1508780 (Refugee)

[2018] AATA 3214

1508780 (Refugee) [2018] AATA 3214 (19 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1508780

COUNTRY OF REFERENCE:                  Iran

MEMBER:Jason Pennell

DATE:19 July 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 19 July 2018 at 11.40am

CATCHWORDS
Refugee – Protection visa – Iran – Social group – Unauthorised maritime arrival – Apostates from Islamic faith – Failed asylum seeker – Victim of interrogation and abuse by Basij – Pre-existing adverse profile – Fear of being detained, killed or tortured – Religion – Christian convert – Imputed political opinion – Credibility concerns – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 45AA, 46A, 65, 91R, 91S, 499
Migration Regulations 1994 (Cth), r 2.08F, Schedule 2

CASES

MIAC v SZJGV (2009) 238 CLR 642
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZKHD v MIAC [2008] FCA 112
SZMPJ v MIAC [2008] FMCA 1640
SZMZA v MIAC (No.2) [2008] FMCA 1418
SZOZT v MIAC [2011] FCA 1245
SZRWG v MIAC [2013] FMCA 53

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Iran applied for the visa on 20 December 2012 and the delegate refused to grant the visa on 10 June 2015.

3. The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa.

4. The applicant appeared before the Tribunal on 23 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

RELEVANT LAW

1. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

Refugee criterion

1. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied 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 (together, the Refugees Convention, or the Convention).

2. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly 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.

3. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

4. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

5. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant,[1] and systematic and discriminatory conduct.[2] Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. 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. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

   [1] s.91R(1)(b)

   [2] s.91R(1)(c) of the Act

6. 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.

7. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - 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. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared.[3]

   [3] s.91R(1)(a) of the Act

8. 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 being persecuted for a Convention stipulated reason. 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.

9. 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 or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

10. Whether an applicant is a person in respect of whom Australia has protection obligations 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.

Complementary protection criterion

1. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

2. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A).[4]  A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally.[5]

   [4] s.5(1) of the Act

   [5] s.36(2B) of the Act

Section 499 Ministerial Direction

1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicants meet the criteria set out in either of s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

The applicants’ migration history

1. The applicants migration history is noted in the delegates decision dated 10 June 2015 as follows:

   (a)From birth to [June] 2012 the applicant resided at [an address in] Shahre Rey, Tehran.

   (b)In 2008 the applicant travelled, on his own passport, to [Country 1] on holiday.

   (c)In 2010 the applicant travelled, on his own passport, to [Country 2] on holiday on two separate occasions.

   (d)In March 2012 the applicant travelled to [Country 3], on his own passport, on vacation.

   (e)[In] June 2012 the applicant departed travelled, on his own passport, to [Country 4].

   (f)[In] June 2012 the applicant departed [Country 4] on his own passport and travelled to [Country 5]. He remained there until [August] 2012.

   (g)[In] August 2012 the applicant departed [Country 5] illegally by sea and arrived in Australia [in] August 2012.

   (h)The applicant remained in detention from [a date in] August 2012 to [date in] December 2012.

   (i)The applicant made an application for protection visa [in] December 2012.

   (j)From [December] 2012 until [date in] June 2013 the applicant resided at various residential addresses in [State 1].

   (k)From [June] 2013 to [a date in] December 2013 the applicant resided at [an address], [State 2].

   (l)From [December] 2013 to date the applicant has resided at various residential addresses in [State 1]. 

The applicant’s valid application.

1. The applicant departed [Country 5] [in] August 2012 illegally by sea and arrived in Australia [in] August 2012. He made an application for a protection visa [in] December 2012. As an ‘unauthorised maritime arrival’ the applicant was prohibited from making a valid application under s.46A of the Act. However, on 29 November 2012 the Minister ‘lifted the bar’ pursuant to s.46A(2) of the Act. As such the application complies with the validity requirements of the Act.

Country of Reference

1. The applicant claims to be citizen of the Iran. The Department of Immigration file No ([number]) (‘the department file’) contains a copy of the applicant’s Iranian driver’s license, national identity card and birth certificate booklet presented to the department by the applicant as proof of his identity. The Tribunal notes that the applicant claims his passport was issued in [2009] and was valid until 2014. He said that it was taken by a smuggler whose identity the applicant does not know. In addition he claimed that his previous passport issued in 2003 and valid to 2008 was at his home in Tehran.[6] It was noted by the delegate that the applicant would try and get the passport.  A copy of the passport has not been received by the Tribunal.

   [6] Department of Immigration file No ([number]) p.13

2. Therefore, based on the Iranian driver’s license, national identity card and birth certificate booklet on the department file,  the Tribunal finds that he is a  Iranian citizen and accordingly the applicant’s protection claim will be assessed against Iran as the country of reference and as the 'receiving country'.

3. There is no evidence to suggest that he has a right to enter and reside, whether temporarily or permanently, in any other country. The Tribunal is therefore satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that he is not excluded from Australia's protection obligations under s36(3).

The applicant’s protection claims

1. The applicant’s written claims are on the department file and are contained in a statutory declaration attached to the applicant’s protection visa application dated [in] December 2012 and summarised in the delegates decision dated [June] 2015 as follows:

   (a)The applicant was raised as a Shia Muslim. He ceased believing and following his religion in or around 2007 /2008.

   (b)The applicant was arrested by Sepah [in] February 2012. He was driving a truck that contained rocks from a building site and was accused of delivering the rocks to protesters.

   (c)The applicant was taken to prison where he was detained for around one week. He was interrogated, humiliated and beaten. He was forced to provide the details of all his family members and to write a confession.

   (d)The applicant was taken to what may have been a court. Three men acted as judges and looked at a file. They set bail for [amount] rials and then cancelled it. He was told not to do anything political in the next five years or he would be imprisoned.

   (e)After the applicant was released, he found out that the authorities had contacted the supplier of the material he had been transporting to verify what he was doing.

   (f)Five to six week later the applicant had a conversation in a [shop] with a man he didn’t know too well. He told the man he did not believe in religion. He later found out that the man was influential person and a member of the Basij named [Mr A].

   (g)The owner of the [shop] was a friend of the applicant and told him that he should not go home as there could be serious implications from what he had said to [Mr A].

   (h)The applicant did not go home rather he went to his cousin’s house. When the applicant was away for his home the authorities went there and apprehended his father.

   (i)The applicant’s father was detained for one week and mistreated. The authorities were looking for the applicant; however, his father did not tell them where he was.

   (j)The applicant’s parents told him that a court document or sentence has since arrived for the court. They cannot read it as they are illiterate.

2. At the protection visa interview with the delegate the applicant provided the following additional claims:

   (a)The applicant has received two court documents; one a summons and the other a sentence made in absentia.

   (b)To depart Iran the applicant paid US $[amount] to a smuggler who ensured he would be able to pass through immigration.

   (c)Since he has arrived in Australia he has converted to Christianity. He attends church in [City 1] and has been baptised.

   (d)He is married to an Iranian Christian. The marriage is only religious and not legal as both parties are in Australia on bridging visa’s awaiting an assessment of their asylum claims. 

3. In support of his claims the applicant provided the following:

   (a)Letter of support dated [in] March 2015 from (Fr) [Mr B of Church 1], [City 1] (the [Mr B] statement’).

   (b)Letter of support dated [in] March 2018 from [Ms C] (‘the [Ms C] statement’).

   (c)Letter of support dated [in] January 2015 from [Reverend D of Church 2] (‘the [Reverend D] statement’).

   (d)Certificate of Christian marriage dated [in] August 2014.

   (e)Email correspondence from [a witness] to the applicant on behalf of [Church 2].

   (f)Email correspondence from [Reverend D] to the applicant on behalf of [Church 2].

4. In addition [Senior Pastor E] of [Church 2] provided oral testimony in support of the applicant.

Applicant’s evidence.

1. The applicant’s evidence was that he was born [in] Terhan Iran. His parents continue to live in [Shahre] Rey, Tehran where his father works for the [government] and his mother is engaged in home duties. The applicant has [siblings], all of whom are married and live in Tehran.  The applicant attended school in Shahre Rey Tehran. He completed his last two year of high school at [a school] in [year]. After high school the applicant commenced work in [an] industry as an [Occupation 1]. From 2001 to 2003 the applicant was a soldier in the Iranian National Army. He then worked as [Occupation 2] sub-contracting for the [government] until he left Irian in 2012.

2. The applicant’s evidence was that he was not married at the time he arrived in Australia. However, although not legally married, he and his partner [were] married in Anglian marriage ceremony [in] August 2014. He said that he and his partner were not able to legally marry as they did not have a passports and as a result of their respective applications for protection visa.

3. The applicant’s evidence was that on or about [February] 2012 he was delivering building materials to a work site when he was stopped by the Basji. He said that they used tear gas on him. He said that was blind folded, put on a bus and taken to a camp which he believed to be a Sepah base.  He says that he was placed in a cell and kept there for 7 days. The applicant says that he was accused of delivering materials to be used by protestors against the government officials.   While at the base he was interrogated and beaten. He states that he was made to write down the details of his family and to make a confession that he had acted against the national security by providing protesters with weapons.

4. The applicant’s evidence was that while he was at the base he was taken to a room which appeared like a court. He said that he was not sure if it was a court but there were three men who acted as Judges. The applicant’s evidence was that one of Judges demanded that he pay bail of [amount] rials which was later withdrawn. He said that the hearing took approximately 10 minutes during which time there was no discussion of charges or witnesses. Rather, he was informed that if did anything political in the next five years he would serve 5-10 years jail.

5. The applicant’s evidence was that after the hearing he was then taken into the dessert and released with the others detainees. He said that after he was released he went back to work and later discovered that the authorities had contacted the supplier of the materials who had verified that the applicant was delivering them to a work site as he had claimed.

1. Approximately 5 to 6 week after being released from the base the applicant had a conversation with a man in a friend’s [shop] in which he that he did not believe in any religion. The applicant said that his friend later informed him that the man was [Mr A], a member of ‘revered martyr family.’ The applicant’s evidence was that he has martyrs on both sides of his family and that they were ‘influential and dangerous’ and ‘use violent means to achieve political ends.’[7]    

   [7] Statutory deceleration of [witness] sated [in] December 2012 @ para 15.

2. The applicant said that when he discovered who [Mr A] was he was filled with fear and as a result he did not go home but went to stay at his cousin’s house. The applicant’s evidence was that when he was away the authorities came to his house and took his father to the Basji base [where] they kept him for a week and mistreated him.

3. As a result the applicant claims that he fled Iran because he feared being detained, killed, tortured and mistreated.   

4. The applicant’s evidence was that since arriving in Australia, through friends in the Iranian community, he had become involved in [Church 2] in [State 1]. He said that until 2015 he had attended [Church 2’s] on a regular basis but now attends a Church closer to where he lives he now.

5. The applicant claims to have a well-founded fear of persecution whether singularly or cumulatively if returned to Iran by reason that:

   (a)  He has rejected Islam and is now a Christian convert;

   (b)  His imputed political opinion arising for his claim for asylum in Australia;

   (c)  As a member of a social group consisted by apostates from the Islamic faith and failed asylum seekers.  

COUNTRY INFORMATION

Apostasy

1. According to DFAT’s country information report on Iran (‘the DFAT Report’)[8] the official religion of Iran is Shia Islam and legislation and Government policy often favour the Muslim majority, leading to pervasive structural discrimination against non-Muslim minorities. Non-Muslims face a range of discriminatory measures at the hands of the state. The DFAT report states:

   ‘Apostasy

   3.52 Under Iranian law, a Muslim who leaves his or her faith or converts to another religion or atheism can be charged with apostasy. While cases of apostasy are rare, Muslim-born converts to Christianity, Baha’is, Muslims who challenge the prevailing interpretation of Islam, and others who espouse unconventional religious beliefs have been charged with apostasy in the past. Apostasy charges have also been applied against political opponents of the regime.

   3.53 The punishment for apostasy is subject to judicial discretion. There is no provision in Iran's Penal Code criminalising the act. Nevertheless, Article 167 of the Iranian Constitution requires judges to apply Shari’a in situations in which the law is silent and Article 220 of the Iranian Penal Code effectively states that crimes punishable under Iranian law are not limited to the ones specified in the Penal Code. According to Article 160 of the Iranian Penal Code, confessions, the testimony of two male witnesses or the ‘knowledge of the judge’ can each be the basis for a conviction. In the rare instances that they are applied, charges of apostasy have in the past resulted in the death penalty and are often combined along with other crimes related to national security such as waging war against God and the Prophet.

   3.54 The most recent case that DFAT is aware of a person charged with apostasy and sentenced to death was that of Youcef Nadarkhani in 2011. As a result of sustained international pressure, Nadarkhani’s conviction of apostasy was commuted to one of proselytization and the death sentence was dropped. The last known time the death penalty was carried out for apostasy was in 1990.

   3.55 DFAT considers it unlikely that individuals will be prosecuted on charges of apostasy. DFAT also considers it highly unlikely that the government would monitor religious observance by Iranians – for example, whether or not a person regularly attends mosque or participates in religious occasions such as Ashura or Muharram – and thus it would generally be unlikely that it would become known that a person was no longer faithful to Shia Islam. Perceived apostates are only likely to come to the attention of Iranian authorities through public manifestations of their new faith, attempts at proselytization, attendance at a house church or via informants (see ‘Christians’, above).

   3.56 DFAT is aware of allegations that authorities monitor attendance at churches on religious holidays to ensure no Muslims are present, along with reports that churches self-monitor congregations to ensure no Muslims are present. However, DFAT assesses that Iranian authorities will rarely intervene actively to stop Muslims attending churches whilst their attendance is low-key.’

   [8] Department of Foreign Affairs and Trade, DFAT Country Information Report: Iran, 29 November 2013 (DFAT Report).

2. According to the US Department of State, the Iranian Constitution ‘does not provide for the rights of Muslim citizens to choose, change, or renounce their religious beliefs.’[9] The US Department of State has reported that the Iranian government ‘deems conversion from Islam to be apostasy, which is punishable by death.’[10] There are other reports available which also state that apostasy is a crime punishable by death in Iran.[11] In this context, it should be noted that there is no provision in the Islamic Penal Code of the Islamic Republic of Iran which specifically criminalises the act of apostasy.[12] The current Islamic Penal Code does, however, state that ‘in accordance with Article 167 of the Iranian Constitution, Shari’a law is to apply in instances where the IPC [Islamic Penal Code] is silent regarding a particular crime.’ This ‘enables the Iranian judiciary to prosecute apostasy cases even though there is no codified provision defining the crime of apostasy.’[13]

   [9] US Department of State 2014, International Religious Freedom Report for 2013 – Iran, 28 July, Section II OG54B544679 The relevant sections of the Iranian Constitution dealing with religion are Articles 1 to 14: see Alavi and Associates n.d., Constitution of the Islamic Republic of Iran, pp.7-12 Acc <CIS22595> 

   [10] US Department of State 2014, International Religious Freedom Report for 2013 – Iran, 28 July, Section II <OG54B544679> 

   [11] International Campaign for Human Rights in Iran 2015, Radical Website Calls for Murder of Musician, Iranian Officials Silent, 8 May Acc CXBD6A0DE6097; Weinthal, B 2014, ‘Iran’s Christians flee to unlikely sanctuary in Bulgaria’, Fox News, 11 August CX324336

   [12] The Christians in Parliament All Party Parliamentary Group and the All Party Parliamentary Group for International Freedom of Religion or Belief 2015, The Persecution of Christians in Iran, March, p.11 <CISEC96CF1343>; Iran Human Rights 2015, Annual Report on the Death Penalty in Iran 2014, 11 March, p.24 CISEC96CF1352; Iran Human Rights Documentation Centre 2014, Apostasy in the Islamic Republic of Iran, 30 July, p.10 

   [13] Iran Human Rights Documentation Centre 2014, Apostasy in the Islamic Republic of Iran, 30 July, p.2 CIS29371 

3. Reports of convictions for apostasy are rare, and the application of the death penalty for apostasy even rarer. In its International Religious Freedom Report for 2012, the USDOS reported that the Iranian government considered conversion from Islam to be apostasy, and that this is punishable by death. The relevant section of the report read:

   ‘The constitution does not provide for the rights of Muslim citizens to choose, change, or renounce their religious beliefs. The government automatically considers a child born to a Muslim father to be a Muslim and deems conversion from Islam to be apostasy, which is punishable by death.’[14]

   [14] US Department of State 2013, International Religious Freedom Report for 2012 – Iran, 20 May, Section II

4. It should be noted, however, that a July 2011 report from Landinfo, the Norwegian Country of Origin Information Centre, stated that ‘[i]n a Muslim context, apostasy is not only associated with conversion. It also includes blasphemy, for example offending the Prophet Mohammed and Muslim faith and practices’.[15] In its 2013 Annual Report for Iran, Amnesty International noted that the death penalty remained applicable in Iran for apostasy during 2012. The report stated:

   ‘The death penalty remained applicable in cases of murder, rape, deployment of firearms during a crime, spying, apostasy, extra-marital relations and same-sex relations.’[16]

   [15] Landinfo 2011, Iran: Christians and Converts, 7 July, p.12 CISNET Iran CISLIB21681

   [16] Amnesty International 2013, Annual Report 2013 – Iran, 23 May, UNHCR Refworld <CISNET Iran CX307966

5. In a March 2013 Reuters report, it was stated that ‘apostasy – the renouncing of Islam’ was ‘punishable by death under Iran’s Islamic law practised since the 1979 revolution’.[17] A January 2013 report from The Telegraph stated that ‘[a]postasy is punishable by death under the country’s sharia code’.[18]

   [17] Hosseinian, Z 2013, ‘Iran accuses U.N. rights investigator of taking U.S. bribe’, Reuters, 8 March CISNET Iran CX304694

   [18] Tait, R 2013, ‘‘I am told I will hang for my faith in Jesus': American pastor faces death sentence in Iran’’, The Telegraph, 18 January < CISNET Iran CX302210

6. The aforementioned July 2011 Landinfo report indicated that convictions for apostasy were very rare in Iran, but did make reference to previous instances where converts had been tried for apostasy and, in one case, been convicted and executed. The relevant section of the report read:

   ‘In practice, people are convicted of apostasy only very rarely. The most recent conviction is reported to have occurred in 1990, when a minister was executed because of apostasy, evangelization and espionage in favour of the US (Telegraph 2008). The minister had lived as a convert since 1960. In 1994, however, three ministers (whereof two were converts) were abducted and killed by persons unknown (Landinfo 2006). The assassinations attracted international attention and had a profound impact on the Evangelical Christians of Iran, causing the afflicted churches to keep a low profile for an extended period of time.

   In 2004, a minister who had converted to Christianity in 1980 was arrested in the context of a Christian conference. This minister, who was an army colonel, was prosecuted, but acquitted of apostasy (Norsk Misjon i Øst 2005). However, he was convicted of violation of the military criminal code, because he had kept his Christian faith secret from his superiors. According to the law, only Muslims can be officers in the armed forces. The man was sentenced to three years’ imprisonment and had his pension rights revoked. In 2005, another minister was stabbed on the street by persons unknown. The minister died from the injuries.’[19]

   [19] Landinfo 2011, Iran: Christians and Converts, 7 July, pp.16-17 CISNET Iran CISLIB21681

7. The same report did note, however, that charging converts with apostasy had become more common in Iran. It was noted that threats of apostasy charges had also been used during trials to pressure converts to return to Islam. The relevant section of the report read:

   ‘Charging converts of apostasy appears to have become more common. For example, a lawyer defending a group of Pentecostalists arrested in Rasht in October 2009 and in Tehran in June 2010 stated that the number of recently converted Christians who were charged with apostasy was rising, and that he defended ten of them (FIDH 2010, p. 26).

   Formal charges of apostasy against converts have occurred relatively seldom in Iran, but threats of such charges have been brought up during the trial as a means of pressuring converts to declare that they repent and wish to return to Islam. In many cases the court has decided to release the convert without any charges, or brought other charges, such as participation in illegal house churches or for having had contact with foreign media. Other charges may include “acts against the security of the state”, “insults of Islam” and “propaganda against the system” (FIDH 2010, p. 26).’[20]

   [20] Landinfo 2011, Iran: Christians and Converts, 7 July, p.21 CISNET Iran CISLIB21681

8. Recent reports have been located referring to two persons who were found guilty of apostasy. One of these persons was reported to have been sentenced to death, but the death penalty was applied in neither of these two cases. An August 2013 report from Worthy News[21] referred to the case of Mohammad-Hadi Bordbar, who was ‘sentenced to ten years in jail for distributing 12,000 pocket-sized Gospels’ in Iran. Bordbar was reported to have been ‘convicted of membership in an "anti-security organization" and of having the intent to commit crimes against Iranian national security; he was sentenced to five years for each offence’. The report noted that ‘Bordbar was initially arrested in 2009 for converting to Christianity; he was found guilty of apostasy, but was freed on bail’.[22]

   [21] On its website, Worthy News describes itself as “an independent Christian news agency which reports news not covered by other outlets, on key developments in a rapidly changing world”: Worthy News n.d., What is Worthy News?

   [22] DeCaro, J 2013, ‘Iran: Convert from Islam jailed for 10 years’, Worthy News, 16 August CISNET Iran CX313314

9. In an April 2013 report, the United States Commission on International Religious Freedom (USCIRF) made reference to the case of Yousef Nadarkhani, a Christian pastor was sentenced to death for apostasy in November 2010. This death sentence was not carried out, and Nadarkhani was subsequently released.[23]

The Basji

[23] United States Commission on International Religious Freedom 2013, USCIRF Annual Report 2013 - Countries of Particular Concern: Iran, 30 April, UNHCR Refworld CISNET Iran CX308205

1. The Basij is a paramilitary volunteer militia founded by the order of the Ayatollah Khomeini in November 1979. The Basij are (at least in theory) subordinate to, and receive their orders from, the Iranian Revolutionary Guards. Currently, the Basij serve as an auxiliary force engaged in activities such as internal security as well as law enforcement auxiliary, the providing of social service, organizing of public religious ceremonies, and as morality police and the suppression of dissident gatherings. There are branches of the Basji in virtually every city and town in Iran. The Basji has several branches and three main armed wings: Ashoura and Al- Zahra Brigades are the security brigades tasked with defending neighborhoods in case of emergencies and the Iman Hossein Brigades who deal with security threats and are made up of mainly of war veterans who laisse with the Iranian revolutionary Guards.[24]  

   [24]   DFAT Report: Iran, 29 November 2013 @ p.45

2. The DFAT report notes that the state has mobilised the Basij on occasion to suppress anti-government protests, including during the ‘Green Movement’ demonstrations in 2009. DFAT assesses that there is considerable popular resentment against the Basij, although this may vary according to location.[25]

Conditions for Returnees

[25]    ibid

1. The DFAT report states that Iran has historically refused to issue travel documents (laisser passers) to allow the involuntary return of its citizens from abroad. However, on 18 March 2018 Iran and Australia signed a Memorandum of Understanding (MOU) on Consular Matters that includes an agreement by Iran to facilitate the return of Iranians who arrived after this date and who have no legal right to stay in Australia.

2. The International Organisation for Migration (IOM) runs a program to assist voluntary returnees to Iran, in cooperation with the country from which they are returning. Iranian authorities cooperate with the IOM in this regard. In cases where an Iranian diplomatic mission has issued temporary travel documents, authorities will be forewarned of the person’s imminent return. The DFAT report states that the authorities will usually question a voluntary returnee on return only if they have already come to official attention, such as by committing a crime in Iran before departing. DFAT is not aware of any legislative or social barriers to voluntary returnees finding work or shelter in Iran, nor any specific barriers to prevent voluntary returnees from returning to their home region.

3. The DFAT report states that according to international observers, Iranian authorities pay little attention to failed asylum seekers on their return to Iran. It notes that Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government – heavy internet filtering means most Iranians will never see them – converting to Christianity, or engaging in LGBTI activities. In such cases the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists.

ASSESSMENT OF CLAIMS AND FINDINGS

Credibility

1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.

2. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[26]

   [26] s.5AAA Migration Act 1958. MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

1. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[27] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [27]   Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482

2. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[28] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

Accepted facts

[28]  The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

1. Having considered the applicant’s evidence the Tribunal accepts and finds that:

   (a)The applicant was born [in date] in Terhan Iran.

   (b)The applicant’s parents continue to live in [Shahre] Rey, Tehran.

   (c)The applicant has [siblings], all of whom are married and live in Tehran. 

   (d)The applicant attended school in Shahre Rey Tehran and completed high school at [a school] in [year].

   (e)The applicant worked in [an] industry as an [Occupation 1] from 1998 to 2001.

   (f)The applicant was a soldier in the Iranian National Army from 2001 to 2003.

   (g)The applicant worked as [Occupation 2] sub-contracting [a government project] until he left Irian in from 2003 to 2012.

   (h)The applicant was not married at the time he arrived in Australia.

   (i)The applicant and [the partner] participated in a religious Anglian marriage ceremony [in] August 2014 but are not legally married according to the law of the Commonwealth of Australia. 

Applicant’s claim as a refugee

1. The applicant claims that in the event he is returned to Iran there is a real chance he will suffer serious harm by reason of the following:

   (a)He has rejected Islam and is now a Christian convert. That is, in or about 2007 /2008 he ceased believing and following his religion as a Shia Muslim and that since arriving in Australia he had become a Christian;

   (b)His imputed political opinion of being opposed to the Iranian regime and having alleged persecution by the regime abroad arising from his claim for asylum in Australia;

   (c)As a member of a social group consisted by apostates from the Islamic faith and failed asylum seekers.  

2. As a result the applicant claims that he is a person who has a well-founded fear of persecution, pursuant to Article 1A(2) of the Convention. That is, there is a real chance he will suffer serious harm if he returns in Iran by reason of his religion and as a member of a particular social group, consisted by apostates from the Islamic faith and failed asylum seekers.

Detention at the Sepah camp

1. The applicant’s evidence was that in or about February 2012 he was arrested by the Basji and forcibly taken to a Sepah camp where he was interrogated and beaten for a period of one week.  . The applicant’s evidence in response to the Tribunals questions about his arrest and detention by the Basji was not generally very persuasive as it was a vague and lacking in detail. For example the applicant was not able to describe in any detail either the cell in which he was held or the court room in which he was said to have been presented before three judges. In addition he was not able to say how many other detainees had been arrested and sent to the camp with him.

2. The applicant said that he was released ‘on a road in the dessert outside the city’ after which he simply went home. The applicant was not able to say how he got home. Despite his unexplained absence from home for a period of a week, from his evidence it appeared that his absence from home went unnoticed by his family.  While he confirmed to the Tribunal that he had told his family he had been detained, he provided no evidence of them being concerned for his safety while he was away or any attempts by them to have located him or to explain the fact that he was missing. Rather his evidence (given in a casual nature) was that he went back to work upon which he discovered that the authorities had contacted the supplier of the materials who had verified to them that he was delivering the materials to the work site as he had claimed. 

3. Therefore, due to the vague nature of the applicant’s evidence and the fact that it lacked any detail, the Tribunal has considerable doubts about the credibility of his evidence in relation to him being detained and interrogated by the Basji at a Sepah camp as claimed. As such the Tribunal does not accept the applicant’s evidence that he was detained or that he was humiliated and beaten or tried before a court as claimed.    

4. The applicant provided the department with an article from Amnesty International[29] in which it calls for the Iranian authorities to respect the freedom of assembly and allow peaceful demonstrations in Iran on 14 February 2012. The article refers to arrests that targeted members of the Iran’s ethnic and religious minorities, journalists and people with links to the foreign media. In addition it refers to arrests of Baji members by security forces in Shiraz.  As such, the article does not assist the Tribunal in relation to the circumstances surrounding the applicant’s detention and interrogation as there is no suggestion that the applicant is a member of any of the groups identified in the article of being at risk of arrest. 

   [29]   Article by Amnesty International dated 12 February 2012 ‘Iran: Anniversary demonstrations on 14 February must be allowed to take place peacefully’ >

   Finally, even if the Tribunal was to accept the applicants evidence (which it does not), on his own evidence the Basji had satisfied themselves that he was delivering the material as claimed and as such he would not have been imputed with any political opinion of being opposed to the regime.  Accordingly, the Tribunal finds that there is no real chance the applicant will be seriously harmed in the event he was returned to Iran as a result of him being detained and interrogated by the Baji as claimed.

The applicant’s debate in the [shop].

1. The applicant claimed that approximately five to six weeks after being detained by the Basji he went to a local [shop], owned by a friend, which he attended regularly. His evidence was that while he was there he had a ‘debate’ with a man who he did not ‘know too well’ during the course of which he said that ‘he did not believe in any religion.’

2. The applicant’s evidence was that after the man left the [shop] he was told by the [shop] owner that the man was [Mr A] and a member of the Basji and that he should not return home. The applicant said that he thought the man was a friend of the [owner] and if he had known that the man was a member of the Basji he would never have spoken as he did. As a result, on the advice of his friend, he did not go home. He stayed with his cousin, with whom he stayed until he left for Australia. The applicant did not provide the Tribunal with any independent evidence as to the identity of [Mr A] or his involvement with the Basji. Nevertheless, the Tribunal is prepared to accept that [Mr A] is a member of the Basji.

3. The country information makes it clear that in Iran a person who leaves his or her faith or converts to another religion can be charged with apostasy. It is therefore difficult to believe that the applicant would have engaged in such a debate with a stranger in circumstances where he claims to have been detained and interrogated by the Basji only five or six weeks prior, that he was aware that members of Basji are prolific with Iran and capable of detaining and interrogating people and that it is against the Sharia law to rejected Islam or convert to another religion.

4. The applicant’s evidence was that evening the Basji came to his home looking for him but instead apprehended his father and detained and mistreated him for a period of a week. It is difficult to believe that in circumstances where the applicant claims to have breached the Sharia law that [Mr A] as a member of Basji would have waited until the evening to try to detain him. If he had rejected his religion as claimed it seems more likely that [Mr A] would have reacted immediately to his remarks by warning him, arresting him or reporting him to the authorities. Rather, on the applicant’s evidence [Mr A] has done nothing to the applicant while at the [shop] and then arranged for the Basji to attend the applicant’s house in circumstances where it was not made clear to the Tribunal how he knew the applicant’s name or address. Finally, even if the Basji did go to the applicant’s house as claimed, it is unlikely the Basji would arrest or detain the applicant’s father in the absence of any reason for them to do so.    

5. For the reasons above the Tribunal does not accept the applicant’s evidence that he engaged in a debate in a [shop] with [Mr A], or any other member of the Basji. Further, it does not accept the applicant’s evidence that the Basji attended his house and detained his father. As a result of the applicant declaring that ‘to [Mr A] in his friend’s [shop].  As such, the Tribunal does not accept the applicant’s evidence that he has rejected Islam or that he said words to the effect that ‘he did not believe in any religion’ to [Mr A]. Accordingly, the Tribunal finds that there is no real chance the applicant will be seriously harmed in the event he was returned to Iran as a result of his conversation with [Mr A] at the [shop] as claimed.  

Applicant’s rejection of Islam in 2007/08

1. Save that the applicant stated that he had ceased believing in Islam in or about 2007/2008. He did not provide any other evidence in support of the fact that he no longer followed Islam or that he had converted to another religion prior to departing Iran.  In any event, the Tribunal notes that according to the World Values Survey nearly a quarter of Iranians never attend religious services and another 23% only attend on holy days.[30] This would suggest that the applicant’s rejection of Islam would not be noticed. With no evidence to suggest that he would act in a manner that would draw attention to his rejection of Islam I find that the chance of the applicant facing any harm as a result of rejecting Islam is remote.

The applicants claimed adverse political profile.

[30] World Values Survey, ‘Iran Wave 2005-2009 Online Data Analysis: V186.- How often do you attend religious services’, available at [accessed 16 Sept. 16] 

1. In his written claim, the applicant states that he has an adverse political file and that he has been identified as a person who is against Islam. The applicant claims that to depart Iran he paid US $[amount] to a smuggler to ensure that he would be able to pass through immigration using his own passport.  The applicant’s evidence to the delegate was that he paid US$[amount] to a smuggler to facilitate his departure and that US$[amount] was applied to ‘any possible incidents’ at Tehran airport. The applicant did not provide any evidence of the bribe having been paid.

2. While the Tribunal accepts the applicant’s evidence and finds that he left Iran using his own passport,[31] It has rejected his evidence and found that he was not interrogated or detained at a Sepah camp. In addition based on the country information and that fact that he gave no evidence of any incident in which he expressed any rejection of Islam prior to the [shop] in 2012 (the evidence of which the Tribunal has specifically rejected), there is no reason to suggest that he would be persecuted as a result of having rejected Islam in or about 2007 or 2008 as claimed. Therefore, having rejected that the applicant’s evidence concerning his detention by the Basji and the [shop], there is no basis upon which the applicant can claim to have an adverse political profile. As such the Tribunal finds that the applicant does not have an adverse political file and is not identified as a person against Islam as claimed.

   [31] Delegates decision dated 10 June 2015 @ [3]

3. The applicant submits that since his departure from Iran, his parents have received two documents from the Iranian authorities. The first document is a summons demanding that the applicant attend court. The summons is dated [in] May 2012, approximately one month prior to the applicants claimed departure from Iran. It refers to the allegation of ‘Insulting the Honourable Supreme Leader and Holiness [of Islamic Republic of Iran System]. It instructs the applicant to attend court [in] June 2012, being prior to the applicant’s departure date, and contains a warning that his non-attendance at court will lead to arrest and that the court will issue an Absentia Order.  

4. The second document is a written judgment dated [in] August 2012.[32] The judgement provides that the applicant is ‘sentenced to six month’s Taziri imprisonment and eighty lashes on the strengths of Articles 253 and 267 of the Islamic Punitive Law.’[33]  

   [32] Department Folios 106; [Source deleted].

   [33] Ibid.

5. The delegate’s decision dated 10 June 2015[34] makes it clear that the applicant provided a copy of both documents and their English translation to the department[35] and they were assessed by a document examiner[36] for the purposes of assessing their veracity. The document examiner noted that:[37]

   ‘Both documents contain no paper security and have been produced by a laser printer/copier and the issuing security has little value. The lack of available genuine specimens and the lack of issue security make a conclusive finding difficult. Therefore my examination is inconclusive.’

   [34] The delegate’s decision dated 10 June 2015 p.9-12

   [35] Opcit, Folios 105 -110

   [36] Opcit, Folio 115-116

   [37] ibid

6. The document examiner referred to makings on the summons that may indicate previous data had been removed.[38] That is, there appears to be evidence of data having been removed or written over. As a result, the Tribunal questions the genuineness of the summons and the written judgement as provided by the applicant.

   [38]   Opcit, Folio 114-115

7. The written judgement refers to Articles 253 and 267 of the Islamic Punitive Law. The term Islamic Punitive Law is generally used to synonymously refer to the Islamic Penal Code.[39] Having considered the delegates decision[40] and the country information more generally, there are here are numerous examples of where the term ‘Islamic Punitive Law’ has been used in reference to the ‘Islamic Penal Code.’ As such, the Tribunal is satisfied and finds that the term ‘Islamic Punitive Law’ in the written judgment has been used in reference to the ‘Islamic Penal Code.’

   [39]   Saeed Gohari, ‘Investigating developments in the new Islamic punitive law about the evidence for proving criminal claims’, International Journal of Advanced research, 2, 01 May 2014 CIS2F827; Country Information request Iran penalties related to ‘morality norms’, Australian Department of Foreign Affairs and Trade (DFAT) 18 July 2014 CX323400.

   [40] The decision of the Delegate of the Minister for Immigration and Border protection for purposes of s.65 of the Migration Act dated 10 June 2015.

8. The new Islamic Penal Code was approved by the Guardian Council and signed into law by the President of Iran in May 2013,[41]that is after the date of the summons and written judgement. Therefore, the reference to Articles 253 and 267 of the Islamic Punitive Law in the written judgment is a reference to Articles 253 and 267 of the pre May 2013 Islamic Penal Code.[42]

   [41]  Country Information request Iran penalties related to ‘morality norms’, Australian Department of Foreign    Affairs and Trade (DFAT) 18 July 2014 CX323400.

   [42] The delegate’s decision dated 10 June 2015 p.9-12

9. In the Islamic Penal Code of Iran Article 253 appears in the section on compurgation or ‘proof of murder by oath,’ while Article 267 appears in the section on ‘manner of enforceability retaliation.’ Articles 253 and 267 of the pre May 2013 Islamic Penal Code read as follows:

   Article 253 – the number of oaths of unpremeditated murder and accidental death is twenty five oaths and the manner of them is in accordance to the aforesaid articles.[43]

   Article 267 – A person or persons releasing the convicted murder condemned to retaliation, should return the [convict]. If [he/she] does not do so and [his/her] arrest facilitates the return of the convict, [he/she] will be imprisoned uncil the convict is returned.

   Note – of the convict does prior to be returned or due to some other reason [his/her] return is not possible, the person who has released [the convict] should pay the mulct.

   [43] Iranian Network, Iran’s Islamic Criminal Law, Iranian Law Network, 01 September 2012

10. Articles 253 and 267 of the Islamic Penal Code after May 2013 read as follows:

    Article 253- Anyone who accuses another person of zina[44] or livat[45] which are not punishable by had, such as zina or livat under coercion or while s/he was non-pubescent, shall be sentenced to thirty-one to seventy-four lashes of ta’zir flogging of the sixth degree.

    Article 267- Theft is defined as stealing someone else’s property.

    [44]  ‘Zina’ refers to unlawful sexual relations between Muslims who are not married to one another.

    [45]   Article 233 refers to ‘livat‘ as sexual relations between men.

11. Therefore, Articles 253 and 267 of the Islamic Penal Code either at the time of the summons or as updated in May 2013 do not refer to the types of crime that the applicant had been charged with.[46]  

    [46]   Iran Human Rights Documentation Centre, ‘IHRDC Translation of the New Islamic Penal Code of the Islamic Republic of Iran – Books one and two,’ Iran Human Rights Documentation Centre, 01 April 2014 CIS27755.

12. Therefore, by reason of the fact that the written judgement refers to Articles of the Islamic Penal Code that do not relate to the allegation of ‘Insulting the Honourable Supreme Leader and Holiness [of Islamic Republic of Iran System]  made against the applicant and the fact that the document examiner was not able to conclusively say that they are genuine, the Tribunal does not accept that the applicants evidence and finds that he has not been charged with offence as claimed.

13. Accordingly, the Tribunal finds that there is no real chance the applicant will be seriously harmed in the event that he was returned to Iran by reason of him having rejected Islam or as a result of any charge of ‘insulting the Honourable Supreme Leader and Holiness [of Islamic Republic of Iran System]’  as claimed.

The applicant has become a Christian

1. The applicant now says that he is now a Christian. The applicant’s representative noted in the course of the hearing that his primary claims are not based on his religion or his religious conversion. It was submitted that his religion would result in him suffering serious harm if returned to Iran.

2. The delegate’s decision[47] notes that during the second protection visa interview that the applicant was asked a number of questions concerning his religious beliefs and his claimed conversion to Christianity. The delegate noted that the applicant did not demonstrate any knowledge of Christianity. For example, he was not familiar with the Lord’s Prayer or the books of the Bible. At the hearing the applicant was not asked specifically about his knowledge of the bible by reason of the fact that, in the Tribunals view, an applicant’s ability to recite particular prayers or verses from the Bible is not particularly helpful in determining his or her commitment to the Christian faith.

   [47]   The delegate’s decision dated 10 June 2015 p.12.

1. The [Mr B] statement and [Ms C’s] statement both refer to the fact that the applicant has become a Christian and that he has attended the Church on a regular basis. The applicant’s evidence was that he became involved with the Church when he arrived in Australia as a result of friends within the Irian community. As a result the applicant accepted that he socialised through the activities of the Church. The email correspondence supports that fact that he socialised through the Church as it indicates that from about 2013 to 2015 the applicant was involved with the [Church 2] community more broadly that just attending church on a Sunday.

2. [Senior Pastor E’s] evidence was that the applicant attended [Church 2] on a regular basis and that he was involved with the Church community and participated regularly in church meetings and other social activities. He confirmed that the applicant was baptised at [Church 2] by [Reverend D] in March 2013. He also confirmed that [Reverend D] married the applicant and [the partner] in an Anglican marriage service [in] August 2014. The letter of support from [Reverend D] explains that as a result of the applicant not having a passport and his status as an asylum seeker meant that it was complicated for him to have his marriage registered in Australia.[48] In his letter of support [Reverend D] states that it was ‘extremely complicated for them to marry legally’ and because of the ‘length of the ‘limbo status’ was completely intermediate’ he suggested that they marry in a religious ceremony.[49]   The applicant confirmed that despite having been married in a religious ceremony he was still not legally married under Australia Law.

   [48]   Letter of support dated [in] January 2015 from [Rev D] Senior Associate Minister [Church 2].

   [49]   Email correspondence from [Rev D] to the applicant on behalf of [Church 2].

3. However, for the purposes of registering marriage in Australia a person is required to provide an official certificate, or an official extract of an entry in an official register, showing the date and place of birth of the party or a statutory declaration made by the person or their parent stating when and where the party was born and the reason why it is impracticable to obtain a certificate. There seems no reason why the applicant and [the partner] could supply a statutory declaration to register their marriage in Australia [50]

   [50] s.42(b)(i)(ii) Marriage Act 1961

4. Alternatively, a person may supply a passport issued by a government of an overseas country, showing the date and place of birth of the party.[51] For the purposes of obtaining a new passport the country information states that an applicant must provide their original Iranian birth certificate photocopies of all the pages of the birth certificate containing ID photographs, the original and a copy of their residency permit and three passport size photographs.[52]

   [51] s.42(b)(iii) Marriage Act 1961

   [52]   DFAT Report p.50

5. Therefore, the Tribunal accepts that the applicant and [the partner] may have difficulty in providing the necessary documentation to have their marriage registered in Australia. However, this would not be an impossible process. The applicant has already obtained documentation from his parents being the summons and written judgement. In addition he provided the department with his Driver’s licence, national ID card, Military ID Card, and Family book.[53] Therefore there appears to be no reason why he could not obtain either his existing passports or a statutory declaration.  Finally, both the applicant and [the partner] would be able to provide the necessary statutory deceleration for the purposes of obtaining a marriage certificate.  As such there appears to be no impediment on the applicant and [the partner] obtaining the necessary documentation and information for the purposes of registering their marriage in Australia. It also appears that this can be done without obtaining a new passport and/or engaging with the Iranian authorities.

   [53]   Department file Folio p.117- p.121

6. [The partner] did not attend the hearing or provide any evidence in support of the applicants claim. However, given that a statutory declaration can be made by the person seeking to be married there is no reason why, in the event that she was not able to provide her passport, she could not have also provided a statutory declaration to have their marriage registered in Australia. 

7. The applicant’s own evidence was that he commenced attending the [Church 2] with friends from within the Iranian community. As a result he rejected the Islamic faith and became a Christian. The applicant evidence was that while he still maintains some contact with [Church 2] he attends less frequently now as he lives some distance [away]. He said that he now goes to church in [Suburb 1] but attends less frequently than he previously did. He did not provide any independent evidence of his church attendance in [Suburb 1].

8. In regard to his actions as a Christian the applicant’s evidence to the delegate was that he sometimes goes to church on Sundays. His evidence to the delegate was that his primary interaction with the Christian faith had been a six week course in 2013 but that he had not been to church for several months. He said that he was told if he wanted to be a Christian he had to be baptised which he was during the six sessions he had at [Church 2].[54]

   [54]   Delegates decision p.13.

1. Section 91R(3) requires the decision maker to disregard conduct engaged in by an applicant in Australia unless satisfied that the conduct has been engaged in ‘otherwise than for the purpose of strengthening the person’s claim to be a refugee’. This means that where conduct in Australia could strengthen a person’s refugee claim, the decision maker must consider the applicant’s motivation for engaging in the conduct before considering the consequences that may flow from that conduct.[55] For the purposes of s.91R(3) the conduct must have been engaged in for the sole purpose of strengthening the refugee claim.[56] This is a question of fact[57] and the onus is on the applicant to satisfy the decision maker as to his or her motivation.[58]

   [55]   SZOZT v MIAC [2011] FCA 1245 (Foster J, 3 November 2011), SZRWG v MIAC [2013] FMCA 53 (Driver FM, 26 March 2013).

   [56]   MIAC v SZJGV (2009) 238 CLR 642, per French CJ and Bell J at [13], per Crennan and Kiefel JJ [59]–[60].

   [57]   SZKHD v MIAC [2008] FCA 112 (Collier J, 19 February 2008) at [31].

   [58]   See SZMZA v MIAC (No.2) [2008] FMCA 1418 (Smith FM, 21 October 2008) at [16]-[17], finding an erroneous application of s.91R(3) where the Tribunal took account of conduct in Australia where it was left in doubt about the applicant’s motives for engaging in the relevant activities. See also SZMPJ v MIAC [2008] FMCA 1640 (Smith FM, 17 December 2008) at [25]-[27].

2. In this case the Tribunal has found that the applicant did not renounce his Islamic faith prior to arriving in Australia [in] August 2012. He was Baptised [in] March 2013 and married to [his partner] in an Anglican marriage service [in] August 2014. His evidence was that he introduced to the Christian faith through Iranian friends who attended [Church 2]. Nevertheless, his conversion to the Christian faith from Islam happened extremely quickly after he arrived in Australia. Even if the Tribunal was to accept that he had renounced all religion prior to leaving Irian (which it does not) as claimed, his adoption of the Christian faith happened very quickly after his arrival in Australia and contrary to his claim that he had rejected all religion.

3. [Reverend D] stated in his letter that it was complicated for the applicant and [his partner to] register their marriage in Australia and as such their marriage was in limbo and ‘completely intermediate.’ While the Tribunal has accepted that it would not be easy to obtain the documentation, it has been almost four years since the date of their marriage ceremony and, despite the passage of time and the fact that the applicant has previously received documentation from Irian, he has made no attempt to obtain the necessary documentation to register their marriage or provide the statutory declaration necessary to register their marriage.  The applicant’s and [the partner’s] failure to have their marriage registered in Australia causes the Tribunal to conclude that the applicant and [the partner] are content to accept the ‘limbo status’ of their marriage for the purposes of their respective protection visa applications.

4. The combination of these concerns causes the Tribunal to find that the applicant has not been truthful in his evidence concerning the reasons for his conversion to Christianity and his claimed fears about the reaction to his conversion to Christianity upon his return to Irian.

5. On the cumulative evidence, on matters set out above, the Tribunal accepts that the applicant was baptised [in] March 2013, has attended [Church 2] and Church in [Suburb 1 in State 1], has undertaken Bible studies, has assisted community members, has talked about Christianity, and has exhibited some knowledge of some tenets of the Christian faith.  The Tribunal has also had regard to the oral evidence of [Senior Pastor E] as well the letters of support provided to the Tribunal attesting to his genuine Christian conversion and ongoing commitment as set out above. The Tribunal accepts that the applicant has held himself out – and was accepted by – the church leaders and community members – as being someone genuinely interested in adopting the Christian faith.  The statements provided and [Senior Pastor E] evidence indicated that while he expressed himself as a Christian for the purpose of churches activities there was nothing to suggest that he would proselytize the Christian faith upon his return to Iran. As such, due to the concerns in significant aspects of the evidence before the Tribunal as discussed above, the Tribunal doubts his religious beliefs and alleged motivations to convert.  In the Tribunal’s view the oral and written evidence from [Senior Pastor E] and others does not overcome the Tribunal’s concerns. When weighed against the significant credibility concerns, the Tribunal does not accept that the applicant genuinely holds Christian beliefs and finds that his conversion to Christianity was for the sole purpose of strengthening his claim to be a refugee.  The Tribunal is not satisfied that the applicant engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee within the meaning of the Convention.

100.Given such findings the Tribunal is not satisfied that the applicant engaged in church attendance, converted to Christianity, took part in a religious marriage ceremony with [the partner] and engaged in ongoing church related activities in Australia otherwise than for the sole purpose of strengthening his claim to be a refugee within the meaning the Refugees Convention as amended by the Refugees Protocol. Accordingly, as required by s.91R(3), the Tribunal has disregarded this conduct in considering the applicant’s protection claims.

Imputed political opinion as a failed asylum seeker

101.The applicant has asserted in his submissions[59] to the Tribunal that if he is removed from Australia to Iran as a failed asylum seeker and/or a forced returnee he will be imputed with an adverse political opinion or imputed with a political opinion of being opposed to the Iranian regime and having alleged persecution by the regime abroad.

[59] Applicants submissions dated 29 March 2018

102.However, the advice from DFAT[60] is that while it is possible that a known dissident may be prosecuted, it is unlikely that an individual simply claiming asylum overseas will be prosecuted as an asylum seeker. The question for the Tribunal is whether the applicant will come to the attention of the Iranian authorities on or after his return to Iran as a failed asylum seeker, and so be imputed with an anti-government political opinion as a result. The available country information indicates that for a person to be returned to Iran without a valid Iranian passport it would be necessary for them to come to the attention of the Iranian authorities. The Tribunal accepts that the applicant does not currently have a valid passport. The Tribunal further accepts that the applicant may be asked questions both in Australia at the time when his departure is being organised (voluntary or involuntary) and upon his return to Iran. The Tribunal has assessed the applicant’s case on the basis that he is likely to be stopped, interviewed and have his case ‘examined in detail’, as a forced returnee. 

[60] DFAT advice dated 19 April 2011

103.The Tribunal has not accepted the evidence of the applicant in relation to his claimed detention at the Sepah camp and his debate in the [shop] and as such has found that there is not a real chance that he will be seriously harmed as a result of each incident as claimed. In addition the Tribunal has found that based on the country information and despite the lack of evidence as to his rejection of Islam at that time, there is no real chance of him being seriously harmed by reason of his rejection of Islam in 2007/08. Finally, Tribunal is not satisfied that the applicant conversion to Christianity was for any other purpose but  to strengthening his claim as a refugee Therefore, while the Tribunal accepts he may be questioned by authorities, based on the country information and that fact that the Tribunal has not accepted the applicant’s evidence in relation to each of his claims the Tribunal finds that there is not a real chance of the applicant being seriously harmed by reason of being a failed asylum seeker returning to Iran.

104.Given these findings the Tribunal does not accept that the applicant has a subjective fear of persecution in Irian because he holds actual or imputed Christian beliefs or has converted to Christianity.  Nor does the Tribunal accept that he has renounced Islam.  It follows that the Tribunal finds that there is no real chance that the applicant will be persecuted on return to Irian, either now or in the reasonably foreseeable future by reason of religion or for any other Convention reason. 

105.The Tribunal is therefore satisfied that the applicant does not satisfy the criterion set out in s.36(2)(a) for a protection visa and as such he is not a person to whom Australia has protection obligations under the Refugees Convention.

Applicant’s complementary protection claim

106.The applicant claims that, without conceding in any way his claims under the Refugee Convention, that the same factual matrix may invoke Australia’s protection obligations under complementary protection criteria pursuant to s.36(2)(aa) of the Act. Accordingly, the Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. That is the Tribunal has considered if the applicant faces a real risk of significant harm from the authorities on return his return to Irian on the basis:

(a)that he has a pre-existing adverse profile in Iran as a result of coming to the adverse attention and being arbitrarily detained by Iranian authorities in mid-February 2012.

(b)that he rejected Islam in or about 2007/2008.

(c)that he has converted to Christianity since arriving in Australia.  

Applicants pre-existing adverse profile

107.For the reason set out above the Tribunal has not accepted the evidence of the applicant in relation to his detention and interrogation at the Sepah camp or in relation to his debate in the [shop]. As such the Tribunal does not accept that he signed any documentation or that any file was created against him while in detention in the Sepah camp that informs any fear he may possess. In any event, the applicants own evidence was that the authorities had satisfied themselves that he had been delivering the materials to a work site as he had claimed. As such, the authorities had already satisfied themselves at that time he was no threat to the regime.

108.In addition the Tribunal has not accepted the applicant’s evidence in relation to his conversation in the [shop] in mid-February 2012. The Tribunal does not find it creditable that the applicant would reject Islam during the course of a debate with a stranger in circumstances where claims to have been detained and interrogated by the Basji only five or six weeks prior, that he was aware that members of Basji are prolific within Iran and capable of detaining and interrogating people and that it is against the Sharia law to rejected Islam or convert to another religion. Accordingly, the Tribunal has not accepted the applicant’s evidence that he had rejected Islam during his conversation in the [shop] and that he was pursued by the authorities as a result. In any event the incident happened 6 years ago. It is unlikely that the applicant continues to be a person of interest to the authorities or is considered a threat to the regime by reason of a single remark made in a conversation that occurred over 6 years ago.

109.Accordingly, the Tribunal finds that it finds that the applicant is not known as a dissident by the authorities in Iran and has no pre-existing adverse profile. As such the Tribunal finds that there is no real risk of him being significantly harmed in the event he is returned to Iran by reason of any pre-existing adverse profile in Iran as claimed.

Applicant’s rejection of Islam in 2007/2008.

110.For the reason outlined above the Tribunal finds that the applicant’s rejection of Islam would not be noticed by the authorities. Other than his assertion that he had rejected Islam prior to his departure from Iran he did not provide any other evidence in support of his claim.  In circumstances where the Tribunal has found that he converted to Christianity solely for the purposes of his protection application and in light of the country information that nearly a quarter of Iranians never attend religious services and another 23% only attend on holy days[61] the Tribunal finds that there is no real risk that the applicant will suffer significant harm in the event he is returned to Iran.  

[61] World Values Survey, ‘Iran Wave 2005-2009 Online Data Analysis: V186.- How often do you attend religious services’, available at [accessed 16 Sept. 16] 

Applicant’s conversion to Christianity since arriving in Australia

111.In his submission to the Tribunal the applicant claims that he will face being monitored, harassed, arrested detained and tortured for his conversion to Christianity. The applicant’s submissions included country information from a variety of sources about persecution directed toward Christians and converts from Islam. His evidence was that, in the event he returned to Iran, he wanted to be able to express his Christian beliefs and to practice his faith openly and freely without any modification of his behaviour. He said that this will place him, at great risk. However, for the reasons set out above the Tribunal has not accepted the applicant’s evidence that he genuinely holds Christian beliefs. Rather, for the reasons outlined above, the Tribunal has found that his conversion to Christianity was for the sole purpose of strengthening his claim to be a refugee. In addition, while the [Mr B] statement, the [Ms C] statement and the [Reverend D] statement all refer to the fact that that the applicant has attended [Church 2] on a regular basis, there was nothing in the statements or the oral testimony of [Senior Pastor E] that indicated he actively expressed himself as a Christian beyond the churches activities or that he would proselytize the Christian faith upon his return to Iran. Rather, it appears from the applicants evidence and the statements provided that the applicant participated in the church activities for the purposes of mixing socially with friends from the Iranian community rather than from a well-founded belief in the Christian faith.  As such, the Tribunal does not accept that the applicant holds Christian beliefs nor as a genuine Christian convert.  There is nothing in the statements provided that indicates to the Tribunal that the applicant would remain committed to the Christian faith in the event he is returned to Iran. The applicant’s failure to have his marriage to [the partner] registered under Australia law means that they are not legally married in Australia and indicates that he would not remain committed to the faith in the event he is returned to Iran. The Tribunal therefore finds the applicant does not face a real risk of significant harm as a Christian or a Christian convert from the government authorities or anyone else as a necessary and foreseeable consequence of being removed from Australia to Irian.

112.Having considered the applicant’s claims singularly and cumulatively, the Tribunal finds that that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that the applicant will suffer significant harm. The Tribunal therefore finds the applicant does not satisfy the criterion set out in s.36(2)(aa).

CONCLUSIONS

113.The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

114.Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(aa).

115.There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) for a protection visa.

DECISION

116.The Tribunal affirms the decision not to grant the applicant a Protection visa.

Jason Pennell
Member