1702176 (Refugee)

1702176 (Refugee) [2019] AATA 6611 (5 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1702176
COUNTRY OF REFERENCE:                   Iran
MEMBER:Rodger Shanahan
DATE:5 December 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 05 December 2019 at 3:26pm

CATCHWORDS
REFUGEE – protection visa – Iran – Religion – converted to Jehovah’s Witness – anonymous source claims fabrication of claim – fear of harm from family, government and public – baptised – differing levels of faith – daughter has asylum based on JW – studied secretly with daughter – has not explored any other faiths – provided evidence from social media – credibility issues – lack of interest from Iranian authorities regarding failed asylum seekers – no genuine interest in Christianity – no significant harm – fabricated claims – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 424AA, 438, 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 3 February 2017 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 21 April 2016.
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 and his wife had converted to Christianity and were now Jehovah’s Witnesses. He believed that he would be killed if he returned to Iran by the government because he had converted. Muslims will also feel offended and feel they have the right to harm him if they found out he had converted.
Two of his children are also Jehovah’s Witness. One converted in [Country 1] [number] years ago and had not returned to Iran. She started teaching the applicant about the bible. They didn’t convert until later but some people found out that they had converted and now their son (who was also a Jehovah’s Witness) had also had to leave Iran.
AAT Hearing
The applicants were asked about the type of evidence that his listed witnesses were going to present at hearing. The witnesses were asked whether they knew the applicants in Iran and neither did. They were sworn in, in the event they were needed during the hearing. The second-named applicant was asked whether she had claims of her own, separate to that of her husband.
The adviser interjected and said that she did, but he was advised that the second-named applicant must answer. She said that her statement remained the same and when asked if she relied solely on her husband’s claims she said that she did. They were asked if they were medically able to attend the hearing in light of a medical report and she said that she was.
They were also told about the presence of a s 438 certificate that included an anonymous source claiming the applicants were pretending to be Jehovah Witnesses (JW) in order to obtain a protection visa. They were told that it was unlikely the member would take this into account as part of their application. They were offered the chance to comment and they said it was the first they had heard of it.
They claimed that they had converted to Christianity and would be killed as apostates or harmed by the general public. The first-named applicant claimed that he would be arrested and possibly killed by the Iranian government. He had no other claims. The second-named applicant said that she had the same claim – her family members knew she had converted and they may harm her. They had this fear first as a result of information given to them by their son in [Country 2]. He had fled there after their family members became aware of their conversion – this was [date] March 2016. They had no fear prior to this.
In 2006 he went to [Country 1] with his daughter and son-in-law and came to know about Christianity. Both were JW and had been so since around two years prior to this. They had gone to [Country 1] some time before that and found out about JW, converted and applied for protection in [Country 1] on this basis. Asked if he explored any other faiths when he was introduced to JW he said that he was only Muslim at the time. He became interested in knowing more about Christianity after his introduction to JW. It wasn’t his intention to become Christian, only to see his daughter. He returned to Iran and continued his [Business 1].
On subsequent trips to [Country 1] he noticed his daughter had good friends and dressed well so he went with them to their religious gatherings. This was 2006, 2008, 2011, 2014 and 2016. His interest in JW grew as he knew more and he compared it with Islam. In 2010 he came to Australia and he found a JW and studied JW with him. This person is [Nationality 1] and he knew the applicant’s daughter – his daughter recommended that he go meet him when he was coming to Australia. He participated in their religious gatherings in Australia and he was interested. He had a daughter in Australia but she wasn’t a JW. He also came to Australia in 2013 and participated in a JW gathering then – his interest deepened and he had a good feeling.
He returned to Australia in 2016 to visit the country. He had times that allowed him to travel in February, April and August because of the nature of [Business 1] activities. Asked when he no longer considered himself Muslim, he claimed that it was when he was baptised and the transformation of his life as a result. Asked if he had ‘left’ Islam at a particular time prior to his baptism, he said that in 2013 when in Australia he felt himself to be Christian. Asked when he considered himself to be no longer Muslim he felt it was the same time but only his wife and daughter knew this.
He spoke to the brother in Australia about baptism and the process was explained to him. He was baptised [in] January 2017. The second-named applicant was not yet baptised but she goes to the gatherings. Asked what her faith status was currently, the second-named applicant claimed that she was certainly Christian. She was asked why she hadn’t been baptised in the two and a half years since her husband had been baptised and she claimed that she needed to go through certain stages and she had yet to complete them.
She was asked why there was such a difference between their levels of faith knowledge given they both arrived at the same time, and she claimed that her husband was more intelligent and completed the steps more quickly. Asked how people in Iran knew they had changed their religion, the first-named applicant said that when his son spoke to his cousin, the cousin became very upset as they are from a ‘sayyid’ family.
Asked what the circumstances of speaking to his cousin were, he claimed that the cousins were the same age and his son because of his Christian interest went to [Country 3] and told his cousin about his interest, as well as the activities of his parents and that they were studying with members of the JW. Asked what his son was doing in [Country 3], he said that via Skype he was in contact with brother [Mr A] and sister [Ms B] who were JW in [Country 3]. They had come to known [Mr A] and [Ms B] in [Country 1] and remained in Skype contact with them and their son also began conversing. This was about a year or two before they came to Australia. His son was interested about 2015.
Their son met [Mr A] in [Country 3] as [Mr A] was evangelising there. His son [Mr C] was in [Country 2] and had applied for protection there but they had not had word of the decision yet. he was also a baptised JW and was evangelising. His name was still [Mr C] – when it was put to him that this was strange, he claimed that his documents were still in the name [Mr C].
He was asked why [Mr C] suddenly told his cousin that they had been converting to Christianity. He claimed they grew up together and were close. The applicant was in Australia when [Mr C] told his cousin. Asked if they applied for protection after [Mr C] told his cousin, he said that it was only after [Mr C] said the situation had changed and [Mr C] had applied for protection in [Country 2]. [Mr C] told them that they couldn’t return to Iran as all their bridges had been burnt.
Asked if their son had put up [Social Media 1] page he said that he did and the applicant was asked to bring his son’s [Social Media 1] on his mobile phone. He said he wasn’t comfortable using his own phone but had given photocopies. The member asked for the actual site but the second-named applicant said they didn’t have [Social Media 1] accounts.
It was put to them that the timing of his son allegedly telling his cousin that they were interested in JW was strange. They had been to Australia on several occasions and their son had been interested in JW allegedly since 2014 or 2015 and yet he chose the time they were in Australia to tell his cousin and put something on [Social Media 1] page that then meant they applied for protection in Australia. It was strange that if they had been so close during their lives he would wait for several years to tell the cousin about his interest in JW and his travel to [Country 3] and that the timing would be so coincidental that his parents were in Australia at that precise moment. The timing of the alleged event appeared to be suspicious.
He claimed that he didn’t really know what to say as their son had received and felt the truth and wanted to share his happiness with his cousin but he couldn’t comment on the timing. It was put to him that he had arrived in Australia [in] January 2016, returned to Iran [in] February 2016, came back to Australia [in] February 2016 and his son posted some JW information[in] March 2016, a little over a week and a half after the applicant had re-entered Australia. The timing was extraordinarily coincidental in allowing them to submit a protection visa application while in Australia.
He claimed that what he had said was the truth and he wanted to share the joy with his cousin. The second-named applicant said that her son was in [Country 3] when they returned and they had to return to deal with some administrative issues to do with the [business]. Asked if their son had previously tried to come to Australia to study, he claimed that their son had as his visa wasn’t granted. He didn’t know why it had been refused but perhaps they thought he was not going to return.
He was advised about s 424AA and it was put to him that the Tribunal had examined their son’s [Social Media 1] page and could find none of the pictures that had been given to the Tribunal or the photocopied pages. The site just appeared to be of someone interested in music, rather than someone with an abiding love of being a JW. The site appeared to lack religious content at all. The concern was that the site no longer contained the pages the applicant had submitted or that their son had a private page, but it raised concerns that his social media footprint didn’t indicate someone with a love for his new-found religion.
The applicant said that he didn’t know as he didn’t have a [Social Media 1] account as he only used a phone. His daughter also told him about [Social Media 1] information. [Social Media 1] pages he had presented as evidence were given to them by their daughter. The first-named applicant had photos of their son speaking at JW gatherings.
It was put to the applicants that there didn’t seem to be much of a record of them exploring other faiths – there was a question as to why they needed to follow an organised religion at all. JW were an evangelising faith and their daughter had a successful protection visa because of it, and they had subsequently submitted their own. They didn’t appear to have undertaken a faith journey of looking at other faiths – they appear to have changed religions and then submitted a protection visa application.
He claimed that he agreed that one could believe in God without having a faith but if you believed in God you must follow his command. He had learnt compassion through Christianity and it had changed him. He had believed in God in Iran but no more and it took him about 10 years to become a Christian and he now realised the true God and who Jesus Christ was. In Iran he had work, a house and his business and all was okay. The second-named applicant added that throughout the 10 years they had travelled to Europe and Australia and they could have done it earlier of they had wanted to abuse the protection visa regime. They had been told about a false God in Islam.
The second-named applicant was asked to wait outside. It was put to the first-named applicant that between his first interest in Christianity in 2006 and leaving Iran in 2016 he received virtual education in Christianity while in Iran. He confirmed this and said from 2006-2013 he was just looking at in a curious way. He was asked to outline specifically what study and education he undertook with respect to Christianity in Iran from 2006-2013. He said that communications were not as good as now but from 2008 on he would speak to his daughter about it whenever he had time. He went to gatherings in [Country 1] and between 2008-2010 they would speak on the phone and she would quote verses to him in a happy way. This was about monthly or every two months because of the phone charges. It was mainly he who had the interest – asked if his wife was there or not and talked about it or not, he claimed that she was doing the same regime between 2008-2010.
After 2010 their daughter and son-in-law gave them instruction. Sometimes they used telephone but they used Skype later – he didn’t recall when they began using Skype. They received religious instruction whenever their daughter was free and able to contact them. He couldn’t remember how often this was but it was whenever she could call – monthly, every two-three months he couldn’t recall. It was put to him that this didn’t appear to be a regular series of religious instruction but rather just talking about religion whenever she would call. He said they were periods of instruction and it increased once they got skype (about 2015) to two-three times a month. It was just with their daughter and son-in-law.
Asked how they got the material to study (bible passages, study notes and the like) he claimed that when they contacted each other they could see and read the verses of the bible on the screen. They never used access websites to learn. It was only the JW site that they used but they couldn’t access the website or talk to other JW while in Iran. Asked if he used a VPN to access it, he claimed nobody dared doing this for the JW website because of the danger.
The second-named applicant was then brought back and asked if they undertook study into Christianity while in Iran. She said that they studied secretly with her daughter and son-in-law via Skype. During their previous trips to [Country 1] they had learnt a bit. They would use Skype irregularly whenever they didn’t have visitors or guests. Asked how regularly this was, she claimed that it was from about 2010 – she couldn’t remember how often they would undertake instruction. It may have been once a week or every two weeks but it wasn’t regular. She was asked if this was the same pattern from 2010 until they left Iran, she said that it was. It was all done in secret.
Prior to 2010 they would take instruction by going to JW gatherings in [Country 1] when they visited their daughter. When they were in Iran, they would talk about religion whenever their daughter got in touch with them. She couldn’t remember how regular the calls were because it was a long time ago. Their contact regarding JW issues during this time was with their daughter or with people they had met in gatherings.
It was put to the first-named applicant under s 424AA that the second-named applicant had said that their contact with their daughter had been relatively regular but he had said that from 2015 the frequency of their contact re JW teachings increased after 2015 and was done two to three times a month. This wasn’t expressed by his wife which may call into question the truthfulness of this claim. He said that she recalled what she thought.
Asked if he had a daughter in Iran he said they did. She was living an independent life and said that she had no problems as she didn’t really believe in Christianity. Asked if he was trying to convert her to Christianity, he said she showed no interest even when they went to [Country 1]. The second-named applicant said her husband’s progress was faster which was why he was baptised and she wasn’t.

The member then asked for the witness [Mr D] to attend and be sworn in – it was advised that he could not attend but was available over the phone. They were asked if they wished the Tribunal to call any of the witnesses outlined. There were 19 people listed and the Tribunal was not going to hear from all of them and he was asked who he wished to be called. He said that [another person] was the group leader and he may wish to say something. The adviser said that he had listed the potential witnesses in order of how long they had known the applicants/whether they knew them in Iran. The Tribunal then reinforced that it had raised concerns with parts of the claims and they needed to address these issues. If a witness was just going to say that they had attended a church or gathering the Tribunal accepted that they had attended places; it was more interested in the real reason as to why they had attended.
The member suggested that they first call the applicants’ son in [Country 2]. He was contacted by phone and sworn in. he agreed that he had [Social Media 1] page and was under his name – he had last posted something to it a few weeks ago. He was asked if he had a private setting because on his public [Social Media 1] page the last post was from February this year. He was asked if the photos that had been printed off and submitted had been from his private page.
Asked how people in Iran became aware of his Christian conversion, he claimed that when he went to [Country 3] to see Christianity with his own eyes. JW want to share their experiences with Christ so when he returned to Iran, he had a cousin to whom he is close so when he found Jesus he wanted to share it with his cousin. He told him that in [Country 3] he found the true God and the true religion but he responded by saying he was betraying his faith because he was a sayyid.
The son had begun studying Christianity about three and a half to four years ago. He studied via Skype with the group in [Country 3] that spoke Farsi. Asked why he had not shared his study of Jesus with his cousin earlier – why did he wait until March 2016 to share the joy with his cousin as he said JW are supposed to, even though he had been studying it since 2015. And his parents had been studying for much longer and had not shared the joy with anyone.
He claimed that he was studying but just doing this wasn’t sufficient to share with others. They were interested and studying but weren’t yet considered a JW to be able to share it with others. It was put to him that he wouldn’t have been either, and he claimed that in Iran he had been studying by internet with his sister but then went to [Country 3] and studied with a leader. When he returned to Iran he told himself that he wanted to live like a JW so he told his cousin.
He had studied with his sister via Skype and often [social media] but with the study group it was via the internet. When he studied with his sister he was sometimes alone and sometimes with his parents. Asked how regularly his parents studied with his sister he claimed that because of his work he wasn’t often with his parents – it was put to him that he surely asked his parents how regularly they were studying. He said that in a family he couldn’t really listen to see if they were conversing or studying. It was put to him that if they were studying he would surely have joined them as this was what JW were about. He said that if they were praying they would do it together.
It was put to him that the timing was extraordinarily coincidental regarding telling his cousin about his own JW conversion. Less than two weeks after his mother arrived back in Australia he had told his cousin he was now a JW and had posted a JW post on his private [Social Media 1] page. He asked why this was coincidental and it was put to him that it was quite apparent. He then said that JW don’t say anything until there is no reason to say otherwise. Even when he got to [Country 2] he hoped to return to Iran but it was not possible.
Asked if his claim for protection in [Country 2] had been decided yet, he claimed that his application had been approved and he was now living as a refugee in [Country 2]. Asked if he had been refused a visa for Australia previously, he claimed he had been refused a student visa. Asked what the reason for this was, he said that it was because he hadn’t done his military service yet and was still studying. He didn’t know if they believed he wouldn’t return, he was told that people were leaving Iran to avoid military service. He was asked to provide a copy of the visa refusal given to him by the Australian embassy. He said it was a few years ago and he had it on his email and hoped to be able to find it.
He claimed that in addition to [Social Media 1] material he could also get a testimonial letter from others involved in the group – he was told that he could if he wished but there would be no way the Tribunal could verify its antecedents so it would be of limited value. He asked if a testimonial letter in English from the central office would be better he was advised that the issue at hand was the genuineness of the conversion, not whether they had undertaken the actions.
The second-named applicant said that there were inconsistency in dates but their religion required them to tell the truth. It was put to her that all religions required adherents to tell the truth. They were asked what other witnesses they wished to call as the hearing had been going for quite some time already and the Tribunal didn’t seek character witnesses or those who simply said they had attended certain events. The first-named applicant said that JW proved themselves by their actions.
It was put to him that if JW needed to evangelise why their son had a private page with Christian entries and yet his public page had nothing regarding evangelising on it. They asked if they could bring in things from his public page and the member advised them that he had seen [Social Media 1] page. The adviser said that the public page [in] February had a photo of people in a Kingdom Hall. The member asked how they would know what the building was (it was an internal photo) and the adviser claimed that anyone who did research on JW would know what it was.
He was asked where the proselytising such as praising Jehovah and the like was. The adviser claimed that it wasn’t a requirement and it was advanced that if they were claiming they would tell their cousin about their joy in Jesus but not put it on a public [Social Media 1] page there appeared to be an inconsistency in this. They again asked about private [Social Media 1] entries – it was put to her that the Tribunal was trying to determine the genuineness of claims. Submitting images that only came from private rather than public pages didn’t fill the member with confidence that they were publicly embracing the faith, and there were also concerns about planning and timing. The adviser said that they had witnesses who were conversing with the applicants in Iran.
It was put to him that the applicants had not claimed at the hearing that they were communicating with people in [Country 3]. The second-named applicant claimed that since 2016 they had been studying with [Mr A] and [Ms B]. They had met them in [Country 1] and then went to Iran and studied with them. It was put to them that the member asked if they had studied with anyone else other than their daughter and they said they hadn’t. The first-named applicant had said he may not have mentioned it at hearing. It was put to him that the support letter from the elder [in a city] made no mention of such study either. He said that this was why they included the people ([Mr A] and [Ms B]) in case the member wanted to speak to them. He was told that they had nominated 19 people as witnesses, and that if they wanted to speak to only two they should have nominated this.
[Mr A] and [Ms B] were called and sworn in. [Mr A] said that he gave them bible discussions on a weekly basis along with their son. This included the lifestyle about honesty and respect to government. He had very little contact with them when they were in Iran – he met them in [Country 1] and when they were in Iran he would call them by phone. With their son he contacted by Skype. It was his wife who focused on study with the applicants. Asked how regularly he contacted the parents he said it was once in a while as they didn’t want to draw the attention of the government.
They contacted the applicants first in 2006. In Iran they had more contact (few times a month) but sometimes they had no contact with them but daily in [Country 1]. The contact became more intense after their son came to [Country 3] in 2016. They first contacted them in Iran by phone from 2015, but most of the contact was from their daughter. The contact varied because of the potential danger – asked what type of danger, he claimed that there was always a danger related to talking about bible-related issues. They spoke via [social media] and [Telecommunication 1] a couple of times a month or infrequently from 2015. They began this time because they had contact with the son and this spread to the family. They also contacted by Skype – asked why they had three options, he said this was normal. Iranians normally liked [Telecommunication 1] and they could send files. Skype audio was also safe.
Asked how they received material, he said that they could download and send via [Telecommunication 1]. They don’t do it by Skype as audio can’t be monitored but files may be able. They couldn’t remember if they sent files to the applicants. Because they had been to [Country 1] the applicants had been taught the bible and preaching – the other person knew what they were talking about because of this.
The applicants were asked if they were in contact via [social media] and [Telecommunication 1] with [Mr A] and [Ms B] and he said they had. He was asked why his daughter was holding up documents to the Skype screen when they could have had attachments to [Telecommunication 1] instead. They had also made no mention of talking via [social media] and [Telecommunication 1] with [Ms B]. He claimed his daughter was telling them the chapter and verse of the Gospel and showing them on the screen – he was asked why they couldn’t have had it sent to them as an attachment so they both could talk to it and he could delete it at the end. He claimed that most lessons were via Skype but perhaps she was sending material to their son and he was showing them. Asked if this was actually happening, he claimed he didn’t know the detail and only knew they talked by Skype.
After a break the adviser said that they wished to speak to the differences regarding the phone calls with the daughter. The differences between what the second-named applicant and her husband said was because the second-named applicant was at home and she had more chance to talk to her daughter. The adviser said that different people had different experiences of those conversations. Regarding [Mr A] and [Ms B], the first applicant said [Mr C] had been in contact with [Mr A] to learn more about their religion. The applicants had been friends with [Mr A] for a long time. The member said that the problem was that the first-named applicant had mentioned contact with [Mr A] only in terms of [Mr C], not that the applicants had been in contact. Yet [Mr A] said he had been in contact with the applicants from 2015. The adviser said they presented as JW so there was a risk there – the member said they had presented outside Iran as JW, not inside.
The adviser also claimed that people would not present as JW for over a decade simply to get asylum. He said they had been accepted as members of the congregation. They would have to hide their religion on return to Iran. They had had to take steps to avoid showing their religion. In Australia they had been taking steps to distributing Persian literature and could be considered p[proselytising. He was advised that country information indicated that the Iranians showed little interest in failed asylum seekers’ claims including religious conversion, unless they had a previously existing profile.
The adviser said that in Iran they had no opportunity to explore other faiths. It was put to him that they had been in other countries where freedom of religion was available and no steps had been taken to explore other religions – a daughter had become a JW and successfully applied for asylum and now the applicants had applied in Australia. The adviser claimed that naturally they too would become JW and their daughter had remained faithful. It was put to him that this was not necessarily natural.
The adviser claimed that [Brother D’s] evidence would be valuable and he was advised that the tribunal would accept a letter from him post-hearing, noting that he had provided two already. The adviser was asked to provide the applicants’ son’s letter regarding his refugee status in [Country 2] post-hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicants last arrived in Australia on a tourist visa together [in] January 2016, although the second-named applicant subsequently departed and returned [in] February 2016. They had been to Australia on several occasions previously. The Tribunal accepts that the applicants are Iranian nationals and their application will be assessed as such.
The applicants are [age] and [age] year old married Iranian couple. They claimed that the Iranian government, family member or general public would kill them for being apostates. They had no other claims.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I have taken into account a letter from a psychologist regarding the second-named applicant (folio 155) but lend it little weight. It states that it would be beneficial for her condition if the AAT was positively disposed to her claim, and that she has allegedly witnessed a hanging in Iran and has a daily flashback related to this traumatic incident. There is no evidence presented however, that she has ever sought or required mental health treatment in respect of this alleged event either overseas during her travels (including in Australia previously) or while in Iran. The applicant was also asked and stated that she was medically able to attend the hearing.
I was also presented with a list of 19 potential witnesses by the applicants’ adviser and when he was advised to outline them in priority order (as all 19 would obviously not be required) he broke them into groups A and B but still did not provide a priority order. I am satisfied that the most important witnesses were questioned, and the written letters from others were taken into account.
Post-hearing the adviser also provided alternate interpretations of a number of sections from the hearing. I have taken into account the alternative interpretations that the adviser submitted but lend them little weight given none of them materially affected my findings. I also note that the recording tape was left on during the natural justice break and this was rectified post-hearing with the relevant period erased prior to my listening to the tape of the hearing.
I found the applicant’s evidence regarding her 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 they fabricated their claims in order to be granted a protection visa.
Conversion to JW
I do not accept that the applicants have genuinely converted to the JW faith, but rather have done so solely in order to advance a protection claim. Genuineness of faith can be a difficult thing to prove or disprove. I have taken into account a range of statutory declarations and other correspondence from JW who affirm the genuineness of the applicants’ faith. In order to test and establish the veracity of their claims however, it is necessary for the Tribunal to look at the totality of their religious conversion claim. Issues such as consistency and plausibility of the claims play a significant role in coming up with the final finding, and it is these areas that those who have written letters of support based solely on the applicants’ activities in Australia and/or [Country 1] have not been exposed to.
The applicants both claimed that their belief in Islam was damaged by what they witnessed as a result of the Iranian revolution but they couldn’t discuss it openly. Despite this damaged relationship with Islam, there is no indication that the applicants made any attempt to explore other religions until more than three decades had passed. The first-named applicant claimed that this occurred during a visit to their daughter in [Country 1] in 2006. She had converted to JW and on this basis successfully applied for asylum in [Country 1].
The fact that there was a link in the applicants’ immediate family between JW conversion and a successful asylum application is not determinant in and of itself; but neither can it be ignored, particularly given the absence of any evidence of a faith ‘journey’ in which humanism, other religions or even other branches of Christianity are explored to any degree. The Tribunal acknowledges that there may be several paths that one can take to finding a new religion, however the first-named applicant said that he wanted to learn more about Christianity once he was introduced to JW in [Country 1] yet does not appear to have looked at any forms of Christianity other than JW.
I accept that the applicants attended JW gatherings when they subsequently visited their daughters in [Country 1] and Australia. I do not accept that they remotely undertook religious instruction given to them by their daughter and some [Nationality 1] JW members. The account of how they received religious instruction from their daughter lacked credibility and was inconsistent. The first-named applicant claimed that between 2008-10 they talked on the phone with their daughter monthly or every two months and she would quote bible verses to him. From 2010 their daughter and son-in-law gave them instruction every month or two-three months and it became more regular once they got Skype around 2015.
The first-named applicant claimed that the material they were studying was shown to them on the screen. The second-named applicant when asked claimed that they received instruction in the same manner from 2010 until they arrived in Australia and this was done once a week or every two weeks. The first-named applicant said their contact was only with their daughter and son-in-law, while the second-named applicant said they had contact with their daughter or with people they had met at gatherings.
There were also a range of inconsistencies regarding how they allegedly received instruction in JW teachings while in Iran. The witnesses from [Country 1] said via phone that they conversed via [social media], [Telecommunication 1] and Skype and that because the applicants had undertaken study in [Country 1] they understood scripture and this was given as a reason why they may not have needed to send attachments via the encrypted devices.
The applicants never made mention of the instruction via [social media] and [Telecommunication 1] nor did the letters of support from Australian JW members mention the [Nationality 1] couple providing them instruction remotely, while the applicants themselves never mentioned receiving instruction via [social media] or [Telecommunication 1]. The letter from [Nationality 1] person who was interviewed by the Tribunal as a witness also makes mention only of Skype and not of [social media] or [Telecommunication 1].

It also makes little sense why the applicants’ daughter would have had to hold up scripture passages to the screen on Skype for her parents to see if they had learnt it during their time in [Country 1] or if such documents could have been sent via encrypted means over [social media] and [Telecommunication 1] and then deleted later. The adviser claimed that they were unfamiliar with the names of applications however, their daughter or the JW community could have taught them how to use it via Skype or even in person during their visits to [Country 1] or Australia.
I also do not accept that the applicants’ son [Mr C] told his cousin that they had become Christian and/or converted and that [Social Media 1] posts attesting to this would also be known. To begin with I find the alleged claim that [Mr C] told his cousin to be extraordinarily coincidental timing. Despite claiming to have been so close to each other that they shared everything, [Mr C] never told his cousin until March 2016 about his belief in Jesus. This was despite him allegedly having been studying with the JW since 2015 and his parents for much longer.
And his admission to his cousin about his belief in Jesus came less than two weeks after the second-named applicant returned to Australia from Iran to join her husband - they applied for protection in April 2016. I also note that the son has previously (and unsuccessfully) applied for a student visa to come to Australia, which would indicate a previous desire to come to the country. This makes the unfortunate timing of his argument with his cousin and the revealing of the conversion to be even more propitious for the applicant’s son given that this has now formed the basis of a protection claim in [Country 2].
The applicants also provided a range of social media photos from 2016-19 from their son [Mr C] that they claimed were public displays of their conversion (folios 49-61 refer). The first-named applicant also said that following an argument with his cousin in which his son told his cousin they had converted to Christianity, his son then ‘thought what Jesus said to do was to make disciples and so he put on [Social Media 1] page that Christianity was the true religion’ (folio 82).
The Tribunal examined [Social Media 1] site of their son and there was none of the material that had been submitted to the Tribunal there. It was later established that the material presented to the Tribunal was on a private, not public site. If the son’s aim was to make disciples it is implausible that he would do so via a private [Social Media 1] page. I do not accept that the applicant was unaware the page was private as he was given it by his daughter – he submitted the evidence to the Tribunal in an effort to prove that they had a public religious profile as a consequence of the page (folio 81), so it is reasonable to expect him to confirm that it was publicly available before he submitted it to the Tribunal. Nor do I accept the post-hearing submission that the private setting was to avoid being on public social media and outed in Iran – my concern is that the Tribunal was never advised that the photos they provided were private but presented them as proof of their public ‘outing’.
I do not accept the adviser’s claim that it could be inferred from a photo on the public page that they had converted. The picture he referred to was the inside of what he claimed was a ‘kingdom hall’ that would be obvious to anyone who saw it. It was not obvious to the Tribunal, particularly the absence of Christian iconography that may have alerted a reader to its presence. Although the applicant has claimed that he is known within the Iranian and Afghan community in Australia because of his door-to-door preaching, even it is true I do not accept that the applicants would be imputed with having converted to JW, given country information indicates that Iranian authorities have little interest in prosecuting failed asylum seekers for converting to Christianity outside of Iran.[1]
Failed Asylum Seekers
[1] DFAT Country Information Report – Iran, dated 7 June 2018
Although he has made no claim regarding this, I will address the issue for completeness’ sake. To begin with I am not satisfied that the applicant will be involuntarily returned to Iran with or without a passport either now or in the reasonably foreseeable future. The Iranian Foreign Minister during his March 2016 visit to Australia stated that Iran would only accept failed asylum seekers from Australia who returned voluntarily.[2]
[2] >
Given that the Iranian government has indicated that it will not accept involuntary returnees, the only way that the applicant will return to Iran in the reasonably foreseeable future is as a voluntary returnee. I do not accept that the applicant will be harmed on voluntary return to Iran simply for being a failed asylum seeker. Country information indicates that Iranian authorities pay little attention to failed asylum seekers on return to Iran.[3]
[3] DFAT Country Information report – Iran, 7 June 2018
As the applicants haven’t raised any other claims to fear persecution, and having had regard to all the evidence, and the applicants’ claims both singularly and cumulatively, the Tribunal finds that there is not a real chance that the applicants will face persecution for 5J(6) reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicants have a genuine interest in Christianity or have genuinely converted to Christianity, or would seek to practise or promote Christianity in Iran, or that anyone in Iran is or was aware, or is likely to become aware that he has any interest in Christianity, 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 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.
…

[2019] AATA 6611

5 December 2019

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