1616039 (Refugee)

1616039 (Refugee) [2019] AATA 5966 (6 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1616039
COUNTRY OF REFERENCE:                  Iran
MEMBER:Rodger Shanahan
DATE:6 August 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 06 August 2019 at 8:06am

CATCHWORDS
REFUGEE – protection visa – Iran – religion – Christian – non-genuine Christian convert – sole purpose of strengthening refugee claim – political opinion – anti-government writings – dismissed by employer – failed asylum seeker – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91R
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 September 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 29 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 applicant claimed that he was sacked after six years working at [Employer 1] as a [Occupation 1]. He was sacked after they found out about his liberal views and that he didn’t believe in Islam or the Islamic establishment. This came about because of his interview with the religious and ideology department of the company. He later went and worked in [City 1].
If he returned to Iran his life would be in grave danger because he was now a baptised Christian. Having been sacked for having liberal views he would be considered a true apostate given his conversion. His family also knows about the conversion and aren’t happy
AAT Hearing
His application was gone through, including one for his family that was no longer in Australia. They were currently in [Country 1] and were still married. He was advised about the presence of a s 438 certificate and that the information covered by the certificate related to accusations made against them and that there was a dispute between a company and the applicants in which it was alleged that the applicants were using the company simply as a means to enter Australia and that the applicants were trying to obtain money from the company and that the applicant’s relationship was such that while they were officially married they weren’t married in a practical sense.
There was also an allegation that they were also extorting money from some people. If the Tribunal was to rely on any of this information in coming to a decision he would be advised. Asked if he had any comments about this information, he said that he could answer any questions asked about it. He was advised that if the information was used it would be highlighted first and he was asked if he had anything he wanted to say. He did not but then said he had no police record in Australia or any financial problem in his country as he had resolved this.
He claimed that if he returned to Iran he would be executed or sentenced to life in prison because he had converted to Christianity. He was also a poet and songwriter and he had written some things that were anti-government and on social media and he would be put in prison for this.
Regarding his conversion to Christianity, he claimed that he was born a Muslim but that he hadn’t practised since he had been at university. When he was a child he listened to the Passion of St Matthew by Bach. He studied about other religions and chatted with other students about religion. He became interested in Christianity and Zoroastrianism as a result. They discussed Islam and the problems therein and compared it with other religions such as Christianity.
In Iran they could not convert or speak about it. Asked who knew anything about Christianity at university to discuss it. He said there was a Christian minority with limited rights. Asked again who he spoke about Christianity at university with, he said they were his close friends. Asked again who was knowledgeable about the religion, he said they studied from secretly published books or e-books. He finished university ([qualification]) in 2002/3.
Asked what he did between this time and coming to Australia in terms of exploring Christianity, he worked as a [Occupation 1] in two different centres. He published [books] about [Subject 1] and [Subject 2] and in 2007 he was employed by [Employer 1] in southern Iran on a temporary contract. He worked there for six years [at a location] as a [Occupation 1].
The [location] is strategically important and is controlled by Sepah. Asked about his Christianity at this stage, he said that he used social media at his [office] and read books and used social media. It was put to him that it was risky looking at this on a Pasdaran-controlled [location]. He said the authorities found he was using e-book during this period and he was asked when he went for an interview to renew his contract. The work intelligence said that he needed to be a practising Muslim to be employed by the government and they said he didn’t attend mosque or Friday prayers. They said they had information he was researching Christianity and Buddhism.
Asked why he did this on a work computer and not at home, he claimed that he also did it at home. Asked agin, he said he didn’t think they would find his hidden files and wanted to do it. He was asked why he took such a big risk at what he claimed was a sensitive work site when he could have done it privately at home. He claimed he was confident in his ability and he didn’t show any external signs. During the interview he confessed he wasn’t a Muslim.
Asked again why he took this risk rather than at home or an internet café. He claimed that he had a good position and did his job well. He had disliked Islam for many years and had no reason not to show it. he hadn’t attended Friday prayers and they knew this. He was asked how they knew given Tehran is 12 million people and country information said that most Iranians didn’t attend. He claimed that in [Employer 1] Friday prayers was compulsory. If one didn’t attend it wasn’t life threatening but this was why he lost his job.
Asked if had a letter of cessation he said that he did and had provided it. he was sacked about 2013. He was asked how he was told, and he said a letter went to his direct boss but not told directly. Hs Team leader gave him the letter. Asked if he was individually advised that he was being dismissed, he claimed that at the end of the second interview, he was advised that if he didn’t repent and take a three month religious studies course he would be sacked. He had explained this previously.
Asked if he had a letter telling him his employment had ceased, he claimed the only letter he had obtained was the one he gave. It was put to him that he would surely have been told he was let go and what his financial arrangements would be. He said that his supervisor called him to a meeting and showed him the letter.
It was put to him that it was February 2013 and Iran was under sanctions, so it may have been that as he was on a short-term contract he may simply have been let go due to the economic circumstances. He said that he didn’t want to lie to keep his job. Asked if he had any country information that would support his claim that people were sacked for not attending Friday prayers given the Tribunal wasn’t aware of any. He said that this occurred in government jobs not private ones.
After he was sacked, he continued his studies and research into Christianity by reading, watching movies and thinking. It was important to spend time and analyse the issue. He lived a long time in an Islamic country. Asked if he travelled overseas, he said he travelled to [City 1] on many occasions (later stated as three or four). Asked if he visited any churches in [City 1], he claimed he didn’t as it was an Islamic country and this could have been a problem. The member has lived in [City 2] and [City 3] and knows there are Christian churches in [City 3] and [City 1] of several denominations and he was asked why it would be a problem visiting one if he was on a faith journey towards Christianity. It appeared strange that an educated man like him wouldn’t have availed himself of the opportunity.
He claimed he didn’t think it was necessary. It was put to him that he had been secretly researching since 2003 and yet here was an opportunit(ies) to speak to a priest or pastor and yet he never did. He said that he had attended church since he came to Australia but did not consider attending church all the time was necessarily a Christian. He was asked how he knew if he had not taken the opportunity to speak to someone schooled in the faith.
He said he was baptised in 2015 in [Australian City 4] when he felt he was ready. In his heart he had an interest and he talked to people in [City 1] about Christianity but never went into a church. It was put to him that the Tribunal couldn’t discern what was in his heart. The Tribunal therefore needed to rely on his actions to form an opinion regarding the genuineness of his faith. So not attending church in [City 1] was strange.
He was asked if he had ever gone to Armenia while he was in Iran given it was a Christian country, many Iranians went there on holidays and it was only 90 minutes by plane with a visa on arrival for Iranians. He claimed he also studied Zoroastrianism and Buddhism. The main thing was that he didn’t want to be a Muslim. He was asked to answer the question and said he hadn’t gone as he didn’t think it was necessary. Asked if he had travelled anywhere else he claimed that he went to [Country 1].
Asked if he visited any churches or interacted with any Christian faith leaders there given the large [Country 1] population, he claimed that they were in [City 5] and it was mainly Muslim. Asked how many churches were there, he claimed there were many. Asked why he didn’t go to any he said that he didn’t see the need as he was still studying different denominations.
In Australia he believed that the Anglican church is more open-minded and suitable to his minds. He began going to church later in 2015, having arrived in December 2013. He was baptised in May 2015 and put in a protection visa application towards the end of 2015. It was put to him that he applied in June 2015, a month after he was baptised.
He attends [Church 1] nearly every Sunday. He had sent a letter from the church to the Tribunal. Asked what charitable works he did as an active Christian or if he just attended church, he claimed that in the past he had attended courses. He was asked again what charitable works he did, and he claimed that he worked in [a charity] store for many months. He said his main practice was attending the church but would sometimes help out.
Asked what occurred in Easter from Holy Thursday to Easter Monday. He said Easter was the resurrection of Jesus – he was asked again what happened each day. He said Jesus was crucified on Good Friday and then rose on Easter Sunday. Asked what happened on Holy Thursday he said he couldn’t remember. It was put to him that he had allegedly been researching the faith for 10 years and this was the central part of Christianity. He said the principle and belief was important and he was still learning.
He was told about s 91R(3) and it was put to him that he had claimed to have been interested in Christianity since 2003 but had never shown interest in going to Armenia to explore Christianity, never visited ay Christian religious place of worship or spoke to any faith leader in either [City 1] or [Country 1] even though he had the opportunity to do so. Yet he arrived in Australia in December 2013, attended church from 2015, was baptised in June and applied for protection in June. The Tribunal had a fear that he had no genuine interest in Christianity and he had simply been attending to establish a profile to support a protection visa application.
He claimed that it may seem like this but being a Christian was a relative matter and we can’t measure the faithfulness of someone by documents. He was baptised a Christian and considering his background in Iran and his conversion he couldn’t return to his country. He loved Christianity because of the message it contained. He saw open-minded Christians in Australia and as an educated person he made a personal decision. He still had many unanswered questions regarding Christianity but accepted the core concept.
Asked whether his poetry and song writing claim had been mentioned previously he said that it hadn’t but he had been doing these things for a long time but wasn’t sure it was relevant. Asked if they were anti-government he said they were political in nature and to some extent were anti-government. Asked if they had come to the attention of the government, he claimed it was a fact that writers, poets and bloggers were persecuted and put in jail. It was put to him that in a country of 85 million it was high profile activists, and was asked what his profile was. He said that he wasn’t really high profile and showed the Tribunal [the] books he had written.
They were published in [Year 1/2] and in [Year 3]. Asked if he had any trouble because of these he said he hadn’t but it was important how he was viewed in the country. It was put to him that many books were published in Farsi every year, he had travelled many times overseas and one book was 17 and the other nine years. His passport was renewed in 2010 and was asked what the problem was with writing [books] about ‘[Subject 1]’.
He had also had a [another] book published about [specified topic] in [Year 4]. It was about [specified topic] in general but not his country. He said that it wasn’t relevant but showed ho w easy it was to find his history. His books had been stopped publishing because of his profile. He was asked how he could prove that the decision was simply not a commercial decision that they weren’t selling so they didn’t keep on publishing them. He claimed these decisions were made on the person’s background.
It was put to him that the books were non-controversial and was asked whether he had an anti-government social media profile - he claimed that he uploaded things on his pages and had provided the links to the Tribunal previously. Since he had been in Australia he had published his poetry. The social media links had been published when he was in Australian and when he was in [Country 1]. They were anti-government (his poems).
He was asked why he hadn’t previously mentioned any anti-government social media claim previously, he said he had sent them to his solicitor. Asked why he hadn’t mentioned this claim previously given he had been in Australia for 18 months before he applied for protection. He said that he didn’t think it might be necessary to do so.
Asked about a legal document he had submitted, he claimed that in his DIBP interview he was presented with a document saying he had a debt in Iran with a court order relating to it. It was put to him that he may not have wanted to return because of a bounced cheque. He claimed that this was resolved and now wasn’t wanted for this.
It was put to him that there were photos of someone in hospital and laid out. He said they believed it was his brother who was killed because of a relationship with a woman by her relatives. Asked if it had any relevance to the applicant, he claimed that DIBP asked about any family matters and he wanted to show how law worked in Iran. It was put to him that there was no way of knowing this was his brother and that he wasn’t in hospital because of a car accident. He agreed and said the Tribunal could put this aside f it wished.
His [social media] page was examined and it was put to him that here were a few posts from 2014/15 and 2018. It was put to him that it didn’t appear to be anti-government and he said that it was private. He was asked why anyone would know if it was private. He said that he also had a [clip] where he was saying anti-regime poetry. He had posted things from 2015-2018 and it was put to him that this was after he had submitted a protection claim. He said the truth was not that he had done this simply because he was seeking a protection visa. Poetry was his passion and he would continue to do it. It was put to him that if he wished the Tribunal to take social media evidence into account he would need to provide it post-hearing as a translated submission.

His wife left in 2018 and his oldest [child] was bullied and became depressed. They had financial problems and his wife was emotionally unwell. Their bridging visa limited their work. It was put to him that any of the information contained in the s 438 certificate was relevant to the claims and wouldn’t be used in the determination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal was advised by the applicants’ solicitor (folio 25) that the first, third and fourth-named applicants had left Australia and were now in [Country 1] and without a valid visa to return to Australia and they were unable to be granted a protection visa because they were no longer in the country. The Tribunal then sent a letter (folio 31) asking whether the first-named applicant would like to withdraw her application, have a decision made without a hearing or have the hearing by telephone. In her reply she said that she wished the Tribunal to ‘make an appropriate decision regarding our visa application’ (folio 34).
Because the first-named applicant and her two children are not in the country they are therefore ineligible for protection visas. The [second-named applicant] will hereafter be referred to as ‘the applicant’ and if it is necessary to refer to the applicants they will be named accordingly.
The applicant arrived in Australia on a s 457 visa in June 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 married Iranian. He claimed that the Iranian government would imprison or kill him because he had converted to Christianity, and imprison him because he had written anti-government poems and writings on social media. 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 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.
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. It is reasonable however, to believe that people who are interested in issues of faith would be pro-active in finding ut about the precepts of the religious faith(s) they have an interest in.
The applicant does not appear to have spent much time in finding out about such things even when he had the chance to do so. I do not accept that he discussed issues such as Christianity with his university friends, researched on the internet and read books and e-books. While people may talk about religion in general terms, discussing the precepts of a religious faith such as Christianity with other people who are not Christian does not appear to constitute a serious attempt to explore a religious faith.
For someone so keen on exploring the Christian faith, he did nothing practical prior to coming to Australia even though there were opportunities to do so. He could have travelled to nearby Armenia where hundreds of thousands of Iranians travel every year and receive a visa on arrival, and done some exploration of Christianity by talking to some priests or lay teachers. Yet he never did. He was at first evasive about answering why he hadn’t done this but then claimed that he was also studying Zoroastrianism and Buddhism. He had also said that he was studying Christianity at the time and the answer doesn’t explain why he didn’t take an easy opportunity to at least engage with Christianity with people who were schooled in it when he was able to do so. He did not have to stop studying other faiths.
And when he did travel to cities outside Iran such as [City 1] and [City 5] where there were Christian churches and he could have further explored Christianity, he was at first evasive saying that [City 5] was mainly Muslim but then admitted there were churches there. He admitted he made no attempt to engage with lay or qualified religious in order to explore Christianity. I do not accept that this was because he was still studying other denominations as it did not preclude him from exploring one of the faiths he claimed to be interested in with people qualified in that faith as part of his process of religious discernment.
Yet when he came to Australia his approach to the Christian faith was much more engaged, much more rapid and the timing coincidental with his protection visa claim. He arrived in June 2014 then, having never attended a church (with the exception of a Catholic church in [Australian City 4] in January 2015) he then attended [Church 2] in March 2015 (folio 140), was baptised there [in] May 2015 (folio 119) and applied for protection on 18 June 2015.
The absence of demonstrated attempt to explore Christianity with qualified pastors, priests or lay people even when he had the opportunity to do so outside Australia, and the speed with which he began attending church, was baptised and then applied for a protection visa once inside Australia is indicative of a targeted approach to a Christian identity which is motivated by a desire for a permanent visa in Australia rather than by any genuine attraction to the religious faith.
I have taken into account the letters of support from Anglican church officials but lend them little weight. I believe they have been written in genuine faith, however they are not in possession of the complete facts of the individual’s case. I also note that the one from [Church 1]’s (folio 69) is of a generally supportive nature but makes no mention of the existence, let alone the strength of the applicant’s religious faith. The one from [Church 2] (folio 59) is similarly lacking any statement about the strength of his faith – the letter also says that the reverend has known the applicant since September 2014 yet he claimed he began going there in March 2015 (folio 140)
Because of his lack of prior engagement with Christian individuals or institutions prior to coming to Australia and the rapid and targeted nature of his engagement with, and baptism in the Christian faith once here followed by a protection visa application I am satisfied that he has undertaken such actions for the sole purpose of establishing a refugee profile. As I advised the applicant during the hearing, s.91R(3) 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 never had any Christian religious literature on his work computer while working for [Employer 1] that was subsequently found by the authorities, he would not suffer future harm because of it. In addition, because I do not accept that he has been interested in Christianity while in Iran and he hasn’t claimed that he has told people that he is Christian or that he has been baptised I am satisfied that he would not be imputed with a Christian religious identity on return to Iran. Regardless, country information indicates that Iranian authorities have little interest in prosecuting returned failed asylum seekers on return to Iran for activities conducted outside Iran, including Christian conversion.[1]
[1] DFAT Country Information Report – Iran, 7 June 2018, p 49
I do accept that he may be a non-observant Muslim. Given the low rates of mosque attendance in Iran[2] though, I am not satisfied that he has or will come to the attention of Iranian authorities for being a non-observant Muslim.
Anti-Government Poetry/Books/Social media
[2] accessed 27 May 2019
I do not accept that the applicant would be considered to be anti-government based on his poetry, writings, songs or social media. I accept that he has written [books] on [Subject 1] that were published in Iran, but they were well before he left Iran, he provided no evidence that they were or would be considered anti-regime and he was able to leave and re-enter Iran and have his passport renewed without incident after he published them.
I also note that such a claim was not raised until after his initial protection visa application had bene rejected. It is reasonable to believe that if he had a well-founded fear then he would have raised this as part of his initial claim. I have taken into account what he has shown to the Tribunal as evidence of his anti-regime writings (folios 72-4).
The poetry he has provided via [social media] has all been written since his protection visa was rejected in September 2016. None of them do appear to be capable of being interpreted as being critical of the Iranian government. Nor does the applicant have any profile as an anti-regime activist that would cause the Iranian regime to have any concern that his writings would be influential in any way. I also note that country information indicates that heavy internet filtering in Iran means that most Iranians will never see social media posts critical of the government.[3]
Other Issues
[3] DFAT Report loc cit.
I do not accept that the applicant was fired from [Employer 1] because he was not religiously observant and because they had found his religious research on his work computer. I have already dealt with the claim regarding his alleged interest in Christianity. The Tribunal is not aware of any country information that members of [Employer 1] must be religiously observant, nor was any provided to support this claim.
It is also strange that the applicant was given no official letter advising him of his dismissal. It is entirely possible that he was let go from [Employer 1] in 2013. He was only on annual contracts and Iran was in the throes of a heavy sanctions regime, and it is quite possible that [Employer 1] when looking to downsize simply failed to renew annual contracts while keeping longer-term contracted staff.
I have taken into account his statutory declaration (folio 53) that those dismissed for religious or political reasons aren’t given a letter but lend it little weight. The supposedly confidential letter (folio 55) refers to his dismissal based on the ‘National Employment Regulations’ which would indicate that there are such regulations in existence that cover the circumstances of his dismissal. If there were, it is strange that the specific regulation is not referred to and that the applicant was not given a copy of the letter referring to the specific regulation. If there were none that apply to the circumstances of his dismissal, it is equally strange that they refer to such regulations. Either way, it raises sufficient concerns in my mind that the reasons he gave to the Tribunal for his dismissal are not true.
I also advised the applicant about the existence of a s 438 certificate and what issues it covered. None of the issues covered by the certificate were relevant to his claim and I did not use any of the information covered by the certificate in arriving at my finding.
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.
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 Iranian authorities pay little attention to failed asylum seekers on their return to Iran and have little interest in prosecuting them. a voluntary returnee is ‘..unlikely to attract much interest from authorities amongst the large regular movements of Iranians.’[4] and that Iranian officials do not attempt to prosecute a voluntary returnee.[5] This was reinforced by a February 2011 UK Upper Tribunal decision found that those (Iranians) ‘merely returning from Britain’ are not at real risk of mistreatment’ [6]
[4] DFAT Country Information – Iran, 21 April 2016, p 29
[5] Ibid p 28
[6] DFAT Country Information Report, Iran, 20 November 2013, p 25
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, or that he has or will come to the attention of the authorities for being a non-observant Muslim or not believing in any religion, or that he would be prosecuted even if he was.
I do not accept that the applicant would be considered to have written any antti-regime poetry, writings or songs, 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 (including the fact that the first, third and fourth-named applicants are not in the country), the Tribunal is not satisfied that any 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.
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[2019] AATA 5966

6 August 2019

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Immigration

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