1608264 (Refugee)

1608264 (Refugee) [2020] AATA 2575 (6 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1608264
COUNTRY OF REFERENCE:                   Iran
MEMBER:Nathan Goetz
DATE:6 May 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

CATCHWORDS
REFUGEE – protection visa – Iran – religion – Christian convert – imputed political opinion – pro-Western political views – fear of arrest – apostasy – fear of killing – employment – inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K, 5L, 5LA, 36, 65
Migration Regulations 1994 (Cth), 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 and Border Protection to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a citizen of Iran. He travelled to Australia [in] March 2015 as the holder of a [temporary] visa. On 28 July 2015 he applied for a protection visa.
On May 2016 the delegate refused to grant the applicant the visa. On 7 June 2016 he applied to the Tribunal for a review of the refusal decision.
On 19 February 2020 the applicant appeared at a Tribunal hearing to give evidence and present arguments. He was represented at the hearing by registered migration agent [named].
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 themselves 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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a refugee or a person who meets the complementary protection criteria. The Tribunal also needs to consider whether the applicant is a member of the same family unit as a person who is a refugee or meets the complementary protection criteria.
As part of his protection visa application, the applicant provided to the delegate the following:
·     7 page online article from mohabatnews.com dated July 13, 2015 with the title ‘Pastor Fathi’s Early Release; an Empty Promise before Nuclear Deal with the World Powers?’ (Folio 11)
·     6 page online article from mohabatnews.com dated 26 November 2014 with the title ‘Female Christian Prisoner Strip Searched Upon her Return to Prison’. (Folio 17)
·     7 page online article from mohabatnews.com dated 22 May 2015 with the title ‘Eighteen Iranian Christian Converts Sentenced to a Total of 23 years in prison’ (Folio 24)
·     A certificate of baptism dated [in] June 2015 for the applicant by [Pastor A] of [Church 1] [at location] (Folio 28)
·     11 page statutory declaration by the applicant dated 26 July 2015 (Folio 86)
·     4 page statutory declaration by the applicant dated 23 July 2015
·     3 page Bible Characters Certificate (Folio 94)
·     Answers indicating completion of [a named Bible college training program] (Folio 97)
·     Letter from [Mr A] dated 3 May 2016 (Folio 98)
·     Letter from [Pastor A] dated 2 May 2016 (Folio 99)
·     20 pages of material highlighting concerns about Islam (Folio 101)
The claims can be found in the applicant’s written statement of 26 July 2015. The applicant claims to have been born in Shiraz, Iran into a family of moderate Muslims. As Iran was a strict Muslim country, he only learned about the Shia Islam religion and was forced to abide by Sharia law. As he grew up, he started to question Islamic beliefs and values because things did not make sense to him, such as Muslims having to go to heaven. He noted that there were several verses of the Quaran that he found hard to accept and detailed those. While he was at school, he was told that whoever did not accept Islam after hearing about it would die and go to hell, even if they had lived a virtuous life, while some Muslim tyrant dictators who had killed thousands would go to paradise. The applicant noted that he had been friends with Jewish people and was taught that they were cursed and they could not attend Islamic religious classes. He heard that women were ‘incomplete’ in their intellect and religion and they would go to hell, which concerned him because he had a mother and a sister. He noted that Islam appeared to be against science. All of these things made him wonder if he was following the right path and he became to question Islam. He tried talking to religious clerics but they would either get upset or come up with strange analogies and nothing more than opinions. He wrote that he could not find peace of mind and he started to move away from Islam because it was against common sense. He noted that he was feeling empty and his soul was in chaos. He wrote of talking with friends at university, some of which were scared to talk with him about his concerns and others who followed Islam without hesitation and did not want to hear the applicant’s views. On one occasion, the applicant was reported to the school principal and the applicant was told that he had no choice but to follow Islam.
The applicant wrote that he stumbled upon a Christian satellite TV channel (Mohabat TV) which transmits Christian religious programmes in the Farsi language. One on occasion, he was watching a programme and heard a particular verse that spoke to him. He noted that the more he learned about Christian faith, the more his heart was filling with joy. He was warned, however, to not mention anything because he might put him and his family in close danger.
When he arrived in Australia, he started working and had an opportunity to speak freely with people he worked with. He began asking them several questions as he wanted to find out more about Christianity. He noted that he had doubts about Christianity before he left Iran, and needed to clear those doubts once he arrived in Australia. He learned that his cousins had converted to Christianity and was able to speak about Christianity freely with them. He was taken to a Persian speaking Church in [Town 1] and was told that this church would get him on the right path. He then started to attended [Church 1] regularly and got to know the pastor, [Pastor A] whom he described as a wonderful man. The applicant noted the impact that [Pastor A] had on him. The applicant then decided to convert to Christianity for good.
He wrote that he was ‘saved’ on [a date in] April 2015 and was baptised [in] June 2015. He enthusiastically attends church every Sunday where he has made friends. He also regularly attends Bible study class which is generally run Sundays after church services and on Tuesday and Thursday evenings.
The applicant wrote that he believes that there would be no chance to go back to Iran considering the religious discrimination that exists there. It would put his life at risk. If he was to return to Iran, he would face severe restrictions on his religious practice and association, and may be liable to arbitrary arrests and detention for practising his faith. His right to life would be violated through state execution for apostasy and extra-judicial killing. He would face government actions of the death penalty or a death sentence for changing his religion.
The applicant’s statement went on to detail the pressure on Christians in Iran, noting that the Iran government punishes members of religious minorities and Christian converts under charges such as ‘attempts against the security of the state’ instead of penalising Christians under the charge of apostasy, the last death penalty of which was carried out in 1990. The submission noted that Christian churches are monitored and members are tracked by the Government in order to ‘catch’ Christian converts.
In the material submitted to the Tribunal, the applicant provided the following:
·     A receipt for membership of the ‘[a community organisation]’ for 2018/2019.
·     A practice attendance sheet dated 6 November 2017 for the applicant’s participation in a choir
·     8 photographs showing the applicant with [Pastor A], leafleting in [Town 1] and attendance at a choir.
·     A letter dated 22 June 2017 from [Mr B], who has attended [Church 1] for 30 years and knows the applicant as a person who has converted to Christianity and regularly attending the Church.
·     A letter dated 13 June 2017 from [Mr C], who has been attending [Church 1] for more than six years and knows the applicant as a person who has converted to Christianity and regularly attending the Church.
·     Letters dated 28 February 2016 and 2 May 2018 from [Pastor A] confirming the applicant’s numerous activities with [Church 1].
·     A statutory declaration dated 20 September 2016 from [Mr D], indicating how the applicant came to be involved in Christianity in Australia.
·     Statutory declarations dated 3 July 2017 and 14 May 2018 from [Mr E] who is a pastoral worker at [Church 1] indicating the applicant’s involvement with that Church.
·     A statutory declaration dated 20 June 2018 from [Mr F] who has been a member of [Church 1] since 2012 and confirms the applicant’s involvement with the Church.
·     A statutory declaration dated 14 June 2018 from [Ms G] who is a member of [Church 1] and confirms that the applicant has been attending the Church since 2015, with the applicant being a member of the [Church 1] Choir since 2017.
·     A statutory declaration dated 11 February 2020 from the applicant which reiterated how he came to be dissatisfied with Islam, noting his Christian activities in Australia, and detailing why he has continued in his Christian faith.
·     A 31 page document titled ‘Persecution of Converts to Christianity in Iran’ which accompanied a 16 page submission from the migration agent. The submission noted that the applicant fears that there is a real chance that he will suffer persecution throughout Iran because of his conversion to Christianity, his resulting membership of a particular social group, and his imputed pro-Western political views. It noted that he will perceive to hold these views because of his apostasy and because of the time he has spent in a Western nation. The applicant fears that he will be killed, detained, physically abused, or seriously discriminated against, threatening his ability to subsist, with Iran not protecting him against these forms of harm. It was claimed that in addition to this, there is a real risk that he will suffer significant harm if he were removed to Iran and that he will not be able to relocate or seek state protection within Iran.
Subsequent to the Tribunal hearing, the Tribunal received a submission dated 24 February 2020 which attached 16 certificates of Christian studies undertaken in support of the applicant’s claims to be a genuine convert to Christianity.
FINDINGS AND REASONS
The 7 June 2018 Department of Foreign Affairs and Trade (DFAT) Report on Iran (at 3.41) advises that under Iranian law, a Muslim who leaves his or her faith 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 Mohammad, 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 where the law is silent, and judges are compelled to deliver sharia-based judgments in such cases. Although the Koran does not explicitly state that apostasy should be penalised, most Islamic judges in Iran agree that apostasy should be a capital crime. The ruling is based on oral traditions attributed to the Prophet Mohammed and to Shi’a Imams, who are consider the Prophet’s rightful successors. Chapter Five of the Penal Code specifically criminalises wearing 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.
Further, the report (at 3.43) notes that while apostasy and blasphemy cases are no longer an everyday occurrence in Iran, authorities continue to use religious-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 other who espouse unconventional religious beliefs (including members of recognised religious groups). The report goes on to state (at 3.44) that death sentences in apostasy and blasphemy cases are now rare, but notes that 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 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 the authorities tricked the man into confessing to the charges with the promise of release if he did so. The death sentence has 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. DFAT’s assessment (at 3.45) is that those accused or religiously-based charges are also likely to face charges related to national security, and that they are unlikely to have adequate legal defence, and are likely to be convicted.
The report details (at 3.23) that despite Iran being an Islamic country, Article 13 of the Constitution states that Zoroastrian, Jewish, and Christian religions are the only recognised non-Muslim faiths in Iran. Adherents to the three recognised religions are permitted to hold religious services, run places of worship and religious schools and celebrate religious holidays. DFAT’s assessment (at 3.29) is that members of recognised religions face a low risk of official discrimination, but despite the benefits of official recognition, the structure of the Islamic Republic inevitably favours the Shi’a Muslim majority to the exclusion of others. The risk of societal discrimination, including violence, is low, but may be heightened at times when external factors come into play. The report confirms that the Penal Code strictly prohibits proselytization by religious minority groups, and that none of the three recognised minority groups proselytises or accepts converts as members. Strict instructions are in place to prohibit the small number of Latin Catholic and Protestant churches in Tehran not to minister to Iranians. Relevant to this case, is DFAT’s report (at 3.34) that international observers advice that Iranians who convert to Christianity outside the country are unlikely to face adverse attention from authorities upon a 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 proselytization or political activities within Iran.
Against this background information, the Tribunal has had to make an assessment about whether the applicant is a genuine Christian convert and what he is likely to do if he returns to Iran that may result in a real chance of serious harm to the applicant of account of his conversion to Christianity, or a real risk of significant harm.
The Tribunal was troubled by the following material that came out in the course of the review application.
At the Tribunal hearing, the applicant told the Tribunal that in his workplace in Iran there were colleagues with whom he would speak about Islam and other religions. He spoke to work colleagues because most people around him, such as friends and family were Muslims. He did not ask whether his work colleagues were Christian or not, but had a general discussion about religion. It was the only opportunity for the applicant to discuss religions. The applicant told the Tribunal that he would ask about Christianity, and his colleagues were talking about things such as Buddhism and Zoroastrianism. The applicant told the Tribunal hearing that a colleague did, however that colleague warned him not to ask questions about Christianity because it could result in problems for the applicant. As a result of this warning from his work colleague, the applicant stopped asking questions about Christianity. The applicant was asked questions about his workplace and he told the Tribunal that he was working in a company which was involved with [specified processes]. He identified the company as an [Service 1] company and that he worked there until he left Iran for Australia. He worked there for about a year or just over a year and was contacted to do onsite work on a part-time basis.

This oral evidence greatly troubled the Tribunal. The applicant had written in his statement that when he ‘started to work in his field he had an opportunity to speak with people I worked with. I began asking them several questions as I wanted to find out more about Christianity’. Having looked at the applicant’s written protection visa form, the Tribunal understood that the applicant would be asking questions in his ordinary course of work, being [Service 2], as he had declared that from march 2008 until March 2015 he worked at [a specific venue’s Service 2], located on the 1^st floor of [the specific venue] in [a location in] Shiraz, as a [Service 2] Manager. It was therefore very surprising to the Tribunal that the applicant told the Tribunal that the discussion between him and work colleagues occurred while he was working for [a Service 1] company.
The Tribunal put its concern that the applicant had not declared that he was working for [a Service 1] company in his protection form, and only disclosed that he was working at a [Service 2]. Given that the applicant wrote that he had discussed matters with work colleagues, and only declared his work at a [Service 2], it was curious as to why the applicant would not declare his work for the [Service 1] company, especially when his discussion with colleagues was so relevant to his claims. The applicant said that his work for the [Service 1] company was part time, and was not a permanent job to record on the protection visa application. His migration agent’s submission was to recognise this inconsistent evidence, but to explain that the applicant applied to come to Australia on a work visa which was why that employment was put down in the protection visa application form. The migration agent stated that the applicant failed to appreciate the requirement that all employment be declared in the protection visa application form, and noted that people have varying ability when it comes to completing forms.
The Tribunal has considered the responses to the inconsistent evidence but is not persuaded by them. To the Tribunal’s way of thinking, it is incredulous that the applicant, who wrote about discussions with work colleagues in his statement, and told the Tribunal hearing that he was told not to ask any more questions about Christianity by a work colleague, would not disclose in his protection visa form his employment at the company where these discussions, which he clearly thought were important, took place. The Tribunal has considerable unease about whether the applicant fabricated his past employment as a [Service 2] manager to obtain a work visa to Australia, or whether that evidence was true and the applicant fabricated his employment in [Service 1] and the discussions he had with fellow employees about religion. The Tribunal really struggles to understand how it can have faith in the applicant’s credibility in light of this inconsistent information.
Next, the Tribunal was concerned about the applicant’s oral evidence about the Christian satellite TV channel Mohabat TV. Remembering that he detailed in his statement that a particular verse spoke to him, and detailed that the ‘particular Bible verse caused a spark in my heart which became a fire’, and that he has not forgotten this verse to this day, and that as a result of this particular verse, the applicant began to explore Christianity, although it was ‘hard to find the resources to help me in my search and deeper study of the Christian faith’, the Tribunal found the applicant’s oral evidence about the TV station confusing. The applicant told the Tribunal that he was watching the religious programme for about one month but the network was interrupted. He noted that during broadcasts of the programme, there were signal interruptions so he could not watch the programmes completely. He told the Tribunal that the network was interrupted in the first 6 months of 2013. Despite the applicant updating his receiver with an application, the network remained unavailable.
The applicant was asked by how watching the TV programmes made him feel. He told the Tribunal hearing that by the presenter reading Bible verses, he came to better understand the Bible, the content was very attractive and he could understand what was being said. He had ‘not heard such a thing before’. The Tribunal asked the applicant how he felt when he could no longer access the TV programmes. The applicant said that it was like ‘entering a new work and suddenly my access was interrupted’. He told the Tribunal that he ‘felt no hope’ because he was unable to increase his knowledge. The Tribunal notes that there was nothing contained in the applicant’s written statements about the claim that the TV programmes were interrupted in 2013 and in the Tribunal’s view, given that the applicant had detailed at some length how stumbling across the satellite TV station, and hearing a particular verse had such an impact on him, it would be reasonable that the applicant would have detailed in a similar way the impact of the fact that in 2013 he was no longer able to access this TV station. It would be, in the Tribunal’s view, something that was clearly relevant to the applicant being unable to continue in the development of his knowledge, and would also indicate the fact that there are problems with Christians being able to access such programmes in Iran.
The Tribunal put to the applicant its concerns that that the termination of the TV programme was not detailed in the applicant’s statement and that the Tribunal would have expected that such an event would have been mentioned in his statement, seeing it was an important event to the applicant, as detailed in his oral evidence. The applicant responded that he was responding to questions that the Tribunal had asked, and that the information that he recorded in his statement was in a general form. The migration agent submitted that the lack of detailing this in the written statement was minor. The Tribunal has considered these responses but is not persuaded by them. The Tribunal’s written statements are significantly detailed, and clearly the termination of access this programme had some meaning to the applicant, if his oral evidence was to be believed. The Tribunal really struggles to accept that this would not have been included in the applicant’s written material.
The Tribunal also put to the applicant a concern it had about the oral evidence he gave concerning his sole attendances at a church [in a Town 2 location]. The Tribunal had asked the applicant to tell him about his conversion to Christianity in Australia in as much detail as possible. The applicant told the Tribunal that there was a church that was very close to the place where he was living in [Town 2] and that he went there. He found the service very interesting, but at the same time noted it was different for him. It was an English speaking church and he went there alone. He found the church because he saw it when he was getting off the bus. He attended this church less than a month after his arrival. He told the Tribunal hearing that when he entered the Church, he did not introduce himself. He saw that people were praying and singing. One of the members came and spoke to him, but because of the applicant’s limited English, all he could do was introduce himself and say where he was from. When the people noticed that the applicant wanted to know about Christianity, they were ‘very keen to respond’. The applicant told the Tribunal that he attended this Church service twice. Later, the applicant found out that his cousins, who were already in Australia, were Christians. The applicant saw a Bible in his cousin’s home and was advised by his cousin of [Church 1], which had Persian speaking services. This happened in the first month of the applicant being in Australia.
The Tribunal noted to the applicant that he never mentioned in his written statements his initial attendances at a Christian church [in Town 2]. The Tribunal was concerned by this, because the applicant’s written statement detailed how he came to be involved in Christianity in Australia, and the applicant’s initial attendances at this Church would seem to be relevant to explain how he commenced his religious conversion in Australia. The Tribunal put to the applicant that it had concerns about his truthfulness, given that these attendances had not been disclosed in his written material. The applicant told the Tribunal heard that he only went to this church twice and did not think it was important to include that in his statement, but because he was asked during the hearing how he came to be exposed to Christianity and came to know about it, he told the Tribunal hearing about those attendances. The migration agent submitted that the omission of those particular attendances were minor.
The Tribunal has considered the responses but is not persuaded by them. To the Tribunal’s way of thinking, as the applicant’s written statement is particularly detailed discussing how he started practising Christianity in Australia, it would be reasonable to expect that the applicant, who claimed that this was his experience of church services in Australia, and that he found those services interesting, would would have included such important detail in his written statement.
The Tribunal was also concerned that the applicant raised for the first time his claim that he placed on his [social media] account a Persian translation of parts of the Bible which he has learned about. The applicant told the Tribunal that he posted those from 2016 until now. He told the Tribunal that this was relevant to his claims because it showed his activities. The applicant confirmed that he had never raised this previously, but accepts that in the most recent submission from the migration agent, this activity is noted on Page 5, where it details that the first post was on [a date in] July 2016, which was after the delegate had refused to grant the protection visa in May 2016. The applicant did not provide the Tribunal with any copies of his posts, but during the Tribunal hearing the Tribunal was able to access that [social media] page as provided by the applicant, and was able to see that it was a public page. The fact that the applicant started making posts subsequent to the refusal decision by the delegate also concerned the Tribunal because it may have suggested that the applicant, having been unsuccessful in being granted a protection visa by the delegate, had then sought to strengthen his protection claim by engaging in posting material on his [social media] page.
The Tribunal put to the applicant its concerns that he was not telling the truth about being a genuine Christian convert, and had only done so to be successful in claiming protection. The applicant denied this, and told the Tribunal that he had explained himself in detail at the Tribunal hearing.
The applicant had requested that the Tribunal receive oral evidence from [Mr F], [Ms G], and [Mr H]. Given that [Mr F] and [Ms G] had provided written statements, it was unnecessary for the Tribunal to take their oral evidence. The Tribunal accepts that both of those people would have given evidence consistent with their written statements. [Mr H] had not given a written statement, but the applicant told the Tribunal that the evidence [Mr H] would give would be that he used to see the applicant on Sunday at Church, bible study classes, and that they did [evangelising] together. The evangelising consisted of handing out leaflets. The Tribunal did take oral evidence from [Mr H] and accepts that he would have given evidence consistent with the outline of his proposed oral evidence.
The Tribunal is satisfied that the applicant has attended [Church 1] as he has claimed. The Tribunal is satisfied that he has engaged in various activities connected with this church, such as baptism, singing in choirs, evangelising through leafleting, bible studies, and has made posts on [social media] connected with Christianity. The Tribunal accepts that the applicant has a number of supporters who believe he is a genuine Christian convert. While this activity may be consistent with someone who is a genuine Christian convert, this activity may also be consistent with someone who has engaged in activity in Australia for the sole purpose of making and strengthening a claim for protection. Ultimately, the Tribunal has concluded that the applicant is the later.
The Tribunal really struggles to accept that the applicant is a witness of truth in respect of the circumstances of his journey towards Christianity in Iran. The Tribunal does not accept that the applicant spoke to fellow employees at [a Service 1] company about his interest in Christianity, given that he did not declare this work. The Tribunal does not accept that the applicant discussed his interest in Christianity at the [Service 2] he managed, given he did not claim this in his oral evidence. The Tribunal does not accept that the applicant’s interest in Christianity stemmed from watching a Christian satellite TV station, as the applicant would have discussed the impact that the disruption of that service had on him in his written statement. In the Tribunal’s judgment, the applicant had fabricated the backstory about his interest in Christianity in Iran and mixed up the details concerning his employment, and fabricated that the Christian TV programme ceased to be transmitted to account for the fact that in his oral evidence he told the Tribunal that he had been watching the programme for about a month, and needed to account for why this period of viewing was such a short period of time. The Tribunal does not accept that the applicant began a journey towards Christianity in Iran. The Tribunal is satisfied that this evidence was fabricated to explain why the applicant would commence engaging in Christian activities in Australia, so he would avoid the inference that he had arrived in Australia with no interest in Christianity, and engaged in this activity solely as a means of lodging a protection claim.
That leaves the Tribunal with the applicant’s conduct in Australia. Similarly, the Tribunal has concerns about the applicant’s credibility about how he became involved in Christianity in Australia. To the Tribunal’s way of thinking, the fact that the applicant did not detail in his written statement’s his attendance at the [Town 2] Church was not due to the fact that the applicant did not think that those attendances were important, but was not detailed because those attendances did not occur. The Tribunal is satisfied that the applicant fabricated those attendances at the Tribunal hearing because he was keen to avoid an inference that he discovered that his cousins were Christians, and decided to go to their church, being [Church 1], in order to lodge a protection visa application. The Tribunal is satisfied that the applicant thought that by telling the Tribunal he had attended another Church prior to [Church 1], it would persuade the Tribunal that he was a genuine Christian convert.
As noted to the applicant at the Tribunal hearing, the Tribunal is required by s.5J(6) of the Act to disregard any conduct engaged in by the applicant in Australia unless the applicant satisfies the Tribunal that he engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee. For the reasons given above, the Tribunal is not satisfied that the applicant engaged in his conduct in Australia for purposes other than to strengthen his claim that he is a refugee.
The Tribunal then considers whether the applicant faces a real risk of significant harm on account of his claimed conversion to Christianity and that his activities in Australia associated with this claimed conversion. As the Tribunal previously acknowledged, the applicant has engaged in a number of activities connected with [Church 1] since he started attending there shortly after his arrival in Australia. The applicant, in his written statement, clearly demonstrates knowledge of Christianity that would be expected of someone who has engaged in the type of activities in Australia of which the applicant has participated. However, as the Tribunal pointed out to the applicant, the DFAT report at 3.34 states that 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. The migration agent submitted that Christians are monitored, Christian house churches are infiltrated and laws are enforced. The Tribunal accepts that this is the case, but in the circumstances of this applicant, the Tribunal is not satisfied that if the applicant were to be returned to Iran from Australia, there are substantial grounds for believing that there is a real risk that the applicant will be arbitrarily deprived of his life, be subjected to the death penalty, tortured, subject to cruel or inhuman treatment or punishment, or subjected to degrading treatment or punishment. This is because the Tribunal is satisfied that the applicant is not a genuine Christian convert and if he returned to Iran now or in the reasonably foreseeable future, he would not engage in any Christian activities in Iran. As the Tribunal is not satisfied that the applicant is a genuine Christian convert, the Tribunal is not satisfied that the applicant would be considered to have imputed pro-Western political views. The DFAT report notes at 5.25 that Iranian authorities pay little attention to failed asylum seekers in Iran and have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government (noting that heavy internet filtering means that most Iranians will never see them), or converting to Christianity.
In the circumstances of this applicant, the Tribunal accepts that he has posted articles on [social media] concerning Christianity, but because the applicant is not a genuine Christian convert and would not engage in any Christian related activity upon his return to Iran, there is not a real risk of significant harm on account of his [social media] posts, even if authorities in Iran became aware of them.
CONCLUSION
Refugee
The Tribunal is not satisfied that the applicant is a genuine convert to Christianity. The Tribunal is satisfied that the applicant came to Australia and became involved in Christianity to achieve a migration outcome. If he returns to Iran, he will not continue with the Christian activity he engaged in while he was in Australia.
For the reasons given above, the Tribunal not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nathan Goetz
Member
- Extract from Migration Act 1958

ATTACHMENT
5 (1) Interpretation
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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.
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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.
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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.
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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.
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5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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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 the 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.
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36     Protection visas – criteria provided for by this Act
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(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 because the person is a refugee; 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.
(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.
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[2020] AATA 2575

6 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice