1612155 (Refugee)

1612155 (Refugee) [2019] AATA 5880 (3 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1612155
COUNTRY OF REFERENCE:                   Iran
MEMBER:Rodger Shanahan
DATE:3 June 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 03 June 2019 at 2:13pm

CATCHWORDS
REFUGEE – protection visa – Iran – religion – Christian convert – Muslim – anti religion – Islam caused psychological issues – claim government would detain and kill him – baptised shortly before lodging application – mental health claims – credibility issues – insufficient evidence – not a genuine Christian convert – returned to Iran – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 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 19 July 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Iran, applied for the visa on 20 July 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 applicant claims that he was born into a strict Muslim family and also had to follow religious observances at school. He hated pretending to be Muslim and his disgust towards religion and Islam worsened. This feeling towards Islam and religion remained and even increased while at university. The pressure of this caused him to miss some semesters and he received mental health support to finish and they recommended he study in a new environment so he chose [Country 1] as a developing country with a suitable level of liberty, with lower living costs than elsewhere.
He moved to [City 1, Country 1]] in 2010 but he remained anti-religious and anti-Islam. In the early months of his stay he established a friendship with a Christian [in Country 1] named [Mr A], who invited him to church several times but he refused because he was still anti-religion. They got closer and he accepted the invitation. Once he went to church he found a serenity he had never felt before.
He then began to research and study Christianity and enthusiastically follow it. He didn’t tell his family but while in [Country 1] was a Christian in private. He then sought a majority Christian country to undertake his study after he finished in [Country 1] so he applied for positions in Australian universities. He returned to Iran for a short time in March 2014. During this time he was forced into an arranged marriage to the daughter of an extremist Muslim. He got his student visa and left which caused his parents to be angry with him.
He came to Australia in November 2014 and attended a church full of Iranians which he really enjoyed. He had not told his parents about his Christianity but they recently found out because he revealed it to them in a telephone call. His parents were angry and his father said he would stop supporting him financially. He was baptised [in] June 2015 at [Church 1] in [Suburb 1].
If he returned to Iran he could not practise his new faith, nor could he share the word of God. And because he had converted he would be in danger if he returned to Iran.
AAT Hearing
The applicant claimed that if he returned to Iran, he would be detained because he had converted to Christianity and would be obliged to proselytise. Because of Islamic law he could be killed for converting. This was his only claim to protection.
He came from a very religious family that was strict with its religious laws and he came from a small, very religious city ([in a location]). At school, university or work he had to pray and do all religious functions and fast. As a result he hated the religion, and then his family and the country.
He developed depression and had to go to a psychiatrist in Shiraz. With the counselling and problems he had, he wanted to leave Iran. He decided to go to [Country 1]. Asked if he was ever prescribed medication in Iran, he said he was. He had not been on any medication in Australia nor had he seen any mental health specialist in Australia. He had a new life and had no mental health issues here. Asked if he had any evidence of his treatment in Iran, he said that he had no evidence. He was seeing the psychiatrist once a month until just before he left Iran. He didn’t write any notes fr him to take to [Country 1]. Asked if he saw anyone in [Country 1], he said he saw people in the university clinic but finding about Christianity in [Country 1] changed his life. He had no evidence that he had seen anyone in [Country 1] for medical treatment but he had only seen someone for about two months.
Asked why he chose Muslim [Country 1] to study [a course] if religion (Islam) caused him psychological issues, rather than eastern Europe or Georgia or Armenia. He claimed he was only looking to leave Iran as soon as possible, and he knew [Country 1] had Muslims as well as a Christian population. He didn’t know the percentage but knew they had different religions. It was put to him that it was a majority Muslim country that discriminated against non-Muslims.
He said that he had various reasons for choosing [Country 1] – he wanted to go to a western country but he had restrictions as he needed a good language ability. He was asked about non-Muslim universities in cheaper countries such as Armenia, Georgia or Eastern Europe. He claimed that entering [Country 1] was easier and he wanted to use this as a bridge to another country. Asked why he couldn’t do this from another country he claimed that the company he used said they could get him an offer from [Country 1] quickly. He had a PhD offer from [Country 1] but came to Australia. Asked what the hurry was that necessitated him going to [Country 1], he claimed the environment was pressing him mentally and he wanted to leave there.
He also said the Islam in [Country 1] is different to that in Iran. It was put to him that [Country 1] still discriminated against non-Muslims even though it may be more socially relaxed. In [Country 1] he didn’t intend to seek out another religion but there was a Christian Chinese student who was extremely helpful to him. He was doing the same course and classes together. He was from [City 1] and was named [Mr A]. They studied together for around three years.
Over the three years they were dong assignments and projects together. He was popular with everyone but they were close. They were no longer in contact with each other because after he came to Australia they were in contact with each other by phone but he had lost his phone number and lost contact. Asked if they kept in contact via any of the social media means, he claimed he wasn’t on Facebook as the Chinese were on their own Chinese pages.
It was put to him that [Mr A] was very sociable and spoke English and so it was strange that he wouldn’t have an English-language social media account to keep in touch. He claimed this was right but he don’t know his reasons for not being on any English-language site. Asked if he had any evidence of contact with [Mr A], he claimed he didn’t as he had lost his phone number and had changed phones several times since being in Australia.
Asked if he had any email trail given that this would be a way to contact without phone numbers, and he claimed that they had university accounts but usually met in the library so had no need to email. He was asked about socially and he said that he had no evidence. Asked if [Mr A] had a private email address that the applicant had contacted him through, he claimed that they had no need for email at university. He was asked why, when he and [Mr A] parted ways that they would have shared contact details such as private email addresses, social media sites and the like so they could maintain contact, particularly given [Mr A] had introduced him to Christianity.
He claimed that it was perhaps his own fault for not thinking of getting [Mr A’s] email address when they left and he could try to track down his university email and show the Tribunal. It was put to him that he had had years to provide such evidence and had not done so.
[Mr A] was well-liked and after a few months he invited the applicant to come to [Church 2] in [City 1]. He wasn’t interested in religion after his experiences in Iran and this was why he refused at the beginning. [Mr A] attended this church. He told the applicant that he didn’t need to convert to Christianity and just come and sit in the church. He insisted and eventually the applicant decided to go as he had never been to a church before.
Once he went he really liked the environment and the people in the church invited him to return; they came to him personally and spoke to him and welcomed him. In his mind he was comparing the church and the mosque because he thought it was similar to Islam before he came to a church. But in church people were kind without expecting anything in return. This was the opposite of how religion was in Iran.
He became very interested in Christianity and the community as a result. After a while he began reading about Christianity and learning about Jesus. This was about seven months after he arrived (approximately early 2011 – corrected later to around may 2011). He left [Country 1] in March 2014. He agreed that he was involved with Christianity for about three years in [Country 1].
In [Country 1] he went to church once or twice a month as he had his own restrictions. He looked up Christianity on the internet and asked [Mr A] questions, but never attended bible classes in the time he was in [Country 1]. He was asked why he never undertook any formal education in Christianity in the three years and just looked up things on the internet and spoke to someone without qualifications in the faith.
He claimed his intention at the start was not to change his faith and things happened slowly, slowly. The Iranian community were attached to the Iranian embassy and could report back to them. Asked what he meant, he claimed the embassy had people who came into the community and reported on their activities. He knew this from what he heard in Iran, but had no evidence to support the claim. He was asked who they would know where he went as he would be one amongst many Iranians studying in [Country 1] and could come and go as he pleased.
He claimed that there were observant Iranians at university and they obviously had contact with the embassy. He was asked how he knew this and why they would automatically be reporting to the embassy – he was warned about making unsubstantiated assertions. It was put to him that he had claimed he was going slowly with Christianity yet he also claimed to attend church once or twice a month for three years without taking any classes which appeared to indicate a pace of observance rather than a slow attraction. He was asked what he got from the faith by sitting in the church for three years without learning about it.
He claimed that his faith wasn’t as strong as it was now. He was at peace when he entered church and this helped him psychologically. Besides this there were strict [Country 1] Muslims at university who wouldn’t have liked him changing his religion. Lots of them were in contact wioth Palestinian terrorist groups and sent them money. They told him this himself – one even had the scarf of Hizbullah. Asked if he meant Hizbullah in Lebanon, and he said maybe Hamas. He was asked why [Country 1] Sunni students were telling a Shi’a Iranian that they were sending money to terrorist groups in Palestine. He claimed that because he was from Iran [Country 1 people] thought he was Muslim too.
[Mr A] would usually accompany the applicant to the church. Asked if he had any photographic evidence of him attending the church (with or without [Mr A]), he claimed that he didn’t as he was trying to keep a low profile and never thought he would need proof.
It was put to him that the emails he sent to the church in [Country 1] in response to a request for information from the AAT appeared not to show that they knew him. He claimed he was always sitting at the back and it was several years ago so they may not have known him. It was put to him that the email he sent simply referred to [Mr A using his first name only], and not [the full name of Mr A]. If he had been going there for years and he gave them his family name and where he went to university they may have been able to track him down better.
It was strange that he gave them such scant information about his key link to the church – there was also no response evident from the church to his email. This lack of detail given by the applicant and the lack of response from the church raised concerns in the Tribunal’s mind about whether his account was true. He claimed that at the church everyone simply [used Mr A's first name] so he referred to him by that name in the email. It was put to him that surely he would have given them as much information as possible in order to allow them to identify him.
He claimed that perhaps it was because he was writing in English. He got no response from the church to his email. He claimed that it was a big church and people were coming and going and he sat up the back so perhaps they didn’t know him. It was put to him that he had said that people were coming up to him and introducing themselves to him and as the Iranian in their congregation for three years it would be reasonable that he would be known. He claimed that he went to another church as well and spoke to them by telephone but they didn’t remember him. He was asked what the main church looked like and he was able to describe it.
He arrived in Australia in November 2014. He had no problems during his eight months in Iran as he never mentioned his interest in Christianity. He tried to go to a church in Shiraz but they wouldn’t let him enter. He got a Persian bible which he brought to Australia. Asked if he mentioned this before he said he didn’t remember. He had the on his laptop. He said nothing to his family but they realised something had changed.
Once in Australia he searched for a Persian church and went to [Suburb 2] and went there for two or three months. The Iranians were there from 5-7 pm on Sundays. He wanted to go somewhere with Iranians interested in Christianity. Asked why he left the Farsi service [in Suburb 2], he claimed some friends said there was a church at [Suburb 1] that was bigger and woith more Iranians.
He was asked why he went to an Anglican church at [Suburb 2] after having gone to a Baptist church in [Country 1]. He said that it was important to be in the Iranian community. He was asked why, given he spoke English and he had been concerned about the Iranians reporting to the embassy in [Country 1] that he would want to be with Iranians in Australia given his language skills meant he could go to English-language services.
He claimed that the church in Australia had a different environment and they were all Christians there. Lots of Iranians in [Country 1] were very strict Muslims. [In Suburb 2] they were very helpful and tried to help him a lot; they found him a job. In Australia he was doing a [course] but did not finish it because his family found out about his conversion and they stopped his financial support.
He completed about one and a half terms and was asked to provide a copy of his academic transcript so the Tribunal could see his progress. He stopped studying around the time he applied for protection. He had been baptised [in] June 2015 in [Suburb 1] church but was done outside the city. He did not recall exactly when he applied but it wasn’t that close to the baptism. It was put to him that his application was signed five days before he was baptised. He claimed that the queue to be baptised was long.
Asked how long he got baptised after he went to the church, he claimed that he didn’t know the exact time but as soon as he entered the church he asked to be baptised. He did not go to the church any more because he was in [Suburb 3] and it was too far away. He saw there was a Baptist church in [Suburb 3] so decided he would go there instead. This was from around May 2016.
He was working [for Business 1]. His family found out about his conversion because he was talking about the food that he had and mentioned that he was in church when he had it. Even before that he knew he couldn’t keep it a secret as he would need to save them. He was asked why he was in no rush to be baptised in [Country 1] but yet he also claimed that he didn’t want to get baptised at [Church 3] because it would take too long. He was asked why there was an urgency to his desire to be baptised in Australia and he said that he had restrictions on being baptised and his faith wasn’t as strong as it grew slowly in [Country 1].

He was asked why there was such a speed as he had a student visa and had done no formal bible studies and [Church 3] was offering him time to learn his religion before being baptised. There was no apparent need to rush things. He claimed because he felt Christianity and knew it that baptism was something he needed to do. He felt freer and could do it. It was put to him that [Church 3] was offering to do this by teaching him and then seeing that he was ready for baptism and was truly Christian and understood the faith.
There was a concern that within six days of signing a protection visa application he was baptised and the need to be baptised appeared to be linked with a protection visa claim. He said this was a coincidence and he intended studying in Australia. He was told about s 424AA and it was put to him that [Pastor B] at [Church 1] had previously told the Tribunal that he had baptised over 900 Iranians and had only ever refused one.
The Tribunal had a concern that this church was well known as a place that would baptise Iranians without much effort, whereas [Church 3] was known as somewhere where the Anglican minister required more evidence of a commitment to Christianity before he baptised someone. The proximity between his protection visa application and his baptism raised concerns that he was selective and targeted in choosing a church that would baptise him with few questions and quickly in order to support his protection claim.
He claimed he had no thought at either church at how long it would take to be baptised. He didn’t change churches because of baptism. It was because there were other nationalities and a bigger church. He wasn’t aware of [Pastor B’s] reputation. He was also more interested in being in a Baptist church. He also went there for his needs to know his environment and to find work and the like from the Iranian community.
He was also told about s 5J(6) and it was put to him that, while it was difficult to measure what people truly felt, there was no evidence of anyone called [Mr A] nor of any conversation between them, that he attended any church in [Country 1] in his three years there or that he was known at the church, as well as choosing Muslim [Country 1] despite disliking Islam. The concern was that he intended to go to [Country 1] in order to get to Australia and migrate here. His attendance at churches in Australia and his baptism were perhaps done solely in order to achieve a favourable migration outcome rather than any genuine attraction to Christianity.
He claimed that [Country 1] was a place that a light for him to know about Christianity, rather than to become Christian. If he thought he would need to claim protection here, he would have gathered evidence there. Once he came to Australia he was able to know more about it and strengthen his faith. He underwent a lot of hardship because of his new faith – financial and work but he didn’t get it because of his bridging visa. He had no relationship with his family any longer – he had contact with them but they kept asking him to return. Financially his family in Iran were quite well off but because they didn’t accept his conversion they had stopped their help and he had to go to red Cross for help.
He intended to finish his studies in Australia and continue with his Christianity and return to a free Iran. He wanted to apply for a skilled visa and wouldn’t have had to go through the hardship he had experienced. He didn’t regret having become a Christian even though his parents have rejected him. The dates were just coincidental and he fully intended to continue his studies.
The witness was brought in and he said that he believed the applicant was a committed attendee and learnt more at bible classes. Asked if he knew of the applicant’s faith journey in [Country 1] or whether the claim was true, he claimed that he took the applicant at face value and used his own personal experience of people. He had nothing to do with [Pastor B] from [Church 1] and had not spoken to him about the applicant.
The applicant’s adviser asked the Tribunal to consider what would occur to the applicant if he returned to Iran as a genuine Christian. He was advised that there had been sufficient time to provide additional information, but if they provided such information before the finding was written, it would be taken into account.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a student visa [in] November 2014. The Tribunal accepts that the applicant is an Iranian national and his application will be assessed as such. He is a [age] year old single Iranian. He claimed that the Iranian government would detain and kill him because he had converted to Christianity. He had no other claims.
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 his claim that he suffered from depression in Iran and was seeing a psychiatrist in Shiraz, but lend it little weight. He provided no evidence of this nor of any visits to the hospital clinic he claimed to have undertaken in [Country 1]. He had not sought or received any mental health treatment in the four and a half years he had been in Australia.
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.
Conversion to Christianity
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 am satisfied that his lack of truth in describing an alleged prior interest in Christianity in [Country 1], and a deliberate and targeted approach to becoming baptised in Australia indicates that the applicant’s claim to have converted to Christianity was contrived.
To begin with I do not accept that he hated the Islamic faith and that adherence to its norms had caused him psychological issues in Iran. Despite claiming this, he then chose to undertake study in [Country 1] which is a majority Muslim country. I have taken into account his claim that [Country 1] offered an easier and quicker path to entry, but lend it little weight. There were other (albeit slower) options that he could have undertaken that would have meant that he went to a non-Muslim country and avoided the Iranians and strict [Country 1] Muslims that he claimed were at his university.
It lacks credibility that, if he detested the Islamic faith so much because it had caused him psychological issues, he would then voluntarily go to a Muslim-majority country to study at a campus with lots of Iranians and strict [Country 1] Muslims when he could have avoided this by waiting a little bit longer for an application to a non-Muslim country to be submitted and approved.
I do not accept that the applicant attended Baptist churches whilst studying in [Country 1] nor that he was assisted in his faith journey by someone called [Mr A]. He had provided no evidence of this faith journey as part of his application and, when he was asked to do so prior to his hearing he was only able to offer some emails that he had sent to [Church 2] asking them if they remembered him and requesting a letter of support from them (folio 34). Their email responses indicated that they required more information from him to identify him as having attended before they could write a letter (folio 35). No such letter of support from them was forthcoming.
He was unable to provide any photographic evidence of him at church (something [Church 2] also requested from him). He referenced attending with a Chinese-Malay named [first name of Mr A] but never included [the surname of Mr A] in the email. This struck the member as strange if the purpose of the email was to provide [Church 2] with as much information as possible to identify him.
It is also strange that he would attend church in [Country 1] twice a month for three years but never attempt to undertake any formal education in the Christian faith. Bible study classes were obviously on offer at the church as evidenced by the email exchange he provided. I do not accept that he was afraid of being reported to the Iranian embassy by the Iranian students. He made this assertion without evidence as to why they would do such a thing, nor how they would know about his attendance at bible study classes if he was able to allegedly attend church twice a month for three years without them knowing.
There is no evidence that someone called [Mr A] interacted with the applicant on any personal basis, let alone led him to develop an interest in Christianity. The only evidence he offered was some screen shots of what appeared to be administrative group emails (none of which feature the applicant’s email address) talking about university workshops and one about a BBQ (folios 85-91) and one screen shot (undated) allegedly sent in 2012 to an address ‘[email address]’ that asks [Mr A] how he is and advises that the applicant is working at [Business 1] (folio 94). There is no mention of religion at all.
I do not accept that the lack of mention of religion is because the applicant wanted to make sure that [Mr A] used the email address he was writing to. This relies on the applicant’s assertion, and as I have pointed out below in several cases the applicant has not shown himself to be a credible witness. I also note the complete lack of correspondence between the applicant and [Mr A], the English-speaking, sociable Baptist [Country 1]-Chinese who allegedly introduced the applicant to Christianity and was a close friend for three years lacks credibility.
I don’t accept that [Mr A] didn’t have an English-language social media account because Chinese used their won Chinese-language social media pages. This seems inconsistent with the fact that [Mr A] was fluent in and would write in English to the students in the emails contained in the folios provided by the applicant to the Tribunal. [Mr A] was also sociable and willing to introduce and explain Christianity to the applicant so it is reasonable to believe that he would want to be with the applicant as he continued his alleged faith journey. It also lacks credibility that the applicant, once he left [Country 1] would not have obtained [Mr A’s] private email address, or [Mr A] obtain the applicant’s so that they could continue to correspond.
The applicant’s actions once in Australia are also not indicative of someone seeking to explore or understand the new faith before committing to it. He began attending the Anglican church at [Suburb 2] because there were Iranians there and he wanted to go to a place where there were other Iranians. He then went to [Church 1] at [Suburb 1] where he was baptised.
The Tribunal is aware that that [Church 1] is well-known amongst the Iranian community as a place where the pastor will baptise them quickly without much by the way of verifying their level of genuine Christian faith, and that more than 900 Iranians had been baptised here. There also appears to be a degree of urgency in the applicant’s rush to faith once in Australia that was driven more by his desire to apply for a protection visa than by any commitment to a Christian faith.
Despite having spent three years allegedly going to church in [Country 1] but never seeking to be baptised, he was baptised seven months after coming to Australia. I do not accept that this was because he was taking things slowly in [Country 1] but his faith strengthened in Australia, as he didn’t provide any evidence of an extended period of instruction once he came to Australia, save for some short classes at [Church 1].
Despite claiming that his application for protection was not close to his baptism date, I note that he signed some of his protection visa application documents on 15 and 17 June 2015, he was baptised on 21 June 2015 and the application was received on 21 July 2015. This is indicative of a strong circumstantial link between the desire to be baptised and the submission of a protection visa, and reinforces the Tribunal’s concerns about the targeted and deliberate nature of his Christian conversion.
I have taken into account the letter of support provided by [Pastor B] from [Church 1] attesting to the applicant’s true Christian faith but I lend it little weight. [Pastor B] has accepted at face value the applicant’s claims of genuineness of faith which I have found to be fabricated. I have already noted the ease with which the pastor is willing to baptise Iranians at his church without doing any due diligence checks on their backgrounds, and the Tribunal has concerns that there may be a belief that joining this church and getting baptised is a means for establishing refugee claims for Iranian asylum seekers.
I have also taken into account the evidence given by [a Pastor] and the letter of support from [another person] (folio 84) and while I accept that both were genuine in their views, I lend them little weight. Both have taken at face value claims that the Tribunal has found to have been fabricated and their opinions naturally reflect this.
That having been said I accept that the applicant has attended the [Suburb 3] and [Church 1] Baptist churches in Australia, has been baptised at the latter, and attends bible classes. I find that the actions regarding this church attendance, attendance at religious education and activities, and baptism, have been done deliberately and with the sole purpose of improving his refugee claim.
As I advised the applicant during the hearing, s.5J(6) requires me to disregard this conduct in determining whether the claimant has a well-founded fear of persecution if I found that it was carried out for the sole purpose of strengthening his refugee claim.
Because I have found that the applicant is not a genuine Christian convert, it follows that he has not told his relatives or friends in Iran, would not proselytise, never downloaded a Farsi bible or tried to enter a church in Shiraz and therefore he would not be imputed with a Christian religious identity on return to Iran.
I also do not accept that the applicant had to finish his university studies after one and a half terms because his family stopped financially supporting him once they became aware of his conversion. I have already indicated that I don’t believe his family believes that he has genuinely converted, and he failed to produce the transcripts of his academic study in Australia post-hearing even though he was asked to do so.
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.[1]
[1] >
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.[2]
Other Issues
[2] DFAT Country Information Report – Iran, 7 June 2019, p 49
I do not accept that he comes from a strict religious family given this relies on his oral evidence, which I have found lacks credibility in circumstances listed above and on at least one occasion exhibited a significant inconsistency that I noted below. I do accept that he may be a non-observant Muslim. Given the low rates of mosque attendance in Iran[3] though, I am satisfied that neither he nor others have or will come to the attention of Iranian authorities for being a non-observant Muslim.
[3] accessed 27 May 2019
I also do not accept that the applicant married the daughter of his father’s friend who was an extremist Muslim or that this would cause him to fear serious harm on return to Iran. It was only mentioned in his visa application and never in his hearing, even though he was asked whether he had any other claims to make. There was also no mention of this claim in his adviser’s written submission.
The applicant provided no evidence that he had ever been married such as a marriage certificate or contract, and in his protection visa application he stated that he had never been married (folio 77), which is inconsistent with the claim he made in his statement.
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 Convention 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 a non-observant Muslim or not believing in any religion.
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 the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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.
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 5880

3 June 2019

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