1702305 (Refugee)

1702305 (Refugee) [2019] AATA 6784 (29 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1702305
COUNTRY OF REFERENCE:                   Iran
MEMBER:Rodger Shanahan
DATE:29 October 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 29 October 2019 at 12:24pm

CATCHWORDS
REFUGEE – protection visa – Iran – religion – dispute with family over aspects of Islam – conversion to Christianity – harassment by manager and authorities – credibility – inconsistent evidence – travel with family for Islamic observance – voluntary travel to home country – able to obtain new passports and leave country – church activity in Australia – baptism after protection visa refused – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 65, 424AA
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 1 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 6 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.84, 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 she was largely brought up by her mother after the death of her father when she was four. When she was nine she was made to wear the chador at school when they prayed and her mother started making her pray and didn’t allow her to play with her male cousins any more. She also did not like her religious studies while at school and the teachers told her mother who then made her go to prayers at night at the mosque.
A friend of hers was made to marry an older man and as a result her dislike of religion became even stronger, and she began refusing her mother’s demands that she pray. At university she made a friendship with [Ms A] who had a warm and open family and her father allowed the applicant to use his library which contained books like ’23 Years’ by Ali Dashti and ‘Rebirth’ by Shojaedddin Shafa that were critical of Islam. After reading these books she pushed Islam out of her mind and just believed in God.
She refused to wear the chador her mother demanded she wear to go to university and her mother kicked her out of the house but she refused to leave. Her mother had [medical] problems and to help her mother’s stress levels her [siblings] asked the applicant to leave the family house. She moved to [Ms A]’s house.
She then joined the [Employer] which gave her financial independence. She also joined the [employer]’s [recreational] group where she met her husband. When she told him about her attitude to religion he said that although he was from a religious family he was open-minded about all religions and had friends from different faiths. Her mother was convinced to allow them to have an Islamic marriage.
She met [her husband’s] friends one pair of whom were [Mr B] and [Ms C] (half-[Country 1]) who were Christians and ran a charity in Tehran. [Ms C] told her about Jesus and she realised how empty her life had been. She studied with [Ms C] and in 2013 she felt that she was now Christian but had to hide it from people because of the consequences. [Her husband] was happy for her and attended some Christian meetings with her.
[In] April 2013 she left her bible on the table at work and someone found it and gave it to her boss. She was questioned and said that a friend had given it to her and she thought her supervisor had believed her. Two weeks later her boss asked her whether she had changed her religion and why she had highlighted some passages in the bible.
Her boss did not report her to the authorities but began asking her to work longer hours and later to ask her for sexual favours which she denied. She thought the best way out was to resign which she did and then began tutoring again. Her boss continued to text her and she became stressed and saw a psychologist who said the best thing for her was to live away from Iran for a while. She applied to study in Australia and came here and was happy – she could pray and go to church without a problem. She also began bible study.
Her father-in-law died suddenly and they returned to Iran for the funeral. They attended the funeral services and while in Tehran they decided to sort out their financial arrangements for the next year so went to [Employer]. She met and talked to some of her former colleagues.
A few days later she received a call from someone who asked to see her without saying why. She initially refused but agreed after he called a second time. They met and he told her that he worked at the [employer] and everyone there knew the applicant had converted to Christianity and returned to Iran and he wanted to warn her. He said the [employer] had blocked her account and the intelligence services had questioned employees and got them to sign statements that the applicant had converted to Christianity. He said that she should leave Iran as soon as possible.
[Her husband] got their flights brought forward but before that someone from the [employer] called and asked her to come in and speak to the intelligence. She said she would come in two days’ time but then they decided to hide with a Christian friend until their flight in three days’ time. They exited the airport customs and immigration without problems.
The day they arrived back in Sydney the applicant’s [sibling] was angry and said three men forcibly entered her mother’s home looking for the applicant and when they couldn’t find her they questioned the mother but didn’t believe the applicant had returned to Australia. They searched the house and found some of the applicants’ old bible study notes. The intelligence services then began to investigate her [siblings] as well, while her mother was angry because of her daughter’s conversion.
Her mother had subsequently had a stroke and one of her [siblings] threatened her, saying that this was all her fault for converting, destroying the family’s reputation and hurting her mother. She is certain that the intelligence services have a file on her and have issued a warrant for her arrest. She feared both the intelligence services and her [siblings] if she returned to Iran.
AAT Hearing
The second-named applicant stated that he did not have a claim of his own but was advised that he could stay in the room and look after their child while the hearing was conducted. She was asked that she knew everything in protection visa application and that it was true and she agreed it was. She was asked about an untranslated document that had been given to the Tribunal by her, she said it was an email from a former work colleague asking whether she was Christian or not. She was advised that before the Tribunal could consider it, the document needed to be professionally translated first.
She claimed that if she returned to Iran she would be targeted by the security division of the [employer] because they knew she was now Christian and there was a file saying she was promoting Christianity in the [employer]. She could be killed for apostasy. Her [siblings] would also kill her for the same reason.
She had grown up in a religious family and throughout her time she had issues with her religion and left it. She no longer considered herself as being Muslim from after high school (about 19 or 20). She stopped the rituals of Islam from years before, when she started high school. She began to be more rebellious and to refuse to wear the chador and her family kicked her out when she was in her third year of university (she was 22 or 23). She then began working as [an Occupation 1] at [an employer] after she graduated, in 2003 or 2004 but she continued to challenge her relationship with God and began living independently and gaining financial independence. She then began [Occupation 2] in the [employer] from around 2007 and did rotations throughout the [employer].
She joined a [recreational] group through the [employer] and met her future husband through this group. She married [her husband] in 2011 and began knowing his friends, including a couple one of whom was called [Ms C] who was Christian. At this point the husband was asked to wait outside.
The applicant didn’t know [Ms C]’s family name but she was married to [Mr B]. [Mr B] was baptised into the Protestant church as a convert she believed. Asked if he lived in Iran she said she didn’t know but they had lived in [Country 1] but didn’t know if they lived in Iran or had gone back to [Country 1]. They knew them for about 18 months and lived in Iran at the time.
[Mr C] half Iranian – half [Country 1]. Her husband knew [Mr B] from the gym. She never asked or couldn’t recall [Ms C]’s family name. She believed they met in [Country 1] but didn’t know how they met. It was put to her that she had known [Ms C] for 18 months and she claimed that [Ms C] was only introducing her to the bible. She claimed that she didn’t ask many personal questions – she met them a few months after their marriage in 2011.
Asked if she had contact with her still, she said that she had no contact with her at all. It was put to her that this was strange with all the communications options open to her and given that [Ms C] had introduced her to Christianity and the applicant had now claimed to have converted to Christianity. She claimed that they weren’t that close and her husband wasn’t even that close to [Mr B].
Her husband was then called in. The applicant claimed that once [Ms C] spoke to her about Christianity she opened her heart and asked many questions of [Ms C], particularly about the Trinity. Asked about their meetings, she claimed that [Ms C] gave her a bible and she read it – she met [Ms C] once or twice a week and asked questions. After a while she began going to underground churches. [Mr B] gave her a number and told her to call a number of someone who would then guide them to a church near them. She began going there from early 2012, weekly or whenever she could make it.
In [April] 2013 she was about to go to the Easter ceremony she didn’t have enough time to go home before church so she brought her bible with her and somehow she left it in the [workplace] and some colleagues picked it up and gave it to her manager. Her manager spoke to her and asked her if she was Christian and threatened to write a report. He didn’t do this and gave her some friendly advice but subsequently began harassing her, friendly at first and then sexually harassing her by tapping her back and shoulder and then asked her to come and be with him.
She feared that he would report her and she spoke to [her husband] and she resigned from the [employer] in 2013. Her ex-manager still harassed her through texts and the like. She was frightened and emotionally vulnerable. They thought if he believed her outside the country he would stop his threats. She decided to start studying as a result. In 2014 they came to Australia to study [Subject].
She didn’t complete this course. She changed courses after two semesters and she has a semester and a half left. She had no money and couldn’t pay her fees. She did show she had accounts and rental incomes in Iran but they had been blocked since she left. The [employer] blocked her accounts and her family refused to pass on the rental income she received. She considered herself a Christian in Iran as she had affirmed her belief in Jesus with [Ms C].
Once she was in Australia she went to [Suburb 1] church 2-3 times and then the [Suburb 2] church. It was next to the church and was Baptist. She realised there was a closer Baptist church in [Suburb 3] so she went there. In late 2015 they rushed to Iran because of her father-in-law’s death. After two-three weeks she went to the [employer] to sort out her mortgage instalments.
She went to the main branch and saw former colleagues and spoke to them – two to three days later she was called by a friend from the [employer] and asked to see her. He told her that her life was in danger and she should leave Iran. Her manager had made a case against her and got some staff members to say she had been proselytising. This was some time in January 2016 a few days after she paid the instalments. [Her husband] had to change their flights. They both had to get new passports because theirs were out of date and they had no problems in getting new passports and had no trouble leaving the country.
She was asked why they thought they would have problems because they were able to enter the country, get new passports and leave the country without problems. She claimed that the written case against them would have occurred after they left Iran. They were baptised in Australia in March 2017. Asked if she had sent any photos of the baptism to [Ms C], she said she didn’t as she had no contact with [Ms C].
Her husband was asked about his friend [Mr B] and he said they were high school friends and went to gym together. They were still close friends and remained in contact via [Social media]. [Mr B] was in [Country 1] and was now Christian. He didn’t know when he became Christian but he knew he was last year. When [Mr B] married he told [the applicant’s husband] that his wife was Christian – he thought they returned to [Country] last year. He had recently regained contact on [Social media] but had lost contact with them in 2014 at which time they were still in Iran and were still there in 2016. At the time they left Iran he was still in contact with him until 2015. He didn’t know [Ms C]’s family name and hadn’t gone to [Mr B]’s wedding.
Asked if she had travelled overseas before, she said she had gone to [Country 2] and [Country 3]. She went to [Country 3] for [an Islamic observance]. It was put to her that she had claimed that she had stopped Islamic rituals in in high school and left Islam after high school and yet she had done [an Islamic observance] in 2010 when she was [age] years old. She had claimed in her application she had gone to [Country 3] for holidays and yet one couldn’t get a tourist visa in 2010 – there was a concern that she had claimed not to be religious and yet she had gone on religious pilgrimage when she was [age].
She claimed that she went because her family did. She said she didn’t do rituals but didn’t tell them she wasn’t Muslim. It was put to her that they kicked her out of the house when she was 22 or 23 and yet went on [an Islamic observance]. She could just refuse to go. She claimed that her [sibling] would come and hassle and harm her if she didn’t go so she just pretended to go with them.
Asked why, if she was so interested in Christianity she didn’t go to Christian [Country 4] rather than [Country 2] or [Country 5]. Hundreds of thousands of Iranians went to [Country 4] annually, it was cheap and she could explore Christianity and absorb the faith. She claimed she had gone to a church in [Country 5] and many times to the church in Isfahan. She said that she would like to be with her new Christian peers rather than [Country 4] Christians.
She was advised about s 424AA and it was put to her that during her DIBP interview she had claimed not to have practised her religion since she was a teenager even when her mother was harassing her to do so. She had made no mention of going on [an Islamic observance] and now that her [sibling] would have made her do it. There was a concern that she wasn’t telling DIBP she did [an Islamic observance] and it was only now that the Tribunal raised her travel history that she claimed she was forced to do it. This inconsistency raised questions in the Tribunal’s mind and that the religious identity she claimed to have had in Iran was not her actual religious identity.
She claimed that she had tried to refuse to observe prayers when at home before she went to high school. She had not brought the trip to Saudi Arabia because her memory had wiped it out as she had been forced to go. Also under s 424AA it was put to her that [Mr B] hadn’t been baptised until recently which was different to what she had said and that her husband was in [Social media] contact with [Mr B] until 2015 at least and it was strange that she hadn’t sought out [Ms C]’s contact details to tell her about her engagement with Christianity when her husband was in [Social media] contact with [Mr B]. This didn’t show much of an effort to track her down given she was alleged the conduit to Christianity.

She was asked if she believed herself to be Christian in 2012 that she didn’t get baptised until 2017. She said that she didn’t believe it was that important and waited until [her husband] was to be baptised. She was asked what type of Christian [Ms C] was and she said she didn’t know but it was Protestant. It was put to her under s 424AA that she had previously been asked and said that [Ms C] was Baptist but today she said she didn’t know. She said she didn’t understand the question before.
It was put to her that given she and [Ms C] and her were Baptists it was very strange that she hadn’t made much effort to try to track [Ms C] down and tell her about her conversion. She said that she was very inwardly focused with her own problems.
Her family knew she had converted, she claimed that the a few days after they left Iran a few people from the [employer] came to her mother’s house and searched their house and took some boxes away. Her [siblings] had also been interrogated by the Herasat about her Christianity and they and to write a commitment that they weren’t Christian and wouldn’t proselytise. Her [siblings] therefore know about her conversion. Asked if there was any arrest warrant for her, she claimed she didn’t know as she was in Australia.
Her husband was asked when he decided to become Christian he said it was in 2016 as he hadn’t been very religious before. Asked if he was baptised before or after his protection visa was refused, he claimed that it was after. Both of them were advised about 5J(6) and s 424AA and it was put to them that they had been refused a PV on 1 February 2017 and at the interview prior to this the applicant had described [Mr B] as a non-practising Muslim yet shortly after this he became a baptised Baptist. The timing raised concerns about the genuineness of his conversion. He said that in 2016 he joined the applicant at church and bible studies a few times. He was notionally Muslim but doing Christian research. So he was ready in 2017 to be baptised.
It was put to the applicant that it was very strange that she would take a bible in her bag to work with the Herasat around and knowing the penalties. A pastor at an underground church would know the bible and not need people to bring bibles. It was also put to her that she had claimed that [Mr B] had given her the bible but according to her husband [Mr B] wasn’t Christian at this stage. She claimed that she believed [Mr B] was Christian at this stage. She claimed that she always took notes in her bible and she felt safe taking her bible to work at the locker there and din’t know why she accidentally left it there.
The witness then attended and supported her application and that he had no doubt that her faith was genuine. He had known the applicant for over four years. He could divine what was in her heart and believed that she was genuinely Christian and attended their church and a home group regularly. Her husband had also come to Christ.
He was asked whether he knew they had a decision on their PV claim before they were baptised and he said he didn’t know and could only attest to the genuineness of her belief. They had about a dozen Iranians in their congregation and knew the seriousness of their situation in Iran. He hadn’t been to Iran himself.
He didn’t know much of their faith journey in Iran other than they came to the religion through a friend and attended an underground church. The applicant came to Australia as a Christian. He didn’t know what branch she joined in Iran other than Protestant. He was asked whether, given he had baptised the applicants he would have tried to pass this onto the Baptists who introduced them to the faith originally, he said that he wouldn’t normally do this.
It was put to him that many people who claimed to convert to Christianity gravitated to the Baptists because it was quicker. He agreed that this may be valid as Baptists with respect to discernment could come to a finding quickly. He believed that she was genuine.
After a break, the applicant claimed that anyone who converted to Christianity was in danger. She had been educated but still her family could oppress and harass her and others could also do this. She couldn’t deny being Christian.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicants arrived in Australia on a student and spouse visa [in] March 2014 and departed the country for Iran between [December] 2015 and [January] 2016. They applied for a protection visa on 6 April 2016. The Tribunal accepts that the applicants are Iranian nationals and their applications will be assessed as such.
The applicants are a [age] year-old woman, a [age] year-old man and a young child who doesn’t appear on the application form. The second-named applicant was asked and said that he relied solely on his wife’s claim. Given the second-named applicant has been baptised subsequent to the original application I will address that aspect of the claim as pertaining to him.
In this case the first-named applicant has claimed that she would be killed by the Iranian authorities or her family because she had converted to Christianity. I will address the same Christian conversion claim as it relates to her husband.
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(s).
I found the applicant’s evidence regarding her claims to lack credibility. For reasons set out below I did not find the applicants to be reliable, credible or truthful witnesses, and find that she and they fabricated the claims in order to be granted a protection visa.
Christian Conversion
Whilst I accept that the applicants were baptised into the Baptist faith in 2017 I do not accept that this indicates a genuine conversion to Christianity on their part. Matters of faith can be difficult to pass judgment on, but in this case the Tribunal has been guided by concerns over the credibility of the applicants in a number of areas in making the finding that their Christian conversion claim is not genuine.
To begin with, I do not accept that the first-named applicant ceased observing Islamic rituals at the start of high school and abandoned the Muslim faith after high school when she was 21 or 22 years old. She had stated in her protection visa application that she had travelled to [Country 4] in 2010 for ‘tourism’, yet [Country 4] did not issue tourist visas at this time. When asked by the Tribunal she stated that she went to perform [an Islamic observance].
Not only is this inconsistent with her claim to have left Islam years earlier, she also claimed to DIBP during her interview that she had not practised her religion since she was a teenager. I do not accept that she was forced to go by her family or that she had expunged it from her memory. It lacks credibility that she would have been kicked out of her family home when she was in her early twenties and subsequently lead an independent lifestyle and yet be unable to say no to a family religious pilgrimage when she was [age] years old.
I do not accept that she was afraid of what her [siblings] would do to her if she refused. This relies solely on her oral testimony and it lacks credibility that they would not have tried to coerce her to perform the raft of other Shi’a religious rituals over the years of her estrangement and then suddenly try to coerce her to perform [an Islamic observance] years later.
Her alleged path to Christianity also lacks credibility. While she claimed that she was introduced to the faith by the wife of her husband’s friend [Ms C] in Iran, she could provide few details about [Ms C]. Despite knowing them for 18 months and [her husband] having gone to school with [Ms C]’s husband [Mr B] and [her husband] being in [Social media] contact with [Mr B] until 2015 and then again more recently, the applicant didn’t know [Ms C]’s family name and has had no contact with her since their time in Iran.
In short there is no evidence that [Ms C] exists except the applicant’s oral claim. Even though she claimed that [Ms C] and her husband ran a private charity (folio 62) no evidence of it or of [Ms C]’s association with it was provided. It lacks credibility that the applicant would have made so little effort to remain in contact with the person who brought the light of Jesus to her, and taught her about Christianity. I do not accept that she had no contact details for her or that she was unaware that her husband was in contact with [Mr B] – it is reasonable to believe that if she wished to contact [Ms C] the first person she would have sought contact details from would have been her husband given his allegedly long standing relationship with [Ms C]’s husband [Mr B]. Yet she never even asked her husband about getting contact details for [Ms C].
I also do not accept that she was given a bible and left it at her work where it was found by colleagues and handed to her supervisor who then used it as leverage over her to try to extort favours from her. It lacks credibility that, knowing that she was allegedly going to attend an underground church after work that she would not only take her bible to work but that she would then leave it on her desk only for it to be found by work colleagues. Given the alleged sensitivity of the subject I am not satisfied that she would have had cause to take a bible out of her bag and place it on her desk only to subsequently forget it.
Because I do not accept that she took a bible to work and it was discovered, it follows that her supervisor did not try to blackmail her, the Herasat did not search her or her parents’ house and her family were not questioned, the [employer] didn’t freeze her accounts nor her family stop her rental income. In short, I do not accept that her family know or suspect that she is a true Christian convert.
The fact that they were able to enter Iran in 2015, apply for and receive two replacement passports while there and then leave without incident also indicates that neither had a fear of returning to Iran or dealing with the Iranian government while there. Whilst I accept that they returned for a funeral, the fact that they felt able to do so and interact with the government while there indicates a low level or absence of concern.
During her time in Iran after she claimed to have found the love of Jesus, she undertook two overseas trips – to [Country 5] and [Country 2]. It appears curious that if she was free to, and capable of traveling overseas that she didn’t attempt to travel to a neighbouring Christian country [Country 4]. Many Iranians travel here annually and it appears anomalous that she was willing to attend underground churches in Iran and yet not visit a nearby Christian country where her ability to worship and explore the faith would have been much easier. I don’t accept that she wanted to be with her new Christian peers rather than [Country 4] Christians given she didn’t have to interact with congregations, but would have been able to absorb a Christian social environment, freely visit churches, pray and the like if she had simply travelled to [Country 4].
I have taken into account the testimony of the pastor from the [Suburb 3] Baptist church regarding the truthfulness of their conversion and believe that it was genuine. The Tribunal however must look at the totality of the claim and therefore I lend the pastor’s evidence little weight given the inconsistencies regarding the claim noted above. I also accept that the applicants were baptised in 2017 but also lend this little weight.
The first-named applicant had claimed to have been Christian in Iran since 2013 yet she wasn’t baptised until 2017 in Sydney. I note that their baptism occurred in March 2017. Which was after their protection visa application had been refused by the Department in February 2017. This timing is quite coincidental, particularly given that the second-named applicant was described during the Departmental interview as a non-practising Muslim rather than a putative Christian. The convenience of the timing of the baptism simply adds to my concerns already expressed regarding the truthfulness of the Christian conversion of both applicants.
Because I do not accept that the applicants have genuinely converted to Christianity, it follows that neither will seek to practise Christianity on return to Iran, nor would they be imputed to be Christians.
Failed Asylum Seeker
Although they made no direct claim on this basis I will address it for completeness’ sake. To begin with, I am not satisfied that the applicant will be involuntarily returned to Iran either now or in the reasonably foreseeable future. The Iranian Foreign Minister during his March 2016 visit to Australia stated that Iran would only accept failed asylum seekers from Australia who returned voluntarily.[1]
[1] >
Given that the Iranian government has indicated that it will not accept involuntary returnees, the only way that the applicant will return to Iran in the reasonably foreseeable future is as a voluntary returnee. If he does so I do not accept that the applicant will be harmed simply for being a failed asylum seeker. Country information indicates that Iranian authorities pay little attention to failed asylum seekers on their return to Iran and have little interest in prosecuting them.[2] 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’[3]
[2] DFAT Country Information – Iran, 7 June 2018, p 49
[3] 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.
As the applicants haven’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 applicants will be imputed with being a Christian and/or apostate through their church attendance or baptism, or that they has or will come to the attention of the authorities for being a non-observant Muslim or not believing in any religion.
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 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 6784

29 October 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction