RRT Case No. N98/26150

REFUGEE REVIEW TRIBUNAL

RRT Reference: N98/26150

Country of Reference: Iran

Tribunal Member: Ms J. Morris

Date of decision: 24 June 1999

Place: Sydney

Decision: The Tribunal affirms the decision not to grant protection visas.

In accordance with s431 of the Migration Act 1958 (as amended), the published version of this decision does not contain any statements which may identify the Applicant or any relative or other dependant of the Applicant. The published version of this decision was prepared under the direction of the Deputy Registrar.

BACKGROUND

The applicants, who are citizens of Iran, arrived in Australia and subsequently lodged combined applications for protection visas with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (the Act) A delegate of the Minister for Immigration and Multicultural Affairs refused to grant protection visas and the applicants sought review of that decision.

THE LEGISLATION

A criterion for a protection visa is that at the time of the decision the decision maker is satisfied that the applicant is a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees: ss.5(1) and 36(2) of the Act. Australia is a party to the Refugees Convention and the Refugees Protocol and, generally speaking, has protection obligations to people who are refugees as defined in them.

THE REFUGEES CONVENTION

Article 1A(2) of the Convention defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

This definition has been considered by the High Court in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, Applicant A & Anor v Minister for Immigration & Ethnic Affairs and Anor (1997) 190 CLR 225 and Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 575-6, and by the Federal Court in a number of cases, notably Ram v Minister for Immigration & Ethnic Affairs & Anor (1995) 57 FCR 565. These cases have established the following general principles.

In Guo's case, the Court observed that the definition contains four key elements. First, an applicant must be outside his or her country.

Second, an applicant must fear persecution. In Applicant A, Gummow J at 284 referred to the primary meaning of the term "persecution" in ordinary usage:

The action of persecuting or pursuing with enmity and malignity; esp the infliction of death, torture, or penalties for adherence to a religious belief or an opinion as such, with a view to the repression or extirpation of it; ...

Not every threat of harm or interference with a person's rights for a Convention reason constitutes "being persecuted". Mason CJ referred to persecution as requiring "some serious punishment or penalty or some significant detriment or disadvantage" (Chan at 388). Harm or threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group which is subjected to such harassment, amounts to persecution if done for a Convention reason. In appropriate cases it may include single acts of oppression, serious violations of human rights, and measures "in disregard" of human dignity. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

Third, the reason for the persecution must be found in the singling out of one or more of the Convention reasons - race, religion, nationality, membership of a particular social group or political opinion. The phrase "for reasons of" serves to identify the motivation for the infliction of the persecution.

Fourth, an applicant's fear of persecution for a Convention reason must be a "well-founded" fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a "well-founded fear" of persecution under the Convention if they have genuine fear founded upon a "real chance" of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or if it is mere speculation. A "real chance" is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country. The object of the Convention is to provide refuge for those who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality. It follows that whenever the protection of the country of nationality is available, and there is no ground based on well-founded fear for refusing it, the person concerned is not in need of international protection and is not a refugee.

Whether an applicant satisfies the Convention definition is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

CLAIMS AND EVIDENCE

Only the applicant has made specific claims under the Refugees Convention. For convenience therefore, I will refer to [her] as the applicant. The applicant's claims are set out in written submissions to the Department, written submissions to the Tribunal and oral evidence given to the Tribunal.

CLAIMS MADE TO THE DEPARTMENT OF IMMIGRATION

The applicant, [name], is [age] old citizen of Iran. She is accompanied by her sons:. The applicant's husband is in Iran. Her daughter is in Australia [visa specified]. She has siblings in [Australia and overseas]

The applicant underwent 13 years of education and attended [named] University graduating in [the mid 1970's] with a [named degree]. She has worked [in her field] [from graduation until the early 1980's] and [in a related field form the early 1990's to the late 1990's]. The applicant married in [the late 1970's].

[Other travel details deleted under s431 of the Migration Act]

The applicant's husband's family were pro-Shah, her father-in-law being a member of the Rastakiz Party. During the funeral of the applicant's husband's grandmother, rocks were thrown by pro-revolutionaries.

In 1979 the applicant was reprimanded by a female Pasdar over her Hejab. In 1981 the applicant's father was arrested for being a "wealthy landowner". He was taken to [a named] prison and then [another named] prison. The applicant's father had been selling his land to the local people and before being released was forced to pay back half the money he had been paid by the locals.

The applicant was sacked in [the early 1980's] because she had a disagreement with her employer over a decision she had made independently of him. In 1985 the applicant and her husband's car was surrounded and kicked by Pasdaran.

In [the late 1980's] the applicant's husband ([occupation specified]) established a [business] with [a numbers of] other[s] and the applicant was employed as an administrator in [the business]. She worked in this position until she left the country.

The applicant enrolled in an English course. But stopped attending after six months because the Pasdaran would wait outside the classroom to check woman's hejab. The applicant saw many women arrested and stopped attending because she was put off by this.

The applicant's sons had difficulty advancing in their education because they failed the ideological tests.

The applicant stated that her life and that of her sons has been dramatically affected by the Islamic Revolution. [Details of applicant's husband's travel deleted under s431 of the Migration Act]. The applicant stated that she does not dislike Islam, but is opposed to the way in which it is interpreted in Iran.

The applicant fears returning to Iran because of what has happened to her and because of the current situation for women in Iran.

CLAIMS MADE TO THE TRIBUNAL

The applicant claims that she fears persecution because it has become known in Iran that she has made an application for refugee status. The applicant's husband has been suspended from his [government] employment (but continued to be employed in private [business]). The applicant fears that the penalties for seeking asylum are severe.

CLAIMS MADE AT TRIBUNAL HEARING

The applicant confirmed that she made a number of trips in and out of Iran prior to coming to Australia these included:

[Details of applicant's travel deleted under s431 of the Migration Act] The applicant stated that she had no difficulties departing and re-entering Iran.

The applicant's father

The applicant stated that her father was detained for "several months" in 1981 because he was a landowner. The applicant stated that once the authorities got hold of his money they released him. He was not detained after 1981. The applicant was not detained in relation to her father's difficulties.

The applicant's dismissal from employment in [the early 1980's] and her subsequent employment in [the early 1990's]

The applicant stated that she was sacked from her job because she had a difference of opinion with her employer. The applicant stated that she and her employer had a falling-out because of his attitude towards woman.

The applicant stated that she kept a "low profile" between [the early 1980's and the early 1990's]. The applicant stated that because the Pasdaran picked woman up in the streets she kept a low- profile. The applicant stated that she mainly stayed at home during this period.

The applicant started working again in [the early 1990's]. The applicant stated that she could not work for the government, and was working privately. She was working for a company established by her husband and other[s]. She was paid [ ] tomans per month. The applicant stated that her working conditions were not ideal and that she was isolated in her employment - much of which she carried on from home.

The Tribunal asked the applicant if she was ever taken to the Komiteh during the period [of her last employment]. The applicant stated that because she always covered herself properly and did not wear make-up she was not taken to the Komiteh.

The Tribunal asked the applicant about her claim that her sons have been disadvantaged in education. The applicant stated that they would not be selected for "good schools". Prior to coming to Australia the oldest son was attending high school in Iran and the other two were at junior high school and primary school. The applicant confirmed that they were not stopped from attending school. Because they failed the ideological tests they would not be admitted to the best schools. The applicant's daughter was accepted to [specified tertiary course] in Tehran.

Making an application for refugee status.

The Tribunal asked the applicant about her claim that she feared persecution because it has become known in Iran that she has made an application for refugee status. The Tribunal read the following extract to the applicant and asked her to comment on it:

Independent evidence

According to the DFAT Iran Country Profile (March 1996):

"The act of applying for asylum abroad is not, in itself, an offence in Iran. However, if an asylum seeker departed Iran illegally and/or was a fugitive from justice, it is not uncommon for close family members to be questioned by the authorities and in some cases for harassment to occur. At worst, knowledge that an individual has sought political asylum abroad would not result in much more than verbal harassment, unless the asylum-seeker concerned had a high opposition political profile."

" ... the explanation of an unsuccessful asylum seeker re-entering Iran, that he/she had merely sought refugee status abroad as a ploy to secure a better life materially, would be readily accepted by the authorities." (1.7.6.2)

The applicant stated that she assumed that an Iranian friend with whom she has been in contact in Australia has found out about her having made an application for refugee status and has returned to Iran. The applicant stated that she assumed that her husband has been suspended from [government employment] as a punishment. The applicant confirmed that his private [business] has not been shut down. The Tribunal pointed out to the applicant that she was basing her fears on an assumption - the applicant concurred but stated that she was pretty sure the authorities have found out about her having made an application for refugee status. The applicant gave evidence that she has never been involved in political activities either in Iran or Australia.

The Tribunal pointed out to the applicant that:

she has never been arrested or detained; she has been able to work; her children were able to attend school and her daughter was accepted into University; and her husband - although no longer working [for the government] - has been permitted to continue with his private [business]. [Husband's travel details deleted under s431 of the Migration Act]

The applicant stated that she can not return to Iran because her husband is a well-known figure and people have been asking how the applicant has been able to stay away for so long. The applicant stated that as a woman she is treated like a second class citizen and because of this she gets "tired and frustrated".

The applicant's witness

The applicant's daughter gave evidence in support of her mother's application. The applicant's daughter stated that it would not be a good idea for her mother to return to Iran because the authorities will notice that she has made an application and the applicant will "definitely go to prison". The applicant's daughter stated that her father has been suspended from [his government job]. The witness stated that she decided not to attend [university] in Iran because she "was not sure if the authorities would let her finish". The witness encountered bureaucratic delays and problems when she enrolled.

ADVERSE INFORMATION SENT TO THE APPLICANT FOR COMMENT

The Tribunal sent the following information (in a letter dated [date]) to the applicant (via her adviser) and asked her to comment on this information:

DOCUMENT ONE

According to the DFAT Iran Country Profile (March 1996):

"The act of applying for asylum abroad is not, in itself, an offence in Iran. However, if an asylum seeker departed Iran illegally and/or was a fugitive from justice, it is not uncommon for close family members to be questioned by the authorities and in some cases for harassment to occur. At worst, knowledge that an individual has sought political asylum abroad would not result in much more than verbal harassment, unless the asylum-seeker concerned had a high opposition political profile." (Tribunal emphasis)

" ... the explanation of an unsuccessful asylum seeker re-entering Iran, that he/she had merely sought refugee status abroad as a ploy to secure a better life materially, would be readily accepted by the authorities."

DOCUMENT 2

U.S. Department of State Iran Country Report on Human Rights Practices for 1998 Released by the Bureau of Democracy, Human Rights, and Labor, February 26, 1999.

"Citizens returning from abroad are sometimes subject to search and extensive questioning by government authorities for evidence of anti-regime activities abroad. Cassette tapes printed material and personal correspondence and photographs are subject to confiscation. Such actions reportedly increased late in the year as authorities noted the increased activity of dissident groups outside the country." (Tribunal emphasis)

DOCUMENT 3

The Documentation, Information and Research Branch, Immigration and Refugee Board, Ottawa.

IRN26120.E 25 February 1997

The following information was provided during a 29 January 1997 telephone interview with a specialist on Iran in England.

The source stated that failed Iranian refugee claimants abroad would not face problems upon return to Iran. The source added that elderly Iranians who left the country with false documents would face a fine upon return to Iran. The source indicated that family members having successfully claimed refugee status abroad would not be relevant because of the large number of Iranians emigrating to western countries (Tribunal emphasis)

The following information was provided during a 28 January 1997 telephone interview with a French journalist who was posted in Iran between 1992 and 1996.

The source stated that regardless of their age, an Iranian who was denied a refugee claimant abroad would not face problems upon return to Iran. The source added that Iranians who left the country with false documents would face a fine upon return to Iran (Tribunal emphasis).

RESPONSE BY THE APPLICANT

The applicant responded in a submission dated []. The applicant's adviser suggested that the applicant has a well founded fear of being persecuted for reasons of her membership of a particular social group - woman in Iran. Supporting documents were submitted regarding the fate of deported asylum seekers and the situation of women in Iran.

The documents included information downloaded from the Internet including:

The Iranian News (http://www.iranian.com/News/Oct97/dutch.hlm), regarding the decision by the Dutch government to halt the deportation of failed asylum seekers as a result of a discovery that claims that returned asylum seekers had been monitored by the Dutch authorities and were safe, was incorrect (30 October 1997)

Statement by the Iranian Human Rights Working Group regarding the fate of 80 Iranian asylum seekers in Turkey who were rounded up by the Turkish authorities. The activities of the asylum seekers were brought to the attention of the Iranian authorities as a result of an anti-government sit-in they held in Ankara (2 July 1996).

Document entitled "Persecution of Women"

Amnesty International News Release entitled:

Turkish Government should stop forcible expulsion of refugees and asylum seekers (17 May 1996)

Amnesty cited the expulsion from Turkey of a member of the PMOI for who this organisation holds concerns about his safety.

Amnesty International News Release, 28 February 1996, regarding the death of a leader of the Sunni community whose body was found five days after he returned to Iran from the UAE, the deaths of two PMOI members in Istanbul, the death of another Sunni leader in 1994, a number of opposition activists who were killed in Turkey in 1992,1993 and 1994 and a member of the Iranian People's Fedaian.

Other documents were submitted to the Tribunal regarding the human rights situation in Iran. It was suggested that the applicant has been discriminated against as a woman, and that women form a particular social group in Iran.

The applicant's daughter made a written statement included in this submission in which she stated that:

There are only a few woman in Iran, like the applicant's mother, who have higher education and it has been hard for these few woman to gain what they deserve in their society There is little respect for these women and it is hard for them to live in Iran The hejab and other rules make it unbearable for them to live in Iran It could be risky for her mother to apply for refugee status [claims regarding other family members deleted under s431 of he Migration Act] Her son is due to undergo military service Those opposed to the government have a difficult time

INDEPENDENT EVIDENCE

Iran General Background

Following the overthrow of the last Iranian Shah (or monarch) in 1979 after years of popular discontent over poor economic conditions and increasing Western domination of Iranian society, Ayatollah (or high-ranking Islamic cleric) Ruhollah Khomeini returned from exile in France to establish a theocratic republic guided by Islamic principles. An Islamic Republic was declared in April 1979, vesting ultimate executive authority in a Supreme Spiritual Leader, or Vali-e Faqih (initially Khomeini), enacting Muslim codes and suppressing Western influences. In the years that followed the revolution, intense rivalries within the Government between traditionalist clerical elements and radical technocrats became increasingly apparent. Throughout the period of political manoeuvring under Ayatollah Khomeini's rule, Iran was also engaged in a war with Iraq sparked by an invasion of Iranian territory around the important Shatt al-Arab waterway in September 1980. Iran's acceptance of a UN cease-fire resolution ended the fighting in August 1988.

Ayatollah Khomeini died in June 1989, and was succeeded by the former President, Sayyed Ali Khamenei, who was appointed by the Assembly of Experts to the less exalted position of Rahbar, or Leader. The Constitution of 1979 was subsequently amended, abolishing the post of Prime Minister and expanding the powers of the Executive. The former Speaker of the Majlis, Ali Akbar Hashemi-Rafsanjani, was then elected President in August 1989 with 95.9 per cent of the total votes cast. Mr. Rafsanjani's government was generally "regarded as a balanced coalition of 'conservatives', 'reformers' and technocrats", and eventually implemented gradual economic and social reforms. In June 1993 President Rafsanjani was re-elected with a considerably lower proportion of the votes cast (63.2 per cent) evidencing a loss of popular support.

In May 1997, Hojjatoleslam val Moslemin Sayyed Mohammed Khatemi, the most moderate of the four candidates approved by the Council of Guardians out of 238 nominations, was elected President with 69 per cent of the votes cast by 91 per cent of the electorate. Mr. Khatemi, himself a cleric, is said to be "aiming for . . . freedom within the framework of the constitution and the Islamic regime". One year after taking office, he reportedly maintains wide popular support. (UNHCR Background Paper on Asylum seekers from Iran, September 1998)

Making an application for refugee status outside Iran

According to the DFAT Iran Country Profile (March 1996):

"The act of applying for asylum abroad is not, in itself, an offence in Iran. However, if an asylum seeker departed Iran illegally and/or was a fugitive from justice, it is not uncommon for close family members to be questioned by the authorities and in some cases for harassment to occur. At worst, knowledge that an individual has sought political asylum abroad would not result in much more than verbal harassment, unless the asylum-seeker concerned had a high opposition political profile." (Tribunal emphasis)

The concept of "Taghieh"

1.31.1 The concept of "taghieh" was first developed and practised by Imam Jaafar Sadegh, one of the leading founders of Shiite thought. Iranians are in fact Jaafari Shiites and Iranian Islam practice relies heavily on his teachings and instructions.

1.31.2 Jaafar Sedegh lived during the Ommayed dynasty. In spite of his animosity towards the rulers at the time, he was seen to praise them and to treat the authorities with respect. When he was asked for an explanation, he said one should practice "taghieh" when one is in position of weakness. This concept meant it was justified to lie or to conceal your beliefs when circumstances are not favourable for you or to fool your enemy. According to Jaafar Sadegh, it was acceptable to deny your faith, as he did, even if you were not in physical danger, to mislead enemies or advance your cause. The concept was shared by Bahais in the first century following Sheik Bahai's (founder of faith) death, but has since been forbidden by the sect.

1.31.3 Ayatollah Khomeini referred to the acceptability and usefulness of "taghieh" several times during his leadership of Iran. Recently other officials have done the same. The concept can be used to justify misrepresentations that are seen to be in the interest of those making them.

1.31.4 Based on this principle, the explanation of an unsuccessful asylum seeker re-entering Iran, that he/she had merely sought refugee status abroad as a ploy to secure a better life materially, would be readily accepted by the authorities.

U.S. Department of State Iran Country Report on Human Rights Practices for 1998 (February 26, 1999) stated:

"Citizens returning from abroad are sometimes subject to search and extensive questioning by government authorities for evidence of antiregime activities abroad. Cassette tapes, printed material, and personal correspondence and photographs are subject to confiscation. Such actions reportedly increased late in the year as authorities noted the increased activity of dissident groups outside the country." (Tribunal emphasis)

In a Response for Information (The Documentation, Information and Research Branch, Immigration and Refugee Board, IRN26120.E, 25 February 1997):

"The following information was provided during a 29 January 1997 telephone interview with a specialist on Iran in England. The source stated that failed Iranian refugee claimants abroad would not face problems upon return to Iran. The source added that elderly Iranians who left the country with false documents would face a fine upon return to Iran. The source indicated that family members having successfully claimed refugee status abroad would not be relevant because of the large number of Iranians emigrating to western countries (Tribunal emphasis)"

"The following information was provided during a 28 January 1997 telephone interview with a French journalist who was posted in Iran between 1992 and 1996. The source stated that regardless of their age, an Iranian who was denied a refugee claimant abroad would not face problems upon return to Iran. The source added that Iranians who left the country with false documents would face a fine upon return to Iran (Tribunal emphasis)."

The Iranian Dress code

According to DFAT (Country Profile, March 1996)

"Since the early 1980s rigorous efforts have been made to enforce "Islamic" behaviour, particularly on matters such as women's dress, serving liquor etc. All women, including foreigners and the Westernised urban classes, willingly or unwillingly must wear appropriate head cover. Offenders may be flogged. The end of the Iran-Iraq war in 1988 and ascendancy of more moderate elements into political prominence in 1989 brought for Iranians a marginal easing of restrictions. This has especially been the case with regulation of dress and behaviour. There was less harassment of women for breaches of the Islamic dress code. It is now common in Tehran to see bare calves, partially uncovered hair and some make-up. However, this is not to say that citizens are now less vulnerable to such harassment than before. Enforcement of these restrictions is still cyclical with crackdowns during the fasting month and religious mourning periods. The situation may again deteriorate. The hard-line conservatives seem to have managed to push more liberal-minded authorities aside and there are signs of another prolonged period of intensified morals policing and campaign to eradicate Western influence. This is directly connected to the build up in influence and presence of the Basij forces, young religious fanatics, who feel that they are executing their religious duty in harassing and intimidating people".

FINDINGS AND REASONS

The applicant's credibility

It is reasonable that applicants whose claims are plausible and credible should, unless there are good reasons not to do so, be given the benefit of the doubt (UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, Re-edited, Geneva, January 1992, paras. 196-197 and 203-204). However, it is appropriate that the Tribunal assess the specific claims advanced in support of an Applicant's case, bearing in mind that

"A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out" (Selvadurai v The Minister for Immigration and Ethnic Affairs and Refugee Review Tribunal, Heerey, J, 20 May 1994, p.7).

It is clear that the Tribunal is not required to accept uncritically all claims made by applicants. In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, Beaumont J observed (at page 16) that a liberal attitude concerning proof of persecution in the context of an application for refugee status

"should not, however, lead to 'an uncritical acceptance of any and all allegations made by suppliants'.

It was also stated in Chan (per McHugh at 428) that under the 1951 Convention :

"It was unlikely ... that a State party was expected to grant refugee status to a person whose account, although plausible and coherent, was inconsistent with the State's understanding of conditions in his or her country of nationality."

Generally speaking it is inappropriate to speak of onus in administrative law decisions. However, "it must remain the position that the applicant for refugee status carries the overall onus of establishing to the satisfaction of the decision-maker that the relevant chance or possibility exists." - Denissenko v Hasket and Minister for Immigration & Ethnic Affairs (unreported, Federal Court, Foster J, 9 May 1996, at p22.)

The Tribunal found that the applicant made genuine efforts to explain why she does not want to return to Iran. The Tribunal accepts that the applicant's father may have been arrested and detained briefly in 1981, the Tribunal accepts that the applicant may have been "scolded" by Pasdars on one occasion and that her relatives funeral may have been disrupted by pro-Islamic revolution activists. The Tribunal accepts that the applicant may have been dismissed from her employment in [the early 1980's] because of a disagreement with her employer. The Tribunal has some concerns regarding the tenuous nature of her claims that it is known in Iran that she has made an application for refugee status. Although the Tribunal is satisfied that the applicant has been - on the whole - a credible witness, it cannot be satisfied that the applicant has a well founded fear of persecution for a Convention reason in the foreseeable future in Iran. The reasons for this finding are discussed below.

A well founded fear of persecution for a Convention reason

It was suggested by the applicant's adviser that the applicant fears persecution because she is a member of a particular social group - women in Iran. She gave evidence that she disagrees with the hejab and fears persecution because of the dress regulations and that she has been treated like a "second class citizen" because she is a woman.

Particular social group and law of general application

A particular social group is a collection of persons who share a certain characteristic or element which unites them and distinguishes them from society at large. That is to say, not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society. The group must be identifiable as a social unit. Moreover, the characteristic or element which unites the group cannot be a common fear of persecution. In other words, the group must not be defined by the persecution: Applicant A & Anor v MIEA & Anor (1997) 142 ALR 331 per Dawson J at 341, McHugh J at 358-9, Gummow J at 375-6. However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be feared because of the person's membership or perceived membership of the particular social group: Applicant A per Dawson J at 340. As Burchett J said in Ram v MIEA & Anor (1995) 57 FCR 565 (at 569):

"When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that it is 'for reasons of' his membership of that group."

In relation to the applicant's claims that she would undergo persecution as a woman because of the hejab and dress regulations, the Tribunal cannot be satisfied that the applicant's fear of persecution in this regard is well founded, nor that it is Convention related.

The independent evidence above suggests that the hejab and dress regulations apply to all women in Iran, and that all women, including foreigners and the Westernised urban classes, willingly or unwillingly must wear appropriate head cover. The dress regulations and the wearing of the hejab are thus, generally applicable laws.

The question of whether application of generally applicable laws could amount to persecution was discussed at length in Applicant A & Anor v MIEA & Anor. It was held that the enforcement of a generally applicable criminal law, or laws designed to protect the general welfare of society, would not ordinarily amount to persecution. However, it was noted that where a law is not applied generally, and tends to be discriminatory, it can in appropriate circumstances, amount to persecution.

Brennan CJ said:

The persecution must be "for reasons of" one of [the prescribed] categories. This qualification ... excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of "refugee" (at 334)

Dawson J agreed with the observations of the Full Court in that case:

Since a person must establish well-founded fear of persecution for certain specified reasons in order to be a refugee within the meaning of the Convention, it follows that not all persons at risk of persecution are refugees. And that must be so even if the persecution is harsh and totally repugnant to the fundamental values of our society and the international community. For example, a country might have laws of general application which punish severely, perhaps even with the death penalty, conduct which would not be criminal at all in Australia. The enforcement of such laws would doubtless be persecution, but without more it would not be persecution for one of the reasons stated in the Convention (at 343-4 citing (1995) 57 FCR 309 at 319, per Beaumont, Hill and Heerey JJ, Tribunal emphasis)

McHugh J discussed the issue at length. His Honour stated (at 354):

... The enforcement of a generally applicable criminal law does not ordinarily constitute persecution.

Generally, however, sanctions aimed at persons for reasons of race, religion or nationality will not be an appropriate means for achieving a legitimate government object and are likely to amount to persecution. In Applicant A & Anor v MIEA & Anor it was stated:

However, where a racial, religious, national group or the holder of a particular political opinion is the subject of sanctions that do not apply generally in the State, it is more likely than not that the application of the sanction is discriminatory and persecutory....Only in exceptional cases is it likely that a sanction aimed at persons for reasons of race, religion or nationality will be an appropriate means for achieving a legitimate government object and not amount to persecution.

In cases concerned with political opinion and the membership of particular social groups, the issue of persecution may often be difficult to resolve when the sanctions arise from the proper application of enacted laws. Punishment for expressing ordinary political opinions or being a member of a political association or trade union is prima facie persecution for a Convention reason. Nevertheless, governments cannot be expected to tolerate political opinion or conduct that calls for their violent overthrow. Punishment for expressing such opinions is unlikely to amount to persecution. Nevertheless, even in these cases, punishment of the holders of the opinions may amount to persecution. It will certainly do so when the government in question is so repressive that, by the standards of the civilised world, it has so little legitimacy that its overthrow even by violent means is justified. One who fled from the regime of Hitler or Pol Pot could not be denied the status of refugee even if his or her only claim to that status relied on a fear of persecution for advocating the violent overthrow of that regime (at 355).

The applicant's evidence was to the effect that she was careful to dress appropriately; that she covered herself as required by the law, did not wear make-up, and was never in fact, arrested, detained or and apparent acquiescence to adhere to the law over the past [number] years (from the time of the revolution in 1978-[year] when she left Iran) and thereby avoid any difficulties with the authorities, there is no reason why she could not return to Iran and continue to behave in the same manner. Thus, the Tribunal cannot be satisfied that the applicant's fear of persecution [for not adhering to the dress and hejab regulations] in the foreseeable future in Iran is well founded.

In any case, even if the applicant were to be arrested, detained or prosecuted in the future in Iran for dress regulations violations or "bad hejab", given that the dress regulations and the wearing of the hejab is a law applying to all women, the applicant would be prosecuted under a law applicable to all Iranians. The applicant did not suggest and there is no evidence to suggest that the law would be applied in a discriminatory manner. The prospective punishment for violation of the dress regulations or hejab and feared by the applicant [possible lashes or a fine] while being harsh, is of a non-discriminatory kind and is imposed for contravention of a criminal law of general application. The purposes of the dress code and hejab regulations under which the applicant fears prosecution are not designed to persecuted the applicant but, as suggested by the independent evidence, to maintain "Islamic behaviour" along Islamic lines as laid down in the Iranian Constitution and laws of that country. Since the Tribunal is satisfied that any difficulties the applicant might encounter in the future would be prosecution and punishment solely for violating a law of general application, the Tribunal finds that there is no nexus between the harmed feared and a Convention reason.

Denial of employment

The applicant gave evidence that she was discriminated against in employment. She was dismissed from her employment in [the early 1980's] because of a disagreement with her employer, with whom she had a disagreement. The applicant was unemployed between [from dismissal for seven years] and then started working again in [the early 1990's]. The applicant stated that she could not work for the government, and was working privately. She was working for a company established by her husband and a number of other[s]. She was paid [ ] tomans per month.

Whether denial of employment or difficulties obtaining employment amount to persecution in a Convention sense is a question of fact and degree, and will depend upon all the circumstances, and particularly upon whether there can be said to be oppression or real harm to the person (Prahastono v MIMA, supra, at 9).

In Ji Kil Soon v MIEA (1994) 37 ALD 609 the applicant had experienced discrimination in employment in Korea which the Tribunal had found not to constitute persecution. The Tribunal?s decision was upheld in a judgment which pointed out that there can be levels of discrimination or harassment and that in the circumstances the Tribunal?s decision was open to it.

In Chen v MIEA & Anor, it was claimed that due to his relationship with foreigners, the applicant (a lecturer) was made to work as a labourer. The court held that denial of access to employment, being part of a process of harassment by authorities for the purpose of suppressing political dissent, may involve detriment of such magnitude as to constitute harm amounting to persecution:

Having regard to the to the guidance provided by the judgments in Chan, it should be concluded that the denial of access to employment, if that denial is arbitrary and indefinite and part of a process of harassment by authorities for the purpose of suppressing political dissent, may involve detriment or disadvantage of such magnitude as to constitute harm amounting to persecution for a Convention reason (Chan per Mason CJ at 388, McHugh J at 430). (per the Court at 412)

In Hapuarachchige v MIEA (unreported, Federal Court, Carr J, 18 March 1997), the Court did not rule out that discrimination in the area of employment could constitute persecution depending on the circumstances of a given case. It stated at 25:

"...it can be readily accepted that racial discrimination in the areas of education and employment may amount to persecution falling within the Convention. This will depend on the circumstances of each particular case"

Although the applicant did not work between [early 1980's to the late 1980's, after [year] until the time she came to Australia in [late 1990's], she was in fact in paid employment. The applicant has a [specified degree], and her employment between [the late 1980s to the late 1990's] as a [occupation] was in her field of qualification. Although the applicant's working conditions may not have been ideal, the Tribunal cannot be satisfied that she has been the denied the right to work, nor can it be satisfied that she suffered detriment or disadvantage of such magnitude as to constitute harm amounting to persecution for a Convention reason. Although the applicant has been dismissed from her employment since departing Iran, she submitted a letter at her hearing which was interpreted by a qualified interpreted stating:

"As per your request for leave without pay and because you have been absent for so long your service has been terminated and you should approach us to conclude any unfinished business [tie up loose ends]"

The Tribunal is satisfied that the applicant was dismissed from her most recent employment because of her long absence and not for any Convention related reason. There is no evidence to suggest that the applicant would be prevented from seeking employment in the private sector in Iran upon her return to that country. The Tribunal cannot be satisfied that the applicant has been denied the right to work, nor can it be satisfied that the applicant would be denied the right to work upon return to Iran.

Women in Iran

Apart from the specific claim and evidence regarding the dress regulations and the hejab, it has been suggested that, more broadly, the applicant has a well founded fear of persecution simply by virtue of her membership of a particular social group; "women in Iran".

Even if the Tribunal accepts that "Women in Iran" constitute a particular social group, the Tribunal cannot be satisfied that the treatment undergone by the applicant amounts to persecution nor that her fear of harm in the future [for this Convention reason] is well founded.

The applicant has never been arrested, detained, interrogated. The applicant has been "scolded" some years ago in relation to her hejab, and along with her husband was present when a crowd of pro-revolutionary activists broke up a funeral of a family member. As discussed above, the Tribunal cannot be satisfied that the applicant has a well founded fear of persecution in relation to the dress and hejab regulations, nor can the Tribunal be satisfied that the applicant has been denied employment. The applicant gave evidence that she has been issued with a passport in the usual manner and has traveled to [nominated countries] and Australia to visit her siblings encountering no difficulties departing or returning to Iran.

In Chan, Mason CJ referred to persecution as involving "some serious punishment or penalty or some significant detriment or disadvantage" (per Mason CJ at 388).

The Tribunal cannot be satisfied that the treatment the applicant has undergone in the past as a "Woman in Iran" amounted to "serious punishment or penalty" nor did it amount to some "significant detriment or disadvantage". The Tribunal therefore cannot be satisfied that the treatment the applicant underwent in the past amounted to persecution, nor can it be satisfied that the applicant's fear of persecution for this Convention reason in the foreseeable future in Iran is well founded.

Making an application for refugee status

The Tribunal has considered whether it could be said that the applicant is a refugee Sur Place, and has a well founded fear of persecution for reasons of her having made an application for refugee status in Australia.

As explained by Grahl-Madsen in The Status of Refugees in International Law Vol 1 (1966) 94, a refugee sur place is:

"A person who claims to be a refugee as a result of political events in his home country or because of his own actions that have taken place after his departure from said country ...."

Further elaboration is found in the UNHCR Handbook on Procedure and Criteria for Determining Refugee Status:

"94.The requirement that a person must be outside his country to be a refugee does not mean that he must necessarily have left that country illegally, or even that he must have left it on account of well-founded fear. He may have decided to ask for recognition of his refugee status after having already been abroad for some time. A person who was not a refugee when he left his country, but who becomes a refugee at a later date, is called a refugee "sur place".

A more thorough exposition of refugees sur place is found in Professor Hathaway's text, The Law of Refugee Status (1991) 33-39:

International law recognises that if while abroad an individual expresses a view or engages in activities which jeopardise the possibility of safe return to her state, she may be considered a Convention Refugee. The key issues are whether the activities abroad are likely to have come to the attention of the authorities in the claimant's country of origin, and if so, how they are likely to be viewed and responded to? (Tribunal emphasis)

The applicant gave evidence to the effect that:

she assumed that her acquaintance in Australia was aware of her having made an application she assumed that her acquaintance spoke about this back in Iran she assumed that the reason for her husband having been suspended from his [government] position is related to her having made an application for refugee status.

The Tribunal cannot be satisfied that the applicant has a well founded fear of being persecuted upon return to Iran as a result of having made an application for refugee status in Australia the Tribunal cannot be satisfied that the applicant is a refugee sur place.

The applicant admitted at her hearing that her fears of persecution as a result of making an application for refugee status were based on assumptions. The Tribunal notes that the applicant has no tangible or conclusive evidence to support her assumptions. The applicant's husband has not actually told the applicant the reason for his having been suspended from his [government] position - there could be any number of reasons for it that are not Convention related (for example as a result of funding cuts).

The Tribunal sent the applicant independent evidence (cited above) after her hearing, and asked her to comment on this independent evidence which suggested that making an application would not result in persecution upon return to Iran. The applicant did not specifically address the information provided by the Tribunal, but rather responded by submitting documents regarding the halting of deportations of failed asylum seekers by the Dutch authorities: the fate of 80 Iranian asylum seekers in Turkey who were rounded up by the Turkish authorities following an anti-Iranian government protest; and the expulsion from Turkey to Iran of a member of the PMOI. The substance of the information supplied by the applicant is to the effect that concern is held for Iranian political activists who seek asylum and are then returned to Iran. In light of the applicant's evidence that she has never been involved in any political activities, the Tribunal cannot be satisfied that this information is pertinent to the applicant's case, or that she falls within the category of people mentioned in this information - namely, political activists who are returned to Iran. The Tribunal therefore disregards this information as being extraneous to this particular case, and cannot give it weight.

The applicant's claims to have a well founded fear of persecution as a result of having made an application for refugee status are based on tenuous assumptions which the Tribunal finds to be unpersuasive. On the other hand, the independent evidence above suggests that the act of applying for asylum abroad is not, in itself, an offence in Iran, and it is only when an asylum seeker departed Iran illegally or was a fugitive from justice that harassment could occur. At worst, knowledge that an individual has sought political asylum abroad would result in no more than verbal harassment, unless the asylum-seeker concerned had a high opposition political profile. The Tribunal notes that the applicant gave evidence at her hearing that she departed Iran legally, she has no outstanding criminal charges against her and has never been involved in any political activities (either in Iran or Australia).

The Tribunal gives weight to the independent evidence and the applicant's evidence at hearing (that she departed Iran legally, has no outstanding criminal charges against her and has never been politically active), in preference to the applicant's unsupported assumptions and therefore cannot be satisfied that the applicant has a well founded fear of persecution as a result of making an application for refugee status. The Tribunal therefore gives no weight to this claim.

CONCLUSION

Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.

THE APPLICANT CHILDREN

No specific Convention claims were made by or on behalf of the applicant's [family], and there is no basis on which the Tribunal can be satisfied that they are refugees. The fate of their application therefore depends on the outcome of the applicant's application. As the Tribunal has found that the applicant does not satisfy the criteria for a protection visa, it follows that her [family] cannot be granted a protection visa.

DECISION

The Tribunal affirms the decision not to grant protection visas.

8 June 1999