1609250 (Refugee)

[2019] AATA 5850

1609250 (Refugee) [2019] AATA 5850 (21 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1609250

COUNTRY OF REFERENCE:                   Iran

MEMBER:Nicole Burns

DATE:21 June 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act 1958.

Statement made on 21 June 2019 at 4:48pm

CATCHWORDS

REFUGEE – protection visa – Iran – religion – Muslim – Christian convert – monitored and interrogated by employer – suffered workplace discrimination – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65, 91R, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

Appellant S395/2002 v MIMA (2003) 216 CLR 473

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicants, who claim to be citizens of Iran, applied for the visas on 29 July 2014 and the delegate refused to grant the visas on 1 June 2016.

3. The applicants appeared before the Tribunal on 7 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Mrs A] and [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.

4. The applicants were represented in relation to the review by their registered migration agent. She attended the Tribunal hearing.

   RELEVANT LAW

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

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

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

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The first named applicant (the applicant) is a [age]-year-old married man from Tehran, Iran who claims to fear persecution on return to his home country as a Christian convert (from Islam).

11. The applicant set out his initial protection claims in a written statement attached to his protection visa application. In it he states, among other things, that although he was born into a Muslim family and grew up Muslim, he became distant from Islam at university and became interested in Christianity after meeting a Christian called [Person B] during military service (in [year]). He states that after he married his current wife he and his wife travelled from Iran to Italy to see the Vatican church, [in] May 2013. However when he returned to Iran he was interrogated by security at [Employer 1] he worked at on two occasions (in June 2013 and January 2014) to answer questions about his visit to the Vatican and interest in Christianity. After answering a lot of questions about Islam and signing a disclaimer, he was let go and then transferred to [an] area south of Tehran. Due to the pressure and stress of having to conceal his belief (in Christianity) the applicant stated that he and his wife decided to come to Australia. A few days after he came to Australia the applicant said that some of his family members in Iran told him over the phone that he had to report to [Employer 1’s] central security office as soon as possible. Because of this, his written declaration (disclaimer) to the security office and following his trip to Australia, the applicant stated that his return to Iran would ‘undoubtedly’ result in his arrest. In Australia the applicant said he has met with friends at [Church 1] and attended church there.

12. Material provided in support of the visa application included translated letters from the applicant’s previous employer in Iran ([Employer 1]) to the applicant, requesting that he report to the district security office ([in] June 2013) and the head security office ([in] January 2014), and photographs of the applicant and his wife at a church (purportedly in the Vatican City in May 2013).

13. On review the applicant provided to the Tribunal a statutory declaration dated 19 March 2019 in which he clarifies and expands upon some aspects of his claims, and provides an update about his religious practice in Australia. The representative provided supporting documents to the Tribunal, including photographs of the applicants with fellow Christians celebrating Christmas and Easter in Australia, and at church, a copy of a Christmas card addressed to the applicant, as well as a selection of email correspondence from the applicant’s church in Australia to the applicant about upcoming events. She also provided articles about arrests and mistreatment of Christian converts in Iran.

14. In a written submission[1] to the Tribunal the representative submits that the applicant will be persecuted on return to Iran because he has converted to Christianity, given apostasy is a crime. She refers to country information from a variety of sources about the treatment of Christian converts by the Iranian authorities to support her contention in this regard.

    [1] Dated 30 May 2019

15. At the Tribunal hearing the applicant gave evidence about his religious activities in Iran, including his move away from Islam, early interest in Christianity to the point of conversion and problems that ensued. The oral evidence of the applicant’s wife (the second named applicant) was consistent with the applicant’s oral evidence, which was detailed and spontaneous (and consistent with his written claims before the Department and Tribunal on these matters). The applicant also gave oral evidence to the Tribunal about his religious activities in Australia, which was corroborated by the oral testimony of [Mr A] who [was employed] at his church (and an ordained pastor). The applicant was able to describe his concerns with Islam, attraction to and gradual exposure to Christianity in Iran, and demonstrated a reasonable knowledge of Christianity including for example, the main differences between Protestant – which he follows – and other denominations. He has expanded on his initial claims considerably at hearing, however the main themes and events are consistent. Accordingly the Tribunal accepts the applicant’s core claims to have converted to Christianity, to have been involved in Christian-related activities in Iran (and Australia), and that he experienced problems as a result, summarised as follows:

    a.The applicant was born in Tehran, Iran into a Shi’a Muslim family and grew up there as a Muslim. He used to pray, fast and practise Islam. His father taught him the Koran.

    b.Around mid-way through university ([year]) he stopped fasting during Ramadan and after he graduated he stopped practising altogether. This was the reason behind most of the arguments he and his first wife – who was a devout Muslim – had and they divorced after only about a year of marriage.

    c.The more research the applicant conducted about the history of Islam during university the more uncomfortable he became: particularly stories of violence including by Prophet Mohammad. He began downloading books from the internet that were banned in Iran, such as the History of Tabari which contributed to his growing internal criticism of Islam.

    d.The applicant met [a] Christian – [Person B] – during his compulsory military service after he had completed university. The applicant asked him many questions about Christianity and [Person B] gave him books and notes to read. He also visited [Person B’s] church, as a guest only.

    e.The applicant came to know other Christians, and Muslims like himself who were interested in Christianity including his current wife whose friend was also [Person B’s] friend. The applicant attended a number of gatherings at different friends’ houses to discuss the Bible, up until just before he left Iran. His wife attended once or twice, but no more out of fear.

    f.During one of these gatherings the applicant said he was ‘baptised’ in a friend’s bathroom however it was not official and there was no certificate.

    g.Not long after the applicant married his current wife (in 2013) they visited Italy together: specifically Vatican City, because they wanted to conduct more research about Christianity. The applicant had told a colleague at [Employer 1] where he worked at the time, who reported him to [Employer 1’s] security office.  Around five days after he returned from Rome the applicant was questioned by [Employer 1’s] security staff about his overseas trip.

    h.Around six months later the same colleague noticed the applicant had (mistakenly) mixed some notes about Christianity with work training course notes and again reported him to [Employer 1’s] security office. They looked through his files and drawers in his office, found some notes about Christianity, and asked the applicant to go to the central security office building at [a location]. There the applicant was interrogated for three or so hours about his interest in Christianity: he denied it, said he was Muslim and signed a pledge that he would only practise Islam. He explained to the security personnel that he had the notes in his possession because he studied other religions. Shortly after, the applicant was transferred to [an] area in the south of Tehran: he thinks so they could better monitor him.

    i.Due to the stress and the belief that his employer knew he was interested in Christianity and were monitoring him, the applicant decided he needed to leave Iran.

    j.Staff from [Employer 1] telephoned the applicant’s mother after he left: she told them he had gone to [Australia]. They told her to tell him to report to the central security office on his return.

    k.The second named applicant told the Tribunal that she told her mother in Iran about her and her husband’s interest in Christianity before they left, but no one else. The applicant said he has only told his brother, who lives in Australia with his wife, who is also Iranian (originally) but of the Baha’i faith.

16. The Tribunal notes initially it was concerned about why the applicant was allowed to continue to work at [Employer 1] after their security staff started to suspect he was interested in Christianity, and why they did not report him to the authorities at the time. At hearing the applicant said that given [Employer 1] staff knew he was interested in Christianity, but not that he had converted, he thinks they wanted to continue to monitor him. Although of some concern, given the otherwise strong aspects of the applicant’s case, the Tribunal accepts his explanation as plausible.

17. The applicant said that he has regularly attended church and Bible studies since he has been in Australia. He attended some different churches when he first arrived, including [Church 1]. He has been attending [another church] since 2016, which is a Protestant church. He takes communion, on advice from the pastor after advising about the circumstances of his baptism in Iran. The Tribunal accepts his claims in this regard, giving significant weight to the evidence of [Mr A] at hearing who said he first met the applicant and his wife through the church around five years ago, that the applicant regularly attends church and Bible studies and that they have become friends. [Mr A] said he considers the applicant to be a genuine Christian convert, in terms of his character, practise, actions and understanding of the Bible. Accordingly the Tribunal is satisfied that the applicant’s conversion to Christianity is genuine and finds that his conduct in attending Christian churches and Bible studies in Australia was not undertaken for the sole purpose of strengthening his refugee claims. Section 91R(3) of the Act therefore does not apply in the applicant’s case.

18. Having accepted that the applicant has genuinely converted from Islam to Christianity and that he continues to actively practise his Christian faith in Australia, the Tribunal accepts that he would seek to continue to practise his Christian faith should he return to Iran. It notes that although the Tribunal accepts the applicant converted to Christianity in Iran, attended some house church gatherings there, and that his employer at the time suspected as such, he has not claimed that he came to the adverse attention of the Iranian authorities as a result. The Tribunal has considered how the applicant would act on return to Iran as a Christian (convert) and whether that would lead to a real chance of serious harm by the authorities there.

19. At hearing the applicant and his wife spoke of their plans to baptise their child – due to be born on [date] - and raise him/her as a Christian. The second named applicant gave evidence about her interest in and involvement with Christianity in Iran and Australia and her plans to become baptised along with her child after the birth. [Mr and Mrs A] confirmed they had discussed the matter with her and [Mr A] said he would be glad to baptise the second named applicant and her child: he noted that before he baptises anyone he examines them closely to ensure that they understand what it means and that they are genuine. The Tribunal accepts the applicants’ claims in this regard and accepts they wish to have their child baptised in the near future and raised as a practising Christian.

20. Further, the Tribunal accepts that if the applicant were to return to Iran that, were it not of his fear of persecution, he would seek to attend church, seek out other Christians, possibly attend house church gatherings, and speak of his Christian faith and family.

21. Given these findings the Tribunal has considered independent country information about the situation for Christian converts in Iran to determine whether the applicant faces a well-founded fear of persecution from the authorities (or anyone else) on return to Iran as a Christian convert (from Islam). The applicant claims such people are considered apostates by the authorities in Iran and face harsh penalties under the law, including (possibly) death.

22. DFAT’s most recent country information report on Iran indicates that the official religion of Iran is Shi’a Islam and that approximately 98 percent of Iranians are Muslim. The report states that article 4 of the Constitution requires all of the country’s laws and regulations be based on (Shi’a) Islamic principles; that government policy and legislation heavily favours the majority Shi’a population in practice, leading to pervasive structural discrimination against non-Shi’a Muslims and religious minorities; and that the Ministry of Culture and Islamic Guidance and the Ministry of Intelligence and Security (MOIS) monitor religious activity and the Islamic Revolutionary Guards Corps (IRGC) also monitors churches.[2]

    [2] DFAT Country Information Report – Iran, 7 June 2018 at 3.17 and 3.18

23. DFAT report that there are non-Muslim recognised religions in Iran, including certain Christian religions however proselytisation by religious minority groups is strictly prohibited under the Penal Code: it is a capital crime for non-Muslims to convert Muslims. As well, none of the three recognised minority religions proselytise or accepts converts as members and that 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.’[3] As a result, Iranian Christians who are not members of the recognised ethnic minority churches generally practise in underground ‘house churches’.

    [3] Ibid at 3.30

24. In terms of the treatment of house church participants in Iran, DFAT relevantly state that the:

    Authorities have interpreted the growth in house churches as a threat to national security: official reports and the media have characterised house churches as ‘illegal networks’ and ‘Zionist propaganda institutions’. Authorities have periodically cracked down on house churches, focusing particularly on the leaders of churches that actively broadcast, proselytise, or seek out new members. Security forces have reportedly increased the frequency of these crackdowns under the Rouhani administration, although probably not as a result of any direct instruction from the government. The judiciary has handed down long sentences in relation to house church activities: in July 2017, the Revolutionary Court convicted eight Christians of ‘acting against national security through the establishment of a house church’ and ‘insulting Islamic sanctities’, and sentenced the group to between ten and 15 years’ imprisonment. According to international observers, as of December 2016 approximately 90 Christians were in detention or awaiting trial because of their religious beliefs and activities. Christian advocacy groups have reported that authorities have pressured some church leaders to emigrate, either through direct threats or through intentional harassment (including daily summons to security offices for questioning, confiscation of identity documents, or forcing them out of their jobs). Human rights observers have reported that authorities have subjected Christians in detention to severe physical mistreatment, including beatings and solitary confinement.

    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.

    DFAT assesses that small, self-contained house church congregations that maintain a low profile and do not seek to recruit new members are unlikely to attract adverse attention from authorities beyond monitoring and, possibly, low-level harassment. Members of larger congregations that do engage in proselytisation and have connections to broader house church networks are more likely to face official repercussions, which may include arrest and prosecution. The leaders of such congregations are at particular risk in this regard.[4]

    [4] DFAT Country Information Report – Iran, 7 June 2018 at 3.33–3.35

1. DFAT also state that under Iranian law a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. They state that:

   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.

   ...

   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.

   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.

   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.[5]

   [5] DFAT Country Information Report – Iran, 7 June 2018 at 3.41–3.45

2. In their 2019 annual report the United States Commission on International Religious Freedom state the following about Christians in Iran:

   Iran has nearly 300,000 Christians, including traditional Armenian and Assyrian/Chaldean ethnic churches and newer Protestant and evangelical churches. The government monitors members of the historical churches and imposes legal restrictions on constructing and renovating houses of worship. Christians have been sentenced to prison terms for holding private Christmas gatherings, organizing and conducting house churches, and traveling abroad to attend Christian seminars.

   Evangelical Christian communities face repression because many conduct services in Persian and proselytize to those outside their community. Pastors of house churches are often charged with national security-related crimes and apostasy.

   In 2018, Iran drastically escalated its arrests of Christians. Whereas 16 Christians were arrested in Iran in 2017, at least 171 were arrested in 2018. While Iran often arrests Christians ahead of Christmas, arrests in 2018 began earlier and took place in a wider set of cities and towns than usual. A total of 114 Christians were arrested in Iran during the first week of December 2018 and more than 150 were arrested between November and December 2018. Christians arrested in Iran are often treated and charged as enemies of the state, and lawyers who take on their cases face the threat of detention. In September 2018, for example, Iran revolutionary court judges Mashaullah Ahmadzadeh and Ahmad Zargar affirmed sentences leveled in 2017 against Saheb Fadaie and Fatemeh Bakhteri on the charge of “spreading propaganda against the regime.”

   ...

   Two converts to Christianity from Islam, Hadi Asgari and Amin Afshar-Naderi, awaited verdicts at the end of the reporting period from appellate courts on extensive prison sentences for “conductive evangelism” and “illegal house church activities.”[6]

   [6] United States Commission on International Religious Freedom, 2019 Annual Report, April 2019, pp.54 and 55, >

   The UK Home Office in a May 2019 report about Christians and Christian converts in Iran state that simply converting to Christianity is not considered enough to put a person at a real risk of persecution but that their actions and activities and the degree to which their conversion is visible will determine whether or not they would be at a real risk.[7] The report goes on to state that the Iranian authorities are interested in those engaged in evangelical or proselytising activities and that it is not usually a problem for those who practise their faith discreetly, including for those who return to Iran and do not actively seek to influence others to convert to Christianity, who consider their faith a personal matter, and who are unlikely to seek to express in public their faith. Such people are likely to be able to continue practising Christianity discreetly.[8]

   [7] UK Home Office, Country Policy and Information Note, Iran: Christians and Christian converts, May 2019 at 2.4.13,

   [8] Ibid at 2.4.14

3. The UK Home Office also reported that members of evangelical/house churches are ‘subject to harassment, arrest, close surveillance and imprisonment by the Iranian authorities’.[9]

   [9] UK Home Office, Country Policy and Information Note, Iran: Christians and Christian converts, May 2019 at 2.4.4

4. In a November 2017 Landinfo report the underlying rationale for the way the Iranian government monitors and treats house church members is explained as follows:

   In general, the government regards religious pluralism beyond their control as a security risk. Iran does not have freedom of association, and all organised activity, whether political, religious or cultural, must be applied for and authorised by the Ministry of the Interior and the Ministry of Culture and Islamic Guidance. Activities that are considered to undermine or threaten the legitimacy and stability of the Islamic regime are not allowed and may have criminal consequences. The regime bases its legitimacy on Islam being the religion of the people, and that the government exercises the will of the people through an Islamic regime. Any religious movement that differs from or provides an alternative to orthodox Shiite Islam is interpreted as a threat to the state itself. Religious activists are therefore viewed with suspicion and risk being prosecuted.

   ...

   The reason why Iranian authorities define the organised house church movement to be a threat against national security, is that they relate the movement’s activities to political opposition activities. House church meetings are conducted in secret, which means that the government can neither control who participates nor what happens in the meetings. The government therefore consider the meetings to be a potential source of opposition activity that can threaten the regime. Furthermore, there is contact between many house churches and foreign communities. This kind of Western connection is perceived by the authorities as suspect, and as a threat to the regime.[10]

   [10] Norwegian Country of Original Information Centre (Landinfo), Iran: Christian converts and house churches (1) – prevalence and conditions for religious practise, 27 November 2017, pp.21 and 23, (footnotes omitted)

5. The Australian Institute of International Affairs published an Iran Study Tour Report in April 2018 which stated as follows:

   Under the current Islamic regime, citizens are, at least in theory, free to practice the religion of their choice. Each religious minority is guaranteed a seat in parliament, as stipulated in Iran’s constitution. However, whilst conversion to Islam is accepted and encouraged, it is illegal to convert to a different religion once one has identified as Muslim. This is considered apostasy and harsh penalties can apply. Apostasy is punishable by death in certain cases, however the crime has never been codified in law.[11]

   [11] Cited in: UK Home Office, Country Policy and Information Note, Iran: Christians and Christian converts, May 2019 at 8.1.3

6. In August 2017, when asked by the UK Home Office what attracts the authorities to new converts and what kind of activities could therefore lead to ill-treatment, Open Doors and Article 18 suggested the following would (although these can depend on the city):

   ·Any kind of gathering

   ·Sharing the gospel

   ·Being in possession of more than one Bible (usually one Bible will be tolerated by the authorities, but not always)

   ·Possession of a library of Christian literature

   ·Holding discipleship classes

   ·Studying theology

   ·Contact with Christian organisations

   ·Attending Christian conferences and seminars inside the country or abroad where teaching takes place

   ·Hosting or, in some cases, even attending house churches.[12]

   [12] Open Doors, ‘Interview with CPIT, UK Home Office’, 8 August 2017: cited in UK Home Office, Country Policy and Information Note, Iran: Christians and Christian converts, May 2019 at 8.5.6

7. The country information set out above indicates that the government in Iran continues to regulate Christian religious practices and those at greatest risk are its leaders and proselytisers. The information suggests that the state is focused more on public practice of religion and proselytising than one’s own private conviction and on this basis the Tribunal considers if the applicant were to return and practise his Christian religion discreetly he might be able to do so without drawing the adverse attention of the Iranian authorities. However the Tribunal notes that asylum seekers are not required, and cannot be expected, to take reasonable steps to avoid persecutory harm, or to live ‘discreetly’ to avoid such harm.[13] If the applicant on return to Iran speaks to others about Christianity or expresses his belief with others, for example by attending or organising house churches (as he has in the past) then the country information indicates he could be at risk. Based on his past practices and evidence of his religious practice and commitment in Australia, the Tribunal is satisfied that the applicant will undertake such activities on return to Iran, or if not, only because of fear of persecution in doing so.

   [13] In Appellant S395/2002 v MIMA (2003) 216 CLR 473

8. Taking into account these considerations, the Tribunal accepts that if the applicant returns to Iran and attempts to practise his Christian faith, there is a real chance that he will come to the adverse attention of the Iranian authorities and be perceived as an apostate. The Tribunal accepts that the treatment of apostates who come to the attention of authorities in Iran constitutes serious harm for the purposes of s.91R(1)(b) of the Act in that it involves a threat to life or liberty, even noting that death penalty is now rare, other harsh penalties can apply. The Tribunal accepts that the applicant wishes to freely practise his faith but fears that to do so in Iran will expose him to persecution, including arrest and detention. The weight of country information before the Tribunal indicates that the applicant’s fears in this regard are well-founded and that there is a real chance that continuing to practise his Christianity would draw attention to his conversion from Islam and expose him to harm. The Tribunal further finds that the persecution he fears involves systematic and discriminatory conduct, as required by s.91R(1)(c), in that it is deliberate or intentional and involves selective harassment for a Convention reason, namely his religion.

9. Since the Iranian government is responsible for the persecution that he fears the Tribunal is not satisfied that state protection is available or that there is any part of Iran in which he would be safe from the persecution that he fears.

10. In all the circumstances, the Tribunal accepts that there is a real chance that the applicant will face serious harm now or in the reasonably foreseeable future if he returns to Iran on the basis of his religion. Accordingly, the Tribunal finds that the applicant has a well-founded fear of persecution for a Convention reason. For these reasons, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    Second named applicant

11. The applicant told the Tribunal that his wife was also born into a Shi’a Muslim family but they were never strict. She shied away from Islam because she did not like the way it treats women. She attended some house church meetings in Iran but not many, given the risks. In Australia she attends church and Bible studies with the applicant sometimes, but not regularly because she works most Sundays [in an occupation] at a [location]. As mentioned, she is pregnant with their first child, due early [year]. After trying for many years to conceive, she considers her child a ‘miracle’ and wants to be baptised with her child after their birth. The second named applicant’s oral evidence corroborated the applicant’s claims in this respect.

12. The Tribunal accepts that the second named applicant became interested in Christianity many years ago in Iran and occasionally attended house church gatherings. It also accepts she has attended church and Bible studies over a number of years in Australia, although not regularly because of work commitments. Having regard to her oral evidence and the testimony of [Mr A] and [Mrs A] at hearing, the Tribunal accepts that the second named applicant is genuinely interested in Christianity and would be so on return to Iran, if not for the fear of persecution. The Tribunal accepts that although she has not yet been baptised, she plans to do so after the birth of her child and that she shares and supports her husband’s desire that their child is baptised and raised a Christian. The Tribunal is satisfied that the second named applicant’s motivations behind participating in church and church-related activities in Australia are genuine and not for the sole purpose of strengthening her (or her husband’s) protection claims and therefore s.91R(3) does not apply in her case.

13. Relying on the country information set out above about the situation for Christian converts (from Islam) and similar reasoning with respect to her husband’s case and circumstances, the Tribunal finds the second named applicant faces a real chance of serious harm from the authorities on return to Iran as a Christian convert. It also finds that state protection would not be available and there is no part of Iran where she would be safe from the persecution that she fears.

14. Accordingly the Tribunal finds the second named applicant faces a well-founded fear of persecution from the authorities as a Christian convert if she returns to Iran now or in the reasonably foreseeable future. For these reasons, the Tribunal is satisfied that the second named applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore she satisfies the criterion set out in s.36(2)(a).

    CONCLUSION

15. For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s.36(2)(a).

    DECISION

16. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act 1958.

    Nicole Burns
    Member