1604615 (Refugee)

1604615 (Refugee) [2018] AATA 3170 (10 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1604615
COUNTRY OF REFERENCE:                  Iran
MEMBER:Susan Hoffman
DATE:10 July 2018
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act 1958; and
(ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act 1958, on the basis of membership of the same family unit as the first named applicant.

Statement made on 10 July 2018 at 10:10am

CATCHWORDS
Refugee – Protection visa – Iran – Religion – Christian converts – Apostate – Family objections – Islamic Revolutionary Guards Corps (Sepah) – Decision under review remitted

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

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 on 16 March 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act). [Name] is the main applicant. [Name], his wife, is seeking protection as a member of the main applicant’s family unit.
The applicants, who claim to be citizens of Iran, applied for the visas on 6 February 2015. The delegate refused to grant the visas on the basis that they do not meet the criteria for a protection visa.
The main applicant (henceforth “the applicant”) appeared before the Tribunal on 14 June 2018 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent who was present at the hearing. The applicant’s wife and two witnesses were present at the latter part of the hearing and gave sworn evidence.
The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi and English languages.
CRITERIA FOR A PROTECTION VISA
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, he or she 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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)–(6) and ss.5K–LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No. 56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The main issues in this case are whether the first named applicant has converted to Christianity and, if so, whether there is a real chance of persecution or a real risk he will suffer significant harm should he be removed to Iran. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background, protection claims and the delegate’s decision
Departmental records show that the applicant arrived in Australia on a [temporary visa] 28 July 2010. He was granted a further [temporary] visa on 8 April 2014 which was still valid at the time of the delegate’s interview on 31 July 2015. The applicant had lodged his application for a protection visa on 6 February 2015.
The applicant married in Iran in 2012, and his wife arrived in Australia on 5 July 2012, also on a [temporary] visa.
The applicant claimed that he was born [in] Mazandaran province, Iran on [date]. In his decision record, the delegate wrote that the applicant claimed he was born on [an earlier date], on [another earlier date] and made a finding that the applicant was born [on a later date].
In his application for a protection visa, his Form 80 and his passport, the applicant’s date of birth was given as [the first date]. In a submission to the Tribunal dated 20 April 2016, the applicant claimed that the delegate made errors with regard to his date of birth. The Tribunal was unable to locate any documents submitted by the applicant, or a recording of him, claiming his date of birth was other than [the first date]. The Tribunal is satisfied that the correct date of birth for the applicant is [that date] as that accords with documents he provided to the Department including his passport and his submission to the Tribunal.
The delegate in his decision record generally referred to the applicant as being an Iranian national but made a finding that he was a national of [Country 1]. As with the various dates of birth, the applicant submitted that the delegate had made a mistake in this regard. The Tribunal could not locate any other mention of, or reference to, [Country 1] in the material before it. The Tribunal concluded that the finding that the applicant was a national of [Country 1] was a typographical error by the delegate.
Prior to, and at the delegate’s interview, the applicant made the following claims:
·He converted to Christianity in Australia.
·He first experienced fear when his mother-in-law visited him and his wife in [Australia] for three months and became suspicious after seeing the bible and other Christian books in the house.
·His wife told him that her mother said that he had changed and her family told her they suspect he has converted to Christianity and that they would tell his parents and the government.
·No one else in Iran knew about his conversion.
·He did not tell Iranian friends in Australia of his conversion because he was afraid he would attract the adverse interest of the authorities.
·Asked what he was afraid might happen to him if his conversion was known, he said that they would force his wife to divorce him.
·He claimed that [an in-law] did not like him and [another in-law] worked for Sepah, which he knew because his wife told him.
·He approaches his Christianity as a private matter.
·He and his wife agreed that his religion was a private matter.
·If he was in Iran, there are house churches he could go to.
Departmental files include a letter dated [in] January 2015 from former [church leader] which states that two years earlier, the applicant acquired copies of the bible and other books about Christianity which led him to seek out a Christian church, and in October 2013 he began attending the [denomination] church at [Suburb 1] and was baptised and confirmed [in] November 2014.
The delegate accepted that the applicant had converted to Christianity but was not satisfied as to how profound and fundamental the applicant’s religion was to him. The delegate was not satisfied that anyone in Iran knew about the applicant’s conversion to Christianity. The delegate noted that as the applicant regarded his Christianity as a private matter, it was difficult to understand why he could not remain private about his beliefs in Iran. The delegate stated that he was not satisfied that the applicant would attract the adverse interest of Iranian authorities because of his religion should he return to Iran.
In a submission dated 21 April 2017, the applicant made the following claims:
·After his mother-in-law returned to Iran following her visit to [Australia], during the course of several phone calls, she made his wife tell the truth about his conversion. His wife succumbed to pressure from her mother and trusted her and told her he had converted. Her mother’s reaction was hard and she warned that the applicant’s father-in-law’s response would also be hard.
·His wife’s family asked him and his wife to return to Iran. They told him what he did was unacceptable and he needed to correct his mistake by converting back to Islam.
·He believes that they want his wife to divorce him; essentially choose between her husband and her family. When she refused to agree to that, her family threatened them through the phone and Skype, directly or through people they knew.
·His wife met with her mother and [sibling] in [Country 2] in 2016 for about two weeks. At that time her mother told her that the applicant had been reported to the government (Sepah) as an apostate, and there was family pressure from the wife’s father and [another relative] for them to be divorced.
·As the applicant has converted to Christianity, under Sharia law the marriage is no longer valid and his father-in-law has already started divorce proceedings.
·His wife’s parents told the applicant’s parents of his conversion which made his father very angry and for a while his father refused to talk to the applicant, and stopped the financial support he used to provide when the applicant was [in Australia].
·His mother told him that his father has cut him out of his will as he is so angry. The applicant did finally speak to his father who told him in order to be forgiven, he had to convert back to Islam.
In the representative’s submission dated 21 April 2017, points made by the delegate were addressed as follows:
·The delegate asked the applicant why he had not chosen the Bahai faith, or Buddhism or [another Christian denomination]. It was submitted that the applicant believed the interpreter was Bahai and did not want to offend her; and that he did not research other religions in order to choose one. He met some people he thought were lovely, caring and honest who were Christian and that was the attraction. He chose [one denomination] church to attend which was close to his home as that was practical.
·The delegate recorded that the applicant had contradicted himself when he said that in Iran he was non-religious and a non-practising Muslim but also said that he did not have a choice of religion in Iran. It was submitted that in Iran children do not have any choice but to be brought up as Muslim as it is an Islamic country, and it is only when they grow up and can think for themselves, they begin to question what they have been taught.
·The delegate recorded that the applicant attended church irregularly on Sundays to accommodate his spouse and because it interferes with their lifestyle and going out with friends. It was submitted that this was for a period of only one month when his wife had made social arrangements for them on Sundays and the applicant went to church on Wednesdays instead of Sundays during this period. It was submitted that his pastor [of] [named] church, encouraged the applicant to look after his wife and spend time with her at weekends as she has no other family here and they work and/or study during the week.
·The delegate referred to doubts about the applicant’s conversion, one reason being that he does not say grace before meals. It was submitted that many Christians do not say grace and that should not be considered as a reason to doubt the applicant’s sincerity as a Christian.
·The delegate referred to the applicant as having had a superficial and brief learning period before his conversion and that he seemed to be unaware of many of the theological concepts of the [denomination] Church. It was submitted that this was incorrect, and that a number of books to do with Christianity written in Farsi were purchased for the applicant by a Christian friend. Also he attended bible studies at the church and had several months of preparation before his baptism but had no aspiration to become a theologian.
·With regard to the delegate’s statement that he was not satisfied of the applicant’s adherence to his faith or how profound and fundamental it was in his life, it was submitted that after a brief meeting with the applicant, it was not reasonable for such a conclusion to be reached.
There were a number of support letters provided in April 2017, summarised as follows:
·An undated letter from [Witness A] who met the applicant in 2012. She stated that the applicant and his wife told her he converted to Christianity and that she knew their families in Iran are religious.
·An undated letter from [Witness B] who met the applicant in 2012. She stated that he asked her about Christianity and she gave him books about it written in Farsi; that they have had many conversations about religion; and that she believed him to be sincere in his conversion.
·An undated letter from [a] JP, who refers to the applicant’s conversion to Christianity.
·A letter dated 18 April 2017 from [neighbours names], and their daughter [named], who are the next door neighbours of the applicant and his wife. This letter is essentially a character reference.
