. He told her not to leave it in the car.
He took the box out of the car but he left one for her and after she was returning to Tehran she was stopped by the police and they found it. It was in the boot of the car when she was stopped at a routine traffic stop. They started interrogating her about the person who left the bottle and said it was a crime to take male passengers. They took all her details and she told them that the passenger left the bottle. They said they would send a letter to her as it was a big crime what she had done.
About a week later a summons came and she went to the centre and she was detained for a few days, and she was accused of taking a male passenger and having alcohol and cigarettes in her car. A female officer came and they took all her possessions and when she objected a female police officer hit her and told her to stop talking. She had to wait there and was detained for three days and no one knew where she was.
There were two other prisoners and when one of them was released she gave the person her phone number and she rang the applicant’s brother who then came to get her out. Her brother put some land he owned up as a surety and she was released after they took the title to his property. She signed some papers and they told her she would get a summons in a week and then she did and had to report to the place where she had been detained and they told her that she had been fined 5000 toman for taking a male passenger and having alcohol and she was convicted of being an alcohol smuggler. She was shocked.
Asked if she actually went to court and had her charges heard, she claimed that she went to court and this was the fine that she was given and she was also going to be lashed. She was not allowed to leave Tehran. Asked if she went through a trial or was just given a punishment, she claimed that the letter told her what the charges were and then she had to go to court to hear the punishment. She was told to come back 10 days later so the lashes could be given to her. She was not allowed to leave Tehran before that. She was also given a prison sentence. She told her brother that this was ridiculous but she couldn’t go to prison
She left Iran with a passport and ticket organised by her brother. She only had 7-10 days before she had to attend court again. She left on a passport organised by the smuggler – it was in her sister’s name. Asked why it was in her sister’s name, she claimed that she was on an airport watch list because her former husband had arranger this because one of his conditions of their divorce was that she would never leave Iran.
It was put to her that her former husband must have been very important in Sepah if he could place her name on an airport watch list. Someone just transporting political prisoners would not be able to do this. She said she wasn’t lying and she never knew what he did or his rank. He may even have been mentally ill and wanted to hurt her.
Asked why, if she knew her name was on the watch list, she didn’t get a passport in a completely different name given her husband may have put a stop on her family members, or have their names on a list in case she tried to leave using one of their passports. She claimed that he had issues with her, not the rest of her family. She also said that she begged her sister to help her leave. Asked if she was saying she left on her sister’s passport, she said that she left on her sister’s passport as she knew all of her sister’s details.
She had her own passport that was issued after her divorce. She couldn’t remember the year but it was maybe 2005-07 but was before her troubles with the court. Asked why she would get a passport in her own name if she was ion a blacklist that her husband had put her on, she claimed that she might leave Iran for some social travel with her family. She was again asked why she applied for a passport if she had been stopped from leaving the country, or why she was issued one if her husband had enough power to put her on a blacklist then he would have had enough power to stop her being issued a passport. She claimed that he had no idea that she had the ability to do this as he thought she was a shy home maker and he wouldn’t think she would get one. He thought her real passport was in Iran but she had left there 11 years ago.
Asked if her brother lost his property he put up as surety when she left, she said they confiscated it. Asked if she had the paperwork relating to her court case and the seizure of her brother’s property, she claimed that whatever documents she had after she left Iran her brother would have them. She brought no documents to Australia, and because she had converted to Christianity she had no relationship to her family so she had no access to such documents as a result. She said that she was sorry about being unable to provide any documents to the Tribunal.
Regarding her conversion to Christianity, she claimed that before she converted she was seven months pregnant and there was [a] woman called [Ms E] who came to her house and prayed with her and she became Christian as a result. She met [Ms E] through her case worker who introduced her. This was in 2017. [Ms E] would pray with her and even though she didn’t know English it would calm her down during a period of stress. Their relationship became stronger and after her daughter was born she couldn’t go to [Ms E]’s house.
She was baptised in August 2018 in [Suburb 1] by [Pastor F]. Asked if she went to church regularly, she said that she didn’t. She had young children and they would make trouble – they would make noise and she was embarrassed. She would watch religious movies and it was the same as being at church. Asked how regularly she went to church, she claimed that she hadn’t been for a while. Asked when the last time she went, she claimed it was more than a year ago. Asked if she had any evidence she was Christian and why the Tribunal should believe her given she provided no written evidence an no witnesses presented on her behalf, she claimed that because of her medical issues (her back) and her young children she decided not to go.
