1906435 (Refugee)

[2021] AATA 1520

1906435 (Refugee) [2021] AATA 1520 (5 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1906435

COUNTRY OF REFERENCE:                   Iran

MEMBER:Michael Hawkins

DATE:5 January 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 05 January 2021 at 5:21pm

CATCHWORDS
REFUGEE – protection visa – Iran – Federal Court remittal – particular social group – women in Iran – women in Iran that contravene the Iranian dress code – religion – Christian convert – political opinion – human rights activist – feminist – non-compliance with religious moral code – pro-Western – husband assaulted over applicant’s manner of dress – fear of acid attacks against women – Basij – morality police –  decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5L, 5LA, 36, 65, 91R, 91S, 499
Migration Regulations 1994 (Cth), r 1.12; Schedule 2

CASES
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Chan Yee Kin v MIEA (1989) 169 CLR 379
DFC16 v Minister for Immigration and Border Protection [2018] FCAFC 56
DFE16 v Minister for Immigration and Border Protection [2018] FCAFC 177
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136
MIEA v Guo (1997) 191 CLR 559
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317
Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 161; (2013) 219 FCR 287 (SZRMA)
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE)
Nagalingam v MILGEA (1992) 38 FCR 191
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 (NAVK)
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 124
Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319
Prasad v MIEA (1985) 6 FCR 155
Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 (WAEE)

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicants who claim to be citizens of Iran, applied for the visas on 3 September 2014 and the delegate refused to grant the visas on 7 November 2014.

3. The applicants appeared before the Tribunal (differently constituted) (“the First Tribunal”) on 8 October 2015 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Persian and English languages. On 6 November 2015, the First Tribunal affirmed the decision not to grant the applicant a protection visa.

4. The applicants sought judicial review of that decision by the Federal Circuit Court of Australia. On [date] 2017 the Court dismissed the appeal application.

5. The applicants then appealed to the Federal Court of Australia. On [date] 2019 the Court set aside the decision of the First Tribunal and remitted the matter to a differently constituted Tribunal for determination according to law. Hence the matter is now before the Tribunal pursuant to an order of the Court. 

6. The applicants appeared before the Tribunal on 16 December 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicants were accompanied by their Representative who attended by telephone.

7. The applicants were represented in relation to the review by their registered migration agent.

   RELEVANT LAW

8. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

9. 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).

10. 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.

11. 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.

12. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

13. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). 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.

14. 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.

15. 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: s.91R(1)(a) of the Act.

16. 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.

17. 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.

18. 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

19. 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’).

20. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

21. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Mandatory considerations

22. 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.

    Member of the same family unit

23. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse and dependent child.

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. The issue in this case is whether the applicants meet the refugee criterion, and if not, whether they are entitled to complementary protection. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Background:

25. The Tribunal has obtained the following background information from the applicants’ visa application forms and evidence and submissions presented to the delegate and the decision of the delegate and the First Tribunal:

26. The first-named applicant (the applicant) was the second-named applicant in the hearing at the First Tribunal.

27. The second-named applicant was the first-named applicant in the hearing at the First Tribunal.

28. The applicant and second-named applicant are married.

29. The third-named applicant is the son of the applicant and second-named applicant.

    Claims:          

30. The summary of claims below has been extracted form the decision of the Federal Court of Australia. They are not disputed.

31. The applicant claims [in] January 2013 that she was walking with her husband (the second applicant) and son (the third applicant) in Karaj.

32. The applicant claims she was wearing makeup, tight fitting clothes and wore her hijab loosely which exposed her hair.

33. The applicant claims she was approached by two unknown men in plain clothes.

34. The men insulted her due to her manner of dress as it contravened the Iranian dress code. She claims they “made a very rude comment about the way I dressed because I didn’t wear my veil properly and because I wore make-up”.

35. The applicant claims the second applicant took offence at the insult and pushed one of the men.

36. The applicant claims the men retaliated by physically assaulting the second applicant.

37. The applicant claims that other people tried to calm the strangers down but they ran away.

38. The applicant claims the event was very traumatic for her and her son, and that she didn’t have a very clear memory of that night because she just tries to forget what happened.

39. The applicant claims that her father-in-law had discovered that the strangers were connected to the government and suggested to her and her husband that they leave the country to avoid difficulties.

40. The applicant also claims that since that incident she was always worried and feared that they would get in trouble again. She claims that she did not dare to go out without being covered up properly and that she was always scared that something bad could happen to them.

41. The applicant claims she fears harm from the Iranian authorities due to her contravention of the Iranian dress code.

42. The applicant claims to fear harm from the Iranian authorities due to her seeking asylum and her membership of particular social groups.

    Evidence:

43. The Tribunal has before it a range of material, including, relevantly:

    • The applicants’ protection visa application forms (visa application);
    • Statutory Declaration of the applicant dated 27 August 2013;
    • Statutory Declaration of the second-named applicant dated 27 August 2013;
    • Form 80 provided to the Department by the first and second applicants;
    • Representatives written submissions of 14 October 2014
    • Record of interview with the delegate dated 23 September 2014;
    • The protection visa decision record (delegate’s decision record) dated 7 November 2014;
    • The application for review forms lodged on 18 November 2014
    • Pre-hearing submissions of 5 October 2015;
    • The Tribunal decision record (‘First Tribunal decision’) made 6 November 2015;
    • Order of Judge [A] of the Federal Circuit Court of Australia (‘FCC order’) dated [date] 2017;
    • Order of Justice [B] of the Federal Court of Australia (‘FCA order’) dated [date] 2019;
    • Pre-hearing written submission of the Representative dated 12 December 2020;
    • A request for information of the Tribunal dated 15 December 2020;
    • The response to the request for information received 15 December 2020 which included, a statement made on behalf of the applicant’s second child, a visa application summary for a Safe Haven Enterprise (Subclass 790) visa; an acknowledgement of application from the Department; and a grant notice for a Safe Haven Enterprise (Subclass 790)’
    • Country Information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the DFAT Country Information Report on Iran, published on 14 April 2020 (the DFAT Report).

    Delegate’s Decisions

44. By separate decisions given on 7 November 2014, the same delegate refused to grant protection visas to the husband and the wife respectively and therefore to their son.

45. The delegate accepted for the purposes of both decisions that the husband was involved in a physical altercation with two men who may be Basij in 2013 but found that he had sustained minor injuries only due to the altercation.

46. While the delegate found the wife’s account to be lacking in detail, the delegate found that the wife’s answers were sufficiently consistent with her husband’s detailed, spontaneous and forthright evidence to satisfy the delegate that the incident occurred.  The delegate was also satisfied that the wife’s claim regarding contravening the dress code and being approached by two men in plain clothes is generally consistent with country information indicating that authorities sporadically attempt to enforce the dress code especially for women and will occasionally arrest and detain a person for violating the dress code..

47. The delegate also accepted that the wife was a member of two particular social groups for the purposes of the Refugee Convention, namely “women in Iran” and “women in Iran that [sic] contravene the Iranian dress code”. The delegate further found that contravening the Iranian moral code is considered a political act in Iran.  However, the delegate found that harm feared on account of the wife’s membership of the group “women in Iran that contravene the Iranian dress code” is a law of general application and does not amount to persecution.  While the delegate was satisfied that the harm feared by the wife in relation to her membership relevantly of the group “women in Iran” amounted to persecution under the Act, the delegate did not consider on the evidence that there was a real chance the applicant personally would be persecuted because she is a member of that particular social group..

48. The delegate also considered that the applicant did not satisfy the complementary protection criterion in s 36(1)(aa).  While the delegate accepted that the country information demonstrates that some women in Iran are harmed for contravening the dress code, including by lashings or various forms of torture, the delegate found that it was more likely that punishment for contravention of the dress code would be in the form of a monetary fine after being arrested.

    Decision of the First Tribunal

49. The decision of the Federal Court records the decision of the First Tribunal. It is extracted in part below.

50. Prior to the hearing at the First Tribunal, the applicant’s representative provided a submission dated 5 October 2015.

1. The representative repeated the claims set out in the written submission dated 14 October 2014 save that the appellants included the further claim to fear harm by reason of their actual and/or imputed political opinion and/or pro-Western political opinion on account of, either jointly or separately, “perceived breaches of Islamic conduct”.  The agent also updated the country information cited in support of the wife’s claim to fear harm by reason of her membership of the particular social groups “women in Iran” and/or women who don’t abide by strict Islamic dress codes”.  In particular, the submission quoted from a report from the Secretary-General of the United Nations in February 2015 commenting on the situation for women in Iran as follows:

   On 20 June 2015, the Ministry of the Interior issued a circular in which a new dress code for State and private sector employees was introduced.  Women are now required to strictly respect the new dress code and to refrain from wearing jewellery and make-up in offices.  Women are required to observe the Islamic dress code in public places.  More than 2.9 million women reportedly received a warning for failure to observe the code between March 2013 and March 2014. …

   Immodest attire was reportedly the motive for several acid attacks and stabbings in late 2014 by unknown individuals on the ground of preventing vice.  The Secretary-General is concerned about the considerable increase in the number of laws and public policies that threaten the universally established standards on the rights of women, including freedom of movement, health and economic activity.  The Secretary-General is also concerned at the restrictions imposed on access to justice for women and girls who have been subjected to violence, including marital rape.[1]

   [1] UN General Assembly, Situation of human rights in the Islamic Republic of Iran: Report of the Secretary-General, 31 August 2015, A/70/352 (the UN 2015 Report)

2. The submission relevantly also referred to a report from Amnesty International from March 2015 (the UN Report) commenting on the enforcement of the dress code in Iran and how its strict enforcement has led to an increase in violence against women, particularly in the form of acid attacks.

3. In her statement dated 1 October 2015, the wife among other things explained that “being a woman, I am fearful of my treatment on return to Iran.  I have heard that some women in Iran have had acid thrown on them recently because they didn’t cover themselves properly.  I am fearful that this will happen to me.”.

4. By a decision dated 6 November 2015, the Tribunal affirmed the decision not to grant the appellants’ protection visas.

   Federal Circuit Court Decision

5. The Court dismissed the applicant’s appeal. Again, the Federal Court recorded the decision of the Federal Circuit Court. It is extracted in part below.

6. The primary judge explained the appellants’ core contention as follows:

   36.  … the Tribunal had not paid proper attention to or guided itself by the decision of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (Appellant S395/2002) and thereby erred in its adverse decision to refuse Protection visas to the Applicants.

   37.  It was submitted by Mr Williams [counsel for the appellants] that [the wife] was an Iranian female who did not wish to abide by the dress code and feared harm on that basis, and that the Tribunal was wrong by deciding inconsistently with Appellant S395/2002 in holding that she could be expected to take reasonable steps to avoid persecutory harm and to live discreetly in a way in which she and her husband could avoid persecution.  It was submitted that inconsistently with Appellant S395/2002, the Tribunal did not ask why [the wife] would conform with the dress code or live discreetly if returned to Iran and whether she would actually live in that way in the hope of avoiding persecution. (emphasis added)

7. The primary judge dismissed this contention, finding that the wife never advanced a case in support of her protection visa application on the basis that she would defiantly not comply with the dress code, either for political or religious reasons or for any reason (FCC reasons at [39]).  The primary judge also addressed other particulars to the general ground of appeal, finding as follows:

   ·the Tribunal did not err in reaching a view as to what may happen in the future if the wife were returned to Iran having regard to her prior compliance with the dress code (FCC reasons at [46]-[49]);

   ·the Tribunal did not err in finding at [89] of its reasons that there was no country information to indicate that women in Iran are required to wear a chador, as the choice of country information and the weight given to it are matters for the Tribunal and the finding was incidental to the Tribunal’s decision (FCC reasons at [50]-[51]);

   ·contrary to the appellants’ submissions, no part of the Tribunal’s reasons indicates that it required or expected the wife to take reasonable steps to avoid persecutory harm or be discreet on return to Iran (FCC reasons at [53]); and

   ·while the delegate had considered that the dress code was a generally applicable law in Iran applying to the whole population and was therefore not persecutory, the Tribunal did not find it necessary to consider this issue and therefore did not fall into error in failing to address it (FCC reasons at [54]-[57]).

   Federal Court Decision

8. The Federal Court allowed the appeal. The decision is extracted below in part.

9. The Federal Court first summarised the decision of the First Tribunal.

10. The First Tribunal explained that it had before it the Departmental File relating to the appellants and had had regard to the material referred to the delegate’s decision and other material available to it from a range of sources (Tribunal’s reasons at [21]).  The Tribunal’s reasons record that it asked the appellants to describe what happened in the 2013 incident and records their evidence relevantly as follows:

    29. … [The husband] stated that it was his son’s birthday.  They were out in a park as a family.  Two plain-clothed persons appeared and complained about his wife’s hijab.  He did not know whether they were military because they were in plain-clothes.

    30.  The tribunal asked [the husband] to describe what was wrong with his wife’s hijab.  [The husband] stated that he did not know what the problem was.  She was wearing a shawl, manto and pants.  Perhaps she was wearing a little more make up and that attracted their attention.

    31.  The Tribunal asked [the wife] to describe what she was wearing at the time of the incident.  [The wife] stated they went out for their son’s birthday celebrations.  As most women do for special occasions, she had blown dried her hair and wore make up.  Two people approached them and said she was wearing a bad hijab.

    32.  The Tribunal asked [the wife] what she was wearing.  [The wife] stated that she was wearing a shirt, jacket which went down to above her knees, leggings and a shawl.  The bottom of the jacket was open.  She was not wearing what she wore on normal days.

    32.  The Tribunal asked [the husband] whether he agreed with [his wife’s] description of what she was wearing.  [The husband] stated that he did.

    34.  The Tribunal put to [the husband] that it understood that his wife’s head was covered, but that she was wearing make up.  [The husband] stated that she was wearing a shawl in the way women in Iran wear it.  Perhaps not all of her hair was covered, and the corner of the shawl was around her shoulder. 

    35.  The Tribunal asked [the husband] to continue his account of what happened.  [The husband] stated that the 2 men approached them and used very bad language to his wife.  They asked why she was wearing make up, why she was wearing these things.  He told them it was not their business.  He pushed them.  They hit him on the face and back, and he fell to the ground.  He did not see much while he was on the ground, as they continued to hit him.…

11. The reasons also record that the husband also said that after this incident, he stayed in Iran for three months and that they “mostly stayed at home” and did not go out.  He further said that he went to work using a hidden way and would do shopping on the way home from work (Tribunal reasons at [38]-[39]).  The wife agreed with her husband’s testimony.

12. Relevantly, the Tribunal asked the wife whether she had failed to comply with the dress code previously, to which she replied that “this was the first time.  She had not encountered those people before, and had no previous experience.  She had heard from friends and neighbours that this had happened to them.  She had difficulty believing it until it happened to her”: Tribunal reasons at [54]. 

13. Next, the Tribunal considered the independent country information.  Among other things, the Tribunal referred to country information to the following effect:

    70.  … Since 2009 the regime has used the terms “soft war” or “velvet revolution” to categorise what it sees as a battle against foreign cultural influence.  This is exemplified by bans on western style clothing and haircuts, satellite television and loud music.  Saied Golkar writing for The Journal of the Middle East and Africa, states that the Islamic moral law or code of behaviour is very broad and:

    includes, but is not limited to, enforcing religious modesty; ensuring the proper wearing of the hijab for women and checking male-female fraternization; prohibiting women from listening to Western music or wearing make up, colorful scarves, and tight clothing; censuring men who sport Western hairstyles and women who wear loose-fitting scarves or shortened trousers; collecting and destroying satellite dishes; and clamping down on parties, social corruption, and so on.

14. The Tribunal also referred to country information about the Basij, explaining that it is a volunteer paramilitary militia which operates under, and serves to augment, the Iranian Revolutionary Guard Corps or IRGC (Pasdaran-e Enghlab-e Eslami) (Tribunal reasons at [71]).  It described the Basij as highly diverse in structure and function, ranging from relatively untrained and disorganised neighbourhood watch groups to fully trained combat brigades, and while it has a physical presence in almost every part of Iranian society, sources indicate that only specific units (described as Nasahin or Amr be Maruf units) are responsible for day-to-day moral policing (Tribunal reasons at [71]-[72]).  It also found that while Nasahin teams wear uniforms and drive marked vehicles, there are also undercover members of these teams, and that they “carry out their duties through vehicle and foot patrols and checkpoints, generally set up in crowded streets or squares, on the lookout for infractions such as improper hijab or fraternising with the opposite sex” (Tribunal reasons at [73]) (emphasis added).  It found that the Basij, along with the police and Revolutionary Guards, have the power to make arrests. 

15. The Federal Court then recorded what it considered to be the critical part of the First Tribunal’s reasoning. 

16. First, despite acknowledging that the husband and wife had given reasonably consistent accounts of the altercation in their written statements, the interview before the delegate, and the hearing before the Tribunal, the Tribunal considered their account to be implausible and did not accept that the fight took place in the way described “by the applicant [sic], or at all” (Tribunal reasons at [86]).  In particular, the Tribunal considered that it was implausible that “when approached by 2 men in a park and asked questions about [the wife’s] hijab, [the husband’s] response would have been to push them”, given that this was inconsistent with the climate of fear in Iran painted by the applicants in their evidence at the hearing (Tribunal reasons at [83]).  I pause to note that, while the point was not argued, neither of the appellants claimed that the husband had merely been asked questions but rather that the husband had pushed the two men because of the rudeness of their comments to his wife.  I also note that the claims were not only that the rude comments related to the wife wearing “bad hijab” but also to her wearing make-up.  These indicate a failure by the Tribunal at this critical part of its reasons to appreciate the precise claims made by the appellants.

17. The Tribunal also found it implausible that other members of the public would have intervened “when members of the Basij were attacking [the husband]” as the fact that the men had walkie-talkies “on their belts” would have been apparent to other members of the public and cause them to exercise caution.  While again the point was not taken on appeal, I note with concern that the Tribunal overlooks the husband’s claim that the walkie talkies were being worn “underneath their clothes” (as quoted above at [Error! Reference source not found.]) and therefore misstated this aspect of his claims in assessing the credibility of the appellants’ claims.  The Tribunal also considered it was implausible that the Basij would not have identified themselves when faced with being overpowered by members of the public and that they would not have arrested the husband for pushing them (Tribunal reasons at [84]-[85]).  The Tribunal also said that it had considered the possibility that other members of the Iranian security apparatus operating undercover may have been involved rather than the Basij but considered that its reasoning was equally applicable in those circumstances (Tribunal reasons at [86]). 

18. The Tribunal concluded that the appellants would not be of interest to the Basij or other members of the Iranian security apparatus as a result of the claimed incident in January 2013, as it had found that this incident did not occur (Tribunal reasons at [87]).  That being so, the Tribunal also rejected the wife’s contention that she failed to comply with the dress code on that occasion as claimed, reasoning that:

    88.  ….  In the Tribunal’s view, this claim is inextricably linked with the applicants’ claims of the fight which followed, such that if the Tribunal rejects the claims of the fight it must also reject the claimed basis of the provocation which led to the fight.  This finding is supported by the uncertainty in [the husband’s] evidence as to how his wife had contravened the dress code.  Even [the wife’s] account of what she was … wearing – a shawl, manto/long jacket, pants/leggings - indicates that she had complied [with the] dress code in aspects other than possibly wearing too much make up and not entirely covering her hair.  She also stated that this was not what she normally wore.

19. Crucially, the Tribunal then turned to address the question of whether or not the wife would comply with the dress code if returned to Iran:

    89.  The Tribunal finds that [the wife] has complied with the dress code in the past.  [The wife] gave evidence that she had not been questioned about compliance with the dress code prior to the occasion claimed.  As set out in the preceding paragraph, the Tribunal has not accepted that [the wife] failed to comply with the dress code on the occasion claimed.  [The wife’s] evidence indicated that she normally complied with the dress code.  The Tribunal has not located any country information to indicate that women in Iran are required to wear a chador.  Having found that [the wife] has complied with the dress code in the past, the Tribunal considers that she would continue to comply with it if she returned to Iran.  The Tribunal finds that the risk of [the wife] attracting the adverse attention of the Iranian authorities for not complying with the dress code in the reasonably foreseeable future is remote.  It follows that the Tribunal does not accept that [the wife] has a well-founded fear of persecution on the basis that she is a member of the particular social groups, “women in Iran” or “women who don’t abide by strict Islamic dress codes”, if she returns to Iran, now or in the reasonably foreseeable future.

20. The Tribunal, after considering the remaining claims, concluded that it was not satisfied that the appellants met the criteria for a protection visa in either subs 36(2)(a) or (2)(aa) of the Act.

21. The Federal Court considered the grounds of appeal:

22. Specifically, the applicants allege that the primary judge erred in failing to hold that the Tribunal had erred:

    ·in finding that the wife is required, or can be expected, to take reasonable steps to avoid persecutory harm (particulars (f) and (j));

    ·in finding that there was no “‘country information to indicate that women in Iran are required to wear a chador’, when there was country information before the Tribunal that women are required to adhere to Islamic dress codes” (particulars (g) and (l));

    ·in finding that the wife has complied with the dress code in the past and would continue to comply (particular (i)); and/or

    ·in failing to consider whether the laws of Iran concerning the dress code were persecutory

23. It is not in issue that the appellants did not expressly claim that if the wife returned to Iran she feared harm because she does not wish to abide by the laws of Islamic extremism, including the dress code.  The core issue on the appeal is whether a competent Tribunal would have appreciated that this claim was raised implicitly on the material before it so as to require the Tribunal to consider the claim.  This issue turns upon the proper construction of the appellants’ claims, the principles being well settled.  In order to address this issue therefore, it is necessary to explain the material before the Tribunal in some detail, including the delegate’s decision. 

24. For the reasons set out below, I consider that the Tribunal fell into jurisdictional error in failing to consider a claim that arose with sufficient clarity on the material.  The appeal must therefore be allowed and the matter remitted to the Tribunal differently constituted, given not only the errors which I have upheld but other concerning aspects of the manner in which the Tribunal dealt with the appellants’ claims. 

25. Turning first to the applicable principles, it is well established that a decision-maker is required to correctly construe and consider claims (and their component integers) made by an applicant or apparent on the material before the decision-maker: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 (Dranichnikov) at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])). As Allsop J (as his Honour then was) held in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 (Htun) at [42]:

    To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on.  The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. See also Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding.

26. A failure to consider a contention amounting to a failure by the Tribunal to exercise its jurisdiction will relevantly arise where there has been a failure to consider a “substantial, clearly articulated argument” that, if accepted, might establish a well-founded fear of persecution for a Convention reason:  Dranichnikov at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])); Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [90] (the Court). Equally, there will be a constructive failure to exercise jurisdiction if the Tribunal fails to consider a claim which “is apparent on the face of the material before the Tribunal”:  NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE) at 19 [58] (the Court). As Allsop J (as his Honour then was) explained in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 (NAVK) at [15] (affirmed on appeal in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 124):

    Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.  (emphasis added)

    See also Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 161; (2013) 219 FCR 287 (SZRMA) at 300 [70] (the Court); DFC16 v Minister for Immigration and Border Protection [2018] FCAFC 56 at [6]-[9] (Siopis and Griffiths JJ), [50] (Logan J); DFE16 v Minister for Immigration and Border Protection [2018] FCAFC 177 at [19]-[22] (the Court).

1. Secondly, the claim that the wife feared persecution as a member of a particular social group of “women in Iran who do not wish to abide by Islamic extremism including the dress code” does arise sufficiently from the material before the Tribunal to have required the Tribunal to consider the claim in line with these principles.  The claim that she did not wish to abide by the strict Islamic dress code is necessarily implicit in the wife’s claim about the 2013 incident that she had worn make-up for her son’s birthday, had blown dry her hair for the special occasion, and that her hijab was loose exposing her hair.  In other words, the very fact that she went out in public wearing makeup with a loosened hijab shows that she wishes to do this despite the fact that it does not comply with the strict Islamic code enforced in Iran.

2. In this regard, it is significant that, despite having rejected the appellants’ claims that a fight occurred between the husband and the two men and that the wife failed to comply with the dress code, the Tribunal at [88] nonetheless addressed the possibility that it might have been wrong to reject the wife’s account of what she was wearing (applying the so-called “what if I am wrong” test):  see Guo at 576 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ); see also e.g. Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 (Sackville J at [62] (North J agreeing at [129])). Thus, bearing in mind that the Tribunal did not reject the appellants’ story that they had gone out for their son’s birthday, at [88] of its reasons the Tribunal left open and addressed the possibility that the wife’s claims as to what she was wearing in a public place were true. Furthermore it was never suggested by the wife or her husband, nor put to either of them, that the wife’s hijab had come loose accidentally; nor was it suggested that the wife had been compelled against her will to wear make-up or to loosen her hijab, or that she was unaware of the prohibition against this conduct by the dress code. The claim was that this was what she had chosen to do. Moreover, the country evidence accepted by the Tribunal at [70] was that the Islamic moral law or code of behaviour enforced as an aspect of the battle against foreign cultural influence in Iran includes ensuring the proper wearing of the hijab for women and a prohibition upon women wearing make-up (as well as wearing tight clothing, which the wife also claimed to have worn): see above at [‎63. ] and [38].

3. Thirdly, as the appellants contend, to the extent that the Tribunal considered that the wife could avoid persecution by complying with the dress code or not going out as the wife claimed that she had done in the past, the Tribunal’s reasoning runs counter to the principles in Appellant S395/2002.  As Gageler J succinctly explained in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317 with respect to the effect of the High Court’s decision in Appellant S395/2002:

   [36]     The principle for which that case stands is that a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby to avoid a real chance of persecution.  The rationale for the principle was encapsulated by Dyson JSC as a member of the Supreme Court of the United Kingdom which adopted the principle in HJ (Iran) v Secretary of State for the Home Department:

   If the price that a person must pay in order to avoid persecution is that he must conceal his race, religion, nationality, membership of a social group or political opinion, then he is being required to surrender the very protection that the Convention is intended to secure for him.  The Convention would be failing in its purpose if it were to mean that a gay man does not have a well-founded fear of persecution because he would conceal the fact that he is a gay man in order to avoid persecution on return to his home country.  (Emphasis in original)

   [37]     The S395 principle should not be extended beyond its rationale.  The principle directs attention to why the person would or could be expected to hide or change behaviour that is the manifestation of a Convention characteristic.

   (Citations omitted)

4. In this regard, while the migration agent expressed the claims in his submissions in terms of the wife’s membership of a particular social group of women in Iran (relevantly) “woman [sic] who don’t abide by strict Islamic dress codes” or imputed political opinion as a result of not complying with the religious moral code, the substance of the wife’s own claims and those of her husband was that she complied with strict Islamic dress codes because she was afraid to do otherwise. 

5. I also note that the Tribunal’s assessment of what may occur in the future also failed to address the UN 2015 Report cited by the appellants in their submissions to the Tribunal, which referred to the dress code being more strictly enforced since 20 June 2015 and concerns about a related escalation in violence by unknown actors against women for immodest attire. 

6. Fourthly, the Minister’s counsel correctly accepted that, if the Court should find that the claim that the wife feared persecution as a member of the social group of women “who do not wish to abide by Islamic extremism including the dress code” squarely arose from the material before the Tribunal, that claim was not considered by the Tribunal and as a result the appeal would have to be allowed. Implicitly in this, the Minister correctly conceded that if the claim were accepted, it may lead the Tribunal to conclude that the wife had satisfied the criterion in s 36(2)(a) or (aa): WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 (WAEE) at [45] (the Court). As such, the error was a material one: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780 at [29]-[30] (Kiefel CJ, Gageler and Keane JJ).

7. Finally and in any event, the appellants contend that the primary judge erred in failing to find error in the Tribunal’s finding at [89] that country information did not suggest that women in Iran are required to wear a chador (see particular (l) to ground 1 of the notice of appeal).  Contrary to the decision of the primary judge, in my view this finding does reveal a jurisdictional error.  The Tribunal referred to the lack of country information about any requirement to wear a chador in Iran because plainly if that were a requirement, the wife would not have complied with it.  In other words, the finding that wearing a chador was not a requirement was relevant to the Tribunal’s reasoning only because it found that the wife had complied with the dress code despite accepting the possibility that she was wearing too much make-up and not entirely covering her hair:  Tribunal reasons at [88] and [89].  This reveals a fundamental failure by the Tribunal to understand the wife’s claim that wearing make-up and failing to wear the hijab so as to entirely cover her hair were themselves breaches of the strict Islamic moral code – a claim which is also consistent with the country information that the Tribunal apparently accepted at [70] of its reasons.

   Country of reference/ receiving country:

8. The applicants claim to be Iranian nationals. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Iran is their country of nationality and also their receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

9. The Tribunal is satisfied on the basis of the evidence before it that the applicants do not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicants are not excluded from Australia’s protection obligations under s.36(3) of the Act.

   Hearing:

10. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. Neither the applicant nor the representative objected to the conduct of a hearing by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The Tribunal was satisfied that the telephone service was clear and uninterrupted; it confirmed that the applicant, the representative, the interpreter and the Tribunal Member could hear each other clearly and the Tribunal paused on several occasions to ensure that the applicant was satisfied with the clarity of the hearing.

11. The applicant appeared before the Tribunal on 16 December 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in Persian and English languages. The applicant was accompanied by her representative who also attended by telephone.

12. The Tribunal discussed with the applicant the various steps taken in the consideration of her protection claims, including the decision of the delegate, the review process to the First Tribunal, the determination to remit the matter back to this Tribunal and the extensive submissions made to this Tribunal on the applicant’s behalf.

13. After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa she must either be recognised as a refugee or be a person entitled to Complementary Protection.

14. The Tribunal explained that under Australian law, to be a refugee she must have a well-founded fear of persecution in Iran. This means the Tribunal must be satisfied that there is a real chance that she will face serious harm if she returned to Iran. The harm must be directed at her for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.

15. With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk she will suffer significant harm if removed from Australia to Iran.

16. The Tribunal discussed her claims as summarised in paragraphs 30-42 above. It confirmed that her claims as so summarised were not in dispute. The Tribunal asked the applicant whether those claims were accurate and complete. The applicant stated they were and that she did not need to change them.

17. The Tribunal noted the Representative’s extensive submissions. The Tribunal particularly noted that the submission, dated 12 December 2020, incorporated all of the applicant’s earlier submissions and evidence submitted to the Delegate and the First Tribunal. It noted that the applicant relied on all submissions and materials, both in past and present applications, in support of her application for a Protection Visa.

18. The Tribunal noted the response it had received from the Representative in relation to the Tribunal’s request for information relating to the visa status of the applicant’s second child, and thanked the representative for the quick response, allowing the issue to be discussed at the hearing. The representative had provided a statement made on behalf of the applicant’s second child, a visa application summary for a Safe Haven Enterprise (Subclass 790) visa; an acknowledgement of application from the Department; and a grant notice for a Safe Haven Enterprise (Subclass 790).

19. The Tribunal also noted from the Representative’s submission all of the sources of her claims.

20. It noted in particular an additional claim in relation to Christianity. The applicant confirmed that she and her husband had converted to Christianity since arriving in Australia. The Tribunal stated that issue would be discussed later in the hearing.

    Assessment of Claims and evidence, and findings:

21. 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. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (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).

22. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

23. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

100.   The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

101.   The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:

In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[2]

[2] Guidelines on the Assessment of Credibility (July 2015) Available at  However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[3]

[3] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.

103.   The Tribunal noted the extensive submission of the Representative and discussed it at length with the Representative.

104.   The Tribunal discussed the status of the second born child who was born in Australia in 2017.

105.   The Representative advised that the second son applied for a Safe Haven Enterprise Visa, and his claims were based on that of his parents, where they would face significant harm due to their conversion to Christianity and the discrimination that would be faced by his mother due to being a woman. The Representative stated that the second son’s protection visa was granted based on these grounds.

106.   The Representative made the point that it leaves a peculiar scenario where the same claims now before the Tribunal have been seen to satisfy Australia’s protection obligations for the youngest child, leaving the youngest child with a visa, but not his parents or older brother.

107.   The Tribunal acknowledged that there is a principle of consistency in decision making.

108.   The Representative submitted that the two sons are to be afforded the protection of the Australian Government as a part of its obligations under CROC. The children’s parents can and will face significant harm if they were to return to their country of origin, and their first child will also face this harm. While the second son as a recognised refugee cannot return, he cannot, under convention reasons be separated from his family, as there is no justification for it and not in his best interest. Given that the second son was granted refugee status on the same grounds that are being presented to the Tribunal in this hearing, it would certainly be a breach of Australia’s international obligations, not only to refuse the family their visa, but to place the children in a position where they will risk being separated from their parents.

109.   The Representative went on to suggest that it was accepted that the second son can and would face harm if he were to return to Iran on the basis that his mother and father have converted to Christianity and that his mother will face discrimination because of her gender as a woman. Therefore, if these claims satisfied the Department of Home Affairs as to the status of the second son as a refugee, then it should equally apply to the rest of the family, where if they were to return to Iran, they would too face the same harm as their second son. As per convention grounds, the granting of a visa to the family would be in the best interest of both children as it would allow the family to stay together in Australia, with the children being in the custody of their parents.

110.   The Tribunal stated it would consider that argument further.

111.   The Tribunal returned to the decision of the Federal Court, noting that the Representative had restated the applicant’s claim to belong to a particular social group of “women in Iran” and “women who do not wish to abide by Islamic extremism including the dress code”.

112.   The Tribunal accepts that whilst the latter claim was not specifically articulated as a claim in the Protection Visa application, it is a claim that arises on the evidence raised during the interview with the delegate and the First Tribunal.

113.   The Tribunal engaged the applicant in a wide-ranging discussion about her dress habits in Iran. She confirmed that she had regularly dressed as she pleased in Iran. The Tribunal quizzed the applicant as to the incident in 2013 after her son’s birthday dinner. It inquired whether that was the first such time she had been “caught” defying the dress code. She replied that it wasn’t the first time she had been abused by people on the street, but it was the first time there had been a physical altercation and the first time they had been threatened as they had been. It was the first time that she had felt that she was in trouble with the authorities and the first time she had felt genuinely scared to carry on as she had done before.

114.   The Tribunal asked the applicant what effect the incident in 2013 had had upon her. She replied that from that moment, she always felt fear. She stated that she was afraid to go outdoors dressed as she preferred to be and to be faced with the same situation.

115.   The Tribunal asked the applicant about her experiences in Australia.

116.   The applicant replied that she loved the freedoms of Australia, the freedom to dress and present herself as she pleased. Asked if she dressed like “an Aussie”, she laughed and agreed that she did.

117.   The applicant then advised that she has been actively protesting against the Iranian female dress code whilst being in Australia. The Tribunal inquired of the applicant how she did that.

118.   The explained that she was very active on [Social Media 1], posting regularly photos of herself attending local feminist protests against wearing the hajib. She also stated that she reposts posts from Human Rights Activists – sharing and supporting the political views. She states that she also supports the White Wednesday Protest. She offered her [Social Media 1] account in support of her activities. She claims that she wants to bring the attention of women world-wide to the oppression of women in Iran.

119.   The Tribunal expressed its curiosity as the applicant having gone from one too afraid to leave the house when she lived in Iran to now a woman flying the flag most publicly for the right to dress as she claimed to be too scared to do in Iran. The Tribunal apologised for its scepticism. The Tribunal explained that it also had to consider whether these activities undertaken in Australia may only be engaged in for the purposes of enhancing her protection claims.

120.   The applicant assured the Tribunal that was not the case. She explained that the 2013 incident affected her mental health. However, since being in Australia and observing, understanding and enjoying the freedoms Australian women enjoy, she has become stronger and motivated to support human rights activists and to support oppressed women.

121.   Asked what she would do, that is, how she would dress if she returned to Iran, she stated that she would continue to dress as she has done in Australia. She stated that she would be frightened and scared, but that she must support her beliefs, and her right to wear a bit of makeup and not cover her head.

122.   It was put to her that that response appeared inconsistent with the findings of the First Tribunal. She replied that this was the first time she had been asked.

123.   The Tribunal considered Country Information contained in the DFAT Report.

Since shortly after the 1979 revolution, men and women of all religions have been required to adhere in public to conservative dress codes. Women are required to cover their whole bodies with the exception of their face and their hands (from the wrist) and their feet (from the ankle) while in public. In practice, this translates as loose all-covering clothing and a headscarf. Men are required only to cover their ‘private areas’, although social norms dictate wearing long trousers rather than shorts. Article 638 of the Penal Code stipulates that women who appear in public without a proper hijab (the generic term for the proper Islamic dress for women) be imprisoned from 10 days to two months or pay a fine of between 50,000 and 500,000 rials (approximately AUD0.50-5 at current market rates). Women appearing in public without a proper hijab can also be punished with 74 lashes. There is no similar rule for men. In practice, these penalties are rare. Generally, women deemed to have ‘bad hijab’ (where the headscarf is worn loosely and some hair is showing) are ordered by morality police to adjust their headscarves and are warned against future indiscretions. In some cases, they may be escorted to a police station, asked to sign a declaration undertaking not to wear ‘bad hijab’ again, and released without sanction. Repeat offenders reportedly incur a fine and their family is notified and asked to bring appropriate clothing for them. Repeat offenders may incur a criminal record, which could impact one’s ability to find employment in the public sector and large private firms.

Dress codes for women are not uniformly enforced or adhered to. DFAT observed numerous women wearing their hijabs loosely in Tehran, with parts of their hair showing. Women are more likely to wear hijabs loosely in affluent areas of Tehran (e.g. north Tehran) and around universities, whereas those in poorer and more conservative parts of Tehran (e.g. south Tehran) and in cities such as Mashhad and Qom tend to dress more conservatively (including by wearing full-body chadors). Dress codes are enforced primarily by the morality police, who are sometimes plain-clothed, but also the Basij, who tend to take a stricter approach to enforcement. Marked vans belonging to the morality police (coloured green and white) patrol the streets to monitor Islamic dress code adherence. There have been reports of women not complying with the hijab laws being insulted and physically assaulted by the morality police (including being slapped in the face or beaten with batons) and by members of the public.

Women’s dress is a politically sensitive issue. An anti-hijab protest movement emerged in January 2018. As part of this movement, some women publicly removed their headscarves and called for an end to the compulsory hijab law. The protests peaked in March 2018, when a large group of women used the occasion of International Women’s Day to demonstrate in front of the Ministry of Labor. Plain-clothed and uniformed police dispersed the protesters, arresting 84 people (60 of whom were released the following day). The authorities have subsequently arrested more than 100 activists in relation to the anti-hijab movement. Some have received prison sentences, including under Article 639 of the Penal Code, rather than the more lenient Article 638. Article 639 prohibits ‘facilitating or encouraging people to commit immorality or prostitution’, and can attract prison sentences of between one and 10 years. One activist, Shaparak Shajarizadeh, was given a 20-year prison sentence (18 years’ suspended) for participating in the protests (Shajarizadeh fled Iran after being released on bail, and claims she was subjected to torture and denied access to a lawyer while in detention). The lawyer representing Shajarizadeh and other anti-hijab activists, Nasrin Sotoudeh, was handed a 38-year prison sentence on several national security charges (see Civil Society Activists/Human Rights Defenders). In July 2019, the head of the Revolutionary Court in Tehran warned that women who filmed themselves or others while removing the hijab and publicised the act would be sentenced to between one and 10 years in prison. According to Amnesty International, at least eight women were in detention for their activism against the compulsory hijab law as at July 2019.

The anti-hijab protest movement has since waned, but maintains some momentum, particularly online. In April 2019, three women were arrested after appearing in an online video protesting against the compulsory hijab law on International Women’s Day, including by removing their headscarves. They were subsequently convicted of assembly and collusion in acts against national security, propaganda against the state, and encouraging moral corruption and prostitution. Two of the women received sentences of 16 years’ imprisonment. The third woman was additionally convicted of ‘insulting the sacred’, and received a prison sentence of 23 years and six months. In 2017-18, some women protested the compulsory hijab law by wearing white headscarves every Wednesday under a foreign-initiated campaign called ‘White Wednesdays’.

According to local sources, enforcement of Islamic dress codes fluctuates, with checks on dress code violations increasing during holy periods (such as Muharram and Ramadan) and the summer season (when many women tend to adhere to dress codes more loosely due to the heat). Local sources told DFAT that, generally-speaking, the Islamic dress code is not enforced strictly, particularly in the major cities, but that enforcement has increased since the emergence of the anti-hijab protest movement in January 2018. Morality police patrols have become more frequent in Tehran, including in shopping malls. In April 2019, 8,000 plain-clothed men and women officers were deployed to enforce dress codes, while new female-only morality police units for ‘verbal and practical response to bad-hijabi women’ were recently introduced in Gilan Province. Authorities have closed a spate of restaurants and cafes due to non-observance of the Islamic dress code since June 2019 (see Mixed-Gender Parties and other forms of ‘Immoral Behaviour’), and police reportedly monitor women for wearing their hijabs inappropriately or not at all while travelling in vehicles. Where a female is detected with ‘bad hijab’ inside a vehicle, the owner of the vehicle receives an automated text message instructing them to report to a police station and sign a declaration undertaking not to wear or tolerate ‘bad hijab’ again. According to local sources, repeat offenders incur a fine and, concurrently, are requested to settle any outstanding traffic infringements. A failure to do so can result in the impounding of one’s car and potential suspension of licence until all outstanding fines are settled.

124.   The Tribunal also considered Country Information submitted by the Representative.

In Iran, women, merely because of their gender face discrimination and harassment from the Authorities of the Islamic Republic, and also the wider community, especially from men. Women are restricted in many ways such as what choices they can make and what they can wear.

Although the president, Hassan Rouhani wants reforms for the country, there is still ongoing discrimination towards women. Furthermore, Iran has not signed the Convention on the Elimination of all Forms of Discrimination against Women, and legislation in Iran continues to place restrictions on the rights of women, in regard to personal freedom and expression, employment, marriage and citizenship.[4] Those who advocate for women’s rights are detained and imprisoned and given the same treatment to those as political prisoners. In fact, gender equality was described by the Supreme Leader as ‘one of the biggest mistakes of western thought’.[5]

[4] Minority Rights Group International, Beyond the Veil: Discrimination against women in Iran, September 2019.

[5] ibid

The treatment of women in Iran is based upon the implementation and interpretation of Shi’a Islam into national legislation. They are seen to have secondary status in all aspects of society where they are forced into traditional forms of employment, if they are able to find employment at all as they are encouraged to be stay at home mothers.

Iranian Authorities have also not criminalised gender-related violence against women and girls and remain widespread.[6] There are no laws regarding domestic violence and rape is not considered to be a crime at all.[7]

[6] Amnesty International, Iran 2019: africa/iran/report-iran/.

[7] Minority Rights Group International (n 23)

The beheading of 14 year old Romina Ashfari in early 2020 is clear evidence of the culture and beliefs surrounding women and girls in Iran. Despite Ashfari pleading for help to the authorities over her abusive father, he eventually beheaded her in her sleep. Although arrested and put into custody his sentence was reduced due to being considered an honour killing.[8]

[8] BBC News, Romina Ashfari: Outrage in Iran after girl murdered ‘for eloping’, 27 May 2020: Radio Farda, Iranian Father’s Light Sentence for Honour Killing Rekindles Controversy Ove Islamic Penal Code, 28 August 2020: penal-code-/30808734.html

The punishment of her father for killing his own daughter should be contrasted to the 24-year prison sentence given to a woman who was protesting compulsory hijab. She was charged with ‘spreading corruption and prostitution by taking off her hijab and walking without a veil’.[9]

[9] Iran Human Rights Monitor, Saba Kord Ashfari Sentenced to 24 Years for Protesting Compulsory Hijab, 28 August 2019: protesting-compulsory-hijab/.

In fact, forced hijab and ‘moral crimes’ are one of the biggest issues facing every day Iranian women. Article 638 of the Islamic Penal Code dictated that women who do not wear hijab may be imprisoned from 10 days to 2 months and/or required to pay fines of up to 50,000 and 500,000 rials. Institutions are put into place to ensure the maintenance of not only dress code by other standards of conduct expected of women, these include the Basij and other morality police groups. These groups have mistreated, harassed and abused women on the streets for ‘bad hijab’, although there is no definition for what proper hijab should be. Women have been victims of acid attacks, and subject to armed violence to enforce veiling. The mistreatment however extends to even ordinary members of the public, where regime supporters are also seen to harass and abuse women for ‘bad hijab’.[10] In fact, the Human Rights Documentation notes that the punishments are given out arbitrarily:

[10] Minority Rights Group International (n 23).

“Moreover, there are no certain rules and measures for these restrictions; instead, its implementation has been left to the discretion of law enforcement forces, which are not limited to official police officers but also include numerous fanatical Basij forces. These forces seize every opportunity to remind women of the implications of violating the hijab.”[11]

[11] Mohammad Hossein Nayyeri, Gender Inequality and Discrimination: The Case of Iranian Women (8/3/2013) Iran Human Rights Documentation Centre < commentary/1000000261-gender-inequality-and-discrimination-the-case-of-iranian-women.html#2

Defenders of women’s rights particularly in regard to forced hijab have faced serious mistreatment. In March 2019 Nasrin Soutoudeh, a human rights lawyer was sentenced to 38 years and 6 months in prison, as well as 148 lashes for ‘inciting corruption and prostitution’. Her husband was also arrested for posting Facebook posts about human rights violations in Iran. In April of 2019, Yasaman Aryani, her mother Monireh Aradshahi and Mojgan Keshavarz were arrested for posting a video of them walking in the Tehran metro without headscarves on International Women’s day which went viral. Farhad Meysami was also sentenced to prison for his support of women’s rights.[12]

[12] My Stealthy Freedom, Iran: Abusive Forced Veiling Laws Police Women’s Lives, 28 May 2019: is evident that women’s rights in Iran are heavily restricted. Women are subject to restrictions in society, including personal expression, employment and in the family. If they break these codes, they are subject to abuse and arbitrary detention, which could include torture.

125.   The Tribunal asked the applicant what it was that she feared in returning to Iran, if the Tribunal was prepared to accept that she had become an activist and had been active on [Social Media 1] in Australia, and that the Tribunal believed that she genuinely had strong anti-hajib views, and accepted that she was a person who did not wish to abide by Islamic extremism including the dress code, and would not do so if she returned to Iran.

126.   The applicant stated that she feared interrogation at the airport upon return, and that she feared being arrested, and more than that, she was afraid of not knowing when she might be arrested. She was fearful of someone having seen her [Social Media 1] activities, either the authorities, the Basij, members of either, or people in the community who resented her and reported her activities to the Basij or the morality police after she returned. She was also fearful that her friends and neighbours might turn against her and report her to the authorities. She stated that people in her community were very conservative and would not support her liberal views.

127.   The Tribunal considered Country Information from the DFAT Report in relation to the conditions for returnees.

128.   One observation by DFAT stood out.[13]

[13] DFAT Report, Paragraphs 5.29-5.31

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. Those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are traveling on a laissez-passer. Questioning usually takes between 30 minutes and one hour, but may take longer where the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history on the part of the returnee. Arrest and mistreatment are not common during this process. A well-placed source was not aware of voluntary returnees being prosecuted for criticising the Islamic Republic, converting to Christianity or proselytising while abroad on their return to Iran. As far as DFAT is aware, the authorities do not check the social media accounts of Iranians returning from abroad.

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), protesting outside an Iranian diplomatic mission, 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. The treatment of returnees, including failed asylum seekers, depends on the returnees’ profile before departing Iran and their actions on return. According to local sources, the greatest challenge facing failed asylum seekers on return is reintegrating economically and finding meaningful employment.

DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination.

129.   The Tribunal notes that the applicant may have justification in her fear of being interrogated, but Country Information would suggest that her [Social Media 1] activities would have been largely ignored and that whatever views and activities she engaged in abroad would seem to be of little interest to the authorities.

130.   Hence, it remains for the Tribunal to consider the applicant’s plight if she does return to Iran and to her community and does pursue her stated goal of dressing as she pleases and engaging in political activism against the enforcement of laws of Islamic extremism including dress codes against women.

131.   The Tribunal does accept, on balance, that the applicant, if she returns to Iran, will likely not wish to abide by the laws of Islamic extremism, including the dress code, and will dress as she pleases and continue to protest against the oppression of women. And she will continue to fear the consequences of her doing so.

132.   The Tribunal has had regard to s.5L of the Act which provides that a person is to be treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society. Following careful consideration, the Tribunal finds that the applicant is a member of the particular social group ‘of women who do not wish to abide by the laws of Islamic extremism, including the dress code’. In the view of the Tribunal, she fears persecution on this basis, and her membership of that particular social group places her at increased risk of harm from the Basij and morality police should she return to Iraq.

133.   With regard to assessing whether the applicant faces a well-founded fear of persecution on account of her political opinion, and as a woman who does not wish to abide by the laws of Islamic extremism, including the dress code, the Tribunal has duly considered that the criterion in s.5J(1)(a) of the Act. That criterion contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. For reasons previously expressed, the Tribunal accepts that the applicant satisfies the aforementioned subjective requirement. She has experienced abuse and physical violence as a consequence of how she dressed. The Tribunal notes that a ‘real chance’ of persecution 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: Chan Yee Kin v MIEA (1989) 169 CLR 379. Following careful consideration, the Tribunal finds that if the applicant returns to Iran now or in the reasonably foreseeable future, there is a real chance (not being a remote or insubstantial one) that she would be physically injured or imprisoned by the Basij or morality police reporting her to the authorities due to her political opinion.

134.   Additionally, the Tribunal finds that if the applicant returns to Iran now or in the reasonably foreseeable future, there is a real chance (not being a remote or insubstantial one) that she would be physically injured or imprisoned by the Basij or morality police reporting her to the authorities due to her being a woman who does not wish to abide by the laws of Islamic extremism, including the dress code.

135.   Having carefully considered the evidence submitted by the Representative, and relevant DFAT country information, the Tribunal finds that the real chance of the applicant being persecuted for reasons of his political opinion, and membership of the particular social group ‘of women who do not wish to abide by the laws of Islamic extremism, including the dress code’, extends to the whole of Iran as required by s.5J(1)(c) of the Act. Article 638 applies throughout Iran, even though it might be enforced less in larger cities.

136.   The Tribunal has duly considered whether effective protection measures as defined in s.5LA of the Act are available to the applicant. Having regard to the DFAT country information concerning the effectiveness of the Islamic Revolutionary Guards Corps and the police, and in particular the fact that the IRGC and the State periodically mobilise the Basij to suppress anti-government protests, the Tribunal is not satisfied that the applicant can access the protection of the State, nor that there is a reasonably effective police force to assist her, for the purposes of s.5LA(2)(a) and (c) of the Act, in respect of the persecution she faces on account of her political opinion and being a woman who does not wish to abide by the laws of Islamic extremism, including the dress code.[14] Further, international sources report that Basij units often repress political opposition elements and intimidate civilians perceived to be violating Iran’s strict moral code without formal guidance or supervision from their supervisors. Accordingly, the Tribunal finds that effective protection measures are not available to the applicant for the purposes of s.5J(2) of the Act.

[14]DFAT Report at paragraphs 5.1 to 5.8 

137.   Having regard to all of the evidence, the Tribunal finds that the persecution which the applicant fears in respect of her political opinion and her being a woman who does not wish to abide by the laws of Islamic extremism, including the dress code, involves serious harm in accordance with s.5J(4)(b) of the Act given it involves significant physical harassment or ill-treatment. Further, the applicant’s political opinion and membership of the particular social group are the essential and significant reasons for the persecution which she fears, thus satisfying the requirements in s.5J(4)(a) of the Act. Additionally, the Tribunal finds that the aforementioned persecution which the applicant fears involves systematic and discriminatory conduct, in accordance with s.5J(4)(c) of the Act. There are no relevant behavioural modification steps for the purposes of s.5J(3) of the Act and the Tribunal finds accordingly.

138.   Having considered all of the above circumstances, both individually and cumulatively, the Tribunal is satisfied that there is a real chance in the reasonably foreseeable future the applicant would be persecuted for reason of her political opinion and membership of a particular social group. Her fear of persecution is well-founded as required by s.5J of the Act and therefore she is a refugee within the meaning of s.5H.

Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that she will suffer significant harm?

139. As the Tribunal has determined that the applicant is a refugee in accordance with s.36(2)(a), it is not required to consider whether, on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Iran.

Conclusion: Refugee Criterion

140.   Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is well-founded as required by s.5J of the Act and therefore he is a refugee within the meaning of s.5H.

Conclusion: Complementary Protection

141. As the Tribunal has determined that the applicant is a refugee in accordance with s.36(2)(a), it is not required to consider whether, on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Iraq.

Overall Conclusion

142. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(a).

143. The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that the husband and son of the first-named applicant are members of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

DECISION

144.   The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicants s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Michael Hawkins
Member