The claim before the delegate
3 In her application for a Protection (Class XA) visa dated 9 February 2012 the visa applicant said that she arrived in Australia from Iran on 15 August 2011 to visit her daughter and son. She had a visitor visa issued by the Australian Embassy in Iran on 13 July 2011, valid to 15 February 2012. She had previously visited her children in Australia for three months in 2010. In April 2011, she had travelled for 10 days as a tourist from Iran to Malaysia and Singapore.
4 In a three page document dated 9 March 2012, the visa applicant set out her claims in narrative form. The essential parts were as follows:
… The reason that I have applied for this visa is because recently I have been convicted by the authorities in my country to imprisonment and I have the fear that as soon as enter in the territory of my country Iran, I will be arrested and get sent to the jail.
…
I am a 59 year old mother of 2 children who got divorced from my husband 27 years ago and I never got married with anyone else after that because I couldn't trust any men to be my husband just because of the hard time and bad years that I spent with my ex-husband and the discrimination that he imposed to me. So, I never got married again and was living lonely just by myself and in some stages with my children.
After overcoming the consequences and issues of having a divorce and separation and struggling to survive and have a new life which took me at least 10 years and I don't even like to remember those unpleasant years and days, with the helps and favours of my brothers and parents I got on a good track and I found a job and did a course to get a better job as an accountant which has been my job since 5 years ago and tried to have a happy life.
After being and living almost 25 years lonely, around one and a half years ago I got introduced to a man who was one of our clients and I felt that I can have a feeling to him. So we started to have some dates together for almost 3 months to get along with each other and finally we felt and believed that we can be good partners for each other. Hamid (my partner) proposed me to marry him but unfortunately as I've always been cynical to all the men since my unsuccessful marriage and also I had promised myself that I'm not going to marry anyone ever in my life, I refused his proposal, however we decided to live with each other in the same place but just not to be married as it would make it easier for us to get separated if I would want it which never happened and we were enjoying being with each other.
I was thinking the bad days are gone forever and I was nearly forgetting my bitter past with my ex-husband that an incident shook and destroyed all our happiness and welfare.
It was exactly on my last birthday that we had a party in our house with our friends to share our happiness that the police and agents of the police department of Iran invaded my house which I never found out how they spotted it.
After inspecting the house and mistreating everybody because they found some alcohol drinks in the place they arrested all of us and took us to the detention centre. After being interrogated they found out that the place was my and Hamid's house and we have never been married to each other and just have been living with each other constantly. That was the point that since then they kept me in apprehension because they accused me to adultery and having illegal relationship with a man who is not my husband and it's against the Islam religion. My only accusation was living a man who wasn't my husband whereas I wasn't even married to anyone else.
They kept me 3 weeks in the detention centre and interrogated me and tried to torture me physically and morally as well. All the accusation was going around this point that in Islam this kind of relationship is forbidden and when I told them that it's a matter of privacy and being in such a relationship is a part of my personal and private life they accused me again of being a prostitute and even intimidated me to rape me, they told me if you can have relationship with a man who is not your husband so you can have it with us as well.
They didn't want to let me out of the detention even with a bail but thank my God first and then my brothers that they hired one of the best lawyers in the town to facilitate get me out of detention with a massive bail which was my parents' house and worth more than 100 thousands Australian dollars.
I came out of the jail and got told by my lawyer that we will have to attend the court sessions later to defend me, because according to Islamic rules this kind of relationship is prohibited and in some circumstances its' punishment is being executed by stoning.
I got summoned to 2 hearing sessions in the court with my lawyer to defend myself and I had nothing to say but this is my private life and I haven't done anything against the civil law or any harms to the society. My lawyer was very optimistic that because it was a matter of my privacy and they didn't even catch us in a public place there shouldn't be any serious consequence and punishment for that and he can rectify the matter and I shouldn't be worried about it too much. My lawyer attended the 3rd hearing session without me.
After my second hearing session as I was so much under pressure and having a horrible time under arrest and interrogation after discussing with my daughter she suggested me to come to Australia to visit each other and having a relaxation as she was so anxious and stressed out about me too. So, I came to Australia to visit my daughter and we were having a good time together that a phone call destroyed my life again. My lawyer notified me that he has received the final verdict from the court which has convicted me to 20 years jail and 150 lashes for adultery and 12 years prohibition o[n] social services.
I had 2 choices: staying in this country and seeking protection from the Australian government as a democratic government against the discrimination and inhumanity incurred to me by Iran's authorities and judicial system and bigot mullahs and the second choice was returning to Iran and going to the jail, being humiliated by them, being intimidated to get raped by them and spending 20 years of my life in the jail which I would never imagine to end this period alive and come out of the jail. And this all could happen to me just for having a relationship with someone who was not my husband and not married and I wasn't married either which I believe is a part of my basic human rights and privacy and which is absolutely legal in most of the countries around the world especially the democratic countries such as Australia.
5 Returning to the visa applicant's application for a Protection (Class XA) visa, she claimed to fear returning to Iran "[b]ecause the court in Iran has convicted me to 20 years imprisonment and 150 lashes, so if I go back to Iran they will arrest me and punish me for something which is absolutely a part of my private life and only my business and privacy." She claimed "the authorities and Iran's government and judicial system will harm me. They will send me to jail if I go back to Iran just because I was using my personal and basic human rights to have a relationship with someone in a way that in most of the free and democratic countries it is not a problem at all, but in my country this is something like a crime, that's why they have sentenced me to lashes and 20 years jail." The visa applicant said she had received a definite and final verdict from the court. The visa applicant said she received the assistance of her son in completing the application form. She indicated that she would be providing later the verdict and writ of summons of the Iranian court.
6 The visa applicant gave the name of a private company in Iran where she said she had been employed for five years as an accountant. She ticked a box saying she was currently unemployed and that she financially supported herself from her savings account.
7 Under the heading "character details" the visa applicant ticked the boxes "No" against the questions whether she had ever been convicted of a crime or offence in any country or been charged with any offence currently awaiting legal action.
8 The visa applicant provided to the delegate a number of documents, and English translations of some of them. One document, said to be a subpoena, was dated 31 March 2011 and specified the date of attendance as 4 April 2011. A further similar document was dated 6 July 2011, specifying the date of attendance as 21 July 2011. A third document was dated 8 January 2012 and contained the following:
The verdict
With regards to [the visa applicant], 59 years of age, occupation: accountant, graduated with Accounting diploma, divorced, residing in Esfahan, citizen of Iran, with advocacy of Mr. Rahim Afshari, accused of adultery and having illegitimate sexual relations against the Islamic rules , she is alleged and guilty in accordance to article 52 of Islamic penal rules and also in compliance with article 22 of Islamic penal rules and calculation of apprehension period, she is sentenced to 20 years imprisonment and 150 lashes, and according to virtue 7 of article 10 of civil and Islamic offences rules she is sentenced to 12 years prohibition of all the social services. This verdict is definite and final in compliance with article 43 of Islamic penal rules.
9 The visa applicant was interviewed, by telephone, on 12 April 2012, a Farsi (Persian) speaking interpreter being present. It appears that the interviewer asked the visa applicant to send to her the visa applicant's passports (current and expired), a photo of Hamid (her partner) and her verdict and subpoenas which had been certified by the Australian Federal Police. According to the visa applicant she tried to contact her lawyer in Iran to send to her the first subpoena which was issued to her for her first court session but she could not find him. She had asked her brother in Iran to go to the lawyer's office but he learnt that the lawyer had been arrested by the authorities. For that reason the visa applicant sent the verdict and one of the subpoenas and a photograph captioned "[t]his is a photo of Hamid, that I don't know how he is now."
10 There was an email from the case officer of the Department dated 18 April 2012 to the Country Information Service of the Department which included the following:
The sentences she received are different/heavier from the info I find on the Islamic penal code, and she couldn't provide an explanation when put to her. The stamps on the documents (in Farsi and translation) appear unusual eg English stamp on Iranian document.
Client [sic] is unable to produce the originals, claiming that they were scanned & emailed to her by her lawyer in Iran. Her claims and my decision hinges on the the [sic] sentences she receive [sic], if indeed she received them. CICNET has information on fraudulently obtained documents but I couldn't find any documents to compare.
Grateful for your adv as soon as possible, on the appearance of the documents, if they appear consistent with what court documents from Iran should look like, or point me in the right direction.
11 There is also an email, in reply, dated 19 April 2012 forwarding documents relating to: the range of sentences handed out to females charged with committing adultery; issues dealing with court documents, procedures etc; and the probability of exiting Iran while trial/sentencing is pending. The writer suggested that the case officer contact the Document Integrity Section concerning the authenticity of the visa applicant's documents.
12 An email from the Document Examination Unit, dated 20 April 2012, contains the statements "what you have is a fair example of what we are seeing in relation to this type of Iranian legal document… Their appearance is pretty consistent with what I have seen here over a number of years and for legal documents they are very basic… The fact that these are non-original documents compounds any examination - alterations are difficult to detect, are the wet stamps genuine or prints, are the signatures actually written, etc."
13 By email dated 24 April 2012 the case officer raised questions under the following topics and said that the visa applicant had seven calendar days in which to provide the information requested, most of the statements being followed by "I would like your comment/s on this":
Relationship
"I am not convinced from your explanation, that you would choose to live with a man when you have the opportunity to marry him, knowing very well that it is against Islamic laws in Iran and the risk involved."
…
"I am not convinced that if you were committed in this relationship and have lived with him for 12 months, you would not have:
• Been introduced to his family, or spoken to them over a 12 months period;
• Made every effort to find out what happened to him, especially when you stated yourself, that you suffered during detention;
• Tried to help him
Therefore I do not believe your explanation on this relationship, Hamid or the incidence [sic] you described that occurred"
Court judgment
"You mentioned that your lawyer told you that the verdict you received is a final order and cannot be changed. Country information states that judgement in Iran can be appealed within 30 days, which contradicts your statement."
Last departure from Iran
"… I find it difficult to believe that someone who has outstanding issue [sic] with the government, in your case a court case pending court judgement would be allowed an exit permit to leave the country, without being questioned or stopped at a major airport in Tehran, despite the bail. This is because it seems to me a serious crime under Islamic law judging by the sentence imposed."
Court documents
"As explained during the interview, the sentences you received differed significantly from country information, and I have grounds to believe that they were not genuine court documents.…
You mentioned at interview [sic] when I requested the originals, that they were kept with your lawyer, who emailed them as scanned documents to you. I requested that you forward your lawyer's email to me, and you subsequently provided Certified true copies of the Verdict and a Subpoena which differ significantly from corresponding documents on your file.
I would like your comment/s on 1) The original documents, where are they, and if with you, how you obtained them, and provide supporting evidence; 2) How the 2 sets of documents provided at different time [sic] are different."
Arrest warrant
"Country information states that if sentenced, Arrest warrant [sic] would be served on the convicted, and if this is not possible, then it would be published on [sic] local papers.
Can you provide any evidence of the Arrest warrant?"
Declarations (Forms 866 & 80) - Employment, visa refusal and outstanding legal matters
"(When answering this question, please be reminded of the Declarations you made in your application form)
You were refused a Tourist visa application in 2010, and casenote [sic] from your application stated that you were 'Unemployed" at the time.
1) EMPLOYMENT
• The information you provided in your Protection visa application and supporting statement stated that you had been employed as an accountant for 5 year - this contradicted the above;
2) VISA REFUSAL IN 2010
• Was not declared in Form 80
3) OUTSTANDING COURT MATTER
• Was not declared in your Protection Visa application and Form 80"
14 A four page single-spaced typed document dated 28 April 2012 was then provided by the visa applicant dealing with these matters.
15 As we have said, the visa application was refused. The decision record of the delegate is dated 15 May 2012. A covering letter, dated 17 May 2012, by the manager stated: "[a]fter careful consideration of all the information you have provided, I was not satisfied that you met the relevant criteria for the grant of this visa as set out in Australian migration law."
16 The reasoning of the delegate was as follows.
17 The delegate accepted that although adultery continued to be treated as a serious crime in Iran, its categorisation and punishment varied depending on individual circumstance, and that the stated sentence for an unmarried person convicted of adultery is 100 lashes.
18 The delegate found implausible the visa applicant's decision putting herself and Hamid at risk with the authorities given that the Iranian authorities had not in the past concealed the harsh penalties imposed on people convicted of adultery in Iran. The delegate found implausible the visa applicant's decision to expose herself to the risk of being caught by the authorities rather than remain single and lose the financial benefits associated with her arrangement with Hamid. The delegate found the visa applicant's decision to be involved with a man, married or not, contradicted her own words that she was "cynical to all men". The delegate found the visa applicant's claims and her behaviour contradictory, in having a party at their house involving a group of people "where those attending would find out about her relationship with Hamid, and that a party of this size might attract some undue attention." The delegate found it unusual that the visa applicant did not appear to pursue all possible avenues to find out about Hamid considering her own treatment by the police during her detention. Since the visa applicant claimed Hamid was a client of her company, her company contacts presented another avenue to find out about Hamid, but this was never raised in her statements, nor was it mentioned at the interview. As to the visa applicant being allowed free entry and exit without questioning given her outstanding court case, the delegate did not accept as genuine the explanation that it was because of the bail put up by her family, the fact she was not yet convicted and that it was not a serious crime. Country information stated that adultery was considered a serious crime in Iran. The delegate said "I am satisfied that she did not encounter difficulties with the Iranian authorities at the airport because she was not blacklisted, as there was not [sic] outstanding court case against her."
19 The delegate referred to the Islamic Penal Code of Iran (the Penal Code), article 88, providing that the punishment for an unmarried adulterer or adulteress shall be 100 lashes. While the delegate accepted that the visa applicant may have no knowledge of the laws in Iran, "in the absence of strong supporting evidence for the court documents she presented, I find it reasonable to accept the information from reliable sources in Country Information, therefore I have strong doubts on the genuineness of the court documents she presented."
20 In relation to the court documents, the visa applicant claimed her lawyer emailed her the court documents and sent her two sets of documents by post. The delegate said the visa applicant provided contradictory information when questioned on the sentence she received and the court documents she presented. The delegate said: "[c]onsequently I do not find her explanation plausible as I do not believe an important event such as the way she received the court documents from her lawyer could have slipped her mind during the interview." The delegate also said: "[t]he applicant has also failed to provide original court documents despite being requested to do so. I therefore do not accept that the court documents the applicant presented are genuine court documents from Iran."
21 The delegate also said, in relation to the application forms, that the visa applicant had deliberately provided misleading and false information in order to achieve the outcomes she desired.
22 The delegate concluded that the applicant was not a credible witness to her claims. The delegate referred to her relationship with Hamid, her exit from Iran, that the court documents were not genuine and, in relation to the forms, that the applicant had deliberately provided misleading and false information. The delegate did not accept the visa applicant's claims that she had been convicted in Iran for having an adulterous relationship and that she received the sentence she claimed.
23 As the delegate did not accept the applicant's claims, the delegate was not satisfied that the visa applicant had a real chance of being persecuted for a Refugees Convention reason or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the visa applicant being removed from Australia to Iran, there was a real risk that she would suffer significant harm.