1907316 (Refugee)

[2024] AATA 4084

1907316 (Refugee) [2024] AATA 4084 (24 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Ahmad Vahedian Ghaffari

CASE NUMBER:  1907316

COUNTRY OF REFERENCE:                   Iran

MEMBER:Peter Katsambanis

DATE:24 September 2024

PLACE OF DECISION:  Melbourne

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

(i)that the fourth named and fifth named applicants satisfy s 36(2)(a) of the Migration Act;

(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 fourth named and fifth named applicants; and

(iii)that the grant of the visas, in relation to all of the applicants, is not prevented by s 91W.

Statement made on 24 September 2024 at 9:45am

CATCHWORDS

REFUGEE – protection visa – Iran – Federal Circuit Court remittal – race – Faili Kurd – imputed religion – attending a Catholic school in Australia – particular social group – women who do not wear a hijab – evidence of identity – compulsory military service – detention by the Basij – mental health issues – illegal departure – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 March 2019 to refuse to grant the applicants Safe Haven Enterprise (SHEV) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants, who have variously claimed over time to be either citizens of Iran or stateless, applied for the visas on 18 September 2018.

3. The delegate found that the first named, second named and third named applicants had refused or failed to comply with a request to produce documentary evidence of their identity, nationality or citizenship under s 91W(1) of the Act and that they did not have a reasonable explanation for refusing or failing to comply with that request. Accordingly, the delegate found that s 91W(2) of the Act applied, which prevented the grant of protection visas to these 3 applicants.

4. The delegate also refused to grant protection visas to all 5 applicants on the basis that they were not persons in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act. The decision record notes that the delegate found that the applicants were citizens of Iran and assessed their claims accordingly.

5. The delegate’s decision record indicates that the applicant did not consider any claims in relation to the fourth named and fifth named applicants as no direct claims were made on their behalf. Instead, they relied on their membership of the family unit of the other applicants in this matter.

6. All applicants appeared before the Tribunal on 19 September 2024. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian (Farsi) and English languages.

7. The applicants were represented in relation to the review by an Australian legal practitioner. The representative attended and participated in the Tribunal hearing.

   APPLICATION BACKGROUND

8. The applicants are a family comprising the father (the first named applicant), the mother (the second named applicant), one male child (the third named applicant, who is now an adult) and two female children (the fourth named and fifth named applicants, who are both minors).

9. The first named, second named and third named applicants arrived in Australia as [in] July 2010. Upon arrival, they were initially considered to be unauthorised maritime arrivals.  All of these applicants are now adults, although the third named applicant was a child when he first arrived in Australia. Where appropriate, and when referring to them collectively, the Tribunal will refer to the first named, second named and third named applicants as “the overseas-born applicants”.

10. The fourth named and fifth named applicants were born in Australia. They are both still minors. Where appropriate, and when referring to them collectively, the Tribunal will refer to the fourth named and fifth named applicants as “the Australian-born applicants”.

11. The delegate’s decision record notes that the first named and second named applicants were interviewed in relation to obtaining their biodata upon arrival in Australia [in] July 2010. They then attended an entry interview on 29 August 2010.

12. The overseas-born applicants applied for a Refugee Status Assessment (RSA) on 18 September 2010 and were interviewed in relation to this assessment on 20 September 2010. The RSA was completed on 28 September 2010 and determined that the overseas-born applicants were not persons in respect of whom Australia has protection obligations. The overseas-born applicants applied for Independent Merits Review (IMR) of this decision on 22 October 2010 and were interviewed in relation to the IMR on 27 August 2011. The IMR affirmed the RSA decision on 25 November 2011.

13. The overseas-born applicants subsequently applied for judicial review of the IMR decision to then Federal Magistrates Court. [In] October 2012, the Federal Magistrates Court remitted the decision for reassessment under the Protection Obligations Evaluation (POE) process. [In] September 2013, the first named and second named applicants were interviewed as part of the POE process. The POE process was completed [in] March 2013 and determined that the overseas-born applicants were not persons in respect of whom Australia has protection obligations. [In] December 2014, the applicants applied for judicial review of the POE to the Federal Circuit Court, The Minister withdrew from this judicial review application [in] September 2016.

14. On 23 May 2018, the then-Minister lifted the bar pursuant to section 46A of the Act to enable persons within a certain class to apply for Safe Haven Enterprise (SHEV) visas. The applicants are within this class of persons to which the bar lift applies.

15. All of the applicants applied for Safe Haven Enterprise (SHEV) visas on 18 September 2018. The first named and second named applicants were interviewed by the delegate in relation to this application on 7 February 2019. The delegate refused to grant Safe Haven Enterprise (SHEV) visas to the applicants on 5 March 2019. The applicants applied to the Tribunal for a review of that decision on 27 March 2019. It is this review application relating to the delegate’s decision of 5 March 2019 that is the subject of this review.

    CRITERIA FOR A PROTECTION VISA

16. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

17. 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.

18. 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).

19. 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.

20. 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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The issues in this case are whether there is a real chance that, if the applicants return to their country of reference, they will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to their country of reference, there is a real risk that they will suffer significant harm for the purposes of s 36(2)(aa) of the Act.

23. A further issue arises in the applicants’ circumstances as to whether s 91W(2) of the Act applies to the overseas-born applicants, which would prevent the grant of protection visas to these 3 applicants in their particular circumstances.

24. In addition, there are issues relating to identity, birthplace and nationality or potential statelessness that need to be determined in relation to the overseas-born applicants.

    Claims made prior to the SHEV Application

25. The delegate’s decision record dated 5 March 2019 outlines the claims made by and on behalf of the applicants from the time that the overseas-born applicants arrived in Australia onwards, including the claims made by the first named and second named applicants at their biodata interviews, their entry interviews, during the RSA process, during the IMR process and during the POE process.

26. Since they arrived in Australia, the overseas-born applicants have consistently claimed that they are of Faili Kurdish ethnicity and of Shia Islam religion. The same ethnicity and religion have been ascribed to the two Australia-born applicants.

27. At all times prior to the Tribunal hearing, the overseas-born applicants have consistently claimed that they departed Iran on false passports that were not in their real names and that these false passports were taken from them by the people smugglers in transit to Australia. Since their arrival in Australia, they have consistently claimed that their names are the names in which this application has been made.

28. The names and identity of the Australian-born applicants is not in dispute as official Australian birth certificates have been provided to verify their respective names and identity.

29. It has been consistently claimed that the third named applicant was born in Iran but that he is stateless because of the circumstances of his parents, who are the first named and second named applicants.

30. At their respective biodata interviews, the first named and second named applicants both claimed that they had been born in Iran. At these interviews, the first named applicant claimed that he had been born in [City 1], Iran. The second named applicant stated that she was born in Iran and was of Iranian citizenship.

31. However, in later submissions, both the first named and second named applicants claimed that they had been born in Iraq and had then been displaced as children, which required them to seek refuge in Iran together with their parents and other members of their respective families. The first named applicant variously claimed that he had been born in [Town 1], Baghdad, Iraq at his entry interview and in [Town 2], Iraq in a statutory declaration in support of his RSA application.

32. The claims of past harm and the claims for protection made by the applicants over time throughout the RSA, IMR and POE processes, including at various interviews conducted by Department officers in relation to these processes, are summarised in the delegate’s decision record. These claims have been considered by the Tribunal prior to making its decision in this matter.

33. The claims of past harm made during these processes relate to harm from the Iranian authorities, including the Basij, on the basis of the applicants’ claims to be undocumented stateless Faili Kurds living in Iran. However, given that the applicants have subsequently submitted to the Tribunal that they are not undocumented stateless Faili Kurds living in Iran but are instead Iranian citizens, the Tribunal considers that these claims of past harm fall away and have been expressly withdrawn by these applicants. Similarly, the applicants’ claimed fears of harm on return to Iran from the Iranian authorities, including the Basij, and from a relative of the first named applicant were also based on the applicants’ claims to be undocumented stateless Faili Kurds living in Iran. As the applicants have subsequently submitted that they are not undocumented stateless Faili Kurds living in Iran but are instead Iranian citizens, the Tribunal also considers that these claims fall away on this basis and have been expressly withdrawn by these applicants.

34. The first named applicant has stated that the specific details about his alleged arrest and detention by the Basij, and some of the circumstances of the matters that occurred whilst he was detained, are confidential to him and that he does not want these details disclosed to the other applicants. The Tribunal has respected the wishes of the first named applicant in this regard wherever possible to do so.

    SHEV Application

35. The SHEV application forms submitted to the Department by the applicants provide the following details for the applicants:

    ·The first named applicant is [an age]-year-old male who was born on [DOB 1]. It was claimed on this form that he was born in [Town 1], Baghdad, Iraq. He claimed on his application form that he held a green card in Iran, but it was no longer in his possession.

    ·The second named applicant is [an age]-year-old female who was born on [DOB 2]. It was claimed on her application form that she was born in Baghdad, Iraq. She claimed that she held a green card in Iran, but it was no longer in her possession.

    ·The third named applicant is [an age]-year-old male who was born on [DOB 3]. It was claimed on this form that he was born in Tehran, Iran. It was also claimed on the application form that this applicant had never held any identity documents or any birth certificate.

    ·The fourth named applicant is [an age]-year-old female who was born in Australia on [DOB 4]. A Victorian birth certificate for this applicant has been submitted to the Department which lists the first named and second named applicants as her parents.

    ·The fifth named applicant is [an age]-year-old female who was born in Australia on [DOB 5]. A Victorian birth certificate for this applicant has been submitted to the Department which lists the first named and second named applicants as her parents.

36. In their application forms the applicants claimed that they were stateless Faili Kurds and that (apart from the fourth named and fifth named applicants) they had never possessed any citizenship or legitimate passport documents. They further claimed that the overseas-born applicants had left Iran on false passports, issued in false names, which were taken from them in transit to Australia.

37. In his application form, the first named applicant claimed that he was currently experiencing significant mental health issues, including memory problems, as well as physical pain and discomfort. He claimed that he was on medication that disabled him in the morning.

38. The first named applicant stated that he was seeking protection in Australia so that he did not have to return to Iran. He claimed that he left Iran because he feared that he and his family would be persecuted or seriously harmed by the Iranian authorities, including the Basij, as undocumented stateless Faili Kurds. He also expressed his fear that he may be harmed by a relative because of matters that the first named applicant had witnessed during a period of arrest and detention by the Basij. He claimed that this incident happened around 7 months before the family left Iran. He provided significant details about the events surrounding this detention and his eventual escape from detention. As discussed above, the first named applicant has requested that further details about this matter should not be disclosed to the other applicants as he considers these details to be confidential to him. However, the applicant did claim that the Basij initially arrested and detained him because of his status as an undocumented Faili Kurd.

39. The first named applicant claimed that if he was forced to return to Iran, he feared that he and his family would be persecuted or seriously harmed by the authorities, including the Basij, because of their status as undocumented stateless Faili Kurds, as failed asylum seekers and as undocumented Faili Kurds who had left Iran illegally.

40. The first named applicant claimed that he did not seek help from the authorities whilst he was still in Iran because it was those authorities that he feared. He did not attempt to move to another part of Iran to seek safety because there was no safe place in Iran where he could relocate to.

41. The first named applicant stated that he feared that he and his family would be persecuted or seriously harmed by the Iranian authorities, including the Basij, if they return to that country for the reasons that he had previously outlined, and he also continued to fear harm from his relative for the confidential reasons that he had outlined. The authorities would not assist him because it was those authorities, including the Basij, that he feared. There was no safe place in Iran where he could avoid persecution or the risk of serious harm.

42. The second named applicant claimed on her application form that she grew up in Iraq but was removed from Iraq in 1980 because Faili Kurds were being persecuted by Saddam Hussein and the Ba’ath Party in Iraq.

43. In her application form, the second named applicant stated that she was seeking protection in Australia so that she did not have to return to Iran. She claimed that she left Iran because of her fear of being persecuted or seriously harmed by the Iranian authorities, including the Basij, as a female and as an undocumented stateless Faili Kurd. She claimed that she would also rely on her husband’s claims and would provide more detailed information and explanations about her claims, including in relation to issues that the Department had raised in earlier decisions, at a later date.

1. The second named applicant claimed that if she was forced to return to Iran, she feared that she and her family would be persecuted or seriously harmed by the Iranian authorities including the Basij, because of their status as undocumented stateless Faili Kurds, as failed asylum seekers and as undocumented Faili Kurds who had left Iran illegally.

2. The second named applicant claimed that she had experienced harm in the past in Iran, as she had previously outlined to the Department. She claimed that this harm included being surrounded by constant threats from the authorities and the Basij, and the denial of all human rights, education, work opportunities and property rights. She claimed that her husband went missing for some months before the family left Iran and she believed that her husband and one of his family members had been taken by the Basij. When her husband returned, he had significant injuries to his right shoulder, back and leg. He also had nightmares at night and would wake up screaming. She claimed that another incident that she had not mentioned to the Australian authorities until now was that her brother had been taken by the Basij and tortured for three days. She claimed that she would provide more detailed information and explanations about her claims at a later date, including an explanation for the reasons that she had not mentioned the things that had happened to her husband and her brother to the Department at an earlier stage.

3. The second named applicant claimed that she had not sought help from the authorities in the past in Iran because it was the authorities that she feared. She stated that there was no safe place in Iran for the family to relocate to avoid the harm they feared.

4. The second named applicant claimed that if she returned to Iran, she feared that she and her family would be persecuted or seriously harmed by the Iranian authorities, including the Basij, for the reason she had previously outlined. She feared harm from the authorities, which was why she could not approach the authorities for assistance and there was no place in Iran where the family would be safe from persecution or the risk of serious harm.

5. In her application form, the second named applicant also claimed that she had experienced mental and physical health issues, including the death of an infant born in Australia.

6. It was stated in the application forms of the third named, fourth named and fifth named applicants that they were relying on what their parents’ claims for protection.

7. It was further claimed on behalf of the third named applicant that he believed he was at risk because of his age, his Australian education and because he had not been in Iran since he was [age] years old.

8. In relation to the Australian-born applicants, it was claimed that they were additionally at risk on return to Iran because of their gender, their age and because they had been born in Australia and had never been to Iran.

9. The first named and second named applicants both submitted statutory declarations that were made on 4 February 2019 in support of their claims for protection. They were also interviewed by the delegate in relation to their claims on 7 February 2019. The applicants’ then-representative also made written submissions to the Department both before and after the interviews with the delegate. The details of the claims and further evidence provided in these statutory declarations, interviews and submissions are summarised in the delegate’s decision record. The Tribunal has read and considered this information prior to making its decision in this matter. However, the Tribunal has not outlined the detailed contents of this information in this decision as all of the claims made and evidence provided (including claims made relating to mental health concerns for some of the applicants) were based on the overriding claim that the applicants were undocumented stateless Faili Kurds. As the first named and second named applicant have now admitted that these claims to be undocumented stateless Faili Kurds are untruthful, the Tribunal considers all claims made on the basis that the applicants are undocumented stateless Faili Kurds have fallen away and have been expressly withdrawn by the applicants.

10. The delegate refused to grant SHEV visas to the applicants on 5 March 2019.

    Application for Review

11. The applicants applied to the Tribunal for review of the delegate’s decision on 27 March 2019. They subsequently provided the Tribunal with copies of the delegate’s decision record and accompanying notification letter.

12. In a submission dated 13 September 2024, the applicants’ representative stated that the first named and second named applicants have now admitted to providing incorrect information about their citizenship status in their dealings with the Department. It was claimed that they have now acknowledged that they are Iranian citizens and deeply regret the false statements previously made, which it was claimed were influenced by external pressures including other detainees.

13. The representative stated that the third named applicant had grown up in Australia and completed his education here. He is now [age] years old and works in the [specified] business. He has been unable to attend university because he cannot afford to pay the international tuition fees that apply to people with his current visa status. The Australian-born applicants have been attending a Catholic school since they started their education and it was claimed that they are deeply integrated into the Christian school and parish community, as evidenced by a letter from their school principal.

14. It was stated that the Australian-born applicants are unable to read or write in Persian or Farsi. Returning to Iran would require them to adjust to an entirely different school system in a language they do not understand. Even the third named applicant, who only spent two years in school in Iran, would face serious challenges integrating into a new educational or professional environment. The Australian-born applicants have been raised in a democratic and free society with no experience or understanding of the compulsory hijab laws enforced in Iran. They have been exposed to Christian teachings and customs at school, which further distances them from the conservative Islamic culture in Iran. This lack of familiarity with Islamic traditions, particularly in relation to the hijab, and their exposure to Christian teachings and beliefs may make them targets for discrimination, arbitrary mistreatment and suspicion by Iranian authorities. Their inability to hide their interest in Christianity, as they have been exposed to it in Australia, could further place them at risk.

15. The representative argued that although the Australian-born applicants had not formally converted to Christianity, their association with Christianity may raise serious concerns for the Iranian authorities where conversion to Christianity or even the mere expression of Christian beliefs is severely persecuted. Even if these applicants are perceived to have adopted Christian values, they could be subject to social and government repression. Given that they were raised in a free society where they openly participated in Christian activities, it was unlikely that they could quickly adapt to the restrictive theocratic rules in Iran.

16. The representative stated that the third named applicant, who has lived in Australia since the age of [age], was outspoken and does not follow religious practices. His nature and beliefs, shaped by his upbringing in a liberal society, would make it difficult for him to conform to the religious and cultural expectations of Iranian society. His outspoken character could draw unwanted attention from authorities, increasing the likelihood of persecution or mistreatment, especially given the strict control of freedom of speech and dissent in Iran. It was also stated that upon return to Iran, the third named applicant would be required to complete his compulsory military service. It was claimed that the Islamic Revolutionary Guard Corps (IRGC) has been designated as a terrorist organisation by the United States government and there is a serious risk that the third named applicant could be conscripted to serve in the IRGC which would further complicate his future and safety. The third named applicant’s unfamiliarity with Iranian culture, his nonreligious stands, and his outspoken character could lead to conflicts during his service, exposing him to the risk of mistreatment or punishment.

17. The representative argued that the impact of returning to Iran would be devastating for the entire family, but particularly for the children who had spent their formative years in Australia. The Australian-born applicants, having grown up in a western and democratic society, would face profound difficulties adapting to the theocratic regime in Iran especially in terms of education, religion and gender-specific restrictions. It was stated that the long-term psychological and social effects on the children would be significant if they are forced to live in an environment that restricts their freedoms and differs so dramatically from their life experience in Australia. The third named applicant’s mandatory conscription, coupled with the cultural and ideological clashes he would likely face during military service, presents a serious risk to his safety and well-being.

18. Accordingly, the representative argued that the family should be granted protection visas because a denial of protection would expose the children to considerable hardship and endanger their safety, well-being and future, particularly in light of the family’s cultural and religious differences with Iranian society.

19. Together with this submission, the applicants provided the Tribunal with a copy of a birth certificate (referred to in Iran as a ‘shenasnameh’) for the second named applicant and a Compulsory Military Service Completion Card for the first named applicant, together with English translations of these documents.

20. A translation of the birth certificate clearly states that the second named applicant was born in Tehran, Iran on [DOB 2] and that her parents were also born in Iran. The certificate lists the birth certificate numbers for the parents and states that those certificates were issued in Ilam (in relation to her father) and in [City 1] (in relation to her mother). The birth certificate, which in Iran is kept regularly updated as a form of on-going identification[1], also lists the name of the first named applicant as being the husband of the second named applicant. It records the date of the couple’s marriage as [being in] June 2000 and the place of marriage as Tehran. It records that the husband, being the first named applicant, was born on [DOB 6] and that his birth certificate was issued in [Town 3], Iran. This birth certificate provided to the Tribunal by the applicants also lists the third named applicant as being a child of the second named applicant and lists the date of birth of this child as being [DOB 3]. The place of issue of the birth certificate for this child is listed as being Tehran. The birth certificate also has a photograph of the second named applicant attached to it.

    [1] Department of Foreign Affairs and Trade, Country Information Report Iran, 24 July 2023, p 41, paras 2.210 – 2.213.

21. The translation of the Compulsory Military Service Completion Card states that the first named applicant was born in [City 1], Iran and that his year of birth was [as in DOB 6]. It indicates that the first named applicant completed his compulsory military service in Iran [between specified dates]. The card also contains a photograph of what appears to be the first named applicant.

22. As discussed at the Tribunal hearing, and as confirmed by the representative who indicated that he had a familiarity with these matters, it is noted that the original birth certificate and the original military service card (which both appear to be written in Persian) contain dates that appear to be recorded under the Persian calendar and not in the Gregorian or Australian calendar, as recorded on the English translation that has been provided.

23. An undated letter of support was also provided from [name], principal of [School 1], which is a Catholic school in [Suburb 1], Victoria. This letter states that the Australian-born applicants are students at this school and are well-integrated into the school community. It is stated that the applicants have started attending church regularly on the weekends and enjoy participating in the wider parish community.

    Tribunal Hearing

24. The Tribunal has considered the evidence provided at the hearing by the applicants in the order it was provided.

    Evidence of [the first named applicant]

25. At the hearing, the first named applicant claimed that he had been born in [City 1], Iran and stated clearly that he was a citizen of Iran. He added that as a citizen of Iran, he had completed his compulsory military service. He claimed that he did have a birth certificate in Iran, which he had left in the possession of his father when he left Iran. However, he claimed that his family in Iran could no longer find this certificate. He stated that his father-in-law had been able to locate his military service certificate and send a copy to him.

26. The first named applicant claimed that he and the second named applicant had been truthful with Australian authorities about their identity and their nationality when they first arrived in Australia, but they were then influenced to change their story by other Kurdish people who were in the detention centre where they stayed upon arrival in Australia.

27. In relation to the discrepancies over time and on various documents in relation to his date of birth, it is noted that when the first named applicant was first asked to provide his date of birth he responded with the Persian calendar date of “[PDOB1]”. He stated that at his first interview after arrival in Australia, he had also provided his birthdate in Persian calendar format. He claimed that it was the interpreter at the time who had translated that date into the “[DOB 1]” date that he had been providing as his birthdate from that time onwards. The representative explained that through his own experience he was aware that when converting years and dates from the Persian calendar to the Gregorian calendar used in Australia, people born in the month that is known as March in the Gregorian calendar could be placed as being born in one year or another in the Persian calendar because of the uncertain nature of dates around March within that calendar. He claimed that sometimes the year used depended on the interpretation of the person conducting the translation from one calendar to the other. This was offered as an explanation for the discrepancies in the first named applicant’s birth year being recorded as either [of two years] under the Gregorian calendar. The first named applicant insisted that based on his own knowledge he knew he was born in Persian year [as in PDOB1] but had little or no knowledge or understanding as to what year that might be using an Australian calendar.

28. The first named applicant clearly stated at the hearing that he had never been undocumented in Iran and that he had never been stateless. He confirmed that he had been a citizen of Iran since birth. He claimed that he was of Kurdish ethnicity and stated that he really did not have any religion because he did not believe in anything. He claimed that his ancestors were Shia Muslims, but he did not personally believe in anything. He did not attend mosque and neither did any of his family members. He added that if he had believed in any religion, his children would not be learning about Christianity.

29. The first named applicant confirmed that his two daughters, the fourth named and fifth named applicants, were currently attending a Catholic primary school. He was not aware about whether his daughters had been baptised into the Catholic faith, and from the interaction at the hearing, it appeared that he may not have fully comprehended or understood the nature of baptism and other Christian sacraments, which is understandable given that he was not brought up in any Christian faith.

30. The first named applicant claimed that he and his family lived in a rented house in [Suburb 2], a suburb of Melbourne. He was not able to work because of pains in his leg so he looked after the children whilst his wife and son went to work. He claimed that at home he mostly spoke Kurdish, however he was also relatively fluent in Persian. He stated that his younger children really did not know either of these languages and although his daughters could speak a few words in Persian, they did not know much about that language and primarily spoke English. When he does not understand what his daughters are telling him, he uses his son to help him understand.

31. The Tribunal asked the first named applicant what would prevent him from returning to Iran now or in the reasonably foreseeable future. He responded that his son had been raised in Australia from the age of [age]. His son had tattoos all over his body and was a headstrong person who did not listen to others. He was worried that if the family returned to Iran, his son would be sent to serve his term in compulsory military service. When asked if he had any personal concerns about returning to Iran, the first named applicant stated that his children and his wife were in Australia. He also had another child that had died and was buried in Australia, and he would regularly visit this gravesite. He added that he had given up on his own life and his family was all he had.

32. The Tribunal pointed out to the first named applicant that since his arrival in Australia in 2010 he had provided inconsistent and contradictory information about where he was born and whether he was an undocumented stateless Faili Kurd or whether he was a citizen of Iran. The first named applicant responded that he accepted that he had provided this information which was false and added that he apologised for having done so.

33. The Tribunal asked the first named applicant why he chose to make untrue claims about such issues relating to where he was born and his citizenship status that were fundamental issues relating to his identity and were details that he would be expected to know from his own personal knowledge. The first named applicant responded that when he arrived in Australia, he had initially told the Australian authorities the truth, but under pressure from other Kurds in the detention centre he decided to deny the truth and change his claims as he believed this would enhance his chances of obtaining protection in Australia.

34. The applicant clearly stated to the Tribunal that he had used his own Iranian passport in his own name to leave Iran in 2010 when he travelled from there to [Country 1] in transit to Australia. He admitted that he had never previously made this claim to any other authorities in Australia but had instead previously claimed that he had left Iran on a false passport in a false name.

35. The Tribunal pointed out to the applicant that it would be reasonably expected that he would be able to provide consistent and accurate information over time about fundamental issues relating to his identity such as his place of birth, his citizenship status and the passport that he used to leave Iran as this information would be personally known to him. The fact that he was prepared to deliberately provide false information about these matters to Australian authorities may indicate that he was not a witness of truth and that all of the evidence he had provided over time in relation to all of his claims for protection may lack credibility. In response, the first named applicant stated that he was very sorry to have provided untruthful information. He claimed that he had lost 15 years of his life and had caused a lot of stress to his family. He claimed that he had denied his identity because of the extreme pressure from members of the Kurdish community in the detention centre.

    Evidence of [the second named applicant]

1. The second named applicant confirmed that she had been born and grew up in in Tehran, Iran. She clearly stated that she was a citizen of Iran. She also clearly stated that she used her own passport in her own name to depart Iran in 2010. She claimed that she had never previously told the truth about using her own passport to depart Iran but added that she was now telling the truth. When asked why she had not told the truth in relation to this matter in the past, the second named applicant stated that she did initially tell the truth when she first arrived in Australia. However, the family encountered other Kurds in detention who told them that they would be returned to Iran if they told the truth. On this basis, she and her husband decided to change their story.

2. Based on this response, the Tribunal asked the second named applicant to clarify whether she was now claiming that she had provided untruthful information over time to the Australian authorities because she believed that this information would enhance her chances of staying in Australia and obtaining an Australian visa. She agreed that this was the case. She also agreed that her admission that she had been prepared to provide untruthful information to Australian authorities to enhance her chances of obtaining an Australian visa raised serious credibility concerns about the entirety of the evidence she had provided over time in relation to her claims for protection.

3. The second named applicant clearly stated at the hearing that she had never lived in Iraq, as previously claimed, and that she had never even visited Iraq. She stated that she was of Kurdish ethnicity and that she had been born into a Shia Muslim family. When asked if she had ever worn a hijab in Iran, the second named applicant stated that she unfortunately had to do so because it was obligatory, and she had no choice if she wanted to avoid harm. She claimed that she had never worn a hijab in Australia after she left the detention centre in 2011 and stated that in her daily life in Australia, she ordinarily dressed in the western style of dress that she was wearing at the hearing without ever wearing a hijab.

4. The second named applicant claimed that she had never attended a mosque in Australia, but she would sometimes go to church with her children. She claimed that her daughters loved going to church and felt very comfortable there. They also loved attending the Catholic primary school, located in [Suburb 1], which was why the family chose to keep the daughters at this school after they moved from [another suburb] to [Suburb 2] despite the inconvenience of having to drive them some distance to get to school.

5. The second named applicant stated that her daughters would attend Catholic church services as part of their regular school activities, usually on Wednesday mornings. She and her daughters would also sometimes attend the same Catholic Church on Sundays because her daughters enjoyed going there. When they attended on Sundays, the children would attend the kids’ club or Sunday school. The second named applicant really missed her family in Iran and by going to church and being with other families she stated that she gets a sense of relief and companionship. She claimed that her daughters had not been baptised in the Catholic Church but when they attended the church services, they would be blessed by the priest after he had prayed on the wine and handed out wafers to the congregation. The second named applicant stated that her husband did not attend this church because of his back pain but sometimes her son would drive the rest of the family to the church.

6. The second named applicant claimed that her daughters were in [two grades] at school respectively. When asked if she would expect that their daughters would wear a hijab when they were old enough to do so, the second named applicant loudly and emphatically stated “never” and added that it was her own very deep and personal pressure point. She claimed that she hates the hijab because it reminds her of the suffering she experienced in Iran where she would constantly argue with her parents about it. She claimed that she and her husband mainly spoke in Kurdish at home but given that her children were not conversant in this language they would often have to speak in a combination of English and Persian. She claimed that the children always spoke in English but her own English was not that good. She stated that her daughters knew a few basic Persian words but did not speak or understand Kurdish. Even if they understand the Persian words that are spoken to them, the daughters never respond in Persian and only speak in English. She claimed that she was aware that there were schools close to her home where children could attend after hours classes to learn Persian or Kurdish, but she expressed her strong lack of support or desire to send her children to these schools. She claimed that she was pleased that her daughters were in Australia, and that they were not girls who had been forced to grow up in Iran because she did not want her daughters to experience the problems she had suffered as a young girl in Iran.

7. The Tribunal pointed out to the second named applicant that it acknowledged that if her daughters had to return to Iran there would be some period of adjustment before they settled into the local language, culture and customs. However, this did not necessarily entitle her daughters to protection in Australia, particularly given that they would reasonably be expected to adapt to their new environment given their age and with some family support. The second named applicant responded that Iran was an Islamic country and that from nine years of age onwards her daughters would be expected to wear the hijab. If they did not do so, they would be condemned and they would be refused services, including the opportunity to attend school. Her parents shared these types of views, but she did not, which would create conflict between her and her family. She claimed that her daughters were scared of people who they see wearing a hijab in Australia and when they ask her why these people choose to wear the hijab, the second named applicant strongly expresses her opinion that is opposed to the compulsory wearing of the hijab. The second named applicant stated that if her daughters had to return to Iran, they would be forced to take up Islam and reject any of the Christian teachings they had learnt in Australia. She pointed out that many other girls had been tortured or killed in the recent past in Iran for what were considered to be anti-Islamic practices or some interest in Christian beliefs. She stated that women have almost no rights in Iran and a woman could not even give evidence at a court or tribunal in Iran without obtaining express permission from her husband.

8. The second named applicant claimed that she did have a birth certificate for her son in Iran, but the family did not bring it with them when they came to Australia. She had subsequently asked her family members in Iran to locate this certificate, but they had not been able to find it.

   Evidence of [the third named applicant]

9. The third named applicant stated that he did not attend mosque because he was not a religious person. He added that he believed in science rather than religion. He claimed that in Australia he operated a [service 1] business which employed two other people. He had wanted to study either law or biomedical science after he completed his Year 12 studies at [a named] High School, but he was unable to do so because he could not afford the very high international student fees that applied to people like him on a bridging visa. Because of his own non-religious beliefs, he did not attend the church that his mother and sisters went to, but he would regularly take them to church and was therefore occasionally exposed to the activities of the parish community.

10. The third named applicant stated that he was scared of returning to Iran, but he didn’t really know what would happen to him there because he hadn’t been there since he was [age] years old. He was scared to return because he had grown up as an Australian with western beliefs and values. He added that for many years he had played [a sport] at the local [named] club.

    Evidence of [the fourth and fifth named applicants]

11. As the Australian-born applicants are young children, they were not sworn in to give evidence and the Tribunal had no intention or expectation that it would obtain direct evidence from these minor applicants. However, towards the end of the hearing, both of these applicants had a brief informal discussion with the Tribunal (in the presence of their other family members and the representative) about their schooling in Australia, their participation in their school and associated church or parish activities and aspects about their future intentions in relation to some of the Catholic sacraments and rituals that they have been exposed to during their schooling and participation in parish life.

12. During this discussion, the Australian-born applicants provided information that was generally consistently with the evidence their mother (the second named applicant) had provided about the same matters to the Tribunal, although the Australian-born children added some context and nuance about these matters from their own knowledge and experience given that they were the people who had directly participated in such events and rituals at school.

13. Relevantly to the issues that arise in this matter, the fourth named and fifth named applicants explained that they were still too young to take communion in a Catholic Church so when the church service reaches the point where communion is offered to the congregation, they simply kneel along with other children of the same age to obtain the blessing of the priest on their forehead. They both stated that they would consider getting baptised and then undertaking the preparation that the Catholic church requires from adherents to that faith before they are able to take communion. However, they indicated that they had not yet made up their minds about such matters and it was a matter that they would decide in a few years’ time when they reach the appropriate age.

    FINDINGS AND REASONS

14. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Identity and Nationality

15. There are issues in relation to the identity, nationality or potential statelessness of the overseas-born applicants. Although there are no concerns as to the identity of the Australian-born applicants, their nationality is an issue given the uncertainty relating to the nationality of their parents.

16. Since their arrival in Australia, the overseas-born applicants have consistently claimed that their names are the names in which the SHEV application and this review application are lodged. They have provided no other names over time since their arrival in Australia, and they have expressly withdrawn any past claims that they ever used false passports in false names to depart Iran. There is no other evidence before the Tribunal that they have ever used any other names. They have also provided a birth certificate for the second named applicant, which also contains identity details for the first named and third named applicants, as evidence of who they are. Accordingly, on the evidence before it, the Tribunal accepts that the overseas-born applicants are the people they claim to be and that their names are those that are recorded in the SHEV application and this review application.

17. As discussed above, the first named and second named applicants have now withdrawn their previous claims that they and the third named applicant are undocumented stateless Faili Kurds who had been living in Iran prior to coming to Australia. They have also withdrawn any previous claims that they were born in Iraq. Both of these applicants have now clearly stated that they were born in Iran and that they are Iranian nationals. They have both also stated that their son, the third named applicant, was born in Iran and is an Iranian national. They have provided a birth certificate for the second named applicant, which also contains identity details for the first named and third named applicants, and a military service card for the first named applicant, as evidence that they were born in Iran and that they are nationals of Iran. Accordingly, on the evidence before it, the Tribunal accepts that the overseas-born applicants are nationals of Iran.

18. There is no issue as to the names or identities of the Australian-born applicants as they have been verified by valid birth certificates issued in Australia. As their parents (being the first named and second named applicants) are nationals of Iran and as the Australian-born applicants are not Australian citizens or permanent residents, the Tribunal finds that the Australian-born applicants are nationals of Iran on the basis of the nationality of their parents.

19. Therefore, based on these findings, the Tribunal finds that all of the applicants are nationals of Iran and has assessed their claims accordingly.

    Right to enter and reside in Iraq or in any other country

20. The applicants have consistently claimed that they are of Faili Kurdish ethnicity and there is no information to the contrary before the Tribunal. Accordingly, the Tribunal accepts that the applicants are of Faili Kurdish ethnicity as claimed.

21. The Tribunal notes country information from DFAT that states that Faili Kurds traditionally come from an area that straddles the Iran-Iraq border[2], that some have lived in modern-day Iran for centuries and are Iranian citizens[3], that some have family on both sides of the border[4] and that some Faili Kurds who were originally from Iraq have been living in Iran as refugees after being displaced by the former Ba’athist government in Iraq[5].

    [2] Department of Foreign Affairs and Trade, Country Information Report Iran, 24 July 2023, p 17, para 2.58.

    [3] Ibid.

    [4] Ibid.

    [5] Ibid.

100.   The applicants previously claimed that they fall into the category of those displaced Faili Kurds who have been living in Iran as undocumented stateless refugees from Iraq. They have further previously claimed that the first named and second named applicant had been born in Iraq, had lived there for the early parts of their lives and had later been displaced to Iran with their respective families.

101.   However, the applicants have now expressly withdrawn all of these claims and have instead claimed that the overseas-born applicants were all born in Iran and that all of the applicants are nationals of Iran. They have also claimed that they have never been to Iraq, that they have no direct links to Iraq and that they have no right to enter and reside in Iraq. Additionally, the Tribunal has already found that the applicants are nationals of Iran and there is no evidence before the Tribunal to suggest that the applicants have any right to enter and reside in Iraq or in any other country apart from Iran.

102.   Accordingly, on the evidence before it, the Tribunal finds that the applicants do not have any right to enter and reside in Iraq or in any other country apart from Iran. Therefore, the Tribunal finds that the applicants are not excluded from Australia’s protection obligations pursuant to s 36(3) of the Act.

Assessment of Protection claims

103.   Over time, claims for protection have been made in relation to all applicants in this matter. However, as discussed above, the claims made by and on behalf of the overseas-born applicants that were based on their claimed status as undocumented stateless Faili Kurds living in Iran have now fallen away and been expressly withdrawn given the applicants’ subsequent admissions that these claims were untrue and their submissions that they are citizens of Iran and are therefore not undocumented stateless Faili Kurds living in Iran as previously claimed.

104.   The Tribunal does not ascribe any fault or any associated credibility issues onto the third named applicant in relation to the incorrect claims made on his behalf over time that he was an undocumented stateless Faili Kurd living in Iran because he was a minor when these claims were made and because he did not directly make these claims himself. It is noted that these claims were instead made on his behalf by his parents, who are the first named and second named applicants, when the third named applicant was still a minor.

105.   However, as discussed at the hearing, the Tribunal considers the fact that the first named and second named applicants were prepared to repeatedly and deliberately provide untruthful information to Australian authorities about issues as fundamental to their identity as their places of birth (including their country of birth) and their nationality or citizenship status strongly adversely impacts on the credibility of all their other claims for protection made over time. This is because these are matters that it is reasonably expected would be known to these applicants from their own personal life experience and in such circumstances, it would be reasonably expected that they would be able to provide consistent, accurate and truthful information about these matters over time. On the evidence before it, the Tribunal finds that the admission by the first named and second named applicants that they deliberately and repeatedly provided untruthful information to Australian authorities over time about facts that are fundamental to their identity in order to enhance their claims for protection in Australia is strongly indicative that these applicants are not witnesses of truth in relation to their overall claims for protection and that their evidence over time in relation to their claims for protection lacks credibility.

The Australian-born applicants

106.   The Australian-born applicants, being the fourth and fifth named applicants, are young girls who are [ages] respectively. They were born in Australia and have lived in Australia for the entirety of their lives. They are currently students at a Catholic primary school in [Suburb 1], a suburb of Melbourne.

107.   Given that they have grown up in Australia and given that there is no evidence to indicate that they have ever attended a Persian (Farsi) language school, the Tribunal accepts that these applicants can understand some Persian and use it sparingly when communicating with their family members, but that they are unable to read or write in Persian and that their ability to speak and understand Persian, including the breadth of their vocabulary, is extremely limited. Accordingly, the Tribunal also accepts that if they were to return to Iran, these applicants would be perceived to be people who have grown up outside Iran based on their limited competence in the Persian language.

108.   Given the presentation of the children at the hearing, the Tribunal also accepts that they are children who have grown up in a western country and that present, dress, talk and think like children who have grown up in a western country. On this basis, the Tribunal accepts that this profile and presentation of the children, coupled with their limited competence in the Persian language, would distinguish them from other children of the same age in Iran and would make them stand out within Iranian society.

109.   As their mother pointed out at the hearing, the Australian-born applicants are now approaching the age where they would be considered to be young or adolescent women if they were living in Iran and would therefore be expected to wear a hijab. DFAT reports that wearing the hijab is compulsory for women in Iran and women who do not wear the hijab or otherwise wear it in a way that is deemed to not be appropriate, risk arrest. The latest DFAT report suggests that although enforcement of hijab laws and Islamic dress codes more generally may fluctuate, the laws are regularly enforced by Iranian authorities, with some women who protested against the hijab laws in an online video in 2019 being sentenced to lengthy terms of imprisonment of up to 23 years and 6 months[6] after being accused of crimes against Iranian law including “insulting the sacred”.

[6] Department of Foreign Affairs and Trade, Country Information Report Iran, 24 July 2023, p 28, paras 2.129 – 2.131.

110.   Given this country information about the risks faced by women who do not wear a hijab in Iran and given that such women would stand out within Iranian society because the vast majority of women comply with the compulsory hijab laws by wearing the hijab, the Tribunal accepts that such women would constitute a particular social group within Iranian society for the purposes of s 5L of the Act as they all share a particular characteristic, being not wearing a hijab, the characteristic distinguishes them from the rest of society in Iran where it is compulsory for women to wear a hijab and the characteristic is not the fear of persecution itself.

111.   The Australian-born applicants have grown up in Australia. They do not wear a hijab and do not appear to have any desire or interest in wearing a hijab. They also come from a family where their mother does not wear a hijab and has a long-standing and strong antipathy towards the compulsory wearing of the hijab. In this context of two young girls who have grown up with western values in Australia, who present as children who have grown up in western society, who do not currently wear the hijab and whose mother also does not wear the hijab, and given that they would be required by law to wear the hijab if they lived in Iran, the Tribunal accepts that there is a strong likelihood that these applicants may either not wear the hijab or express their opposition to the compulsory wearing of the hijab in Iran. This likelihood is magnified by the fact that they have been able to freely express themselves throughout their lives in Australia and by the youth of these applicants, which may lead them to not fully understanding the severity of the consequences of freely expressing themselves in this way in a country such as Iran. The Tribunal also accepts that by not wearing a hijab, the Australia-born applicants would be and would be perceived by other members of Iranian society as being members of the particular social group of women who do not wear a hijab in Iran and would be at risk of harm for their membership of this group.

112.   The Tribunal is also prepared to accept that upon return to Iran, the parents of the Australian-born applicants would be required by law and would desire to enrol their children into compulsory schooling. Any attempt to enrol the children into schooling would necessarily require the revelation to the relevant school authorities that these children have previously been educated at a Catholic, and therefore Christian, primary school in Australia. It is both plausible and likely that the local school authorities in Iran may request to see previous school reports, test results and other school documents for these students as customarily also occurs when a student seeks to enrol in a new school in Australia. The Tribunal accepts that in a society like Iran, which is a theocratic Islamic republic[7], the necessary revelation that these children have attended a Christian school in Australia would lead to an imputation on the part of these local school authorities that these children have a strong interest in and knowledge of Christianity and a further imputation that the children may be Christian converts.

[7] Department of Foreign Affairs and Trade, Country Information Report Iran, 24 July 2023, p 12, para 2.29.

113.   In this regard, the Tribunal notes that country information from DFAT makes it clear that although Christianity is recognised in the constitution of Iran, this does not necessarily equate to tolerance or acceptance[8] by either the authorities or by society more generally in Iran. Apostasy is a crime under Sharia law, with the death penalty being a potential but rare punishment[9].  Muslims who convert to Christianity risk arrest and detention if their conversion is revealed and Christian converts face a high risk of societal discrimination if their conversion becomes widely known, particularly if they come from more religiously-minded Muslim family backgrounds[10]. DFAT assesses that people who convert outside Iran and intend to continue to practice their Christian religion would face a high level of official discrimination in Iran and could even be subject to the death penalty[11].

[8] Ibid, p 18, para 2.64.

[9] Ibid, p 18, para 2.65.

[10] Ibid, p 18, para 2.88.

[11] Ibid, p 18, para 2.88.

114.   As discussed above, the Tribunal accepts that the Australian-born applicants will be imputed with an interest in Christianity and would therefore also be imputed to be Christian converts. Based on the country information referred to above, these applicants would therefore be at risk of harm if they returned to Iran for reasons of their imputed Christian religious beliefs.

115.   The type of harm that the Australian-based applicants would face in Iran for reasons of their membership of a particular social group being women who do not wear a hijab in Iran and for reasons of their imputed Christian religious beliefs include societal discrimination as well as potential arrest, detention, being charged with an offence and being sentenced to a long term of imprisonment or potentially even the death penalty by the authorities in Iran. In this context, the Tribunal accepts that the harm that these applicants would face for these reasons amounts to serious harm for the purposes of s 5J of the Act.

116.   As discussed with the applicants and the representative at the hearing, there is some debate and conjecture as to whether the risk of serious harm faced by the Australian-born applicants for either their membership of a particular social group being women who do not wear a hijab in Iran or for reasons of their imputed Christian religious beliefs would, individually and of themselves, amount to a real chance or whether those individual risks would be remote. However, the Tribunal accepts that the cumulative risk of being both members of a particular social group being women who do not wear a hijab in Iran and being imputed with Christian religious beliefs, in the context of Iranian society and in the context of the country information referred to above, would magnify and elevate the chance of harm in the Australian-born applicants’ own personal circumstances. In these circumstances, the Tribunal considers that the chance of harm that the Australian-born applicants is not remote and is therefore a real chance for the purposes of s 5J(1) of the Act.

117.   Having considered all of the above, and having considered the claims of the Australian-born applicants on a cumulative basis, the Tribunal is satisfied that in their own personal circumstances, if they go to Iran now or in the reasonably foreseeable future, that there is a real chance that they would face serious harm for reasons of their membership of a particular social group being women who do not wear a hijab in Iran and for reasons of their imputed Christian religious beliefs.

118.   The serious harm the Australian-born applicants fear for these reasons includes serious harm from Iranian authorities. Accordingly, effective protection is not available to them in these circumstances.

119.   The country information referred to above suggests that the serious harm feared by the Australian-born applicants extends across the entirety of Iran and, therefore, relocation within Iran to avoid such harm is not a viable option in these circumstances.

120.   In the circumstances of the Australian-born applicants, the modification of their behaviour in Iran to avoid the harm they fear would amount to a conflict with a characteristic that is fundamental to their identity or conscience (being their choice, as people who have grown up in a western culture, not to wear a hijab) and would also amount to an alteration of their religious beliefs or interests. Such modifications are expressly excluded by s 5J(3) of the Act and are therefore not applicable in the Australian-born applicants’ circumstances.

121.   Accordingly, having considered their claims on a cumulative basis and in their own personal circumstances, the Tribunal is satisfied that the fourth named and fifth named applicants have a well-founded fear of persecution if they go to Iran now or in the reasonably foreseeable future for reasons of their membership of a particular social group being women who do not wear a hijab in Iran and for reasons of their imputed Christian religious beliefs.

122. Therefore, for the reasons given above, the Tribunal is satisfied that the fourth named and fifth named applicants are persons in respect of whom Australia has protection obligations and satisfy the criterion set out in s 36(2)(a).

The overseas-born applicants

123.   As discussed above, there are significant credibility concerns about the direct claims for protection made by and on behalf of the overseas-born applicants.

124. However, the Tribunal has found that the fourth named and fifth named applicants are persons in respect of whom Australia has protection obligations and satisfy the criterion set out in s 36(2)(a).

125.   The first named applicant is the father of the fourth named and fifth named applicants. The second named applicant is the mother of the fourth named and fifth named applicants. The third named applicant is the brother of the fourth named and fifth named applicants.

126. Therefore, the first named, second named and third named applicants are members of the family unit of the fourth named and fifth named applicants for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the application of the fourth named and fifth named applicant.

127. As the fourth named and fifth named applicants are person in respect of whom Australia has protection obligations under s 36(2)(a), it follows that the first named, second named and third named applicants in this matter satisfy s 36(2)(b)(i) and will be entitled to protection visas provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.

Application of section 91W of the Act

128.   There is no issue relating to s 91W in the circumstances of the fourth named and fifth named applicants. They have provided birth certificates issued in Australia to verify their identity. Accordingly, in these circumstances, the Tribunal finds that s 91W(2) does not prevent the grant of visas to the fourth named and fifth named applicants.

129.   As discussed above, the delegate found that s 91W(2) of the Act applied in relation to the overseas-born applicants, which prevented the grant of protection visas to these 3 applicants. This finding was made on the basis that these applicants had refused or failed to comply with a request to produce documentary evidence of their identity, nationality or citizenship under s 91W(1) of the Act and that they did not have a reasonable explanation for refusing or failing to comply with that request.

130.   It is clear from the Department file and from the delegate’s decision record that the overseas-born applicants did not provide documentary evidence of their identity, nationality or citizenship when they were formally requested to do so by the delegate and at any time before the delegate made a decision in their matter.

131.   However, the applicants provided the Tribunal with a birth certificate for the second named applicant which also included birth details and birth certificate numbers for the first named and third named applicants. The birth certificate makes it clear that it was issued by the authorities of Iran and relates to a person who is a national or citizen of Iran.

132.   In addition, a compulsory military service card for the first named applicant was also provided to the Tribunal to verify that he had completed national service in Iran, as all males who are Iranian nationals are required to do[12].

[12] Department of Foreign Affairs and Trade, Country Information Report Iran, 24 July 2023, p 31, para 2.154.

133.   As outlined above and as discussed at the hearing, country information from DFAT verifies that in Iran, birth certificates are kept regularly updated with a person’s personal information including information about their marriage and the birth of any children[13]. In this way, these certificates serve as a form of ongoing household or family registration certificate.

[13] Ibid, p 41, paras 2.210 – 2.213.

134.   In the overseas-born applicants’ circumstances, the birth certificate for the second named applicant clearly states that she was born in Iran. It also lists the first named applicant as her husband and lists the third named applicant as her son. It provides details about the birth certificates, dates of birth and places of birth (within Iran) for the husband and the son.

135.   There is some discrepancy in the year of birth that the first named applicant has consistently provided over time since he came to Australia ([as in DOB 1]) and the year of birth recorded in the translated version of the birth certificate and military service card provided to the Tribunal ([as in DOB 6]). For completeness, the reference to the year of birth in this regard is a reference to years in the Gregorian calendar used in Australia. However, the Tribunal notes that when invited to provide his date of birth at the hearing the first named applicant provided it in the Persian calendar rather than the Gregorian calendar and added that he was not very familiar with using the Gregorian calendar to recall his date of birth. Also at the hearing, the representative helpful explained that when converting from one calendar to the other, years and months in the Persian calendar that fall around the month known in Australia as March (which appears to be the birth month of the first named applicant) are often calculated or interpreted into the Gregorian calendar in a flexible manner because that period coincides with the change of year in the Persian calendar, which occurs on a flexible rather than fixed date in different years. It is also noted that the actual dates recorded on the original documents written in Persian are Persian calendar dates with no Gregorian calendar dates actually appearing on these documents.

136.   There is no evidence before the Tribunal that the first named applicant has ever attempted to conceal or change his date of birth. His provision of his date of birth over time has been primarily in the Persian calendar and where he has used a Gregorian calendar date of birth to comply with Australian customs and requirements, he has relied upon the initial translation of his date of birth from one calendar to the other upon arrival in Australia. In these circumstances and given the discrepancy between [the specified years] is minor and can be explained by the peculiarities of the Persian calendar around the time when it records a change of year, the Tribunal has placed no adverse weight on any minor discrepancies recorded over time in relation to the first named applicant’s year of birth.

137.   Accordingly, on the evidence before it, the Tribunal finds that the documents that the overseas-born applicants have now provided to the Tribunal are documentary evidence in relation to their identity, nationality and citizenship for the purposes of any request for such documentary evidence pursuant to s 91W. Therefore, the Tribunal finds that the overseas-born applicants have now complied with a request to produce documentary evidence of their identity, nationality and citizenship under s 91W(2). Based on this finding, the Tribunal also finds that s 91W(2) does not apply in the circumstances of the first named, second named and third named applicants.

138.   For these reasons, the Tribunal finds that the grant of visas to all of the applicants in this matter is not prevented by s 91W in their circumstances.

Conclusions

139.   For the reasons outlined above the Tribunal has found that:

·The applicants are nationals of Iran and has assessed their claims accordingly.

·The fourth named and fifth named applicants are persons in respect of whom Australia has protection obligations and satisfy the criterion set out in s 36(2)(a).

·The first named, second named and third named applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the fourth named and fifth named applicants.

·The grant of visas to the applicants is not prevented by s 91W in their circumstances.

DECISION

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

(i)that the fourth named and fifth named applicants satisfy 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 fourth named and fifth named applicants; and

(iii) that the grant of the visas, in relation to all of the applicants, is not prevented by s 91W.

Peter Katsambanis
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.

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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.

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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.

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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.

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36     Protection visas – criteria provided for by this Act

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(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.

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