1709914 (Refugee)

Case [2020] AATA 5699

1709914 (Refugee) [2020] AATA 5699 (23 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1709914

COUNTRY OF REFERENCE:                   Iran

MEMBER:Simone Burford

DATE:23 December 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first and third applicants satisfy s.36(2)(a) of the Migration Act; and

(ii)that the second applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first applicant.

Statement made on 23 December 2020 at 1:19pm

CATCHWORDS
REFUGEE – protection visa – Iran – religion – Christian covert – Catholic – perceived apostate – genuineness of conversion – continuous connection and commitment to the church community – would seek to continue to practise the Christian faith in Iran – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5F, 5H, 5J, 5LA, 36, 65, 423A
Migration Regulations 1994, Schedule 2

CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473

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 and Border Protection on 18 April 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

  2. The applicants who claim to be citizens of Iran, applied for the visas on 10 February 2015. The first applicant is [an age]-year-old man from Esfahan, Iran. The second applicant is his [age]-year-old wife from Mazandaran, Iran.  The third applicant is their son who was born in Iran prior to them coming to Australia. 

  3. The delegate refused the applicants protection visas on the basis that the delegate was not satisfied that the first applicant was a person in respect of whom Australia has protection obligations as outlined in the Act, and was not a member of the same family unit as a non-citizen in respect of whom Australia has protection obligations. The applicants provided a copy of the delegate’s decision with his application for review.  The delegate did not accept (among other findings) that the applicant’s claimed conversion to Christianity was genuine.

  4. The applicants attended hearings before the Tribunal on 16 September 2020, 19 October 2020 and 13 November 2020 to give evidence and make submissions in support of the review application.  The first applicant attended all hearings.  The second applicant attended the second and third hearings.  The third applicant is a child and did not attend the hearings.  The Tribunal notes the second applicant suffers from a medical condition which causes her to be immunocompromised.  She did not make any claims with respect to this illness or condition, however her condition was given as the reason for her not attending…

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Details
AGLC
1709914 (Refugee) [2020] AATA 5699
Case
[2020] AATA 5699
Decision Date

CaseChat Overview and Summary

The applicants, Iranian nationals, sought protection visas based on claims of persecution as Christian converts in Iran. The first applicant asserted a genuine conversion to Christianity in Australia, fearing harm from authorities and relatives as an apostate. The second and third applicants were family members relying on the first applicant's claims. The delegate had previously found the first applicant's conversion to be not genuine, citing concerns about his evidence, including his wife's study habits, his limited engagement with Christianity in Iran, and his superficial knowledge of his new faith.

The Tribunal was required to determine whether the applicants met the criteria for a protection visa, specifically whether they were refugees under section 36(2)(a) of the Act, or eligible for complementary protection under section 36(2)(aa). This involved assessing the credibility of the first applicant's claims of conversion and his fear of persecution for reasons of religion, or alternatively, whether there were substantial grounds to believe they faced a real risk of significant harm upon removal from Australia. The Tribunal was also guided by Ministerial Direction No. 84 and relevant Refugee Law Guidelines and country information.

The Tribunal found that the applicants were indeed Iranian nationals and members of the same family unit, accepting the delegate's prior findings on these points. However, the Tribunal concluded that the matter should be remitted for reconsideration. While the specific reasons for this remittal are not detailed in the provided text, it implies that the delegate's decision regarding the genuineness of the conversion or the assessment of risk was found to be flawed or incomplete, necessitating a fresh review of the claims and evidence.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The first applicant confirmed that the migration history was correct. He said his wife had travelled to Australia in 2008 to investigate options for further study but had become homesick and returned to Iran.Background At the hearing the first applicant told the Tribunal his parents are alive and living in Tehran. He testified that the second applicant’s family were also alive and living in Iran. The first applicant has a married [sibling] living in Tehran, a [sibling] in [Country 1] and a [sibling] in Australia who has been here since around 2000 and is an Australian citizen. The second applicant has [two siblings] both living in Iran. The first applicant worked in [Cccupation 1] in Iran. The second applicant worked in [a specified] field. The first applicant said they came to Australia in March 2014 so his wife could complete a [course]. However, she did not complete the degree as she realised it would not lead to what she was hoping which was to be able to run her own [business]. She stopped studying in around February 2015.Protection claims The first applicant claims to have converted from Islam to Christianity in Australia. He claims to be a member of the Catholic Church of Australia having been received into the Catholic Church [in] November 2014 and having been a member of the congregation of the Catholic Parish of [Town 1] since that time, regularly attending church services and events there. He claims to have also undertaken bible study classes at [Church 1], though he is not a member of that church. The applicant claims to fear serious harm from the authorities and relatives if he has to return to Iran as a result as he would be considered an apostate. He claims he will be unable to practise his faith in Iran as a convert to Christianity. The applicant claimed that even if it were not accepted that his conversion to Christianity was genuine he would nonetheless be at risk of persecution as a perceived apostate. In his original written submissions to the Department he claimed to fear harm due to his Christianity, and his membership of particular social groups ‘Christian converts in Iran’ and ‘apostates in Iran who have converted to Christianity’. The third applicant, by way of a statutory declaration from the first applicant dated 13 October 2020, claims that he is a baptised member of a Christian church in Australia. He claims that he was born to Muslim parents in Iran and based on Iran’s laws he ‘is assumed to be Muslim’ and based on his subsequent baptism would be considered an apostate. The third applicant claims he has experienced freedom of speech in Australia would face ‘discrimination, harassment and exclusion’ in Iran from teachers, neighbours and other sectors of society. As noted above, the second applicant confirmed she had no claims of her own and was relying on the claims of the first applicant.Delegate’s decision The delegate did not accept that the first applicant’s conversion to Christianity was genuine. The delegate based this assessment on concerns regarding the applicant’s evidence including:·The fact that the second applicant lost interest in her chosen field of study in Australia after only a short time studying;·The fact that the applicant was not involved with Christianity at any meaningful level in Iran;·The fact the applicant displayed limited knowledge of his new faith;·The fact the applicant had limited involvement with the church beyond attending weekly services and religious festivals.Consideration of claims and evidence

Evidence

Evidence Before The Court

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 EVIDENCEApplicants’ identities, country of reference and membership of family unit The applicants travelled to Australia on Iranian passports and claim to be Iranian nationals. Copies of the applicants’ Iranian passports and other identity documents were provided to the Department. The first applicant confirmed at the hearing that he and the other applicants were citizens of Iran. The delegate accepted the applicants’ identities. There is nothing before the Tribunal to suggest that the applicants are not the persons identified in the relevant application for protection. On this basis, and given the delegate had no concerns about their claimed nationalities, the Tribunal accepts the applicants are nationals of Iran and has assessed their claims for protection accordingly. The Tribunal finds that the applicants are citizens of Iran, which is also their receiving country for the purposes of the refugee and complementary protection assessments. The delegate accepted that the second and third applicants were members of the same family unit, as defined in s.5F of the Act, as the first applicant. This finding was based on the documentary evidence of the marriage, the family composition and their migration history. There is no information before the Tribunal which is inconsistent with this finding and the Tribunal finds the second and third applicants are members of the same family unit as the first applicant. The applicants’ migration histories The Tribunal discussed the applicants’ migration histories, as outlined in the delegate’s decision, with the first applicant at the second hearing. The applicants’ migration history is as follows:·The second applicant travelled to Australia [in] July 2008 and departed [in] November 2008.·The applicants arrived in Australia [in] March 2014 on a [student] visa. The first and third applicants were dependents on the visa.·The applicants lodged Protection visa applications on 19 February 2015 and were granted associated Bridging visas. ·The first applicant was interviewed by the Department on 29 October 2015. The applicants’ representative was unable to be contacted during the interview (this issue was not raised by the applicants before the Tribunal). The first applicant confirmed that the migration history was correct. He said his wife had travelled to Australia in 2008 to investigate options for further study but had become homesick and returned to Iran.Background At the hearing the first applicant told the Tribunal his parents are alive and living in Tehran. He testified that the second applicant’s family were also alive and living in Iran. The first applicant has a married [sibling] living in Tehran, a [sibling] in [Country 1] and a [sibling] in Australia who has been here since around 2000 and is an Australian citizen. The second applicant has [two siblings] both living in Iran.

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that matter should be remitted for reconsideration.DECISION MAKING FRAMEWORKCriteria for a protection visa As noted above, the criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to 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) of the Act. 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) of the Act, 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–5LA of the Act, 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.Credibility assessments In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[1] [1] Summaries of the principles relating to credibility findings were provided by the Federal Court and Federal Circuit Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32] to [34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO v Minister for Immigration and Border Protection [2018] FCFCA 2 at [30] per Kenny, Kerr and Perry JJ; DAJ19 v Minister for Immigration [2020] FCCA 2142 at [69]-[70] per Nicholls J.

Ratio Decidendi

Legal Principle Established

The delegate accepted that the second and third applicants were members of the same family unit, as defined in s.5F of the Act, as the first applicant. This finding was based on the documentary evidence of the marriage, the family composition and their migration history. There is no information before the Tribunal which is inconsistent with this finding and the Tribunal finds the second and third applicants are members of the same family unit as the first applicant. The applicants’ migration histories The Tribunal discussed the applicants’ migration histories, as outlined in the delegate’s decision, with the first applicant at the second hearing. The applicants’ migration history is as follows:·The second applicant travelled to Australia [in] July 2008 and departed [in] November 2008.·The applicants arrived in Australia [in] March 2014 on a [student] visa. The first and third applicants were dependents on the visa.·The applicants lodged Protection visa applications on 19 February 2015 and were granted associated Bridging visas. ·The first applicant was interviewed by the Department on 29 October 2015. The applicants’ representative was unable to be contacted during the interview (this issue was not raised by the applicants before the Tribunal). The first applicant confirmed that the migration history was correct. He said his wife had travelled to Australia in 2008 to investigate options for further study but had become homesick and returned to Iran.Background At the hearing the first applicant told the Tribunal his parents are alive and living in Tehran. He testified that the second applicant’s family were also alive and living in Iran. The first applicant has a married [sibling] living in Tehran, a [sibling] in [Country 1] and a [sibling] in Australia who has been here since around 2000 and is an Australian citizen. The second applicant has [two siblings] both living in Iran. The first applicant worked in [Cccupation 1] in Iran. The second applicant worked in [a specified] field. The first applicant said they came to Australia in March 2014 so his wife could complete a [course]. However, she did not complete the degree as she realised it would not lead to what she was hoping which was to be able to run her own [business]. She stopped studying in around February 2015.Protection claims The first applicant claims to have converted from Islam to Christianity in Australia. He claims to be a member of the Catholic Church of Australia having been received into the Catholic Church [in] November 2014 and having been a member of the congregation of the Catholic Parish of [Town 1] since that time, regularly attending church services and events there. He claims to have also undertaken bible study classes at [Church 1], though he is not a member of that church. The applicant claims to fear serious harm from the authorities and relatives if he has to return to Iran as a result as he would be considered an apostate. He claims he will be unable to practise his faith in Iran as a convert to Christianity. The applicant claimed that even if it were not accepted that his conversion to Christianity was genuine he would nonetheless be at risk of persecution as a perceived apostate.