1601460 (Refugee)

1601460 (Refugee) [2019] AATA 4310 (8 March 2019)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1601460
COUNTRY OF REFERENCE:                  Iran
MEMBER:Justin Meyer
DATE OF DECISION:  8 March 2019
DATE CORRIGENDUM
SIGNED:4 October 2019
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:
·In paragraph 3, delete the words “Note: If the decision would otherwise be affirmed in these circumstances, the following wording can be used instead of the template:”.
·In paragraph 20, delete the word “around” and insert the word “Iran”.
·In paragraph 25, delete the word “face” and insert the word “faith”.

Justin Meyer
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1601460
COUNTRY OF REFERENCE:                  Iran
MEMBER:Justin Meyer
DATE:8 March 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 08 March 2019 at 12:31pm
CATCHWORDS
REFUGEE – protection visa – Iran – religion – Christian convert – particular social group – failed asylum seeker – imputed political opinion – anti-government – harassment by Basij –genuine faith – status of Christians in Iran – proselytizing likely if returned – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36, 45AA, 65, 499
Migration Regulations 1994 (Cth), r 2.08F; Schedule 2
CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473
Applicant A v MIEA (1997) CLR 225
Chen Shi Hai v MIMA (2000) 170 ALR 553
Pei Lan He v MIMA [2001] FCA 446
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

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).
The applicant, who claims to be a citizen of Iran, applied for the visa on 16 August 2013 and the delegate refused to grant the visa on 29 January 2016.
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. Note: If the decision would otherwise be affirmed in these circumstances, the following wording can be used instead in the ‘decision’ sections of the template:
The applicant appeared before the Tribunal on 11 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], who is the applicant‘s friend.
The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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).
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.
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’).
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.
The issues in this review are whether the applicant has a well-founded fear of being persecuted in Iran, and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of any of him being removed from Australia to Iran, there is a real risk that he will suffer significant harm. I accept as outlined by the delegate that the applicant is an Iranian citizen based on his original Iranian national identity card and driver’s licence. I am also satisfied the applicant cannot avail himself of the right to enter and reside in a third country.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant’s claims on his application to the Department are summarised as follows:
·He was born in Tehran, Iran.
·He can speak Persian (Farsi) and can read and write Persian and English.
·From birth until March 2013 he resided at one address in Tehran.
·In March 2013 he departed Iran for [Country 1] on his own genuine Iranian passport. He transited in [[Country 2] before arriving in [Country 1], where he claims he remained for a short time before departing for Australia. He claims he destroyed his passport before arriving in Australia.
·The applicant claims that he does not have a right to enter and reside in another country.
·The applicant arrived in Australia [in] May 2013 on a boat codenamed [name].
·The applicant claims he has not registered with UNHCR.
·On 15 August 2013 the applicant applied for a Class XA, Subclass 866 (Protection) visa.
·The applicant was involved in a protest demonstration in December 2009. The Basij attacked the demonstrators and the applicant was thrown to the curb and hit his forehead. The applicant was then transferred to a house and the Basij continued to viciously beat and interrogate him.
·The applicant explained that he was simply returning home after work and had got caught up in the crowd. He presented his ID and work papers. The applicant's employer attended and confirmed his story and credentials. The applicant was directed to sign papers stating he would not protest again and was then released
·The applicant was dismissed from work a week later due to his participation in the demonstrations.
·[In] March 2013, the applicant went to a bank to apply for a loan. He was told that due to a recent embezzlement scandal, loans had been suspended. The applicant argued with the bank manager and insulted the regime and Supreme leader. The manager asked 'Are you insulting the Supreme Leader?' The applicant became scared and escaped as he knew the consequences.
·[In] March 2013, the applicant took part in Carshenbeh Soori celebrations (an ancient Persian festival held on the last Tuesday of the year). During the festivities, the Basij came and tried to violently stop it. The applicant was pepper sprayed but was helped by two boys. The crowd then turned on the Basij and they were chased away.
·Two days later the applicant received a summons while at home detailing accusations of insulting and assaulting Basij officers. He was instructed to appear at a Basij base on [date].
·The applicant chose not to attend the Basij base and instead fled the country.
·Since leaving Iran, the applicant has received a second summons and the family house has been raided.
·While in Australia, the applicant has converted to Christianity.
·The applicant claims if he returns to Iran he will be arrested by the Basij because he was involved in a quarrel with them and several of their members were hurt. The applicant claims he will also be harmed as he did not report to the Basij base after receiving a summons, and as he made disrespectful remarks about the Supreme Leader in public. At his Protection visa interview, the applicant made new claims about incidents with the Basij:
·He was arrested by the Basij after heckling them at a checkpoint. He was taken before a judge but acquitted. He started a fight with the Basij after he thought they were unfairly questioning a woman in a public square. He was stabbed with a broken piece of glass in the arm. He woke up in hospital.
At his Entry Interview on 28 May 2013, he claimed as follows:
·The applicant was asked why he left Iran. He responded 'First: There are no rules, nothing is fair in Iran. I decided to come to Australia with my wife. '
·The applicant was asked if anything else happened to him to make him want to leave Iran.
·He responded ‘Only the society problems, not being fair. Second, just decided with my wife to come and live in Australia in peace.’ When asked what his principle reason was for leaving Iran, the applicant stated 'Lack of economic opportunity'.
·The applicant was asked ‘Were you ever arrested or detained by the police or security organisations?' he responded ‘I wasn't arrested but the last Wednesday of the year before Nowruz the Basij just came and beat everyone.’
