1709560 (Refugee)

1709560 (Refugee) [2021] AATA 685 (18 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1709560
COUNTRY OF REFERENCE:                   Iran
MEMBER:Rodger Shanahan
DATE:18 January 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 January 2021 at 3:43pm
CATCHWORDS
REFUGEE – protection visa – Iran – religion – Christianity – social media activities – criticism of the Qur’an and Islam – credibility concerns – lack of a spiritual ‘journey’ – suspicious timing of baptism – genuineness of conversion – failed asylum seeker – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5,36, 65, 499
Migration Regulations 1994, 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 and Border Protection on 12 April 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Iran, applied for the visa on 5 October 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 themselves 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 the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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 following is the written statement that accompanied the applicant’s protection visa application:
The following is a summary of my claims for protection. It is not an exhaustive statement of what has happened to me in the past or the reasons why I cannot return to my country of origin. I will provide further information in relation to my claims during any interview with the Department of Immigration.I fear that if I was forced to return to Iran, I would be seriously harmed because of my religious conversion in conjunction with my previous work as a voice actor on radio. I fear this harm from the various security agencies in Iran, including the Basij, SEPAH and religious authorities.
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I was born in [City 1] in Iran, on [date]. I have Kurdish ethnicity and I am a Christian. I have been in a de facto relationship with [Ms A] since [2016]. We do
not have children. Most recently I worked as [a] manager at [a workplace]. I went to university in [City 1] which is close to my family, at the
same time, I was studying [a subject] and received my [qualification in that subject]. I completed a Bachelor [degree]. After my degree I did a course on dubbing.
I started working doing dubbing and voice overs on radio. This was a full-time job. On the side I made short films. I did not publish them in Iran because there was no way to do that. [Social media] is blocked. Since coming to Australia I have put my films on [social media]. I was also interested in producing music and I recorded one song “[named]”. I could not put my real name on the recording because I was working on radio. I used the pseudonym [Name 1]. If my employer knew that I recorded songs on [Radio station]. I would get fired and maybe get in trouble with the [Government agency 1]. [Radio station] was often blocked by the [Government agency 1] because it is against Islamic values. My song is still available on [Radio station].
I arrived in Australia on a student visa [in 2014].
While working in Iran on radio and the music industry, I was constantly monitored by the [Government agency 1] They carefully scrutinised everything that we said to make sure that it didn’t go against Islam. Sometimes the officers of the [Government agency 1] told us to change a phrase in a radio play as they considered it not aligned to Islamic
principles.
Several times I was summoned by the [Government agency 1]. I was questioned about my religious practice. I was asked how many times I prayed and if I went to the mosque. I was told that if I ever wanted to leave the country I would have to get their permission.
The only way I could continue my work was put my head down and follow their rules. I did so but it meant that I was fairly limited in terms of my artistic and creative pursuits. Many other artists suffered the same close monitoring. If the [Government agency 1] don’t like you or think that you are not promoting Islamic values it could be big trouble for you. Lots of artists and musicians have been arrested on false charges.
For example, Amir Tataloo an underground singer was recently arrested. He had been arrested and summoned many times. He had been silent regarding what the authorities have asked him. But now he has been accused of being a deviant and arrested and taken to Evin prison.
I decided to leave Iran in 2014 to study in Australia because I felt so restricted.
Since coming to Australia I have been introduced to Christianity through my partner [Ms A]. [Ms A] has been going to church for the last 1 Vi years. She initially went with friends in [Country 1]. When my partner [Ms A] and I were still dating, she invited me to come to church
together. I started going church on Sundays with her, and it is in the church, I found the peace that I was always looking for. It was like God was talking beside me and leading me what to do.
Even though I am Iranian and brought up a Muslim I feel that Christianity is still part of my culture. I learned about the three kings who visited Jesus after he was born. I believe that these kings came from Persia and so there is Christianity in my country’s history. It is not such a foreign religion to Iran.
We moved around a lot because we both didn’t have much money. We had to go to different churches which are close to where we were living. We went to the church in [Suburb 1] a few times. In June 2016, we moved to [Suburb 2] and hopefully we don't have move again in a long time. It was like God lead us. We joined the warm family of [Church 1], and met Pastor [B], [Mr C] and other warmhearted people in the church.
I really feel comfortable and happy in the church. It is the opposite feeling that I had to religion in Iran. The people I meet here in the Christian church are very kind and they teach me a lot. I am joining Bible study every Thursday night which allows me to share my love of God with other Christians. I also joined Christianity Explained classes in order to understand more about our heavenly father and Jesus and be closer to them.
Intellectually, I knew that Jesus had died on the cross for sins, but after joining Bible study and Christianity Explained classes with [Mr C], I began to realise also in my heart that God loved me so much that he died for me and I began to see the full extent of sin in my life. One Thursday night, after Bible class, I was reading Bible at home, and I prayed before I slept and asked Jesus to come into my life, lead me to wherever I should go, and be my Lord. It was amazing. The emptiness that I had in my life was filled with Jesus. I had joy and happiness. I knew my sins were forgiven, because Jesus has died for my sins, and I now have eternal life because of him. And I now have a purpose for living that I accepted Jesus Christ is my Lord and Saviour, and I would like to serve him for my whole life that I put Jesus before my career, my
ambition, my desire, my popularity and all dimensions of my life.
I was formally baptized into the [Church 1] [in] September 2016 with [Ms A]. We had completed all the required courses to get baptised. It was a special day for me. I fear that if I am returned to Iran I will surely be interrogated on my arrival at the airport. The cyber police are very strong. When I was doing my military service with the police I saw the technology and surveillance methods. There are many girls and models who have been arrested from their photos on [social media]. Many of them leave the country because they are afraid. They were forced to make a public confession saying that what they did was against Islam.
As a former media worker my social media was always monitored. The cyber police will definitely have seen all my work on [social media]. There are a few photos of me on [social media] wearing a cross. The police can clearly work out from my photos that I have left Islam and become a Christian.
If I return to Iran I will be interrogated about my time in Australia. If they wanted to get you, they can physiologically pressure you into a false confession. If I confess to being a Christian, they can either execute me on the spot or they can put in prison for a long time.
As I have been on the radio, the government would be very concerned that I am a Christian, as I could start talking about my religion. I was rebellious young guy who was always at odds with the authorities There is nowhere in Iran I could live safely as the laws regarding conversion are
applied across the country. I would be at risk of harm from the Basij, Sepah and other religious authorities in any city. In addition the [Government agency 1] operates across the country. They monitor all the social media. If I am called into one of their offices and they realise I am a Christian, I will be sent to prison immediately.
I can’t appeal to the authorities in Iran for protection as because it is the authorities that I fear. There is no one in Iran who can protect me.
AAT Hearing
The applicant’s partner was sworn in as a witness. He was also advised that if there were other people he wished to call as witnesses then the Tribunal would need to be advised. The applicant then claimed that Iranian security organisations would arrest him, jail him and make him confess because he was now a Christian who shared his beliefs on social media. There was some confusion regarding a claim about his social media profile and whether it was a separate claim. He said he had started a [social media] channel about two years ago about his religious faith and about mistakes in the Qur’an. He believed the same people would arrest, detain and question him because of his social media. He had no other claims.
He was asked to outline his faith journey to Christianity and claimed that while he was in Iran he was brought up in a Muslim country and believed in God but not Islam. When he came to Australia, his partner introduced him to Christianity. She had studied at [a] University in [Country 1]. He came to Australia in October 2014 on a student [visa]. He didn’t complete the degree as he had an opportunity to change his sponsorship on a 457 visa but the business stopped after a year and he couldn’t be sponsored any more.
Asked if he went back to university, he said he looked for other sponsors but couldn’t find any. He decided to apply for a student dependent visa with his partner but was rejected – he said he believed they may have written a date wrong as to when they met but couldn’t relay remember. He couldn’t really remember the actual reason other than the date, he had been together with his partner for five years. It was put to him that the error must have been of some concern given they refused him, and he was told he would be given time after the hearing to provide a copy of the decision.
Asked how long he studied for, he claimed he attended [the] training but not any degree classes. He didn’t finish the [training] classes because he could go on the s 457 visa. Asked if his aim was to study given he came on a student visa, he said it was this and to experience adventures and so he began to work.
He met his partner at the university through someone who introduced them. She was studying [Course 1] too – it was pointed out to him that he wasn’t studying [this course] and he said the classes were in the same building. Asked to confirm that [two] classes were in the same building he then said they were close by. He was advised that he needed to be accurate with what he said as the Tribunal needed to assess his credibility – he claimed that he said they were at the same university.
He again said that a [named person], who studied [with] the applicant, introduced them. He knew her because he had started the [Course 1] classes after having done some [training] classes with the applicant and socialised with him. [The named person] though they should meet. His partner was currently on a bridging [visa]. The pair met around mid-2015 maybe earlier. They became defacto in 2016.
He went to [a] church in [Suburb 1] with her at the end of 2015 on Sundays sometimes and he was a bit aloof from Christianity to start. He learnt more about Jesus and his nature. He became more curious to study about Jesus and it didn’t feel foreign. His partner hadn’t been baptised before but she told him that she went to the [Suburb 1] church before they met.
They went to [Suburb 1] for three to four months and then they moved to [Suburb 2] a rented an apartment and searched around for churches and went to [Suburb 3] at a church run by [Mr D] then went to [Church 1]. This was around mid-2016; two or three months before they went to [Mr D] but didn’t feel comfortable there and [Suburb 4] was closer. They asked them to get baptised but they told them to wait and take Christianity courses – they were baptised [in] September 2016. They did classes for two or three months.
They were taken through the bible class and he and his partner were baptised together. Asked whether he explored any other faiths he said that he didn’t. Asked why he didn’t, he said he felt it was just right for him and he was busy exploring Christianity. Asked why he didn’t explore other Christian faiths he said that when you looked at other branches like Catholicism they had extra books and they did good deeds to get salvation. He thought it was like Islam.
It was put to him that Baptists asked people to do good things, and he said that as long as you were Christian and accepted God and confessed your sins you had salvation. His bible teacher told him about Catholicism. Asked what other books Catholics had, he claimed they had the Book of Enoch but didn’t really know. He said he wasn’t sure but the Baptists said the other books weren’t really relevant.
It was put to him that he was saying what he didn’t like about the catholic church but yet he had not spoken to anyone in the Catholic, Anglican or Presbyterian faiths to find out what they believed. He appears to have taken a Christian faith journey without exploring any other Christian faiths. He said he began with Baptists because his girlfriend was there. Asked whether he wanted to know about other branches of Christianity in order to understand what the best observation of Jesus was. He said nothing would change his Baptist faith.
He was asked how he knew he wouldn’t change if he hadn’t explored the others – it could have changed his views or reaffirmed them. He also hadn’t explored any other faiths. He said he never had a chance but said that Jesus was crucified for him. He felt it in his heart that Baptists were the group he felt in his heart was for him. It was put to him that the Tribunal couldn’t see into his heart but had to look at his actions and a formerly non-religious person zeroing in on one religion without exploring other faiths raised questions.
Questions were also raised by the fact that his business visa was cancelled in September 2016, he was baptised [in] September 2016 and applied for protection the following month. It raised questions in the member’s mind about how tactical his actions may have been by zeroing in on the Baptist faith that didn’t require a long period of membership before baptising people – particularly given he had not explored any other faiths. He claimed he never wanted to apply for protection even though he knew he could. He didn’t want to be a stereotypical person that people thought was being baptised for refugee purposes.
He knew he was in trouble because of his radio activities, but applying for protection was his last option as his other visas failed. Asked why he got baptised quickly and he said it wasn’t quick. His visa was cancelled on 20 September 2016 and he was baptised [later in] September. It was put to him that this was [a few] days after his visa was cancelled. This raised concerns in the Tribunal’s mind.
Asked why his partner waited so long to get baptised if she had been to [the] University in [Country 1] and was at the church in [Suburb 1] since 2015 and he said he didn’t know. He had tried to get baptised at [Mr D]’s church because they were doing a group baptism and the timing didn’t work. At [Church 1] it was just he and his partner. He said they just got baptised on the Sunday – he claimed he didn’t know that the visa had been cancelled. They were still attending the [Church 1].
Asked how he would practice his faith on return to Iran, he said it would be risky but may look at house churches but they were monitored. Asked if there was a Baptist church in Iran, he said he didn’t know. He didn’t know if there were churches but said there would be Catholic and Armenian churches. Asked if he had looked up on the internet and he said he had but there was nothing like that. He hadn’t checked whether there were other churches and he said he hadn’t. He was asked again if he had checked whether there were any churches and he said that he hadn’t.

Nobody in Iran knew that he was Christian. Asked why there would be a problem if no one knew and there was no Baptist church in Iran, he claimed that he would feel the need to chat with friends and also on-line. He didn’t currently chat with friends in Iran as he didn’t have many there and didn’t want to put the ones he had in trouble. He was asked why he would chat with friends in Iran if he did not do it from here, and he claimed that he chatted with them online via his [social media]. He began this channel in mid- 2018. Asked when his protection visa was denied, he claimed that it was at the end of 2016.
He said he started promoting Christianity two years after his visa was rejected. He used [social media] before but it was monitored and you could put more on [social media]. He was asked why he only began this after his visa was refused, and he claimed that it was a long journey as he had to make sure what he was putting up was correct.
It was put to him that he claimed in his statement that he decided to start his [social media] channel in April 2018 because there wasn’t any credible video about Farsi on the internet. It was put to him that there was no shortage of Christian programs in Farsi on the internet prior to April 2018 so the Tribunal wondered why he felt the need to add more after his visa was refused.
He claimed that he introduced himself at each video and showed courage and thought he could do it better. Nobody criticised the Qur’an or spoke about Christianity the way that he did. He was told about s 5J and it was put to him that timing of his attraction to the church, his baptism was suspicious with respect to his submission of a protection visa. The same held for his uploading of videos that criticised the Qur’an was equally suspicious and could lead to a view that his attraction to Christianity was not genuine.
He claimed that he was in Australia and felt safe to speak about Christianity this was. He had been doing this for four or five years and had been doing volunteer work and going to church every week for so many years. He agreed that as a Christian he should be tolerant of others – he was then asked why he had to denigrate Islam rather than just promote his Christianity (and by inference against Islam). He claimed that as a Christian he had to speak to the truth and he believed that it was not un-Christian. The Muslim audience had their mind closed and they had to be convinced and he then disputes what is in the Qur’an. He doesn’t try to denigrate Islam. He wants to open people’s eyes.
Asked if he was criticising Judaism or Hinduism he said he was speaking to a Farsi Muslim audience. His criticism was a way of attracting an audience – the same was with his music. This was important to him. If he just spoke about Christianity he would get far fewer followers. That was why he spoke against Islam without denigrating him. He received much criticism because of what he did.
The social media accounts were not in his own name, it was in the name [Name 2]. Asked why he didn’t do it in his own name, he said that the music wasn’t in his name but he introduced himself on his [social media] video in his own name. Asked if the [social media] was in his own name he said that it wasn’t and it was on a site called [name deleted]. On each video he introduced himself in his full name which he thought was important. People have already criticised him saying he was hiding in the foreign country. Asked why his social media account wasn’t in his name, he claimed that his artistic name may be more noble to follow and the name [Name 2] was similar to his name. Asked why he didn’t use his own name if he believed in Christianity and his faith and that God was on his side and he said that he had some TV interviews coming up [and] would likely use his real name there.
Country information was put to him that the Iranian government wasn’t interested in failed asylum seekers who had claimed to have converted. He said his sister was arrested for two months and his parents received a phone call regarding the fact that the government was monitoring their son’s online accounts and they could get him back here. This was a month ago, about October 2020. They hadn’t received calls before. His videos had been up for a month and a half. He said his videos were uploaded by another site and he had a million followers – the videos were not in his name.
His songs were put up about one and a half or two months ago. They were critical of the government and it was put to him that he had posted songs critical of the government two months prior, even though he knew he had a protection and other visas refused. He said that these songs were viral as he knew they would be. He was also told that these songs could also fall under s 5J (6) given the Tribunal’s concerns over the timing of his posting. He claimed that he chose to do this because it was his responsibility and a way to get more attraction to share his faith with more people. He felt safe to do this in Australia.
Asked if there was any evidence about the phone call to his parents and he said he didn’t have any. He had a copy of his sister’s prison document. Asked if he had an original so the Tribunal could check the original, he said that he didn’t. Asked about her arrest, he claimed she went out to hold a candle vigil in Karaj after the shooting down of the Ukrainian airline. Asked if he had any evidence of this such as media reports of the protests, he claimed that the Tribunal could check with the embassy.
His sister was on bail awaiting sentence. Asked if he could provide any evidence of these non-violent protests in Karaj, he said he would try but didn’t know if he could. He had an expired Iranian passport and hadn’t tried to renew it. He was currently working at [workplaces]. He believed the Iranian authorities were monitoring his social media page and was asked why they waited for two and a half years before they phoned his parents. He said it was after his songs went viral, and his sister was arrested so they worked out his activities. Asked how they knew this they said the authorities told her sister they knew what the applicant was doing. His mother was also threatened with having her other daughter jailed. Nothing had happened to her though.
His partner was called as a witness. She said that he was doing the normal thing that every Christian would do. He has his faith in God and is teaching children the bible in church which showed how trusted he was. The Tribunal had no questions of her.
Pastor [E] was then called by telephone as a witness. He was in semi-retirement and was an interim pastor at a number of churches, including at [Church 1] where he served. The applicant was already baptised when he got there. The applicant attended one of the services that the pastor didn’t normally attend. He knew the applicant for a bit over two years but had irregular contact with him although on quite a few occasions. He led the children’s after-school group but normally worked with other pastors.
He believed that the applicant was involved in the church and spoke of his faith in a natural way. The previous pastor (who had baptised the applicant) believed he was a genuine Christian. Asked if it was unusual for the applicant to teach the bible he claimed that there were others there to help and they were primary-aged children he taught. Asked if he knew about his immigration status, he claimed he only knew it second-hand. He believed the applicant was waiting to find out about the resolution.
The applicant asked to call Pastor [F], who knew the applicant better and was present at the baptism. He spoke via telephone and said that he knew the applicant from 2017/18 and he could vouch that he was a good man. He led the service at the applicant’s baptism and made sure that he was convinced of what he was doing but didn’t take him for training in Christianity. He didn’t really know about his migration status at the time and all he knew was in the statement.
The applicant was asked about his work in the radio station in Iran. He claimed that he did a show where he did different accents – the show was live but part-time. It used comic actions to get them to listen to other [public safety announcements]. It was put to him that public safety announcements didn’t sound very controversial. He claimed it wasn’t sensitive but was considered a sensitive employee on live radio so they were monitored for what they said. The audio director monitored them – they did live and pre-recorded.
Asked why he they enquired about his religious practices, he claimed this was for anyone doing live, or if they didn’t wear proper attire. They had to wear a shirt not a t-shirt to the box. He said the radio was like the military – they checked you up and down. At university there were dress codes. It was put to him that you could wear t-shirts at university and he said it depended on what university it was, elections and the season. He reiterated that he loved his faith and did volunteer work. He was given additional time to provide the information he had been requested.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a student visa [in] October 2014. He applied for protection on 5 October 2016. The Tribunal accepts that the applicant is an Iranian national and his application will be assessed as such.
The Tribunal exercised its discretion to hold the hearing by MS teams video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
The applicant is a [age] year old single Iranian man In a defacto relationship with a woman. He claimed that the Iranian government would arrest and jail him because he had converted to Christianity, and because he had started a Christian [social media] channel that disparaged the Qur’an and Islam. He had no other claims.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and find that she fabricated his claim in order to be granted a protection visa.
Conversion to Christianity
While I accept that the applicant has been baptised and attends church, I do not accept that this is genuine, but rather has been done tactically in an attempt to create a refugee profile. I acknowledge that it may be difficult to determine what is truly in one’s heart, and that there is no set pathway to finding and converting to the Christian faith, however the Tribunal has had regard to the applicant’s overall credibility and his actions (or lack thereof) in coming to this finding.
The first issue is the lack of any sense of religious discernment, curiosity, or what one may refer to as a faith journey. The Tribunal accepts that not everyone has the same journey, but the applicant doesn’t appear to have taken much of a journey at all in terms of exploring faith systems. He said that he felt right about the Baptist Christianity straight away, and only he can know whether this is true.
Yet for someone who did not appear to have any interest in religion before he came to Australia, his lack of inquisitiveness in exploring other faiths strikes the Tribunal as unusual. And his understanding of other branches of Christianity such as Catholicism was confined to what he had been told at Baptist religious classes. He claimed that nothing would change his Baptist faith and that the Baptist faith was in his heart. It seems curious that he could have adopted this rather rigid view of a branch of Christianity without having made any inquiries into the other denominations.
Although he said he never had a chance to explore the other faiths he never said why this was the case and from his testimony I am satisfied that he had ample time if he were inclined to any degree of religious curiosity. I also note that his girlfriend directed him towards the Baptist faith in the first instance, although his girlfriend was not Baptist herself, but had allegedly gone to a [university] in [Country 1] but was not baptised while there. He was unaware of why she had not been baptised in [Country 1] which again does not indicate any degree of religious curiosity on his part
While the lack of a spiritual ‘journey’ raises questions in the Tribunal’s mind regarding the truthfulness of his conversion, of more concern is the tactical timing of his baptism. He claimed that he went to a Baptist church in [Suburb 1] for a few months in 2015, however no evidence fo this has been presented and in the absence of such evidence I do not accept that he did. By his own admission he said that he began attending the [Church 1] in mid-2016. There is a supporting letter from the pastor of the church who says that he began attending in 2016 so I am satisfied that his attendance at this church dates from mid-2016.
Although the applicant claimed that he didn’t get baptised quickly, it transpired that his business visa was cancelled on 20 September 2016, he was baptised [a few] days later [in] September 2016 (folio 58) and then applied for protection in October (the application was signed on Monday 26 September but not lodged until 8 October). I do not accept that he didn’t know that his visa had been cancelled, as he produced no evidence that would support this, and the applicant had had a series of bridging and other visa applications and it is reasonable to believe that he would have been alive to checking on the status of the applications.
I also note that he also said that earlier in 2016 he attended but did not remain at Pastor [D]’s Baptist church. He said that he tried to get baptised there but the church was doing a group baptism and the timing didn’t work. He and his partner were the only people being baptised at the [Church 1] . It raises serious concerns in the mind of the Tribunal regarding the motivation for the baptism, given he appeared to be motivated by the church’s willingness to baptise them quickly as Pastor [D]’s timing did not work for the applicant because that church was waiting for a group baptism to take place, and the applicant subsequently started going to [Church 1] and signed his protection visa application the day after his baptism.
I have taken into account the written and oral testimonies of witnesses that attested to the applicant’s genuine Christian faith, and I believe they were given in good faith. None of them however were familiar with the applicant’s immigration status, and the Tribunal gives more weight to the lack of any sense of a faith journey, the selectiveness of his approach in choosing a church based on their ability to baptise him, and the very deliberate timing regarding the baptism and the protection visa application as an indicator of the applicant’s true motivations for joining the Baptist faith.
I accept that the applicant is indifferent to Islam or a non-practicing Muslim. Country information indicates that religious observance is considered a private matter, not a state one, that a significant proportion do not attend mosque and that there is a low risk of societal or official discrimination because of this.[1] Because I do not accept that the applicant has genuinely converted to Christianity but that he is a non-observant Muslim, it follows that he would not seek to practice Christianity in Iran upon return, but that there is not a real chance that he would face serious harm for being an unobservant Muslim.
Religious Videos
[1] DFAT Country information report – Iran, 14 April 2020
For the same reasons as I find that his establishment of a [social media] channel and his making of songs that reflect a pro-Christian and anti-Islam bent are not indicative of a genuine Christian identity. He had claimed that his social media accounts were monitored by the Iranian government and that they would know he had converted to Christianity because he wore a cross in some photos. I note that a copy of his [social media] site was not in his name but that it also noted his occupations/role as ‘director of funny videos’, actor, model and fitness. There is nothing in those descriptions that indicates a religious orientation.
He claimed in his pre-hearing statement that he began writing songs in 2020 and that he started a [social media] channel in April 2018. He said when asked that his protection visa application was denied at the end of 2016 (it was actually May 2017). He claimed that he began his [social media] channel because there weren’t any credible Farsi-language channels on the internet.
A quick internet search reveals that there is no shortage of Farsi-language Christian material including sermons, bible teachings and songs from people using their own name. I am therefore not satisfied that his motivation for producing his own was not because he could do it better as he subsequently claimed, but rather because he was seeking to create a profile in support of his protection visa application. The same goes for his decision to upload songs critical of the Iranian government in 2020 even though he knew he had a protection visa claim that had already been rejected and he had not done this previously.
Because of the lack of any pre-existing interest in religion before his arrival in Australia, his lack of any evidence of a spiritual journey that examined other faiths or faith systems, and particularly the suspicious timing of his baptism at the [Church 1] and subsequent submission of a protection visa application, I have not considered his motivation for taking these actions described above to be a genuine reflection of his faith and therefore I have disregarded these actions in accordance with s 5J(6).
Sister’s Arrest and Questioning
I do not accept that his sister was arrested for protesting about the downing of the Ukrainian aircraft by Iranian forces in January 2020. He was asked to provide country information in support of his claim and he provided news links that indicated protests and vigils were held in a number of cities including Karaj, and that some people were arrested in Tehran and Amol, there were no reports of arrests in Karaj.
I have also taken into account the photo of what he says is a prison document for his sister but lend it little weight. He was asked to provide the original post-hearing so it could be checked but he claimed in a post-hearing email that she needed it for her upcoming trial. The document itself appears that it could have been produced on any home computer, country information indicates that paper-based documents are relatively easy to obtain through fraudulent means in Iran[2] and there is no additional court documentation even though the people in the other cities who were allegedly arrested have already had their trials concluded and sentences issued.
[2] Ibid.
Because I do not accept that the applicant’s sister was ever arrested, it follows that she wasn’t interrogated or threatened, she was never asked about the applicant’s activities in Australia, nor was her mother threatened. I also do not accept that the applicant’s parents were threatened in a phone call from the government in which the caller said they could return the applicant from Australia after the song [named] was released. This relies entirely on the applicant’s oral testimony which I have found lacks credibility.
Other Issues

Although he made no direct claim on the basis of being a failed asylum seeker, it was raised by his agent in a pre-hearing submission and I have included it for completeness’ sake. To begin with I am not satisfied that the applicant will be involuntarily returned to Iran either now or in the reasonably foreseeable future. The Iranian Foreign Minister during his March 2016 visit to Australia stated that Iran would only accept failed asylum seekers from Australia who returned voluntarily.[3]
[3] >
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 unless they were the subject of adverse official attention prior to leaving Iran they face a low risk of monitoring, mistreatment or other forms of discrimination. Iranian authorities also have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including posting social media comment critical of the government or converting to Christianity[4].
[4] DFAT Country Information Report – Iran, 14 April 2020
I also do not accept that the applicant was summoned by the [Government agency 1] and questioned about his religious practice and warned that he would need to get their permission if he ever wanted to leave the country. This relies entirely on his oral evidence which I have found lacks credibility.
The applicant also appeared to do radio voiceovers and public service safety announcements which were hardly sensitive topics likely to attract adverse attention form authorities. A photo he provided of staff at the radio station where he worked showed clean-shaven men in collared shirts (at least one with short sleeves) and women in a range of head coverings, some loose of pushed back well on the head. None of this indicates a strict adherence to conservative dress and is more like what the member has seen Iranians dressed in on the street during his visit to the country. I also note that he was also able to leave the country without difficulty which indicates that the authorities had no interest in him at the time he left Iran.
Further, I do not accept that the applicant would be persecuted for any artistic expression either now or in the reasonably foreseeable future. He didn’t make the claim himself but it is contained in the agent’s pre-hearing submission. Again, whatever artistic work he may be referring to is contained on social media sites that are not in his own name and therefore wouldn’t be attributed to him, even if the Iranian authorities were interested. He has claimed that he had a song hosted on the online [Radio station], a site he claimed is at times blocked by the Iranian government. He provided no evidence to support this claim so I am not satisfied that this is the case. Regardless, he doesn’t use his own name so he would not be linked to the piece even if he had recorded such a song. Because he has been careful to avoid using his own name for artistic product I am satisfied that he would do the same in the future.
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 s 5J(1)(a) reason either now or in the reasonably foreseeable future.
Complementary Protection
Although I have disregarded the applicant’s online activities for the purposes of the applicant’s refugee claims, I have had regard to them in assessing his claims relating to s.5J(6). Country information indicates that those posting content openly critical of the government and pushing moral boundaries may attract adverse attention, even if they are abroad. To avoid detection, critics use aliases.[5] I note that the applicant’s social media platforms are variously under the name [Name 2], [Name 3] and [Name 1].
[5] Ibid
I am satisfied that this exhibits a degree of security consciousness sufficient to avoid the interest of Iranian authorities or of any individual who is critical of his work or views. While I note that the applicant has claimed that his face is shown in several of these entries, and that he introduces himself on the anti-Islam [social media] videos, no evidence of this was provided to the Tribunal. Regardless, there is no indication that the Iranian authorities use facial recognition technology to identify such people or, even if they do (or if the applicant did actually introduce himself on the videos) that they are interested in such people if they are failed asylum seekers.
I do not accept that the applicant has genuinely converted to Christianity, has or would seek to practise or promote Christianity in Iran, or that the applicant will be imputed with being a Christian and/or apostate through his church attendance, religious activities or baptism, or that he has or will come to the attention of the authorities for being a non-observant Muslim.
I also do not accept that the applicant’s sister has ever been arrested and detained by the authorities or that she was questioned about the applicant’s role in Australia, nor do I accept that the applicant’s mother has received threatening phone calls from the government concerning the applicant in Australia, or that the authorities would be interested in him for any artistic expression he may have exhibited. Because of these reasons I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).]
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2021] AATA 685

18 January 2021

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