1618555 (Refugee)

1618555 (Refugee) [2019] AATA 6680 (25 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1618555
COUNTRY OF REFERENCE:                   Iran
MEMBER:Rodger Shanahan
DATE:25 September 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 25 September 2019 at 10:56am

CATCHWORDS
REFUGEE – protection visa – Iran – religion – Christianity – credibility concerns – reasons for rejecting Islam – performed umrah – family’s religious background – Shi’a – Ahl e-Haqq – journey of conversion – timing of increased religious participation – social media profile – sole purpose of strengthening refugee claim – non-genuine convert – failed asylum seeker – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 October 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 11 May 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.54, 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
His family came from aAllioahi/ Ahl e Hagh background in Karmanshah province. They later moved to Karaj and he entered university in [year]. He went well at university and was offered to go to Mecca on pilgrimage. He went there to find what real Islam was about as he was in limbo about the right religion at the time.
During his 10 days there he saw nothing but aggression and ignorance. This showed him the real truth behind Islam and made him feel more confident that it wasn’t a religion for him. He believed that it wasn’t a religion to find a way to salvation and prosperity. When he returned to Iran he decided never to talk about Islam again as it would be difficult for everybody if he did.
His sister married a relative in Australia and moved here in 2010. He received an offer to study [Discipline 1] at [Institute 1]. He came here to study but the culture shock and his English level made things difficult and he had to go through therapies for depression and anxiety. His sister introduced him to some of her friends and he then began to meet some Iranian Christian converts who treated him very nicely.
After three weeks they invited him to go to their church at [Suburb 1 in] June 2014. He was welcomed with open arms. The Iranian pastor there gave him a Farsi bible. He was enthused after going to church for almost 10 months and being in contact with church members. He attended bible study classes and prayer nights. His pastor enrolled him in [a] Christian correspondence course which was postponed after a few months.
His pastor enrolled him in [a] theological College for a preliminary theology course from February 2015. The more he learnt about this the more he fell in love with Christianity. He wants to spread the word and his sister has now joined him at church on Sundays and they are hoping to get her husband to come too. He has also begun working as an assistant to the pastor.
He fears returning to Iran at the end of his studies. Other Iranians at the church warned him that he might not be able to return to Iran if he was baptised so he didn’t take that step. The church also helped him with his university and assignments. He was told that if he applied for protection he might not be able to see his family again so he invited his family to see them for the last time then apply for a protection visa. He has told his family and they have accepted his decision.
AAT Hearing
A very large pre-hearing submission was received just prior to the hearing and its contents have been referred to where appropriate. The applicant was asked about the witnesses present and whether he wanted both of them to provide evidence and he said that he did. He claimed that if he returned to Iran he would be physically harmed or imprisoned by the Iranian government because he had converted to Christianity. He had no other claims.
Asked if he was a Faili Kurd, he claimed he was born in the Kurdish region but was currently considered to be Iranian. He was asked the question again and said he was a Faili Kurd. Asked if he feared serious harm on the basis of being a Faili Kurd he said that he did not. It was put to him that his adviser had made a claim in the submission that the applicant did fear serious harm because of this. The adviser was asked why he had made such a claim, and he said that it could be in the future but that the client was not going to forward that claim at the hearing. It was agreed that therefore no such claim existed.
The adviser was asked why he had also claimed that the applicant feared serious harm based on being an unmarried mother of two children and he claimed it was a typographical error. He was reminded that he should not just ‘cut and paste’ into large submissions which was why the tribunal had asked him to send a two page summary prior to the hearing.
He claimed that he grew up in an Islamic environment and this was the only way to contact God. As he grew questions arose him in his mind about the nature of Islam and its relationship with God. He came to believe that Islam would not satisfy the relationship he wanted with God – there were elements of Islam he didn’t believe.
Asked what these elements were, he claimed that only Arabic could be used to contact God and that women had inferior rights in Islam. He objected in particular to the nature of inheritance and that polygamy was allowed for men only. It was put to him that this didn’t apply in all Muslim-majority countries so this may just be a peculiarity of Islam within Iran. He was asked whether he discounted the religion entirely because of this or did he acknowledge that this was just the situation in Iran and other countries. He said that there was also less freedom in women’s clothing in Islam. It was put to him that it was an interpretive religion and women in the West had the inheritance decided by family courts and dressed as they wished. He claimed that the only experience he had of Islam was that in Iran.
He was a practising Muslim in Iran because it was required as part of his education. Asked if he observed practices personally by going to the mosque, fasting and listening to the Friday sermon. He said that he did because everyone was doing the same thing. He went to mosque on Friday (but not every Friday) – he thought he could establish a contact with God but he couldn’t do it this way. His parents weren’t devout but were Muslim. His paternal relatives encouraged his religiosity.
His father’s side were Shi’a but his mother’s side were from Ahl e-Haqq (similar to Islam but with their own leaders). His father practised the religious precepts of Shi’a Islam but not completely. He went to mosque a few times a year with his father on special religious occasions and the applicant would sometimes go on his own. He was asked to confirm that his parents were Shi’a Muslims and he said they were formally recognised as Shi’a but they were also influenced by Ahl e-Haqq.
He said both his parents were normally Ahl e-Haqq but their birth certificates recorded them as Shi’a. This could be because of the revolution and many Ahl e-Haqq members declared themselves as Shi’a so the birth certificate recorded them as such. It was put to him that the member has a PhD in Shi’ism and that one couldn’t be Ahl e-Haqq and consider themselves Shi’a as they may have a common start point but were essentially different faiths. He said that his father went to Shi’a mosques and his name was [name] which was very Shi’a and his family wanted him to be Shi’a.
The member didn’t understand how one could intellectually or ideologically be Shi’a but have Ahl e-Haqq loyalties. The Ahl e-Haqq didn’t believe in the shari’ah, the Mahdi, they believe there have been several incarnations of Ali – the Shi’a would believe this to be heretical. So it didn’t make sense that one could be Shia but with Ahl e-Haqq sympathies, that they had to move because his parents gathered in houses to follow Ahl e-Haqq. There was an inconsistency between how he described his family’s religion in his application and how he was describing it today.
He claimed that because of the Iranian revolution and the fear it engendered, many Ahl e-Haqq members changed their religion to Shi’ism. Also, members of his paternal family members’ faith in Ahl e-Haqq was different to that of his maternal side. His father’s family moved to Shi’ism and therefore encouraged him to Shi’ism. He grew up in a Shi’a religious environment. His parents never forced him to follow particular doctrine.
He decided that Islam was not for him when he was around [age]. Asked what he did about exploring other religions, he claimed that he studied a bit about Zoroastriansim but there were few resources with which to study other religions; few churches that it was not possible to enter. Therefore he could only do a rough exploration.
Asked if he thought about taking a bus to Armenia which was close and had visa on arrival for Iranians so he could explore Christianity here, he claimed that the thought never crossed his mind because of financial reasons or the possibility his parents wouldn’t allow him. It was put to him that he was an adult and they couldn’t have stopped him. He claimed that adulthood in Iranian society was different, and he was financially dependent on his family. He also claimed that his father needed to give him permission to travel and he didn’t think they would. Asked if he ever asked them to travel he said he hadn’t – they wouldn’t even let him travel to Iranian cities with his friend.
He agreed he went to [Country 1] and it was put to him that in his claim he had said that he went to [Country 1] for leisure. He said it was part oif a university trip and it was put to him that [Country 1] didn’t issue tourist visas and he had a religious pilgrimage (‘umrah) visa. He was asked why he described it as a leisure trip rather than a pilgrimage. He claimed he told the previous representative the reason he went in Farsi and didn’t know why he wrote leisure trip.
The university gave them permission to go on pilgrimage. It was put to him that he had said he had moved away from Islam from [age] yet still went on ‘umrah. He claimed that the cost of the trip was reasonable and he could see another country. It was also the cradle of Islam and if he wasn’t satisfied with Islam perhaps he could find the answer to his quest in Mecca. He didn’t find the answer to his quest as the different sects didn’t interact much, and he didn’t see the purpose of all the rites they had to undertake and whether he was doing it correctly or not.
When he returned to Iran he refrained from attending anything religious – asked if he encountered any difficulties in these four years, he claimed that at university and the workplace one was expected to attend religious services. He could be overt but not believe it internally. He didn’t attend Friday prayers but would attend certain religious occasions just to show his presence.
He was asked why he bothered given country information said Iran had one of the lowest mosque attendance rates in the world[1], it was a country of 90 million and the member’s own experiences in Iran indicated that people were largely left to their own devices in religious observance. He claimed that this was right but in order to secure his own social status in the future to apply for a government job he needed to keep up the pretence. He attended perhaps three times a year. When asked if he did this to advance his career, he claimed he did it visibly to protect his future career.
[1] Tezcur et al, ‘Religious Participation Amongst Muslims: Iranian Exceptionalism’, Critique: Critical Middle Eastern Studies, vol 15, no 3, Fall 2006
He was asked why he did this in all good conscious if he disliked the religion so much. It would be more spiritually true to forsake the practice of a religion he no longer believed in. The concern was that if he could fake his interest in Islam in Iran to advance his personal interests, it was possible he was faking an interest in Christianity in Australia to also advance his personal interests.
He claimed that he didn’t believe in Islam from his early 20s when he went to ‘umrah but it was a gradual process. In Iran he faked interest in order to have a secure life. He claimed that he went to church regularly in Australia and was studying the bible and wasn’t doing it to achieve certain things. In Iran as he was growing his desire to participate in Islamic occasions was decreasing but here he wanted to participate more in Christianity. These past few years his involvement in church has been increasing.
Asked why he came to Christianity in Australia given he had not had any interest in it prior to arriving, he claimed that even though he didn’t know much about Christianity in Iran he had heard about it, and Jesus was considered a prophet of love in Islam. In Australia he had freedom and he could explore his quest. Because of the cultural shock after arriving he felt a bit depressed and a friend introduced him to a church where he thought he could be helped. It was a friend of his sister, [Ms A] but he didn’t know her family name.
He went out with friends a few times on picnics and she suggested he come to church to alleviate his shock. [Ms A] was her first name but it wasn’t customary to ask her family name. Asked how [Ms A] became Christian, he said that she was a Christian refugee from Iran in [Country 2] and then came to Australia. It was put to him that many Iranians claimed to be Christians and the Tribunal needed to test his credibility rather than what was in her heart.
[Ms A] was a Christian, came to Australia and was going to church when he came to Australia. She took him to [a] church at [Suburb 2] and then he was taken by another Iranian to a church closer to him. He didn’t know how his sister met [Ms A] but thought it was because his niece and [Ms A]’s daughter met each other at pre-school at [Suburb 3]. Asked why she went to church in [Suburb 2] from [Suburb 3] he said that she wanted to look for an Iranian church in the area.
[Ms A] had a dream and her prayer was answered so she became a Christian through Jesus. He kept in random contact with her. It was put to him that for someone who brought him into the Christian fold he didn’t know much about her. He claimed it was his sister’s friend and for security reasons people didn’t always give their names.
He went to church after a month or two of being in Australia. He went to [Suburb 2] about late May and then went to [Church 1]. He went to [Suburb 2] for four or five weeks but the traveling was difficult. He ended up at [Suburb 1] because he found it through an Iranian church website. He has been talking to his sister about becoming Christian but her family situation was such that she couldn’t.
In the psychological assessment he had put forward he was asked whether he did any follow-up, he said that he did but the recommendation to reduce his workload helped him out. It was put to him that there was no mention of going to church in the report. He said that it focused on his study but he had mentioned the church although the person concentrated on his studies. It was put to him that it was strange the psychologist didn’t mention his churchgoing if it had been a coping mechanism and he had been attending church for three months.
Asked what other religions he studied, he claimed that he read about the God of Zoroastrianism – he did internet research only. He was asked if he was interested in God only, why he needed a formed religion rather than a one-on-one relationship with God. It raised questions why he left one formed religion to come to another which may have justified a protection claim, whereas just a belief in God wouldn’t. He claimed that he found the truth in the bible.
It was put to him that he had said he didn’t like Islam because of the restrictions on women, whereas in Christianity the intermediaries with God were nearly all male. Women appeared to have an inferior role in Christianity also. He claimed that equality didn’t mean doing the same job – they had different roles. They could lead bible studies. Asked if there were female bishops and the leadership, he said they were men but there were different roles for men and women. He claimed that he was talking about basic human rights in Islam, and the treatment of women was not the only reason he didn’t like Islam.

The witnesses were brought in to the room. [Reverend B] said he was well aware of the Iranian Christian ‘industry’ and said the applicant was self-evidently a Christian in his opinion. He believed the applicant couldn’t fake it and believed him to be a genuine Christian. He had appeared on behalf of one person previously and had written letters of support previously. It was put to him that in March 2017 he had written a statutory declaration in which he said the applicant had been raised in an extremist Muslim family and his father was a strict Muslim.
This didn’t appear to be the case and he was asked where he got this information from. He said he may have got the mother and father mixed up – it was put to him that this wouldn’t have been the case. He said he thought there was a difference between the parents but couldn’t recall where he got the information about the extremism claim.
He was also asked, given he claimed the applicant had been a cultural Muslim in Iran and was asked whether he knew he went to Friday prayers and went to ‘umrah. He claimed the applicant had reservations but he believed it was difficult in Iran to sit outside the flow. It was put to him that country information indicated there were low rates of mosque attendance. He claimed that a cultural Muslim was someone with significant reservations about the religion.
Asked why someone had to be a member of a church to have a relationship with God. He stated that someone who believed the new testament they had to be part of a Christian faith community. He knew the applicant had been to somewhere Christian prior to them but couldn’t recall where it was. There were about 20 Iranians in his congregation and quite a few of them had protection visa applications.
The applicant was asked why he didn’t change his name after his baptism, and he said that he heard that he needed permanent residency before he could change his name and continuing with his name may be good for evangelising.
The second witness then said that he judged whether a person was a true Christian by how Christian the life that he led was, how prayerful he was and how he lived scripture. Asked about the applicant’s charitable works the witness said that he was very active within the church community. The witness believed that the applicant was a true Christian from what he had seen of him the past five years.
The witness also claimed that the applicant would be harmed if he returned to Iran; he noted that he had never been to Iran and so this was second-hand. The applicant was also busy on social media and so would be known to authorities. The witness believed that the Iranian authorities would believe the applicant to be facilitating apostasy.
It was put to the applicant that he had spoken of Iranians being forcibly returned to Iran, and he was asked what he knew f Iranians being forcibly returned. He said that he didn’t know of any Iranians being forcibly returned. The adviser also said that he didn’t know but would try to find examples post-hearing. It was also put to him that FM Zarif said that Iranians were free to return. He claimed that the Iranian government said one thing but did another. He claimed that Christians who didn’t return to Islam would be sent to prison.
It was put to him that country information indicated that without a pre-existing political profile failed asylum claimants based on religion were not of interest to Iranian authorities.[2] He was again asked why he thought he would be forcibly returned. He claimed that perhaps he had written what he was worried about. The Iranian authorities were aware of his Christian social media activities. Asked how the applicant knew this, he claimed that he had [Social Media 1] and [Social Media 2] sites and a [Social Media 3] channel.
[2] DFAT Country Information Report – Iran, 7 June 2018, p 49.
It was put to him that [Social Media 3] was encrypted – he said it was open so they could join. He claimed the Iranians would know as they advertised on other platforms. He claimed that Fatah monitored social media outputs and kept records. Asked how many [Social Media 2] channels there were, he claimed that he knew how many Iranian Christian channels there were.
It was put to him that he must have known there would be problems when he set out to do this. He began this about 18-24 months ago. It was after he was refused a protection visa but he wouldn’t connect the two as he had grown in his faith. He was told about s 5J(6) and the convenient timing of appearing on social media only began after he had been refused a protection visa and he had sought deliberately to try to raise his profile.
He acknowledged it was a concern, but he claimed that he got a revelation after he had been refused. He didn’t start this straight away and he also worked more broadly in the church so it was not directed at raising his profile. He had learnt more from bible college. He was asked why he needed to be another Iranian evangelical channel. He was asked if he worked with the poor, the destitute and the like. He claimed he used to take food to refugee camps and once or twice a month he evangelised a permanently incapacitated woman. Asked if he did anything that didn’t involve evangelising – something that involved getting his hands dirty, with the homeless in the Cross or the like.
He claimed that if he had the time he would do this or if he got a request through the public. It was put to him that churches had places where he could help out. He appeared to be keen to have an evangelising profile on social media but not to get his hands dirty with helping the poor. He claimed he was studying full time and working in the church but he had the heart to help. He also hadn’t been given the chance. He claimed that in Protestant churches there was a suspicion that others may be looking at Christ in different ways and that they should do things that weren’t being done, such as social media or working for their community.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a student visa [in] May 2014. The Tribunal accepts that the applicant is an Iranian national and his application will be assessed as such.
The applicant is a [age] year old single Iranian man. He claimed that the Iranian government would target him because he had converted to Christianity. The adviser’s submission stated that he also claimed to fear serious harm based on a Faili Kurdish identity, and that he was targeted by the Basij as a result. The applicant was asked and stated that he was a Faili Kurd but didn’t claim to fear serious harm because of it and no claim was advanced on this basis as a result.
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.
Religious Conversion
While I accept that the applicant attends church, has been baptised and now attends Christian religious studies, I do not accept that this is genuine, but rather has been done tactically in an attempt to create a refugee profile. I acknowledge that it may be difficult to determine what is truly in one’s heart, however the Tribunal must have, and has had regard to the totality of the applicant’s claims and actions (or lack thereof) in coming to this finding.
To begin with there is concern with the truthfulness of his account regarding the move away from Islam in Iran and the ‘finding’ of Christianity. His reasons for rejecting Islam were somewhat shallow. He rejected it because of his belief that only Arabic could be used to contact God, even though this is not the case. Even a leading Salafist website (islamqa) says that supplications to God (du’a) can be made in one’s own language as God understands one’s intentions.[3]
[3] accessed 10 September 2019
He also mentioned that polygamy and inheritance laws were other reasons he disliked Islam although these are only allowed in some Muslim-majority countries. It was put to him that he was discounting the entirety of an interpretive religion like Islam when he had limited experience of it. While I accept that he had only experience of it in Iran (and during ‘umrah), he does not appear to have engaged intellectually with how Muslims practice their faith in Western countries like Australia where there circumstances are entirely different to that of Iran.
Although he claimed that he moved away from Islam when he was [age] and didn’t believe in Islam from his early 20s, he still performed ‘umrah while he was at university. His claim that he did so because the price was reasonable and he got to see another country would indicate that he didn’t object to Islam sufficiently to baulk at the prospect of going to Mecca – indeed he went voluntarily. His claim that he got to see another country (conservatively Muslim [Country 1]) is also strange given he didn’t make any effort to see a neighbouring country that was avowedly Christian (see below), along with the fact that ‘umrah is a religious pilgrimage with its attendant religious obligations and not a site-seeing tour.
He also claimed to have ‘faked’ an interest in Islam by attending religious observances in order to have a secure life. It appears inconsistent that, if he was so ill-disposed to Islam then he would still be willing to visibly attend Shi’a religious commemorations in order to give himself future career options within government. The action appears self-serving at best, and not indicative of a strong theological rejection of Islam, particularly given he wanted to retain options to work for the government of the Islamic Republic of Iran, an avowedly theocratic state.
His exploration of other religions also appeared to be virtually non-existent. He only said he did a ‘rough exploration’ and studied a bit about Zoroastrianism. He never did anything that would indicate any real effort to explore Christianity such as going to neighbouring Armenia, a Christian country that hundreds of thousands of Iranians visit annually. I do not accept that he couldn’t have done it as he needed his father’s permission. Given he was an adult he did not need such permission (nor did he provide evidence to support this claim) and he also admitted he hadn’t even asked them, which is not supportive of any real desire to travel to explore different faiths outside Iran.
His description of his parents’ religious faith is also inconsistent. In his protection visa application (folio 44) he described them ‘Aliolahi’ and that his mother and father relocated to Karaj to avoid persecution but they lived in fear of being identified as ‘a family of not believing Shiaism (sic) of Iranian government’ and that they couldn’t practice their religion and lived in isolation as a result.
Yet in his protection hearing he claimed that his father’s side were Shi’a but his mother’s was Ahl e-Haqq and that his father practised Shi’ism but not completely. Asked to clarify their status he claimed his parents were normally Ahl e-Haqq but nominally Shi’a on their birth certificates. He claimed that his father’s family moved to Shi’ism and encouraged him to grow up in a Shi’a environment, and that many Ahl e-Haqq changed to Shi’ism after the Iranian revolution. Yet his protection claim stated that they moved to Karaj (to avoid persecution and live in isolation) from 2001 which was well after the 1979 Iranian revolution and would indicate that either they remained Ahl e-Haqq or that they were always Shi’a and simply moved to Karaj.
His journey to Christianity in Australia appears vague at first but targeted. He does not appear to have done any substantial research into other religions – he simply claimed that he researched Zoroastrianism on the internet. He spoke to no other religious clerics or visited their houses of worship. He appears to have been disinterested in religion.
Yet he claimed that an Iranian friend of his sister’s in Australia by the name of [Ms A] introduced him to Christianity because he was depressed. He could not recall her family name, she didn’t appear as a witness nor has he kept contact with her. This in itself appears strange that someone would not maintain some form of contact with a person who had introduced him to his new faith – particularly given she was friends with his sister and easily contactable.
I accept that he went to church after arriving in Australia as he claimed, but am not satisfied that it was as a part of a spiritual journey of discovery. Having had no real interest in other religions prior to coming to Australia (he claimed that he undertook a ‘rough exploration’ of Zoroastrianism without elucidating further, he arrived [in] May 2014 and began attending church at [Suburb 2] and then [Church 1] for around a month before he began at [Suburb 1].
He had a meeting with the university counsellor regarding stress levels as a result of his new environment, yet there is no mention of his church attendance. Indeed, in a section headed ‘Changes’ (folio 136) there is no mention made of his changed spiritual circumstances, and later it recommends that he undertake social activities. If he had been involved with the churches and on the path of a spiritual journey to change his religion it is reasonable to believe that mention would have been made of it. I do not accept that the applicant told the counsellor but he didn’t write it down. Given the range of life changes the counsellor noted it is inconceivable that a counsellor would not have noted his attraction to a new religion.
I have taken into account the numerous and strong references from a range of secular and religious individuals in Australia but am unable to lend them much weight. Christian congregations are by their very nature welcoming places and, whilst obviously given in good faith those who wrote them have little knowledge of the applicant’s past, to which the Tribunal is obliged to pay attention in assessing his credibility and genuineness.
For example, [Reverend B] offered in one reference that he was well placed to comment on the applicant’s personal faith journey (Folio 73) yet stated in an earlier statutory declaration (folio 35) that the applicant’s father was a committed Muslim from an extremist religious family. This is not supported by the applicant’s own claims in his original protection visa outlined above. When questioned [Reverend B] was unable to say where he had received this information from. It is natural for people to think the best of those who seek to convert to Christianity, yet the reality is that not all who do, do so with pure intention in their hearts.
I also note that the applicant’s religious profile has increased markedly since the refusal of his protection visa on 19 October 2016. He received his rejection on 19 October 2016 and has enrolled in a [course] in Divinity [in] July 2018 and been appointed to [the] church lay ministry for his congregation in August 2018. Whilst the Tribunal acknowledges that the level of participation of the individual in the faith community is more significant than that displayed by many other applicants claiming religious conversion, I am required to look at the applicant’s overall claim.
I have already raised my concerns about the applicant misrepresenting his parents religious background and his own attachment to the religion of Islam. The coincidental timing of a raised interest and level of participation in the Christian faith after having his protection visa claim rejected raises further serious concerns about the true motivation of the applicant.
I do not accept that this increased activism was because he got a revelation after he was refused, but rather that he needed to raise his profile in order to make his case more compelling. This follows an earlier pattern of behaviour in Iran where he claimed that even though he was no longer functionally Muslim he went on ‘umrah because it was a chance to have a cheap trip to another country, and he attended religious observances in Iran because it would be good for his prospects of getting a government job.
I also do not accept that the applicant’s participation in what he claimed to be his online Christian activity for the past 18-24 months was done for any reason other than to build a social media profile in furtherance of his protection visa application. A simple internet search indicates that there are a large number of Farsi evangelical products so it appears conveniently timed that the applicant would begin to add to it after his visa was rejected.
As I advised the applicant during the hearing, s.5J(6) requires me to disregard his social media activity 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 and therefore he would not be imputed with a Christian religious identity on return to Iran. It also means that he would not conduct proselytising activities on return to Iran either.
I accept as plausible that the applicant is not religious in Iran, although I am also satisfied that he will have no problems because of this. Country information supports the finding that Iranian authorities do not normally interfere in the private religious lives of their citizens[4] and I note that the applicant did not attend mosque in Iran and suffered no serious harm because of it. His only reason for attending any religious commemoration was to show his face to improve his public sector employment opportunities.
Failed Asylum Seeker
[4] DFAT Country Advice IRN40257 dated 4 May 2012
Although he made no direct claim on this basis, his adviser did. The adviser claimed that he would be a forced returnee but was unable when asked and given time to provide any evidence to support the claim that he would be forced to return. 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.[5]
[5] >
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.[6] 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’[7]
[6] DFAT Country Information – Iran, 7 June 2018, p 49
[7] 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

I do not accept that the applicant has genuinely converted to Christianity or would seek to practise or promote Christianity in Iran, that the applicant will be imputed with being a Christian and/or apostate through his church attendance, religious education and social media 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.
Although I have disregarded the applicant’s religious social media activities 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). Country information indicates that, given the large numbers of Iranians who have left for economic reasons since the 1979 revolution, Iranian authorities have little interest in prosecuting returnees who have claimed Christian conversion or posted social media critical of the government, unless they have a pre-existing political profile[8], which the applicant does not.
[8] DFAT Country Information Report – Iran, 7 June 2018, p 49
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 6680

25 September 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Standing