·He was asked 'Did the police and security or intelligence organisations impact on your day to day life in Iran, he responded 'No' and only mentioned the Basij beating everyone at the Charshanbeh Soon (Festival of Fire). He was then asked 'Have you ever been arrested or detained and/or charged with any offence?' Again the applicant replied 'No'.
At his Protection interview on 17 September 2014 the applicant claimed:
·He is so well known by the Basij and so frequently in trouble with them that he felt bad for the stress he had caused his mother, his wife and his [child] with the Basij constantly knocking on the door looking for him.
·He detailed constant harassment from the Basij in his everyday life and constant ongoing conflicts in which he argues or fights with them.
·He had several incidents with Basij where he was injured, once requiring hospitalisation and on another occasion leading to his arrest and being held and beaten by police for a week before being acquitted in court.
His written submission to the Tribunal of 20th July 2018, features numerous reports and articles as country information, and it was along the following lines:
·His claims should be examined on the basis of his imputed political opinion. In terms of the applicant’s initial claim of lack of economic opportunity in Iran, the applicant reasoned that he feared he might be sent home. The applicant’s fear is real, and should the applicant be returned to Iran, he could be subject to harm and interrogation. If the applicant returned to Iran, he could be detained and subjected to interrogation and mistreatment. Recent events in Iran indicate that there has again been a major crackdown on anyone who dares to speak out against the current regime. Based on all of the above, the Tribunal cannot exclude the possibility that the applicant could be seriously harmed by the Iranian authorities.
·The applicant was harmed by the Basij when he was a Shia Muslim. In this regard, the applicant’s political opinion was of more concern to the Basij than his religion. The applicant maintains that his problems with the Basij were his main concern. These concerns are now compounded by the fact of his conversion to Christianity.
·In terms of the summons the applicant has presented, the delegate referred to country information reports which stated ‘the summons is issued for the purpose of the defendant to defend himself in court, and details such as the court and its branch, the defendant’s address, a signature indicating receipt of the summons and the stamp of the issuing authority are present on summon. The delegate has stated that none of the features stated in that country information are present on the summons offered by the applicant. In particular, the delegate stated that despite the applicant’s claims that his true identity is known to the Basij as his identity documents were inspected and noted by the Basij and he was made to sign paperwork regarding the initial protest he claims he was detained at, his real name does not feature on the summons, and his address is also notably absent.
·The delegate raised concerns regarding the genuine nature of the summons offered by the applicant. The delegate stated that it is not an original summons and that it could easily be manufactured in an attempt for the applicant to strengthen his claims. It is not a requirement for the first name of the person summoned to appear in summons. In this regard, it is not an issue that the applicant’s legal name did not appear on the summons the applicant has presented, and hence the genuineness of the summons cannot be questioned on this basis. The above authority also does not state that address of the person summoned has to be included in the summons. Even in the event that address of the person summoned is a requirement of the summons, we submit to the Tribunal following the above authority that inconsistency of the formatting of the summons is not at all uncommon in Iran, and hence the reason for not including the address of the person summoned. people are sometimes summoned by telephone.
·The applicant’s version of events has changed significantly since his entry interview in which the applicant stated that he had never taken part in any protests against the government. When he was asked if he had been arrested, detained or charged with any offences, to which the applicant answered ‘no’. But the applicant had spent so much time in detention in Iran, he was afraid of talking. They did not treat him badly though. He thought that if he said negative things about the Basij, he would be sent home and he was under the impression that if he reached Australia he would simply go straight into the community and not be in detention. Initially he feared that he might be sent home where the applicant will be subject to same harm that he has suffered in the past at the hands of the Basij or even more harm if he is returned to his home country Iran.
·The delegate looked at how the applicant passed through the Immigration checks leaving Iran. At interview the applicant was asked if he encountered any difficulties when leaving the airport and the applicant responded that he was crying so much that officials asked him what was wrong.
·The applicant stated that he managed to compose himself and board the plane without any further incident. The applicant advised that he had not been concerned about the police at the airport as in his local area he was known as [Alias 1] and this was the name used on the summons, whereas his documents such as birth certificate and passport stated [applicant name].
·The applicant’s lack of concern about exiting Iran can be explained because the Basij only knew him by his nickname [Alias 1]. The applicant has previously handed his work and identity documents over to the Basij. The delegate stated that the Applicant’s claim that he was crying uncontrollably to the point of the airport officials checking on his well-being further demonstrates a complete lack of concern about drawing attention to himself. The delegate therefore did not accept that a person fleeing the country in fear for his own life would have such little regard for such a dangerous situation. The delegate found that the applicant was able to pass through the airport as he was of no interest to Iranian authorities. However, it is possible that an Iranian whose name is on a blacklist could exit Iran by travelling overland into Turkey, Pakistan, Afghanistan or crossing the Persian Gulf to Oman or the United Arab Emirates. Iranians could also exit through bribery at the airport. He is of interest to authorities and argue that this does not necessarily mean that he will be blacklisted. the applicant was able to leave the country without any problem does not afford the explanation that the applicant was of no interest to the Iranian authorities. In this regard, the delegate erred in finding that the applicant was able to leave Iran with no problems as he is of no interest to the Iranian authorities.
·The applicant went for religious pilgrimage to Iraq on three occasions, twice in 2010 and once in 2011 but refutes the claims that he was a devout Muslim. He went to Iraq because he admired Imam Hossein because he fought for freedom and liberty.
·The delegate was concerned about the applicant’s claim to believe in Christianity - his level of knowledge, lack of demonstration of spiritual reasoning for conversion, lack of time and effort to attend services and bible study, and that someone who had been an agnostic for years would have had a profound spiritual experience that pulled him back to religion, and his descriptions confined to simply liking the kindness of Christians the applicant had met. However Iranians convert to Christianity for various reasons and often the underlying reason is they are fed up with the violence of Islam and what they have seen of Islam in Iran. There are many Iranians who converted to Christianity after seeing the kindness and generosity of Christians while they were in Immigration detention. The applicant has spent several years attending church before deciding to be baptised indicating that he has thought about his actions and decisions. Conversion amongst Iranians and others of Muslim background, is growing. The applicant provided further details about he became interested in Christianity and how that interest has been nurtured and grown during his time in Australia resulting in his Baptism. A letter from his Pastor has also been provided. He was baptized following a Bible Study Course which lasted about 4 months. He attends the [Suburb 1] Church. His interest in Christianity began when he was in [City 1, Australia]. When he visited [City 2] he visited various churches before finding the Baptist church in [Suburb 1] which has Farsi and English services He likes this church very much and attends regularly, since March 2018. The people at this church have given him much support. He told his family about his interest in Christianity about four years ago and about my desire to convert. They told him he should not return to Iran or he would be killed. He has put on his faith on his [social media account] so he is sure the Iranian authorities know about it. People in his neighbourhood know he has gone to Australia and converted - friends in the neighbourhood have told him this.
·He completely disagrees that he was interested in Christianity simply to get a visa. He also disagrees that he went to Iraq three times because he was a devout Muslim. The applicant went because he likes Imam Hossein because he fought for freedom and liberty. He decided to follow Christianity because he saw the compassion and kindness in Christians and believed that following Christianity would bring him closer to God.
·Conversion meant he made the decision to be identified as a Christian rather than a Muslim and decided to follow the Christian faith. Baptism means re birth to him. When you are immersed in the water it is a symbol of dying and being reborn as a new person. If he did not have problems in Iran he would not have come to Australia. He would have stayed and cared for his parents and looked after them. He has not converted just to get an opportunity to stay in Australia. He was not even intending for this matter to become a refugee claim as he was focused on the issues he had with the Basij but he was asked about my religion and I told the migration agent he was interested in Christianity. Yet the time he was first asked he had not yet decided whether to convert. His interest and love of Christianity developed during the years he has lived in Australia. In the last year he felt ready to make the step of baptism and make a public profession of his new faith. He was baptised in November 2017.
·His minister, the Reerend [B], interim Pastor of [Suburb 1] Church, wrote a letter to the Tribunal on 26 September 2017 to state that the applicant began attending the church in August 2017. He fled Iran and came to [City 3] Australia by boat, in 2013. He fled Iran because he was getting into trouble with the police for protesting against bullying. He had lived in [City 1] for four months in 2013, and while he was in [City 1], he had the desire to visit one of the churches in [City 1]. He began to believe in Christianity. He then arrived in [City 2] in 2014. He told of settling in [Suburb 2] and continuing to attend a church in [Suburb 2]. He had become very depressed when he was informed that his mother passed away in Iran in 2014. In his depression he stopped attending church for a little while due to his grievance. It was not long after his passing of mother, his father died in 2016. These grieving incidents had made him very sad and depressed. One of his close friends had encouraged him to stay strong and remain hopeful. This friend comes to [Suburb 1] Church, and he invited the applicant to go with him to [Suburb 1] Church. After several visits to the church, the applicant felt encouraged, supported and he considers that the church community is his new family in [City 2]. The applicant wanted to strengthen his Christian faith by requesting to be baptised and become a member of the church. At the time of her writing he was in the process of attending baptism classes, which were to finish in October 2017. The baptism date was 26th of November 2017. The applicant has been involved also in a weekly group which combines English classes, a meal and Bible study, running for about 3 hours. He also attends church service regularly. The applicant is a person who is strongly committed to his Christian faith and also to the Christian community of [Suburb 1] Church. He is friendly, loves to help others, is a humble person, co-operative and trustworthy. The church was happy to support him.
·Despite the applicant’s claimed numerous confrontational incidents with the Basij, the applicant lacks any formal charges. This is because evidence is necessary to have him convicted of crime. Yet security forces such as the Basij often act with impunity and little formal observation of people’s legal rights. It was accepted that the applicant may have come to the attention of the Basij, but it was not accepted that the applicant was arrested or seriously harmed, harassed, summoned or charged as a result. However, the applicant sates that that the summons presented is original and genuine. But the applicant should be given benefit of the doubt as he cannot “prove” every part of his case.
·The applicant claims a well-founded fear of persecution owing to his imputed political opinions, his religious beliefs and his membership of a social group (infidel/ apostate/failed asylum seeker). Iran is a dangerous place to be different, where people are persecuted for political views, their race, gender sexuality and religion. Human rights abuses are still very widespread and are still carried out against both individuals and social groups. Activists are routinely arrested without warrants, held indefinitely without formal charges, and denied access to legal counsel or any contact with the outside world. Many are later convicted on vague security charges in trials that sometimes last only a few minutes. Activists say they have been beaten during interrogation, forced into false confessions, and subjected to psychological pressure, including threats that their relatives will be arrested. As a Christian convert the applicant faces harm. The Iranian Constitution declares the official religion of Iran is Islam and states all laws and regulations must be based on undefined "Islamic criteria" and official interpretation of Sharia. The constitution does not provide for the rights of Muslim citizens to choose, change, or renounce their religious beliefs. The government considers a child born to a Muslim father to be a Muslim and deems conversion from Islam to be apostasy. Individuals convicted of apostasy can be sentenced to death or life imprisonment under interpretations of Islamic Law commonly used in Iranian courts. The Applicant was born as a Shia Muslim. The Applicant converted to Christianity in Australia.
·Religious freedom continues to deteriorate. Christians most commonly prosecuted appear to be converts from Muslim backgrounds (such as the applicant) or those that proselytize or minister to Iranian Muslims. Iranian Authorities at the highest levels have designated house churches and evangelical Christians as threats to national security. Members of religious minorities continue to face severe restrictions. Adherents of recognised religions, such as Christians (especially those of Muslim background) continue to suffer discrimination and are reportedly prosecuted for peacefully manifesting their religious beliefs. In its response, the Government rejects allegations regarding restrictions on religious minorities, including Christians, and maintains that “house churches” are engaged in illegal activities because they do not secure the relevant permits from government officials. most cases involving Christians are tried in revolutionary courts for national security crimes, some Christians face charges in public criminal courts for manifestation of religious beliefs although prosecutions for the capital offence of apostasy are very rare, officials routinely threaten to prosecute Christian converts for apostasy, which, while not found in any Iranian criminal law, has been prosecuted based on an Islamic law interpretation commonly used by Iranian Courts.
·The regime now charges converts with political and national security-related crimes, and not specifically with apostasy: there is a renewed push against the religiously deviant in Iran, including Christian converts, Those who have converted from Islam and whose conversion is likely to come to the attention of the authorities (including through evangelical or proselytising activities or the person having previously come to the adverse attention of the authorities for other reasons) are at real risk of persecution on return. There were numerous incidents of Iranian authorities raiding church services, threatening church members, and arresting and imprisoning worshipers and church leaders, particularly Evangelical Christian converts. Since 2010, authorities arbitrarily arrested and detained more than 500 Christians throughout the country. The government severely restricted religious freedom. Government rhetoric and actions continued to create a threatening atmosphere for nearly all non-Shia religious groups, including Christians, especially evangelicals; The government actively denied Christians freedom of religion. Christians, particularly evangelicals, continued to experience high levels of harassment and surveillance. The authorities arrested members of evangelical groups, according to human rights activists. Prison authorities reportedly withheld proper medical care from some Christian prisoners, according to human rights groups. The penal code specifies the death sentence for proselytizing and attempts by non-Muslims to convert Muslims, as well as for moharebeh (“enmity against God”) and sabb al-nabi (“insulting the prophet”). According to the penal code, the application of the death penalty varies depending on the religion of both the perpetrator and the victim. While Christian converts in Iran have not been convicted of apostasy in recent times, reports do indicate that during the period of 2008 to 2010 many Christian converts have been arrested and detained. Reports state that some detained Christian converts have been charged but not convicted of apostasy. Christian converts have been routinely pressured by Iranian courts to renounce their Christianity, a report dated 15 January 2009 by Human Rights Activists in Iran also states that new converts are subject to physical and mental abuse while detained. Converts in Iran also face official discrimination including restrictions in relation to employment and education. Reports state that converts have also been denied passports. Reports indicate that negative societal attitudes towards Christian converts may result in discrimination within the community.
·The applicant has a well-founded fear of persecution on the basis of membership of a particular social group being a failed asylum seeker/returnee from Australia / western country. There is a real likelihood that the Iranian Authorities will be able to identify the Applicant upon his return to Iran. The Applicant will undoubtedly come to the adverse attention of the Iranian Authorities. Prior to his return he will be issued with a travel document in his legal name. This will put the Iranian Authorities on notice of his impending return. If returned the Applicant will be handed over to the Authorities on arrival at Tehran Imam Khomeini International Airport and will likely be questioned about how and why he left Iran, his activities in Australia, how and why he has returned. Iran, will, at the very least, take a negative view of the actions undertaken by their citizens or persons with the Applicant’s profile in a western country such as Australia. This is despite recent statements by the Iranian government to the Australian government that failed asylum-seekers will be welcomed back with open arms.
·Iranian dual nationals and citizens returning from abroad were at particular risk of arrest by intelligence authorities, accused of being “Western agents”. The threat of harm, including imprisonment, torture, arbitrary deprivation of life and cruel, degrading or inhuman treatment, is a direct and personal risk. Anyone who disagrees with the Iranian regime is generally at risk of being labelled a seditionist, irrespective of whether or not they were involved in post-election protests. Everyone who disagrees with the regime is at some risk. At least some returnees from Australia and elsewhere have been subjected to varying degrees of ill-treatment by authorities upon return, ranging from monitoring, interrogation, and detention. It is likely that the names and details of Iranian citizens who apply for protection in western states are brought to the attention of Iranian embassies by informants and subsequently passed onto Iranian authorities. It is also likely that these details will be known to Iranian Immigration security officials at Imam Khomeini International Airport in Teheran, the main international gateway into Iran.
·It seems likely that an Iranian seeking protection in Australia would come to the attention of the Iranian Embassy in Canberra via members of the diaspora. Consequently, Iranian authorities could eventually become aware of an Iranian national’s unsuccessful attempt to gain asylum in Australia. The combination of the Applicant’s past issues with the Basseej, his religion (conversion to Christianity) and his return as a failed asylum seeker will put him at significant risk of arrest, imprisonment and subsequently inhumane conditions in custody. there is no place for actual or perceived political opposition in Iran at present. it is likely the Applicant will be unfairly accused and charged with ‘making up accounts of alleged persecution’ by the Iranian Authorities. 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 interrogated and threatened with punishment during a visit to Iran because of their support.
·The Applicant cannot safely relocate within Iran. He will be detained upon arrival at the airport for returning without a valid passport and subsequently will be identified as a person of interest to the Iranian Authorities. The Applicant will be detained and will be at risk of significant harm by the Iranian Authorities. The risk that precipitated the departure from Iran is not negated anywhere in Iran as the perpetrators of the harm feared are State actors and therefore are present throughout Iran. There are new risks to the Applicant, namely formal conversion and return from Australia. the treatment of Christian converts in Iran and return of a failed asylum seekers are factors heighten the Applicant’s risk of harm. There will not be state protection in the form of a reasonable a reasonably effective police force and a reasonably impartial system of justice that is available to protect nationals against harm of the kind feared by the applicant. The Iranian Authorities are the principal agent of the persecution the Applicant’s fear. Independent country information makes clear that this persecution, inflicted by the various Iranian Authorities – including the Etelaat, Basji and Sepah- is sponsored by the Iranian government. The Iranian Authorities are the perpetrators of persecution that is both systematic and discriminatory.
·If the applicant is found not to meet the criteria as set out in the Act, then he meets the criterion for a protection visa according to s 36(2)(aa). There are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran there is a real risk that he will suffer significant harm. There are substantial reasons to believe the Applicant will be subjected to arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. It is highly probable that the Applicant, if returned to Iran would be harassed, threatened, intimidated, physically harmed and/or killed by the Iranian Authorities who seek reprisal against Christian converts. On this basis, there are substantial grounds for believing that there is a real risk that the Applicant would suffer significant harm on the basis of:
-     Arbitrary deprivation of life that arises because on return there is a real risk the Applicant maybe subjected to prolonged detention on the grounds that he is an apostate; and/or
-     Torture, including physical and psychological torture by the Authorities due to the Applicant’s conversion to Christianity;
-     Cruel or inhuman treatment or punishment, including being the recipient of threats and intimidation, and suffering significant anxiety as a result of the constant targeting by state agents on return because of the Applicant’s conversion to Christianity;
-     Degrading treatment or punishment or an act or omission intended to cause extreme and unreasonable humiliation that arises because on return the Applicant may face the denial of employment and other basic services on the basis of having converted to Christianity.
·The harm he fears is faced by him personally and not by the Iranian population as a whole. The Applicant cannot reasonably relocate to another area of Iran given the Iranian Authorities are the principal agents of the persecution and independent country information evidences the Iranian Authorities will not protect the Applicant from the significant harm feared. It is submitted that the Applicant is outside his country of nationality and does not have effective protection in a third country. The Applicant’s fear of serious harm at the hands of the Iranian Authorities are well-founded, for reasons of religion and imputed political opinions and membership of particular social groups:
-     Religion: The Applicant fears persecution from the Iranian Authorities for converting to Christianity.
-     Membership of a particular social group: The Applicant fears persecution from the Iranian Authorities for being a returned failed asylum seeker from Australia/West.
-     Imputed Political Opinion: The Applicant fears persecution from the Iranian authorities on the basis of being imputed as anti-Government/anti-Islam.
·The Applicant does not have adequate state protection as the persecution is largely at the hands of the Iranian authorities. The Iranian authorities operate throughout Iran, consequently it is not possible for the Applicant to legally and safely relocate to another area of Iran to escape the persecution feared. In the event the Applicant does not satisfy the refugee criteria to enliven Australia’s protection obligations, the Applicant is entitled to Australia’s complimentary protection obligations as outlined in the Migration Act. The Applicant is therefore entitled to claim protection from the Australian Government pursuant to s 36(2) of the Migration Act 1958 (Cth)
Analaysis in the light of the applicant’s evidence at hearing

The applicant’s activism in Iran could at most be described as low-level. There was no information before me to suggest that the applicant was in any way involved in a high-profile or developed level of activism. This includes action against the government or identification with any particular social group that might create problems for him. The applicant gave descriptions of his attendance at a rally because everybody was on the streets. When I asked the applicant about whether he had got into trouble with the authorities in Tehran he said that he had experienced a lot of trouble.
He said that the gun was pointed in his face and he was accused of insulting religion and the supreme leader. He said that he had received a summons. He said the first attendance at a demonstration was involuntary. It appears that he simply happened to be there at the time. He claimed that he received a summons from Basij and had to make a promise that he would not attend any more rallies. I find that on his vague evidence he was a casual observer at a rally. I find that the applicant gave evidence got involved in a scuffle with some rival groups. I find that his involvement was no more than that. The applicant did not know any leaders of the protest and he was not a leader himself. He did not post online. He said he liked other people’s posts in Australia. This is a very indirect form of protest. I find that the summons he received in 2013 was a low-level fine. I do not accept that he would have been tortured for this, nor has he been tortured before as he claimed. I find that his evidence about his real name being on the summons versus his actual name (he is known as [Alias 1]) was confusing. I do not accept his explanation of the matter was “not an official thing”. I do not accept that the authorities did not have access to his registration and his parent’s address and could find him if they wanted him further. I find he did not argue with a bank manager and insult the regime and Supreme leader or become scared and escape as he knew the consequences. I do not accept that he was stabbed in the incident as described.
I find that the applicant was married but is now divorced. He said that he told his wife that he was leaving around permanently and that she was upset. She had lived with the applicant at the applicant’s parents’ house.
I find that the applicant’s criticism of the state or politics in Iran to be minimal and restricted to people that he quietly spoke with. He remained quiet out of fear. I do not accept the applicant was held in prison as a temporary arrest, that he was summonsed or his house was searched, and he gave confusing evidence about whether he was held overnight or four more days. Because of his vague evidence I conclude that summons were not issued and that documents purporting to be such or similar are not genuine. His evidence of criticism of religion or the religious authorities in Iran was piecemeal. I accept his evidence that he had made a pilgrimage to Iraq which was done out of respect to a particular Iman from the early Islamic period and not as sign of his adherence in a particular sense to Islam. The applicant gave plausible evidence on this point.
I do not accept the reasons for the divergences in his first interview and second interview answers. I do not accept that these were just general questions, or he was fearful and unaware of the context of why he was being asked. I find it implausible that the applicant has displayed himself as an opponent of the state and yet the official police of Iran do not seem to have been notified. I do not accept that he suffered the loss of his job for the reasons he stated.
I find that the applicant does not believe in Islam and kept this to himself.
I accept that the applicant developed an interest in Christianity in Australia. I accept that the applicant started becoming a regular churchgoer after encountering Christians who were friendly and supportive of him. I accept that the applicant has been involved in churches in [City 1], [City 4], [Suburb 2] and now in [Suburb 1]. I accept that the applicant has embraced Christianity was able to give a plausible account of rebirth and peace as being key concepts of Christianity. The applicant was able to describe what was at the centre of Christianity which he called being faithful to God and peace. He could describe his beliefs about Jesus as the representation of God in human form. The applicant was asked about what Jesus’s life and teachings meant to him to which he replied that it was about his saving of people, his miracles and his sacrifice “so that our sins are forgiven”. The applicant has accepted this teaching for himself. He was baptised because Jesus told his followers to spread the word to people and baptise them in new life. Part of baptism for him was to forget his past and gain a new life. The applicant had been to Bible studies and could remember particular books of the Bible. He read the Bible in Farsi. He had read about the life of Jesus in the gospels. He observes church holy days such as Easter, noting that it was about celebrating the resurrection.
On the question about whether the applicant had told other people about Christianity he said that he had spoken to other Iranians and Australians. He was asked that if he went back to Iran whether he would confine his face to his own practice. He said that he would go to church but would get capital punishment for doing this. He would tell other people about his faith that he had done in Australia. He spoke of the concept of baptism. He had spoken to his younger [sibling] about Christianity.
The applicant was concerned about his status if he were a failed asylum seeker in Iran.
DFAT information on Iran was discussed with the applicant in the hearing about national security grounds and failed asylum seekers and evangelising to others. The applicant said that he had evangelised others on social media. The applicant was asked why he could not be considered as someone who would drop his faith and live a peaceful life. The applicant replied that this is because there was no going back. He said he kept going forward in his faith. He said it was still dangerous for him. He has told his friends he does not believe in Islam. He is also told his friends back when his living in Iran that he did not believe in Islam. He said he believed in Jesus. He said that he had lost his parents relatively recently. He said his siblings do not want to talk to him. He wants to build a new life and have rebirth in baptism in the Christian faith. He says he has found a new family in the church he wants to continue in this way.
I assess the applicant’s faith to be genuine. The applicant gave a heartfelt account of what his Christian beliefs meant to him. He applied his beliefs to his own life. He was able to identify concepts from within the Bible and church teaching relevant to his faith. He was able to identify holy days and their meaning. He was able to discuss in simple terms what baptism meant to him. I accept his evidence that he is a regular attendee for years at church and Bible study. I accept that the applicant has spoken to others in Australia and Iran about his faith and his lack of belief in Islam. I accept that the applicant does not have any adherence to Islam and that he views Shia Islam as darkness.
The applicant’s current Minister at his church, the [Mr A], gave evidence that the applicant was a regular attendee at [Suburb 1] Church. He said that he was a reliable and regular member of his Bible study. The applicant had told him about his beliefs and that new birth and new life were important to him and that the applicant had personally found this. The witness spoke of the beliefs of the early church in ancient times and how the applicant identified with persecuted people as a confessing Christian. The witness said that the applicant’s beliefs had already come at a cost to him and that he had been abandoned by those close to him. He described the applicant’s attendance is an incredible commitment and that he supports others in their journey. I give weight to this evidence.
I now turn my mind to consider, as per Justice Ryan in Pei Lan He v Minister for Immigration and Multicultural Affairs, ‘how the applicant would be likely to manifest his or her religious beliefs upon return and the likelihood of that manifestation attracting a persecutory reaction from the authorities.’[2]
[2] Pei Lan He v Minister for Immigration and Multicultural Affairs [2001] FCA 446 (23 April 2001) at [31]
I list country information on the situation of Christians in Iran that provides context to the applicant’s situation:
a.There are varying estimates of the number of Christians in Iran. Recent figures have ranged from 285,000[3] to 450,000[4]. Christian groups outside the country estimate the size of the Protestant community, which includes the entirety of Muslim converts, to be less than 10,000[5] through to 66,000[6] and as high as 150,000[7], although many converts practice in secret. Because of this one international NGO has reported views that the number of Christian converts could be as high as 500,000.[8]
b.Iranian courts typically draw on specific jurisprudence that views the act of leaving Islam for any other religion, including variants of Islam not recognized by the state, as a capital crime; a person convicted of the act must be executed.[9] DFAT considers it unlikely that individuals will be prosecuted on charges of apostasy. However, perceived apostates could be subject to broader adverse treatment, on a random basis, including on national security grounds.[10] Pastor Hossein Soodmand is the only Christian convert who has been officially executed for apostasy. Soodmand, who belonged to the church of the Assemblies of God, was executed on December 3, 1990.[11]
[3] United States Department of State, Bureau of Democracy, Human Rights, and Labor, International Religious Freedom Report for 2015, p.3
[4] Samuel Smith, ‘Over 450,000 Join Iranian House Church Movement, 'Great Number of Muslims Turning to Christ'
[5] United States Department of State, Bureau of Democracy, Human Rights, and Labor, International Religious Freedom Report for 2015, p.3
[6] Liana Aghajanian, ‘Iran’s Oppressed Christians’, March 14, 2014 available at [accessed on 9 September 2016]
[7] Department of Foreign Affairs, Australia, DFAT Country Information Report 2015, 21 April 2016
[8] International Campaign for Human Rights in Iran, The Cost of Faith Persecution of Christian Protestants and Converts in Iran, New York, 2013 p6
[9] International Campaign for Human Rights in Iran 2013, The Cost of Faith: Persecution of Christian Protestants and Converts in Iran, p.30 < Accessed 9 September 2016 <CIS25475>
[10] Department of Foreign Affairs and Trade 2013, DFAT Country Information Report Iran, Section 3.36, p.12 <CIS26780>
[11] ‘Apostasy in the Islamic Republic of Iran’, Iran Human Rights Documentation Centre, 30 July 2014 available at #3.2.2 [accessed on 5 November 2016]
Although the applicant attends church in Australia this is not necessarily an indication of whether he would attend were he to return to Iran as the reasons for his attendance in Australia may be varied including for spiritual fulfilment or for example, for social engagement. In considering motivational factors of behaviour the High Court in Appellant S395/2002 v MIMA[12] noted that fear could shape individual’s behaviour in their country of origin and that this behaviour changing fear can in of itself be considered persecution and as such past behaviour should be used judiciously in decision making. But as the applicant converted to Christianity while in Australia there is no firm guide showing how he would practice Christianity in Iran, influenced by fear or not. Recognising that what motivates the applicant to partake in Christian activities in Australia may differ were he to return to his country, I am then left with identifying and considering the motivation that is shaping how the applicant practices in Australia.
[12] Appellant S395/2002 v MIMA (2003) 216 CLR 473
I consider whether there is an objective basis for fear. I have accepted that he attends Bible study classes, that he both proselytizes amongst friends and acquaintances, and that he is an active member of his church community attending Sunday service on a weekly basis.
Despite the applicant stating that he feels at risk were he to practice his faith in Iran I must consider ‘the likelihood of that manifestation attracting a persecutory reaction from the authorities’, which I do by identifying country information that would provide guidance on whether the way they would manifest their religious beliefs would expose them to a real chance of serious harm or a real risk to significant harm.
The Danish Immigration Service undertook a fact-finding mission to Iran in 2012 and 2013 to identify issues related to conversions to Christianity. This report interviewed in-country experts and several Western embassy officials who separately said that ‘being a Christian as such is usually not a problem’, that Christian converts ‘would most likely not experience problems with the authorities’, that ‘authorities would not go after individual converts…the authorities have not cut the TV satellite channels that disseminate Christian TV…the authorities are not chasing house church members’ or that wearing a cross ‘would not be a problem in itself’.[13] This sentiment was qualified with statements that the authorities would pursue those who are ‘evangelizers and proselytizers’, those who chose to have an ‘active manifestation of one’s Christian identity in the public sphere’, that a Christian’s risk ‘may also depend on what the individual has done in the past’ and that it also depends upon the individual’s profession, ‘for example, a person with a government position would face problems if his conversion to Christianity has been found out.’[14] Additionally in a 2016 report released by the Department of Foreign Affairs it notes that:
[G]enerally speaking, [non-ethnic Christians] are able to live their lives largely free from the risk of government interest. While the possibility of low-level harassment for merely attending house-churches cannot be discounted, additional activities are generally required to attract the interest of the government, such as attempts to proselytise or conduct sermons.[15]
And a 2015 Finnish Immigration Service report stated:
As for regular members arrested during home church raids, the interest of the authorities is usually limited to gathering information on the operations. They are usually released after a short time, but this often requires them to denounce public Christian activities, and they are left uncertain of any charges possibly brought up against them.[16]
Alternative views are also prevalent, views that present a more threatening environment that would suggest a heightened risk for converts to Christianity.[17] I have chosen to give these less weight for the following reasons: they do not provide a nuanced view that differentiates the risks faced by the type of activities one undertakes from broad brush stroke descriptions of Christians, they are in some instances fraught with potential bias, in other instances the authors do not have direct access on the ground in Iran and lastly their commentary is not specifically developed with an eye towards the needs of decisions makers reviewing asylum claims.
[13] Danish Refugee Council, Iran: On Conversion to Christianity, Issues concerning Kurds and Post-2009 Election Protestors as well as Legal Issues and Exit Procedures, February 2013 p.24
[14] Danish Refugee Council, Iran: On Conversion to Christianity, Issues concerning Kurds and Post-2009 Election Protestors as well as Legal Issues and Exit Procedures, February 2013 p.24 and 26
[15] Department of Foreign Affairs, Australia, DFAT Country Information Report 2015, 21 April 2016 [3.48]
[16] Finnish Immigration Service, "Christian Converts in Iran", 21 August 2015, CISEC96CF14127 p.10
[17] Examples include: US Department of State, "2015 Report on International Religious Freedom - Iran", 10 August 2016, OGD95BE926723; "Iranian President’s broken promises to minorities", World Watch Monitor, 12 March 2015, CXBD6A0DE2756; "What it's like to be a Christian in Iran", Deutsche Welle, 25 January 2016, CX6A26A6E532;
Based upon the country information and my findings of fact as to how the applicant practices his faith free from fear in Australia I find that he would continue to practice his faith as he does in Australia and such actions including actively proselytizing, including on [social media] as related would in turn expose him to a real chance of harm at the hands of the Iranian authorities.
Having found that he faces a real chance of harm I now turn my mind to consider whether the harm amounts to serious or significant harm.
Country information on the type of harm that the applicant faces includes:
a.‘Apostasy, the act of abandoning or renouncing one’s religion, is not codified as a crime under Iran’s Islamic penal code or any other Iranian law. However, law enforcement, prosecutors, and courts generally treat the act as a crime. In order to circumvent the lack of a codified prohibition of apostasy, prosecutors and judges invoke legal provisions in the Iranian constitution that allow courts to utilize Islamic jurisprudence…Iranian courts typically draw on jurisprudence that views the act of leaving Islam for any another religion, including variants of Islam not recognized by the state, as a capital crime; a person convicted of the act must be executed.’[18]
b.‘If you are born Muslim and convert to Christianity, you are considered an apostate. However, there are no recent cases in court where an individual has been charged with apostasy. Mansour Borji referred to a recent case of a female Christian convert who has been imprisoned for a long time. According to the source, based on some religious ruling by Shiia clergy, this woman could have only two options: she could either recant her faith or she would die in prison’[19]
c.‘Prison conditions reportedly were often harsh and life threatening. Prison authorities often refused medical treatment for injuries that prisoners reportedly suffered at the hands of abusers and for illness due to the poor sanitary conditions of prison life.’[20]
I find that the harm the Iranian state would impose upon the applicant as an apostate who rejected Islam, embraced Christianity and are actively proselytising amounts to serious harm. As such I find that the applicant does face a real chance of serious harm in the reasonable and foreseeable future for reasons of religion were he to return to Iran.
[18] International Campaign for Human Rights in Iran, The Cost of Faith: Persecution of Christian Protestants and Converts in Iran, New York, 2013 pp30-31 available at Mansour Borji, Advocacy Officer at Article 18 quoted in UK Home Office, Country Information and Guidance: Iran: Christians and Christian Converts, London, December 2015, at 6.1.5
[20] United States Department of State, Iran 2015 Human Rights Report, 2016 p6
As the perpetrator of the harm is the state and the Iranian government has control of all areas of the country I do not accept relocation as a viable option nor the option of state protection. Furthermore, I have considered whether the laws that justify the serious harm being brought against the applicant can be considered laws of general application. Chief Justice Brennan has noted that for applicants to claim protection based upon feared persecution by the state then the laws ‘must be discriminatory’ and ‘for the reasons of one [the prescribed] categories.’[21] In the circumstances of this case I find that the Iranian court’s tendency to defer to particularly strict interpretations of Islamic jurisprudence in cases of apostasy is discriminatory for reasons of religion.
[21] Applicant A v MIEA (1997) CLR 225 at 233

It targets on the basis of religion those who are no longer practising Muslims. It is the applicant's faith that would lead to him being persecuted by the state.
I now consider whether the law is appropriate and adapted to achieving some legitimate object of the country. In Chen Shi Hai v Minister for Immigration and Multicultural Affairs at [29] the majority of the High Court said:
Whether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity. Ordinarily, denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education involve such a significant departure from the standards of the civilised world as to constitute persecution. And that is so even if the different treatment involved is undertaken for the purpose of achieving some legitimate national objective.
In this case, the limitation on his ability to practise his religion stems from a state sanctioned application of Islamic law which threatens apostates with death albeit rarely implemented. The limitation upon people in changing their religion has a government object couched in religious terms but very political in nature, namely to maintain the Islamic Revolution. Whether this is appropriate and adapted to achieving a legitimate government object requires further consideration, in particular of what is legitimate. The courts have provided guidance by finding that a legitimate object protects or promotes the general welfare of the state and its citizens but when its enforcement places additional burdens on members of a particular race, religion, nationality or social group then the proportionality of the means employed to achieve those objects should be considered.
In considering the proportionality of the laws against conversion I find that they do not rise to a level of legitimate object such that it justifies offending the standards of civil society which is the case of any law that prevents the freedom to choose to practise the religion of one's choice.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Justin Meyer
Member

ATTACHMENT - RELEVANT LAW
In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:
‘(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) 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 non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or
(b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)a non citizen in Australia who is a member of the same family unit as a non citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
Refugee criterion
Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’. Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.
Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a person who:
‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.’
The definition contains four key elements. First, the applicant must be outside his or her country of nationality. Secondly, the applicant must fear ‘persecution’. Subsection 91R(1) of the Act states that, in order to come within the definition in Article 1A(2), the persecution which a person fears must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’. Subsection 91R(2) states that ‘serious harm’ includes a reference to any of the following:
(a)a threat to the person’s life or liberty;
(b)significant physical harassment of the person;
(c)significant physical ill-treatment of the person;
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
Complementary protection criterion
An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out above. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’. The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.
Ministerial direction
In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘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.

3 March 2016 available at [accessed on 9 September 2016]

[2019] AATA 4310

8 March 2019

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Immigration

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