1710843 (Refugee)

[2018] AATA 5538

1710843 (Refugee) [2018] AATA 5538 (20 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1710843

COUNTRY OF REFERENCE:                  Iran

MEMBER:Susan Hoffman

DATE:20 December 2018

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 20 December 2018 at 10:30am

CATCHWORDS
REFUGEE – protection visa ­– Iran – religion – conversion to Christianity – Pentecostal church –  political opinion – Basij – genuine religious conversion – well-founded fear of persecution due to religion – relocation in home country unreasonable – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth) ss 36, 65, 91, 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

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

2. The applicant who claims to be a citizen of Iran, applied for the visa on 24 December 2012 and the delegate refused to grant the visa on 8 August 2013.

3. The applicant sought review of that decision by the Refugee Review Tribunal (RRT) which decided on 20 May 2015 to affirm the delegate’s decision.

4. [In] April 2017 the Full Federal Court ordered that the matter be reconsidered because the RRT had fallen into jurisdictional error. The reason was that the RRT had caused the applicant to understood that a document concerning his conversion to Christianity (a letter from his pastor dated [in] June 2013) that he had provided to the Department would be obtained by the RRT and considered, but that did not occur.

5. The applicant appeared before the Tribunal on 8 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from two witnesses, Mr [A] and Mr [B].

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

7. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

9. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

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

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

11. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

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

13. The issue in this case is whether the applicant meets the criteria to be granted a protection visa. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Background, protection claims and the delegate’s decision

1. The applicant was born in [Tehran] in Iran on [date]. He claims to be of the Azerbaijani ethnicity and was born a Shia Muslim.

2. In his statutory declaration of 5 December 2012, he stated that he had [number] years of education and worked [in several occupations].

3. He claimed that when in Iran, there were a number of incidents where he was drinking with friends at parties and Basiji soldiers intervened and physically abused him and his friends. He paid them bribes and then they left without taking him away. He claimed these incidents happened from 2007 until he left Iran in 2012, and he was kicked and beaten on many occasions, and has suffered a broken tooth, severe scratches to his leg and had mental trauma as a result.

4. The applicant claimed that he participated in rallies and demonstrations [in] the lead up to the 2009 presidential election.

5. The applicant said the the final incident he had with the Basiji happened in about June 2012 on the anniversary of the day Imam Khomani passed away. This was a public holiday in Iran and he was having a party with friends in his grandfather’s garden. There was alcohol, music and dancing. After about two or three hours, a group of men joined the party. The [applicant was injured] and he was able to run away but friends of his were arrested by the Basiji.

6. The applicant claimed that he feared he would be mistreated if he was returned to Iran by the Basiji. About the parties, the applicant claimed that he organised the venues but all attendees would bring food and drink to share with each other. He claimed the parties were held on land owned by his family, about five minutes’ walk from the main road which was [named]. The house on that land was used by his family when there were farming activities but as the parties were generally held at the weekends or on public holidays, family were not usually there.

7. At the interview he said that on the public holiday to commemorate the passing of Imam Khomaini, [a number of] people had a party. The Basiji arrived and an argument broke out, followed by a scuffle. The applicant claimed that he was slapped and [received a number of injuries]. He claimed that he ran away and his friends were arrested by the Basiji.

8. Asked what happened to his friends, he said that he only knew them casually and did not know their families, and he never found out what happened to them. He claimed that they were friends he knew from work and they met up socially about five times a month.

9. The delegate recorded that the applicant was known to the Basiji, and was satisfied that the applicant was involved in organising parties where alcohol was openly consumed in an area known to the Basiji, and that he had been caught many times and paid bribes to the Basiji.

10. The delegate was not satisfied that this meant the applicant was being targeted by Iranian authorities and considered some of the applicant’s claims to be embellished.

11. At the delegate’s interview the applicant claimed that he had converted to Christianity while in Australia. He also feared he would be mistreated and killed because of his political profile gained from attendance at protest rallies prior to the 2009 elections.

12. The delegate accepted that the applicant had converted to Christianity but was not satisfied this was done for a genuine reason because of the timeline.

13. The applicant arrived in Australia [in] August 2012 and was detained until [date] November 2012. He was interviewed by the delegate on 5 December 2012 and later that month left [City 1] for [City 2]. He claimed to have met a person in a mall who invited him for English language lessons and during the period he was learning English he decided to become Christian. He converted to Christianity [in] January 2013.

14. The RRT was not satisfied the applicant was a genuine convert. By the time of that hearing – 3 December 2014 – it was almost two years since the applicant converted to Christianity.

