IFIR letter to the UNHCR in South Korea and South Korean Immigration offices Ministry of Justice



13-08-2012

UNHCR in South Korea and
South Korean Immigration offices
Ministry of Justice
Via Email & Post
_________________________

RE:            Hosein Javaherynia borne in Iran
_________________________

To Whom It May Concern

  1. I am writing to you on behalf of the International Federations of Iranian Refugees (IFIR) to express our serious concern on the Ministry of justice in South Korea' treatment of Mr. Hossein Javaherynia’s application for refugee status. This is the third IFIR’s letters that has issued concerning Mr. Hossein Javaherynia’s application for refugee status and his unfair asylum procedures and decisions made by Ministry of Justice.

  1. IFIR is an international non-governmental organization with over42-branches in 16 countries worldwide which advocates promoting and protecting the rights of Iranian refugees and asylum seekers; provides evidentiary support through its Documentation Centre; and provides referrals for services.  As a record of IFIR's professional competence and credibility, the Immigration and Naturalization Service (INS) Resource Documentation Centre requested that IFIR develop a Master Exhibit on the Status of Women in Iran.  IFIR's fact sheet on the same issue has been distributed to asylum officers nationwide.

  1. IFIR is concerned learn that Mr. Hossein Javaherynia has been rejected by the Ministry of justice on 31 March 2005. In your decision letter on Mr. Javaherynia’s application for asylum, you have some serious reasons concerning to denied Mr. Javaherynia’s application for refugee status. You mentioned that there are some factors in on Mr. Javaherynia’s case that may prove on Mr. Javaherynia is not entitled to the protection by the Ministry of justice and does not qualify for refugee status. But IFIR still believes that the serious reasons concerning given by the Ministry of justice for on Mr. Javaherynia’s application reveal insensitivity to the circumstance of on Mr. Javaherynia’s activities, actual conditions in Iran as well as refugee flight. We believe on Mr. Javaherynia’s has a well-founded fear of persecution based on political opinion. The main points relevant to Mr. Javaherynia and the arguments against the rejection decision of the Ministry of justice are as follows:

“The applicant sought asylum because he might be persecuted from the government of Iran, But judging from his statement, submitted materials, and the circumstance of his statement The refusal decision of 5 October 2004 that the application for his refugee status could not Be recognized as "well-founded fear of being persecuted" prescribed under Article 1 of Convention relating to the status of Refugees is justified.”

The arguments against the concerning decision of the Ministry of Justice in South Korea on Mr. Javaherynia’s case:

General points:

  1. The fact that Mr. Javaherynia did not fulfil the criteria of the refugee definition when he left Iran, or He doesn’t proclaim his political activities in South Korea and his connection with IFIR, does not mean that he can not qualify for refugee status at the present time. In his case, circumstances which mean that he now has a well-founded fear of persecution in his country of origin have arisen after his departure from Iran and after the second application. He has a sur place claim.

  1. The analysis of whether or not Mr. Javaherynia comes within the scope of the refugee definition is forward-looking: what needs to be established, as a general rule, is whether there is a reasonable possibility that Mr. Javaherynia concerned will be subjected to persecution linked to a Convention ground if returned to Iran at present or in the future. Past persecution is generally an indication that such a risk exists, but Mr. Javaherynia’s fear of persecution may be well-founded even if he has not suffered such treatment previously (see paragraph 45 of UNHCR’s Handbook).

Particular points:

  1. The nature of Mr. Javaherynia’s activities is on based of the nature of any political activist. Mr. Javaherynia began his political activities when he made linked to activist of political opponent of Iranian regime.The motive behind the Javaherynia’s activities was and is to present his political opinion against Islamic republic of Iran. The nature of his political acts was regarding to developing his political knowledge and finding the way and rules of political activities in abroad in connected to IFIR.

  1. In determining whether a political offender can be considered a refugee, regard should also be had to the following elements: personality of the applicant, her political opinion, the motive behind the act, the nature of the act committed, the nature of the prosecution and its motives, finally, also, the nature of the law on which the merely a fear of persecution and punishment with the law for an act committed by her (UNHCR’s Handbook)

SUBSTANTIVE ANALYSIS

BACKGROUND INFORMATION:

  1. Mr. Javahrynia was supporter of People Mojaheind organization (Sazemane Mojahedine Khalq). It is common knowledge that political opposition and their supporter and activists in Iran have been and continue to be brutally suppressed.

  1. Mr. Javaherynia was distributing declarations of Mojahein and writing slogans in support of Mojahedin as a banned organization.  According to Human Rights Watch "all forms of political expression and dissent are strictly curtailed" and "underground publications and leaflets circulate clandestinely, but at a high risk to their authors and distributors" (HRW, Guardians of Thought, Limits on Freedom of Expression in Iran,).

  1. Mr. Javaherynia was arrested twice in 1994. He was severely tortured.  According to Amnesty International, the tortures Mr. Javaherynia faced such as beatings, flogging and prolonged suspension by the wrists with one arm forced behind the back and the other over the shoulder so that the wrists meet behind the back are frequently reported types of torture.  The suspension torture causes intense pain.

  1. During Mr. Javaherynia imprisonment, he also faced tremendous psychological tortures. Tens of thousands of political opponents have been executed by the Islamic regime.  Almost all political executions take place in secret so precise figures are unknown.  Amnesty International has received reports of scores of secret political executions at Evin Prison in Tehran (Amnesty International, Violations of Human Rights 1987-1990, MDE 13/21/90).  For political prisoners in Iran, stress and uncertainty are constant pressures.  Political prisoners have no way of knowing when they will be released and whether they will be released or executed. In its latest annual report, Amnesty International states that thousands of political prisoners continue to be held by the Islamic Republic of Iran.  (AI Annual Report). 

  1. Mr. Javaherynia was finally released after commitment of not involving in any political activities against Islamic Republic of Iran. He was told also to inform the security about every change in his life.  According to Amnesty International, released political prisoners are subject to physical restrictions and those who fail to present themselves when summoned risk their own or their relatives' detention (AI, Iran Imprisonment, Torture and Executions of Political Opponents, MDE 13/01/92). 

  1. Once released, former political prisoners are discriminated against. Mr. Javaherynia was barred from: continuing his education, many jobs and leaving the country.  As a released political prisoner, he was denied the most basic social and political rights. He continued to fear being re-arrested or having his execution order reinstated.  Released political prisoners are continually harassed, intimidated and detained for questioning.

  1. Mr. Hossein Javaherynia was forced to flee when his political activities was disclosed to the Iranian secret police during his discussion with student about and against Islamic readers involving in terrorist activities in Berlin. After that political conversation he was attacked by Iranian secret police by a car and he was serious injured which till now he suffering from this attack. It is important to consider that as a result   of this political attack, he has now serious problem with his legs. After this treatment accident and even in hospital he was under the control by Iranian secret police and was faced imprisonment and torture.

  1. Mr. Javaherynia is a political activist who has fear of persecution by the Islamic regime of Iran. He has continued to expose the Islamic regime of Iran and its misogynist laws.

Political activities in South Korea

  1. Mr. Hossein Javaherynia’s Joined to IFIR as a representative of IFIR in South Korea and continues his political activities in connection with IFIR, and remained with our organization till now. He became an important activist of IFIR in South Korea. His name and identities has been published in www.hambastegi.org and other Iranian websites in abroad. According to Human Rights Watch "all forms of political expression and dissent are strictly curtailed" and "underground publications and leaflets circulate clandestinely, but at a high risk to their authors and distributors" (HRW, Guardians of Thought, Limits on Freedom of Expression in Iran, ).

  1. His political activities against Iranian regime and his co-operations with IFIR in South Korea which is banded organizations by Iranian regime came to the notice of Iranian authorities

Attending to political activities in South Korea

  1. The nature of applicant's activities is on based of the nature of any political activist. Mr. Javaherynia began his political activities when he made linked to the activist of political opponent of Iranian regime. The motive behind the applicant's activities was and is to present her political opinion against Islamic republic of Iran. The nature of her political acts was regarding to raising her political knowledge and finding the way and rules of political activities in abroad in connected to IFIR.


  1. In determining whether a political offender can be considered a refugee, regard should also be had to the following elements: personality of the applicant, her political opinion, the motive behind the act, the nature of the act committed, the nature of the prosecution and its motives, finally, also, the nature of the law on which the merely a fear of persecution and punishment with the law for an act committed by her (UNHCR’s Handbook)

  1. Mr. Javaherynia is a political activist who has fear of persecution by the Islamic regime of Iran. He has continued to expose the Islamic regime of Iran and its misogynist laws. He is a well-known among the progressive and political Iranian organizations.


Participation in demonstrations in the South Korea

  1. Following the presidential election in Iran in early June 2009 the incumbent, President Ahmadinejad, was returned to power amidst allegations of vote-rigging. A ground-swell of public opinion in Iran led to widespread demonstrations in various cities in Iran. The violent methods adopted by the Iranian government in responding to the demonstrations led to protests in support among the Iranian diaspora.

  1. Mr. Javaherynia has been participated in major demonstration against Islamic regime of Iran in the South Korea during Iranian people uprising since June 2009. His face in demonstrations were filmed and published in the internet web sites such as You Tube Facebook and Twitter.

Steps taken to identify protestors overseas.

  1. The Iranian government has also taken steps to monitor and identify individuals who may have participated in protests outside Iran

The Facts relevance of activity

  1. This is very important to consider this report from Wall Street Journal which published in 4 December 2009 on this issue:

  1. “In recent months, Iran has been conducting a campaign of harassing and intimidating members of its diaspora world-wide -- not just prominent dissidents -- who criticize the regime, according to former Iranian lawmakers and former members of Iran's elite security force, the Revolutionary Guard, with knowledge of the program. Part of the effort involves tracking the Facebook, Twitter and YouTube activity of Iranians around the world, and identifying them at opposition protests abroad.

  1. Before this past summer, "If anyone asked me, 'Does the government threaten Iranians abroad or their families at home,' I would say, 'Not at all,'" says Nasrin Sotoudeh, a prominent lawyer inside Iran. "But now the cases are too many to count. Every day I get phone calls and visits from people who are being harassed and threatened" because of relatives' activities abroad.

  1. In November, the deputy commander of Iran's armed forces, Gen. Massoud Jazayeri, wrote an editorial in the conservative newspaper Kayhan that "protesters inside and outside Iran have been identified and will be dealt with at the right time."

  1. In Germany, a national intelligence report indicates that Iranian intelligence operatives are monitoring about 900 critics of the Iranian regime within Germany. One German intelligence official, Manfred Murch, said last month that his staff has identified "Iranian intelligence agents" trying to intimidate protesters in Germany by videotaping them. A German foreign-ministry official said Germany rejected requests from Iran to restrict anti-Iranian protests there.” (Wall Street Journal, Iranian crackdown goes global, 4 December 2009 http://online.wsj.com/article/SB125978649644673331.html Date accessed: 7 December 2009)

  1. 10. So it is clear that, political activities of Mr. Javaherynia against Iranian regime and his co-operations with IFIR which is banded organization by Iranian regime came to the notice of Iranian authorities.

The Facts relevance of activity

  1. The Freedom on the Net 2009 report noted that: An increasing number of bloggers have been intimidated, arrested, tortured, kept in solitary confinement, and denied medical care, while others have been formally tried and convicted.

  1. The Government “… systematically controls the internet and other digital technologies.” (FH Press Report 2009).

  1. The FH report Freedom on the Net 2009 – Iran, dated 1 April 2009, stated that: “Iranian internet users suffer from routine surveillance, harassment, and the threat of imprisonment for their online activities, particularly those who are more critical of the authorities. The constitution provides for limited freedom of opinion and expression, but numerous, haphazardly enforced laws restrict these rights in practice. The 2000 Press Law, for example, forbids the publication of ideas that are contrary to Islamic principles or detrimental to public rights. The government and judiciary regularly invoke this and other vaguely worded legislation to criminalize critical opinions. A comprehensive 2006 cybercrimes bill would have made ISPs [internet service providers] criminally liable for content on sites they carried, but it was never passed by the parliament. A different bill, introduced in July 2008, would make some cybercrimes – promoting corruption, prostitution, and apostasy on the internet – punishable by death. It passed its first reading with a vote of 180 to 29, with 10 abstentions, and was still under consideration at year's end.” (Freedom on the Net 2009 - Iran, 1 April 2009 via http://www.unhcr.org/refworld/docid/49d47592c.html
Date accessed: 11 June 2009)

  1. BBC News reported on 15 November 2009 that: “Iranian police have set up a special unit to monitor political websites and fight internet crime. The head of the unit, Col Mehrdad Omidi, said it would target political ‘insults and the spreading of lies’. Most opposition websites are already banned, especially those linked to the defeated presidential candidates from Iran's disputed June elections. But activists continue to set up new websites to keep their campaign alive, as they have no access to state media.” (Iran forms political web monitor, 15 November 2009 http://news.bbc.co.uk/1/hi/world/middle_east/8361022.stm  Date accessed: 16 November 2009).

Converts to Christianity

  1. Iranian authorities have been awarded on Mr. Javaherynia’s conversion to Christianity since 01-10-2006.

The Facts relevance of activity

  1. The USCIRF Report 2010 noted that: “In early 2008, the Iranian parliament began considering a new law that would impose serious punishments, including the death penalty, on converts from Islam. In September 2008, a committee in the Majlis approved advancing the amended language on apostasy, which could be passed by the full Majlis in the near future.” (US Commission on International Religious Freedom http://www.uscirf.gov/ Annual Report of the United States Commission on International Religious Freedom, 29 April 2010 http://www.uscirf.gov/images/annual%20report%202010.pdf  Date accessed: 5 May 2010)

  1. Amnesty International public statement dated 31 May 2008 observed: “Although Christianity is a recognized religion in Iran, evangelical Christians, some of whom have converted from Islam, often face harassment by the authorities. Converts from Islam risk arrest, attack or the death penalty. Conversion from Islam (apostasy) is forbidden under Islamic law, which requires apostates to be put to death if they refuse to go back to Islam. There is no specific provision in the Iranian Penal Code for apostasy, but judges are required to use their knowledge of Islamic law to rule on cases where no specific legislation exists in the Penal Code.” (Amnesty International concerned about five Christian converts detained in Iran, 31 May 2008 http://www.payvand.com/news/08/may/1299.html Date accessed: 10 November 2009)


Draft Iranian Penal Code Legislates Death Penalty for Apostasy

  1. Article 225-4: Innate Apostate is someone whose parent (at least one) was a Muslim at the time of conception, and who declares him/herself a Muslim after the age of maturity, and leaves Islam afterwards.

  1. Article 225-7: Punishment for an Innate Apostate is death.

  1. Mr. faraji’s fear that he will be executed under the Iranian laws prohibiting apostasy. Apostasy, the turning away from Islam, is not permitted in Islam and in Iranian criminal code. The penalty for apostasy (Kofr) under the Iranian criminal code is death.

Proposed Iran Penal Law Mandates Death for Apostasy

  1. The Institute on Religion & Public Policy reported February 04, 2008, on the draft Islamic penal code that is being considered by Iran's Parliament (Majlis). Among its provisions is one that mandates the death penalty for anyone who converts from Islam to another religion. However, an individual who was born of non-Muslim parents who converts to Islam but then leaves Islam is given three days after sentencing to recant before the death penalty becomes final.

  1. The enforcement of the law against crime of apostasy continues to be reported even to this day.

  1. Countless examples of recent enforcement of the Iranian apostasy law can be found in other sources, including US department of state, Peace Encyclopaedia, Human rights watch, and most international human rights sources.

B. WELL-FOUNDED FEAR OF PERSECUTION

  1. Mr. Javaherynia is afraid to return Iran because of his political activities in Iran and South Korea which came to notice of Iranian authorities. The subjective element of this requirement (“fear”) is satisfied. There are reports of arrest and detention, torture and execution of political activist in Iran. Those targeted were selected at random by the security forces, although such incidents are said to be increasingly frequent and widespread. Putting the two elements together, it would appear that there is a reasonable possibility that he would face such treatment at the hands of the security forces if he were to be returned to Iran. His fear is thus well-founded.

  1. Javaherynia ´s applicant has been subjected to various measures amounting to persecution and combined with other adverse factors. In his situations, the various elements involved which taken together, produce an effect on the mind of her application that can reasonably justify a claim to well-founded fear of persecution. 

  1. Persecution “for reasons of political opinion” implies that an applicant holds an opinion that either has been expressed or has come to the attention of the authorities. There may, however, also be situations in which the applicant has not given any expression to his opinions. Due to the strength of his convictions, however, it may be reasonable to assume that his opinions will sooner or later find expression and that the applicant will, as a result, come into conflict with the authorities. Where this can reasonably be assumed, the applicant can be considered to have fear of persecution for reasons of political opinion. (UNHCR’s Handbook)
C- Refugees “sur place”
  1. Mr. Javaherynia can become a refugee “sur place” as a result of his political actions, such as associating with IFIR, participation in official political activities against Iranian regime, and expressing his political opponent views in public website and magazine. His political activities clearly came to the notice of Iranian authorities. So Mr. Javaherynia is unable to such fear, is unwilling to avail himself of the protection of Iran.
  2. A well-founded fear of persecution may arise after an applicant’s departure from the country of nationality or habitual residence, either because of events in the country of origin or as a result of the applicant’s activities in the host country (see UNHCR’s Handbook, at paragraphs 83 and 94–96). Applications for refugee status in such situations are usually referred to as “sur place” claims. (UNHCR’s Handbook)

  1. Actions by the applicant after his or her departure, for example: Political activity, such as participation in demonstrations against government policies in the country of origin, open engagement in other anti-government activities (e.g. participation in opposition groups in exile, public speeches, writing or publishing articles, or close association with refugees or other known opponents to the government of the country of origin. (UNHCR’s Handbook)

D. CONCLUSION

  1. The requirement of Mr. Hossein Javaherynia for inclusion under the 1951 Convention is satisfied and is established. He is met the following criteria:

  1. He is outside the country of origin.

  1. He has a well-founded fear, that is, a subjective fear of return which has an objective basis, and thus there is a reasonable possibility that Mr. Javaherynia will suffer persecution in Iran  and is therefore unable or unwilling to avail himself of the protection of Islamic republic of Iran;

  1. The harm feared amounts to persecution, that is, serious violations of human rights or other kinds of serious harm; and

  1. He fears persecution for reason of the grounds listed in the 1951 Convention (membership of a particular social group and political opinion).


  1. IFIR considers the forcible return of Iranian asylum seekers to Iran is a violation of the principle of non-refoulement. This prohibits the forcible return of a person to a country where their life or freedom would be threatened. It is a principle of customary international law, which binds all states. The Switzerland is party to the International Covenant on Civil and Political Rights (ICCPR) which prohibits torture, cruel, inhuman or degrading treatment or punishment.

  1. Mr. Hossein Javaherynia clearly fulfils the criteria for refugee recognition detailed in relevant international instruments. He holds and has expressed opinions not tolerated by the authorities. His opinions and his relation ship to the Iranian opposition organizations have came to the notice of the authorities. He faces a threat to his life or liberty if refouled to Iran.  IFIR urges the South Korean Ministry of Justice to reconsider its rejecting decision and grant him refugee recognition based on his well-founded fear of persecution on the ground of political opinion.

56.  IFIR looks forward to a positive response.  If you needs any further information, please do not hesitate to contact me at 0031 681285184 (tell) or farshadhoseini@gmail.com.

Sincerely,


Farshad Hooseini
Legal advisor


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