People gave them bad looks at church when the children spoke up and she was embarrassed. She taught the children about making the sign of the cross. She did everything at home to teach them about Christianity. It was put to her that the member went to church and his experience of church was that children were welcomed and if noisy it was accepted. She agreed and said their Baptist church at [Suburb 2] accepted them but the church they currently went to were doing studies and they knew basic prayers and didn’t like children. Asked the name of prayers that she knew, she said one was called ‘Oh heavenly father’.
Asked if she was baptised by [Pastor F], she said she was. Asked how many months of study she undertook, she said she thought it was three to four months. Asked if she was baptised with anyone else, she said there were a few other men. Asked if she knew any of them, she said that some may recognise her but not really. Asked again if there was nobody she knew, she then said her husband was there as well. She said she was baptised and went upstairs and he must have been baptised after her. It was put to her that it was an very big coincidence that she and her allegedly estranged husband got baptised at exactly the same church at exactly the same time. She said that if she knew he was there she would never have gone there.
Asked about the branches of Christianity there were, just as there were Sunni and Shi’a in Islam, she said there were Catholic and Protestant. Asked what research she did into the other branches of Christianity and why she was attracted to the Baptist faith, she asked what the Tribunal wished to know. She was asked whether she had spoken to priests from any other denomination, and she said she hadn’t and had just spoken to the pastor at the Baptist church. It was put to her that if she was looking to change faith then surely she would want to engage with clerics from that faith to see what suited her. She said that she spoke to the pastor who explained Christianity to her and she chose it.
Asked when her protection visa was refused, she said it was three or four years ago. It was before she was baptised. Asked if she showed interest in Christianity before her visa was refused or only after it was refused, she claimed that there was no relationship between the rejection of her visa and Christianity. It was [Ms E] that got her interested.
She was advised about s 5J(6) and it was put to her that she had never mentioned any attraction to religion when she arrived in Australia and she was given a negative assessment in July 2018 and she was baptised three weeks later at the same time as her husband who was also applying for protection. She had presented no witnesses nor other evidence who could attest to the genuineness of her baptism so there was a concern that she was baptised solely to create a refugee profile. And because she may not be Christian it was not likely that she would have told people in Iran that she had converted, hence there was no rift and no reason why she couldn’t obtain documents toi support her claim from her family members.
She claimed that she had converted through her heart and loved this religion. She had medical problems and hence couldn’t go to church. She was Christian in her heart. Others went to church and pretended to be Christian to get the piece of paper.
Asked about her particular claim to fear serious harm because she was a woman in Iran, she stated that she had an open file and couldn’t return. She would die if she returned to Iran. Her ex-husband as a Sepah could do anything to her and could violate her rights. Her jaw had been dislocated and he had been very violent to her. Asked of she had any claims that related solely to her gender as a woman that she had not mentioned previously, she had no power if she returned. Men hold all the power in Iran – there is no women’s court and they had no rights. Her husband treated her terribly and beat her every day. He made her pray and she didn’t want to go to mosque. Men told her what she had to do and it would never change.
She didn’t like the life in Iran and women are treated as slaves in Iran. She couldn’t stand for her own rights and she had two children to look for. They were beaten and physically and emotionally abused all the time. She had to leave Iran.
She was told about s 424AA and it was put to her that regarding her passport, she had said in her PV interview that she left on a fake passport but that she had her own genuine passport she was carrying with her when she left Iran. Yet today she had said that her own passport was in Iran. This inconsistency could go to issues relating to her credibility. She claimed that she had said she had her own passport but she never said that she had with her when she left. There was no reason why she would have two passports.
Also under s 424AA it was put to her that in her entry interview after arriving by boat she claimed that her husband was a drug addict who never helped with the children which was why she had to leave Iran. It was only subsequent to this that the claim of him being in Sepah was made. According to her he had a full-time job at the same time as being highly influential in Sepah. She had previously said he had a high rank Sepah officer but now didn’t know what rank he was. This all raised concerns in the Tribunal’s mind that he may never have been in Sepah. She claimed that she wasn’t lying but she was scared that her children would be in trouble if she mentioned his Sepah link.
It was put to her that she specifically came to Australia for safety, and was asked why she thought this information would get out. She repeated that she was scared for the safety of her and the two children still in Iran. She hadn’t mentioned things because of this. She claimed her husband had two long glass tubes at home and he was a drug addict as she had seen him use it for drugs.
Also under s 424AA it was put to her that she had claimed her husband beat her children and she feared for their safety in Iran. But DIBP had provided information regarding her daughter’s [social media] site where she shared correspondence with her father (the applicant’s ex-husband) and from this it appeared that their relationship was a close and loving one. DIBP also provided information that her daughter had sent money back to Iran and on at least one occasion the money went to her father. This would indicate a close and loving relationship between daughter and father which was at odds with her claim that her father beat and abused her. Given her daughter was in Australia where there was no reason for her to maintain contact with him or remit money, these actions were at odds with the applicant’s claims regarding her husband and could call into question her credibility as a witness.
She claimed that perhaps money was sent and perhaps when people get older they become calmer and more peaceful so maybe he had changed. Whatever happened these were his children and he had been a psycho in Iran to the applicant but this was a decade ago and perhaps he got older and wiser. Perhaps his relationship with his children were better now. It was put to her that these [social media] posts were from 2014.
She claimed that he was her younger childrens’ father still and while she fought with her husband all the time she still cared for her children. Perhaps this was the same with her ex-husband and he changed as he got older.

Under s 424AA it was put to her that she claimed at the hearing that the police found a bottle of wine in the boot of her car when they stopped her at a checkpoint as she was returning from dropping a passenger off in [Location 1]. Previously in her interview (which the member had listened to) she said there was a bottle on the back seat that was discovered by two undercover police officers she had picked up as passengers. This inconsistency again raised questions about her credibility.
She claimed that many things happened in Iran when she drove her taxi and she had tried to forget them because she was trying to be a good mother and citizen in Australia. The member never mentioned the undercover police before. This was a different issue and had happened a long time ago. Regarding the alcohol she couldn’t remember if it was in the boot or in the back seat and the police found it. The two undercover police were a different story.
Also under s 424AA it was out to her that she had never mentioned there were court procedures against her until 2014/15 when she was in Australia. It was put to her that when this was put to her previously she claimed that she hadn’t raised it because she feared for the safety of her children in Iran. Yet her children were in Australia at this stage. This raised concerns that it had been raised late in her protection visa determination process simply to bolster her claim and there was no outstanding court procedures against her. She claimed that had her children not been in Australia she could still withhold that information.
She didn’t mention this until 2018 because she knew her children were safe and secure. Before this she would never have mentioned anything. She said that she had an AVO against her husband and a case worker so it was very different in Australia. She felt safe here. Asked if she had an AVO against her husband, she said it had been removed – she thought the AVO was removed two or three months after the incident two years ago. It was put to her the Tribunal had a concern that she and her husband may actually be separated for economic reasons. While claiming to be separated they were both baptised at the same church on the same day in 2018 for example.
She had no idea he was being baptised on the same day and would not have gone if he even knew he was going. There was no difference in the money she got from the government whether she was separated or not and finances are not worth lying for. Her daughter is [age] and she only just started receiving money for her from Centrelink. There ere plenty of jobs in Australia and she could easily go out and get a job.
Asked if she wished to make a claim regarding the data breach concerning asylum seekers that was made several years ago. She said she didn’t know what the breach was. The incident was explained to her, including that there was no evidence that anyone in Iran had accessed that information. She then said she remember the incident and was informed about it when they lived in [Suburb 3] but she said her name was not included in the list.
It was put to her that there was a claim regarding fearing harm for being a failed asylum seeker and it was put to her that country information indicated that unless individuals had a pre-existing profile before they left Iran, that the Iranian authorities weren’t interested in them. She claimed that she agreed but she had an open file and so her case was serious. She had issues and if she had known that documents would have been useful for her she could have brought them, including her passport.
She had also made claims on behalf of her children regarding them being women and she was told that this issue had been addressed. She claimed she feared for them and it would be death for them if they returned to Iran – it had the most vicious government in the world. Asked specifically about her children, she claimed that her children would be considered Westernised and she was asked what she meant by this. She said she was sure they would face problems – they need to know Persian and English they wouldn’t be able to speak Persian. Their religion would be a problem. She was a Christian at heart now but her children knew nothing about Islam.
Asked if she spoke English, she said that she had online classes but they had been cancelled but she managed even though she wasn’t good. She tried to talk English with her children so she could learn. It was put to her that it made no sense that if she couldn’t speak English she would converse with them in that language and it made sense that she would speak to them in Farsi. She didn’t know what her husband speaks and she paid attention to what her children said to each other and tried to learn from them. Asked how she conversed with them in English if she didn’t speak it herself. She only tld them what to eat, when to sleep, when to sit. Things were easy to speak and she was able to do 50 per cent of tasks at shopping in English.
Asked how she asked her Year [level] daughter what she did at school that day or did parent-teacher interviews, and she claimed that she just asked if she had a good day and her daughter said yes or no. For meetings at school she could write or text people or such things as absences she could communicate with the teachers.
It was put to her under s 424AA and it was put to her that in a hearing with her husband, the member formed the opinion that his English was really non-existent so he would likely speak to the children in Farsi. They were also young enough to learn Farsi in Iran.
She had also claimed that they would be harmed without family to protect them. It was put to her that she had family in Iran and the Tribunal was not convinced that she was actually estranged from her husband. Regardless she would have family support in Iran as would her children. She claimed that parents were crucial to a child’s development. She had [number] children and whether the Tribunal believed it or not her husband was dead to her and they would have no one if she returned to Iran. She said that 27/28 days ago she had an accident and she asked her older daughter to take her younger child but the younger daughter refused to do this. If they separated the children from each other this would be devastating.
She said she was really separated from her husband and there was no extra money coming to them. If she could finalise her divorce she would rush to do it. She would appreciate it if the Tribunal could show her how to finalise her divorce as quickly as possible. She allows him to see the children because they should be allowed to see their father as she knew he loves them. She could call police or sue him if he did anything badly.
She raised her claims and didn’t want to say any lies, and she was advised a range of ways to try to get permanent residency but she wanted her case to be genuine. She was given additional time to provide the additional documentation requested by the Tribunal. All that was provided was her baptism certificate and a statement from [Pastor F], and a letter from Legal Aid regarding the AVO imposed on her husband in 2019. It was also pointed out to her that she had been here for 12 years and had had a lot of time to access documents that may support her claim. She claimed that she had no access to anyone in Iran to access any documents. It was put to her that the Tribunal had raised concerns that this was not the case.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia as an Illegal Maritime Arrival [in] December 2010. Her original determination and follow-up protection obligations assessment were both negative but following the Federal Court judgment in SZSSJ she submitted a SHEV application on 31 August 2016. The Tribunal accepts that the applicant is an Iranian national and her application will be assessed as such.
The applicant is a [age] year old married Iranian woman with [number] minor children from her current marriage, and [number] adult children from a previous marriage in Iran. She claimed variously that she would face serious harm in Iran because she had an open file on her because she had not attended court, nor had she received lashes because of being found with alcohol in her taxi. She had also converted to Christianity and would be harmed because of this, she could be stoned to death for having talked to male passengers in her taxi, and she feared serious harm because of her position as a woman in Iranian society. Her two minor children would be killed because they would be considered Westernised and they had no family to protect them.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant. I note at one point during the hearing when some inconsistencies were put to her, she claimed that she found it hard to concentrate. She did not ask for a break in the hearing, nor was there any medical information provided that indicated she had difficulty in concentrating. The hearing had already been converted to a telephone hearing in response to her request owing to a back complaint. I am satisfied that she was fully able to present her claims and answer any concerns with the same.
I found the applicant’s evidence regarding her claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and find that she fabricated her claim in order to be granted a protection visa.
Abusive husband in Iran
While I accept that the applicant was divorced from her first husband in Iran, I do not accept that he was a drug addict, a part-time member of Sepah, that he forced her to promise never to re-marry, or that he was physically or sexually abusive towards the applicant. To begin with the applicant never mentioned that her husband was in Sepah during her arrival interview in 2010. And while I accept that one should be careful in giving too much weight to this early interview, the fact that his alleged Sepah connections were not mentioned at all is of concern. I do not accept that she was afraid to mention this because of her two children still in Iran. Given that she specifically came to Australia to seek protection, it makes little sense that she would then hide this fact from the Australian authorities.
She was also vague regarding what her husband did in Sepah, or how he could fit in running a [business] full-time at the same time as being a Sepah member. She variously said that she didn’t know what he did in Sepah, but also said that he used to transport political prisoners from one place to another, that he used to run a [business] and wasn’t full-time Sepah but then that she didn’t know whether he was full- or part-time Sepah.
I do not accept that he forbade her from marrying after they divorced. In her written statement in October 2017 she claimed that as a requirement of her divorce her ex-husband made her sign an undertaking that she would not re-marry. During the hearing she initially claimed that the court imposed the ‘no-remarry’ requirement as part of her divorce, however when it was pointed out to her that the member was familiar with Iranian divorce rules and that there was no such option contained within Islamic law, she then said that the court did not do it and it was imposed by her husband.
I also do not accept that her husband forbade her from leaving Iran as a condition of their divorce, and put her on an airport watch list. To begin with it doesn’t make sense that her husband would want, or be able to stop her from leaving the country simply because they had divorced. Indeed, if she had custody of the children it would have been in his best interest if she had left the country but the children didn’t. Her husband’s alleged ability to place her on an airport watch list seems completely at odds with her claim that he simply transported political prisoners from one location to another.
Country information notes that travel bans may be imposed for selected reasons, and that the husbands of married women or fathers of unmarried women and underage children may also seek travel bans. MOIS and the IRGC also have the power to do so. Yet there is no mention of such a travel ban being imposed as part of a divorce settlement.[1] It also does not make sense that she would apply for, and receive an Iranian passport if she knew that her ex-husband had stopped her from leaving the country.
[1] DFAT Country Information Report – Iran, 14 April 2020.
I also do not accept that the applicant’s ex-husband was physically abusive to her children and beat them. To begin with, I find it lacks credibility that, if the applicant had taken her husband to court in order to divorce him and had one away with the unpaid mehr in order to gain custody of the children, that she would then leave Iran without them and continue to allow her children to see their allegedly abusive ex-husband for three years.
I also note that DIBP provided evidence of social media contact between the applicant’s oldest daughter and her father (the applicant’s ex-husband) in Iran that indicated a close, loving relationship between father and daughter, as well as some evidence of the daughter transferring money she received in Australia to her father in Iran on at least one occasion. These actions are inconsistent with the picture the applicant painted of her husband. I do not accept that her ex-husband may have matured as he grew older – it was only put forward after the adverse information was put to her, and it still does not account for why she was happy to allow him access to the children for three years after she left Iran when he presumably had not matured.
Because I do not accept that the applicant has been truthful in her account of her husband’s employment or attitude towards their children, I also do not accept that the applicant has been subject to domestic violence, had her jaw broken, been made to perform sexual acts or attend protests against her will. The Tribunal understands that these are serious accusations and should not be dismissed lightly. However I have already noted that the applicant has fabricated a claim that her children were beaten by her ex-husband and, given this claim also relies solely on her unreliable oral testimony, I have no choice but to find that this claim too has been fabricated.
She claimed that she initiated divorce proceedings based on his cruelty and was granted a divorce as a result. Prior to the hearing she was asked to provide copies of her marriage contract and certificates for both marriages and the divorce certificate for her first marriage. She provided none of this evidence. Given she has been in Australia since December 2010 she has had every opportunity to access such a document and provide it to Australian authorities. I do not accept that she has been unable to do so because her family had disowned her due to her conversion to Christianity so she had no one who could collect the document. Below I have noted that I do not accept that her conversion is genuine, nor is it known in Iran to be genuine, and regardless she was not baptised until August 2018 so she had more than seven years to source the divorce document in order to strengthen her claim.
Conversion to Christianity
I do not accept that the applicant has genuinely converted to Christianity, or that she has told her family that she has converted and they have disowned her as a result. Whilst the Tribunal accepts that everyone’s spiritual journey may follow different paths, there are a number of reasons why I have not believed that her conversion is genuine. To begin with, the timing of the conversion is suspicious. Having arrived in Australia in late 2010 and letter been found not be owed protection, she was then allowed to re-apply for protection in 2016 which she did.
Up to and including her DIBP interview in November 2017 she had never made any claim to have any interest in, let alone attraction to Christianity. She was subsequently advised of a negative decision by DIBP in July 2018, was then baptised at [Church 1] [in] August 2018 and submitted her application for review on 21 August 2018. This appears to be a quite deliberate and sequenced set of actions. I also note the coincidence of both the applicant and her allegedly estranged husband being baptised in the same church on the same day. Given all the places of religious worship in Sydney, the chances of two people with negative protection visa decisions being independently attracted to the same branch of Christianity and subsequently being baptised in exactly the same church on exactly the same day are so remote as to be implausible. This further strengthens the Tribunal’s belief that the move to Christian baptism was a joint and deliberately staged event.
She does not appear to have done any research into different faith groups or even spoken or sought out any clerics to discuss any religious matters. While the Tribunal accepts that this in and of itself is this not necessarily a reason to disbelieve the veracity of her claimed conversion, it is nevertheless curious. I don’t accept that she was introduced to Christianity by a woman called [Ms E] who prayed with her and brought her to Christianity. It is reasonable to believe that if [Ms E] had had such a marked impact on her spirituality that [Ms E] would have been willing and able to attest to the genuineness of her faith. Yet the applicant never provided any supporting material from her, nor did [Ms E] testify on her behalf. This is also curious.
I also note that the applicant does not attend church, nor has she done for more than a year by her own account. I do not accept that she did not attend because of the bad looks she got because she had young children, or because of her medical condition. The member’s experience and understanding is that Christian churches welcome children and if she felt that they weren’t being made welcome then she was free to discuss this with the pastor to clarify the situation and/or to attend another church where they were more welcome. She did neither.
Nor do I accept that her medical condition stopped her from attending. She never articulated what that condition was, however given she also claimed to be unable to physically attend the hearing and provided a medical certificate I took it that this was what she was referring to as it is the only medical evidence she provided to the Tribunal. The medical history from 2010 refers to chronic back pain and a disc bulge, however I note that in that time she has been able to attend church for baptism, and also according to a letter from [Pastor F] to attend multiple bible classes in 2018 and 2019. There is nothing to indicate that her condition has worsened to the extent that she could not attend church, and the certificate that she provided in support of her claim not to be able to sit comfortably and hence required a telephone interview (which was granted) only refers to a fall at home she experienced on 5 May 2021 as the reason for this need.
I have also taken into account a letter provided in support of the applicant by the person who baptised her, [Pastor F]. He never attended in person and, while I accept that he has given the letter in good faith and I accept that she has attended classes at his church with her children, the Tribunal must look at the entirety of the applicant’s claim in order to evaluate its genuineness. I note that the letter indicates that he only met the applicant the day before he baptised her, which would not indicate that he did much to verify the genuineness of her reasons for converting. Whilst I also note that he claims she has told her family about her conversion and they were angry as a result, this is simply repeating what she told him and hence carries little weight. Because I do not accept that her conversion was genuine, as well as her lack of credibility as a witness, I do not accept that she has told her family or anyone in Iran that she has converted.
Outstanding court issues

I do not accept that the applicant has ever been detained, charged with any offence, sentenced to any period of detention, fine or lashes or has an open security/legal file awaiting her return to Iran. To begin with, she never mentioned any of these incidents or court proceedings when she arrived in Australia. When she did raise them a number of years later in response to an ITAO review after her claim had been rejected, she said that she had not raised them previously because her children were in Iran and she was scared of the repercussions for them. Yet they had already been in Australia for some time by the time she raised the issue and she only did this because she was replying to an ITAO process.
Despite being given the opportunity to do so, she provided no documentary evidence to support such a claim. It is reasonable to believe that she could have provided some documents such as court summonses and/or verdicts, or evidence such as a receipt for her brother’s property bond or a legal document advising the brother of his forfeited bond. Yet none was forthcoming. I do not accept that she was unable to provide any documents because her family disowned her, given that I have already rejected this claim.
I also note that, given she claimed that her brother obtained her ticket to leave Iran and a fake passport for her it would appear that her family knew about and were very supportive of her decision to leave Iran and seek protection in Australia. It follows that they would also have been highly supportive of obtaining and sending her any documents (such as her passport, summonses or bond documents) that would have helped her substantiate her claims. Also, by the time that she allegedly fell out with her family she had already been in Australia for eight years and it is reasonable to believe that she, her family, her previous legal representative(s) or her case workers would have known that the production of such documents would potentially aid in her claim. Her inability to produce even a single document in support of a claim that she made well after arriving in Australia does little to give the Tribunal confidence that any such events occurred.
Because I don’t accept that she was ever arrested, detained or charged it follows that she wasn’t found with a bottle of alcohol in her taxi by undercover officers or that she was charged with smuggling alcohol or cigarettes or for criticising the regime. I note that she was inconsistent in her account of the alcohol being found In her hearing she claimed that during a routine police stop in Tehran the police searched her car and found a bottle in the boot. In her statement she claimed that two undercover policemen she had picked up as passengers searched her car and found the bottle.
While I accept that there was a period of more than three years between her written statement and the hearing I don’t accept that she had simply got incidents regarding her work as a taxi driver confused. I have previously raised my concerns regarding her credibility as a witness and I note In her written statement she also sought to clarify that two other inconsistencies in her previous evidence were the result of mistranslation or misinterpretation or misunderstanding by an un-named friend who was not an accredited translator.
Because I do not accept that she was wanted by authorities or that her ex-husband had forbidden her from leaving Iran I also do not accept that she left Iran on a fake passport and would be of interest to Iranian authorities for leaving illegally. She has had years to support this claim by providing her real passport that she claims she left behind in Iran, yet she has never done so.
I do not accept that her litany of inconsistencies is due to a combination of being too scared to reveal her full claims when she arrived in Australia, a bad memory and a friend’s erroneous translations. Rather, I find that she adds or amends claims in order to better her chances of achieving a successful protection visa outcome.
Employment
I am satisfied that the applicant worked as a female taxi driver in Tehran. Country infor mation indicates that there are 1400 female taxi drivers with the Tehran Taxi Organisation, 7,000 women are employed in school transport services and a number of ride-hailing services employ women and also offer women-only services.[2]
I do not however, accept that it is illegal for female drivers to take male passengers. She provided no country information to support this, nor has the Tribunal found any that would support this claim. The member’s own experience is that the Tehran metro offers women-only carriages or they can travel in the other carriages with men, so it is reasonable to believe that taxis would offer both women-only and mixed options as well.
Regarding any harassment or targeting she may have been subject to, in light of the other significant inconsistencies in her evidence, while it is possible that she may have been subject to unwanted attention from a male passenger(s) on occasion I do not accept that it was systematic or that she was ever harassed by male passengers that she took illegally (given I am not satisfied that the practice is illegal), or that her taxi was burnt. Again, she produced no evidence that her taxi as burnt such as a photo, police report or insurance claim.
Divorce
I accept that the applicant is divorced from her first husband in Iran, however I do not accept that she will be looked down upon, considered immoral or be unable to find a job because she is a divorcee. Divorce is common in Iran, with a 2014 article indicating that around 20 per cent of marriages ended in divorce.[3] DFAT country information also notes that divorce is more common in Iran today than previously, particularly in the big cities.[4]
[2] ‘Tehran Taxi Co says will increase women drivers’ Financial Tribune, 24 January 2018.
[3] ‘Rise in divorce linked to shift in status of women’, Reuters, 22 October 2014.
[4] DFAT Country Information Report, ibid, p 47.

100. I do not accept that the applicant was made either by her husband or the court to promise never to re-marry for reasons previously outlined. I also note that she did re-marry in Iran, which supports the finding that a court did not impose such a ruling. She has provided no country information to support her claim that divorcees are looked down upon or would not be able to gain employment. I note that she claims she was able to find employment as a taxi driver after her divorce which was inconsistent with her claim that divorcees could not find a job. It is reasonable to believe that she could find employment as a driver on return to Iran, in line with the rest of the female job market.
101. I also do not accept that she will face harm because she would be returning to Iran as a single woman with [number] children. To begin with her [older children] are [adults] and have separately sought asylum in Australia. I am also not satisfied that she is single as she claimed. She claims to have been separated from her husband for nine years in Australia and had an AVO out against him. When asked why she hadn’t divorced him she said that her case worker and lawyer had told her the fees associated with it and she could not afford to do it. She was asked to provide written evidence from these people post-hearing but none was ever provided. She could not say why her husband had not initiated divorce. I am also not satisfied that she would not be able to find rental accommodation in Iran as a divorced woman. As I noted below I am satisfied that she is not divorced from her current husband, she has not produced any evidence regarding her claim that she could not find a rental property, and she also has family support available to her in Iran given I have not accepted her claim that she is estranged from her family.
102. She was also asked post-hearing to provide a copy of the AVO. No copy of the AVO was provided but an October 2019 letter from a Legal Aid solicitor was provided that said an AVO had been agreed to at court but that her husband did not attend. I note the letter says that the applicant did not want an AVO taken out against her husband but if the police did so then she still wanted to allow her husband to see the children – I also note that the letter stated the applicant wanted to write to the police asking them to remove the AVO. The applicant failed to mention either of these issues at the hearing.
103. The letter provided post-hearing to the Tribunal indicates that an AVO was imposed on the applicant’s husband in 2019. The Tribunal was keen to find out whether it was still in force and the applicant was given an opportunity to provide evidence to support this post-hearing. Given the applicant’s unwillingness to provide a copy of the current AVO that she claimed her husband was subject to, nor any attempt to explain why she could not provide it, the Tribunal can only conclude that this is because there is no current AVO against her husband.
104. The Tribunal has concerns that the applicant and her husband are not formally separated but maintain a relationship much closer than she admits to be the case. The inability for either party to initiate a divorce after nine years of being separated raises questions in the Tribunal’s mind, as does the applicant’s inability to provide any evidence from the lawyer or case worker that she claims she approached to discuss applying for a divorce even though she was given time post-hearing to do so.
105. While she claimed at hearing there was an AVO against her husband, I can not be satisfied that it is current. I also note that she appears to have not wanted the AVO imposed and was going to write to the police to ask for it to be removed – neither actions appear to eb ones of someone who detests her husband. I also note the extremely coincidental baptism of the applicant and her husband at the same Sydney church at the same time in August 2018 after both had received negative decisions on their protection claims. I find the timing more than coincidental and indicative of an ongoing close relationship between the two which is inconsistent with her claim to have been separated for nine years.
Children
106. The applicant raised claims on the behalf of her two children that they would suffer serious harm because they were women, would be considered Westernised and had no family support in Iran. I do not accept that there is a real chance the children will face serious harm for any of these reasons. To begin with I have already noted that I am satisfied the applicant has fabricated her claim to be estranged from her family and therefore the children, like their mother will have the support of their extended maternal family in Iran.
107. She did not articulate her claim regarding harm due to being women however I take it that she means the general limitations imposed on women in Iran in terms of societal norms (such as the dress code and free-mixing) and legal differences. I accept that men and women are treated differently in Iran and I also accept that they would find it an unusual and potentially difficult adjustment for a period. However given their young age and the familial support they would have I do not accept, nor did the applicant demonstrate how such limitations reached the threshold of serious harm.
108. Regarding her children being considered ‘Westernised’ I do not accept this to be the case. She claimed that they could not speak Farsi and would therefore be disadvantaged. The applicant claimed that she spoke to her children in very simple English because that’s all they needed to understand from her. While she may try to communicate with them in English on occasion her command of the language did not appear sufficient to converse with them solely in the language, and based on my hearing with her husband I noted the same language difficulties. I am therefore satisfied that the children know and speak Farsi at home. It is equally possible that they also know how to read and write it as well given their parents’ limitations in English. Regardless, they would be able to pick it up easily once they arrived in Iran given their young age.
109. I also do not accept that they are also Christian, or have been Christianised at home. Given I have found that the applicant has not truly converted to Christianity I do not accept that she exposes them to Christian television at their home and teaches them Christianity there. Given she has no religious qualifications herself or deep level of knowledge of Christianity I am not satisfied that she would have the knowledge, let alone the motivation to school her children in the new faith. It also makes no sense why she couldn’t have arranged for a person from the church to teach the children, either at a Sunday school or in private home lessons if she was such an adherent to the new faith.
110. I do not accept that the children would be imputed with being raised as Christians on return to Iran. Country information indicates that failed asylum seekers who convert to Christianity outside Iran aren’t of interest to the authorities.[5] As such, regardless of their level of knowledge of Christianity they will not be imputed with being ‘Westernised Christians’ on return to Iran.
Other Issues
[5] Ibid, p 70.
111. I do not accept that she does not have freedom of choice or speech or that she couldn’t choose where to go or what to wear. I do accept that the applicant has restrictions imposed on her in Iran as a result of her being a woman such as her dress. However I also note that country information indicates that Iranians are able to robustly criticise the government of the day although there are a number of red lines that limit this.[6] The applicant did not articulate how she had her speech limited, nor has she given any indication that she has been an active public voice against the Iranian government either in Iran or here in Australia. Regarding limits on her freedom of movement and dress I note that the applicant had a passport and travelled overseas from Iran in order to come to Australia without difficulty, and it is reasonable to believe that she would continue to be able to travel on return to Iran. And while I accept that she must wear a head covering and a manteaux in public, I do not accept that these restrictions amount to serious harm for the purposes of s 5J of the Migration Act.
[6] Ibid, p 38.
112. I do not accept that she would be killed on return to Iran because the government didn’t like anyone who opposed them or there is a real risk the applicant would face serious on return to Iran as a failed asylum seeker. The applicant has no political or legal profile in Iran and therefore she would not be considered as someone who opposed the government. There is no indication that she will be forcibly returned to Iran, and country information indicates that for those people without pre-existing political or legal profiles, Iranian authorities pay little attention to failed asylum seekers on their return given the large numbers who have left the country since the 1979 revolution.[7]
[7] Ibid, p 70.
113. Regarding the issue of a data breach, the issue of a February 2014 data breach was raised with her and she said that she had no claim to make in this regard.
114. As the applicant hasn’t raised any other claims to fear persecution and, having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.
Complementary Protection
115. I do not accept that the applicant has genuinely converted to Christianity, has or would seek to practise or promote Christianity in Iran, or that the applicant or her children will be imputed with being a Christian and/or apostate through their church attendance, religious education and activities or (in the case of the main applicant) baptism. Nor do I accept that children would be imputed with being ‘Westernised’ for having been in Australia.
116. I also do not accept that the applicant was ever married to and divorced from a Sepah member who beat her or her children, forbade her from ever re-marrying or tried to stop her from leaving the country, that she was ever accused of criticising the government, smuggling alcohol or cigarettes or being a prostitute, ever had her car burnt, was ever detained by the police, charged, fined, or sentenced to detention or lashes, or would be prosecuted as a voluntary returnee or for seeking asylum. Because of these reasons I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
117. And while I accept that she has restrictions placed on what she has to wear and potentially on her ability to travel due to her gender, I am not satisfied that this represents significant harm, and they are also faced by the female population of the country generally. As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
118. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
119. The Tribunal affirms the decision not to grant the applicants protection visas.
Rodger Shanahan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

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

(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

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

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

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

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

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 3538

12 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction