1611823 (Refugee)

1611823 (Refugee) [2019] AATA 6015 (15 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1611823
COUNTRY OF REFERENCE:                   Iran
MEMBER:Rodger Shanahan
DATE:15 July 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 15 July 2019 at 4:36pm

CATCHWORDS
REFUGEE – protection visa – Iran – religion – Christianity – mysticism – political opinion – anti-government – conversion to Christianity solely to create refugee profile – travelled freely in and out of Iran – applicant of no interest to Iranian authorities – claim fabricated – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
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 on 20 July 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Iran, applied for the visas on 4 June 2015.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Protection Visa Application
The first-named applicant claimed that he came from a religious family and was curious about God but his strict father or his primary school would punish him when he asked questions about the truth of religion and God, so he stopped. He [was Occupation 1].
He was asked to go to the [office] one day and was handed a letter telling him to go to the [management] where he was asked questions about his personal religious rituals and what he [discussed]. He answered truthfully and was sacked a few days later.
He returned to [another line of work] and opened a small shop to display them, but they included [works] from [two named people] and the Basij entered his shop, destroyed his works and bashed him, then charged him with promoting corruption.
He opened another shop selling [a certain product]. Here he met a [Christian] [Occupation 2] [Mr A], became friends with him and then used to discuss mysticism and spirituality with him at [Mr A’s] house, and [Mr A] became a mentor to him. [Mr A] has since died.
He began work at [Employer 1] with the help of his father, and later he met a girl from a minority religious group and asked to marry her. His father violently objected and kicked him out of the house; none of his relatives attended the wedding.
His wife faced discrimination because of her religious identity and gender. He joined the People’s Movement and joined the Iranian protests in July 2009. His wife was warned that if she was seen at protest marches she would be detained. Knowing his wife would continue to protest, he took his wife and daughter to [Country 1] for their safety.
He returned to Iran 14 days later where he was summoned by the security forces and questioned as to why he had gone to [Country 1] and asked where his wife was. He was told that it was believed that he and his wife had both protested and if so he could be sacked. He discontinued his activity but continued his virtual protest activity and still participated in all protest gatherings trying to have only a minor role.
His wife applied to study in Australia in 2013 and his mother-in-law looked after their daughter but she passed away in October 2013. His wife took a leave of absence and came back to Iran to look after their daughter. His wife had to return to Australia but their daughter missed her too much and the applicant took their daughter to Australia in August 2014 to stay with his wife.
He had to then return to his job in Iran but was again investigated by [his employer] and he was asked to write a report on the reasons for his visit to Australia. Due to the stress he reacquainted himself online with the courses of the mysticist Professor Mohammed Ali Taheri who he came to admire greatly. He heard that there was a protest to be held at Evin Prison to aid Professor Taheri which he joined on 15 December 2013.
He was interviewed by security at work [in] December and accused of being at the protest. He said that was just passing through, but he wasn’t believed and he was suspended from work. [In] December he was told to attend the security branch at Karaj for questioning. Given his past, he knew what was in store and left for Australia the same day ([in] December).
Since he has come to Australia he has been suspended from, and lost his job. His bank account has been frozen
AAT Hearing
The applicants were asked whether they had individual or the same claim and they replied that they had the same claim. The first-named applicant claimed that if he returned to Iran he would be detained, tortured and killed by the regime because he had views against the religious opinions of the regime. He was following mysticism and this was not accepted by the religious regime because it was against the Shi’a religious law. He also had political ideas and had taken part in the demonstrations of 1388 and was also active on the internet. He had also taken part in a demonstration in 1393 at Evin prison in support of the jailed mystic leader. In Australia he was also following Christianity and had been baptised.
He and his daughter were applying together but his wife had a separate application. Asked why she hadn’t applied with them, he said that she applied when they were separated. Asked when they were separated, he claimed that he arrived from September 2014. Asked if they had reconciled, he claimed that from February 2015 they were separated until the end of 2017 when they went back together. They didn’t live together during that period – he lived with his daughter in [Suburb 1] and his wife in [Suburb 2].
Asked if he had copies of rental leases from these houses he claimed that he was letting two rooms from an old lady. They had separate bank accounts. Asked if he could provide separate utilities bills, tax returns or the like, he claimed that they were just in two bedrooms in her house and he found her from [social media]. He asked if he could show the correspondence with her from [social media]. She was Iranian but he could not provide any evidence of conversing with the woman over [social media].
He claimed that his mail was coming to this house. It was put to him that this just meant he had a postal address – the Tribunal needed some evidence that he lived here such as the [social media] exchange. He said that it had been a long time ago and it was put to him that it would still be in the history – he claimed that he wasn’t sure. He moved to [Suburb 2] when he got back with his wife.
In his application he had mentioned something about his wife’s religious identity and gender. Asked what her religion was, he said she was Zoroastrian and his family had problems with this. His father was against it and rejected the applicant because of this. The rest of his family weren’t like his father as they were a similar age – they didn’t attend the wedding as his father didn’t allow them. He was asked whether no family attended his wedding and he said that this was correct.
He was asked who [Mr B] was, and he said he didn’t know. He also didn’t know [Mr C] or [Mr D] and said that he didn’t know them. It was put to him that they were the witnesses to his marriage and he then said that he remembered and they were from the extended family and he got them to attend. It was put to him that he had previously said that no family attended and he claimed that he meant no close family attended. It was put to him that his statement made no such distinction and the Tribunal needed to make a determination on the applicant’s credibility.
It was put to him that on his marriage certificate she was shown as Shi’a Muslim not Zoroastrian. He claimed that he wasn’t religious either at this time and was born Muslim. His wife wanted to show she wasn’t Muslim but did this because she loved him. Asked why she couldn’t be noted as Zoroastrian and he repeated what he had said. Asked if he had any evidence that she was Zoroastrian, he claimed it was not recorded anywhere. Asked if she had any evidence from a Zoroastrian body in Australia, he said that he didn’t know and his oral evidence was the only proof of this. She said she was Shi’a in words so that they could be together.
Regarding his anti-regime activities, he claimed that it was both demonstrating and mysticism – he was also in Moussavi’s group. He was arrested on one occasion but took part in most of the demonstrations. Asked to be more precise, he couldn’t really remember. He was told the Tribunal needed some estimate; three or four, more than 25 etc. He claimed it was around 8-10 over a period of three or four years from 1388.
He was in Tehran and many people were arrested, including him. He was detained for a few hours, had his ID card taken and signed an undertaking. He was attacked on the street at other times but was never detained. Asked if he had a leadership position, he said he wasn’t and was just a participant. Asked if he had any photos at demonstrations, or at pro-Moussavi rallies prior to this or any evidence that showed him as being politically active. He said he didn’t have any.
He was asked if he was active on [social media] and he said he put up many comments at the time but didn’t have any at the moment but he could search and find some if he had time. This was in an account under his name. He didn’t know if it went back that far. He was given the opportunity to try to find these but there was a lack of internet coverage. He put comments on other people’s [social media] pages. Asked if he came to the attention of the authorities because of this attendance or his [social media] comments and why they would be.
He claimed that his problem was when everything was put together, this, his mysticism and his Christianity. It was put to him that when he applied for protection he had no Christian profile so he needed to answer the question regarding the interest of the Iranian authorities in his political activity so the tribunal could determine whether he had a profile in this regard that would form a claim to fear serious harm based on accumulated profiles. Country information for instance, indicated that the Iranian authorities weren’t interested in low-level protestors.[1]
[1] DFAT Country Information Report – Iran, 7 June 2018.
He claimed that he worked [at a workplace] and it was a site of Sepah economic activity and they checked on those people. Sepah have killed a person who was a weblogger and was anti-regime. It was put to him that he was not a blogger with a profile of anti-regime social media activity, so he needed to compare interest in like people. He claimed that the regime killed people in 2009 after the demonstrations. It was put to him that he had no problems until he left in 2014 and it was now 2019.
He claimed he was threatened in Iran because of the Irfan mysticism circle. It was very close to Christianity and that you didn’t need any religion and just needed to be in touch with God. He became interested in this around the end of 1392 (2013) – he lost his mother when he was [young] and he was lonely and always wanted to connect with God. This increased when he was a teenager and he began to read Irfan books. He didn’t believe what Islam was telling him or what his father was telling him.
Islam was harsh against non-Muslims. He was asked why he just didn’t forget about religion altogether. He claimed that he believed in God. Asked if he travelled outside Iran before coming to Australia, he said that he did because his wife was studying in [Country 1]. He went to [Country 1] around three times (2009, 2010). Asked if he explored other religions in [Country 1] at these times, he claimed that he had Christian friends at the start of the revolution. He was asked to answer the question of whether he explored Christianity or Hinduism while he was outside of Iran given his claimed interest in spirituality.
He said he didn’t as he only knew the basics of Christianity. He was asked if he contacted churches or priests to explore Christianity and he said that he didn’t. He was asked whether he went to Armenia while he was in Iran to explore Christianity given the ease of travel there. He claimed that he didn’t have many holidays and wanted to save his holidays. He was asked whether he went to Armenia for long weekends so he didn’t use up his leave where he could explore Christianity without raising suspicion. He said there weren’t long weekends in Iran, only Friday. He then clarified and said that it may have been midweek and only one day. It was put to him that he could have taken one days leave and turned it into three, but he said he never got the chance.
He was asked about his efforts to explore Christianity in [Country 1] where he did have the chance. He claimed that his time was limited so he wanted to spend it with his family. It was put to him that saying he was too busy to explore his faith in [Country 1] didn’t do much to strengthen his claim to be on a spiritual journey. He claimed one could do research on the internet without having to go to the place.
He was interested in mysticism and this was a threat to Iran if they had a big following and taught a religion other than Islam. Asked how he expressed his belief in Irfan mysticism, he claimed that there was a difference between Irfan and Islam and in Shi’ism there needed to be an intermediary but Irfan allowed someone to be in contact with God or the holy spirit directly. He was asked how he gave expression to this and the Iranian authorities became aware of his mysticism if there was no middle person involved.
He claimed that a friend introduced him to it through the circle that he was in and the government found out. People in the [workplace] were spying and passed on the information. Asked how they knew, he claimed that it was an open area and people could hear. It was put to him that the Tribunal still didn’t understand how people knew he was involved in mysticism. He claimed that he was talking about mysticism to his friend and people heard. He was asked why he would be talking to someone in an open plan office with spies all around if he knew mysticism was opposed by the regime.
He claimed that it was normal to talk about it and thought that it wouldn’t be a problem. Asked if anything happened to him at work because of the spies around, he claimed that the work security asked him about it once but he said that he was just talking about the issue – this was in 2013.
He came to Australia in 2014 and was asked if he explored mysticism or Christianity here and he thought it was similar in Australia. Asked specifically what he did in Australia in 2014 about Christianity, he claimed that he didn’t do anything as he was only here for two weeks. It was again put to him that if his interest was strong enough he surely would have made time to explore it. He claimed that he went to [Location 1] where there was a church and spoke to some people there. He didn’t speak English, but his wife came too and spoke English. Asked what priest they saw, he claimed that he didn’t speak to a priest but spoke about the history and the gatherings there. It was put to him that this was what a tourist did, and he said he was interested to look around the area.
On return to Iran, he was lonely and worried about his wife and daughter and then went more towards mysticism as a result. He went to meetings with an Irfan circle and attended meetings in a park and they spoke about mysticism and gave and received information. This was once a week over a period of around three months. They were very careful and didn’t come to the attention of the authorities. Asked why he would be in trouble if they were careful, he claimed that at that time the government were against mysticism and anti-Islam movements.
He had taken part in a protest outside the Evin prison. He took a day off, protested and went home. The next day he went to work and a few days later he was asked to go to the security office and they said they wanted to know why he attended the protest. He denied this and said that he was passing by but they didn’t believe him. He said he could not return to work at the branch and had to wait for the right area to offer him a job.
He was asked why, if he had been so careful about what he did and hadn’t attended any previous demonstrations, he then attended a demonstration that he would be seen at. This appeared inconsistent with his actions. He said that he was being discreet. He was asked again why he was anywhere near the demonstration, and he claimed he tried to be careful and not to be seen.

It was put to him that his timing appeared suspicious. He returned to Iran in September 2015, asked for a certificate of service from [his employer] two months later, then a month later out of the blue he allegedly attended a demonstration at Evin prison which brought him to the attention of the security authorities and he had to leave the country. His family was in Australia and he claimed that, never having attended a demonstration before he then attended a demonstration on behalf of the mystic.
He asked to explain the background of the employment certificate and was asked by the Tribunal if it was any different to what he had responded previously. He claimed that this letter was for a bank loan that he was going guarantor for his sister. Regarding the timing, he claimed that he didn’t mean to go to it but it occurred a few months after he arrived in Iran. He wanted to show solidarity with Mr Taheri.
Asked who he was going guarantor for, he claimed that it was for his sister-in-law. It was put to him that the document he had provided said he was going guarantor for a friend, not his sister-in-law. He claimed it may have been a mistake. He was also asked why the certificate wasn’t addressed to the bank giving the loan. He said there was no need as they just need to make sure he was employed – her bank would contact his bank.
Asked about being demoted, he claimed that he was in demonstrations and because of his Irfan ideas. This was at the end of 1392 (2013)/start of 1393. It was put to him that there was a letter from [his employer] speaking of his annual salary increase dated June 2014 that described him as a [Occupation 3] at [Employer 2]. If he was being punished then it was strange he was still described as a [Occupation 3] and given an annual salary increase. He said that he wasn’t given an official letter saying he had been demoted. The concerns of the Tribunal were repeated.
His adviser said that he thought the translation was incorrect. It was put to him that the applicant had provided it to the Tribunal and if he thought the translation was incorrect he could provide an alternative post-hearing. The applicant then said that the letter didn’t say that he was the [Occupation 3] of a branch, just that he was [Occupation 3] of [a section]. He said it took a few months before it showed his new position in the branch but he couldn’t get a letter that showed this.
Asked about his conversion, he claimed it began at the time he was separated from his wife. His daughter said her mother was going to an English class at [Suburb 3] and he should come as well to improve his English. He did this partly so he could have a good relationship with his wife again. This was in March/April 2015 and he went once a week for English classes and bible studies. He agreed that he attended with his wife but he attended together with his daughter also.
He was baptised and his wife was baptised a year later. He was baptised [in] September 2017 with his daughter and his wife in June 2018. They did their introduction to Christianity with his wife and with [Mr E]. He was asked why [Mr E] wrote separate support letters for him and his daughter, and his wife with no mention of each of them. [Mr E] didn’t know they were separated and thought they were married.
Asked when his wife applied for protection, he said he thought it was 2018 but wasn’t sure. He then said he thought it was June 2018. Asked why she applied then, he said that his wife was an [Occupation 4] and used to travel to Iran and there was an event in January 2018. Her sister’s child was living in his wife’s house and was involved in political activities. She had [an app] and a file of a bible on her desktop at the home. On the [app] there were photos of their baptism. The police came looking for the niece living there (his wife wasn’t there at the time) and took everything away including the computer. As soon as his wife found out she changed her ticket and came back to Australia.
It was put to him that this was very coincidental that his wife’s politically active niece was in her house while the wife was in her sister’s house when the police raided and took away incriminating evidence that they were unable to decrypt before the wife left. The timing appeared very coincidental, as with his own claims. He claimed that it occurred in the morning when his wife was out of the house and she felt the danger once she found that the Intelligence was involved.
He was told about s 5J(6) and it was put to him that he had never demonstrated any interest in Christianity before, including when he went to [Country 1], and had never tried to go to Armenia to study Christianity. He had made no mention of Christianity in his initial protection visa application, but yet after his visa was refused in June 2016 he had been baptised in September 2017. There were concerns that his interest in Christianity was tactical rather than spiritual and it was solely to create a refugee profile.
He claimed that he believed in Christianity in his heart and was interested in it before. It was put to him that he had been in Australia in 2014 and he had been interested in mysticism, demoted at work and surveilled yet he voluntarily returned to Iran. Within three months of returning though he attended a demonstration and things got allegedly worse. The Tribunal was concerned that he had no profile in Iran, had travelled freely and returned to Iran several times and was of no interest to Iranian authorities. He had never applied for protection in Australia in 2014 when he had been here.
He claimed that he could have changed his religion in 2014 if he wanted to stay here. His daughter (the second-named applicant) then said that her mother’s mental state was fragile after her parents’ deaths and she wanted some healing time alone. She attended English classes for the reasons her father said. She claimed that her father got very nervous so may have forgotten some things – she was asked if this was based on medical opinion and she said it was just based on her opinion.
The applicant said that marriage and wedding were different – the marriage could be done in an office. It was put to him that the concern was the applicant’s inability to recall any of his witnesses and that they were all family members when he had claimed that family members did not attend. They were also given an opportunity to find the relevant [social media] page that contained the relevant post (from 2009).
The adviser said about the separation could be proven by showing some documents that proved this. His client was stressed and wasn’t totally coherent. They came back together in March 2016 for financial reasons but were separated. After they were Christian they came back together. He claimed that the client remembered after the names of his witnesses as he was confused between the wedding and the marriage and he was stressed at the time. They were also working to find evidence of the [social media] activities and would provide this after the hearing.
He had also been interested in Irfan from a young age. He claimed that if they had wanted to plan something they could have done this during an earlier visit. They had familial issues which led to their separation. The wife’s claim was genuine and had been accepted. She almost lost her job and couldn’t go back to Iran because the authorities knew she was a Christian convert. He reiterated that their claim for protection wasn’t for refugee purposes. It was put to the applicant that country information indicated that the Iranian authorities understood that people made claims regarding conversion to gain asylum and that if they didn’t have a pre-existing profile they didn’t really have any interest. They were also advised that they could provide any country information to the contrary regarding the death penalty for converts, and also time to provide the [social media] posts.
The applicants said that they would proselytise on return to Iran. The second-named applicant was asked if she was Anglican and she said she was. It was put to her that Anglicans were not proselytising by nature and she said that she would have to proselytise.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant last arrived in Australia on a [temporary] visa [in] December 2015, and applied for a protection visa on 5 June 2015. The Tribunal accepts that the applicant is an Iranian national and his application will be assessed as such. He is a [age] married Iranian. He claimed that the Iranian government would detain, torture and kill him because he had views that were not accepted by the religious regime in Iran, he had been active in political demonstrations and had converted to Christianity. The second-named applicant, his [age] daughter, arrived in Australia in January 2015 and her claim was the same as the first applicant’s. She stated at the hearing that their claims were the same.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I have taken into account the medical evidence he provided post-hearing regarding [a medical condition]. I am satisfied that this had no impact on the applicant’s ability to make out his claims, understand or answer questions that he was asked during the hearing. He was clear in his responses and if there was any confusion it was cleared up straight away.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and find that he fabricated his claim in order to be granted a protection visa.
General Credibility Issue
Although not directly related to his claim, one aspect about which he was questioned has raised some credibility issues regarding the applicant’s evidence. He had claimed that his wife belonged to a religious minority (Zoroastrian), that his father was opposed to a marriage with her, rejected the applicant and forbade the family from attending wedding.
Yet the marriage contract (folio 28/29) describes her as a Shi’a Muslim and listed [Mr D] as a witness and [Mr C] as an introducer. When asked who they were he said that he didn’t know them. It was only after he was advised that they were the witness and then introducer at his marriage that he said they were from the extended family and he got them to attend.
I do not accept that his wife wanted to show that she loved him and hence listed her religion as Muslim, or that he only meant that no close family attended the wedding, not extended family. He could have made this distinction when making his claim and it was only when he was confronted with information that ran counter to his claim that he claimed to remember who these people were.
Christian Conversion
I do not accept that the applicant has genuinely converted to Christianity. The issue of genuine or non-genuine religious belief can be a difficult one to discern because religious identity is a personal issue. In the applicant’s case however, I note that he never evinced any interest in Christianity until after his protection visa application was refused. He has exhibited no indication of any type of spiritual journey in which he sought to research Christianity. Given that I have found see below) that the applicant had no prior interest in mysticism, it follows that mysticism could not be considered part of any spiritual ‘journey’.
Despite having Christian Armenia to Iran’s north that was a short flight away and where a visa could be obtained on arrival he never travelled there. I do not accept that he wanted to save his holidays as he could have gone on a weekend or combined them with a public holiday to make a long weekend. He also never sought out any Christian churches, pastors or priests during his time in [Country 1], nor did he show any interest in Christianity while in Australia in 2014. He claimed that he went to the church ‘next to [Location 1]’ and spoke to some people, but even if I accept that he did this (which I don’t) he made no effort to speak to any religious person.
The fact that he made a claim to fear harm based on a Christian belief that only developed after his negative assessment by DIBP is I believe, indicative of a tactical desire to broaden his refugee claim rather than any indication of a genuine religious conversion.
I have taken into account letters of support offered by [Mr E] from [Church 1] [Suburb 3] (folio 32) and from [a reverend] (folio 160), the baptismal certificates for the applicants and a statutory declaration from the second-named applicant (folio 146) but lend them little weight. In the case of the church members and the baptismal certificates I am sure they have been given in good faith, but they only refer to the time they met the applicants.
The Tribunal is required to examine their entire actions in determining the genuineness of their claims and I have already indicated the absence of prior interest in the faith and the convenient timing of his interest that began after his visa was refused. Likewise the daughter’s interest (she had made no separate claim of her own) can only be corroborated by the two church members from the time they met her and is not of itself indicative of a genuine interest in Christianity. She and her father were both baptised after her father’s negative decision was advised to him.
Because I do not accept that they have genuinely converted I do not accept that they have told anyone in Iran that they are now Christian, that the Iranian authorities would perceive them to be Christian or that they would feel the need to practice, let alone proselytise Christianity in Iran.
Political Activity
I do not accept that the applicant was a political protestor in Moussavi’s group, that he took part in eight to 10 protests over three years, was detained once and had his card taken and had to sign an undertaking or was beaten while protesting. All of this relies entirely on his oral evidence which I have already found lacking credibility with regards to his Christian conversion.
I do not accept that he was active on social media and put up many comments at the time. He was asked to provide evidence of his activities on [social media] post-hearing but I am unable to lend any weight to what he provided (Folios 47-158). There were a few untranslated [social media] posts with no indication that he had written anything himself. There was one entry that showed he liked a post from [details deleted] from 2013 that appeared to show a photo of Mir-Hossein Moussavi. He has made no comment himself, more than 6000 others had liked it and there is no indication of when he ‘liked’ the post.
It is reasonable to believe that if he was politically active and a supporter of Mir Hossein Moussavi, he would have been active on social media, particularly regarding his support for Moussavi who has been under house arrest since 2011.
Mysticism
I do not accept that the applicant was involved with Irfan mysticism, attended a demonstration outside Evin prison in support of Ali Taheri and came to the attention of the security authorities at work as a result. Not only does it rely on his oral testimony which I have found lacks credibility, there are several aspects of his claim that are implausible or inconsistent.
The way in which people allegedly found out about his belief in mysticism appears implausible. Although he claimed that there were security and spies in the office and that the government saw mysticism as a threat to the regime, he talked about it openly at work. I do not accept that it was normal to talk about such things, given he had also noted that the government was opposed to it and that work security had spies.
It also appears inconsistent that if the applicant was security conscious (he noted that his meetings with his mysticism circle didn’t come to the attention of the authorities ‘because they were very careful’), he would then attend a very public demonstration in support of a mysticism leader outside the front of Evin prison.
The timing is also very coincidental. He returned from Australia, two months later he asked for a certificate of service and then a month later he allegedly attended a demonstration outside Evin prison when he hadn’t ever done this previously. I do not accept that he got the certificate as he needed to go guarantor for his sister-in-law, given the certificate he provided said it was for a friend.
I also do not accept that he was demoted given that he provided a letter that described him as a [Occupation 3] and that he received an annual salary increase. Neither of these would indicate that he had been punished in any way. I do not accept that the translation was incorrect, or that it took a few months for the lower position to show up. He admitted that he couldn’t provide any evidence of this, and it didn’t explain why he would be given a salary increase if he was being punished.
Post-hearing he provided two documents (folios 239/243). The first from 2000 describes him as an [Occupation 3] on a salary of [amount] IR. The second, from 2014 describes him as a [deleted] with a salary of [amount]. The level of [deleted] is not described but from the salary (and associated allowances) he appears to be receiving much greater remuneration in 2014. There is no indication that he has been demoted to being [from] this document – indeed the opposite appears to be the case.
Other Issues
I do not accept that the applicant was sacked as an [Occupation 1] [details deleted]. It relies solely on his oral testimony which I have found lacks credibility.
I also do not accept that he opened a small shop [but] that the Basij destroyed his works, bashed him and charged him with promoting corruption. No evidence such as legal documents or photos of him in his shop were offered in support of such a claim and it relies entirely on his written testimony which I have found lacks credibility.
Post-hearing he claimed (folio 141) that he had been fired and his account frozen and that this had been advised to him by his siblings. No documentary evidence was provided and, given I have not accepted his claims relating to his political activism or interest in mysticism, it follows that I do not accept that he has been fired or his account frozen.
Failed Asylum Seeker
Although he made no direct claim on this basis, I have included it for completeness’ sake. To begin with I am not satisfied that the applicant will be involuntarily returned to Iran either now or in the reasonably foreseeable future. The Iranian Foreign Minister during his March 2016 visit to Australia stated that Iran would only accept failed asylum seekers from Australia who returned voluntarily.[2]
[2] >
Given that the Iranian government has indicated that it will not accept involuntary returnees, the only way that the applicant will return to Iran in the reasonably foreseeable future is as a voluntary returnee. If he does so I do not accept that the applicant will be harmed simply for being a failed asylum seeker. Country information indicates that the Iranian authorities pay little attention to failed asylum seekers on their return to Iran and have little interest in prosecuting them.[3]
[3] DFAT Country Information Report – Iran, 7 June 2019, p 49
As the applicant hasn’t raised any other claims to fear persecution and, having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any 5J reason either now or in the reasonably foreseeable future.
Complementary Protection

Although I have disregarded the applicant’s church attendance and baptism for the purposes of the applicant’s refugee claims, I have had regard to them in assessing his claims relating to s.36(2)(aa). I do not accept that the applicant has genuinely converted to Christianity, has or would seek to practise or promote Christianity in Iran, or that the applicant will be imputed with being a Christian and/or apostate through his church attendance, religious education and activities or baptism because I am not satisfied that anyone would have found out about it.
I also do not accept that he has or will come to the attention of the authorities for being interested in mysticism, having taken part in anti-government demonstrations, or for supporting Ali Taheri.
I do not accept that the applicant would be prosecuted as a voluntary returnee or for seeking asylum. Because of these reasons I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Rodger Shanahan
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.
..
36Protection 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.
…

[2019] AATA 6015

15 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction