1709914 (Refugee)

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

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).
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.
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.
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 the first hearing.
At the first hearing the Tribunal outlined for the first applicant the issues it was considering on the application, confirmed that he did not have any changes to make to his claims for protection and discussed with him his background and changes to his personal circumstances since the application was filed. The first applicant’s claims for protection and the evidence on which he was seeking to rely were discussed at the second hearing. At the first hearing the Tribunal also asked whether the second or third applicants were making any of their own claims for protection. The first applicant said they were relying on his claims. This was confirmed by the second applicant with respect to her application at the second hearing. The Tribunal raised with the first applicant and his representative at the first hearing that it appeared the third applicant had been baptised since the application was filed and the Tribunal queried whether thought had been given to whether he had any claims of his own. Following the first hearing the Tribunal received a statutory declaration from the first applicant confirming the third applicant was making his own claims for protection based on his baptism and conversion to Christianity.
The applicant was represented in relation to the application for the visa and the review (by a different registered migration agent).
The hearings were conducted with the assistance of interpreters fluent in the English and Farsi languages.
The applicant was provided with additional time following the first and second hearings to provide further evidence and submissions. Additional material was received following the first hearing and was discussed at the second hearing. Additional material was also received following the second hearing.
ISSUES
The issue in the review is whether the first and third applicants have a well-founded fear of persecution in Iran due to their conversion to Christianity or for any other reason, or whether complementary protection provisions otherwise apply.
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). The issue in this case is whether the applicants meets one or more of the alternative criteria in s.36(2)(a) or (aa) of the Act; that is, whether they are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are members of the same family unit of such a person. The relevant law is included in Attachment A.
For the following reasons, the Tribunal has concluded that matter should be remitted for reconsideration.
DECISION MAKING FRAMEWORK
Criteria 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.
The courts have made it clear for some time that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.[2] Further, in assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[3]
[2] Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
[3] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[4] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[5]
[4] MIMA v Rajalingam (1999) 93 FCR 220.
[5] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
However, the Tribunal is mindful that legal reasonableness is a requirement of lawful decision making.[6] In this regard, the Tribunal is guided by the courts’ consideration of how credibility findings might be affected by legal unreasonableness.[7]
[6] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [80, [89]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26], [29], [63], [88].
[7] See for example the observations of the Federal Court on the principles applying to the assessment of credibility in BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; see also the discussion in SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089 per Flick J.
Further, the Tribunal notes that a decision-maker is entitled to consider whether an applicant subjectively holds a well-founded fear of persecution before examining whether such a fear is objectively well-founded or to proceed on the assumption that such a fear is held. If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied.[8]
[8] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].
The Tribunal notes that where there is a finding that there is no subjective fear of persecution this may lead to a conclusion that the Tribunal finds the claims not to be credible. In this respect the Tribunal has had regard to the Tribunal’s Migration and Refugee Division ‘Guidelines on the assessment of credibility’, issued in July 2015 in particular at [8], [13], [17]–[19] and [27]–[28].
Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. Applying this section, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[9]
[9] Prasad v MIEA (1985) 6 FCR 155 at [169–70]; SZBEL v MIMIA (2006) 228 CLR 152 at [40]; Re Ruddock; Ex parte ApplicantS154/2002 [2003] HCA 60 (Gleeson CJ, Gummow , Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, I November 2005) at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].
Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.
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
Applicants’ 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.
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
Before the Department the applicants submitted the following relevant material in support of the application:
·A statement from the first applicant dated 21 Jan 2015 and headed ‘Question 1: why did you leave your country’.
·A ‘Certificate of Baptism’ for the first applicant dated [in] January 2015, recording the applicant’s baptism [in] November 2014.
·A Supporting letter of [Father A], Parish Priest, [Church 2], [Town 1] Parish, dated 13 December 2014.
·Supporting letter of [Ms A] dated 11 January 2015 (reference for second applicant), supporting the second applicant’s professional and intellectual skills.
·Supporting letter of [Ms B], Playgroup Coordinator, [Church 2] Playgroup, dated 17 January 2015, stating she met the first and second applicant through their attendance at the weekly church playgroup.
·Supporting letter of [Mr C], member of [Church 2], dated 27 January 2015, stating he had met the first applicant at church and noting his regular attendance at 6 pm Mass.
They also included written submissions from their then migration agent.
Before the Tribunal the applicant’s representative provided written submissions to the Tribunal on 9 and 11 September 2020, 12 October 2020 and 20 November 2020, including the following documents:
·A statutory declaration from the first applicant dated 10 September 2020.
·A statutory declaration for the first applicant regarding the claims of the third applicant dated 13 October 2020.
·Two photographs said to be of the baptism of the third applicant.
·A Certificate of Baptism for the third applicant issued by the Archdiocese of Perth Western Australia, Catholic Parish of [Town 1], dated [in] February 2020 and noting the baptism [in] February 2020.
·A Certificate of Reception from the Archdiocese of Perth Western Australia, Catholic Parish of [Town 1], signed by [Father A] [in] November 2014 and noting the adult conversion and baptism of the first applicant [in] October 2014.
·A newsletter from [Church 2] dated 6 September 2020.
·A one page document ‘The Bible for Dummies’.
·A two page document ‘How to survive being married to a Catholic’.
·A newsletter from [Church 1] dated August 2020 and accompanying distribution email addressed to the first applicant.
·An email addressed to the first and second applicants from [Pastor A], [Church 1], dated 4 January 2018 regarding an event on 17 January.
·A Medicare reference letter from [Father B], Catholic Parish of [Town 1] dated [in] April 2020 and a business or contact card for [Father B].
·A ‘Christianity reference’ from [Father B], Catholic Parish of [Town 1] dated 8 September 2020.
·A reference letter from [Ms B], dated 10 September 2020, stating she met the first and second applicants through [Church 2’s] playgroup and the local primary school and stating that they are active Christians regularly attending services and involved with church events.
·A ‘Christianity reference’ from [Ms D], dated 7 September 2020, noting the first applicant’s regular attendance at Mass and parish functions and her belief the first applicant is a ‘genuine Christian’.
·A reference letter from [Mr E], dated 14 September 2020 noting he met the first applicant while serving in the military in Iran and introduced him to the ‘basic rules of Christianity’ and invited him to Christian activities in Iran with his family.
·Reference letter from [Pastor A] dated 10 September 2020 noting his discussions with the first applicant concerning his Christian faith and noting his evident faith in Jesus.
At the first hearing the Tribunal queried why there were two versions of the reception documents from [Church 2] which had conflicting dates. Following the hearing the applicants submitted the following material purporting to address issues with the material previously submitted:
·A copy of the original Certificate of Reception from the Catholic Parish of [Town 1] for the first applicant dated [in] November 2014 and signed by [Father A] noting the applicant was baptised and confirmed [in] October 2014 and a revised Certificate of Reception for the Catholic Parish of [Town 1] for the first applicant dated [in] September 2020 and signed by an unidentified person noting the applicant was baptised and confirmed [in] November 2014 (also correcting a missing digit in the first applicant’s birthdate).
·A copy of the original letter submitted from [Father A], Catholic Parish of [Town 1] dated 13 December 2015 regarding the applicant’s engagement with the Catholic Church and a revised letter dated [in] January 2015 bearing [Father A’s] signature.
At the second hearing the Tribunal discussed the provenance of these documents with the first applicant. The Tribunal indicated a concern that it appeared that the documents had been altered and [Father A’s] signature attached to one though the first applicant had told the Tribunal he was no longer at [Church 2]. The other signature was not identified and it was unclear if the person who signed that certificate was authorised to do so on behalf of the church. The first applicant indicated he had contacted the Parish office and they had recognised they had made errors in the earlier documents so they had amended them. He did not believe [Father A] had signed the amended document. The Tribunal expressed a concern to the applicants’ representative regarding the nature of the documents submitted and the hearing was adjourned to allow the applicants’ an opportunity to address these concerns with further evidence from the church.
Prior to the third hearing the applicants submitted the following:
·A letter from [Father A], now [in another position] at the [a different organisation], dated 26 October 2020 addressing the issue of the errors in the original documents and the amendments issued. [Father A] identified the errors in the original documents and indicated he authorised a [a named person] to amend the documents. He also indicated he had issued a new certificate which he had signed in response to the Tribunal’s concerns. A copy of that certificate was provided.
Having regard to [Father A’s] letter and the later oral testimony from [Father B], the Tribunal accepts the explanation for the errors and finds that the reception and baptism documents are genuine and record the first and third applicants’ acceptance into the Catholic Church of Australia.
At the hearings the Tribunal heard evidence from the first applicant, the second applicant, [Father B] the current Parish Priest of [Church 2], [Pastor A] from [Church 1] and from [Mr F], a friend of the applicant and the third applicant’s godfather. The Tribunal found all the witnesses to be credible. While there were some inconsistencies in their evidence, particularly a lack of detail in the evidence of [Father B], the Tribunal did not regard that those inconsistencies raised any significant issues of credibility for the applicants’ claims. The Tribunal accepts their evidence in support of the application. Some elements of their testimony are referred to further below.
At the hearing the Tribunal discussed with the first applicant his path to conversion and issues raised in the delegate’s decision.
The Tribunal queried why they didn’t return to Iran when his wife decided not to continue with her studies and the first applicant indicated that he had commenced his process of converting to Catholicism and had been baptised in late 2014. The Tribunal put to the applicant the concern expressed in the delegate’s decision that it was difficult to believe that after preparing and saving to come to Australia for his wife to study she would abandon those studies so quickly. The delegate found this raised concerns about the reasons the applicants travelled to Australia. The first applicant said that he loved his wife and he respected her decision to cease studying and that he would support her again if she wished to undertake further education.
The Tribunal asked about the first applicant’s religious practise in Iran. He said he was raised in a Muslim family but knew about philosophy and Christianity from about 18 years of age. He said prior to that he was a practicing Muslim as he was born in a Muslim family who practise fully. However, he said from around 18 he was ‘leaving further behind Islam’. He said though he was born into a religious family there were many things he couldn’t understand.
He said his parents still consider themselves to be Muslims but were not fully practising. He said he could not say what his sister in Iran’s level of practise was. He said his sister in Australia is Muslim but he is ‘still giving her the good news and make her understand to bring her to embrace Christianity.’ His brother in [Country 1] is Christian.
He said his friend [Mr E], an Armenian Christian, introduced him to Christianity while they were serving in the military. He served from [year]–[year]. When the Tribunal asked if he was involved with Christianity in Iran he said that ‘due to the situation and pressure, against my wish could not have any activity, but faith’. This evidence was supported by the letter from [Mr E] and by the testimony of [Mr F] who said he had talked to the applicant about his path to Christianity and he had mentioned being convinced by a friend in Iran that God was the way. He said he had spoken to him about why he wanted to know more. They had also discussed how his conversion had impacted the way he interacts with his family who have accepted his conversion.
His parents became aware of his conversion 3–4 years ago. He said he told them ‘in order to bring their attention towards Christianity, and understand, this is who I am.’ He said his father was happy after he explained the doctrine of Christianity. He said that due to his past his family knew he felt this way and that as they are believers themselves and devoted in their beliefs they are proud of him for having formed this new belief. The second applicant said her parents were aware of her husband’s conversion and were accepting of it as they were open minded people but she had not told them as yet about her son’s baptism as she didn’t want to talk to them on the phone about it.
The Tribunal asked what it was about his Muslim faith that made him turn to Christianity and he said that it came from him. He said in his understanding the Lord or God in Islam was kind but extremely harsh and demanding and unforgiving. He could not understand these things – that the God of Islam said if someone has stolen an item his hand was cut off or not even looking at or considering the rights of women, many issues which he could not comprehend. He struggled with these issues. He said he was attracted to Christianity because of the messages of forgiveness, that if you followed steps you could be born again. He understood that Christianity is full of love and forgiveness and these were things that he needed in all aspects of his life. He felt that Christianity was consistent with his outlook on life.
The Tribunal asked about the significance of forgiveness and the first applicant said that he believed that God created human beings sinful. God sacrificed part of himself through Jesus Christ and opened the way to paradise through the sacrifice that Jesus Christ made. Anyone who believes in Jesus Christ can enter the paradise of God.
The Tribunal asked whether he sought information from anyone regarding Christianity in Australia and he said when he son was going to pre-primary there was a church nearby ([Church 2]) and one day at drop off he saw someone was inside and he asked his wife if he could go and look. He found [Father A] in the confessional and he asked him where he could get information and if he could attend a Mass. [Father A] said he could. He said he had been attending church there ever since.
He said he had some knowledge of the Bible at that time and had a Bible in Farsi. [Father A] gave him a book, ‘How to Survive Being Married to a Catholic’. He expanded his knowledge until he was ready to complete baptism. It was unclear if he attended formal classes, as [Father B] suggested was the normal practice, however he testified he had ongoing instruction with [Father A]. He said by being baptised you purify yourself. He said that he had conversations with [Father A] about the process and the fact that the applicant needed to be sure about the course he was taking because it would affect his relationships with others and his understanding of himself. He said he knew it could impact bringing up his child and his relationship with his family and he wanted to be sure of the road he was taking.
The Tribunal asked about the message of Christ and the applicant said that Christ spoke of kindness, caring and affection towards others. These are the messages from him for life, understanding that the Lord is extremely kind, that ‘God loves me’.
The Tribunal asked why it was he had become involved with the Catholic Church in Australia and he said that didn’t know about the branches of Christianity so in part his engagement with the Catholic Church had happened by accident as they were living close to [Church 2] but once he engaged with the church he valued the special place the Holy Mary, Mother of Christ, has in the church as she has a unique place in his heart. He described being drawn to the fact that the Lord spoke to her and, without forcing her, made her pregnant. He said he knew she would be a witness for him at times he has to be present in front of the Lord as she had been chosen by God.
He said he sees himself as a servant of the church and goes any time there is a need for him to go and pray. He said he engaged in simple activities like cleaning the church and the religious ceremonies. He said he preferred to go to Sunday Mass but he also goes to the family Mass on Saturday afternoon. He said they go as a family but since his wife’s health had deteriorated earlier this year, she had been unable to attend large gatherings including mass. He said he attended Palm Sunday, Easter, Holy Week, Christmas and helped with specified tasks] at the church. This was also supported by the evidence of [Mr F] and [Father B] and by the written material from fellow parishioners. [Father B] also testified that he and the applicant had together attended an event for migrant parishioners before COVID-19.
He said he takes Holy Communion as this is highly significant in his engagement with God and he believes that it is the Body of Christ. He said his son does not take communion and they are waiting for him to reach maturity to take First Holy Communion. He said he understood First Holy Communion was taken when biological maturity is reached. He said they waited until 2020 to have their son baptised because they wanted him to have a clear memory of it. The evidence regarding First Communion somewhat differed to [Father B’s] who suggested the normal age for this Rite was year 2, however [Father B] indicated this was a matter for parents.
The Tribunal asked about his wife and he said she was a registered parishioner, but she felt she needed more education. She wanted to increase her understanding and knowledge before committing to baptism. This was consistent with the evidence given by the second applicant who said that she was a perfectionist and wanted to know more before being baptised. She said it was different for her husband because he had been interested from a young age and he had studied and knew more about Christianity. She said she was very happy about his conversion because she could see the effect on his behaviour, in particular his capacity to forgive. She said he loved her before but ‘it is more now’. She supported the baptism of their son.
The applicant also claimed to have been involved with [Church 1]. He started with English classes there and then joined a dinner discussion group once a week. The Tribunal asked why he went to a different church and he said he had discussed it with [Father B] and he had said it was fine. [Father B] could not recall this conversation but said he would have no issue with a parishioner seeking instruction or involvement with Christian communities elsewhere which was not uncommon. He was interested in discussing the Bible and engaging with more friends. He said they became close to [Pastor A] but were still members of the Catholic Church. This evidence was supported by [Pastor A] who testified to the strength of the first applicant’s religious commitment. He said the dinners were a community engagement opportunity for people of faith and people of different faiths attended. [Pastor A] also testified that he had discussed the applicant’s concerns about returning to Iran due to his conversion. He said he understood this to be not a ‘deeply fearful thing’ but a concern.
The Tribunal asked about how the applicant planned to practise his faith if returned to Iran and he said if he could not easily attend church this would impact his practise. He said it also meant he would be unable to meet his duty to build his faith. The Tribunal asked what he understood this duty to be and he said engaging with the church not as a building but as a community, that involves sharing his faith with a community and he would not be able to do that in Iran. The Tribunal asked if he understood it to be part of his religious duty to share his faith and he said loving, caring and compassion on its own means nothing and that the more you practise with others the more they feel it.
He explained that how he practises this in Australia is complicated but his engagement with others is through a ‘tunnel of Christianity’. In particular it affected how he was raising his child and how he was interacting with others. He said that how he shares the information of God depends on the situation but primarily it was living and interacting in a way that demonstrated his beliefs.
The Tribunal asked if he had any reason to think the authorities in Iran were aware of his conversion and he said he wasn’t in a position to say though he believed that it ‘could hardly be said they don’t know’ based on what he knew about Iranian intelligence. He said he believed if he returned to Iran they would know but he was not able to say how. He said it was the obligation of an observant Muslim to report someone if they knew they had converted as that person was considered an infidel so this created a risk when interacting with people.
The second applicant said she wasn’t sure there was a risk for her from her immediate family but she could not say whether her extended family presented a risk.
Country Information
The Tribunal also discussed with the first applicant country information regarding Christian converts in Iran, including information contained in the most recent country information report issued by the Department of Foreign Affairs and Trade in April 2020 (the DFAT Country Information Report).[10]
[10] DFAT Country Information Report – Iran, 14 April 2020

DFAT’s most recent country information report on Iran indicates that the official religion of Iran is Shi’a Islam and that over 99 per cent of Iranians are Muslim. Article 4 of the Iranian Constitution requires ‘all of the country’s laws and regulations be based on (Shi’a) Islamic criteria’. Government policy and legislation heavily favours the majority Shi’a population in practise, leading to pervasive structural discrimination against non-Shi’a.[11]
[11] DFAT Country Information Report – Iran, 14 April 2020 at 3.27–3.28.
DFAT reports that there are non-Muslim recognised religions in Iran, including certain Christian religions however proselytisation by religious minority groups is strictly prohibited under the Penal Code: it is a capital crime for non-Muslims to convert Muslims. As well, none of the three recognised minority religions proselytise or accept converts as members, further:[12]
Strict instructions not to minister to Iranians apply to all recognised churches, including the small number of Latin Catholic and Protestant churches in Tehran and elsewhere that cater to expatriates. To enforce this prohibition, authorities closely monitor recognised churches.
[12] DFAT Country Information Report – Iran, 14 April 2020 at 3.49.
The established Christian communities, including the Armenian and Assyrian communities, have a long history in Iran and are generally tolerated and permitted to practise their faith by the regime.[13] Conversely, conversion from Islam to Christianity is prohibited by the authorities with converts facing the risk of arrest, detention and prosecution. As such, the recognised Christian groups do not accept conversions or proselytise.[14]
[13] ‘Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise’, Land info - Norwegian Country of Origin Information Centre, 27 November 2017, p.6.
[14] ‘Country Policy and Information Note - Iran: Christians and Christian converts’, UK Home Office, 27 February 2020, p.7; ‘Christian Converts in Iran’, Finnish Immigration Service, 21 August 2015, p.9.
As a result, Iranian Christians who are not members of the recognised ethnic minority churches generally practise in underground ‘house churches’.[15]
[15] Ibid at 3.50.
In terms of the treatment of Christian house church participants in Iran, DFAT states that:[16]
Authorities interpret the growth in house churches as a threat to national security and periodically carry out raids against them. Raids focus particularly on house churches that actively proselytise or seek out new members. DFAT is unable to verify if the frequency of raids of house churches is increasing or whether a warrant is required to execute a raid. Local sources were unaware of any raids in the first half of 2019, although raids may not necessarily be publicised. According to the UK Home Office, the authorities use informants posing as converts to infiltrate house churches. Where the authorities receive a report of a house church, they may initiate a monitoring process to survey and collect information about its members. Local sources told DFAT that the authorities do not actively look for house churches. Rather, raids – where they occur – are usually the result of tip-offs by Muslim neighbours.
Members of house churches have been convicted of offences and given significant prison sentences.[17]
[16] DFAT Country Information Report – Iran, 14 April 2020 at 3.52.
[17] DFAT Country Information Report – Iran, 14 April 2020 at 3.53–3.54.
However, DFAT assesses that:[18]
… small, self-contained house church congregations that maintain a low profile and do not seek to recruit new members are unlikely to attract adverse attention from authorities beyond monitoring and, possibly, low-level harassment. Members of larger congregations that engage in proselytisation activities and have connections to broader house church networks are more likely to face official repercussions, which may include arrest and prosecution. Of particular interest to the authorities are the leaders of house church congregations, who, according to local sources, face a higher risk of arrest and prosecution than ordinary congregants. According to these sources, while there have been instances of ordinary congregants being prosecuted, this is not common — most are released.
Despite occasional arrests and prosecutions, the authorities do not actively search for Christian converts and, as far as DFAT is aware, do not employ people exclusively for this purpose. DFAT assesses that a Christian convert would not face harm if they maintain a low profile, do not openly proselytise and are not of interest to the authorities for other reasons (e.g. political activism). Official sources told DFAT that converts who keep their beliefs private are not of interest to the authorities. Those who openly propagate Christianity and seek to convert others, in contrast, would draw the attention of the authorities, and face a high risk of official discrimination, including harassment, arrest and prosecution, and some societal discrimination. Local sources were not aware of Christian converts being executed for apostasy in recent times. DFAT assesses the risk of execution for conversion/apostasy to be low.
[18] DFAT Country Information Report – Iran, 14 April 2020 at 3.55–3.56.
With respect to Iranians who convert while overseas:[19]
International observers report that Iranians who convert to Christianity abroad are unlikely to face adverse official attention upon their return, provided they have not previously come to the attention of the authorities for political activities, maintain a low profile and do not engage in proselytisation activities. This includes individuals who publicise their conversion online while abroad. According to local sources, in 2017 an Iranian mother and her child who were baptised in Turkey were briefly detained on their return to Iran (they were carrying baptism certificates), but then released. DFAT understands such arrests are not common (see Conditions for Returnees).
DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed. Christians found to be proselytising face a high risk of arrest, prosecution and imprisonment. DFAT assesses that Christian converts face a high risk of societal discrimination in the event their conversion becomes widely known, particularly if they are from more religiously-minded Muslim family backgrounds. This may involve ostracism from one’s family and discrimination in employment.
[19] DFAT Country Information Report – Iran, 14 April 2020 at 3.57–3.58.
According to one source, Iran has agents abroad to monitor Iranian citizens. However, rather than monitoring people all the time the authorities seek to create a fear that people are being perpetually monitored.[20]
[20] ‘Iran: House churches and converts’, Danish Immigration Service and the Danish Refugee Council, February 2018, p.26.
The DFAT report notes that religiously-based charges are possible in Iran. The report states that:[21]
Under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. Separately, a person of any religion may be charged with the crime of ‘swearing at the Prophet’ (blasphemy) if they make utterances that are deemed derogatory toward the Prophet Mohammed, other Shi’a holy figures or divine prophets. The Penal Code does not specifically criminalise apostasy, but provisions in the Penal Code and the constitution stipulate that sharia applies to situations in which the law is silent, and judges are compelled to deliver sharia-based judgements in such cases. Although the Quran does not explicitly say that apostasy should be penalised, most Islamic judges in Iran agree that apostasy should be a capital crime. This ruling is based both on oral traditions attributed to the Prophet Mohammed and to Shi’a Imams, whom Shi’a consider the Prophet’s rightful successors. Chapter 5 of the Penal Code specifically criminalises swearing at the Prophet as a capital offence, although a clause states that the sentence can be reduced to 74 lashings of the whip if the accused states the insults were the result of a mistake or were made in anger....
Politically-motivated apostasy charges were frequent in the years following the Iranian revolution, often leading to death sentences. However, in the vast majority of cases, defendants charged with apostasy also faced other charges related to national security. Many of these cases were quickly tried, ending in execution, so apostasy was not fully discussed in the prosecution of these defendants.
While apostasy and blasphemy cases are no longer an everyday occurrence in Iran, authorities continue to use religiously-based charges (such as ‘insulting Islam’) against a diverse group of individuals. This includes Shi’a members of the reform movement, Muslim-born converts to Christianity, Baha’is, Muslims who challenge the prevailing interpretation of Islam (particularly Sufis) and others who espouse unconventional religious beliefs (including members of recognised religious groups). Some religiously-based cases have clear political overtones, while other cases seem to be primarily of a religious nature, particularly when connected to proselytisation.
Today, death sentences in apostasy and blasphemy cases are rare. In March 2017, the Supreme Court upheld the decision of a criminal court in Arak (Markazi Province) to sentence a 21 year-old man to death for apostasy. Authorities arrested the man after he made social media posts considered critical of Islam and the Quran while on military service. According to publicly available information, the death sentence had not been implemented at the time of publication. The court also convicted two co-defendants of posting anti-Islamic material on social media, sentencing them to prison.
DFAT assesses that those accused of religiously-based charges are also likely to face charges related to national security. They are unlikely to have adequate legal defence, and are likely to be convicted.
[21] DFAT Country Information Report – Iran, 14 April 2020 at 3.73–3.77.
However, country information suggests that charges and convictions solely on the basis of apostasy involving Christian converts have been very rare.[22]
[22] ‘Country Policy and Information Note - Iran: Christians and Christian converts’, UK Home Office,
The UK Home Office in a May 2019 report about Christians and Christian converts in Iran states that simply converting to Christianity is not considered enough to put a person at a real risk of persecution but that their actions and activities and the degree to which their conversion is visible will determine whether or not they would be at a real risk.[23] The report goes on to state that the Iranian authorities are interested in those engaged in evangelical or proselytising activities and that it is not usually a problem for those who practise their faith discreetly, including for those who return to Iran and do not actively seek to influence others to convert to Christianity, who consider their faith a personal matter, and who are unlikely to seek to express in public their faith. Such people are likely to be able to continue practising Christianity discreetly.[24] The UK Home Office also reported that members of evangelical/house churches are ‘subject to harassment, arrest, close surveillance and imprisonment by the Iranian authorities’.[25]
[23] UK Home Office, Country Policy and Information Note, Iran: Christians and Christian converts, May 2019 at 2.4.13 < Ibid at 2.4.14.
[25] UK Home Office, Country Policy and Information Note, Iran: Christians and Christian converts, May 2019 at 2.4.4 <>
The Australian Institute of International Affairs published an Iran Study Tour Report in April 2018 which stated as follows:
Under the current Islamic regime, citizens are, at least in theory, free to practice the religion of their choice. Each religious minority is guaranteed a seat in parliament, as stipulated in Iran’s constitution. However, whilst conversion to Islam is accepted and encouraged, it is illegal to convert to a different religion once one has identified as Muslim. This is considered apostasy and harsh penalties can apply. Apostasy is punishable by death in certain cases, however the crime has never been codified in law.[26]
[26] Cited in: UK Home Office, Country Policy and Information Note, Iran: Christians and Christian converts, May 2019 at 8.1.3.
People who convert from Islam to Christianity in Iran can face rejection by the community and family members. Iranian Christian converts reportedly face ongoing societal pressure.[27] DFAT assesses that converts face a ‘high risk of societal discrimination’ if their conversion becomes widely known, particularly if they are from more ‘religiously-minded Muslim family backgrounds.’[28] According to DFAT, this may involve ostracism from one’s family and employment discrimination.[29] Many social norms and cultural activities are associated with Islam and non-participation in religious events can raise suspicion from neighbours and the community.[30] Sources indicate that it is possible that converts not conforming to social norms in smaller, more religiously conservative parts of the country could be at greater risk of being reported by someone in their social network, than those in larger urban cities.[31] The DFAT report notes that where raids of house churches occur, they are usually the result of tip-offs by Muslim neighbours.
[27] ‘Iran 2018 International Religious Freedom Report’, US Department of State, 21 June 2019, Section III; ‘Iran – World Watch List 2020 Country Dossier – Second Revision: 6 January 2020’, Open Doors, 6 January 2020, p.21 and p.23.
[28] DFAT Country Information Report – Iran, 14 April 2020, p. 34.
[29] Ibid.
[30] ‘Iran: House churches and converts’, Danish Immigration Service and the Danish Refugee Council, February 2018, p. 22; ‘Christian Converts in Iran’, Finnish Immigration Service, 21 August 2015, p. 11.
[31] ‘Update on the Situation for Christian Converts in Iran’, Danish Immigration Service, 1 June 2014, p.14, CIS28931
Consideration
First applicant
The Tribunal notes that significant time has passed since the delegate’s decision. During the years since the decision the applicants have maintained a continuous connection and commitment to the church community at [Church 2] as supported by the evidence of members of the Parish including [Father B] and [Mr F].
While the Tribunal understands the concerns raised in the delegate’s decision, based on the evidence before it the Tribunal accepts that the first applicant’s claims about his Christian conversion and involvement in Christian activities in Australia are genuine. Specifically, the Tribunal accepts the first applicant was baptised [in] November 2014 at [Church 2], Perth. The Tribunal accepts that prior to his baptism he had instruction with [Father A] exploring Christianity and learning about Catholic faith and practises. It accepts that the first applicant and his other family members when they are able, attend church services at [Church 2], that his son attended playgroup there, and that he is involved in some other church activities including the church cleaning roster and providing [specified] services where needed.
Ultimately, while there were some inconsistencies in the evidence regarding the first applicant’s journey to his conversion and with regard to his practise in Australia, the Tribunal found his account of his conversion to be credible. This included a generally consistent account of the first applicant’s early exposure to Christianity in Iran and his decision to explore Christianity in Australia. The Tribunal also found the first and second applicant’s accounts of the family’s experience of Christianity to be credible. While the second applicant has not made a commitment to baptism the Tribunal accepted her explanation for her slower and perhaps more hesitant engagement with Christianity to be credible.
The Tribunal finds that the first applicant converted to Christianity [in] November 2014. The Tribunal finds that the first applicant has been a member of the Catholic parish of [Church 2] since that time and that his son has been baptised into the same church. The family attends Mass on a weekly basis and for religious holidays. The Tribunal finds that the applicants have some broader involvement in the church community including volunteering for church activities, attending church social events, involvement with the church playgroup (when their son was younger) and attending some external functions with the parish priest. They have also been involved with a [Church of different denomination] where they attended English lessons, joined in a social faith sharing circle and maintain contact with the church pastor. The Tribunal finds the first applicant’s conversion to Christianity to be genuine. The Tribunal finds the first applicant is a committed Christian and a member of the Catholic Church in Australia.
Given these findings the Tribunal has gone on to consider the first applicant’s motivations for converting to Christianity in Australia, noting that it is required to disregard such conduct in Australia unless satisfied that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee: s.5J(6).
The Tribunal is of the view that the first applicant’s commitment to exploring Christianity was genuine and has grown over time. The Tribunal regarded that his interest in Christianity was consistent with his account of his engagement with his friend in Iran and his background having been educated in a non-Muslim school in Iran. The Tribunal also found this to be consistent with his account of his family background. While he reported his parents were observant and committed Muslims, their reported reaction to his conversion and the fact at least one of his other siblings has converted indicates a level of religious tolerance consistent with the first applicant’s own exploration of faith. Further, the Tribunal regards on the evidence that the Church and its members and the broader Christian community have become a source of community for the first applicant and his family. The second applicant spoke to changes in the first applicant’s attitude and behaviour which she attributed to his conversion including his becoming more loving and forgiving.
The Tribunal notes that the first applicant has told his parents and in-laws about his conversion however he did not claim to have publicised his conversion in a manner which might suggest an attempt to strengthen claims for protection. He said his family accepted his conversion. While the second applicant indicated they have not yet told her parents about the third applicant’s baptism her evidence suggested she was anxious to find an appropriate way to convey this information to them sensitively which was difficult from a distance.
Having regard to the evidence the Tribunal is satisfied that the first applicant’s conversion and his notification to his family of the conversion were engaged in otherwise than for the purpose of strengthening his claim to be a refugee: s.5J(6).
The Tribunal has considered how the first applicant may act on return to Iran as a Christian (convert) and whether that would lead to a real chance of serious harm by the Iranian authorities or family.
The first applicant’s representatives submitted that he faces a well-founded fear of persecution on return to Iran due to his religion (as an apostate and Christian who has renounced Islam) and as a member of the particular social groups of ‘Christian coverts in Iran’ and ‘apostates who have converted to Christianity’. The representative submitted that he is an active participant of a Christian community and his faith cannot be practised in isolation. He believes he must spread Christianity by talking to people about Christ. If the applicant, on return to Iran, speaks to others about Christianity or expresses his belief with others, for example by attending house churches, then the country information indicates he could be at risk. It is submitted that even if the first applicant’s conversion were not considered to be genuine, he would nonetheless be at risk for perceived apostacy. It was submitted he faces a real risk of persecution as a Christian convert from Islam, punishable by harsh and violent sentences, including death.

The country information set out above indicates that the government in Iran continues to regulate Christian religious practises and those at greatest risk are its leaders and proselytisers. The information suggests that the state is focused more on the public practise of religion and proselytising than on private conviction and on this basis the Tribunal considers if the first applicant were to return and practise his Christian religion discreetly he might be able to do so without attracting the adverse attention of the Iranian authorities. However, the Tribunal notes that individuals seeking protection are not required, and cannot be expected, to take reasonable steps to avoid persecutory harm, or to live ‘discreetly’ to avoid such harm: s. 5J(3) and Appellant S395/2002 v MIMA (2003) 216 CLR 473.
The Tribunal does not regard, on the evidence that the first applicant faces a risk of serious harm from family in Iran due to his conversion. The account given by the first and second applicants of the families’ responses to his conversion suggested by the first and second applicant’s families had accepted his conversion and were generally tolerant in this regard. While the second applicant was unsure of the reaction of her extended family and had not yet discussed the third applicant’s baptism neither she nor the first applicant identified any basis on which they feared harm from family members and the Tribunal does not regard that the first applicant faces a real chance of harm from family members on this basis.
While the Tribunal does not regard the first applicant’s claimed practise of his faith in Australia to include activities which could be characterised as proselytisation, having accepted that the first applicant has genuinely converted from Islam to Christianity and that he continues to actively practise his Christian faith in Australia, the Tribunal accepts that he would seek to continue to practise his Christian faith should he return to Iran. The Tribunal accepts that if the applicant were to return to Iran, were it not for his fear of persecution he would seek to attend church, seek out other Christians, possibly attend house church gatherings, and speak of his Christian faith. This would include raising his son as a Christian and living in a manner consistent with Christian beliefs, including seeking to take communion.
For these reasons and having regard to the country information concerning the situation for Christian converts in Iran and the first applicant’s particular circumstances, the Tribunal accepts that should the first applicant return to Iran, now or in the foreseeable future, there is a real chance he will face serious harm from the authorities as required by s.5J(4)(b) of the Act in that it involves a threat to his life or liberty or significant physical harassment or ill-treatment. The Tribunal accepts that the treatment of apostates who come to the attention of authorities in Iran constitutes serious harm for the purposes of s.5J(5)(a) of the Act in that it involves a threat to life or liberty, even noting that though the death penalty is now rare, other harsh penalties can apply. The Tribunal accepts that the first applicant wishes to freely practise his faith but fears that to do so in Iran will expose him to persecution, including arrest and detention. The weight of country information before the Tribunal indicates that the first applicant’s fears in this regard are well-founded and that there is a real chance that continuing to practise his Christianity would draw attention to his conversion from Islam and expose him to harm. The Tribunal finds the first applicant’s religion is the essential and significant reason for the persecution which the applicant fears, as required by s.5J(4)(a), and that the persecution which he fears involves systematic and discriminatory conduct, as required by s.5J(4)(c), in that it is deliberate or intentional and involves his selective harassment for reason of his religion, as a convert to Christianity and a member of the Catholic Church.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).
Since the Iranian government is responsible for the persecution that the first applicant fears, the Tribunal is not satisfied that the effective protection measures as per s.5LA are available to the first applicant in Iran provided by the state, party or organisation. The Tribunal finds that the first applicant would not be able to access effective protection if returned to Iran for the purposes of s.5LA(2).
For the same reasons, the Tribunal is not satisfied that there is any part of Iran in which he would be safe from the persecution that he fears as a Christian convert. The Tribunal is satisfied the first applicant would face a real chance of persecution in all areas of Iran and therefore satisfies s.5J(1)(c).
The Tribunal notes that s.5J(3) states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or conceal an innate or immutable characteristic. In this case the Tribunal is satisfied that the modification would require the first applicant to ‘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 practise of his or her faith’: therefore s.5J(3) does not apply.

100. Accordingly, the Tribunal accepts that the first applicant has a well-founded fear of persecution for the purposes of s.5J. In considering whether he comes within the definition of a refugee contained in s.5H, it accepts that he is outside the country of his nationality and unable to return to it owing to his well-founded fear of persecution. Therefore he meets the criteria in s.5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s.5H(2) apply to the first applicant. There is no evidence before the Tribunal to suggest that the applicants have a right to enter and reside in a third country for the purposes of s.36(3) of the Act.
101. The Tribunal finds, therefore, that for the purposes of s.36(2)(a) of the Act, the first applicant is a refugee.
Third applicant
102. The first applicant’s statutory declaration, which was submitted after the first hearing, raised a claim that the third applicant would face ‘difficulties including discrimination, harassment and exclusion by various people’ including school, teachers and neighbours because he is considered a Christian and an apostate.
103. The Tribunal notes that at the first hearing the first applicant told the Tribunal the third applicant was not registered as a Muslim in Iran. However, the statutory declaration indicates that he would be considered a Muslim as he was born to Muslim parents. Giving the applicants the benefit of the doubt, and on the basis that it is plausible, the Tribunal accepts this to be the case.
104. The Tribunal accepts that the third applicant has been baptised but has not undertaken any other sacraments associated with the Catholic faith including First Holy Communion. He has been raised in a household with a practicing Catholic and has been socialised as a Christian. His parents claim he has little knowledge of Islam and having regard to his circumstances including the length of time he has been in Australia the Tribunal accepts this to be the case.
105. The applicants did not make any other submissions with respect to the third applicant’s claims for protection and in particular the nature of harm he feared on return to Iran. The harm identified in the statutory declaration merely identified ‘difficulties including discrimination, harassment and exclusion’. Based on the Tribunal’s findings with respect to the first applicant, and the second applicant’s lack of familiarity with Iranian culture and with Islam, the Tribunal accepts that the second applicant may be identified as a Christian. However, there is no evidence before the Tribunal, including in the country information, that a child would be at risk of arrest or detention from authorities on this basis. While the Tribunal accepts that the third applicant faces a high risk of societal discrimination if his conversion becomes known, on the information before the Tribunal there is no evidence that such discrimination would rise to the level of serious harm.
106. However, the Tribunal is mindful of the commitment made by the first and second applicant to raise the third applicant as a Christian and a member of the Catholic Church. If the third applicant is raised consistent with the beliefs of his father, which on her own evidence are supported by his mother, the Tribunal regards that he faces a real risk of serious harm in the foreseeable future commensurate with that faced by his father. On this basis, and for the reasons found earlier with respect to the first applicant, the Tribunal finds the third applicant has a well-founded fear of persecution for the purposes of s.5J.
107. For the reasons outlined above with respect to the first applicant, the Tribunal finds that, for the purposes of s.36(2)(a) of the Act, the third applicant is a refugee.
Second applicant
108. As noted above, the second applicant did not make any of her own claims for protection but relied on the claims of the first applicant. She confirmed at the hearing she had no claims of her own and there is no information before the Tribunal giving rise to a concern that she may be otherwise owed protection based on any unstated claims of her own.
Member of the same family unit.
109. The Tribunal is not satisfied that the second applicant is a person in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that the second applicant is the wife of the first applicant and is a member of the same family unit as the first applicant for the purposes of s.36(2)(b)(i). As such, the fate of her application depends on the outcome of the first applicant’s application. It follows that the second applicant will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.
CONCLUSION
110. For the reasons given above the Tribunal is satisfied that the first applicant and third applicant are persons in respect of whom Australia has protection obligations and satisfy the criterion set out in s.36(2)(a) of the Act.
111. For the reasons given above, second applicant is a person in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa of the Act).
112. However, the Tribunal has found that pursuant to s.36(2)(b)(i) the second applicant is a member of the same family unit as the first applicant, being a person who satisfies s.36(2)(a).
DECISION
113. The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first applicant 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, based on her membership of the same family unit as the first applicant.

Simone Burford
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.
…

²⁷ February 2020, p.7; ‘Christian Converts in Iran’, Finnish Immigration Service, 21 August 2015, p.7; ‘Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran’, UN Human Rights Council, 18 March 2014, p.11; ‘Iran: Christians and Converts’, LandInfo, 7 July 2011, p. 16.

[2020] AATA 5699

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