1922268 (Refugee)
[2022] AATA 4404
•30 September 2022
1922268 (Refugee) [2022] AATA 4404 (30 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Dr Sirous Ahmadi (MARN: 0854826)
CASE NUMBER: 1922268
COUNTRY OF REFERENCE: Iran
MEMBER:Christine Cody
DATE:30 September 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 30 September 2022 at 8:17pm
CATCHWORDS
REFUGEE – protection visa – Iran – religion – conversion to the Baha’i faith – Baha’i home meetings – detention – death threats – marriage certificate – threatening phone calls – employment – education – mental health issues – divorce – return visit to Iran – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 36, 65, 423, 424, 499
Migration Regulations 1994, Schedule 2CASES
Dranichnikov v MIMA [2003] HCA, (2003) 77 ALJR 1088
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Sun v MIBP (2016) 243 FCR 220Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister Home Affairs on 18 July 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Iran, applied for the visa on 9 January 2019.
Migration history
The applicant’s migration history is set out below:
· 2 November 2016: Applicant granted Visitor – Sponsored Family Stream (FA-600) visa
· [November] 2016: Applicant arrived onshore on Visitor – Sponsored Family Stream (FA-600) visa
· [December] 2016: Departed Australia
· 4 July 2018: Granted Visitor – Sponsored Family Stream (FA-600) visa
· [August] 2018: Arrived onshore on subclass 600 visa – valid until [November] 2018
· 22 October 2018: Applied for Protection visa. Application deemed invalid on 14 December 2018 - did not provide personal identifiers
· 9 November 2018: Applicant granted a Bridging A visa (WA-010) – in effect until 18 January 2019
· 9 January 2019: Lodged a valid Protection visa application
· 16 January 2019: Granted a Bridging C visa (WC-030)[1]
[1] Source: Delegate’s decision record provided to the Tribunal by the applicant
The protection visa application form
The applicant was represented by her (first) registered migration agent (Mr Ryan Lasaki) and lodged an online Protection (subclass 866) visa application on 9 January 2019. In addition to her application form, she provided[2]: Iranian driver’s licence issued [in] 2015, (identification page of her) passport issued [in] 2018, birth certificate, National ID card, and a statement of claims dated 9 January 2019.
[2] As listed in her application form
Background
The application form lodged 9 January 2019 provided background information including the following:
·The applicant was born in [year] in Shiraz, Fars, Iran.
·She can speak, read and write Persian (excluding Dari).
·She identifies as being part of the Persian/Farsi ethnic group and Baha’i religion.
·She married [Husband A], who was born in Mamrvdasht, Fars, [in] March 2009.
·Her sister, [named], is an Australian citizen
·The applicant provided specific dates and details as to her addresses, her education and her employment in Iran.
·Since she has been in Australia, she has been unemployed, surviving on her savings and with help from her sister. She has attended Baha’i classes and studied English.
Claims in statement sworn 9 January 2019
The applicant signed and declared her statement to be true on 9 January 2019. The statement contains claims including:
· The applicant was born into a Muslim family in Iran.
· All of her father’s family were Baha’i except for her father and father’s father. Her grandmother (her father’s mother) had 2 husbands, the first Baha’i and the second Muslim. The applicant’s father’s elder siblings were all born to the Baha’i father, and thus he was raised in a mainly Baha’i family, although her father was born to the Muslim (second) husband of his grandmother. The applicant’s father was raised mainly in a Baha’i family.
· Her father passed away when she was [age] years. She heard from the family that her father didn’t practise Islam or Baha’i, but he was inclined towards the Baha’i faith.
· The applicant stated that her mother had Baha’i friends [she did not however state that her mother was Baha’i].
· The applicant said most of her friends were Baha’i and they would go on tours together on a chartered bus, such as a trip to [a location] to clean roadside garbage. The applicant would also drive elderly members to Senior Baha’i meetings, and would volunteer to prepare lunches and do cleaning for senior Baha’i members. She was basically helping whenever it was necessary from the morning to the evening.
· She attended an aged care facility known as [Baha’i Agency 1] in Karaj, once a week for three years to give residents haircuts, assist with cooking and cleaning and other tasks.
· The applicant met [Husband A] through one of her mother’s Baha’i friends, [Friend A]. [Friend A’s] children have been imprisoned in Shiraz for over 1 year because they are active Baha’i members in Shiraz.
· In 2008 she commenced a relationship with [Husband A] and they got married in 2009. The applicant and her husband lived in Zanjan city for nearly a year following their marriage. In 2010, they moved to Karaj, when she got to know her first husband’s relatives and family, who were all Baha’i.
· She states that this was the starting point of her Baha’i Faith, and then the “first step” was attending Baha’i classes for newlywed. They began attending Baha’i prayer sessions and events at the home of their friend, [named]. Later they attended monthly classes at [Ms A’s] home in Karaj for nearly five years (2013 until 2018). While the venue occasionally changed, the majority of classes were held in [Ms A’s] home.
· In May 2018, [Ms A] informed the applicant and her husband over the phone that she could not continue to hold Baha’i events because she was threatened by government officials not to hold Baha’i gatherings in her home. She apologised and stated that she could not explain any more.
· The applicant and her first husband decided to continue classes at their apartment. They began hosting their monthly meetings. They did not think that they would be monitored, because they were aware that [Ms A] had a serious legal issue with one of the influential local authorities, and thus they both thought it was unlikely they would be monitored as well.
· After one meeting, the applicant received a call from a person who said he was from the “legal authorities of the city”, warning her about her Baha’i activities. Their office knew she was Muslim born, they knew about her Baha’i activities, and they would not tolerate “dirty blasphemous and Zionist things” being done in the city.
· Within a week, her husband was asked to attend a meeting at the university where he worked as [an occupation 1]. He was interrogated about the applicant’s religious activities and was asked to write a statement about their relationship and the couple’s Baha’i activities over the past 10 years.
· Her husband was advised that the university had received reports regarding the applicant’s Baha’i activities, and he could lose his job if it was proven that he had any public attendance at Baha’i meetings. The applicant and her husband spoke with their friends about the circumstances, and stopped holding meetings at their house.
· The same week, the applicant was going into the [Baha’i Agency 1], and she was approached by two female agents. One introduced herself as from the “[Police]” and said that her colleague had previously spoken to the applicant about her Baha’i activities. She and the agents drove to an office and the applicant was questioned on the way about how she became a Baha’i, the Baha’i community in Karaj and about the [Baha’i Agency 1]. At the office she was advised that her Baha’i activities needed to be investigated, there were some recent general concerns about the Baha’i community in Karaj, but she needn’t worry if she did not have any connection with foreign countries.
· The applicant was body searched, interrogated by 2 men, she was insulted and spoken to with sexually abusive words. She was touched unnecessarily and accused of spying for Zionists and frequently threatened with death. She was frequently informed that there is a fatwa that Baha’is are non-believers and should be disappeared. She was asked about her travel to Australia in 2016, the purpose of her trip, her political activities, her sister’s personal life and the Baha’i community in [City 1, Australia].
· After eight days, she spoke to her sister-in-law who advised that her family had found a lawyer for her and if she cooperates then she will be released. She was detained for [number] days, then advised that she could return home, but must remain in Karaj city. She was not provided with a written order.
· The applicant did not feel safe and couldn’t sleep properly after having been released. Following discussions with her first husband, she decided to leave Iran as soon as possible.
· In Australia the applicant continued her Baha’i classes at [Ms B’s] home and then at her sister’s home.
· She fears that if she were to return to Iran, she will not be able to practice her Baha’i faith freely and she might be detained, she will be prosecuted and harmed significantly for her religious beliefs.
· The authorities in Iran are against new converts and there is no place in Iran that is safe for new Baha’i converts.
· She can provide further information at interview as not all problems or details of the incidents are included. She said that her statement is a summary of her claims for protection and she will provide further information during her interview with the delegate.
The applicant twice describes herself in her statement as a “new” convert to the Baha’i faith (although it is not specified when she converted).
Interview on 28 March 2019
The applicant was accompanied to the interview by her first agent. She was asked numerous questions by the delegate about her background and claims including her marriage, her practice of the faith, past events, questions about her marriage. A large part of her evidence is set out in the delegate’s decision record that the applicant provided to the Tribunal. The applicant gave evidence that sometimes supported her claims, at other times her evidence was significantly inconsistent.
The following is not a comprehensive summary of everything that she said at interview; some other evidence is referred to below. Her evidence included that she is satisfied that her protection claims are complete and correct; she didn’t have any issues at the airport when she was exiting Iran; when she arrived in Australia, she decided she would apply for protection (her sister told her about protection visas); she is married and when she last lived in Iran, she was living with her husband; after the applicant travelled to Australia, her husband was asked a few times about the applicant’s whereabouts; her husband is not a Baha’i (she produced a marriage certificate which showed that both she and her husband are Muslims); the applicant’s husband is safe and he is not being bothered in Iran because he is Muslim; her mother was Baha’i and so she engaged with the Baha’i faith; through her mother, the applicant was able to study a lot about the faith. At this time, the applicant did not have a positive view of Islam. Growing up, her mother practiced the Baha’i faith; she practised her faith in Iran by participating in prayer gatherings which took place once a week, and by participating in other religious occasions that are of significance to Baha’is, such as participating in witness ceremonies; all of her paternal uncles and aunts, as well as her sister in Australia practise the Baha’i faith; the applicant only hosted one class, she stopped hosting these classes because one week after she started hosting them, she received a call from the [named] department of Iran, advising her that they were aware of her Baha’i activity and her husband will lose his job; the last eight days in prison, the applicant was hurt and had trouble sleeping once she was released, she was aware that the punishment for changing her religion (apostasy) could be a death sentence. She spends her time in Australia mostly at home, reading. She likes to read material about her religion. She finds it difficult to practise her faith in Australia because she does not have a car and doesn’t know [City 1, Australia] well. Often, she attends gatherings at her sister’s place and services at [Ms C’s] place; she has trouble recalling dates and was prescribed medication following what happened to her in Iran. She fears that she will be arrested and executed at the airport, if she were to return to Iran.
The delegate noted that there were inconsistencies in her evidence and with documentary evidence, including the claims she made in her offshore visitor visa applications, and with her marriage certificate, and offered her an opportunity for a natural justice break with her then agent.
Concerning the marriage, the delegate noted that the applicant gave inconsistent dates as to her marriage:
· Her wedding was [in] March 2012 in Shiraz.
· With assistance of the interpreter, evidence of her marriage read that the date of her marriage was [in] November 2008.
· She had a wedding ceremony four years after her marriage, which was a celebration at her husband’s mother’s house.
The delegate put to the applicant that she had put forward three different dates about when she got married and that it raised concerns about her credibility. The then agent responded that he didn’t think this should be an issue in relation to the applicant’s credibility because the applicant has no reason to be inconsistent about her marriage and it is common for there to be mistranslations in dates from the Persian calendar. The then agent asked the delegate what dates the applicant had put forward, and the delegate said that the dates were 2008, 2009 in her written claims, and at interview, she had stated 2012. In respect of the 2008 and 2009 difference, the agent stated that conversions from the Iranian to Gregorian calendars commonly led to a year’s difference. The delegate asked the agent what about the conversion difference between November (2008) and March (2009). He responded that he couldn’t find any reason why it should affect the applicant’s credibility because her date of marriage doesn’t affect her statement of claims and doesn’t seem to relate to the claims. He stated the delegate can rely on the original document to determine the date of her marriage.
Concerning her employment, while she told the delegate that the last job she had was in a [business 1] in Karaj, the delegate noted that information before the Department suggests she has been inconsistent in providing information to the Department about her employment history.
The delegate had numerous other concerns as set out in the delegate’s decision record (and further evidence from the interview is referred to in the section dealing with the delegate’s decision record below).
Post-interview documents
As set out in the delegate’s decision record, post-interview, the applicant provided the following documentary evidence in support of her claims:
· Post-interview submission, containing support letters from medical professionals
· Translation of Marriage certificate
· Further evidence including a video of prayer in Iran, Baha’i [name] group messages, email to [Spiritual Assembly 1], photos of Baha’i meeting group, support letter from [Friend B] and evidence of the applicant’s Child Protection Policy Accreditation.
The delegate’s decision record
The delegate had concerns in relation to the applicant’s changing, and inconsistent evidence in relation to the religion of herself, her husband and her family members, the date of her marriage (noting the connection she made between this and her involvement in the Baha’i faith), her employment, and other events that occurred in Iran, as well as her practice in Australia.
The delegate noted that on the marriage certificate, the applicant’s particulars list her religion as Shia Islam, and her husband’s religion as Shia Islam. The applicant’s marriage certificate indicates that she practiced Shia Islam at the time of her marriage and therefore did not have a Baha’i wedding. While country information reports that in the case of Muslim-Baha’i weddings, two marriage ceremonies are usually held, the delegate considered that the applicant couldn’t provide a reasonable explanation for why she had a ceremony four years following her wedding and was not satisfied that it ever occurred. Rather, the applicant stated that she didn’t know why it happened so long afterwards, and that maybe there was some confusion about dates. The delegate considered that a genuine Baha’i would be aware of, and able to provide an explanation for the practice of having two wedding ceremonies. The delegate also considered that the applicant’s inconsistencies about her date of marriage (2008, 2009 and March 2012) were concerning, and material to her claims insofar as she stated specifically to have engaged in Baha’i practise following her wedding.
The applicant and her husband both claimed to be Muslim on their marriage certificate. The delegate found that the applicant was married [in] November 2008. The delegate found that the applicant practised Shia Islam at the time of her marriage and did not have a Baha’i wedding in Iran, and that her husband was Muslim. The religion of her husband on the marriage certificate was contrary to her written claims, for example, she changed her evidence to say that her husband was not involved in the Baha’i classes and once she began hosting Baha’i lessons at their place, her husband would go into his room to study or leave the house. The delegate noted that this detail was notably absent from her written claims, which read as if the applicant and her husband were jointly hosting the Baha’i lessons. The delegate found that the applicant contradicted her husband’s religion in her written submissions (which stated he was Baha’i) and her evidence at interview (which indicated he was Muslim) which raised serious concern for the applicant’s credibility.
The delegate found that her new claim that her husband had been questioned about her whereabouts after she left Iran was not credible noting it was absent from both her protection visa application and her statement of claims. The delegate considered that her claim that her husband was currently safe in Iran because he is Muslim, the authorities don’t bother him, was directly contradictory with the applicant’s written claim that her husband was required to put in writing everything about his and her Baha’i activities over the past ten years.
Concerning her claimed genuine conversion to, and practice of the Baha’i faith in Iran, the delegate considered that her accounts of her first practice of, and engagement with the Baha’i faith were contradictory and lacking in detail. She said that there was not a certain date she converted. She grew up in a half-Muslim half-Baha’i family and considered herself a Baha’i when she was a young girl, but later on it became more formal. However, she also stated that she first engaged with Baha’i faith in 2010 when she moved to Karaj.
When the delegate asked the applicant to tell her about a teaching from her faith that has special meaning to her in her everyday life, she replied that the main teaching of Baha’i is to unite mankind so that they can all live peacefully together. The delegate considered that this response was lacking detail and a level of sincerity that could reasonably be expected to be demonstrated by an individual who had been practising the Baha’i faith since at least 2010, as the applicant had claimed.
The delegate noted that country information reports a pervasive level of official and societal discrimination against Baha’is, however the applicant made no such claim in her statement of any personal experience of such treatment, including for example the applicant did not mention any difficulties she had faced in her life acquiring or maintaining employment. The delegate noted that discrimination in everyday life is a common, shared experience for Baha’is in Iran, referring to the 2013 International Religious Freedom Report for Iran, published on 28 July 2014, in which the United States Department of State (USDOS) reported that the Iranian authorities denied freedom of religion to Baha’is and subjected them to forms of mistreatment that were not directed at other religious groups. The relevant section of the report stated: The government considers Bahais to be apostates and defines the Baha’i faith as a “political sect.” The government prohibits Bahais from teaching and practicing their faith and subjects them to many forms of discrimination not faced by members of other religious groups. The delegate also referred to the United States Commission on International Religious Freedom (USCIRF) which reported that Baha’is have been subject to economic mistreatment, including the denial of employment in the public and private sectors, noting: The Baha’i community also faces additional economic pressures, including denial of jobs in both the public and private sectors and of business licenses. Iranian authorities often pressure employers of Baha’is to dismiss them from employment in the private sector. Since 1979, more than 10,000 have been dismissed from government and university jobs.
The delegate noted, however, that while in Iran, the applicant maintained steady employment; and as asserted by the applicant’s agent, she even held two jobs at the same time during some periods. The delegate considered that country information suggests that this would not be plausible for a genuine practising Baha’i, let alone a Baha’i convert.
Concerning the claims of detention and torture in Iran, the delegate found that the applicant did not provide a level of detail that would be recalled if it was a personal experience, and considered that the applicant memorised facts in her written claims.
The delegate considered that the applicant’s claim about having practised the Baha’i faith in Iran was further undermined by the support letter from [Friend B], a member of the Baha’i faith in Australia, which states in respect of the applicant, “at first I thought that she was bahai (sic) until she explained that to me, she is practicing about Baha’i’s religion and working so hard learning more every day (sic)”.
The delegate was not satisfied that the applicant genuinely undertook a spiritual journey of religious exploration and Baha’i conversion in Iran. The delegate does not accept that the applicant was practising the Baha’i faith genuinely in Iran and thus did not accept that she was hosting Baha’i classes or received a call from the Iranian authorities warning her to cease her Baha’i activities nor that she was detained and harmed. The delegate found that the applicant’s claim that her husband was threatened to lose his job if he attended Baha’i meetings was not credible as the delegate found the husband to be Muslim.
The delegate found that the applicant does not hold a profile of interest to the Iranian authorities, and she did not face any problems when exiting Iran.
The delegate found that the applicant’s claims of having genuinely engaged with, and practised Baha’i faith in Australia were not credible.
While the delegate accepted that the applicant does have a medical condition, being depressive anxiety disorder, the delegate considered that [Doctor A’s] letter to be questionable and exaggerated, and that [Psychologist A’s] letter was written after the applicant’s protection visa interview and addresses matters outside the scope of a psychologist’s professional duties.
Further evidence from the interview is referred to below.
The Tribunal
The applicant was represented by the same registered migration agent when lodging her application for review and she provided a copy of the delegate’s decision record to the Tribunal.
By way of letter dated 27 May 2022 the applicant was invited to attend a hearing on 26 July 2022.
The Tribunal received a change of agent form signed and dated 30 June 2022 (the new agent was Dr Ahmadi).
18 July 2022 submissions
By way of email dated 18 July 2022 the new agent provided numerous supporting documents (discussed below) to the Tribunal including submissions from the agent dated 18 July 2022 with a statutory declaration of the applicant sworn on 17 July 2022 stating that she declares that the submission made on her behalf by her agent has been read and explained to her in full detail and she has clearly understood the submissions, which accurately and completely represent her own claims.
These submissions provide a number of reasons why the delegate’s decision was incorrect and submit what should and should not be considered important for decision-makers. It was submitted that decision-makers should be careful not to join a series of minor alleged inconsistencies and ambiguities to reject the whole of the applicant’s account, and that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Reference was made to be PAM guidelines concerning persons with mental health issues with suggestions that the applicant should have been given the benefit of the doubt by the delegate as she had provided to the best of her ability, reasonable answers to the delegate’s questions, and that decision-makers should not set too high a standard when assessing an applicant’s level of knowledge, and that a gut feeling should not be relied upon by the decision-maker. Reference was made to UK Home Office stating in 2015 that caseworkers should not base implausibility findings on their own assumptions, conjecture or speculative ideas of what ought to have happened or how someone should behave. Case law was also referred to, noting that if the Tribunal is uncertain as to whether an event occurred at all, even though the probabilities are against it, the event might have occurred and it may be necessary to take into account that the possibility that the event took place in considering the ultimate question.
It was submitted that there are 13,000 Baha’is in Australia (born in either Iran or Australia), and as Bahai’s arrive from Iran, the applicant’s ability to leave Iran should not be considered adversely.
Update information included that the applicant and her husband in Iran had been divorced [in] December 2020, and that the applicant had remarried in Australia. Further supporting evidence of her Baha’i activities was included and is referred to below.
The hearings
The applicant appeared before the Tribunal on 26 July 2022 and on 6 September 2022 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Persian and English languages, and the applicant’s current agent was present. After the first hearing on 26 July 2022 the Tribunal sent a s.424A letter with attachments, and the applicant sent a response through her agent on 12 August 2022, attaching submissions, a further statutory declaration of the applicant dated 12 August 2022, and further documents, articles and photos, discussed below.
Evidence given at hearing included that:
· Bahais do not lie.
· The applicant was married to her first husband on [date].11.2008. Her first husband was a Muslim. The Tribunal asked whether he ever followed the Baha’i religion and she said that he was born in a Baha’i family (his grandparents and parents were all Baha’i), but he never followed Bahai religion. He wanted to continue his studies and have a high education so he decided to become a Muslim, but he was not really a practicing Muslim.
· The Tribunal asked how he “became” a Muslim and she said he read the Islamic book regarding religion. She said that he chose to say his religion was Muslim when doing his entrance exam for university.
· She said she thinks there was an incorrect date mentioned at interview, in Iran they have 2 types of ceremony. They were married on [date].11.2008, a civil ceremony, and then they held a wedding ceremony on [date].3.2009 where she wore a wedding gown, and they invited family and friends (no religion involved). There was thereafter a celebration at her husband’s mother’s place.
· The applicant said that she is a Baha’i. The Tribunal asked the applicant why it was stated on her marriage certificate that she was a Muslim. She responded that because she was born and raised in an Islamic country, in order to have the marriage certified and legal, she had to say her religion was Islam. She entered a false religion on the marriage certificate because her husband said that they should not do anything that affects his work.
· She said that only her mother is Baha’i, all her other family are Muslims. Except that her sister in Australia has been here 25 years and she is a practicing Baha’i and in 2010 she received a Baha’i ID card which the applicant had produced.
· She met her current husband one year before they married on [date].5.2021. He is from Iran, his religion is Christian, he is a convert from Islam which was the basis of his claims. She said he came by boat and his status is temporary/permanent. They did not have a Christian ceremony because this is not allowed unless both parties are Christians. She said they married in the Baha’i temple in [City 1, Australia]. A non-Baha’i can be married in a Baha’i temple.
· Since the age of [age] years she has been wearing, visible to everyone, a necklace and a ring that are Baha’i-identifying jewellery. She showed the Tribunal that she was now wearing this jewellery, and stated that it is written on the necklace words to the effect of Ya Baha’i, which she said means Yes Prophet Ballulah My Idol. When asked if someone walking past her on the street in Iran can identify her as Baha’i, she said yes, because everyone knows it is a symbol of Baha’i. She said whenever she is asked if she is Baha’i she says yes.
· She works in Australia; [jobs specified].
At the first hearing the applicant was asked about the persecution that she had previously suffered in Iran and from her evidence it was ascertained that she claimed:
· Inability to have a Baha’i ceremony with her first husband, and that her first husband had left her because of her Baha’i activities,
· She was unable to get a degree because she was a Baha’i,
· In Iran they don’t have a temple to pray there freely. All their educational classes are in hiding and they are always in fear and scared.
· When they say they are Baha’i, they are told they are unclean and need to leave the country. Her [sisters] are Muslims and when they come to her house, they say she is unclean.
· Further, she was arrested for [number] days and tortured and beaten.
· Finally, when she was in Karaj in 2010 she used to receive calls from an unidentified number that she believes was the security services. When asked why this was significant, she said that when she moved to Karaj she started to read Ruhi books with her first husband’s family and attend gatherings once a week and another type of gatherings once a month. She said that the calls occurred because she was an evangelising Baha’i in Karaj. They said they know her name and that of her husband and they know she is a Baha’i and she is an infidel and Islam permits having her blood. They are watching her, it is better to stop what she is doing and that is the last warning. When asked if they said anything else, she said they disconnect the call. She said she received 2 calls; both received in 2010 similar content. In the first call they said they know you arrived Karaj and the second one was as she had already said.
She confirmed that she did not experience any other persecution or harm in Iran.
The applicant told the Tribunal that she started evangelising from 2011 in Karaj, with other people, and she continued until she left Iran. The Tribunal noted that she received no adverse attention for 7 years, from the authorities or from the community, in particular the Muslims she was trying to convert to her Baha’i religion, which was difficult to understand (in particular considering her claim to the Tribunal that she had received 2 warning or threatening phone calls in 2010). She said that she evangelised in hiding, they would talk to Muslims when they were on bus trips.
She said that when she was arrested, she was asked questions about her religion and she told them that she is Baha’i, her prophet is Bahaullah. They asked her to sign a paper that she is a Baha’i. They insulted and said offensive and abusive words to her. They told her she is an infidel. They said they know she is evangelising people, but they wanted to wait to see how far she will go and they wanted to have proof.
The Tribunal asked whether they told her they had proof she was evangelising and she said yes, they knew [Ms A] and that the applicant had held classes in the house. They knew her husband worked at university, and they knew everything about her life. The Tribunal asked whether they asked her anything else and she said no. The Tribunal noted, however, that her statement indicated that she had been asked additional information when she had been taken by the agents to the office, namely about her sister, her trip to Australia in 2016 and the Baha’i community in Australia, which she had omitted to tell the Tribunal in her evidence. The applicant said that she did not include being taken to the office as being arrested/detained.
At the second hearing, the Tribunal asked the applicant if there was anything she wanted to say in relation to any of the matters raised in the s424A letter, and she responded that she will just answer questions. The Tribunal asked if there were any updates since the last hearing and she said she doesn’t think so.
In general: During and towards the end of each hearing the Tribunal gave the applicant the opportunity to say anything further; towards the end of the first hearing the applicant responded that she could not recall if there was anything else she wanted to say; towards the end of the second hearing, she said that she prefers not to add anything as she may make mistakes and she was tired.
At one stage during the first hearing, she said that she was having difficulty breathing and said she was asthmatic and she forgot to bring her puffer with her; the Tribunal said she should ask for a break whenever she needs one.
At times the applicant asked for time to think, the Tribunal agreed with such requests; and the Tribunal offered breaks, some of which she agreed to take.
At the second hearing the Tribunal discussed the applicant’s different versions of events, through the interpreter, and at one stage the interpreter said he thought that the applicant was confused and that it was moving a bit fast. The Tribunal had said previously to the applicant that it is important to let the Tribunal know if she doesn’t understand anything, and the Tribunal stated that it could go slower, and it repeated the different evidence she had given at different stages, to ensure that she understood.
Other evidence and information is referred to below.
The Tribunal raised concerns at the hearings with the credibility of her claims.
Further evidence is set out below. Information sourced from the delegate’s interview[3] and other sources referred to below, such as from the 2016 and 2018 Departmental offshore visitor visa application files, was provided to the applicant in accordance with s.424A of the Act, either in the s.424A letter post first hearing, or pursuant to s.424AA of the Act at the second hearing.
[3] Apart from that included in the delegate’s decision record provided by the applicant to the Tribunal. The Tribunal has not always specified in this decision record as to whether the relevant information was sourced from the delegate’s decision record or from the recording of the interview, nor has the Tribunal specified each time it put information to the applicant pursuant to s.424A of the Act.
Consideration of claims
Country of reference
The applicant produced her passport to the Tribunal which shows that she is an Iranian citizen. The Tribunal accepts that the applicant is a national of Iran, and that the appropriate country of reference for the assessment of her refugee claims and the receiving country for the purposes of her complementary protection claims, is Iran.
The issue in this case is whether the applicant meets the definition of refugee or is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Concerns as to the credibility of the applicant’s claims
Relevant law as to whether the Tribunal is satisfied as to the applicant’s claims
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 the 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.
Pursuant to s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
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 & Anor (1997) 191 CLR 559 at [596]; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at [169–70]).
As Kirby J observed in Dranichnikov v MIMA:[4]
[4] [2003] HCA 26 at [78], (2003) 77 ALJR 1088 at [1100].
The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. [The High Court] has rejected that approach to the Tribunal’s duties. The function of the Tribunal … is to respond to the case that the applicant advances …[5]
[5] As cited in Sun v MIBP (2016) 243 FCR 220 per Flick and Rangiah JJ at [69].
The Tribunal has a number of concerns with the case that this applicant has advanced on the basis of inconsistent and changing evidence. The Tribunal’s concerns are set out below.
Firstly, the Tribunal had a number of concerns about the inconsistent information that the applicant gave about her first marriage, noting that the applicant tied her adoption of the Baha’i faith to her marriage.
In her statement to the Department as set out above, the applicant said, under the heading “Faith, starting point and development”, that after marrying her first husband in 2009, they lived in Zanjan city for nearly a year following their marriage. In 2010, they moved to Karaj, when she got to know her first husband’s relatives and family, who were all Baha’i, and this was the starting point of her Baha’i faith. She discussed her father’s family (he was Muslim but raised in a mainly Baha’i family) and said that her father passed away when she was [age] years old, and that she had heard that he didn’t practice either religion but he was “inclined” to the Bahai faith. She made no claim about her mother’s religion; she only stated that her mother had Baha’i friends.
At interview, however, the relevance of her parents changed: her father was not relevant in terms of religion, but it was her mother who was Baha’i and with whom she engaged in the Baha’i faith; and through her mother she was able to study a lot about the faith. However, contrary to this, she also claimed that she first engaged with the Baha’i faith at a different time: namely as a result of meeting and engaging with her husband’s relatives when she moved to Karaj in 2010: as set out in the delegate’s decision record, when asked at interview when she first engaged with the Baha’i faith, the applicant responded that in 2010, she travelled from Zanjan to Karaj, where for the first time, she participated in an event in the house of a Baha’i. She was about [age] years of age at this time[6].
[6] Delegate’s decision record
This claim, that she first engaged in the Baha’i faith (aged [age] years, in 2010), was, however, inconsistent with her evidence to the Tribunal at the first hearing. The Tribunal asked the applicant about her religion and she said that she is Baha’i. When asked how long she has been a Baha’i, she responded when she was [a child] she lost her father and since then with her mother she was active in Baha’i classes that were held in their home and in other people’s homes in Shiraz. The Tribunal again asked her when she became a Baha’i and she said since she turned [teenage] years of age [the year 2000], very seriously, she started reading Baha’i books, asking questions about the religion, and was active in the classes.
The Tribunal put to the applicant the inconsistencies in her evidence concerning when she engaged with the Baha’i faith, and when she became a Baha’i. In response, she said that since she was [a teenager] she started to read Baha’i books and practice Baha’i religion, but since she was [age] years old she was very strongly and very firmly in her own heart become a Baha’i. She got married to her first husband and entered a big Baha’i family.
The Tribunal asked her to explain the difference in her views between when she was [these two specified ages]. She responded that when she was [a teenager] she was at the beginning of her religious understanding. The Tribunal said that this did not explain the difference in her responses as to when she became a Baha’i. She said when she reached [age] years, she started to read more books, she started to evangelise about it and she really believed in Baha’u’llah, not that she didn’t believe in him before, but she became mature and she “really” believed in the prophet.
The applicant told the Tribunal that she became a Baha’i when she was [a child]; then when she was [a teenager], then when she was [age] years old. In her statement the starting point an development of her Baha’ faith occurred when she was about [age] years old (2010) after her marriage; in the interview she claimed to have engaged with the faith including attending classes with her mother when she was young; but she also claimed at interview that she “first” attended classes when she went to Karaj aged [age] years after her marriage.
While the Tribunal accepts that the development of a faith can occur over time, it considers that the applicant has given changing evidence as to when she first engaged in the faith, and significantly different evidence as to when she became a Baha’i. The Tribunal does not find her evidence about the start and development of her faith to be persuasive, and it considers that she would give fairly consistent evidence as to when she became a Baha’i: the differences in her evidence were significant: either aged [as a teenager] [the year 2000] as she told the Tribunal, which undermined her claim in her first statement and at interview that her first engagement with the Baha’i faith only occurred when she was aged [age], in 2010, after her marriage when she had moved from Shiraz to Karaj. The Tribunal considered that this undermined her credibility and her claim as to how and when she has become a Baha’i.
The Tribunal’s concerns with her changing evidence about her engagement with the Baha’i religion were heightened because of the changed claim as to her husband’s religion between the time she made her statement and her evidence to the Department (as well as the marriage certificate which showed her religion to be Muslim). The applicant attended the Departmental interview with her marriage certificate and gave evidence about her husband’s religion which accorded with the marriage certificate (showing he was Muslim) but which was inconsistent with numerous points in her statement to the Department indicating that he was Baha’i: namely that they had attended Baha’i newlywed classes together; over a 5 year period they jointly had attended Baha’i classes at [Ms A’s] home; they jointly decided to hold Baha’i classes in their own home; the authorities asked her husband to write a statement about their relationship and the couple’s Baha’i activities over the past 10 years.
The applicant claimed that her husband did not do any of these Baha’i activities as set out in her statement, and he was not involved in the Baha’i classes that she held at their apartment. In her prehearing statement to the Tribunal she confirmed that the contents of her statement in this regard were wrong, and that this was all the fault of the previous agent for including incorrect information in her written claims to the Department. The Tribunal has set out below its consideration of this explanation, and the reasons why it does not accept this explanation.
The Tribunal considers that the applicant’s changing and inconsistent evidence as to her husband’s religion undermine her credibility and claims. The Tribunal also has concerns with her evidence as to why the marriage certificate records that she is Muslim, as discussed in paragraphs 113-114.
Secondly, the Tribunal considered that the applicant’s claim to be very involved and devout in her adopted Baha’i religion, including that she had been a proselytising/ evangeliser ever since 2011, was inconsistent with her evidence that she did not know why her sister’s 2016 wedding in Australia, for which she was bridesmaid, was not a Baha’i wedding. It was claimed that her sister has been a Baha’i since 2010 (card produced). In the 2016 offshore Departmental file it was claimed that her sister was remarrying in 2016, and she wanted the applicant to be present as her bridesmaid. The applicant applied to come to Australia on a sponsored family visitor visa, and relied upon documents relating to her sister’s wedding which indicated that her sister was having a large ceremony at a restaurant, but there was no mention in these documents of the sister holding any part of her wedding ceremony at a Baha’i temple.
The Tribunal asked the applicant at the first hearing whether her sister got married in the Baha’i temple. She said that at the beginning they had a small ceremony in a small hall. Then she went to the temple with them to pray. When the Tribunal asked why her sister did not get married in the Baha’i temple, the applicant said that the Tribunal would have to ask her sister. The Tribunal noted it is asking the applicant. She said that she has no answer for that as she doesn’t know, she came here for 6 weeks to celebrate in the wedding and she returned to Iran “very quickly”. The Tribunal noted that the applicant was a Baha’i at this time and she agreed.
The Tribunal was concerned that she did not even ask her sister this question. The applicant then said she did ask her sister this question but her sister told her in Australia people can’t ask questions “about certain things” that are private. The Tribunal put to the applicant that it found her evidence about this difficult to accept. The applicant then speculated that it could have been because her sister’s second husband was a Muslim so maybe her sister had her own reasons for not marrying in a Baha’i temple.
The applicant told the Tribunal that ever since 2009, she was very involved and interested in the religion, she was mature and she understood it more and she would go around proselytising to others about it in Iran. The Tribunal asked exactly when she started evangelising and she said in 2011. The applicant does not claim to be the retiring type; rather, she claims that, in a place as dangerous as Iran to people of her claimed religion, she had spent the 5 years prior to the wedding evangelising to people in Iran about the Baha’i religion. It is claimed that her sister is a Baha’i who is close enough to the applicant to invite her all the way to Australia to be her bridesmaid, a special role in her wedding ceremony. In these circumstances, the Tribunal finds it hard to accept that if she was a genuine Bahai with her claimed profile at that time, the applicant would not have known why her sister was not getting married in a Baha’i temple.
The Tribunal considered the applicant’s s.424A response to the information put from the 2016 Departmental visitor visa file. In her response she claims that her sister is a dedicated Baha'i individual with a Baha'i card and the circumstances of her sister’s remarriage are not relevant to her own application. The Tribunal does not accept the applicant’s explanation. The Tribunal considers that in the circumstances where the applicant was close enough to her sister to be selected to be sponsored by her to travel all the way from Iran to Australia to be a bridesmaid at her sister’s wedding, the applicant’s lack of knowledge of the reason why her sister did not remarry in a Baha’i temple undermines the applicant’s claim that at the time she was a Baha’i who was very devout, involved in and committed to the religion. This also undermines her credibility.
Thirdly, the Tribunal had concerns with the applicant’s inconsistent evidence as to why she came to Australia in 2018. The applicant had told the Tribunal that the reason why she made the decision to come to Australia in 2018 was to escape from Iran, after her arrest and detention. At the second hearing, the Tribunal put to the applicant that her statement indicated that her arrest and detention occurred in or after May 2018, and the applicant agreed.
The Tribunal asked whether there was any other reason why she was coming to Australia at that time and she said no, she only decided to come because her life was in danger because she had been in solitary confinement and that was the reason why she came to Australia. There was no other reason for her to leave Iran; she did not want to leave Iran because no one likes to separate from their family (including her mother or husband). The Tribunal sought confirmation that it was her evidence that prior to these events in May 2018, she had not intended to leave Iran at all, because she would miss her family and her mother, and she agreed.
The applicant, however, had produced, after the first hearing, with her s.424A response, and in support of her 2018 visitor visa application, documents which had been translated into English on 22 April 2018. The Tribunal considered that the translation of these documents in April 2018 indicated that she had planned to leave Iran earlier than she claimed. These documents were, respectively, her [occupation 2] certificate showing her qualifications, and (in support of her 2018 visitor visa application), her birth certificate/ ID card and her Iranian driver’s licence. As put to the applicant pursuant to s.424AA of the Act, the act of translating these documents in April 2018 indicated that she had intended to travel to Australia prior to the claimed events of May 2018, and that this undermined her claim that she had been arrested and detained and harmed which was the reason she travelled to Australia.
After a break, the agent responded to the s.424AA information on behalf of the applicant, stating that the applicant says that about 1 year or so before this incident, her husband talked about doing a [qualification] overseas or abroad so he had organised the translation of her documents and his own. The Tribunal does not find this response persuasive. The applicant made no mention that she and her husband had been intending to travel overseas one month prior to her detention (which, it is presumed, would have been relevant evidence of an option for them to leave Iran together instead of her leaving him behind as she did by coming to Australia). Further, this new claim is in contrast with her evidence to the Tribunal that, prior to the events of May 2018, she had had no intention of leaving Iran because she didn’t want to leave family including her mother.
The Tribunal considers that the translated documents in April 2018 indicate that the applicant had intended to come to Australia in or prior to April 2018, which undermines her claim that she had been arrested, detained and tortured in May 2018 which had caused her to decide to come to Australia. The Tribunal considers that this undermines her claimed arrest and detention and her credibility.
Fourthly, the Tribunal had a number of concerns relating to the applicant’s new claim made at hearing of discrimination in her education as a Baha’i.
In her protection visa application form, the applicant claimed that she was educated in Iran as follows:
· Sep-[year]: Primary School, Iran (Completed - Passed)
· [year range]: Middle School, Iran (Completed - Passed)
· [year range]: High School, Iran (Completed - Passed)
· [year range]: [a named] University, [Course 1], Iran (Completed - Passed)
She made no claim in her written materials or in her evidence before the delegate, that she had ever suffered discrimination in her education as a result of her religion. The delegate’s decision record, which the applicant had provided to the Tribunal, had considered that her lack of discrimination in her everyday life was indicative that she was not a Baha’i. The Tribunal is concerned that the applicant was influenced by this when giving her evidence to the Tribunal.
When the Tribunal asked the applicant at the first hearing for the highest level of education she reached in Iran, her evidence was contradictory and changing. She initially said she didn’t study in Iran. This was contrary to her protection visa application form. She then said that she only did higher school certificate which she finished in about [year]. The Tribunal put to her at the first hearing that this claim was inconsistent with her protection visa application form where she claimed to have studied [Course 1] for 4 years at university in Iran. She responded that it is not a university, it is a [college] that anyone can enter. Not only was this evidence inconsistent with her protection visa application form, it was also subsequently undermined by her post-first hearing s.424A response where she describes this as her “university education”, through which she would ordinarily have been bestowed with a “degree”, and describes the course as a “[bachelor] course”).
The Tribunal put to her at the first hearing that she just told the Tribunal that her education only went as far as high school, which is inconsistent with having studied 4 years tertiary education (whether university or [college]) in Iran. She responded that this is not considered higher education because she did not get a certificate. The Tribunal put to her that her claim not to have received a certificate is again contrary to her protection visa application form, where she states that she successfully completed and passed her 4-year university course. She responded that she was told at the beginning of the course that because she was a Baha’i that she could sit the course but she would not get a certificate for it, therefore she would not be able to use a certificate to get a job, and she did the course anyway.
The Tribunal had concerns with her changing evidence about her education for a number of reasons.
Firstly, as put to the applicant at the first hearing, she is now claiming that she devoted herself, studied and sat exams for a 4 year period, successfully competed and passed the requirements for a 4-year degree, yet she was denied the right to be granted a degree, solely on the basis of her religion. The Tribunal put to her that this would seem to represent a significant episode of discrimination against her, yet she had failed to mention this in her protection visa application form, her 7 page statement accompanying her protection visa application, and in her interview with the delegate. Further, even after her claim was refused by the delegate, she did not make this claim to the Tribunal, not even in the 23 page submissions that she swore were true and represented her claims provided to the Tribunal before the first hearing). She only made this claim in response to the Tribunal pointing out at the first hearing that her protection visa application form undermined her evidence to the Tribunal that she only studied up to high school.
The Tribunal asked the applicant at the first hearing why she would not mention such a significant claim of discrimination until now. She claimed that she had told her first agent this and she expected him to put it in her written materials. Further, in her statement to the Department she said that that she is happy to provide further information at interview as the statement does not include all the problems or details of the incidents. The Tribunal considers that if she had taken the time to write a paragraph such as this in her 7-page statement, she could have taken the time to mention that she had suffered such serious educational discrimination. As she signed her written statement, the Tribunal finds it difficult to accept that such a significant claim of discrimination was not mentioned, especially as her protection visa application form actually mentions her 4 years of study at this institution. As noted above, for the reasons set out in “Other matters”, the Tribunal does not accept that the applicant was unaware of the contents of her written materials provided to the Department in support of her protection visa application.
The Tribunal asked the applicant at the first hearing why she would not mention this claim at interview, and in response she said that she was not asked about her university at interview. The Tribunal put to her that it did not understand why she did not raise this such a significant instance of discrimination, lasting over 4 years and culminating being denied a degree, at the interview. In response she said that of course it is important, but she had been told to answer the questions. The Tribunal put to her that she had a long interview and plenty of opportunity to raise this. She agreed and said yes that is correct, she was so stressed and depressed and it took about 4 hours and she totally forgot to mention this.
Further, in her s.424A response after the first hearing, she claimed, as a reason for not mentioning persecution in the form of being deprived of a university qualification after 4 years of claimed study:
During my first interview, the respected delegate did not ask me anything about my qualifications and I was not provided with an opportunity to elaborate on this issue as the delegate's instruction was that I should only reply to the questions I was asked.
This however was contrary to the recording of the interview. At the second hearing the Tribunal asked the applicant if she maintained her s.424A response, namely that she was not given the opportunity at the delegate’s interview to mention this claim. The applicant confirmed her response that she was told (by the delegate) to answer the questions and thus did not have the opportunity to provide this information. The Tribunal put to the applicant pursuant to s.424AA of the Act that according to the recording of the interview, she had numerous opportunities to make this claim:
· The delegate said, after about 2 minutes, that the purpose of the interview was to provide further information in support of her application for a PV and that it is her responsibility to raise all claims for protection and provide all evidence in support and if her application is refused, she may not have another chance to provide new information. After about 8 minutes, she was asked if there was any information that she would like to add or change, and she said no.
· After about 21 minutes of interview, she was asked if she was satisfied that her protection visa claims were true and correct, and she said yes.
· Towards the end of the interview, there was also a natural justice break allowing her and her agent time to discuss, and then come back and further talk to the delegate.
After a break, the agent responded to this information on behalf of the applicant, stating that the applicant agrees that the opportunities were given at the time frames mentioned; however, each time she wanted to respond, the delegate would raise her/his hand to stop her from further answering. The Tribunal was concerned that this was the first time (at the end of the second hearing) that the applicant had accused the delegate of engaging in behaviour to prevent her from raising a claim, which behaviour cannot be apparent from an audio recording. She had not raised this previously (in her s.424A response letter, nor at the second hearing before the Tribunal put the information to her) despite concerns being raised with her omissions at interview in the first Tribunal hearing.
The Tribunal considers that if she had been prevented from raising a claim as a result of the delegate putting up her hand, then she would have mentioned this in the 23 page detailed pre-hearing submissions (which she declared as true and correct one week prior to the hearing). These submissions refer to the delegate finding that the applicant was evasive, inconsistent, not credible, lacking in detail, and not speaking from personal experience. The submissions do not however suggest that the delegate had orally given the applicant an opportunity to raise additional claims while at the same time putting up her hand to prevent this from happening. This behaviour of the delegate was also not referred to in her s.424A response letter (in which she claimed she was directed by the delegate to answer questions, but she did not claim that the delegate used hand signals to stop her from providing further relevant information). The Tribunal does not accept this late assertion.
As an additional response, the agent told the Tribunal that the applicant was seriously stressed on that date because of the inconsistent marriage dates and during the natural justice break she and her first agent just talked about those dates and didn’t talk about other matters.
The Tribunal notes that, even if the delegate had prevented her from mentioning claims through non-verbal means (which the Tribunal does not accept), or if the applicant was so stressed that she forgot she had suffered such severe discrimination in her education in Iran (the Tribunal considers it difficult to accept that she forgot this), she still had an opportunity to provide information post-interview, which she did[7], yet she still did not make a claim that she had been denied a degree despite successfully completing all course requirements during a 4 year period) in the post interview documents (nor was it asserted post-interview that there were claims the applicant had not had a chance to put forward at the interview).
The Tribunal considers that her evolving complaints about the delegate have been made up to respond to concerns about her omissions.
The Tribunal does not accept that the applicant was willing to pay a lot of money (as she claims), and to spend 4 years of her life diligently attending university/[college], completing all of the coursework, sitting exams, and successfully completing and passing all the requirements for a degree in [Course 1], even though she was told at the very beginning that she would not get a degree for the sole reason that she was a Baha’i, and then being denied a degree, yet she forgot to mention such a significant claim of discrimination throughout her protection visa proceedings except in response to an inconsistency put to her by the Tribunal. The Tribunal considers that this undermines this claim and her credibility.
Secondly there are further inconsistencies relating to the applicant’s claims about her education.
The applicant’s protection visa application form states that she entered university in [a specified year]. Country information, set out at Annexure B, indicates that Baha’is were prohibited from attending university/ vocational courses or, if allowed to enrol, were then expelled. Thus, the applicant’s claimed attendance as a known Baha’i for 4 years at a university is inconsistent with the country information at that time.
[7] As set out in the delegate’s decision record
100. Further, the applicant provided to the Tribunal as part of her s.424A response, a Certificate for Technical and Vocational Skill [in occupation 2] studied at [College 1] in Shiraz, dated [on a day in the following year]. The Certificate for Technical and Vocational Skill is bestowed by a state organisation: it contains the Emblem of the Islamic Republic of Iran, Ministry of Labour and Social Affairs, [from a named state agency] (emphasis added). The certificate states that she attended 400 hours and completed her course exams [by a date earlier that year].
101. At the second hearing, the Tribunal asked how she could have attended and obtained a qualification from a state organisation in [specified year], noting her claim that she had been a Baha’i since 2000.
102. In response she said that the education where she completed her [occupation 2] education was private to begin with and it was conducted by a lady. The Tribunal noted she had not responded to the question as to how she managed, as a Baha’i, to obtain a qualification from a state organisation. She said this is correct but when she enrolled, she was not asked for her religion and she enrolled in the course and got her certificate. She said she attended there for 6 months.
103. The Tribunal put to her that she had given evidence at the first hearing that she was always identifiable as a Baha’i in Iran, as she had always wore a necklace (which states “Yes, my idol prophet Baha’u’llah”) and a ring, and in her words, it was always obvious that she was Baha’i. In response, the applicant claimed that it may have been winter and she may have been wearing jumpers and she is not sure whether she had her necklace all the time or if it was visible to people or not. This response undermines her earlier evidence to the Tribunal that she started wearing the necklace, a symbol of Baha’i, at the age of [age] years, and the necklace has always been visible, and a person walking past her on the street could identify her as Baha’i.
104. The Tribunal asked her whether she was now claiming that during the whole 6-month course she was not discovered to be Baha’i. In response she said it was a busy place and a lot of people were doing the course and so people had to focus on the teachers and after class they went home. The Tribunal put to her that this sounds like many educational institutions all around the world, but this didn’t stop the Iranian authorities/ universities preventing Baha’i’s from getting higher education.
105. The Tribunal considers that the applicant changed her claim (that she always wore her Baha’i necklace, visible, since the age of [age] years, and she was always obviously Baha’i) to respond to a concern raised by the Tribunal with her claim that despite it being obvious that she is a Baha’i, she managed to obtain a certificate from a state organisation (noting her own evidence that Baha’is could not study at state organisations). The Tribunal considers her changing evidence undermines her credibility, and her claim to have been an obvious Baha’i who always wore identifying jewellery.
106. The Tribunal put to the applicant that her claims to have obtained her educational qualification (after high school) in [occupation 2] and the claim to have spent 4 years even just attending a university/[college] as a Baha’i, were undermined by the country information (see Annexure B).
107. She claimed to have undertaken:
· [an occupation 2] course for 6 months, 400 hours, in 2006.
· University degree in [Course 1], [in specified years covering this period]. The Tribunal asked the circumstances of her enrolment and whether she declared she was Baha’i. She said that she declared on her form that she was “others’ not “Shia”, and she had a meeting with the Dean and told him she is Baha’i and she is interested in this course, and she was allowed to do the course for 4 years but was informed that she would not be able to graduate.
108. The Tribunal noted that country information from [these years] and ongoing indicates that Baha’is couldn’t enrol in courses, there was a letter from the government requiring that Baha’is had to be expelled even if they were enrolled, many Baha’is were denied access to their national entrance scores (required to enter post-high school education); in essence everything was being done to deny Baha’is higher education. Further, contrary to her claim, it was not suggested in the country evidence that once Bahais were accepted to an institution, they would be allowed to remain for the duration of their course; instead, the information was that if they were known to be Baha’i, they were then expelled. The Tribunal put to her that it is difficult to accept that she attended a state institution and was not discovered to be Baha’i, and she was not prevented from obtaining her certificate, but instead actually obtained a certificate from the State authorities. Further, it was difficult to accept that she was obviously a Baha’i but was permitted to remain at her university/[college] for 4 years even though she was known from the very beginning to be Baha’i.
109. In response the applicant said that she agreed but she attended a private institution (she initially said that part of the time she attended the [occupation 2] course the institution was private; she then changed to say that it was always private). Given that the certificate has the state emblem on it, the Tribunal considers that her [occupation 2] course was a state-run and the certificate of completion in 2006 was bestowed by the state. She also claimed that the letter from the Iranian authorities ordering the expelling of Baha’is did not apply to private institutions, and there were a few people like her who went to these courses.
110. The Tribunal put to her that her suggestion that the Iranian authorities’ attitude (and specifically the Ministry letter) only applies to public institutions is contrary to the country information that it applies to both public and private. In response she said now there are Baha’i’s studying in schools and Baha’is are expelled when they seek to teach their faith or try to promote their religion. If she had wanted to study in a well-known or high-level university, she agrees that it would have been impossible to enrol and be able to study. She claimed that where she went was private, it was small, and they charged a lot of money and it operates in a different manner. She said that it was under the [Institute 1], and the Tribunal can investigate this. The Tribunal put to her that it had considered the country information, which it considers is contrary to her claims that she was allowed to be present and study for 4 years at a university/[college], as well as to study and receive a state certificate for [occupation 2].
111. The Tribunal is aware that country information indicates the general position, and that there can be exceptions to the rule. For this reason, it is cautious in relying upon country information to reject a particular claim. However, in this instance, various sources of country information referred to in Annexure B specifically undermine the applicant’s claims that the banning of higher education for Baha’is only applied to private institutions, including the USDOS 2006 which states: Public and private universities continue to deny admittance to Baha'i students. Further, the Baha’i World News articles do not say that Baha’i can enter private, but not public universities, and the letter from the Iranian authorities to expel Baha’i students is addressed to non-government institutions of study, including “[Institute 1]”, which appeared to be the institution housing the faculty the applicant claimed to have attended, although as there is no address for this university in the letter, the Tribunal does not rely upon this to find that the letter was addressed to her specific university/[college]. The Tribunal does however consider that the Ministry letter requiring the expulsion of Baha’s applied to both state and private institutions. The Tribunal also accepts the country information that Baha’i students, once known to be Baha’i, were expelled, from studying in both state and private facilities, and, having regard to the other concerns with the applicant’s credibility, the Tribunal is not prepared to give the applicant, a person who claimed that her religion was obvious and visible, the benefit of the doubt and find that she was an exception.
112. The Tribunal considers that the country information undermines her credibility and her claim that she was a Baha’i who managed to obtain a certificate for a state-run course, and that she attended university, as a known Baha’i for 4 years.
113. Thirdly, the Tribunal was concerned with the applicant’s evidence when asked why she did not tell an untruth about her religion in order to get her degree. While the Tribunal accepts that the applicant is not required to tell an untruth, given she claimed to have told an untruth in order to get married in Iran, the Tribunal noted that she claims to have been born a Muslim, her parents were prepared to pay a lot of money for her to study 4 years at a university where she would have no educational qualification to show for 4 years of study, and it asked her why she didn’t just claim to be a Muslim in order to obtain her degree. In response she said she could not do that as Baha’is do not lie at all. The Tribunal put to her that she did lie, for example on her marriage certificate. She said that the process is too fast, she is getting confused. The Tribunal repeated its concern that her husband in Iran had wanted her to lie about her religion when they married so that his job would not be adversely affected, and she did this, which shows that Baha’is do lie.
114. The applicant did not engage with the Tribunal’s concern that although she claimed Baha’is do not lie, she also claimed to have lied in order to get married. When asked to explain, instead of giving a reason for her changing evidence she just said her husband told her he was a Muslim, [an occupation 1] so he works for the government, and he said they will not do anything to affect his work so she had to say she was Muslim to get married. The Tribunal repeated to her its concern, saying that the marriage certificate where she claims to be a Muslim, is a lie, which indicates Baha’is do lie. The applicant did not explain why she was prepared to lie for a marriage certificate but not prepared to lie to obtain a degree. While there may be many reasons why these matters are different, the applicant was not able to explain the difference, which the Tribunal considers undermines her credibility.
115. The Tribunal considers that the above undermines her evidence and claims about her education and the discrimination she claimed to have experienced.
116. The Tribunal notes that in her s.424A response she stated that her marriage and divorce certificates record that her level of education is high school diploma or pre-university. She appears to rely upon this to support that she did not obtain a certificate from the university. The Tribunal notes that there can be a number of reasons why a person may not obtain a certificate from a university (they may not succeed in the requirements, or they may withdraw). However, although it is claimed that her marriage certificates refer to her educational qualifications; neither her first marriage certificate (from Iran) nor her second marriage certificate (from Australia) do so.
117. The Tribunal accepts that her divorce certificate dated [in] December 2020, translated 11 February 2021 that she provided to the Tribunal stated that her educational level was “Diploma or pre-university”, however this is a divorce certificate, not an academic proof of her educational level, and the Tribunal does not consider this assertion in a divorce certificate is evidence of her claims about her education.
118. The Tribunal considers that the applicant’s changing, unlikely and inconsistent evidence, her certificate obtained through a state organisation, and her omission to mention such a significant claim of educational discrimination undermines her claim to have been a Baha’i in Iran struggling to obtain education, subject to significant discrimination.
119. The Tribunal put the provisions of s.423A of the Act to the applicant, noting that if she did not have a satisfactory reason for not mentioning this claim before the Department then the Tribunal will be required to draw an adverse inference unfavourable to the credibility of this claim.
120. When the applicant was asked if there was any other reason for not mentioning this claim when her case was before the Department she said that it wasn’t asked of her. Given the applicant had multiple opportunities to present her claims both in writing and orally before the Department, the Tribunal is satisfied that the applicant does not have a reasonable explanation as to why her claim to have faced significant educational discrimination was not raised before the primary decision was made. Therefore, the Tribunal draws an adverse inference about this new claim. Even if it did not, however, draw an adverse inference by operation of s.423A of the Act, the Tribunal considers that the difficulties with this claim as referred to above undermine the credibility of this claim.
121. The Tribunal considers that her failure to mention the denial of her university education until the first hearing undermines her credibility and the claim that she was a Baha’i denied a significant educational opportunity.
122. Fifthly, the applicant provided inconsistent and changing evidence about her employment.
The period 2011-2016
123. In the applicant’s protection visa application form she claimed to have worked in the following jobs between 2011 and 2016:
· [March] 2013 – [January] 2015: [agency 2] employee, front desk, receiving items from customers and providing them with their receipts.
· [January] 2015 to [October] 2016: [a business 1] salesperson for “[Business 1]”
· [October] 2016 to [August] 2018: [occupation 3] for [Business 2]
· [January] 2018 – October 2018: [Occupation 5] for [Organisation 1]
124. This was inconsistent with her offshore visitor visa application to come to Australia lodged on 7 October 2016, where she claimed that her only job since 2011 was as a full-time [occupation 4] for a company, [Business 3]. This application was supported by a letter from her brother dated 1 October 2016 stating that he certifies and confirms that she has been employed full-time with the company since 2011 as a [occupation 4]. There is, however, no mention of any work for this company in her protection visa application form.
290. The Tribunal has not accepted the claims relating to her religion or arrest or detention. It has not accepted that the Iranian authorities are aware that her sister is a Baha’i.
291. The Tribunal finds that the applicant was able to leave Iran and return in 2016 with no difficulties, and that she was able to leave Iran again in 2018 with no difficulties.
Activities in Australia- refugee claims
292. The Tribunal put to the applicant at the first hearing that it has concerns with the credibility of her claims including her claim to be a genuine Baha’i, and as to her background. The Tribunal put to her that even if she engaged in Baha’i- related attendances and activities in Australia and even if she did make pro-Baha’i/ anti-government posts, if the Tribunal considers that she has done so in order to strengthen her claims then the Tribunal would have to ignore such activities when considering her refugee claims. Such a consequence was also referred to in the Tribunal’s s.424A letter.
293. Thus, while the Tribunal accepts that the applicant has engaged in activities while in Australia including attending Baha’i classes and activities to persuade people that she is a genuine Baha’i, and getting married at a Baha’i temple with her non-Baha’i husband, and posting about this on Facebook 1 year after her wedding and after she was first invited to hearing, and posting a few Bahai-related photos on Facebook (as discussed above), the Tribunal does not accept her assertion that she is a genuine Baha’i.
294. The Tribunal finds that the applicant undertook the Baha’i-related activities and actions referred to above in order to strengthen her protection visa claims and pursuant to s.5J(6) of the Act it disregards these activities for the purpose of determining her refugee claims.
Return to Iran
295. The Tribunal accepts that the applicant is a citizen of Iran, a Muslim woman who has previously been educated and worked in Iran. The Tribunal finds that she has never had any significant problems in Iran for any reason and has never suffered harm. She entered in and out of Iran in 2016 with no difficulties.
296. The Tribunal is prepared to accept that she was married in Iran to a Muslim man and she has divorced her first husband. It accepts that she married again here to a Muslim man who has been found in Australia to have converted to Christianity. The applicant has made no claims about her current husband despite having had multiple opportunities to provide any relevant information.
297. The Tribunal put to the applicant at hearing that it has to have regard to the report from the Department of Foreign Affairs and Trade (DFAT), and if it does not accept her claims, it may not accept that she faces a real chance of serious harm or real risk of significant harm if she returns to Iran.
298. The applicant was given numerous opportunities to put forward her fears if she was to return to Iran, and her claims were all centred upon her being a Baha’i, which the Tribunal has not accepted. The Tribunal has also not accepted that any of her claims relating to Baha’i activities in Iran are true. It has disregarded her Baha’i-related activities in Australia, and as it considers that she is not a genuine Baha’i it finds that she will not engage in any Baha’i related activities in Iran upon return.
299. As put to the applicant, paragraphs 5.29-5.31 of the DFAT report:
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.
300. The Tribunal does not accept that the applicant had any adverse profile, nor had received any adverse attention when she was previously in Iran. The Tribunal has disregarded activities in Australia and is not satisfied that there is any credible reason for the applicant to have an adverse profile upon return which would lead to her facing a real chance of serious harm.
301. The Tribunal is not satisfied on the evidence before it that there is any reason for considering that the applicant faces a real chance of serious harm if she returns to her home country Iran.
302. The Tribunal has considered the applicant’s claims individually, and on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past or future harm feared, as well as the relevant country information, other than those claims accepted above, the Tribunal rejects all the various claims made and finds that she does not have a well-founded fear of persecution for any of the reasons put forward by her.
303. The Tribunal does not accept that there is any credible evidence to support that the applicant faces a real chance of persecution in Iran. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
304. Having concluded that the applicant does not meet the criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
305. The Tribunal has accepted that the applicant is a Muslim woman who was educated and worked in Iran (although she was untruthful about the details of her education and employment), and was married in Iran and is married again. For the reasons discussed above, the Tribunal is not satisfied that the applicant has been truthful in her claims as to her religion, past harm, adverse attention, or adverse events in Iran. She has not claimed that she will suffer harm as a result of her current marriage for any reason, and it is not satisfied that the authorities are or will become aware that her sister is a Baha’i.
306. The Tribunal does not accept that the applicant (nor her family members in Iran) have experienced any of the past harm claimed. The Tribunal considers that she is a resourceful person who has family in Iran, who has worked before, has worked in Australia, and will be able to again work in Iran.
Activities in Australia- complementary protection / claims
307. The Tribunal explained to the applicant that it would not disregard her Australian Baha’i- related attendances, activities and actions when considering her complementary protection claims, but that it may find that she is not a genuine Baha’i and that these activities and actions have not been undertaken genuinely. The Tribunal said it would consider the country information including the DFAT report, and it may find that her activities in Australia would not have come to the attention of the Iranian authorities, and further if she is not a genuine Baha’i then she would not seek to engage in any Baha’i activities in Iran and thus would not while in Iran come to the adverse attention of the authorities.
308. The Tribunal noted that the DFAT report indicates that social media accounts are not being monitored because there are so many in Iran. She said she doesn’t know about now but when she was in Iran it was controlled and filtered, and she did not have a Facebook account in Iran. The Tribunal is not satisfied that the Iranian authorities are aware of or will become aware of the actions and activities that the applicant has done while in Australia in order to strengthen her claims to be a Baha’i (Facebook posts, attending classes and conferences and prayer sessions and the temple, and marrying in a Baha’i temple). The Tribunal is not satisfied that there is credible evidence that the applicant faces a real risk of being imputed or viewed as non-Muslim or anti-government or as a person of adverse interest to the authorities or society, leading to real risk of facing significant harm, for any reason (including her association with her sister or her current husband).
309. The Tribunal is not satisfied that the applicant will face a real risk of adverse attention or harm amounting to significant harm, from anyone, for any reason, in Iran.
310. On the evidence before it, and for the reasons discussed above, and having considered the claims singularly and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, namely Iran, that there is a real risk she will suffer significant harm. Accordingly, the Tribunal finds that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.
Conclusion
311. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
decision
314. The Tribunal affirms the decision not to grant the applicant a protection visa.
Christine Cody
Member
annexure a - Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted below.
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 below.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
Annexure B
Assessment for Baha'is in Iran, Minorities at Risk Project, 31 December 2003 [21]
[21] outlook for Baha'i in Iran is not good. Although the general political situation in Iran has improved since the election of President Khatami in 1997, the status of the Baha'i has worsened. A covert university which offered the Baha'i the only possibility for higher education was closed in 1998, and as long as the government is controlled by a Shi'i Muslim clergy that considers them heretics, the Iranian populace will maintain its prejudices against the Baha'i. …
In the economic sphere, Baha'i face discrimination by the frequent confiscation or plunder of their homes by government officers …. Seizure of personal property, in addition to the denial of access to education and employment…., is eroding the economic base of the Baha'i community. And in the political realm, the Baha'i are prohibited from expressing themselves freely …. and are restricted on their rights during judicial proceedings and on political organizing … Coupled with this ongoing discrimination is an explicit policy of group repression by the Iranian government. Arrests, show trials, and systematic domestic spying are all frequent occurrences that have been levied against members of the Iranian Baha'i community
‘Baha’is report Iranian government extends education ban’ Baha’i World News Service (11 August 2005)[22]
[22] yet another clear violation of the human rights of the Baha'is of Iran, nearly 1,000 Baha'i university-age students in Iran have been told they must accept identification as Muslims in order to enter university this year, the Baha'i International Community has learned.
… Baha'i students in Iran are unable to enter university, since it would amount to a renunciation of their faith, and would be used by the authorities as evidence of such renunciation.
US State Department 2006, ‘International Religious Freedom Report 2006 – Iran’ 15 September
Broad restrictions on Baha'is undermined their ability to function as a community. Baha'is repeatedly were offered relief from mistreatment in exchange for recanting their faith.
Baha'i cemeteries, holy places, historical sites, administrative centers, and other assets were seized shortly after the 1979 Revolution. No properties have been returned, and many have been destroyed. Baha'is were not allowed to bury and honor their dead in adherence to their religious tradition. Baha'i graveyards in Yazd and other cities have been desecrated, and the government did not seek to identify or punish the perpetrators. Public and private universities continue to deny admittance to Baha'i students. In 2004, for the first time, Baha'i applicants were permitted to take part in the nationwide exam for entrance into state-run universities. However, for those students who passed the exam, "Islam" was pre-printed as a prospective student's religious affiliation on the form authorizing their matriculation. This action precluded Baha'i enrollment in the country's state-run universities since a tenet of Baha'i faith is to not deny one's faith. Only a few students were allowed to enroll. In 2005, after similar treatment, no Baha'i students were accepted. A statement posted on Ayatollah Safi's official website during the reporting period reiterated the policy that Baha'is must be expelled from university once their affiliation was known.Baha'i faith group accuses Iran of discrimination, Reuters, 1 March 2007[23]
[23] universities expelled almost 70 students after discovering they were of the Baha’i faith and the country’s government is “turning a blind eye,” the Baha’i International Community said on Wednesday…. The community said Baha’i had been banned from universities in Iran for the past 25 years but that some 178 Baha’i students were admitted to various campuses last year after Tehran removed religious identification from entrance exam papers. Yet as universities became aware of the students’ faith, they were being expelled, Diane Ala’i, the Baha’i International Community’s representative to the United Nations in Geneva said in a statement.
“The high percentage of expulsions -- which are all explicitly connected to the students’ identities as Baha’is -- suggests at best that the government is turning a blind eye to discrimination in higher education,” Ala’i said.
“At worst, it is merely playing a game with Baha’i students,” she said, adding that another 191 Baha’i students had been unable to enter university due to a limited number of places or unknown reasons despite passing entrance exams.
Iran denied the accusation as “baseless information”.
Iranian Baha'i students shut out of vocational education
31 July 2007[24]
[24] Baha'is seeking to enter Iran's technical and vocational institutes have been effectively barred from admission for the coming academic year, since the application to sit for the entrance examinations leaves them with no option but to deny their faith, which Baha'is refuse to be coerced into doing.
The Baha'i International Community learned recently that the 2007 form for the entrance examination for undergraduate courses under the technical and vocational education system indicates that only one box may be marked for religion.
The applicant is given three choices - Zoroastrian, Jewish, or Christian - and if none of the boxes is marked, the form explains, the applicant will be considered Muslim. This is unacceptable to Baha'is.
"Under this system, Baha'is cannot fill out the application without a de facto denial of their faith, which is against their religious principles," said Bani Dugal, the Baha'i International Community's principal representative to the United Nations.
"Accordingly, Iranian Baha'is will not be able to take this entrance examination, and so they are effectively blocked this year from obtaining technical and vocational education in Iran.
"Such a denial of access to education violates the internationally established right to education, to which the government of Iran has agreed, and reflects yet another facet of Iran's continuing persecution of the Baha'i community of Iran," said Ms. Dugal.
The Baha'i International Community decries the government's actions not only against Baha'i students - who are deprived of higher education solely for their religious beliefs - but also against any other Iranian students who are being denied access to higher education on clearly insupportable grounds, such as for giving voice to beliefs or opinions that are not officially endorsed, Ms. Dugal said.
Last autumn, after more than 25 years during which Iranian Baha'is were outright banned from attending public and private universities, several hundred Baha'i students were admitted to various educational institutions around the country. This came about after the government stated its position that the reference to religion on entrance examination papers to nonspecialized universities and colleges did not identify university applicants by their religion, but only gave the religious studies subject on which they had been examined. This clarification was accepted by the Universal House of Justice, the international governing body of the Baha'i Faith.
The acceptance of Baha'i students at Iranian universities has, however, been short-lived, Ms. Dugal said.
According to the latest figures from Iran, of the Baha'i students who took the national entrance examination last year, ultimately some 200 were admitted and enrolled. Over the course of the school year, however, over half that number - at most recent count, at least 128 - have been expelled as school officials discovered they were Baha'is. This has led observers to conclude that Iran's statements last year were nothing more than a ruse intended to quell international protest over the denial to Baha'i students of access to higher education.
"This latest news about the registration form for technical and vocational education only serves to further confirm that Iran continues to play games with Baha'i students in their country, and that its promises of access to higher education for them are hollow," said Ms. Dugal.
Confidential Iran memo exposes policy to deny Baha'i students university education, Baha’i Wordl News Service, 27 August 2007[25]
[25] Baha'i International Community has received a copy of a confidential 2006 letter from Iran's Ministry of Science, Research and Technology instructing Iranian universities to expel any student who is discovered to be a Baha'i.
The letter refutes recent statements by Iranian officials, who say Baha'i students in Iran face no discrimination - despite the fact that more than half of the Baha'i university students enrolled last autumn were gradually expelled over the course of the 2006-2007 academic year.
"This latest document, which flatly states that Baha'i students should be expelled from universities once they are discovered, proves unequivocally that Iranian authorities remain intent on utterly blocking the development of Iranian Baha'is, despite what they say to the outside world," said Bani Dugal, the principal representative of the Baha'i International Community to the United Nations.
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The letter is addressed to 81 universities/places of education which include numerous non-governmental and non-profit institutes for higher education/universities, and it states:
Greetings, Respectfully, we inform you that in accordance with decree number 1327/M/S, dated 6/12/69 [25 February 1991], issued by the Supreme Revolutionary Cultural Council and the notification of the responsible authorities of the Intelligence [Office], if Bahá’í individuals, at the time of enrolment at university or in the course of their studies, are identified as Bahá’ís, they must be expelled from university. Therefore, it is necessary to take measures to prevent the further studies of the aforementioned [individuals] and forward a follow-up report to this Office.
( right of Baha'is to education in the past year' (1 April 2009)[26]
[26] deprivation of education to Baha'is in the year 1387 Sh [March 2008 - March 2009] can be divided into stages enforced by the Ministry of Intelligence and its security arm in the Ministry of Education.
Last year - that is, the year 1387 - we witnessed that many Baha'i students were not allowed to participate in the national college entrance exam. Many Baha'i students were deprived of their right to education, since the result of their exams was not reported and their files were shown as incomplete. This also took place in the previous year [1386], and the number of persons who were declared to have "incomplete files" was reported to be 800. Given that the Yaran ["Friends in Iran", a now defunct group, which previously had an ad hoc supervisory role for the Baha'i community of Iran] were in prison during most of last year, accurate statistics were not available, but it could be estimated that the number of those who were told that their files were "incomplete" was between 800 to 1000 during the year just completed.
In the year 1387, although a few Baha'i students received their report cards during the college entrance exam, a new trick was used to prevent them from entering many universities, such as the University of Shiraz. Baha'i students discovered during the registration process, that was suppose to take place online, that only five choices were available for religion: Shi'a and Sunni Muslim, Christian, Jewish, and Zoroastrian. Applicants who did not select one of these five choices were unable to register! In this way, many Baha'is were deprived of higher education in universities, which is in contradiction to paragraphs 3, 9, and 14 of article 3, as well as articles 14, 19, 20, and 30 of the [Islamic republic of Iran's] Constitution.
After some Baha'i youth were admitted into universities in year 1387, regrettably just as many were expelled, and in February and March we witnessed the intensification of these expulsions. Currently very few of those Baha'i students are enrolled in universities. These few students who are still enrolled have no "educational security" whatsoever and may also be expelled at any moment. Hereunder, we describe briefly the accounts of entry, expulsion and deprivation of a few of these deprived Baha'i students who in cooperation with this committee have submitted their appeals.
The above was reached through a link from the Australian Baha’i community website:
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Citations1922268 (Refugee) [2022] AATA 4404
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Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22MZWMF v Minister for Immigration and Multicultural Affairs [2006] FCA 780Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20-