1710537 (Refugee)

1710537 (Refugee) [2021] AATA 3165 (24 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1710537
COUNTRY OF REFERENCE:                   Iran
MEMBER:Catherine Carney-Orsborn
DATE:24 May 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 May 2021 at 10:18am
CATCHWORDS
REFUGEE – protection visa – Iran – religion – Christian convert – vague and inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 27 April 2017 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Iran, first arrived in Australia [in] April 2010 as the holder of a TR 676 visitor visa. The applicant departed Australia ]in] April 2011 and came back to Australia [in] April 2012 as the holder of the same visa type. The applicant then departed Australia [in] October 2012 and then came back to Australia [in] May 2013 as the holder of an FA 600 visitor visa. The applicant travelled from and to Australia in one more occasion before the applicant got refused an FA 600 visitor visa on 18 January 2016. On 31 May 2016, the applicant applied for a review on the merits of the refusal for the FA 600 visitor visa, and on 18 March 2016 the applicant applied for a Protection (Class XA) Subclass 866 visa.
The delegate refused to grant the visa on the basis that there was not enough evidence supporting that the applicant may suffer economic hardship or would be arrested or harmed by Iranian authorities.
The applicant appeared before the Tribunal [in] May 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has before it the Department file and the Tribunal file. The Department file contains the application forms, a certified copy of the applicant’s passport, a copy of the applicant’s Australian identity card, the applicant’s statement of pleas for protection, a copy of the medical certificate outlining the applicant’s health conditions, a copy of the applicant’s daughter’s Australian driver licence, a handwritten list of income of the applicant’s family members residing in Iran and in Australia, certified copies of [Country 1] passports for the applicant’s grandchildren, daughter-in-law, two daughters and one son, and a copy of the delegate’s decision record.
The following information was provided in the application forms. When the applicant was in Iran, the applicant signed an undertaking bank notes (Safteb) for the applicant’s son in law so he could borrow [amount] IR Reals. The applicant used her home apartment's title deed to guarantee her undertaking.
Whilst the applicant was in Australia with her children, the applicant’s son in law in Iran sold the applicant’s apartment using the applicant’s identity documents and fled the country to Europe leaving the applicant’s daughter behind.
The applicant claims that the applicant’s family were aware of this event, but they all hid this from the applicant and encouraged the applicant to not return to Iran to avoid getting arrested. The applicant claims that her family asked her to spend more time with them, however, the applicant really wanted to go back to Iran to visit the applicant’s home and her other children. The applicant claims that following these events, the applicant’s family lodged a visitor visa application for the applicant so the applicant could stay in Australia for another year. They then requested the review of the Department’s refusal to a tourist visa so that the applicant could remain in Australia for a while.
The applicant was later informed by the Administrative Appeals Tribunal (AAT) that the applicant’s review application was invalid because it was lodged outside the 21-day period. The applicant claims she then insisted on returning to Iran as she did not want to stay in Australia illegally not knowing anything about what had happened in Iran while living in Australia.
The applicant claimed that now that she owes money in Iran she may be sent to jail to work there and use the applicant’s income to repay the applicant’s debts. The applicant claims she is elderly and cannot work in such conditions. The applicant claims she has lost her apartment which was the only asset the applicant owned.
The applicant fears that the Iranian government would not support the applicant against her debts, instead the applicant may be punished for not complying with the undertaking the applicant gave.
The applicant fears that she may be arrested upon arrival in Iran, that the Iranian police may come after her and may have to surrender her life to the Iranian government. The applicant fears that unless the applicant’s son-in law repays his debts, the applicant will not be released.
On [date] 2021, seven days prior to the hearing, the applicant provided the following to the Tribunal. A statement for further protection claims. In that statement she stated she departed Iran in 2015 on a visitor visa to visit her family in Australia. She stated that due to problems she had mentioned earlier she could not return to Iran. She claimed that a year after her residence in Australia she decided to attend English Classes in a church including [Church 1], [Church 2] and [Church 3] in [Suburb 1].
She claimed that the English lessons were mostly from bible stories and she became interested in the Bible and attending classes. She claimed she also attended all Christian festivities.
She was given a Bible in Farsi by [Church 1] and she read parts of the Bible.
She claimed she was motivated by the love from church-going people, the Bible and the Church. She claimed that she made a firm decision to become a Christian. She was baptised on 8 July 2018 in [Church 1].
She claimed she did not mention her Christian Conversion in her first statement submitted to the Department and the consequent interview because she was in the process of going to the church, learning about and studying Christianity and the Bible.
She claimed that due to her financial issues mentioned in her earlier statement and her Christian conversion she is unable to return to Iran.
Attached to the statement was a copy of a Baptism Certificate dated 8 July 2018 from [Church 1], a copy of a [magazine] in which she is mentioned as attending the English class and a statement that “[deleted]”.
She provided copies of cards given to her from other church goers wishing her all the best after her baptism and Christmas. She provided a letter of support from [Church 1] which states that she attended English classes since June 2017 and was Baptised in July 2018. The letter describes her as being an engaging and enthusiastic participant in English classes. The letter from the Rector does not give any evidence in relation to her commitment to being a Christian.
The applicant gave the following oral evidence at the hearing.
The Tribunal explained the hearing process and that it was the applicant’s chance to provide information to the Tribunal. The Tribunal asked the applicant to be as detailed as possible. The applicant provided details of her children in Australia and Iran. She has [number] children, [number] in Australia and [number] in Iran.
The Tribunal then asked the applicant why she felt she could not return to Iran. She indicated with words to the effect that she had a financial problem that is now resolved and that she went to church to learn English and she is now a Christian.
The Tribunal asked for clarification that she was saying that the debt issue was now resolved, and she did not fear returning to Iran because of that issue. She responded that it was now resolved. The applicant’s representative confirmed that she was no longer claiming protection for the debt issue and only as she was now a Christian.
The applicant confirmed that she cannot return to Iran as she is now a Christian. The Tribunal asked when she converted to Christianity. She responded about three years ago. The Tribunal asked when she started going to Church. She responded with words to the effect she was baptised in July 2018 however prior to that she went to church to study English.
The Tribunal asked for more details about her conversion. She responded that she started going to church to learn English and found friendship there. She said she found it different and fell in love with Christianity. She stated that on Mondays she does church study, she goes to [Suburb 1] and prays on Sundays as it is a Farsi Church.
The Tribunal asked what the applicant does during the day. She responded she cares for her grandchildren and takes care of flowers. The Tribunal asked what school her grandchildren attend. She at first stated that she did not know as a bus takes them. She then stated that it was a government school and that she lives with her daughter at [location].
The Tribunal asked what religion her children and grandchildren were. She gave a confused response that she was not sure what religion. She stated that they each believe in something. The Tribunal asked about her children in Iran. She responded they follow whatever the religion in Iran is. The Tribunal asked if any of her children or grandchildren were baptised. She responded with words to the effect that it was only her.
The Tribunal put to the applicant for her comment that it appeared from the evidence before it , that she only went to church after her application for a protection visa was refused.
She responded that she started going to English classes and Church and participated in the community and wanted to join the religion. She stated she had difficulty with English and asked her daughter to assist her so she can read a little, but it is limited. She claims that as she became interested, she then had the ceremony and became a Christian.
She claims she attended [Suburb 1] church so she could understand more.
She claims she was given information in Persian.
The Tribunal pointed out that her immigration history would indicate a strong desire to stay in Australia and she had applied for numerous visas to enable her to stay in Australia. The Tribunal asked her why she had such a sudden change to Christianity after she was refused a protection visa. She claims she was going before the decision was made. She claims that they (the Christians) were so friendly and nice to her and she became interested in Christianity. She claims she had not previously mentioned her interest as she had not gone through with the baptism
The Tribunal then asked the applicant what Christianity meant to her. She responded that it means peace, freedom, being friendly and kind to others. She spoke about respecting each other and tolerance. She said she is proud of her conversion and wears a cross. She claims she has told everyone. She said words to the effect that back in Iran she is scared and very cautious and will not have contact with strangers and there is an emphasis on going to hell. She said she now has strong support behind her and feels enlightened.
The Tribunal pointed out that many of the aspects of Christianity she described are attributable to many religions including Islam. The Tribunal pointed out that in her application she stated she had been on two pilgrimages to Saudi Arabia and this indicates a strong level of commitment to Islam.
The applicant replied with words to the effect that she did go on those pilgrimages. She claims she only went because it was suggested to her and she wanted her sins cleansed and God to bless her, she claims she did not know and was fearful.
The difference she has seen from Christianity and the Koran is that here people comply with the Bible, she claims that in Iran and in the Koran people do not comply.
The Tribunal pointed out that it could be said that many people do not comply with the Bible in Australia either. She responded she had heard something about that in Australia.
The applicant stated that she really wanted to stay in Australia. She claims she cannot go back as she has told everyone she is a Christian and will proselytise.
The Tribunal then allowed submissions from the applicant’s representative. He reiterated that the applicant is a Christian. He stated that her journey to Christianity started before her visa refusal.
After the hearing the applicant provided evidence that her daughter gave birth to a daughter on the same day as the hearing. A medical certificate indicated that the applicant’s daughter had been an inpatient from [date] May 2021 to [date] May 2021. There was nothing to indicate that the birth was an emergency or that there were any adverse medical events.
The applicant at hearing mentioned her daughter was in hospital on the day of the hearing. Despite this she was able to give evidence, participate in the hearing and discuss her claims. There was no indication that due to her daughter having given birth to a daughter she was unable to participate.
COUNTRY INFORMATION
The 7 June 2018 Department of Foreign Affairs and Trade (DFAT) Report on Iran (at 3.41) advises that under Iranian law, a Muslim who leaves his or her faith can be charged with apostasy. Separately, a person of any religion may be charged with the crime of ‘swearing at the Prophet’ (blasphemy) if he or she makes utterances that are deemed derogatory towards the Prophet Mohammad, other Shi’a holy figures, or other divine prophets. The Penal Code does not specifically criminalise apostasy, but provisions in the Penal Code and Constitution state that sharia applies to situations where the law is silent, and judges are compelled to deliver sharia-based judgments in such cases. Although the Koran does not explicitly state that apostasy should be penalised, most Islamic judges in Iran agree that apostasy should be a capital crime. The ruling is based on oral traditions attributed to the Prophet Mohammed and to Shi’a Imams, who are considered the Prophet’s rightful successors. Chapter Five 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.
Further, the report (at 3.43) notes that while apostasy and blasphemy cases are no longer an everyday occurrence in Iran, authorities continue to use religious-based charges (such as ‘insulting Islam) against a diverse group of individuals. In recent years, the group has included Shi’a members of the reform movement, Muslim-born converts to Christianity, Baha’i, Muslims who challenge the prevailing interpretation of Islam (particularly Sufis) and other who espouse unconventional religious beliefs (including members of recognised religious groups). The report goes on to state (at 3.44) that death sentences in apostasy and blasphemy cases are now rare but notes that in March 2017 the Supreme Court upheld the decision of a criminal court in Arak 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 Koran while on military service in October 2015. Human rights groups claim the authorities tricked the man into confessing to the charges with the promise of release if he did so. The death sentence has not been carried out as of March 2018. The court also convicted two co-defendants of posting anti-Islamic material on social media, sentencing them to prison. DFAT’s assessment (at 3.45) is that those accused, or religiously based charges are also likely to face charges related to national security, and that they are unlikely to have adequate legal defence, and that are likely to be convicted.
The report details (at 3.23) that despite Iran being an Islamic country, Article 13 of the Constitution states that Zoroastrian, Jewish, and Christian religions are the only recognised non-Muslim faiths in Iran. Adherents to the three recognised religions are permitted to hold religious services, run places of worship and religious schools and celebrate religious holidays. DFAT’s assessment (at 3.29) is that members of recognised religions face a low risk of official discrimination, but despite the benefits of official recognition, the structure of the Islamic Republic inevitably favours the Shi’a Muslim majority to the exclusion of others. The risk of societal discrimination, including violence, is low, but may be heightened at times when external factors come into play. The report confirms that the Penal Code strictly prohibits proselytization by religious minority groups, and that none of the three recognised minority groups proselytises or accepts converts as members. Strict instructions are in place to prohibit the small number of Latin Catholic and Protestant churches in Tehran not to minister to Iranians. Relevant to this case, is DFAT’s report (at 3.34) that international observers advice that Iranians who convert to Christianity outside the country are unlikely to face adverse attention from authorities upon a return to Iran, provided they have not previously come to the attention of authorities for political activities conducted in Iran, maintain a low profile and do not engage in proselytization or political activities within Iran.

Against this background information, the Tribunal has had to make an assessment about whether the applicant is a genuine Christian convert and what she is likely to do if she returns to Iran that may result in a real chance of serious harm to the applicant on account of her conversion to Christianity, or a real risk of significant harm.
Nationality
The applicant claims to be a citizen of Iran and has provided copies of her passport. The Tribunal finds that Iran is the receiving country for the purposes of the Convention and the receiving country for the purposes of s.36(2)(aa).
Does the applicant have a well-founded fear of persecution?
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This involves 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. 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. 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.
The Tribunal has considered all the evidence before it. The Tribunal found the applicant’s evidence to be vague, lack detail and in some respects evasive.
She had difficulty giving the Tribunal any timeline in relation to her conversion which was consistent with the evidence provided. The Tribunal found her evidence to be evasive in relation to what religion her children followed and what school they attended.
The applicant at hearing resiled from her claim regarding a debt in Iran as outlined and discussed at the interview with the Department. She stated that the issue in relation to her owing a debt and being guarantor for her son in law was resolved and she was no longer fearful of retuning to Iran due to that concern. The applicant in her statement provided to the Tribunal seven days before the hearing had indicated that she still had a claim in relation to her debt as well as being a Christian. The Tribunal clarified with her representative who was present at the hearing that she no longer had any fear from the debt issue. The representative confirmed that this was the case and her only claim was her conversion to Christianity.
The applicant again confirmed that her only fear was that she had converted to Christianity and could not return to Iran due to her being a Christian convert from Islam.
The Tribunal did not ask the applicant specific questions about her belief in Christianity or test her knowledge of the gospels. The Tribunal allowed her to give her own evidence about her conversion and commitment to Christianity.
The Tribunal explained it was looking to assess her commitment to Christianity.
The responses she gave were of a general nature and related to people being friendly, respectful, and kind. The Tribunal can understand that these are aspects of Christianity, however, they are also aspects of many other religions including Islam. She spoke of Islam threatening her with going to Hell for her sins. This would indicate that she lacks any knowledge of the tenements of Christianity as Christianity has a strong theology of being punished in the afterlife for sins committed in this life.
The applicant did not appear to have any knowledge of any of the theory of Jesus Christ or a strong belief system in Christianity.
The Tribunal accepts that she attended English lessons at [Church 1] as set out by the Rector in his statement. The Tribunal accepts that she enjoyed the companionship and friendship of persons at the English classes and would like to keep meeting them.
The Tribunal does not accept that any convincing or independent evidence was provided which would indicate that her commitment is such that she could continue to practise Christianity if she returned to Iran.
The applicant at hearing when queried claimed she had been interested in Christianity prior to her protection application being refused. She claimed that she told everyone she was a Christian and proselytised. She claimed she did not bring it up at the interview with the Department as she was not baptised. There is no evidence of this other than the applicant’s own assertions.
The Department refused the applicant’s application for a protection visa in April 2017. The letter from the Rector of [Church 1] states that she started to attend English classes in June 2017. The [newsletter] provided states that the applicant’s daughter one day walked in and said “my mum wants to be baptised in this church. We were all taken aback, she never gave any hints!”
The evidence before the Tribunal indicates that she attended English classes. The only third-party evidence provided is from [Church 1] which is after her protection application was refused. In that reference there is no affirmation of her having a strong commitment to Christianity. The letter refers to her being an enthusiastic English student.
The newsletter provided talks of there being no hint of her wanting to be a Christian until her daughter turned up and wanted her baptised. All this evidence is after the refusal of her application for a protection visa.
When these concerns were put to the applicant at hearing, she responded that she was interested and attending some churches at the time of her interview with the Department’s delegate but did not mention it to the delegate. On the evidence before it the Tribunal only has the applicant’s assertions that she was interested before her interview with the delegate, after weighing up all the evidence the Tribunal does not accept that the applicant had a strong interest in Christianity a year after her arrival in Australia.
Given the applicant’s continued lack of conviction and credible evidence of a continuing and genuine Christian faith the Tribunal does not accept that she is a genuine Christian convert in Australian. The Tribunal therefore does not accept that she will practise as a Christian in Iran or that she will attend a Christian church or proselytize if she returns to Iran.
The applicant’s immigration history indicates a strong desire to stay in Australia. The Tribunal can understand a mother’s desire to stay in Australia with her children and grandchildren, however, is not satisfied that she is a committed and genuine Christian who would return to Iran and practise Christianity.
The Tribunal accepts that the applicant has a number of supporters who believe she is a genuine Christian convert. While her activity at the Church may be consistent with someone who is a genuine Christian convert, this activity may also be consistent with someone who has engaged in activity in Australia for the sole purpose of making and strengthening a claim for protection. Ultimately, the Tribunal has concluded that the applicant is the later.
For the reasons given above, the Tribunal is not satisfied that the applicant engaged in this conduct in Australia for purposes other than to strengthen her claim that she is a refugee.
The Tribunal on the evidence and information provided does not accept that the applicant will be deprived of her basic human rights for any of the reasons claimed if she returns to Iran. The Tribunal is not satisfied that she is at risk of serious harm or significant harm for any of the reasons claimed if she goes to Iran now or in the reasonably foreseeable future.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal finds that there is no real chance that she will suffer serious harm for reason of her membership of a particular social group, religion or any other grounds under the Refugees Convention if she goes to Iran now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution and is not a refugee as defined. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a).
The Tribunal then considers whether the applicant faces a real risk of significant harm on account of her claimed conversion to Christianity and that her activities in Australia associated with this claimed conversion. As the Tribunal previously acknowledged, the applicant has engaged in several activities connected to Christian Churches. However, the DFAT report at 3.34 states that international observers advise that Iranians who convert to Christianity outside the country are unlikely to face adverse attention from authorities upon return to Iran, provided they have not previously come to the attention of authorities for political activities conducted in Iran, maintain a low profile and do not engage in proselytization or political activities within the country.
Given the findings above Tribunal is not satisfied that if the applicant were to be returned to Iran from Australia, there are substantial grounds for believing that there is a real risk that the applicant will be arbitrarily deprived of her life, be subjected to the death penalty, tortured, subject to cruel or inhuman treatment or punishment, or subjected to degrading treatment or punishment. This is because the Tribunal is satisfied that the applicant is not a genuine Christian convert and if she returned to Iran now or in the reasonably foreseeable future, she would not engage in any Christian activities in Iran. As the Tribunal is not satisfied that the applicant is a genuine Christian convert, the Tribunal is not satisfied that the applicant would be considered to have imputed pro-Western political views. The DFAT report notes at 5.25 that Iranian authorities pay little attention to failed asylum seekers in Iran and have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims.
The applicant at hearing asserted she “has told everyone she is a Christian”, wears the cross and would proselytise. No further evidence or detail was provided. The Tribunal only has the applicant’s own assertions that she has conducted this activity. She gave no evidence on how she would proselytise or who exactly she had told. She did not provide any evidence on whether she had discussed her conversion to Christianity to anyone in Iran.
In the circumstances of this applicant, the Tribunal accepts that she has attended English classes at a Christian Church, being Baptised and participated in Church gatherings and other social engagements concerning Christianity, but because the applicant is not a genuine Christian convert and would not engage in any Christian related activity upon her return to Iran, there is not a real risk of significant harm to her.
The applicant claimed to the Department that she had health problems and was an “old woman”. She provided a doctor’s certificate dated April 2017 stating she suffered from a number of medical conditions such as high blood pressure, early stage heart disease, chronic bronchitis, severe gastritis, osteoporosis, under active thyroid and severe disc problem in lower back. No further medical evidence was provided. At hearing when asked about her claims the applicant did not provide any evidence which would indicate she would not receive treatment in Iran for any health concerns or be targeted due to being an “old woman” in Iran.
The applicant has [children] in Iran and in her application for protection indicates that they have financially supported her. She has enjoyed significant travel to and from Australia since 2010.
If returned to Iran she will continue to enjoy the support of her family in Iran. She will also have the company of extended family and friends.
In her evidence she spoke of being attracted by the friendship and companionship she found in Australia at English lessons held by the Church. The applicant does not speak English so it is understandable she would be attracted by this. Upon return to Iran she will have the support of her family and friends.
The Tribunal has considered her claims in relation to her health and being an “old woman” the Tribunal is not satisfied that there are substantial grounds for believing, that, as a necessary and foreseeable consequence of her being removed from Australia to Iran there is a real risk that she will suffer significant harm.
For reasons given above in relation to ‘real chance’, the Tribunal is not satisfied there is a real risk of any of the kinds of significant harm set out in s.5(1). The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk she will suffer significant harm. She therefore does not satisfy s.36(2)(aa).
Refugee
The Tribunal is not satisfied that the applicant is a genuine convert to Christianity. The Tribunal is satisfied that the applicant came to Australia and became involved in Christianity to achieve a migration outcome. If she returns to Iran, she will not continue with the Christian activity she engaged in while she was in Australia.
For the reasons given above, the Tribunal not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Catherine Carney-Orsborn
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1)      Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H        Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J         Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)conceal an innate or immutable characteristic of the person; or
(c)without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)the persecution must involve serious harm to the person; and
(c)the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)a threat to the person’s life or liberty;
(b)significant physical harassment of the person;
(c)significant physical ill‑treatment of the person;
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K        Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L         Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)a characteristic is shared by each member of the group; and
(b)the person shares, or is perceived as sharing, the characteristic; and
(c)any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)the characteristic is not a fear of persecution.
5LA      Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)the person can access the protection; and
(b)the protection is durable; and
(c)in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36         Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)the non‑citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non‑citizen; or
(c)the non‑citizen will be subjected to torture; or
(d)the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 3165

24 May 2021

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