Refugee Appeal No. 2223/94

REFUGEE APPEAL NO. 2223/94
AT CHRISTCHURCH

Before:	C M Treadwell
	A C Coulam (Member)
	A Gupta (Member, UNHCR)
Counsel for Appellant:		Ms A Malloch
		No Appearance
Date of Hearing:		12 March 1996

DECISION

INTRODUCTION

The appellant is a single woman, aged 30. Her mother, four sisters and one brother continue to live in Iran. Two other brothers have lived in Germany since the late 1980's, where they both have refugee status. The appellant's father died of natural causes in about 1987.

The appellant arrived in New Zealand on 16 November 1993, travelling on a false French passport. On arrival, and in the belief that she was a French national on holiday, she was granted a visitor's permit for three months. On 16 December 1993, four weeks later, the appellant lodged an application for refugee status with the assistance of the Refugee and Migrant Service.

The appellant was interviewed by the Refugee Status Branch on 22 February 1994 and her application was declined by letter dated 30 May 1994.

An appeal to this Authority was lodged by letter dated 20 June 1994.

THE APPELLANT'S CASE

The following account is that presented to the Authority by the appellant. It does not address the appellant's credibility therein, which is dealt with hereafter.

The appellant is a nurse by profession, having graduated from the University of X in 1988. She describes her family (who settled in the town of A, in the district of Khuzestan, when she was young) as not having any real political involvement. Her father was a supporter of the Shah, but the intensity of his politics fluctuated, depending on the events of the moment. The appellant herself does not observe Muslim traditions to any significant degree, nor hold to any particular political views.

In order to be allowed to enter university, the appellant was forced to sign a bond of loyalty to the Iranian government, confirming that she was a devout Muslim. Throughout her course, however, she was criticised on a number of occasions for breaches of the dress code. The breaches were always inadvertent, such as straying hair, or long finger-nails, but absent-mindedness was not an acceptable excuse and the appellant was verbally chastised.

After she finished university, the appellant had to undertake a year of compulsory service and so returned to the town of A, where she was posted by the authorities to a military camp. The Iran/Iraq war was close to its end and her time was divided between military and civilian patients.

After some four months, the appellant was transferred to a poor area in central Iran. During this period, her father and a brother-in-law both died and the appellant's family decided to move to the town of X (where the appellant had been at university). The appellant completed her compulsory service and moved back in with her family in X, where, for a year, she found work at a succession of hospitals. While working at one of the hospitals, the appellant was criticised for allegedly wearing lipstick and was sacked after only two days work. From there, she eventually found work at the General Hospital, where she worked for 18 months, her employment coming to an end when she left Iran. At that stage her salary had risen to 17,000 tuman per month.

During her time with the General Hospital, the appellant suffered numerous incidents of harassment. While she was quick to acknowledge to the Authority that all female staff members were kept under surveillance and were criticised for breaches of the dress code and other "un-Islamic" behaviour, the appellant feels in no doubt that she received much greater attention than did her female colleagues. She attributes this in particular to the fact that she was (although not born there) from Khazastan, an area noted for giving rise to dissidents.

According to the appellant, her first serious brush with the authorities occurred two months before her departure from Iran. A female friend had visited the appellant at home and the appellant accompanied her back into town. Returning home by bus, at about 2 or 3 p.m., the appellant alighted to find herself being followed by a man. She became afraid and began looking for someone in authority to whom she could complain. At that point, a "Blazer" car pulled up behind her and four Revolutionary Guards got out. One of them pointed out to the others that the appellant's hair was showing and they surrounded her, asking for her identification.

According to the appellant, she was afraid to give her identity card to the Guards for fear that she would be at their mercy if she did and so told them that she would only give it to them if she could be allowed to ring her family. At the time, so she told the Authority, the appellant had very much in her mind that one of her brothers had once been arrested and had not been allowed to let his family know where he was. The Guards were not willing to debate the point with the appellant and took her to the local office of the Komiteh, where she was kept until about midnight.

At the Komiteh office the appellant was placed in a cell, where she was left alone for some 6 to 7 hours, without food. Thereafter, one of the "sisters" who worked for the Komiteh came and talked to the appellant, telling her to be a good woman, to listen to the Komiteh and to be a "good Muslim". The "sister" persisted in this fashion for several hours. The appellant was then presented with a ‘good behaviour bond' (which she described to the Authority as a ‘contract') that she was required to sign. It provided that the appellant would not commit certain offences, including such actions as smiling or laughing in public. The appellant was unable to tell the Authority what would have happened if she had not signed the bond, except that she knew that she would be punished, probably by way of jail, a fine or lashes.

After the appellant had signed the bond, she was allowed to ring her sister, who came and fetched her.

The appellant's second clash with the authorities occurred a few weeks later, when she and a cousin went to visit a new shopping centre. As it happened, the authorities had formed the view that the shopping centre was too ‘westernised' in its presentation and visitors (particularly women) to it began to receive harassment from the Pasdars. When the appellant and her cousin visited it, they were detained outside the entrance by a number of them and was asked to produce her identity card. The Pasdars told her that her hair was showing and that they considered her clothes to be improper. The appellant tried to avoid having to give them her identity card and, instead, apologised to them and put her hair back in. As to her clothing, the bottom two buttons of her mantle were open and her ankles had been visible as she walked.

The appellant's apology was not accepted by the Pasdars. They began to accuse her of having long hair and nails. They became rough with the appellant, pushing her and telling her to "shut up". When they told the appellant and her cousin to accompany them to their offices, the appellant asked for permission for ring her family first. This was refused. Losing her temper somewhat, the appellant began arguing with the Pasdars, asking them why they harassed women in such a way. She told the Authority that she had in her mind at the time that if she made enough fuss that she drew a crowd, then there was a better chance that someone would tell her family where she was, in the event that she was taken away.

The argument with the Pasdars went on for some two hours, with the appellant arguing and refusing to accompany them and the Pasdars being unwilling to simply let her go. She herself found the situation to be bordering on the ridiculous but could not find a way out of the impasse without giving in to the men, which she was reluctant to do. In the end, when one of the Pasdars told her that there was a telephone in their car and that she could telephone her family from there, she agreed to do so, even though she knew that it was just a device to get them into the car.

As she expected, there was no telephone in the car, and they were taken to the same Komiteh office as before. As soon as she was in the car a blanket was forced over her head. She tried to continue the argument with the men, but one of them said "Shut up, prostitute". At the office, she was refused a telephone and was interrogated throughout the night, until about 2.00 a.m.

The appellant's purse was searched and, in her address book, a number of men's names were found. She was accused of being a prostitute, even though she tried to explain that they were simply men to whom she had family connections, such as cousins. Her nails were criticised and they were forcibly cut by one of the Pasdars. He did so very roughly, and the appellant describes her sense of humiliation and anger as being so great that she cannot remember whether it hurt or whether they bled.

The appellant was then taken to a room and seated at a table opposite a man in military uniform. He heard from the Pasdars who had detained the appellant and then asked her whether there was anything she wanted to say. He had in front of him the ‘bond' signed by the appellant a few weeks previously.

The appellant says that she realised she was now in serious trouble. She explained that the wind had blown her hair out and that she just wanted to ring her family. She was then put back in a cell for several hours. Thereafter, she was told that she could ring her family and that her punishment had been decided. In view of the fact that this was her second offence and that she had earlier signed the bond, she was sentenced to 75 lashes and a fine of 20,000 tuman. The lashes would not be inflicted immediately - rather, the appellant would be called to come in to receive them in the near future. Her cousin was fined 500 tuman.

When asked by the Authority why the lashes were deferred in this fashion, the appellant stated that she believed that it was done to instil fear. She speculated also that, if her sister had not come promptly to fetch them, she may have received the lashes that night. Not having any personal knowledge of such punishment being handed out to other women, the appellant was unable to provide any other explanation.

When the Authority asked whether the appellant had had any right of appeal against the sentence, she replied that she did not. The sentence was ‘a secondary rule', that is to say, it was created by the Mullahs, rather than being an edict directly from the Koran, and there is accordingly no right of appeal.

The appellant did not go back to work after her release from custody. She says that she felt "emotionally worked up" and unable to face people.

After she had remained at home for a few days, the telephone rang one morning. The appellant answered it. A man's voice told her that "they" knew of her problem and that "they" had a problem too. The appellant was asked if she would be interested in helping them. She replied that she did not understand but the voice simply told her to go to a house in a street some 1 to 2 kilometres away.

The appellant caught a taxi to the street named by the man, and then walked along the street to the house. She found the front door unlocked and, inside, an injured man lying on a mattress. He had a small wound in his shoulder, consistent with a bullet, but with no exit wound. His shoulder was reddened and swollen and he was both weak and in pain.

The man asked the appellant to treat his shoulder but the appellant was initially reluctant to do so. She told him that she was a nurse, not a doctor, and that all she could do was tell him if it was infected and change his dressing. She did not, however, have any medical supplies. The man did not want her to go but there was nothing she could do for him and so went home.

The following morning, the appellant received a second telephone call, asking her to return to the house. The appellant thought about it and then decided to do so. She took some dressing supplies and painkiller and returned to the house. There, she dressed the man's wound. There had been a serious demonstration in town a week or two earlier, in which two Mullahs had been killed. The appellant asked the man if he had been involved in the demonstration but he would not tell her. They talked for some time and the appellant found herself trusting the man. She told him of her problems. After a while she left him and went home.

The following day the appellant received a further phone call. Again, she was asked to go to the house. She went there, expecting to have to dress the man's wounds again, but found that he had gone. There was, however, a note telling her that, because she had helped them, they would help her. She was directed to go to a particular house in the town of X, near the Turkish border, with a passport photograph of herself, without chadoor. The note asked the appellant for "a donation" of US$1,000. The appellant returned home, wondering what to do. That evening, she told everything to her sister and asked her advice. Her sister told her she must go, telling the appellant that she would attend to payment of the "donation" on the appellant's behalf.

The appellant went to a women's photography shop in town and had a photograph taken. There was no difficulty in having a photograph taken without chadoor, she explained to the Authority, because it is relatively common for Iranian women to request this, in private. She then packed a small bag, taking some clothes and her papers, but no significant amount of money. She told her mother only that she was going to visit a friend. She then caught the night bus to X, where she took a taxi to the address given to her. There, she met a family who welcomed her. She stayed with them for the next day then, in the evening, she was taken by car to the border town of Y, where she was handed over to two men. They, in turn, took her by car through the town and into Turkey. The car stopped some distance into Turkey and the two men led the appellant on foot for some distance, to a cottage in the countryside, where they left her. Before departing, they took her passport photograph.

The appellant remained at the cottage for about 10 to 12 days, alone. There was food in the cottage and, in any event, there was nowhere for her to go. Eventually, a man arrived at the cottage by car and drove the appellant to Istanbul. There, she was taken to the airport, where she waited for several hours. The man who had driven her to Istanbul gave her an air ticket and a passport and told her she was going to Malaysia.

On arrival in Kuala Lumpur, the appellant wandered around the airport terminal for some hours, before being approached by an Iranian man, who told her that he had been asked to arrange accommodation for her. He then took the appellant to a boarding house that he and his wife ran, where she stayed for 10 to 12 days. Then, one evening, two men came to the house and told the appellant that she was to accompany them to the town of Z, where she was to wait at another house. The appellant went with them and stayed in Z for one day. The men then returned to her, with another airline ticket and a French passport. They drove the appellant to the airport and saw her onto a flight for New Zealand, via Singapore.

Since arriving in New Zealand, the appellant has been unable to communicate openly with her family in Iran, although she misses them a great deal. She writes to them from time to time, and speaks to them on the telephone. Most recently, she wrote to them in August 1995, sending some magazines and some shoes for her sister's children. The parcel did not reach them until February 1996. It had been opened by the Iranian post office and the magazines had clearly been read.

The appellant does not often communicate with her brothers in Germany, because it is expensive to do so and she reserves her funds for calls to her mother. Her mother has told her that her sister in under a great deal of pressure at her place of work to become the third wife of a Mullah. When the appellant asked her mother if there have been any enquiries for her, her mother simply told her not to worry about it.

The appellant told the Authority that she is not a strong adherent of the Muslim faith. She does not observe Islamic practices and does not know how to participate in Islamic rituals. She feels oppressed and demeaned by the treatment she has received as a woman and cannot face the prospect of returning to the life that she led before. In a written note to the Authority, filed in anticipation of the appeal hearing, the appellant tried to express some of her feelings about Iran as, inter alia:

"Woman [in Iran] are not counted as equal as men.

Killing your wife is justified, if she has an affair.

Woman cannot testify in Court.

Woman cannot have normal lives like men, they are forced to cover at all times in public (don't you call this prejudice by way of sex).

Having a relationship outside marriage has a death penalty. Going back to Iran I can be prosecuted for having a boyfriend in New Zealand.

I do not practised Islam and I would not know how to practice for some Iranian Priest. The penalty for Muslims who give up their religion is death" (sic)

The appellant fears that, if she is returned to Iran, she will be forced to undergo the lashes to which she has been sentenced. She is also afraid that she will be forced to return to the strictures of the Islamic dress code, which she found oppressive and demeaning at the time she was in Iran. Now that she has lived in New Zealand for some time, she would find it even more difficult to tolerate.

THE ISSUES

The Inclusion Clause in Article 1A(2) of the 1951 Refugee Convention and the 1967 Protocol relating to the Status of Refugees relevantly provides that a refugee is a 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."

In the context of this case, the four principal issues are:

1. Is the appellant genuinely in fear?

2. Is it a fear of persecution?

3. Is that fear well-founded?

4. Is the persecution feared persecution for a Convention reason?

In this regard, the Authority refers to its decision in Refugee Appeal No. 1/91 re TLY and Refugee Appeal No. 2/91 re LAB (11 July 1991). In the same decision, the Authority held that in relation to issue 3, the proper test is whether there is a real chance of persecution.

Assessment of the appellant's case

1.Is the appellant genuinely in fear?

In answering this question, it is necessary for us to address first the appellant's credibility.

For reasons which will become apparent, we propose first addressing this question as it applies to the appellant's account of events up to and including her second arrest and sentencing, then in respect of events thereafter.

a) The appellant's claim in respect of events up to and including her second arrest and sentencing

We have no difficulty in accepting the appellant's credibility in respect of all events up to and including her second arrest and sentencing. Her demeanour during this part of her evidence was consistent with the truth. She gave clear, direct answers to all questions, with no hesitation whatsoever. Her responses were lively and animated and she was clearly not deterred by questions that might reasonably be seen as ‘difficult', responding as if relieved to have the opportunity to grapple with them and to reply to the adverse findings in the decline of her original application by the Immigration Service.

The appellant's answers were also consistently appropriate to the question. If she did not know an answer, then she had no hesitation in saying so. If her response was in some respect speculative, then she said so.

The account given by the appellant of the events leading up to and including her second arrest and sentencing have been told by her with consistency throughout the course of her refugee application.

We also bear in mind the fact that the appellant had a well-settled career in Iran, earning a comparatively good salary. With no family in New Zealand, and no pre-planning carried out in respect of her re-settlement here, it is a reasonable inference that her travel from Iran was undertaken in haste and under compulsion. Such inference is, obviously, consistent with her account.

b)The appellant's claim in respect of events after her second arrest and sentencing

It was apparent to the Authority, however, that there was a significant change in the appellant's demeanour as its questions moved to the events after her second arrest and sentencing.

In describing to the Authority her account of the mysterious telephone calls, her visits to the injured man, the offer to help her flee from Iran and her travel to Istanbul and Malaysia, the appellant was hesitant (and sometimes stumbling) in her answers. She tended to avoid eye contact with the Authority members and the tenor of her voice lost the confidence and animation that had very clearly marked her earlier evidence. The difference in her was striking.

We also take into account the inherent improbability of many aspects of the appellant's account of her escape from Iran. In particular, we find as improbable:

that a single Iranian woman, even one of the appellant's obvious strength of character and forthrightness, would respond to an anonymous telephone call from a strange man and go alone to a strange address, without knowing more.

that the caller would telephone the appellant at home on three consecutive days, given that the appellant would normally be at work at that time. Further, it must be remembered that the appellant did not live alone, but with her mother and other members of her family. In the circumstances, it would be a coincidence of some significance for the calls to have been taken by the appellant herself on each occasion.

that she would take the risk of talking to the injured man, in circumstances that would clearly lead her into trouble if they were discovered, given that she was already under sentence of lashes for anti-Islamic behaviour.

that her modest gesture of dressing the man's wound would result in his associates undertaking elaborate risks on her behalf and committing thousands of dollars worth of travel to her.

that her ‘helpers' would think to send her to New Zealand, particularly when countries such as Germany would have been easier, and certainly less expensive, to reach.

that the injured man's associates should ask for "a donation", yet only in a sum clearly well-short of the real costs of smuggling her out of the country.

Cumulatively (and coupled with the dramatic change in her demeanour), these aspects of the appellant's explanation as to how she came to New Zealand satisfy us that her evidence in this regard is, in at least some material respect, not truthful. We are satisfied, of course, that the appellant arrived alone in New Zealand on a false French passport, but as to her travel up to that point, we find that the appellant's account is not truthful.

We have given careful thought to the question whether the appellant's lack of credibility regarding her travel to New Zealand should cause us to doubt the truth of the remainder of her claim. In the end, we have reached the view that the convincing nature of her evidence as to the first part of her claim and the inescapable fact that she did depart Iran in obvious haste persuades us to extend the benefit of any such doubt in favour of the appellant. We take into account the fact that the manner and method of the appellant's departure from Iran does not in any event bear directly on the question of whether she is a refugee within the meaning of the Convention.

For the foregoing reasons, we find the appellant to be genuinely in fear.

2.Is the harm feared by the appellant of sufficient gravity as to amount to persecution?

The harm feared by the appellant is that, if returned to Iran, she will be forced to undergo the sentence of 75 lashes. Further, she fears persecution by way of ongoing enforcement of the Islamic dress code and other Islamic strictures imposed on women in Iran.

The imposition of 75 lashes is a serious violation of the appellant's right to freedom from torture and from cruel, inhuman or degrading treatment or punishment, as provided by Article 7 of the International Covenant on Civil and Political Rights. We have no hesitation in finding it to be persecutory.

As to the appellant's fear of harm because she will be forced to comply with the moral codes and related Islamic laws, we are also satisfied that it amounts to persecution.

That such forced observance can be persecutory was a point explored in depth in our decision in Refugee Appeal No 2039/93 Re MN (12 February 1996). At page 38 - 39 of that decision, referring to the decisions in Fisher v INS 37 F. 3d 1371 and Fatin v INS 12F. 3d 1233, the Authority noted:

"While the appellant has not advanced her case on the Fisher basis (i.e., that the moral codes imposed on Iranian women are persecutory because they represent a conception of Islam that she finds abhorrent and because the regime is attempting to suppress her beliefs through sanctioning her for non-compliance with the moral codes), the Fisher decision is nevertheless important for the recognition it has given to the significance of being required to comply with the codes and requirements fundamentally at odds with one's own conscience and beliefs or deeply held convictions, or to engage in conduct that is abhorrent to one's own beliefs.

The 9th Circuit in Fisher is also helpful for the manner in which it distinguished the implicit holding in Fatin at 1241-42 that not only must women establish that there is "persecution" in Iran, but also that there is a real risk of her being subjected to persecution. In this regard, the woman would have two options if she returned to Iran: comply with the Iranian laws or suffer severe consequences. Thus, while the 3rd Circuit in Fatin agreed that the indicated consequences of non-compliance would constitute persecution, it was still necessary to enquire whether Ms Fatin's other option - compliance with the Islamic laws - would also constitute persecution. It held at 1242 that on the evidence adduced by Ms Fatin, she had not shown that compliance with the gender-specific laws would be, for her "profoundly abhorrent" and thus aptly called persecution. The 9th Circuit in Fisher, addressing this issue, held that the refugee claimant did not have to show that she would take conscious steps to violate the moral codes to discharge this burden. Recognition had to be given to the fact that violation of the codes could occur inadvertently."

We concur with this view. Although the appellant is an intelligent and articulate woman (or, perhaps, because of it) she is also of obvious strength of character and determination. It would not be unfair to describe her as wilful or impetuous. She has already demonstrated on two occasions her propensity to confront state officials in Iran, even when in a vulnerable position. There can be little doubt that ongoing compliance with the moral codes would place the appellant at real risk of further instances of persecution.

3.Is the persecution feared by the appellant for a Convention reason?

We find that the persecution feared by the appellant is for reasons of imputed political opinion and religion. Again, we refer to, and adopt, our earlier findings in Refugee Appeal No 2039/93 Re MN (12 February 1996) where, at page 42 - 43, the Authority recorded:

"It has been noted by Linda Cipriani in "Gender and Persecution: Protecting Women Under International Refugee Law" (1993) 7 Geo. Immigra. L.J. 511, 514 that the status of women in the Qur'an is exemplified by such passages as:

"Men are the managers of the affairs of women because Allah has made the one superior to the other and because men spend of their wealth on women.... As for those women whose defiance you have cause to fear, admonish them, and keep them apart from your bed and beat them."

The extrapolation of dictates of this nature is explained by Shahrzad Mojab in "Women from Iran" [a paper delivered at the CRDD Workshop of Women Refugee Claimants, Toronto, 21 June 1990], at 14:

"While inequality between women and men exists in all societies and in all religious traditions, it is important to realise that Islamic teachings on the physical, emotional and intellectual inferiority of women are no longer filed away in the Holy Book Koran or in other religious texts. We must remember that the Islamic principle of inferiority of women is now the basis of the policy of a despotic state that uses extreme forms of violence in order to regulate male/female relations on the basis of Islamic dogmas. The Islamic state uses without any restraint the enormous state power in order to regulate the life of women from the moment they are born to the last stage in the burial ceremonies. Every moment in the life of women is regulated in one way or another by the powerful state machinery."

In this context, it can be readily understood that the rejection by a woman of such teachings and of the state power used to enforce those teachings will have consequences at both the religious as well as the political levels. This is the almost inevitable consequence of any challenge to the fundamental tenants of a theocratic regime..."

We concur with this view and are satisfied that the persecution feared by the appellant is for the Convention reasons of "political opinion" and "religion".

4. Is the appellant's fear well-founded?

We find that the appellant's fear is well-founded.

As to the sentence of 75 lashes, there is clearly much more than a real chance that the sentence will be carried out and, on that ground alone, the appellant's claim succeeds.

We should add though, that we are also satisfied that the appellant's claim should succeed in respect of her fear of persecution by reason of the ongoing enforcement of the dress code and related Islamic laws. The appellant presented to the Authority as strongly westernised in her dress and attitudes (not, perhaps, unexpected given that she was already fifteen years old at the time of the Revolution and that she has now been in New Zealand for nearly three years). In terms of her personality, she presented to the Authority as intelligent, articulate, with high self-esteem and a determined nature. It is axiomatic that, if she is returned to Iran, she will be required once again to conform to the moral codes and related strictures placed upon women in Iran. As we have already stated at page 14 above, there is a real chance that, in those circumstances, her character will bring about further confrontation with the Iranian authorities, whether intentionally or through inadvertence.

For the foregoing reasons, we are satisfied that the appellant's fear is well-founded.

CONCLUSION

In summary, we find:

1. The appellant is genuinely in fear.

2. The harm feared by the appellant amounts to persecution.

3. The persecution feared by the appellant is for Convention reasons, namely political opinion and religion.

4. The appellant's fear is well-founded.

For the foregoing reasons, the appellant is a refugee within the meaning of Article 1A(2) of the Convention. Refugee status is granted. The appeal is allowed.

Chairman