·An undated letter from [Witness C] who wrote that he and the applicant have known each other for over six years, and two years’ previously, the applicant told him he had converted to Christianity. [Witness C] stated that he was aware that the applicant’s and his wife’s families threatened them and pressured the applicant to change his mind.
·A letter dated 19 April 2017 from [Witness D] who stated that she has known the applicant’s wife for about four years. This letter is essentially a character reference.
·A letter dated 28 April 2017 from [their local] Federal Member [which] refers to the former [named church leader] confirming that the applicant converted to Christianity and that he was baptised in the [denomination] Parish of [Suburb 1] that year.
Further submissions include a letter from [a named local state MP] dated [May] 2018 which is mainly a character reference.
Findings and reasons
In order to make its determination as to whether or not the applicant meets the criteria for a protection visa, the Tribunal considered the evidence before it, including the sworn evidence given by the applicant, his wife and the two witnesses. His wife and the witnesses were not in the hearing room when the applicant gave evidence, and the two witnesses were not in the hearing room when the wife gave her evidence.
The applicant and his wife gave their evidence in Farsi which was translated. They both had some grasp of the English language. As agreed by all present, the witnesses gave evidence in English on the understanding that if required, the interpreter would translate. The interpreter attended the hearing via conference telephone. The call dropped out about 20 minutes before the hearing ended. The applicant and his representative made it very clear that they preferred to continue the hearing without the interpreter’s assistance rather than spend time getting her back on the line or finding another interpreter because of the applicant’s ability with English and that the hearing was nearly finished. Of the final 20 minutes, 10 were taken up by a break to give the applicant and his representative an opportunity to confer before the hearing ended.
The Tribunal acknowledges the difficulties faced by applicants in giving evidence at a formal hearing via an interpreter and recalling events of some years ago. A letter dated [in] April 2017 from [a psychologist] of [a service] referred to the applicant’s wife being referred for counselling by her general practitioner [in] August 2015 and attending counselling between November 2015 and September 2016 for post-traumatic stress disorder. The applicant said that his wife last attended a psychiatrist or psychologist about four weeks before the hearing and was on medication. The second applicant did not know the name of the medication and said it had an effect on her memory in that she could not be sure if she recalled dates properly. Although she indicated a willingness to give evidence, the Tribunal considered it appropriate to limit the number of questions put to her to avoid undue distress.
The Tribunal is required to critically evaluate the evidence given at hearing as even when an applicant is broadly credible, it is possible that they embellish details to strengthen their claim. In this case the Tribunal observed a very high level of consistency between the evidence given by the applicants and the witnesses at the hearing, at the delegate’s interview, in the original application and in the various written submissions and support letters.
The Tribunal asked the applicant about his relationship with his father. He said that his father no longer recognises him as his son and regards him as an apostate. He claimed they are barely on speaking terms at the moment and his father has demanded that he convert back to Islam.
It was apparent to the Tribunal that it was distressing for the applicant to talk about his relationship with his father; his tone of voice and facial expression had changed. Asked if it was hard for him to answer questions about this, the applicant said the worst thing that had happened following his conversion to Christianity was when his father called him dirty, and recalling this made him emotional. At the end of the hearing the representative said that recalling this brought tears to the applicant’s eyes.

The applicant claimed that as a school student he went along with what was expected of him but when he moved from the small town where he was raised to go to university in Tehran, he started to move away from Islam. Asked if that was common in his peer group, he said that they discussed religion a lot and there were many differences of opinion but there was also fear. He said that as they had been raised with certain beliefs, there was a fear if they left Islam, then God would not like that and/or harm might befall them.
About his introduction to Christianity, the applicant said that he was working part time in a [business] when he got to know [Witness B] who came to the [business] as a customer in July 2012. He claimed that after they had a few conversations, she gave him a copy of the bible and other books to do with Christianity which were written in Farsi. He said that he was reading and researching Christianity for about 15 months. He saw a church near his home and asked [the] pastor at [that named church], if he could attend it to become more familiar with Christianity. That led to him being baptised in November 2014. He said that from when he started looking into Christianity to when he was baptised took about two years and four months.
The applicant claimed that he continues to attend church regularly on Sundays and if he cannot attend on a Sunday for any reason, he goes on a Wednesday. The Tribunal notes that at that particular church, Eucharist is held on only two days each week, Sunday and Wednesday. Asked if there was a particular part of the service he enjoyed the most, the applicant’s response was immediate. He said that it was the communion: drinking the wine, eating the bread and asking for forgiveness for our sins.
Asked to talk more about his feelings to do with Christianity, the applicant spoke of how it seemed to him to be more than just a religion but was a pathway to salvation. He said that when he started researching Christianity he realised he was living in darkness and the only way for him to get out of that darkness into the light was the pathway to baptism and to Jesus. He said that the more he gets clarity and becomes a better person, he can become closer to Jesus and God, and maintain a relationship with them. He claimed that having faith and belief in Jesus and God will positively impact his relationship with them. He said that it was his faith that kept him going during the last two or three years which have been difficult for him. He said that he was more hopeful, kind and generous, and helped others more because of his religion.
[Witness B], who gave evidence at the hearing, referred to her letter of support. She confirmed the applicant’s account of how they met and started talking, and how she introduced him to Christianity. She said that she did not usually go to the same church as the applicant as she went to an evangelical [church], but she did go to his church to watch his baptism. She said the applicant had questioned aspects of Islam since being young, and gave as an example that he questioned Mohammad marrying a nine-year-old. Clearly this aspect of her evidence was based on what the applicant told her rather than her firsthand knowledge.
The Tribunal was satisfied that the applicant was honest in describing how he came to the point of wanting to convert to Christianity, what it means to him now and how it has affected him.
The applicant claimed that his wife’s mother and [sibling] stayed with him and his wife in [Australia] from [September] 2014 to [November] 2014, and during that time they found books in the house which made them suspicious and they questioned his wife about them. He claimed that after they returned to Iran, they continued to question her. It was the pressure she was under that caused his wife to seek counselling. He claimed that his wife told her family he had converted and her family told his family. He said that the two families knew each other because of him and his wife.
The applicant claimed that they were reported to Sepah, and his wife’s family started to pressure her to leave him and return to Iran. He claimed that when his wife met with her mother and [sibling] in [Country 2], she was told that the applicant’s conversion had been reported to Sepah.
Sepah refers to ‘Sepah-e Pasdaran-e Enghelab-e Eslami’ which is known in English as the Islamic Revolutionary Guards Corps. DFAT’s June 2018 report on Iran states as follows:[1]
[1] DFAT Country Information Report Iran, 7 June 2018.
Islamic Revolutionary Guards Corps (IRGC)
5.2 The Islamic Revolutionary Guards Corps (IRGC) is Iran’s most powerful security and military organisation, responsible for the protection and survival of the Islamic Republic. Ayatollah Khomeini established the IRGC after the 1979 revolution to enforce his concept of an Islamic state ruled by a velayat-e-faqih (see Political System). The IRGC played a crucial role in both suppressing early opposition to Khomeini’s vision and repelling the 1980 Iraqi invasion. Since then, it has eclipsed the conventional military to function as the country’s pre-eminent internal and external security force. The IRGC operates substantial and independent land, sea and air forces (see also Military), though they nominally fall under the command of a joint Armed Forces Chief of the General Staff, and has a powerful intelligence arm that carries out domestic intelligence operations, including against political activists. The IRGC maintains its own detention facilities. The IRGC played a pivotal role in suppressing the ‘Green Movement’ demonstrations in 2009, but a less prominent role in suppressing the 2017-18 protests.
5.3 Over time, the IRGC has also transformed into a leading economic and political actor. The IRGC and its associated companies are deeply involved in many sectors of Iran’s economy, including energy, construction, telecommunications, banking, and finance. In addition to the IRGC’s strength in the security and economic spheres, it has significant influence over political decisions. The IRGC’s total strength is estimated at up to 150,000 men, divided into land, sea and air forces. The land forces are largest, estimated between 100,000 and 125,000; the navy at up to 20,000; the air force at up to 20,000; and the elite Quds Force at up to 5,000. According to international observers, the IRGC’s top leadership comprises conservatives and hard-line ‘principlists’ deeply opposed to political reform. However, the rank and file of the organisation reflects Iranian society and politics at large, and includes many reformist members.
The applicant said that he heard from his mother, and his wife heard from her family, that her family wanted her to divorce him. He claimed that his [sibling]-in-law was [an occupation] and his father-in-law was in Sepah and until a few months ago, he [worked in section 1, named].
The applicant said his wife’s father could be googled. After the hearing further submissions were made. The applicant’s wife’s birth certificate records that her father is [Mr A], consistent with information she provided on her Form 80 dated 5 March 2015. She provided a copy of a photograph of her with her father and a screenshot of a web page which includes a picture of a man who appears to be her father, noting that he looks older in the screenshot than in the photograph. The translation of that website refers to [details deleted]. The article refers to [details deleted].
A website which claims to source and compile company information relevant to the Arab world has written about [this section’s work].[2] The article describes [details deleted].
[2] [Deleted.]
[Deleted.]
The Tribunal is satisfied that the applicant’s father-in-law is or was a member of Sepah and held senior positions in organisations controlled by, or linked to, the Iranian government.
Asked what he thought would happen to him if he was to return to Iran, the applicant said that they would take his wife away from him and he could be jailed for five to 10 years. He claimed that his parents have told him he is no longer their son and he will not inherit from them, and his personal life will be very hard. He claimed that he would most likely be monitored by Sepah and the authorities.
The applicant’s wife was not present when the applicant gave evidence about his father-in-law. She said that her father worked for a government organisation at a high level but she had forgotten the name of it but he was in Sepah.
The applicant’s wife said that when she met with her mother and [sibling] in [Country 2], she was not well and was very down. She claimed her mother told her she had become aware that the applicant had converted to Christianity and had told her father who had reported it to Sepah. She claimed her mother and [sibling] suggested she return with them to Iran. She said that she does not talk to them much now, maybe once every month or two months and she keeps the conversation away from discussing the applicant.
The Tribunal took evidence from the witness [Witness A] who said that she has known the applicant and his wife since 2012, and they are like her family in Australia, in that they are very close. She said she sees them every week and has been aware of what has been happening to them in their lives. She said that she is Iranian and has a religious family. She said that she has a vivid memory of when the applicant and his wife told her of the feedback they had from their families. She claimed to be aware through UN reports and other sources of when people have converted from Islam to other religions such as Bahai. She said that her father is [an occupation] and she has heard stories from him and his friends about what happens to people who convert; if it becomes known, they are immediately jailed. She claimed people could be jailed, whipped and in extreme cases, hung. She said that they would be denied the ability to attend university or access social welfare programs.
The witness also claimed that given his nature, she was sure that the applicant would want to be actively engaged in practising his religion. She said that she herself is not religious, and works as [an occupation] in the [specified] industry.
In an oral submission, the representative said that he had seen a recent article that four people had been jailed for 20 years for conversion and would submit it which he did. This newspaper report, written in Farsi, was published by the Farsi Christian News Network. According to the submitted translation, it is dated 13 June 2018 and refers to the jailing of four Christian converts for 10 years.
Relevant sections from the DFAT report on Iran and religion follow:
POLITICAL SYSTEM
2.29      Iran is a theocratic republic, established under the principle of Velayat-e faqih (‘governance of the jurist’) whereby an Islamic jurist (the Supreme Leader) makes final policy decisions …
2.31 The Council of Guardians of the Constitution (‘Guardian Council’) reviews all bills passed by Parliament to determine whether they are in line with both the Iranian Constitution and sharia (Islamic law).
RELIGION
3.17    Approximately 98 per cent of Iranians are Muslim – 90 per cent Shi’a, and 8 per cent Sunni. The remainder consists of religious minority communities, including Yarsan (approximately one million followers), Baha’is (more than 300,000), various Christian denominations (around 300,000), Zoroastrians (30,000–35,000), Jews (20,000) and Sabean-Mandeans (5,000–10,000). Religious minority communities have shrunk considerably since 1979, with many members leaving Iran.
3.18 Iran is a theocracy that, with the possible exception of The Holy See, mixes religion and state more completely than any other country in the world. Article 4 of the Constitution requires that all of the country’s laws and regulations be based on (Shi’a) Islamic principles. In practice, government policy and legislation heavily favours the majority Shi’a population, leading to pervasive structural discrimination against non-Shi’a Muslims and religious minorities. The Ministry of Culture and Islamic Guidance, and the Ministry of Intelligence and Security (MOIS) monitor religious activity. The IRGC also monitors churches ...
Recognised Religious Groups
3.23 Article 13 of the Constitution states that the Zoroastrian, Jewish, and Christian religions are the only recognised non-Muslim faiths in Iran. It gives adherents of these religions the freedom (within the limits of the law) to perform their own religious rites and ceremonies, and to comply with their own canon in their personal affairs and religious education. Adherents of the three recognised religions are permitted to hold religious services, run places of worship and religious schools, and celebrate religious holidays. Five parliamentary seats are reserved for these groups: two for Armenian Christians, and one apiece for Assyrian Christians, Jews, and Zoroastrians …
3.24    Despite the protections afforded to them through their constitutional recognition, members of the recognised religious groups face significant official and societal restrictions. By law, non-Muslims may not serve in the judiciary, the security services, or as public school principals. Non-Muslims seeking public sector employment or intending to run for public office are at a disadvantage compared to Muslims due to the requirement that all such candidates or applicants undergo the gozinesh review. Government workers who do not observe Islamic principles and rules are subject to penalties, and may be dismissed or barred from work in particular sectors …
3.26    … Because the law prohibits citizens from converting from Islam to another religion, the government only recognises these groups because their presence in Iran predates Islam. Any citizen who is not a registered member of one of these groups, or who cannot prove that their family was Christian (or of another recognised religion) prior to 1979, is considered Muslim.
Unrecognised Christian Groups (House Churches)
3.30    The Penal Code strictly prohibits proselytisation by religious minority groups – it is a capital crime for non-Muslims to convert Muslims. None of the three recognised minority religions proselytises or accepts converts as members. Strict instructions not to minister to Iranians apply to the small number of Latin Catholic and Protestant churches in Tehran and elsewhere that cater to expatriates. The prohibition is enforced through bans on the use of Farsi in services; bans on Iranians attending non-Muslim religious facilities, including for non-religious events such as musical performances; and the regular contacting of churches by telephone by false potential converts in order to test the reactions of church officials to receiving such enquiries. Security officials reportedly monitor registered congregation centres to verify that services are not conducted in Farsi, and perform identity checks on worshippers to confirm that non-Christians or converts do not participate in services. Authorities have closed several churches in recent years for failing to comply with these restrictions, including churches that had existed prior to 1979.
3.31    As a result of these prohibitions, Iranian Christians who are not members of the recognised ethnic minority churches generally practise in underground ‘house churches’. The secrecy surrounding the house churches makes it impossible to provide an exact number of unrecognised Christians in Iran. Some international Christian advocacy groups estimate that between 800,000 and one million people worship in underground churches. While these numbers likely overstate considerably the true number, Iran nevertheless has a significant and growing unrecognised Christian population. DFAT understands a high percentage of unrecognised Christians in Iran are Farsi-speaking converts from Islam, or the children of converts. Local sources claim many converts are unhappy with being designated Muslim at birth, and wish to explore their religious identity. Others see adopting Christianity (albeit surreptitiously) as a means of rebelling against the government.
3.32    … Some isolated Christians who do not have regular contact with other Christians may receive all of their religious instruction via Christian television programs (which they can view via satellite) or through the internet, from the many foreign-based Farsi-speaking preachers who provide religious instruction online …
3.34    International observers advise that Iranians who convert to Christianity outside the country are unlikely to face adverse attention from authorities upon return to Iran, provided they have not previously come to the attention of authorities for political activities conducted in Iran, maintain a low profile and do not engage in proselytisation or political activities within the country …
Religiously-based charges
3.41 Under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. Separately, a person of any religion may be charged with the crime of ‘swearing at the Prophet’ (blasphemy) if he or she makes utterances that are deemed derogatory towards the Prophet Mohammed, other Shi’a holy figures, or other divine prophets. The Penal Code does not specifically criminalise apostasy, but provisions in the Penal Code and Constitution state that sharia applies to situations in which the law is silent, and judges are compelled to deliver sharia-based judgements in such cases. Although the Koran does not explicitly say that apostasy should be penalised, most Islamic judges in Iran agree that apostasy should be a capital crime. This ruling is based both on oral traditions attributed to the Prophet Mohammed and to Shi’a Imams, whom Shi’a consider the Prophet’s rightful successors. Chapter Five of the Penal Code specifically criminalises swearing at the Prophet as a capital offence, although a clause states that the sentence can be reduced to 74 lashings of the whip if the accused states the insults were the result of a mistake or were made in anger.
3.42    Politically motivated apostasy charges were frequent in the years following the Iranian revolution, often leading to death sentences. In the vast majority of cases, however, defendants charged with apostasy also faced a litany of other charges related to national security. Many of these cases were quickly tried, ending in execution, so apostasy was not fully discussed in the prosecution of these defendants.
3.43    While apostasy and blasphemy cases are no longer an everyday occurrence in Iran, authorities continue to use religiously-based charges (such as ‘insulting Islam’) against a diverse group of individuals. In recent years, the group has included Shi’a members of the reform movement, Muslim-born converts to Christianity, Baha’i, Muslims who challenge the prevailing interpretation of Islam (particularly Sufis), and others who espouse unconventional religious beliefs (including members of recognised religious groups). Some religiously-based cases have clear political overtones, while other cases do seem to be primarily of a religious nature, particularly when connected to proselytisation.
3.44    Death sentences in apostasy and blasphemy cases are now rare. However, in March 2017 the Supreme Court upheld the decision of a criminal court in Arak to sentence a 21 year old man to death for apostasy. Authorities had arrested the man after he made social media posts considered critical of Islam and the Koran while on military service in October 2015. Human rights groups claim authorities tricked the man into confessing to the charges with the promise of release if he did so. The death sentence had not been carried out as of March 2018. The court also convicted two co-defendants of posting anti-Islamic material on social media, sentencing them to prison.
3.45    DFAT assesses that those accused of religiously-based charges are also likely to face charges related to national security. They are unlikely to have adequate legal defence, and are likely to be convicted.

Of particular relevance from the above, the Tribunal notes that Iranian law prohibits citizens from converting from Islam to another religion (3.26), that authorities “continue to use religiously-based charges (such as ‘insulting Islam’) against a diverse group of individuals” which includes Muslim-born converts to Christianity (3.43) and that those who convert to Christianity outside of Iran are unlikely to face adverse attention from authorities if they return “provided they have not previously come to the attention of authorities for political activities conducted in Iran, maintain a low profile and do not engage in proselytisation or political activities within the country” (3.34).
In this case, the Tribunal is satisfied that the authorities, specifically Sepah, are aware that the applicant has converted to Christianity because of his father-in-law’s links to Sepah.
It was submitted that family honour was a consideration in this case because the applicant’s father-in-law was a high-profile person due to his work and the circles he mixes in, and therefore what the applicant did by converting could not be overlooked or easily forgiven.
The DFAT report refers to honour in relation to women, in particular honour killings. There was no claim made that the applicant’s wife was at risk of such a fate. Looking elsewhere for commentary on the role and significance of honour in Iran in general, and family honour in particular, the following view was expressed:
… the traditional idea that people should protect their personal and family honour by giving a public impression of dignity and integrity. As people don’t want to risk doing something shameful, they generally adhere to social expectations. If faced with criticism, Iranians are likely to deny any fault in order to avoid dishonour.
It is worth noting that the expectations regarding what is ‘honourable’ and ‘shameful’ can vary significantly between different people, family backgrounds and social attitudes. For example, the younger Iranian generation generally do not feel the need to stringently apply the honour code and will often hide certain ‘shameful’ actions they consider reasonable from the older generations, who might be deeply offended by such behaviours.[3]
In Iran, people generally feel able to relax their moral codes of behaviour and reveal the private side of their life when surrounded by people from their inner circle. These are primarily their family members and close friends. One usually turns immediately to family for assistance and may tell their problems and issues only to their family members. Individuals then keep any information surrounding troubles within the family circle away from public knowledge. This ensures that the household’s name is not implicated with trouble and their honour is protected. Families are also usually the basis for people’s social and business network. These relationships can provide support, guidance, employment opportunities or help navigating bureaucracies.
Being a collectivist society, people in Iran show very strong loyalty to their family. The interests of the family can supersede the needs of a single individual. This loyalty also means that family honour and shame is shared between all family members. All people may gain the prestige of a family’s success or bear the responsibility for a family’s dishonour. This being said, most families seek to encourage individuals to be independent. Children are not necessarily expected to go into their parents’ profession, but are urged to follow their passion.
Couples tend to only have one to two children. While the nuclear family is modestly sized, close relationships with the extended family mean people’s family networks are sometimes quite large. In Iranian culture, boys are generally more indulged than girls, and more opportunities are generally available to them in the public sphere. They are also sometimes taught early that the protection of family honour also resides with them. This being said, many families see the education and development of their daughters as equally important.[4]
[3] SBS (2018) Cultural Atlas: Iranian Culture: Core Concepts accessed 28 June 2018 at
[4] SBS (2018) Cultural Atlas: Iranian Culture: Family, accessed 28 June 2018 at <
An academic article considers how the importance of preserving and maintaining honour influences Iranians’ negotiation strategies, pointing to the importance and significance of honour to Iranian culture.[5]
[5] Semnani-Azad, Z (2012) Being Tough Doesn’t Always Pay Off: The Culture of Honour vs. Dignity in Negotiation, paper presented at the 25th Annual International Association of Conflict Management Conference, Cape Town, South Africa accessed 28 June 2018 at >
A UK parliamentary report looking at honour-based violence noted ways in which honour can be damaged and stated:
In many cases honour is damaged less by a person’s action than by knowledge of that action becoming public knowledge. Rumours and gossip—even if untrue—can damage the status of a family or an individual. In many cases, families are less concerned with immoral acts, than with how these will affect how they are seen by their relatives and by other members of their community.[6]
[6] House of Commons Home Affairs Committee (2008) Domestic Violence, Forced Marriage and “Honour”-Based Violence accessed 28 June 2018 at >
While these references to family honour are general, they tend to corroborate the claim that the applicant’s conversion to Christianity could be seen to besmirch the family honour, particularly that of his wife’s family. The Tribunal considers that given the senior positions held by his father-in-law connected to Sepah and the government, this does give rise to a real chance of serious harm for the applicant with the possibility that charges could be laid against him (see 3.41 and 3.43 above).
The Tribunal is also satisfied that the applicant would not be free to practise his chosen religion in Iran because of Iranian law as well as family and societal pressure, because he was Muslim by birth, and he would only be able to follow his faith by being secretive about it. As the applicant’s conversion to Christianity is known to his and his wife’s family, there is nothing he can do to conceal it from them should he return to Iran although he could conceal it from other people. The Tribunal accepts that the applicant’s conversion is genuine and if free to do so, he would want to continue practising Christianity. The applicant said that if he returned to Iran, he would not be able to do that freely. He gave evidence to the effect that he would need to conceal his true beliefs in an attempt to minimise the harm to himself, and that pressure was being put on him to renounce his conversion to Christianity. The Tribunal accepts this to be the case. In accordance with s.5J(3)(c)(i), concealing his religious belief and/or renouncing his conversion are not reasonable steps for the applicant to take.
With regard to the second applicant, the Tribunal is satisfied, as was the delegate, that she is the applicant’s wife. He provided evidence of their marriage to the Department, a number of photographs of them together in Australia, and his wife’s family are relevant to his protection application. She attended the hearing and gave evidence, and the other witnesses referred to her as the applicant’s wife.
CONCLUDING PARAGRAPHS
The Tribunal concludes that the applicant has a well-founded fear of persecution for reasons of religion, and that there is a real chance of persecution in all areas of Iran because his father-in-law has strong ties to Sepah which, according to the DFAT report, is Iran’s most powerful security and military organisation.
The Tribunal is satisfied that the persecution faced by the applicant should he return to Iran would be at the hands of the state via his father-in-law’s connection to Sepah, and therefore protection by the state or any other body would not be available to him.
The Tribunal is also satisfied that the applicant fears persecution by reason of his true religious beliefs and that reason is the essential and significant reason for the persecution. It also finds that the persecution feared is systematic, in the sense of not being random, and discriminatory in that it is directed at the applicant because of his religious beliefs. The Tribunal is satisfied that the persecution feared by the applicant involves serious harm as it would be a threat to his life, liberty or significant physical harassment or ill treatment.
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(a).
The Tribunal is satisfied that the other applicant, being the applicant’s wife, is a member of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of her application depends on the outcome of the first named applicant’s application. It follows that the other applicant will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act 1958; and
(ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act 1958, on the basis of membership of the same family unit as the first named applicant.
Susan Hoffman
Member

ATTACHMENT – Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)    conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)    the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(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.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)    disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)    the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)    the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)    the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)    the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas—criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2018] AATA 3170

10 July 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction