1709089 (Refugee)

[2019] AATA 5863

1709089 (Refugee) [2019] AATA 5863 (13 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1709089

COUNTRY OF REFERENCE:                   Iran

MEMBER:Nicole Burns

DATE:13 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 May 2019 at 12:41pm

CATCHWORDS
REFUGEE – protection visa – Iran – Federal Circuit Court remittal – religion – conversion to Christianity in Australia – suspicion as to the applicant’s motives – non-practising Muslim – Azeri ethnicity – consumption of alcohol – participation in anti-government demonstrations – failed asylum seeker returning from the west – credibility concerns – mental health concerns – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations (Cth), Schedule 2

CASES

ADZ16 v Minister [2016] FCCA 3246

MIAC v SZQRB [2013] FCAFC 33

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant left Iran on [in] June 2012, flew to [Country 1] and boarded a boat, arriving on Christmas Island [in] July 2012.  He claims to be an Iranian national and provided to the Department of Immigration (the Department) a copy of his Iranian national identity card.  Given this, and the fact the delegate accepted the applicant’s claimed nationality, the Tribunal finds the applicant is a national of Iran and has assessed his protection claims accordingly.

3. The applicant applied for the visa on 15 November 2012 and the delegate refused to grant the visa on 9 January 2014.  The Tribunal, differently constituted, affirmed the decision of the delegate to refuse to grant the applicant a protection visa on 9 December 2015.  The applicant sought judicial review of that decision and the case was remitted to the Tribunal for reconsideration by the Federal Circuit Court [in] April 2017.

4. The applicant appeared before the Tribunal on 19 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Pastor [A] from [Church 1], Persian ministry. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. He attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

6. 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, the applicant 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.

7. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

8. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

9. 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 a protection 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 the applicant 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’).

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Mental health concerns

11. The applicant provided a report from [Mr B], Member of the APS College of Forensic Psychologists dated 16 November 2015 to the first Tribunal which diagnoses the applicant as suffering from an adjustment disorder and/or post-traumatic stress disorder and at least moderate and possibly severe depression.  [Mr B] notes in his report, among other things, that when someone has been traumatised various aspects of their memory can be adversely affected and refers to the applicant’s mental health problems as the possible cause for his inability to recall past events.  [Mr B] also states that the applicant self-reported that he drank a lot of alcohol in Iran; however, the report does not state that the applicant developed memory problems as a direct result of heavy drinking. 

12. In his statutory declaration provided to the first Tribunal the applicant mentions that he was depressed in the period shortly before he left Iran, in large part because of his fractured relationship with his father who was abusive and had kicked him out of home.  He claims he started to use alcohol to cope in Iran and when he was in [Country 1] for 40 days.  He also states that his depression worsened after arrival on Christmas Island because he was unable to access alcohol.

13. At the current Tribunal hearing the applicant initially said he could not recall whether he had ever seen a counsellor in Australia.  When asked about the report from [Mr B] the applicant said he did see him a few times but nothing further, noting that he has not had a Medicare card.  He does not take medication currently, apart from sleeping tablets, and did not indicate any current mental health problems. 

14. The Tribunal accepts the applicant was diagnosed with an adjustment disorder and/or post-traumatic stress disorder and at least moderate and possibly severe depression in November 2015, and saw a counsellor a few times.   It accepts he may have been depressed at times in Iran and when he first arrived in Australia.  It also accepts that he may have drunk alcohol on occasion in Iran; however, for reasons discussed further below (elsewhere) the Tribunal is of the view that he exaggerated his alcohol consumption and related problems, and notes that this claim (and others) has grown over time in relation to the amount of alcohol he was allegedly consuming in Iran and alcohol-related incidents there. 

15. The applicant did not mention any current concerns about his mental health at the Tribunal hearing and the Tribunal was satisfied as to his capacity to give evidence based on him responding to questions in a lucid way and engaging in the hearing over a few hours.  No contemporaneous medical evidence has been provided about the applicant’s original diagnosis (in 2015) or current presentation.  The Tribunal is not satisfied that the applicant’s problems of adjustment disorder and/or post-traumatic stress disorder and depression, as identified in the report from [Mr B], explain a number (and variety) of credibility concerns the Tribunal has with his evidence, addressed where relevant below in relation to his specific claims.  Nor is the Tribunal satisfied that his mental health problems are so severe as to result in him facing a real chance of serious harm or a real risk of significant harm on return to Iran in the foreseeable future.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The applicant is a [age] year old man from Tehran, Iran who claims to fear serious harm on return there on multiple grounds.  That is, he fears serious harm from the authorities as a Christian convert; as someone who drinks alcohol; as someone who participated in anti-government protests in the past; and as a failed asylum seeker returning from the west.  It is submitted that in the past he experienced a number of problems from the authorities (and the Basij) in Iran because of behaviour considered ‘un-Islamic’, detailed further below. 

17. The applicant set out his claims initially in a statutory declaration that accompanied his visa application dated 1 November 2012.  In it he states that he participated in three demonstrations against the regime and was arrested in relation to a demonstration in [location] but was released. He states that 10 days before fleeing the country he was arrested by police whilst buying alcohol in the park, beaten, interrogated at the police station, and detained for two days.  His [relative] secured his release after providing a deed of his business as guarantee and a few days later a person came to the applicant’s house to serve him a summons.

18. The applicant provided a further statutory declaration dated 26 June 2015 to the first Tribunal in which he elaborated upon his background and claims.  Two written submissions were provided to the first Tribunal, dated 28 Mach 2014 and the other undated (received prior to the hearing on 22 October 2015). In his June 2015 statutory declaration the applicant describes four altercations with the authorities in Iran that led to his decision to leave, summarised as follows:

    i.In 2010 he was arrested and severely beaten for being present at a protest in the aftermath of the 2009 presidential election.

    ii.In late 2010 he was arrested for walking next to his girlfriend and beaten while under arrest.

    iii.In 2011 he was arrested for consuming alcohol and then severely beaten and raped while being in Basij detention.

    iv.In 2012 he was arrested, beaten, detained and interrogated for drinking alcohol in public and proposing to sell alcohol during a religiously sacred time. 

19. The applicant stated that he will face torture and long imprisonment if returned to Iran, not only because of these incidents (and related accusations), but because he failed to appear before the court (in relation to the last incident).

20. In support of the current review the applicant provided a letter from Pastor [A], [of  Church 1], Persian ministry dated 11 December 2018.  In it the pastor confirms that the applicant was baptised as a Christian [in] July 2016 and that he believes the applicant to be a genuine Christian.  After the hearing the applicant provided a copy of his baptism certificate signed by Rev. [C]. 

21. At the Tribunal hearing the applicant explained why he left Iran in June 2012 and his fears upon returning there now, summarised as follows.

22. The applicant said he was living with his [relative] in Tehran prior to leaving Iran in June 2012, and worked at [the relative’s] [business] which made [products].  He started work there after he had completed military service, and prior to that he had completed high school.  He had moved out of his family home because his father was violent and a drug addict. 

23. The applicant told the Tribunal that he left Iran because of an incident that occurred sometime in the first half of 2012.  He said he had been stopped and arrested by police in a park near where he was staying at [a relative]’s house in Tehran because he was found in possession of alcohol on Agame Fatemiyeh, considered as a religiously sacred time.  He was taken to [a] police station and detained for two nights. During that time he was beaten, including by the police chief.  The police asked who he had bought alcohol from and they did not believe him when he told them: instead they made him sign a written confession that he was selling 100 litres of alcohol per day.  The police then took him to court where he was released on bail after [his relative] (who was present) provided his business license as a bond. [The relative] was given documents with a date for the applicant to next appear in court. The applicant said he provided the court summons to the Department which contain the relevant dates, which he can no longer remember.  The applicant said he was arrested in the park sometime in 2012 but could not remember which month.   He said the police told him he would face more extreme penalties because he was found with alcohol on Agame Fatemiyeh.

24. Sometime after his release from detention the applicant said someone on a motorcycle delivered a summons to his parents’ house (in Tehran).  The applicant was not there at the time but his mother received the summons.  Another summons giving another court order was delivered to his parents’ house after the applicant had left the country. 

25. The applicant said his mother sent the summons’ documents to him in Australia after he asked her to do so.  He no longer has the documents because he gave them to his previous lawyer, who gave them to the delegate who took a copy then handed the originals back to his lawyer.  The applicant said he has subsequently contacted his previous lawyer to get the documents back, but he told him he does not have them.  The applicant said when he received the summons from his mother he read it and remembered that it contained his name, file number and said he was expected to attend a branch of a particular court on a certain date, which he cannot remember.  When the first summons arrived he was in Iran; however, the second and third summons – also received by his mother – arrived after he had left the country.  He read them all. The second summons was similar to the first in terms of providing a court date.  The third summons was a court order for his arrest. According to the applicant’s mother, some police had come to her home looking for him around this time.  He said he was not sure if the third summons was a summons to attend court or an actual arrest order and warrant to search his parents’ home.  When asked, the applicant said his parents have stayed living in the same house in Tehran and they have not told him whether the police have returned looking for him after this time. 

26. The applicant said by the time the arrest order came for him he had left the country.  His arrangements (including payment to the smuggler) and documents were organised by [his relative], including his safe passage through the Tehran airport.  He left Iran on a genuine passport issued in his own name which he threw into the sea en route to Australia.

27. The applicant said he is in touch with [the relative] who told him ‘they’ had come looking for him after he left.  When asked who specifically, the applicant said he did not ask the details but knew it would have had to have been the police.  He did not ask why the police were looking for him.  When asked why he thinks the police were looking for him, the applicant said because he did not attend the court.

28. The applicant gave oral evidence about his other past experiences in Iran.  He said one day in 2009 he was arrested by the Basij whilst out on the streets in his neighbourhood with his then girlfriend.  The Basij let his girlfriend go (after she told them she did not know the applicant) and then took the applicant on a motorcycle to a shed at a Basij base in the area where he was beaten.  They left him in the dark in the shed for a few hours and when they returned they forced him to write an undertaking that he had been involved in a public disturbance.  The applicant said whilst riding the motorbike to the shed one of the Basij hit him on the head and also sexually assaulted him.  He said he was raped by one of the Basij members whilst at the shed.  Afterwards they let him go (after getting him to sign the undertaking) and he never saw those members of the Basij again.

29. After this incident the applicant said he attended a number of anti-government demonstrations, he thinks in 1388 (Persian calendar).  When asked how many he attended the applicant replied ‘most’.  At the third demonstration in [location] he was arrested after being hit on his feet and legs, dragged to a shop, handcuffed with lattices, and placed in a bus with other demonstrators (his mobile phone was confiscated).  There was a cleric or mullah at the front of the bus who took down the names and details of those arrested and placed on the bus.  After a few hours they let the applicant go, in [different location].  He did not experience any other problems from the authorities as a result. 

30. The applicant also gave oral evidence at hearing about his conversion to Christianity in Australia, discussed in more detail below (elsewhere).

    Findings about the applicant’s past experiences in Iran

31. The Tribunal accepts the applicant lived with [his relative] in Tehran prior to leaving the country in June 2012 and also worked at [the relative’s business], after completing six months compulsory military training.   It accepts he may have had a girlfriend in the past in Iran and may have consumed alcohol at times.  However, the Tribunal has a number of concerns about his claims to have been arrested and charged with selling alcohol in 2012 (and related requirements to appear in court) and other alleged altercations with the authorities and/or Basij prior to this incident which cast doubts on his claims in these respects, as follows. 

32. First, the applicant’s claims have grown in some significant respects since he first arrived in Australia.  For example, at his entry interview[1] on 30 July 2012, undertaken shortly after his arrival, the applicant told a Departmental officer that he left Iran because he had been arrested 10 days before he left Iran for purchasing beer and was detained for two nights.  He left because he was afraid of receiving a sentence of 80 lashes as a result.  However, he does not mention being beaten whilst being held by the police for two nights in 2012 and fails to mention the incident he claimed at hearing happened earlier – in 2009 – when the Basij arrested and assaulted him after discovering him in the streets talking to his girlfriend.  Furthermore in his entry interview when asked if he had been arrested prior to the 2012 arrest (for allegedly purchasing alcohol) the applicant stated ‘no’.  He also answered ‘no’ when asked if there were any other reasons he left Iran at the entry interview. 

    [1] A written record is contained on the Departmental file titled ‘Irregular Maritime Arrival Entry  Interview’ (Part A and Part B).

33. At hearing the Tribunal invited the applicant to comment on or respond to this potentially adverse information in relation to his entry interview pursuant to the procedures in s.424AA of the Act.  In response, the applicant said that during that time he was under the heavy influence of alcohol and could not clearly remember the sequence of events. The representative argued that the applicant has memory problems, a result of being a heavy drinker in Iran and for a few years in Australia. He also noted that there is court authority about the primary purpose of entry interviews being to collect primary information about applicants, such as their background and family members: they are invited to talk very briefly about their protection claims.  With respect to the 2009 incident, including his alleged rape by a Basij member, the applicant said it is not easy to disclose that he had been raped; however, after discussion with his lawyer, he said that he should.  In the undated written submission from the applicant’s then representative to the first Tribunal it is stated that the applicant never disclosed this incident to anyone because of the shame. 

1. The Tribunal accepts that the information obtained at entry interviews is not necessarily exhaustive. However, in this case it is concerned that the applicant responded ‘no’ when asked if he had been arrested prior to his alleged arrest in 2012, whereas before the current Tribunal he states he had been arrested twice (in around 2009 when walking on the street with his then girlfriend and later at an anti-government demonstration). 

2. The Tribunal also accepts the 2009 incident, when the applicant was allegedly raped by a Basij member, would be difficult to talk about and understands that it is not uncommon for victims of such violence to withhold such information.  However, there are other concerns it has with the applicant’s evidence in this regard, including inconsistencies between his oral evidence to the current Tribunal and written claims set out in his detailed (June 2015) statutory declaration provided to the first Tribunal.  For example at the hearing the applicant said this incident occurred when he was stopped by Basij members on motorcycles when he was out with his girlfriend near her high school; that his girlfriend was allowed to go; and that he was taken to a Basij base where he was beaten and raped.  However, in his statutory declaration to the first Tribunal he describes two separate incidences as follows.   

   I.The first occurred at the end of 2010 when he and his girlfriend were arrested on the streets (near her high school) by the Basij; they took his girlfriend to her house and took the applicant to Yaft Abad police station where he was beaten; and then he was released after they made a file on him. 

   II.The second incident – which corresponds more closely with the applicant’s description at hearing – occurred a few months after this incident with his girlfriend when he was alone and had been drinking alcohol and stopped by two plainclothes Basij on motorbikes. 

3. As well, at hearing the applicant did not indicate that there were two incidents, only one. When the Tribunal pointed this out, the applicant said he thinks the incidences described in his 2015 statutory declaration are the correct ones.  He added that he has been pretty mixed up and he likes to erase these memories which he is not proud of.    

4. Second, there are some inconsistencies between the applicant’s initial claims as set out in his November 2012 statutory declaration provided to the Department and what he has told the current Tribunal.  For instance:

   ·In his statutory declaration the applicant stated that about 10 days before fleeing Iran he went to the park to purchase some beer; however, at hearing he said he had bought arak at that time.

   ·In his statutory declaration the applicant stated that after his arrest in 2012 (for buying alcohol) his uncle attended the police station, gave his deed of business as a guarantee and then the applicant was released pending a summons.  However, at the Tribunal hearing the applicant said he attended court and then he was released on bail after his uncle presented his business license at the court.

   ·In his statutory declaration the applicant stated that a few days after his release a person came to serve him with a summons from court; that they did not open the door; when the person could not serve him, he left the property; and the applicant saw that he was a soldier who had come on a motorbike.  However, the applicant told the Tribunal that he was not at home at his parents’ house when the summons was served and it was his mother who received it. 

5. The Tribunal accepts that some inconsistencies or confusion of events when recalling them could be attributable, in part, to the applicant’s memory problems or alcohol problems (which for reasons below the Tribunal finds he has exaggerated) or the effluxion of time.  However, there are a number of credibility concerns, including the changing nature of the applicant’s claims and complete omission of some events (as discussed above and below), which raises doubts about his claims in this regard.

6. Third, the concern the Tribunal has with the applicant’s claims to have been arrested and charged with selling alcohol in 2012 (and requirements to appear in court) relates to the fact that he was able to leave Iran via the airport on a passport in his own name without any problems, that is, despite claiming he had been summoned to appear in court in relation to the alcohol related charges.  At hearing the applicant said [his relative] organised ‘everything’ and there was someone who met him at the airport.  The Tribunal is not persuaded by this explanation and is of the view that if there were outstanding court matters involving the applicant, he would not have been able to leave the country with such ease. 

7. For these reasons the Tribunal does not accept the applicant was arrested in 2012 for possession and/or selling of alcohol, detained, beaten, forced to sign a written confession that he was selling 100 litres of alcohol per day and then released on bail to appear in court at a later date.  It does not accept he received summons documents to appear in court and to arrest him for failure to do so, or that the police have visited his mother and [relative] since his departure from Iran.  The Tribunal also does not accept the applicant’s claims to have been arrested, harassed, and assaulted (including being raped) by the Basij in the past in either around 2009 or 2010 for being on the street with his then girlfriend or arrested whilst on the streets after having drank some alcohol a few months later.  The Tribunal does not accept the applicant has any outstanding court matters in Iran.

8. The Tribunal therefore finds the applicant does not face a well-founded fear of persecution from the Iranian authorities, including the Basij in relation to these incidences and his failure to appear in court, as submitted. 

9. In reaching this conclusion the Tribunal has considered the applicant’s claims that he provided the summons documents he allegedly received from the Iranian authorities to the delegate at interview.  He no longer has copies of these documents (claiming that he gave them to his previous lawyer who claims he no longer has them) and there are no copies contained on the Departmental file.  Nonetheless, the delegate refers to the summons documents in his decision record[2] and therefore the Tribunal accepts they exist.  The delegate was not satisfied they were genuine documents primarily because the document of the summons pre-dated the alleged detention in May 2012 by about 30 days.  Given this, and the credibility concerns the Tribunal has with the applicant’s claims in this regard, the Tribunal gives little weight to the court summons documents provided to the Department.

   Participant in anti-government protests

   [2] A copy of which the applicant gave to the first Tribunal on review.

10. At the Tribunal hearing the applicant said he does not hold concerns on return to Iran because of his involvement in anti-government demonstrations in 2009: his concerns now relate to the fact that he has converted to Christianity (discussed below (elsewhere)).  Nonetheless, the Tribunal has considered if the applicant’s alleged participation in anti-government demonstrations in Iran in the past would result in him facing a well-founded fear of persecution from the authorities as a result of his actual or imputed political opinion.

11. In their written submission provided to the first Tribunal the representative cited country information about the lack of freedom of expression and belief, treatment of protestors and other human rights abuses and problems in Iran, among other things.

12. For the reasons that follow the Tribunal does not accept the applicant’s claims to have been involved in anti-government demonstrations in the past in Iran.  This includes because his oral evidence in this respect was vague and unconvincing, even taking into account possible memory problems or alcohol problems.  For example when asked how many demonstrations he actually attended he replied ‘most’ but was unable to give a number.  He was vague about the purpose of the demonstrations and why he got involved, stating in general terms that they came about because people were unhappy with the election results as he was too, and because the Islamic regime mixes politics and religion.  However, he was unable to say what the specific objection with the regime was at the time, including why the demonstrators were unhappy with the elections, apart to repeat that no one was happy with the elections and because of ‘tough conditions’ in the country.

13. The applicant’s evidence about being involved in these demonstrations – and in particular the consequences – has also grown since the visa application stage.  For instance, in his November 2012 statutory declaration the applicant states that he participated in three demonstrations against the regime and was arrested in relation to a demonstration in [location] but then released.  He makes no mention of being beaten by plainclothes police at one of the demonstrations, placed inside a bus and driven around before signing a paper then being released as described at the Tribunal hearing. 

14. For these reasons the Tribunal does not accept the applicant was involved in any demonstrations in the past in Iran or that he was arrested or beaten at one of the demonstrations.  The Tribunal finds the applicant does not face a well-founded fear of persecution from the authorities, including the Basij on return because of his involvement in anti-government demonstrations in the past in Iran. 

15. The applicant did not claim to have been politically active in Australia or that he would on return to Iran.   Given this, and the Tribunal’s findings that he was not involved in anti-government demonstrations in Iran in the past, the Tribunal does not accept he would be politically active on return to Iran.  For reasons below (elsewhere) the Tribunal has found the applicant does not face a well-founded fear of persecution on return to Iran on imputed (anti-government) political opinion grounds as a failed asylum seeker.   Accordingly it finds he does not face a real chance of serious harm on return to Iran on the basis of an actual or imputed anti-government political opinion.

    Alcohol consumption in Iran

16. The Tribunal has considered if the applicant faces a well-founded fear of persecution on return to Iran because of his past and/or future consumption of alcohol. 

17. In an undated written submission to the first Tribunal the representative submits that the applicant was an alcoholic in Iran and that he continued drinking alcohol on a daily basis in [Country 1] (over 40 days). The representative references relevant provisions of the Islamic Penal Code of Iran which deal with penalties for offences associated with alcohol.  It is submitted that the applicant has already twice been detected (with alcohol) and any future punishment for a further offence of consuming alcohol would be at least as severe and for a third offence the applicant would be liable to a sentence of death. 

18. At hearing the applicant said he first started drinking alcohol in Iran when he started working at [his relative]’s [business].  It helped him cope with his difficult life circumstances, particularly given difficulties with his family because of his violent father.  When asked if he still drinks, the applicant said not like in the past – maybe twice or three times a month – like ‘normal’ people.  He drank a lot more when in Iran, sometimes a litre of arak in a night.  He said that he has decreased his alcohol consumption a lot in Australia since he has found God. 

19. The applicant said in Iran he was picked up by the police twice after he had been drinking and stopped and harassed by the Basij a number of times, including them stopping and checking his car at a road block once with a friend.  The Basij held them for some time, because their breath smelt of alcohol, then let them go: he could not remember when.  The Tribunal has not accepted the applicant’s claims that he was arrested for drinking alcohol in around 2009/2010 or the incident in 2012.  The Tribunal does not accept the applicant has any outstanding legal issues in Iran relating to alcohol.  Although somewhat vague, the Tribunal is willing to accept that the applicant and a friend may have been held by the Basij after smelling alcohol on their breath at a road block in the past in Iran.  However, given the Basij let them go after a short period of time, there were no further problems, and the incident took place at least seven years ago, the Tribunal is not satisfied the applicant would face serious harm for any reason because of this incident on return to Iran in the foreseeable future.

20. The applicant’s claims about his alcohol use in Iran have grown since the visa application stage, which raises doubts about his claims in this respect.  For instance, whilst he states that he was arrested in 2012 because he was caught with beer in his November 2012 statutory declaration provided to the Department, he makes no mention of any earlier alcohol-related incidents or that he was a heavy or regular user of alcohol.  As well, in his entry interview (as discussed at hearing pursuant to the provisions of s.424AA of the Act) the applicant is recorded as stating that he is not really an alcohol drinker.  However, in his 2015 statutory declaration provided to the first Tribunal the applicant states that he started drinking when he was working at [his relative]’s [business] and after a while he drank every night in Iran; that he was arrested in 2011 after he had a few glasses of alcohol and also in 2012 when caught with four litres of arak; that he was buying and consuming weekly; when he left Iran he was an alcoholic, and that he continued drinking alcohol on a daily basis in [Country 1] (40 days).  At the Tribunal hearing, as mentioned, the applicant said he drank up to a litre of arak a night in Iran in a certain period.  At hearing the applicant attributed the growth of his claims about his alcohol use to the fact that he was not in a good way when he arrived, and was a heavy alcohol user which affected his memory.  

21. For these reasons the Tribunal is of the view that the applicant has exaggerated his past alcohol use in Iran. He has claimed to have memory problems to explain his differing and growing evidence in this regard. However, the Tribunal notes that his claims that he has memory and alcohol related problems also have grown since the Departmental stage.  In this respects it notes in her written submission provided to the first Tribunal (dated 28 March 2014) the applicant’s then representative attributes difficulties the applicant has with remembering dates and events in Iran to a number of factors, including the many hardships he experienced there, his fear of the authorities there, and his poor mental health: however she makes no mention of his alcohol use being a reason for his poor memory. 

22. The Tribunal is willing to accept that the applicant may have drunk alcohol on occasion in the past there, but does not accept that he was an alcoholic or that he was ever of adverse interest to the Iranian authorities, including the Basij, as a result, with the exception of being temporarily held by the Basij at a road block because they smelt alcohol on his (and his friends) breath on one occasion.  The Tribunal finds remote the chance the applicant would face serious harm from the authorities on return to Iran because he may have drank alcohol on occasion in the past, noting he left the country almost seven years ago.  

23. The representative submitted at hearing that although the applicant has overcome his alcohol addiction, he still enjoys social consumption and is most likely to continue to do so, in moderation.  He noted High Court authority that the applicant should not be expected to put aside his ‘right’ to consume alcohol because there is a law in Iran that prosecutes alcohol drinkers. He also referenced a decision by the Federal Circuit Court of Australia – ADZ16 v Minister [2016] FCCA 3246 – which he submitted was similar to the applicant’s case. The Tribunal has had regard to that FCCA decision. In summary, Judge Riley found the Tribunal in the case of an Iranian national who claimed he frequently drank alcohol which led to problems with the Iranian authorities, had erred because it erroneously considered what the applicant should do, rather than what he would do, if he were to return to Iran.

24. The Tribunal has considered if the applicant would drink alcohol on return to Iran and the associated risks if he does.  As mentioned at hearing, the applicant said he is no longer a heavy drinker, and drinks now only occasionally: a few times a month.  When asked if he would drink alcohol on return to Iran, the applicant said he would, occasionally, referring to it as his ‘right’. 

25. The Tribunal accepts the applicant may seek to drink alcohol in Iran on occasion as he has done in the past and has considered country information about the risks for doing so. 

26. For Muslims, Article 265 of Iran’s Penal code penalises the use of alcohol with up to 99 lashes.[3]  As discussed at hearing, there are frequent news reports, for example, about dozens of people being arrested at mixed-gender parties (often with the additional presence of alcohol)[4] in Iran, but it is unknown how many such arrests are unreported, and how many parties pass without arrest.  Anecdotal reports suggest punishments for being caught at such gatherings range from having to bribe the attending police officer, having one’s parents pick one up from a police station, signing a document declaring such behaviour will not be repeated, to lashing.[5] At least one report indicates that a recent trend is to fine those caught, rather than have them lashed.[6]

    [3] ‘Islamic Penal Code of the Islamic Republic of Iran—Book Five’, (translated by) Iran Human Rights

    [4] For example: ‘Iran Arrests 40 Young Partygoers for Drinking, Dancing’, Iran Human Rights Monitor

    [5] Up to 150 men and women detained at party in Iran’, The Guardian (United Kingdom), 27 July 2016; ‘Young Iranians explain just how easy it is to get banned alcohol’, France 24 Observer, 5 July 2016.

    [6] ‘Iran Arrests 40 Young Partygoers for Drinking, Dancing’, Iran Human Rights Monitor (United States), 16 August 2018.

27. Such country information, as discussed at hearing, indicates that although people in Iran caught with alcohol may receive punishment such as lashing under Iranian law, many do not and a recent trend is to fine those caught (with alcohol) rather than being lashed.  Whilst this example relates to parties, it suggests that those caught with alcohol will be fined rather than lashed.  Combined with the fact the Tribunal has found the applicant will only drink alcohol occasionally on return, as he has in the past (and did not experience any problems, except being temporarily held by the Basij at a road block because they smelt alcohol on his and his friends’ breath), the Tribunal finds remote the chance that he would be arrested and face serious harm from the authorities if he chooses to drink alcohol on occasion on return to Iran.  His fears of persecution on this basis are not well founded. 

    Returnee from the west and failed asylum seeker

28. The Tribunal has considered if the applicant faces a well-founded fear of persecution on return to Iran as a returnee from the west and failed asylum seeker.  It notes that he left Iran in 2012 via the Tehran airport on a passport issued in his own name.   

29. Before the first Tribunal the representative submitted[7] that the applicant may be stopped and targeted when he returns to Iran given he has been outside the country and in a western nation, noting that Iran is suspicious of western countries.  She submitted that he will be considered a spy and traitor for having travelled overseas, sought protection in a western country and been in Australia for a prolonged period of time.  Country information (now somewhat outdated) is referenced about the treatment of failed asylum seekers upon their return to Iran as well as the Iranian government’s intolerance of dissent more broadly to support her contention that his fears on these bases are well founded.

    [7] In a written submission dated 28 March 2014.

1. As an Iranian citizen the Tribunal is satisfied the applicant would be able to return to Iran.  The Tribunal accepts he may be questioned, given his length of time outside the country, and given he will potentially re-enter on a new Iranian passport.  However, there is nothing before the Tribunal to indicate that such questioning would lead to harm or would create difficulty for the applicant, even taking into account his mental health problems and memory issues which for reasons set out earlier the Tribunal finds are not severe.  For the reasons set out earlier, the Tribunal does not accept that the applicant was arrested in the past in Iran or summonsed to appear in court nor has any outstanding criminal or civil matters that may bring him to the attention of the Iranian authorities on return. 

2. As discussed at hearing, DFAT have advised with respect to voluntary returnees as follows:

   Iran has historically refused to issue travel documents (laisser passers) to allow the involuntary return of its citizens from abroad. On 19 March 2018, however, Iran and Australia signed a Memorandum of Understanding (MOU) on Consular Matters that includes an agreement by Iran to facilitate the return of Iranians who arrived after this date and who have no legal right to stay in Australia.

   The International Organisation for Migration (IOM) runs a program to assist voluntary returnees to Iran, in cooperation with the country from which they are returning. Iranian authorities cooperate with the IOM in this regard. In cases where an Iranian diplomatic mission has issued temporary travel documents, authorities will be forewarned of the person’s imminent return. Authorities will usually question a voluntary returnee on return only if they have already come to official attention, such as by committing a crime in Iran before departing. DFAT is not aware of any legislative or social barriers to voluntary returnees finding work or shelter in Iran, nor any specific barriers to prevent voluntary returnees from returning to their home region.

   According to international observers, Iranian authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims.  This includes posting social media comments critical of the government – heavy internet filtering means most Iranians will never see them – converting to Christianity, or engaging in LGBTI activities. In such cases the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists.[8]

   [8] DFAT Country Information Report Iran, 7 June 2018 at 5.23 – 5.25.

3. Given such country information and the fact the Tribunal does not accept that the applicant has an adverse profile, including not accepting that he has an outstanding summons against him as submitted, the Tribunal does not accept that he would come to the adverse attention of the authorities such that it would result in a real chance of serious harm on return to Iran as a returnee from a western country and/or a failed asylum seeker.  Nor does the Tribunal accept that he would be considered a spy and traitor for travelling overseas and seeking protection in a western country by the Iranian authorities and face serious harm as a result for these reasons, including his prolonged stay in Australia (a western country and therefore imputed with an anti-government political opinion). His fears of persecution on this basis are not well founded.

   The applicant’s father

4. The Tribunal has considered if the applicant faces a well-founded fear of persecution on return to Iran at the hands of his father, whom he claims was abusive and violent towards him in the past.

5. Although the applicant does not mention any problems with his father in his initial (November 2012) statutory declaration provided to the Department, according to the delegate he made consistent reference to fearing harm from his father at the Departmental interview.  In his statutory declaration provided to the first Tribunal the applicant states, among other things, that his father was a drug addict (to ‘ice’)[9]; his father was violent and abusive to the applicant and his mother and [siblings]; and his father used to take their money.  In her written submission to the first Tribunal the representative states that the applicant claims he was regularly abused by his father.

   [9] Methamphetamine

6. At the current Tribunal hearing the applicant said his father was violent and abusive to him (and his other family members) in the past, which is why he moved out of home. His father was a drug addict and would try and get his money to pay for his habit.   However after his conversion to Christianity the applicant said he has learnt to forgive his father.  He said that he occasionally talks to him over the phone, although his father often does not want to talk to him.  He said he is concerned on return that his father will be the same: that is abusive.    

7. The Tribunal accepts the applicant’s father was violent and abusive toward the applicant when he lived with him in Iran, which prompted him to move to [his relative]’s house in around 2011.  It accepts the applicant’s father may still be a violent man and unhappy with the applicant for a number of reasons.  However, given the applicant is [age] and has been living independently for 10 years, the Tribunal finds the applicant will not live with his father on return to Iran.   For these reasons the Tribunal finds the applicant does not face a well-founded fear of persecution on return to Iran at the hands of his father.

   Christian convert

8. Before the current Tribunal the applicant claims for the first time to have converted to Christianity from Islam and fears serious harm from the Iranian authorities as a result. He said there are harsh penalties for apostasy in Iran.

9. At hearing the applicant explained how he became involved with the church in Australia, his reasons for converting to Christianity, and the process, summarised as follows.  He told the Tribunal that a friend, [Mr D], first introduced him to Pastor [A] from the Persian [Church 1] in Melbourne, because he was aware of his circumstances.  It was when he no longer had work rights, was unable to receive any payments and had trouble affording his rent.  Pastor [A] listened to the applicant’s life story and circumstances, told him not to worry, and then made him a member of the church food bank which meant he received food parcels twice a week.  Gradually Pastor [A] invited the applicant to Bible study groups.  The applicant said he was interested in learning more, noticing that the people who used to bring him food parcels seemed happy. 

10. The applicant said he was baptised two years prior to the current Tribunal hearing (and six months after commencing Bible Studies) at [Church 1] in [Suburb 1] by Pastor [A] and Pastor [C], along with some others.  As part of the ceremony he was asked by Pastor [C] to reject or deny Islam and accept Jesus Christ as his saviour and lord.  After attending Bible studies for around two months the applicant started to attend mass at [Church 1] in [Suburb 1]. He now regularly attends a Persian service at 7pm on Sundays at a church in [Suburb 2], which he described as a [church of specified denomination]. 

11. In Iran the applicant said he was born into a Shia Muslim family and was brought up as a practising Muslim.  However, when he undertook compulsory military service he stopped going to the mosque and no longer accepted Islam.  When asked if his family in Iran knows about his conversion to Christianity, the applicant said they do, as well as other relatives and friends because he told them directly and also because he posted the words of Jesus Christ on [Social media 1].  When asked why he did that, the applicant said because Jesus asked him to.  There is also a video of his baptism posted on [Social media 2] (a link was provided to the Tribunal).  The applicant said Jesus instructed and expects his followers to inform all tribes about the father, son and the Holy Ghost.  When asked about his family and friends’ reaction to his conversion, the applicant said in the beginning they did not call him as much.  His mother said he is an adult so he can choose his religion. 

12. The applicant said he is afraid of the Iranian authorities as a Christian convert from Islam on return to Iran, noting there are harsh penalties for apostates.  He said the regime’s concern lies with him returning and preaching about Jesus Christ, including starting a home church.  When asked he said that he will proselytise on return.  When asked how, the applicant said he will start with his friends and people like him who do not believe in their religion and preach to them about Jesus and his promises. He will also start a home church.  When asked what that means, the applicant replied that there is no church for people like ‘us’ in Iran.  When asked if he has proselytised in Australia, the applicant said he has, through inviting friends to Christianity.

13. At hearing the applicant’s representative submitted that during his military service the applicant lost faith in Islam, and put aside any religious practices.  Furthermore, the fact that he drank alcohol – which is very un-Islamic – is proof that he did not adhere to Islam.

14. Pastor [A] also gave oral evidence to the Tribunal. He said he is a pastor of [a specified denomination], initially founded by some [Country 2] people in Australia.  He founded the Persian ministry at [Church 1] in Australia in 2013 and official church services began in 2015 (every Sunday evening at [Suburb 2]).  He has also started study groups and bible classes, in various locations.  Pastor [A] said he also started the food bank ministry, which is how he first met the applicant in early 2016, introduced through a church member ([Mr D]).  He said the applicant was not in good shape at the time – mentally or financially – and he tried to help him by getting him to attend Bible Studies and spending time talking to him after class. Pastor [A] told the Tribunal the applicant regularly attended Bible Studies (which he still does) and six months later was ready to be baptised, unlike some others who are not ready even after three years, for example.   From his understanding the applicant was never a strong Muslim and was prepared to receive Jesus’ mercy.  He said the majority of the church members are happy with the applicant; he follows the Holy book on a regular basis; he tries to attend worship services on Sundays; and the Pastor can see that the applicant listens.  Pastor [A] said that the applicant is hungry for the word of the lord.

15. Pastor [A][10] said he also comes from an Islamic background in Iran and converted to Christianity.   He sought and was granted asylum in Australia in 2012.  In terms of the current situation in Iran, Pastor [A] said that minorities, who do not follow mainstream (Shia) Islam there, including Christians and Bahais, face a very tough time.  He said he has read some news about Christians in Iran being arrested.

    [10] Pastor [A] – who is originally from Iran - told the Tribunal that he changed his name in Australia in December 2016 and provided a copy of his change of name certificate as well as a copy of his study qualifications. 

16. Pastor [A] also told the Tribunal that they are the only [specified denomination] Persian ministry in the world and they do not hide anything: his name and other members and staff names are on the internet.  He said the Iranian government invest a lot of money to mine and extract data about Christians through the internet which is how they arrest a lot of Christians and Christian leaders in Iran.  Therefore, as a Christian leader he would not be able to return there.  When asked if a regular church member would be at risk in Iran, the Pastor said he is unable to clearly affirm that risk is there but he knows there is no guarantee.  He added that his younger brother has been detained and arrested (and had his leg broken) in Iran because of him; he managed to leave the country illegally and is currently in [Country 2] under UNHCR protection.

17. The Tribunal accepts the applicant has converted to Christianity, relying on the oral and written evidence of Pastor [A] and a copy of his baptism certificate provided.  It accepts that he attended Bible Studies in preparation for his baptism (and continues to do so), and regularly attends church in Australia.  It accepts that he has held himself out to be a Christian in Australia and has some knowledge of Christianity. However the Tribunal has concerns about the applicant’s motivation to convert to Christianity and claimed religious practice in Australia for the reasons that follow. 

18. The Tribunal’s main concern relates to the timing of the applicant’s interest in Christianity in early 2016, (which led to his baptism six months later), shortly after the (differently constituted) Tribunal affirmed the decision to refuse to grant him the protection visa on 9 December 2015.  At hearing the representative acknowledge that the timing does raise some suspicion as to the applicant’s motives.  However, he submitted that when the applicant first met Pastor [A] it was not to get to know Christianity, but to seek material aid from the church food bank because his payments had stopped and he had lost his work rights.  He was struggling financially and was in a worse situation mentally.  Pastor [A] invited the applicant to attend Bible Studies classes because he could see his dire situation and suffering.  Only after the applicant attended Bible Studies, the representative submitted, did he start going to church, and after a while the applicant realised that Christianity was something he could relate to. 

19. The applicant told the Tribunal that he initially went to church to get food and Pastor [A] indicated in his oral evidence that he first met the applicant through the churches food bank services before encouraging him to attend Bible Studies, after determining he was not in a good financial or mental condition.  The Tribunal accepts the applicant’s introduction to the church in early 2016 involved receiving food parcels given he was struggling financially at the time and receiving material help, and this may have been one of his motivations to engage with the church at the time.  However, the church is not the only charity – religious or otherwise – that provide such goods to asylum seekers, for example, in Australia and the Tribunal is not satisfied that this was his sole motivation at the time.

20. At hearing the Tribunal noted its concerns about the applicant’s motivation to convert to Christianity given the timing. The applicant responded that he has seen the miracle of Jesus and gave the example of what happened with his appeal.  Specifically, he said that at the time of his Federal Court case although Legal Aid had accepted his case a year before, no lawyer was allocated on the day of the hearing and he had to attend court alone.  However – ‘miraculously’ he claimed – the interpreter did not turn up to court that day and the judge gave him time to find another lawyer.  When he returned, with a barrister, he felt the Holy Spirit manifest in him and he was successful. He added that church members helped him cover the cost of the barrister.

21. Another concern relates to the fact that the applicant was unable to adequately explain, in the Tribunal’s view, the reasons why he allegedly decided to convert from Islam to Christianity.  At hearing he made vague and sweeping statements about his motivation to convert, for instance about getting to know and understand Jesus’ personality and character at Bible Studies.  However, when asked what specifically he liked about Jesus’ character the applicant replied with a general statement that no one has ever been born as pure and never will.  He added that Jesus was crucified for ‘our’ sins, gave vision to a blind person, calmed the storm in the sea and brought the dead back to life, which, whilst recounting some of Jesus alleged activities, does not necessarily describe his character.  Apart from these vague statements, the applicant did not provide any specific reasons why he was attracted to Christianity and why he no longer wanted to be a Muslim, apart from indicating that he stopped practising (Islam) whilst undertaking compulsory military service in Iran and that in Australia the Christians he met who delivered him food parcels seemed happy. 

22. The Tribunal has considered the submission that the fact that the applicant drank alcohol is ‘proof’ that he did not adhere to Islam.  For reasons set out earlier the Tribunal finds the applicant exaggerated his alcohol consumption (and related problems) in Iran.  The Tribunal accepts that drinking alcohol may be seen as un-Islamic by the authorities and some community members in Iran, and indicates that the applicant had stopped practising his religion there, which the Tribunal accepts.  However, it does not necessarily follow that the applicant is a genuine Christian convert because he stopped practising Islam, and may have engaged in activities – such as drinking alcohol – considered un-Islamic.

23. The Tribunal also found the applicant’s oral evidence about how (and when) he has allegedly proselytising in Australia to be vague and lacking in details.  For example, he said he would invite people to his religion and give Jesus’ message to everyone but provided limited details and context.  When asked further – specifically if he would proselytise or does proselytise – the applicant said he has invited friends to Christianity, to have faith in the Lord, but again failed to provide any further details or context.  The Tribunal finds the applicant did not proselytise in Australia and that he will not proselytise on return to Iran. 

24. As well, the Tribunal found the applicant’s oral evidence at hearing about his family’s alleged reaction to his claimed conversion was vague and somewhat implausible.  For example, when asked their reaction, the applicant said in the beginning they did not call him as much but that his mother said he is an adult so he can choose his religion. 

25. The Tribunal also considers it odd that the applicant chose to be filmed when baptised (and allowed it to be posted on [Social media 2]), told his relatives and friends in Iran about his conversion and promoted Christianity on [Social media 1].  When asked why he posted messages about Jesus on [Social media 1] at hearing the applicant answered that it was because Jesus had asked him to, noting that Jesus expects his followers to inform all tribes about the father, son and the Holy Ghost. 

26. Taking into account these considerations the Tribunal is concerned that that the applicant’s actions in attending church, Bible Studies and being baptised were motivated by his desire to secure residency in Australia, and not because he has genuinely converted to Christianity or because he fears religious persecution in Iran.

27. At hearing the representative argued that the applicant is not articulate and could not express himself well about the principles of Christianity, for example.  Nonetheless he has displayed an impressive knowledge of Biblical verses and gave strong answers as to why he changed religion, believing that Jesus helped him with his Federal Court case, he submitted.  The representative also argued that the applicant took a huge risk renouncing Islam in front of the church members when he was baptised, and agreeing to being filmed, which he would not have done just to get a visa.  Also, the applicant has continued to participate in church services and attend Bible Studies classes regularly – for two and a half years – which he would not do if he had ulterior motives. 

1. The Tribunal has considered the representative’s submissions, including that the applicant has established a significant level of commitment to his faith by continuing to regularly attend church and Bible Studies after his baptism.  He submits that evidence has been provided by Pastor [A] about the applicant’s commitment.  In reaching its conclusion the Tribunal has had regard to the oral evidence and letter from Pastor .  He attested, among other things, to the applicant’s attendance at Bible Studies and church, even after he was baptised in July 2016.  Pastor [A] recognised that the applicant was in need of help and spent time talking to him, invited him to attend service and Bible Studies and after six months the pastor determined he was ready to be baptised, noting that some others in his congregation are not ready after three years.  The Pastor remarked about the applicant’s commitment to Christianity and good character in general.

2. The Tribunal accepts the applicant has held himself out to be Christian in Australia, and accepts that Pastor [A] considers the applicant is a genuine Christian convert.  However, his evidence does not overcome the serious credibility concerns the Tribunal has with the applicant’s claims to be a Christian convert, as discussed. 

3. For these reasons, combined with the serious credibility concerns the Tribunal has with the applicant’s case overall as discussed above and below in this decision record, the Tribunal does not accept that the applicant genuinely holds Christian beliefs and finds that his conversion to Christianity and attendance at church and Bible Studies classes in Australia was not genuine. 

4. The Tribunal accepts that people may be drawn to Christianity for many different reasons and that, while a person may not initially be genuinely interested in Christianity, that conversion may become genuine over time.  It has considered the possibility that, since attending church and Bible Studies in Australia, the applicant has, in fact, become a genuine practitioner of Christianity.  However, for the reasons discussed above, in this case the Tribunal is not satisfied that the applicant was first drawn to churches in Australia because he was genuinely interested in Christianity and nor, on the evidence before it, is the Tribunal satisfied that he has now become a genuine Christian.

5. The Tribunal has considered whether the applicant will face a real chance of serious harm in the foreseeable future if he returns to Iran because of his conduct in Australia: for example his church attendance, attendance at Bible Studies, baptism, alleged proselytising and internet activities, reading the Bible, and talking about Christianity to friends and family.  The Tribunal accepts that the applicant has converted from Islam to Christianity in Australia. However, the Tribunal does not accept that the applicant holds Christian beliefs nor is a genuine Christian convert. Given this finding the Tribunal does not accept that the applicant will practice his Christian religion on return to Iran, including proselytising, nor will he say he was a Christian if questioned by the authorities on return (as submitted).  Although initially he became involved with the church in Australia for financial (and social) reasons, he will not need to on return to Iran, with his family and others there. 

6. The representative submitted that as the [Social media 2] video of the applicant’s baptism had been shared [many] times, it is possible that one of the viewers could be an agent of the Islamic republic.  At hearing the representative submitted that by agreeing to be filmed when he read out his declaration of faith to the members of the congregation and said he renounced Islam and does not believe in Allah, the applicant took a huge risk as the Iranian authorities think he is an apostate and should be slain by the government or any Muslim in the street.  The representative also submitted that the applicant has shared Biblical verses on social media, which is monitored by the Iranian regime. The applicant claims to have posted comments and information about Christianity on [Social media 1], although the Tribunal notes no evidence had been provided of these posts, and given its concerns with his claims to be a genuine Christian convert, the Tribunal does not accept his claims in this regard.  The Tribunal also notes (as mentioned earlier) DFAT’s report which states that the Iranian authorities have little interest in prosecuting returnees for activities overseas in relation to protection claims, including converting to Christianity.[11]  For these reasons the Tribunal finds the applicant does not face a real chance of serious harm from the authorities, or anyone else on return to Iran because of his conduct in Australia.

   [11] DFAT Country Information Report Iran, 7 June 2018 at 5.23 – 5.25.

7. The Tribunal notes the Departmental file contains a copy of a letter dated 5 September 2012 from [Mr E], a parish priest at [Parish 1], Northern Territory who stated that the applicant had attended Christian group every night.  At the current Tribunal hearing the applicant could not recall the letter, and thought his representative at the time must have submitted it.  Nonetheless, he said he attended church a couple of times whilst he was in a detention centre and that a pastor had visited and explained Christianity. Based on the applicant’s oral evidence at hearing the Tribunal accepts that he attended church a couple of times whilst detained years ago (not every night as indicated in the letter from [Mr E]).  However, it does not accept that this would lead to the applicant facing a real chance of serious harm from the authorities or anyone else on return to Iran.

   Non-practising Muslim

8. For reasons above the Tribunal does not accept that the applicant is a genuine Christian convert.  However, it accepts he is a non-practising Muslim and has considered whether he faces a real chance of serious harm from the authorities on return to Iran on that basis.

9. The Tribunal accepts the applicant stopped practising Islam when undertaking military service in Iran. 

10. In her written submission to the first Tribunal the representative refers to country information about the punishment in Iran for those who are considered apostates and the lack of religious tolerance there, especially for those who have denounced their faith.

100.   As discussed at hearing, country information indicates that atheists or persons without religious beliefs are unlikely to come to the attention of Iranian security authorities unless they seek to publicise their views.[12]  DFAT, in a 2016 report, state as follows:

[12] DFAT Country Information Report: Iran, 21 April 2016 3.57

DFAT considers it unlikely that individuals will be prosecuted on charges of apostasy. DFAT also considers it highly unlikely that the government would monitor religious observance by Iranians – for example, whether or not a person regularly attends mosque or participates in religious occasions such as Ashura or Muharram – and thus it would generally be unlikely that it would become known that a person was no longer faithful to Shia Islam. Perceived apostates are only likely to come to the attention of Iranian authorities through public manifestations of their new faith, attempts at proselytization, attendance at a house church or via informants.[13]

[13] Ibid at 3.55

101.   Country information indicates that less than 30% of Muslims visited mosques regularly and that Iranian authorities do not interfere with individuals provided that Islamic conventions are not challenged or violated in a visible manner.[14] 

[14] Gunes Murat Tezcur, Taghi Azadarmaki and Mehri Bahar, ‘Religious Participation amongst Muslims: Iranian Exceptionalism’ Critique: Critical Middle Eastern Studies’, Vol 15, No 3, Fall 2006 pp.221-222; Land info Iran Christians and Converts 7 July 2011 p.15

102.   Based on such country information, the Tribunal finds remote the chance the applicant will face serious harm on return to Iran as a non-practising Muslim. 

103.   The Tribunal notes in his statutory declaration provided to the first Tribunal the applicant stated that he does not believe in any religion and he has expressed his views in public (he does not elaborate).  He also stated that he believes in democracy and the separation of religion and state. However, at the first Tribunal hearing he said that was not true and confirmed that he only expressed his views to his friends.  On this basis the Tribunal finds the applicant does not face a real chance of serious harm from the authorities or anyone else on return to Iran on the basis of expressing his views in the past to be non-religious to his friends.

104.   On return to Iran the Tribunal accepts that as a non-practising Muslim the applicant will drink occasionally and not engage with religion.  However, based on the above country information (and country information regarding penalties for drinking alcohol in Iran, set out earlier) the Tribunal finds remote the chance that the applicant would face serious harm from the authorities or anyone else as a result.  His fears of persecution as a non-practising Muslim are not well founded.

Azeri ethnicity

105.   The applicant claims to be of Azeri ethnicity, which the Tribunal accepts.  He has not made any claims to have experienced any problems in Iran on the basis of his ethnicity, and when asked at hearing if he had any concerns as an Azeri if he returns to Iran, he said he has none.

106.   Nonetheless, the Tribunal has considered country information about the situation for Azeris in Iran.  As discussed at hearing, according to DFAT, Azeris – who make up Iran’s largest ethnic minority (at approximately 12.3 million) - are well integrated into Iranian society; they have a wide range of income and wealth levels, and have attained a range of education levels; they are on the whole better integrated into Iranian society, business and politics than are other ethnic minorities; they have substantial economic weight, and several of its members hold important positions in the state apparatus and in the armed forces.  DFAT state that despite this they are aware of some reports of official discrimination against Azeris, including claims that the government has prohibited the use of the Azeri language in schools, harassed Azeri activists or organisers, and changed Azeri geographic names.[15] 

[15] DFAT Country Information Report Iran, 7 June 2018 at 3.15 and 3.16

107.   The Tribunal accepts there may are some reports of official discrimination against Azeris in Iran, as reported by DFAT.  However, the DFAT report does not indicate that Azeris are at risk of discrimination that amounts to persecution, but that they are well-integrated into Iranian society.  On this basis, and given the applicant has not indicated that he (or his family members in Iran) have experienced any problems in the past on the basis of his ethnicity or that he holds concerns upon returning there as an Azeri in the future, the Tribunal finds the applicant does not face a well-founded fear of persecution on return to Iran on the basis of his Azeri ethnicity. 

Complementary Protection

108.   In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.  In this case, the Tribunal has found that the applicant is a national of Iran and the Tribunal therefore finds that Iran is the ‘receiving country’.

109.   For the reasons set out above (earlier), the Tribunal has found there is not a real chance the applicant will suffer serious harm on return to Iran from the authorities because he has outstanding court matters, because he has been harassed or harmed by the Basij or the authorities in the past for ‘un-Islamic’ behaviour, because of his alcohol use, as a non-practising Muslim, on the basis of his Azeri ethnicity, or as a returnee from the west and failed asylum seeker (including as a spy) or on the basis of his political opinion or imputed political opinion.  It also has found there is not a real chance he will suffer serious harm from his father on return.  In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[16]  It follows that the Tribunal does not accept there to be a real risk that the applicant would face significant harm if returned to Iran for any of these reasons. 

[16] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

110.   The representative submitted at hearing that given the applicant’s (low) profile with the Iranian regime because of his past consumption of alcohol, there is a great likelihood when stopped by security police at Tehran airport that he will be asked a number of questions, including about his religion and he would say he is Christian.  His problems would begin there, as a Christian convert (as well as failed asylum seeker).  He argued that if the authorities allow him into the country, the applicant would continue to practise his religion, read the Bible and talk about Christianity to friends and family and hold a church at his house, consistent with his practices in Australia over the past two and a half years.  Such behaviour would place him at risk if identified by the regime as a Christian convert (from Islam). 

111.   For reasons set out above and relying on the reasoning and evidence presented in relation to his refugee claims, the Tribunal accepts that the applicant has converted from Islam to Christianity in Australia.  However, the Tribunal does not accept that the applicant holds Christian beliefs nor is a genuine Christian convert.  Given this finding the Tribunal does not accept that the applicant will practice his Christian religion on return to Iran, including proselytising, nor will he say he was a Christian if questioned by the authorities on return.  The Tribunal therefore finds the applicant does not face a real risk of significant harm as a Christian or a Christian convert from the authorities, the community or anyone else as a necessary and foreseeable consequence of being removed from Australia to Iran.

112.   The representative submitted that as the [Social media 2] video of the applicant’s baptism had been shared [many] times, it is possible that one of the viewers could be an agent of the Islamic republic.  At hearing the representative submitted that by agreeing to be filmed when he read out his declaration of faith to the members of the congregation and said he renounced Islam and does not believe in Allah, the applicant took a huge risk as the Iranian authorities think he is an apostate and should be slain by the government or any Muslim in the street.  The representative also submitted that the applicant has shared Biblical verses on social media, which is monitored by the Iranian regime. The applicant claims to have posted comments and information about Christianity on [Social media 1], although the Tribunal notes no evidence had been provided of these posts and, combined with its concerns with his claims to be a genuine Christian convert, the Tribunal does not accept his claims in this regard. 

113.   The representative also submitted that the church which the applicant attends is monitored by the Iranian regime.  Pastor [A] gave evidence to the Tribunal that he believes the Iranian authorities monitor his church, particularly their membership and on line activities. 

114.   The Tribunal accepts the applicant has been baptised and has attended Bible Studies and church in Australia.  It accepts that there is a video of the applicant speaking at his baptism which has been uploaded on [Social media 2].  The Tribunal has some doubts as to whether the Iranian authorities have or would come to know of this fact or whether they monitor online posts and information of the applicant’s church.  However, even if they do the Tribunal is not satisfied that this would lead to the applicant facing significant harm in Iran from the authorities or anyone because of his baptism, or his attendance at church or church-related activities in Australia, particularly given the Tribunal’s finding that the applicant would not practice his Christian religion on return to Iran.  It notes in this regard DFAT’s advice as set out earlier that (in relation to risks for returnees):

According to international observers, Iranian authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims.  This includes posting social media comments critical of the government – heavy internet filtering means most Iranians will never see them – converting to Christianity, or engaging in LGBTI activities. In such cases the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists.[17]

[17] DFAT Country Information Report Iran, 7 June 2018 at 5.23 – 5.25.

115.   Given these considerations, the Tribunal finds the applicant does not face a real risk of significant harm from the authorities, the community or anyone else on the basis of his conversion to Christianity, practice of Christian beliefs, involvement with church activities in Australia and posting of Christian material online, as a necessary and foreseeable consequence of being removed from Australia to Iran.

116.   Having considered the applicant’s claims singularly and cumulatively, the Tribunal finds that that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Iran there is a real risk that the applicant will suffer significant harm. The Tribunal therefore finds the applicant does not satisfy the criterion set out in s.36(2)(aa).

CONCLUSION

117.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

118.   Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

119.   There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

120.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Nicole Burns
Member

Documentation Center (United States), July 2013, Article 637, CIS25936; and ‘Iranian Students Lashed 99 Times Over Coed Party’, New York Times (United States), 27 May 2016, CX6A26A6E4650

(United States), 16 August 2018; ‘Iran: 20 Girls and Boys Arrested in a Party’, Iran Human Rights Monitor (United States), 21 May 2018; ‘Iran: 40 men and women arrested in mixed party in Amol’, Iran Human Rights Monitor (United States), 20 February 2018; ‘Iran Human Rights Monitor, Monthly Report—January 2018’, Iran Human Rights Monitor (United States), 4 February 2018; ‘Hundreds Arrested in Tehran During Yalda Winter Solstice Celebration’, Center for Human Rights in Iran (United States), 22 December 2017; ‘Iran: Arrests 17 people at mixed-gender party’, Iran Human Rights Monitor (United States), 31 October 2017; ‘Iranian directors see little respite despite support for Rouhani’, Al Monitor (United States), 19 January 2018.