EBY17 v Minister for Immigration

[2018] FCCA 930

FEDERAL CIRCUIT COURT OF AUSTRALIA

EBY17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 930

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether there is a jurisdictional error by reason of the Authority’s characterisation of the law as a law of general application and as a law that is not discriminatory – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DB, 476

Cases cited:

Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at [19]-[21], [72]
MZZJO v the Minister for Immigration and Border Protection [2014] FCAFC 80
Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548

Applicant: EBY17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2830 of 2017

Judgment of: Judge Street

Hearing date: 28 February 2018

Date of Last Submission: 28 March 2018

Delivered at: Sydney

Delivered on: 17 April 2018

REPRESENTATION

Counsel for the Applicant: Mr J Williams

Solicitors for the Applicant: Barriston Lawyers

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: MinterEllison

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2830 of 2017

EBY17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 8 August 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Iran, and her claims were assessed against that country. The applicant claimed to fear harm by reason of having worked for an opposition candidate in the 2009 election, and having participated in a demonstration. The applicant also claimed that she had been detained, raped and beaten in 2009 for demonstrating against the government and feared persecution for being perceived as a Christian because her brother had married a Christian woman.

3. The applicant arrived in Australia as an unauthorised maritime arrival on 31 October 2012. On 10 September 2015, the applicant lodged an application for a Safe Haven Enterprise Visa.

4. On 14 March 2017, the delegate found the applicant failed to meet the criteria for the grant of a protection visa. The delegate did not accept that the applicant had been arrested, detained, raped and beaten in 2009 for demonstrating against the government and did not accept the applicant was arrested, detained and accused of converting to Christianity. The delegate also referred to the applicant’s claim of being harassed in the street by authorities for minor offences such as wearing makeup and nail polish, and that on one occasion, she was arrested and detained overnight for not wearing her hijab correctly.

5. The delegate made reference to the DFAT Country Information Report dated 21 April 2016 that women would rarely be formally punished for contraventions of rules around hijab and that women would be more likely to be escorted to a police station and asked to have a member of the family bring an acceptable hijab after which they could leave without sanction.

6. The delegate also made reference to the claim appearing to arise from the State implemented laws and that generally speaking, the enforcement of a generally applicable law does not ordinarily constitute persecution. The delegate said in this case:

   I find that the law of appropriate dress in Iran, and the applicant’s failure to comply with that law will not entitle her to be considered a person who engages Australia’s protection obligations.

The Authority’s decision

1. On 20 March 2017, the Authority wrote to the applicant, informing the applicant that the application for a protection visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could receive new information. The letter provided an attached fact sheet and practice direction, giving the applicant an opportunity to put on new information and submissions.

Information before the Authority

1. The applicant provided written submissions to the Authority which were referred to in the Authority’s reasons. The Authority identified the background to the visa application, and had regard to the material referred under s 473CB of the Act. The Authority identified the substance of the submissions and why the applicant considered the delegate’s decision was wrong. Reference was made to the applicant having commented on problems with the interpreter at the departmental interview. The applicant made reference to having begun answering questions directly around the 29 minute mark, and that the delegate in its decision noted that no material information that might impact on the outcome was discussed prior to the 29 minute interval of the interview.

2. The Authority made reference to the applicant’s argument that her answers were vastly different to what was interpreted, so without knowing what she was saying the delegate could not claim that nothing of material importance was missed. The Authority noted the applicant asserted that either these questions needed to be interviewed again, or that they needed to be asked in writing. The Authority noted the applicant has not stated or given examples of what answers were vastly different from what she said.

3. The Authority did not consider the general concern that the applicant had with the interpreter to be new information, as this was already raised in her departmental interview. The Authority noted a representative submitted to the delegate that the applicant had concerns that the interpreter was not interpreting what the applicant was saying, without identifying any misinterpretations. The Authority noted that the applicant stated she was happy to continue without the assistance of the interpreter.

4. The Authority noted the applicant’s statement that certain questions were vastly different to what was interpreted, and considered that to be new information. When given the absence of any specific examples as to what was vastly different, the Authority was not satisfied there are exceptional circumstances to consider that new information.

5. The Authority also referred to a request for an oral or written interview. Having listened to the recording of the protection visa interview, the Authority was satisfied that the applicant was able to present her claims to the delegate and respond to questions for information. The Authority noted the representative’s submission that at the end of the interview, the applicant did have concerns about what the interpreter was saying but was happy to continue without the assistance of the interpreter. The Authority referred to s 473DB of the Act, that the Authority must conduct the review by considering the material referred to it by the department, without interviewing the applicant.

6. The Authority noted that while it may get new information, it can only do so in very limited circumstances. The Authority found the applicant had had an opportunity to put forward her case before the delegate prior to the decision being made and that was she was represented by a migration agent who provided a submission. It was in those circumstances the Authority was not satisfied it was necessary to hold an interview or to give an opportunity to put submissions in writing.

The Authority’s consideration of the applicant’s claims

1. The Authority then referred to the applicant’s claims, which relevantly were identified in an attachment to the application for the visa. The applicant alleged in May 2009 that she started working for the opposition candidate in one of the electoral campaign offices and handed out posters and flyers informing the public of his policies. The applicant alleged she did this until June 2009.

2. The applicant alleged that on 15 June 2009, the applicant went with friends to a particular place and marched to protest the election result. The applicant alleged that while marching they were attacked by the Basij with tear gas. The applicant alleged she was hit and taken by the Basij in a car to a house 10 or 15 minutes away and was imprisoned for two nights and that the Basij told her she would be jailed for years and she would be killed for protesting against the government. The applicant alleged on both nights she was beaten and raped. The applicant alleged because she was bleeding so much they could not bring a doctor to the house, that they released her after two nights and threatened if she told anyone about this or joined another protest against the government they would find her and kill her.

3. The applicant alleged she went straight to a doctor to be checked who referred her to a psychologist. The applicant alleged she was so afraid to leave the house she saw the psychologist for six months and was prescribed various medication to help with depression and panic attacks she was having as a result of the rape and imprisonment.

4. The applicant alleged she was stopped regularly by police in her area for wearing nail polish, makeup and was put in jail overnight for not wearing a hijab properly. The applicant alleged the jail was located at a particular police station in Tehran.

5. The applicant alleged in November 2009 their house was raided while she was at university. The applicant alleged her aunt and mother were attacked by people she believes to be the police. The applicant alleged in 2012 she attended her brother’s wedding, and after returning from the trip she continued her university. The applicant alleged she talked to friends about her brother’s wedding and how his wife was a Christian. The applicant alleged she was taken by the Basij to the house and that they interrogated her and accused her of being a Christian. The applicant alleged they threatened to kill her and kept her in the house for one night. The applicant alleged the next morning they told her she could not return to university.

6. After this, the applicant alleged she decided to flee Iran. The applicant alleged that she did not mention the full extent of her reasons for leaving Iran in her initial interview because she was terrified and embarrassed to talk about the rape and torture. The applicant also alleged that the interviewing officer told her to just give her reason for coming to Australia minus the story.

7. The applicant referred to her family being under suspicion of being Christian because her brother is married to a Christian and her mother is actively considering converting to Christianity. The applicant also alleged that she has commenced a relationship with a Christian, being an Australian citizen.

The applicant’s alleged assistance in a particular electoral office

1. The Authority made reference to the applicant’s submissions in relation to the assistance in the particular electoral office. The Authority noted that the applicant in her interview on 16 January 2016 stated she feared harm from the authorities because she was active against the government. The applicant alleged during the election she was an activist for a particular person and that the other person won, and the people went to the streets. The applicant alleged there were a lot of demonstrations and she was arrested, threatened, tortured mentally and they raped her.

2. The applicant alleged the candidate who was the activist which she was supporting, had an electoral office next to her house. The applicant alleged her job was to distribute posters or pamphlets on the streets where the people were. The applicant alleged that written in the pamphlets was what the candidate was going to do. The applicant alleged the candidate was a reformist and wanted to make changes to get some freedom. The applicant was asked to describe what changes he wanted to make, and the applicant responded freedom of speech and more freedom for ladies or feminists. The applicant alleged that the people did not like the person who won, as he was on the supreme leader’s side and the people did not like him.

3. The Authority made reference to the applicant being asked to be more specific and detail about how the candidate was going to achieve his policies of freedom for woman in Iran. The applicant repeated that he was a reformist and he wanted to improve society for women as they were oppressed in Iran for many reasons. The applicant asserted that they could not have a proper job or live with freedom, if the other candidate was chosen, as he would not let this be done. The applicant alleged that prior to that candidate, the moral police were not as strict or severe but after they got in, they were given more power to pick on women.

4. The applicant alleged her candidate said he would reduce the pressure on women and give them more freedom to study and work, as well as working in the environment with men. The applicant also alleged because of sanctions on Iran there were lots of limitations on things such as medication, and that her proposed candidate would reduce that and make it a bit better for the people. Asked what other policies the candidate represented, the applicant repeated sanctions and women. The applicant said the sanctions were limiting all the products and parts for aeroplanes. The parts would not come to Iran, and that the candidate was trying to remove those sanctions. The applicant said it was not just women’s freedoms, it was for sanctions against the planes.

5. The Authority referred to the applicant being asked by the delegate whether she had any other roles in the electoral office other than distributing pamphlets and the applicant said she tried to protect the candidate as the society was tired of the person who won and his ideas. The applicant alleged that her candidate was really wanting to make Iran a better place and that he had been under house arrest. The applicant alleged that people went into the street wanting him to be their leader. The Authority found the response did not adequately answer the delegate’s question in relation to the roles of the applicant in the electoral office.

6. The Authority also referred to the applicant saying she started working in the candidate’s office after the Iranian New Year and that the applicant said she had to go to university and all her university friends were talking about how good the candidate was, his ideas, and so they started talking and decided to go for him. The applicant alleged she worked at the office for two or three months, that she was not paid but was a volunteer and one of the offices was up the road, 10 minutes from her house. The Authority referred to the applicant alleging that she just walked in and asked them, telling them she had more time. The applicant alleged she talked to people, knocking on the door and explaining things to them, or just gave them a flyer.

7. When asked whether the applicant had been involved in politics prior to this time, the applicant answered yes. The applicant alleged people were tired and they would go out in the street for anything, like when someone had died in jail, the people would strike or protest. The applicant alleged that if someone had been on a hunger strike and died, people would go on the street and she would go, as she was one of those not in favour of the government.

8. The Authority made reference to the fact that the applicant participated in an arrival entry interview with the Department of Immigration on 19 November 2012. The Authority made note of having listened to the recording of the interview and noted that the interviewing officer asked the applicant to provide only her reasons for leaving Iran, but not her story. The Authority noted the applicant was told to give short sentences and general problems. The Authority noted the applicant said she was scared and that she had problems with the police.

9. The Authority noted the interviewing officer asked the applicant what the problems were with the police, and the applicant stated they invaded her house and that she had problems with the Islamic Guidance Patrol if they had parties or gatherings they would raid her house and take everyone with them. The Authority noted the applicant alleged she was detained for one night because of her hijab and that they picked on her.

10. The Authority noted that the interviewing officer asked the applicant if she or any member of her family had been associated or involved in any political group or organisation, and that the applicant responded no. The Authority also noted that the interviewing officer asked her if she or any of her family members had been involved in any activities or protests against the government, and that she had responded yes, she participated in some rallies and demonstrations because there was fraud in the election in 2009.

11. The Authority noted that at the beginning of the arrival interview, the applicant was told the interview was her opportunity to provide any reasons why she should not be removed from Australia and that she was expected to give true and correct answers to the questions asked. The Authority noted the applicant was told that if the information she gave at any future interview was different from what she told now, this would raise doubts about the reliability of what she had said.

12. The Authority noted the applicant was advised that the department was careful to protect the privacy of all information given by her during the interview and that it would not be made available to authorities in her country of habitual residence. The Authority noted the applicant responded with an interpreter in the Persian language. The Authority noted that the applicant said she understood what had been said to her.

13. The Authority then referred to the applicant’s statement of claims and her explanation for not mentioning the full extent of her reasons for leaving Iran was because she was told to give reasons minus the story. The Authority accepted that to be the case. The Authority said however, that despite this, the applicant clearly said no when she was asked if she had any association or involvement in a political group or organisation. It was in those circumstances the Authority said that it was not satisfied the applicant was involved or worked as a volunteer in the candidate’s electoral office as claimed.

14. The Authority found the applicant’s knowledge of the policies of the candidate lacking in substance and depth for someone who had purportedly handed out pamphlets for two or three months and went door knocking and explaining to them things. The Authority observed that it would expect someone in that situation to know more about the candidate’s policies other than just broad statements about advancement of women, and the end of sanctions in relation to medication and aeroplane parts.

15. It was in those circumstances that the Authority found and was satisfied that the knowledge was not lacking in substance due to any interpreter issues. The Authority found the applicant was rather evasive when asked about the possible other roles she had undertaken for the candidates electoral office. The Authority found her response was generic in nature. The Authority observed the applicant made no attempt to answer the question she had been asked in relation to her roles. It was in these circumstances the Authority considered that the applicant had fabricated her story of working in the candidate’s electoral office to embellish her claims and heighten her political profile.

The applicant’s alleged detention and sexual assault

1. The Authority then turned to the applicant’s claim of alleged detention and sexual assault. The applicant claimed that the candidate told everyone to go to a few different locations on 15 June 2009 to protest against the corrupt election results. The Authority noted that the applicant alleged that while the applicant was marching, the Basij attacked her and her friends with tear gas and had a gas canister land at her feet and she was not able to see anything because of the pain. The applicant alleged she felt three hard blows on her back, from what she thought was a baton, and was then driven to a house 15 minutes away and imprisoned for two nights, mentally tortured and raped.

2. The Authority noted that along with the protection visa application, the applicant had provided four medical letters. The Authority referred to the first letter, being a medical certificate in translation from a gynaecologist which certifies the applicant attended her practice on 17 June 2009 with heavy bleeding and a history taken from her that she had been raped. The patient was examined in the clinic, and the injury in the tortured area was repaired using Chromic 2 Zero, and she was released in good condition.

3. The second document was a medical certificate in translation from a psychiatrist Dr H, dated 15 June 2015 which stated that the applicant attended his practice on 11 July 2009 after being sexually assaulted, and referred to rape and mental torture in detention, and that the applicant was under his individual counselling and treatment on a weekly basis for a period of six months. The Authority noted that the second document states the after partial recovery, the applicant attended monthly group therapy and counselling sessions for almost a period of one year.

4. The Authority noted the third letter dated 27 August 2015, was from the applicant’s clinical psychologist in Australia where the applicant had been referred for anxiety and depressive symptoms, which had recently escalated in response to termination of a pregnancy.

5. The Authority noted that the last letter was a medical certificate from a medical practitioner in Australia and stated that the applicant had an abortion due to financial difficulty and not being stable in regard to her visa.

6. The Authority noted that at the protection visa interview the delegate asked the applicant what role the applicant had played at the protests. The Authority noted that the applicant said they usually walked together saying “they are cheating”, “it was not right” and that “the candidate had to come up”, “the government did not care” and that “they did not want the other candidate.”

7. The applicant alleged it was a few hours before she was arrested and they were walking up the street, and that she had been with about 12 of her friends from university. The applicant alleged that after they had been walking for a while Basij on motorbike started shooting tear gas, and one landed at her feet and she could not see anything and that it was so painful. The applicant alleged her friends ran away, and that she had been hit on her back, and she was put in a car and taken, and she did not know where she was going and that other people who had been arrested were there. The applicant said she did not know how many were arrested, and her eyes were burnt and she was feeling sick. The applicant was asked if she had been restrained in the car and she responded that they just put her in the car which was a big van sort of thing.

8. The Authority noted that the applicant was asked what happened when she got to the house, and that the applicant said that after a while she got better and asked if she could call her family but that they would not let her and told her the next time she would see her family would be in her coffin. The applicant allegedly begged them to call her family, but they would not and kept her there all night. The applicant alleged she was raped and tortured mentally.

9. The Authority noted that the delegate told the applicant there was no need to describe the sexual assault, but she could describe the house. The applicant described the house as not too big and that everyone was crying and upset. The applicant said she could see they were about to die. They were so injured and that they would not call an ambulance and that there were no doctors coming in. The applicant alleged she was there two nights.

10. The Authority noted that the delegate asked the applicant how she was released, and the applicant said that the injured people bled so much and an ambulance would not come. The applicant alleged they just let them go, and threatened that if they told anyone what had happened, they would find them and kill them. The applicant alleged she was bleeding at the time and she was put in the back of a car, put an eye mask on her so she could not see where the house was, drove away and then let out of the car. The applicant alleged she got a taxi and went straightaway to the doctor. The applicant alleged the Basij were responsible for this, as they were not in uniform. The applicant alleged that if the police arrest you they take you to the station and wear a uniform.

11. The Authority made reference to the applicant’s arrival interview and that no mention had been made of her being detained during the protest. The Authority noted although the applicant did mention participating in rallies and demonstrations because of the fraud in 2009, her only stated detention was in August 2012 when she was detained for one night because of her hijab. Asked whether the police, or security or intelligence organisations impact on the applicant’s day to day life, the applicant stated they were stressed going out of the house, thinking the police or Islamic Guidance Patrol might arrest them for no reason. Asked if armed groups, political groups or religious groups operated in the areas where the applicant lived, she responded that the Basij hit people with arms, tear gas and batons.

12. The Authority made reference to noting that the applicant in her statement of claims said she had not mentioned this incident because firstly she was terrified at the time and embarrassed to talk about being raped and tortured and that she was told to give the reasons she came to Australia minus the story.

13. The Authority made reference to having listened to the recording and was not persuaded the applicant was terrified at the time she was interviewed. The Authority expressly found the mood of the interview was relatively relaxed despite its seriousness. It was in these circumstances that the Authority made reference to accepting that applicants who have suffered sexual violence, may find it extremely difficult to discuss, but did not accept that this would account for no mention of the fact of detention.

14. It was in those circumstances the Authority made reference to the interviewing officer who had told the applicant he did not need the full story, only the reasons. The Authority made reference to the delegate having put concerns about the inconsistencies between the arrival interview and her statement of claims and the applicant said she was in a detention centre at the time she was afraid she would be sent back to Iran or PNG, and she was only 21 years of age at the time.

15. The Authority made reference to understanding the sensitive nature of the alleged rape whilst the applicant was purportedly detained by the Basij, but was not satisfied the applicant was detained, raped and mentally tortured as claimed. The Authority accepted the applicant took part in protests following the elections in 2009. The Authority noted that the applicant mentioned this in her arrival interview, in her statement of claims and confirmed that at her protection visa interview. The Authority made reference to there being country information supporting there being large scale protests, known as the “Green Movement”, following the 2009 re-election.

16. The Authority found the applicant’s description of events given in her statement of claims was provided almost verbatim at the protection visa interview. The Authority made reference to the applicant being asked to describe the house, despite being kept there for two days, but she could say nothing more than it was a house and everyone was just there, not a too big house. The Authority made reference to the applicant not giving an estimate of the number of people being held there, only that everyone was crying and upset. The Authority observed that whilst detention would be traumatic, the Authority would expect more details surrounding the event to have been forthcoming.

17. The Authority made reference to the two medical certificates provided by the doctors in Iran and observed that on their face, they do corroborate the applicant’s claims, but they are difficult to verify and lack substantive detail. The Authority then descended into addressing the gynaecologist’s medical certificate, having some detail, but a fairly basic description of the injuries and the applicant’s condition, and that the psychiatrist’s medical certificate was one long sentence and lacked detail and provided no information about an actual diagnosis. The Authority made reference to having significant concerns about the applicant’s evidence in relation to the matter and, accordingly, gave the documents no weight. The Authority noted that there was no reference in the letter from the psychologist about the alleged detention and rape, only a reference to past trauma.

18. The Authority accepted the applicant took part in a protest following the election, like many thousands of others, but not that she was detained, mentally tortured or raped. The Authority did not accept that the applicant’s house was raided in November 2009. The Authority did not accept that the applicant worked in any capacity for the candidate’s electoral office. The Authority found, nearly eight years after the election and protest, the authorities would have no ongoing interest in the applicant.

19. The Authority made reference to the country information in relation to lower profile activists arrested in the 2009/2010 protests subsequently being released and unlikely to face serious ongoing harassment and should normally be able to go about their daily lives. It was in this context that the Authority observed the applicant did not receive a prison sentence and was not subject to corporal punishment.

20. The Authority also observed that the applicant travelled in and out of Iran lawfully since 2009. The Authority observed that in 2010, the applicant went to China and Malaysia and in 2012, the applicant travelled to Belarus and departed on her journey to Australia. The Authority noted that, on none of these occasions, did the applicant experience any problems with the authorities. The Authority found that there was no evidence to suggest that the applicant had been politically active in Australia or plans to be politically active if she was returned to Iran.

The alleged incident of the applicant’s aunt

1. The Authority then referred to an alleged incident involving the applicant’s aunt and the stabbing of her aunt when her house was raised while she was at university. The Authority referred to the fact the delegate noted that the applicant provided different explanations for the raid in her arrival entry interview and that the applicant had been reminded by the delegate that at the entry interview, she was given an opportunity to provide her claims and to be honest and accurate with the information she provided and that she confirmed yes.

2. The Authority was not persuaded by the applicant’s reasons for not mentioning her aunt’s stabbing in the entry interview. The Authority’s reasons in this regard say “PV interview”. It is apparent on a fair reading of the Authority’s reasons, that that is a reference to the entry interview and that is made clear from the next sentence which refers to the PV application lacking detail as to the circumstances surrounding the events for reasons why it might have occurred. The error in relation to the reference to “PV interview” in paragraph 26 is an obvious typographical error and there is no material consequence in relation to the Authority’s reasoning as a result of that error or any misunderstanding of the applicant’s claims.

3. The Authority was not convinced that the applicant was scared despite her youth and that the applicant specifically stated she sought protection in Australia because she liked Australia compared to other countries she had been to. The Authority took into account even though the applicant was 21 years of age at the time, she was relatively well-travelled and was in Australia with her mother, brother and sister-in-law. It was in these circumstances, the Authority was not satisfied that the applicant’s home was raided in November 2009 by authorities and that her aunt was stabbed during the incident.

The Basij and the hijab

1. The Authority then referred to an alleged incident involving the Basij and the applicant being detained overnight. The Authority made express reference to country information before the delegate indicating the Iranian authorities can take a heavy-handed approach when periodically enforcing standards of Islamic conduct in the community, including Islamic dress.

2. The Authority made reference to DFAT information that women would rarely be punished for contraventions of rules around hijab and that the country information supported that women would more likely be escorted to the police station and asked to have a family member bring an acceptable hijab after which they could leave without sanction.

3. The Authority referred to country information and accepted it as plausible that the applicant was stopped by the Basij for wearing makeup or nail polish and that she was detained for not wearing the correct hijab.

4. The Authority then referred to the applicant’s claim that she was detained by the Basij after attending her brother’s wedding to a Christian woman in Belarus. The Authority mentioned that no specific date of this wedding had been provided or when she purportedly was detained, but said that after the trip she continued to go to university.

5. The Authority made reference to the arrival entry interview in which the applicant said she spent 50 days in Belarus, however, in the protection visa application the applicant said that she was in Belarus for a much shorter period.

6. The Authority noted the information provided by the applicant about the protection visa interview to the delegate about when it was she attended the university and that the delegate asked for more information about the arrest at the university and how the authorities found out about her conversations with friends. The Authority noted the applicant responded that when you talk, it goes around and her friends would tell others that she had been to church in Belarus and that they would find out easily. The applicant thought it happened at the end of July as her exam was in August and she could go to her exam.

7. The Authority asked who arrested her and the applicant said that every university has an office and that they called her. The Authority described that applicant’s assertions in relation to how she was taken to a house in the suburbs and they told her she converted to Christianity and had been advertising it. The applicant alleged she was accused of telling her friends and people had told them that she had been saying her sister-in-law said Christianity was good and Jesus was coming back and those sorts of things. The applicant alleged that, at the house, they told her that they had the right to kill her because she had converted.

8. The applicant said she was detained overnight and the next day she was released and told never to go back to university. The applicant alleged when she got home, she could not tell her father as he would be angry, and that she told her mother and brother what happened, and that she could not go to university and she could not find a job and could not live normally. The applicant alleged one month after, her father and brother came in and said to her to go to Australia.

9. The Authority was not satisfied the applicant was detained in late July 2012 by the Basij at her university as claimed and accused her of converting to or for advertising Christianity. The Authority provided five detailed reasons in support of this adverse finding.

10. The Authority made reference firstly to the event not being mentioned in the entry interview.

11. Secondly, given her claimed fear of the authorities in general, the Authority was surprised that she would discuss openly her experiences of attending church in Belarus, where she knew the Basij operated, and did not find that to be credible.

12. Thirdly, the Authority found the applicant’s evidence, when asked questions in relation to her arrest, to be somewhat evasive and that she gave no detail about the attention.

13. Fourthly, the Authority was not satisfied the applicant did attend a summer semester as claimed and was of the view that the applicant had changed her evidence from what she had said at her arrival interview, in order to present as credible her claim that she had attended summer school.

14. Fifthly, the Authority found that other members of her family, such as her father and mother, would have been expected to be questioned about the matter, given it was their son who married a Christian, and given she claimed the family were under suspicion.

15. The Authority found there was no evidence to suggest the family members were questioned by the authorities, or were considered of interest to the authorities. It was in these circumstances, the Authority was not satisfied that the applicant was a credible witness.

Assessment of Refugee Convention criteria

1. The Authority did not accept the applicant worked for the candidate’s electoral office prior to the 2009 elections. The Authority accepted the applicant took part in a protest following the 2009 elections, but did not accept that she was temporarily blinded by tear gas, detained, raped and mentally tortured by the Basij for two nights. The Authority did not accept the applicant’s statement of claim that the police stabbed her aunt in November 2009.

2. The Authority accepted the applicant no longer practices Islam and considers herself to be agnostic. The Authority made reference to country information and association with Christians. The Authority was not satisfied the applicant’s social links to Christians give rise to a well founded fear of harm, and was not satisfied the applicant faces a real chance of serious harm on these bases.

3. The Authority found the applicant was a low level protester following the 2009 election and was not arrested. The Authority found the applicant did not have a profile as a political activist. The Authority found there was no evidence that the applicant has any intention or interest in being politically active on return and was satisfied the applicant does not face a real chance of harm on this basis.

4. The Authority was not satisfied, that on the applicant’s return to Iran, if the applicant is again pulled up for wearing makeup or nail polish, or if she were temporarily detained as in the past for wearing an incorrect hijab, this detention would amount to serious harm.

5. The Authority also considered a requirement to observe Islamic dress code including wearing a hijab, a law of general application and was not satisfied on the evidence, that these laws relating to dress are discriminatory, or are applied in a discriminatory way or are selectively enforced. The Authority was not satisfied the applicant faces a real chance of harm, on this basis of wearing a hijab or nail polish.

6. The Authority then turned to the applicant being a person who had sought asylum in Australia. The Authority was satisfied the applicant would not attract the adverse attention of Iranian authorities, and whilst the applicant may be questioned and even detained for a brief period as a returnee, the Authority was not satisfied this treatment of being questioned or detained briefly would amount to serious harm.

1. The Authority had regard to all the evidence and considered the applicant’s claims individually and in their totality; her participation in a political protest, her possible overnight detention for wearing incorrect hijab, being a non-practising Muslim with a Christian sister-in-law and being in a relationship with an Australian citizen. The Authority was not satisfied that the combination of these factors would put her at risk.

2. The Authority found the applicant did not have a well-founded fear of persecution on these bases. The Authority found the applicant did not meet the definition of refugee in s 5H(1) of the Act and the applicant did not meet the criteria under s 36(2)(a) of the Act.

Assessment of Complementary Protection criteria

1. The Authority found that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned from Australia to Iran, there is a real risk the applicant would suffer significant harm. The Authority found the applicant failed to meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. The grounds of the amended applications are as follows:

   Ground 1: There was an insufficient logical or evidentiary basis for the IAA to reject the applicant's claims regarding her voluntary work for the an oppositional candidate in 2009, on the basis of the entry interview

   1. There was an insufficient logical or evidentiary basis for the IAA to reject the applicant's claims at [15] of the decision record, regarding her work for an oppositional candidate in the 2009 elections, on the basis of the entry interview, given her explanation at [7] that she did not mention the full extent of her reasons for leaving Iran in her initial interview because she was terrified and embarrassed to talk about the rape and torture; given she was told by the interviewing officer to “just give her the reason for coming to Australia minus the story” at [7] which was accepted by the IAA at [13] after listening to recording; and having due regard to the supporting medical evidence at [17]. The IAA therefore misapplied the relevant principles or asked the incorrect question with regard to the information provided at the entry interview as being a full, proper or final account of the applicant's claims when she is entitled to an opportunity fully develop her claims subsequently according to law.

   Particulars

   Protection claims

   a) From [1]-[2]; [7] and [8] of the decision record, the applicant was born in 1991 and is a twenty six (26) year old female citizen of the Islamic Republic of Iran (Iran) who claims protection in the Commonwealth of Australia under the refugee criterion on the grounds of her religion, political opinion and membership of a social group and under the complementary regime, including death, torture, cruel, inhuman or degrading treatment, for (i) working with an opposition candidate in the 2009 election, for (ii) her detention, rape and beating over two nights, from which she suffered psychological and physical trauma, after participating in a demonstration in 2009 against the Iranian authorities; (iii) for her adoption of western values and lifestyle and her opposition to the doctrines of Islamic extremism, including the dress code, for which she was jailed overnight, and (iv) for her conversion to Christianity, where she was detained by the Basij, interrogated and threatened with death and barred from the attending university.

   The entry interview

   b) At [7], the second bullet point from the bottom of the page, the IAA observed that the applicant did not mention the full extent of her reasons for leaving Iran at the entry interview.

   7 ....

   • She did not mention the full extent of her reasons for leaving Iran in her initial interview because she was terrified and embarrassed to talk about the rape and torture. Secondly, the interviewing officer told her to just give her the reason for coming to Australia minus the story.

   c) From [13] to [14], the IAA formally addressed the issue of the entry interview. At [13], the IAA listened to the recording of the interview and noted that the interviewing officer asked the applicant to provide only her reasons for leaving Iran but not her story.

   13. The applicant participated in an “arrival entry” (arrival) interview with the Department of Immigration on 19 November 2012. I have listened to the recording of the interview and note the interviewing officer asked the applicant to provide only her reasons for leaving Iran but not her story. She was told to give short sentences and the general problems. She said she was scared and said she had problems with the police. The interviewing officer asked what her problems with the police were. She stated they invaded her house and she had problems with the Islamic Guidance Patrol if they had parties or gatherings they would raid their house and take everyone with them. She was detained for one night because of her hijab, they picked on her. The interviewing officer asked if she or any member of her family had been associated in or involved with any political group or organisation and she responded 'no '. He asked her if she or any of her family members had been involved in any activities or protests against the government and she responded 'yes', she participated in some rallies and demonstrations because there was fraud in the election in 2009.

   14. At the beginning of the arrival interview the applicant was told the interview was her opportunity to provide any reasons why she should not be removed from Australia and that she was expected to give true and correct answers to the questions asked. She was also told that if the information she gave at any future interview was different from what she told now, this would raise doubts about the reliability of what she had said. She was advised that the Department was careful to protect the privacy of all information given by her during the interview and that it would not be made available to the authorities in her country of habitual residence (Iran). She was provided with an interpreter in the Persian language. Asked if she understood what had been said to her and whether she understood the interpreter, the applicant said 'yes.'

   The voluntary work for an oppositional candidate in the 2009 elections

   d) There was an insufficient logical or evidentiary basis for the IAA to find at [15] of the decision, or the IAA acted unreasonably, when accepting on the one hand that the applicant did not give the full extent of her story for leaving Iran at the entry interview because she was told not to by the interviewing officer, yet also find on the other hand, that the applicant fabricated her story regarding her work with the opposition candidate in the 2009 elections on this basis. The IAA therefore misapplied the relevant principles or asked the incorrect question with regard to the information provided at the entry interview as being a full and proper, final account of the applicant's claims when she was directed not to by the interviewing officer and when she entitled to subsequently develop her claims according to law.

   15. In her statement of claims one of her explanations for not mentioning the full extent of her reasons for leaving Iran was because she was told just to give reasons 'minus the story'. I accept this to be the case. Despite this the applicant clearly stated “no” when asked if she had been associated or involved in a political group or organisation. I am not satisfied the applicant was involved in or worked as a volunteer in Mousavi's electoral office as claimed. I acknowledge the applicant was only 17 years old at the time but I also find her knowledge of Mousavi's policies lacking in substance and depth for someone who has purportedly handed out pamphlets for two to three months and went door knocking and 'explaining to them things'. I would expect someone in this situation to know more about his policies other than just broad statements about the advancement of women and the end of sanctions in relation to medication and aeroplane parts. I am satisfied that the knowledge was not lacking in substance due to interpreter issues. I also found the applicant was rather evasive when asked about possible other roles she had undertaken in Mousavi's electoral office. Her response was generic in nature; that he wanted to make Iran a better place step by step but now he was under house arrest. The applicant made no attempt to answer the question she had been asked. I consider the applicant fabricated the story of her working in Mousavi's electoral office to embellish her claims and heighten her political profile.

   Ground 2: The finding by the IAA regarding the applicant's answers to the questions by the IAA regarding her work for the opposition candidate in the 2009 elections was unreasonable

   2. There was an insufficient logical or evidentiary basis for the IAA to find at [11] of the decision record that the answers by the applicant to the questions by the IAA regarding her work for the opposition candidate in the 2009 elections were not “adequate".

   Particulars

   The applicant's answers regarding her voluntary work for the oppositional candidate in the 2009 elections

   a) From [9]-[12] of the decision record, the applicant provided honest, meaningful and responsive answers to the questions by the IAA when seen in context and to the best of her abilities. Yet, at [11], the IAA found unreasonably that the responses did not adequately answer the delegate's question.

   9. At her PV interview on 16 January 2016 the applicant stated she feared harm from the authorities because she was active against the government. During the election time she was an activist for Mousavi; however, Ahmadinejad won and the people went to the streets. There were a lot of demonstrations and she was arrested, threatened and tortured mentally and they raped her. Mousavi's electoral office was next to her house. Her job was to distribute posters or pamphlets on the streets where the people were. Written in the pamphlets was what the candidate was going to do, Mousavi's ideology. He was a reformist and wanted to make changes, to get some freedom. Asked to describe what changes he wanted to make, the applicant responded freedom of speech and more freedom for ladies or feminists. People didn't want Ahmadinejad as he was on the supreme leader's side and people didn't like him.

   10. The delegate asked the applicant to be more specific and detailed about how Mousavi was going to achieve his policies of freedom for women in Iran. The applicant repeated Mousavi was a reformist; he wanted to improve society for women as they were oppressed in Iran for many reasons. They couldn't have a proper job or live with freedom, if Ahmadinejad was chosen he would not let this be done. Prior to Ahmadinejad the moral police were not as strict or severe but after he got in they were given more power to pick on women. Mousavi had said he would reduce the pressure on women and give them more freedom to study and work, as well as working in an environment with men. Also because of the sanctions on Iran there were lots of limitations on things such as medication, and Mousavi could reduce that and make it a bit better for the people. Asked what other policies Mousavi represented, the applicant repeated sanctions and women. The sanctions were limiting all the products and parts for aeroplanes. The parts would not come to Iran and he was trying to remove the sanctions. It wasn't just for women's freedoms; it was for the sanctions against the planes.

   11. When asked by the delegate whether she had any other roles in the electoral office other than distributing pamphlets, the applicant said she tried to protect Mousavi in the society because people liked him to come up. They were tired of Ahmadinejad and his ideas. He really wanted to make Iran a better place. Since then he has been under house arrest. People still went in the street wanting him to be their leader. I consider this response does not adequately answer the delegate's question.

   12. The applicant said she started working in Mousavi's office after the Iranian New Year. She had to go to university and all her university friends were talking about how good he was, his ideas, so they started talking and decided to go for him. She worked at the office for two to three months. She wasn't paid but was a volunteer and one office was up the road 10 minutes from her house. She just walked in and asked them, telling them she had more time. She talked to people, knocking on the door and explained things to them or just gave them a flyer. Asked whether she had been involved in politics prior to this time, the applicant said yes. People were tired, they would go out on the street for anything, like when someone had died in jail, and people would strike or protest. If someone had been on a hunger strike and died people would go on to the street and she would go as she was one of those not in favour of the government.

   Ground 3: There was an insufficient logical or evidentiary basis to reject the applicant's claim that she was detained, raped and beaten during the 2009 demonstrations, on the basis of the entry interview

   3. There was an insufficient logical or evidentiary basis for the IAA to find at [20] of the decision record, or the IAA acted unreasonably, when observing that there was “no mention” of her detention, rape or beating at the entry interview. In light of her explanation at [7] that she did not mention the full extent of her reasons for leaving Iran in her initial interview because she was terrified and embarrassed to talk about the rape and torture; given she was told by the interviewing officer to “just give her the reason for coming to Australia minus the story” at [7] which was accepted by the IAA at [13] after listening to recording; and having due regard to the supporting medical evidence at [17], the IAA therefore misapplied the relevant principles or asked the incorrect question with regard to the information provided at the entry interview as being a full, proper or final account of the applicant's claims when she is entitled to fully develop her claims subsequently according to law and for ultimately rejecting these claims at [21] of the decision record.

   Particulars

   The applicant's reasons for not proving a full and final account of her detention, rape and beating at the entry interview

   a) The IAA erred at [20] of the decision record by finding on the one hand that “applicants who have suffered sexual violence may find it extremely difficult to discuss” but ultimately finding that “I do not accept that this would account for no mention of the fact of detention.”

   20. In the applicant's arrival interview, no mention was made of her being detained during the protest. Although she did mention participating in rallies and demonstrations because of the fraud in the 2009 election, her only stated detention was in August 2012 when she was detained for one night because of her hijab. Asked whether the police or security or intelligence organisations impacted on her day to day life, she stated they were stressed going out of the house thinking the police or Islamic guidance patrol might arrest them for no reason. Asked if armed groups, political groups or religious groups operated in the area where she lived, she stated the Basij, they hit people with arms, teargas and batons. As noted the applicant in her statement of claims said she had not mentioned this incident because she was told to give the reasons she came to Australia minus the story but firstly, because she "was terrified at the time and embarrassed to talk about being raped and tortured.” I have listened to the recording and I am not persuaded the applicant was terrified at the time when she was interviewed. The mood of the interview I consider relatively relaxed despite its seriousness. Although I accept that applicants who have suffered sexual violence may find it extremely difficult to discuss, I do not accept that this would account for no mention of the fact of detention. The interviewing officer had told her he did not need the “full story” only “the reasons.” The delegate put her concerns about the inconsistencies between the “arrival entry” interview and her statement of claims and the applicant said she was in a detention centre at the time she was afraid she would be sent back to Iran or PNG and she was only 21 at the time.

   20. Whilst I understand the sensitive nature of the alleged rape whilst the applicant was purportedly detained by the Basij, I am not satisfied the applicant was detained, raped and mentally tortured as claimed. I accept the applicant took part in protests following the election of2009. This she mentioned in her arrival interview, in her statement of claims and confirmed at her PV interview.

   Ground 4: There was an insufficient logical or evidentiary basis to reject the applicant's claim that she was detained, raped and beaten during the 2009 demonstrations, because she could not provide “adequate" particulars of the house where the psychological, physical and sexual assaults occurred

   4. There was an insufficient logical or evidentiary basis to reject the applicant's claim at [22] of the decision record, that she was detained, raped and beaten during the 2009 demonstrations, because she could not provide "more details" of the house where the psychological, physical and sexual assaults occurred.

   Particulars

   The particulars of the house where the applicant was assaulted

   a) The IAA erred at [22] of the decision record by taking into account irrelevantly that the applicant was unable to provide "more details" of the house where she was detained, raped and beaten, considering she was attacked and blinded by tear gas, she was “hit” by the Basij and driven to the house; she was blindfolded when removed from the house, and importantly, taking into account and recognising the traumatic impact of the assault on the applicant.

   22. The applicant's description of events given in her statement of claims was provided almost verbatim at her PV interview. Asked to describe the house, despite apparently being kept there for two days, she could say nothing more than it was a house; everyone was just there not too big a house. She could not give an estimate of the number of people being held there, only that everyone was crying and upset. Whilst any detention would be traumatic I would expect some more details surrounding the event to have been forth coming. With regards to the two medical certificates provided by doctors in Iran, on their face they do corroborate the applicant's claims but they are difficult to verify and lack substantive detail. The gynaecologist's medical certificate has some detail but again has a fairly basic description of the injuries and her condition. The psychiatrist's medical certificate is one sentence long; it lacks detail and provides no further information about an actual diagnosis. Given my significant concerns about the applicant's evidence in relation to this matter, I give them no weight. Of her letter from a psychologist in Australia there is no reference to any detention or rape only 'past trauma' .

   Ground 5: There was an insufficient logical or evidentiary basis to reject the supporting medical evidence regarding the applicant's claim that she was detained, raped and beaten during the 2009 demonstrations

   5. There was an insufficient logical or evidentiary basis for the IAA to reject the supporting medical evidence at [22] of the decision record and as a consequence, the IAA failed to take this into account relevantly when assessing the applicant's claim that she was detained, raped and beaten by the Basij during the 2009 demonstrations.

   Particulars

   The supporting medical evidence

   a) At [17] of the decision record, the IAA observed the following medical evidence in support of her claims.

   17. Along with her PV application, the application provided four medical letters. The first is an undated medical certificate and translation from a Dr. A, Gynaecologist and Obstetrician - Surgeon and certifies that the applicant attended her practice “on 17 June 2009 with heavy bleeding and in the history I took from her it was mentioned that she had been raped. The patient was examined in the clinic and the injury in the fourchette area as repaired using Chromic 2 Zero and she was released in good condition” The second document is a medical certificate and translation from psychiatrist Dr. H dated 15 June 2015 and states the applicant attended his practice on 11 July 2009 after being sexually assaulted (rape and mental torture in detention) and was under “my individual counselling and treatment on a weekly basis for a period of 6 months and after partial recovery attended monthly group therapy and counseling sessions for a period of 1 year.” A third letter is dated 27 August 2015 and is from a clinical psychologist in Australia and states the applicant was referred to her "for psychological therapy for anxiety and depressive symptoms in the context of the uncertainty of her visa status and past trauma” The applicant's symptoms had "recently escalated in response to the termination of her pregnancy". The last letter is a Medical Certificate from a medical practitioner in Australia dated 24 August 2015 and states the applicant had an abortion due to financial difficulty and not being stable in regards to her visa".

   Jurisdictional error re the mediial evidence

   b) The IAA accepted at [22] of the decision record that the “two medical certificates provided by the doctors in Iran, on their face .. do corroborate the applicant's claims” but ultimately erred by giving the medical evidence “no weight.” As a consequence, the IAA failed to take into account relevantly the supporting medical evidence when assessing the applicant's claims that she was psychologically, physically and sexually abused by the Basij during the 2009 demonstrations.

   22. The applicant's description of events given in her statement of claims was provided almost verbatim at her PV interview. Asked to describe the house, despite apparently being kept there for two days, she could say nothing more than it was a house; everyone was just there not too big a house. She could not give an estimate of the number of people being held there, only that everyone was crying and upset. Whilst any detention would be traumatic I would expect some more details surrounding the event to have been forth coming. With regards to the two medical certificates provided by doctors in Iran, on their face they do corroborate the applicant's claims but they are difficult to verify and lack substantive detail. The gynaecologist's medical certificate has some detail but again has a fairly basic description of the injuries and her condition. The psychiatrist's medical certificate is one sentence long; it lacks detail and provides no further information about an actual diagnosis. Given my significant concerns about the applicant's evidence in relation to this matter, I give them no weight. Of her letter from a psychologist in Australia there is no reference to any detention or rape only 'past trauma'.

   Ground 6: There was an insufficient logical or evidentiary basis to reject the applicant's claim that her aunt was stabbed in 2009 because of purported inconsistencies between the entry interview and the protection visa interview

   6. There was an insufficient logical or evidentiary basis for the IAA to reject at [26] of the decision record, or the IAA acted unreasonably, with regard to the purported inconsistencies between the entry interview and the protection visa interview concerning the stabbing of her aunt. The IAA therefore misapplied the relevant principles or asked the incorrect question with regard to the information provided at the entry interview as being a full, proper or final account of the applicant's claims when she is entitled to fully develop her claims subsequently according to law and for ultimately rejecting these claims at [26] of the decision record.

   Particulars

   The stabbing of the aunty in 2009

   a) At [25] of the decision record, the IAA observed the applicant's account of the stabbing of her aunt in 2009.

   25. The delegate noted that she had provided a different explanation for the raid in her arrival entry interview in which said that the authorities had raided her house if they had parties or gatherings and they would take everyone with them. The applicant confirmed this happened too. The applicant stated that when they raided her house during the protests her auntie was injured but when they take people the authorities make them sign statements that they were not going to have parties or do anything wrong and then they were released. When they raided their house and her auntie was injured and that was more important to say. The applicant also said that during the arrival interview she was so scared at the detention centre she wouldn't ever say those things happened to her as she wasn't sure if she would be sent back and what would happen to her if she was sent back. The delegate reminded the applicant that at the entry interview it was her opportunity to provide her claims and to be honest and accurate with the information she provided and she confirmed yes. The applicant said the arrival interview was not a proper interview and she was told she had two minutes to provide her claims and she could not do so within two minutes and every day she had a meeting with immigration that she would be sent back and she was scared. If she had told these things what she was telling now and she was sent back to Iran she would die.

   The reasons for the different accounts between the entry interview and the protection visa interview

   b) At [26] of the decision record, the IAA erred by rejecting the applicant's reasons at [25] for offering different account of the stabbing of her aunt at the entry interview and the protection visa interview.

   26. I am not persuaded by the applicant's reasons for her not mentioning her aunt's stabbing in her PV interview. I consider her explanation of her aunt's stabbing in her statement of claims included with her PV application Jacking in detail as to the circumstances surrounding the events or reasons why this might have occurred. She was also indecisive as to who was responsible for the attack; in her statement of claims it was the police but when questioned at her PV interview she initially stated she didn't know whether it was the police or the Basij. Later on in the interview she stated the police could be differentiated from the Basij in that they wore their own “green clothes in the street". I do not accept her explanation that she was told at her arrival interview that she only had two minutes to disclose her reasons for claiming asylum and that she was scared. The applicant as already noted had confirmed she understood the interpreter and was required to tell the truth. I am also not convinced she was scared despite her young age and the applicant specifically stated they had sought protection in Australia because she liked Australia compared to other countries she had been too. Even though she was only 21 at the time she was relatively well travelled and was in Australia with her mother, brother and sister in Jaw. I am not satisfied her home was raided in November 2009 by the authorities and that her aunt was stabbed during this incident.

   Ground 7: The IAA misapplied the law or failed to ask the correct question with regard to the applicant's adoption of western values and opposition to the doctrines of Islamic extremism, including the dress code

   7. The primary judge erred by misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question with regard to the claims of the applicant that she faces a real risk of harm on the grounds that she has adopted western values and lifestyle and for her opposition to the doctrines of Islamic extremism, including the dress code.

   Particulars

   The applicant's claims

   a) At [27] of the decision record, the IAA observed the following claims of the applicant and the supporting country information.

   27. The applicant claimed she was always stopped by the Basij for wearing nail polish or makeup and put in jail for not wearing her hijab properly. At her PV interview she said that their house was raided when they had parties or gatherings. Country information before the delegate indicates the Iranian authorities can take a heavy-handed approach when they periodically enforce standards of lslamic conduct in the community, including Islamic dress and public displays of affection with non-family members of the opposite sex.3 Credible sources have however told DF AT that, while they do not discount the possibility of authorities monitoring hijab, in practice this rarely occurs. These sources also told DF AT that women would rarely be formally punished for contraventions of rules around hijab. Women would be more likely to be escorted to a police station and asked to have a family member bring acceptable hijab after which they could leave without sanction.

   The DFAT Country Report Iran, 21 April 2016

   b) At [29] of the decision record, the IAA observed the following DFAT Country Report Iran, dated 21 April 2016.

   1. DFAT assesses it is difficult to make an overall assessment of the treatment of what are sometimes labelled 'Westernised' Iranians. [Y]outh in particular can experience some form of low-level harassment from security authorities, such as being subjected to searches, car checks and verbal warnings for dress or behaviour. It is important to note the significance of Iran's sizeable youth population in this regard. Enforcement can be unpredictable and related to the prevailing political atmosphere of the time.

   The acceptance of the applicant's claims

   c) At [31] of the decision record, the IAA accepted the applicant's claims that she was detained for wearing makeup, nail polish and for not wearing the correct hijab.

   31. I accept as plausible, that the applicant was stopped by the Basij for wearing makeup or nail polish and that she was detained for not wearing the correct hijab. In this respect the applicant has been consistent.

   d) Whilst accepting the applicant was detained for wearing makeup, nail polish and for not wearing the correct hijab, the IAA ultimately erred at [45] by finding that if the applicant was detained in the future for similar reasons, this would not amount to serious harm or discrimination giving rise to persecution.

   45. I accept the applicant may have been stopped by the Basij for wearing makeup or nail polish and that she was detained overnight for wearing the incorrect hijab. Country information cited earlier notes formal punishment for incorrect hijab is rare. I am not satisfied on her return if she is again pulled up for wearing makeup or nail polish or if she were temporarily detained as in the past, for wearing incorrect hijab this detention, this would amount to serious harm. I also consider the requirement observe Islamic codes of dress, including wearing of the hijab, a law of general application. I am not satisfied on the evidence that these laws relating to dress are discriminatory or are applied in a discriminatory way or are selectively enforced. I am satisfied the applicant does not face a real chance of serious harm on this basis.

   Jurisdictional error

   e) The IAA failed to ask what might happen if the applicant refused to accompany the Basij to the police station or refused to wear the hijab brought to her by family member. In so far as the IAA found that the applicant is required, or can be expected to take reasonable steps to avoid persecutory harm, they are wrong in principle and should not be followed. Further, the IAA did not ask why the applicant would conform or live “discreetly”

   
   

   and nor did the IAA ask whether the applicant would conform or live “discreetly” because that was the only way to avoid persecution. Moreover, there is no principle that laws of general application may not amount to persecution, giving rise to reviewable error.

   Ground 8: There was an insufficient logical or evidentiary basis to reject the applicant's claim that she was detained and barred from studying at university by the Basij for attending her brother's wedding to a Christian woman in Belarus, given the purported inconsistencies between the entry interview and the protection visa interview

   8. There was an insufficient logical or evidentiary basis for the IAA to reject the applicant's claims at [36] of the decision record, with regard to the applicant's claims at [35] that she was detained by Basij and barred from studying at university after attending her brother's wedding to a Christian woman in Belarus, because of purported inconsistencies between the entry interview and protection visa interview. The IAA therefore misapplied the relevant principles or asked the incorrect question by taking the information provided at the entry interview as being a full, proper or final account of the applicant's claims when she is entitled to fully develop her claims subsequently according to law.

   Particulars

   The marriage in Belarus according to the entry interview

   a) At [32] of the decision record, the IAA observed the applicant's account of the wedding in Belarus as per her entry interview.

   32. The applicant claimed she was detained by the Basij after attending her brother's wedding to a Christian woman in Belarus. The applicant provided no specific date of this wedding or when she was purportedly detained but stated that after this trip she continued to go to university. In her arrival entry interview the applicant said she spent 50 days in Belarus; however, in her PV application it states she was in Belarus for a much shorter period (2 to 12 May 2012).

   The marriage in Belarus according to the protection visa interview

   b) At [33] of the decision record, the IAA observed the applicant's account of the wedding in Belarus as per the protection visa interview.

   33. At her PV interview the applicant said that her sister-in-law was a Christian and so was her brother. They met in Belarus and had to marry there and they had been to the church. When she came back she told her friends she had been to the church and weddings were different there. She did not convert to Christianity, as she did not believe in any religion. The Basij came to her at the university and when she went to their office she was told she was under arrest for converting to Christianity and “advertising Christianity.” Despite her denials they took her to a place and she stayed the night. It was in the summer as she was behind in her studies because of the "things that had happened to her" so she took a summer semester. When she was released in the morning she was told she could never return to university again.

   Whether the applicant was studying at the time of the wedding

   c) At [34] of the decision record, the IAA observed that the “delegate noted the applicant was talking about how [the Basij barred her from university] occurred after the brother's wedding in 2012, but according to her PV application she was not at university in 2012." e applicant's account of the stabbing of her aunt in 2009. This was a clear observational error. As the IAA acknowledged in the same paragraph at line six (6), the applicant stated at her PV interview she attended a summer semester in June, July and August 2012 at Azad Ruhad University. The delegate noted this corresponded with her arrival interview where she stated she was at Azad Ruhad University from 2009 to 2012.” Clearly, the applicant was studying at the time of the brother's wedding in Belarus.

   34. The delegate noted the applicant was talking about how this had occurred after her brother's wedding in 2012 but according to her PV application she was not at university or studying in 2012. Her PV application stated between January 2008 and January 2009 she attended Azad Ruhad University for an Advanced Diploma in Graphic Design but then withdrew. Between November 2011 and October 2012 she worked in Film Editing mixing movies for Haftgah Studios. The applicant stated at her PV interview she attended a summer semester in June, July and August 2012 at Azad Ruhad University. The delegate noted this corresponded with her arrival interview where she stated she was at Azad Ruhad University from 2000 to 2012. The delegate asked for more information about the arrest at university and how the authorities found out about her conversations with her friends. The applicant responded that when you talk, it goes around and her friends would tell others that she had been to a church in Belarus and they would find out easily. She thought it happened at the end of July as her exam was in August and she couldn't go to her exam.

   The details of the detention by the Basij and barring from university

   d) At [35] of the decision record, the IAA observed the applicant's account of the detention by the Basij and her barring from studying at university because of her brother's Christian wedding in Belarus.

   35. Asked who arrested her, the applicant said at every university there is a Basij office, they called her. They usually check if you are wearing the right dress and if it is too short you can't attend. The Basij called her and said she couldn't come back. Asked where she was when she was arrested, she replied at the university. She was in the graphic design and architecture building, they knew which class she was in and they came to her and called her from the class and said they needed to talk to her. They took her to their office and then to a house in the suburbs. At their office they told her she had converted to Christianity and had been advertising it. They accused her of telling her friends and people had told them she had been saying her sister-in-law said Christianity was good and Jesus was coming back and those sorts of things. At the house they told her they had the right to kill her because she had converted. She was detained overnight and the next day she was released and told never to come back to university. When she got home she couldn't tell her father as he would be angry. She told her mother and brother what happened. She couldn't go to university; she couldn't find a job and couldn't live normally. After one month her father and brother came to her and said they could go to Australia.

   The rejection of the applicant's claims

   e) There was an insufficient logical or evidentiary basis to reject the applicant's claim at [36] of the decision record, that she was detained and barred from attending university by the Basij for attending her brother's wedding to a Christian woman in Belarus, given the entry interview.

   36. I am not satisfied the applicant was detained in late July 2012 by the Basij at her university as claimed and accused of having converted to or for advertising Christianity. Firstly, as already discussed this event was not mentioned in her entry interview and given it was the incident that happened immediately prior to her departure from Iran I would expect that she would mention it in the interview conducted a relatively short time afterwards. I have not accepted the applicant was “scared” at her arrival interview or that she had concerns about being sent back to Iran. Secondly, given her claimed fear of the authorities in general I am surprised she would so openly discuss her experiences of attending a church in Belarus where she knew the Basij operated and kept an office. I do not consider this statement to be credible. Thirdly, I find the applicant's evidence when questioned in relation to her arrest by the Basij somewhat evasive; it was only when asked for a third time did she state they came to the building where she was studying. She gave no detail about her overnight detention. Fourthly, I am not satisfied the applicant did attend a summer semester as claimed. I can accept certain discrepancies between years of study; however, the applicant clearly stated in her arrival interview she stayed 50 days in Belarus compared to one week in her PY application. I am of the view the applicant remained in Belarus for a significant period of time. This stated time was reduced in order to present as credible her claim that she had been attending summer school. Fifthly, I would have expected other family members such as her father or mother to have been questioned about this matter given it was their son who was married to a Christian and given she claimed her family were under suspicion. There is no evidence to suggest other family members were questioned by the authorities or were considered of interest to the authorities in this regard. I am not satisfied the applicant is a credible witness.

1. Mr Williams of counsel on behalf of the applicant confirmed that in relation to grounds 3 and 4, those two grounds should be understood as raising the same issues of insufficient logic or evidentiary basis or legal unreasonableness as raised in grounds 1 and 2.

Grounds 1 and 2

1. In support of the argument that there was insufficient logic or evidentiary basis for the adverse finding in relation to grounds 1 and 2, Mr Williams placed significant reliance upon what was said at [56] in MZZJO v the Minister for Immigration and Border Protection [2014] FCAFC 80. Mr Williams also focused on the fact that in the present case, the applicant had been told just to give her reasons for coming to Australia, minus the story. Mr Williams submitted that the criticism of the applicant’s failure to mention something in the entry interview, in circumstances of the cautionary remarks identified in MZZJO v the Minister for Immigration and Border Protection [2014] FCAFC 80, and where the applicant had been told to give her reasons for coming to Australia minus the story, were circumstances in which there was either an insufficient logic or evidentiary basis for the adverse finding in rejecting her claim to have been involved in voluntary work for the opposition candidate in 2009, or alternatively, that the adverse finding was legally unreasonable.

2. The Authority’s reasons as referred to above, reflect a careful and thorough consideration by the Authority of the arguments advanced by the applicant as to why she had failed to mention her work for the opposition candidate. The Authority expressly made reference to the issue of the applicant being told just to give the reasons for coming to Australia minus the story. It is apparent that the Authority took that into account, when considering whether or not to accept the applicant’s claims.

3. Contrary to what is asserted in ground 1, the adverse finding was not made simply on the basis of the entry interview. Rather, the Authority provided reasons in support of the adverse finding as summarised above. Those reasons were open to the Authority, for the reasons given by the Authority as summarised above and cannot be said to lack an evident and intelligible justification.

4. I accept the first respondent’s submissions, that extreme illogicality has not been identified to make out jurisdictional error. Nor, has this been identified in circumstances where the Authority had regard to the applicant’s answer “no” at the entry interview, when asked if she was associated with the political group or organisation, can that be explained away by the reference to the proposition of “minus the story”. Further, as I identified above, the Authority found the applicant did not adequately answer the delegate’s questions as to the roles that she had in the office. That finding, that the applicant did not answer the question at all, was open to the Authority.  The Authority’s reasons are not to be read with a keen eye for error.

5. Reading the reference in ground 2 to being questions by the delegate, there is still no legal unreasonableness made out. The Authority’s reasons as summarised above are rational and logical and were open on the material before the Authority. Further, the Court does not accept that the Authority misapplied the relevant principles or asked the incorrect question, with regard to determining whether or not the applicant’s claims were accepted. The adverse findings were open for the reasons given by the Authority. Grounds 1 and 2 fail to make out any jurisdictional error.

Ground 3

1. Grounds 3 erroneously asserts the Authority made the adverse finding on the basis of the entry interview. The Authority’s adverse reasons in relation to the applicant not being accepted about having been detained, raped and beaten are adverse findings were not based on trivial or insignificant matters.

2. Further, the Authority expressly took into account the applicant’s explanation and the “minus the story” comment. No extreme illogicality is made out in the adverse findings by the Authority. Those adverse findings were open for the reasons summarised above by the Authority.

3. The assertion of no evidentiary basis is not correct given the Authority’s reference to the reasons, and it was a matter for the Authority to determine whether to accept the applicant’s credit. Further, it cannot be said that the reasoning of the Authority was not open or was legally illogical or unreasonable. Ground 3 fails to make out any jurisdictional error.

Ground 4

1. In relation to ground 4, Mr Williams takes issue with the Authority giving no weight to the medical evidence, purportedly corroborative with the applicant having been raped. The Authority had made express reference to the purported corroborative nature of the medical material. The Authority took into account the applicant’s inability to describe details of the place that she allegedly stayed in, and allegedly was raped and beaten for two nights. The Authority made adverse findings as summarised above.

2. Mr Williams submitted that the description of the house was irrelevant or a trivial matter. It was for the Authority to make findings in relation to the applicant’s claims. It was open to the Authority to take into account the applicant’s ability to describe the house and number of persons present. In the context of the applicant’s claims, those findings cannot be said to be trivial and insignificant matters over a two day period.

3. The findings by the Authority cannot be said in that regard to give rise to extreme illogicality. There was an evidentiary basis for the adverse findings for the reasons given by the Authority. The adverse finding at paragraph 22 of the Authority’s reasons cannot be said to be legally unreasonable or illogical. No jurisdictional error is made out by ground 4.

Ground 5

1. In relation to ground 5, Mr Williams submitted that the two medical reports were corroborative of the applicant’s rape, and should not have given no weight by the Authority. The Authority expressly identified the potential corroborative nature of the two medical reports, and gave reasons in support as to why the Authority gave no weight to those documents.

2. It was for the Authority to determine what weight to give to the alleged corroborative material, and the adverse reasons of the Authority were open for the reasons given by the Authority as summarised above and cannot be said to lack an evident and intelligible justification. No extreme illogicality is demonstrated by such reasoning, and the Authority considered the certificates and understood their potential significance, decided to give them no weight and in that regard took into account the adverse findings in respect of the applicant’s claims. It was open to the Authority to do so. Ground 5 fails to make out any jurisdictional error.

Ground 6

1. In relation to ground 6, Mr Williams submitted that the incident involving the aunt being stabbed in 2009 was again one where the caution identified in MZZJO v the Minister for Immigration and Border Protection [2014] FCAFC 80 should be taken into account in relation to the use of the entry interview, as well as the “minus the story” comment at the time of the entry interview. It was open to the Authority to reject the applicant’s claims in relation to the aunt being stabbed for the reasons given by the Authority. Those reasons do not reflect extreme illogicality.

2. The Authority was not required to accept the applicant’s explanation as to why she had not mentioned her aunt’s stabbing at the entry interview. The assertion that the applicant was given two minutes to disclose her reasons for seeking a protection order and was scared was not accepted, and the Authority considered the information that was given to the applicant at the time of the entry interview.

3. The adverse finding in relation to the applicant’s claim concerning the aunt’s stabbing was open for the reasons given by the Authority, and cannot be said to lack an evident and intelligible justification. There was no extreme illogicality or legal unreasonableness and the adverse findings by the Authority that were open. No jurisdictional error is made out by ground 6.

Ground 7

1. In relation to ground 7, Mr Williams submitted that the Authority had failed to consider what would occur if the applicant refused to accompany the Basij to the police station or refused to wear the hijab brought to her by her family member. No such claim was advanced by the applicant. The Authority was not required to advance a claim that was not made and did not fairly arise on the material.

2. Mr Williams submitted that this was a finding by the Authority of a modification of conduct of the kind identified in s 5J(3) of the Act. There was no such finding of a modification of conduct by the applicant. The adverse finding by the Authority in relation to the applicant’s risk of serious harm were open to the Authority for the reasons given by the Authority.

Further submissions

1. On 22 March 2018, the Court made orders granting the applicant leave to file and serve further submissions in respect that decision and for the first respondent to file further submissions in answer if it wishes. The Court has taken into account those submissions received from the applicant and both sets of submissions from the first respondent.

2. Mr Williams focused upon the alleged error by the Authority in describing the Islamic law concerning the wearing of the hijab as a law of “general application” and as a law that was not discriminatory. Mr Williams drew attention to the determination of whether laws are of general application in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at [19]-[21], [72] as well as in Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548 at [50]-[68]. There is no doubt that an Australian law that required all women to wear the hijab because of its differential treatment, would be regarded as discriminatory. Further, an Australian law that purported to require wearing the hijab on the basis of a religious requirement would offend s 116 of the Constitution.

3. However, it was for the Authority to make findings of fact in relation to the applicant’s claims. The finding in the present case was based on Islamic law in Iran and in respect of Islamic dress codes. The Authority in the characterisation of the law, was referring to Islamic law as to dress codes in Iran not an Australian law. An Islamic law applying Islamic dress codes is capable of being found to be a law in Iran of general application that is not persecutory. The dress code law was found to apply to men and women. That is the essence of the finding of the Authority by holding that the Islamic law as to dress code is not discriminatory and is a law of general application. It was open to the Authority to make findings as to whether the Authority regarded the Iranian law as to dress code as a law of general application or a discriminatory law. This is because it was open to the Authority to find that the dress code did not target or adversely affect a particular class or group.

4. Even if the Authority’s finding as to being a law of general application and not discriminatory was said to be an erroneous finding in the equal application to men and women of the dress code, it was a finding of fact within the jurisdiction of the Authority and given the finding as to no real chance of serious harm being required to wear the hijab, it was not a jurisdictional error. Any such error does not reflect a misconstruction of the statutory provisions in determining whether or not the applicant met the statutory criteria in terms of the definition of “refugee” in s 5H(1) of the Act or the criteria under s 36(2)(a) or s 36(2)(aa) of the Act.

5. I accept the submission of Mr Reilly of counsel in the present case, that there was an express finding based on the country information which referred to punishment for the incorrect hijab being rare and that the applicant does not face a real chance of serious harm on the basis of wearing makeup, nail polish or for incorrectly wearing the hijab. I do not accept that that adverse finding in respect of the absence of a real chance of serious harm is impacted by or materially affected by any factual error as to equal application of the dress code to men and women, if there be an error in describing the Islamic code of dress under Iranian law as being a law of general application and as not being a discriminatory law. The finding by the Authority as to no real chance of serious harm was based on country information and not the characterisation of the law.

6. The applicant did not claim she would face harm if she refused to accompany the Basij to the police station or refused to wear the hijab brought to her by a family member. The Authority’s findings were dispositive of the applicant’s claims and the applicant was not required to act discreetly to avoid persecution. The applicant did not advance to the Authority that the dress code law of Islam was not appropriate and adapted to a legitimate national end. Nor did the Authority have to do so having found the Iranian law as to dress code to be a law of general application that was not discriminatory. Accordingly, the Authority was not required to consider whether the dress code law was appropriate and adapted or proportionate and was not required to consider proportionality. No jurisdictional error as alleged in ground 7 is made out.

Ground 8

1. In relation to ground 8, Mr Williams submitted that the finding of the Authority in paragraph 36 was one subject to insufficient logical and evidentiary basis and failed to take into account the caution in MZZJO v the Minister for Immigration and Border Protection [2014] FCAFC 80 and the significance of the minus the story observation comment at the time of the entry interview. No extreme illogicality is made out in relation to the Authority’s finding at paragraph 36. The Authority was entitled to take into account the failure of the applicant to mention the same at the entry interview.

2. The Authority gave detailed reasons summarised above in support of the adverse finding. Those reasons were rational and logical and cannot be said to lack an evident and intelligible justification. No illogicality or unreasonableness is made out. The assertion of no evidentiary basis for the adverse finding by the Authority is also one that is not made out. It was open to the Authority for the reasons given by the Authority as summarised above to determine whether or not to accept the applicant’s credit in relation to the applicant’s claims. The adverse credibility findings were not insignificant or trivial matters. No jurisdictional error is made out by ground 8.

3. Accordingly, the amended application is dismissed.

I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  17 April 2018