    Findings and reasons

15. The Tribunal has considered the evidence before it, including the sworn evidence of the applicant and his witnesses as given at hearing. The Tribunal acknowledges the difficulties faced by an applicant in a formal hearing, and recalling events from years past. Broadly if an applicant’s account is credible, the Tribunal will extend the benefit of the doubt with regard to specific claims the applicant cannot substantiate. At the same time, the Tribunal is also required to test the evidence and critically evaluate it.

16. The Tribunal was satisfied that the applicant was truthful in giving his evidence. The applicant joined [a certain] Church which is a Pentecostal church founded in [City 3] in [year]. The Tribunal formed the view that the applicant’s conversion to Christianity was genuine and that his life revolves around the church and church activities.

17. Prior to the hearing his representative made a written submission that included testimonials from church members and photographs of the applicant attending church and other events. Support letters were provided by the following people:

    ·Mr [B] dated [in] October 2018. Mr [B] is a friend of the applicant.

    ·Ms [C] dated [in] September 2018. She is the applicant’s [specified] and wrote of him encouraging others to explore the Christian faith and attend church.

    ·Mr [D] dated [in] October 2018. He is a friend of the applicant whom he met through the church and confirms the applicant’s regular attendance at and involvement with the church.

    ·Pastor [E] from [the applicant’s] Church, dated [in] October 2018. He confirmed the applicant’s baptism and attendance at church events, and noted numerous discussions with the applicant about his Christian faith and the Pastor’s belief that the applicant’s conversion to Christianity is genuine. There is also an affidavit from Pastor [E] dated [in] November 2015 which gave further information about the applicant’s conversion to Christianity and included a letter of support from the Pastor dated [in] June 2013; and a separate affidavit from Pastor [E] dated [in] April 2016.

    ·Pastor [F] dated [in] November 2015. This is an affidavit outlining the applicant’s participation in bible study group and an outreach program, and modification of lifestyle including away from alcohol.

    ·Mr [A] (undated). This statutory declaration described various aspects of the applicant’s Christian faith.

18. At the hearing a further support letter was submitted, from Mr [G] who is pastor at The [Church] in [Suburb 1]. He wrote that before pastoring at [Suburb 1], he attended the [church] at [Suburb 2] and was in leadership roles from 2015 to 2018. He wrote that he met the applicant in 2012 and a friendship started to develop in 2013. As the applicant’s understanding of English grew, so did his comprehension of Christianity. In 2016 he started to develop another level of commitment and involvement, becoming involved in outreach activities in central [City 2], speaking to people about Jesus. According to this letter, the applicant faced serious pushback from Iranian and Islamic communities in [City 2] because of his faith in Jesus Christ. Mr [G] said the applicant was like family to him and his wife and is genuine in his Christian faith.  

19. By the time of the Tribunal’s hearing, the applicant has been a member of the [Church] for almost six years, attending their [Suburb 2] church. Mr [A] wrote in his statutory declaration that he first met the applicant on a [City 2] street in December 2012, as a result of which the applicant started attending the [Church] on average three to six times a week for church services, Bible studies and English lessons. He wrote that the applicant did more than just attend; the applicant actively participated in events socially and spiritually, and also helped with setting up and packing up at many events held inside and outside the church.

20. The witnesses gave evidence towards the end of the hearing. Mr [A] said he and his wife had been missionaries overseas in many parts of the world and believed that they know when a person’s conversion is genuine. He said that when the applicant first came into contact with the church, it was a slow start as he had little English and there was a transition over perhaps a year, after which time he made the decision to follow Christ. He said that for the last four to five years the applicant was fully committed to the church and its activities.

21. Mr [A] said that there were [a number of] members of the [Suburb 2] church which the applicant attends, and he estimates that [the majority] of those attend just about everything. That would be the core membership and the applicant was part of that core. There is a group within the core of people who are even more committed and supportive, and the applicant belongs to that group. He said the applicant comes to every prayer meeting and over the last three to four years, he has brought other people into the church – Iranians and other nationalities.

22. The other witness, Mr [B], said that he met the applicant in early 2016 through mutual friends. The applicant helped Mr [B] and his wife move house and talked to them about Jesus. The applicant followed up with them a number of times and Mr [B] and his wife finally went to the church. He said they met amazing people there who are now their family.

23. Mr [B] said that the applicant and other people explained the difference between Islam and Christianity and in 2016, he and his wife converted, and they have since become good friends with the applicant.

24. Mr [B] said that he and his wife have been back to Iran since converting to Christianity for about a month. He said there was no problem telling their friends and family about it as they were not great fans of Islam. He said that the authorities there would have a problem if they knew about it.

25. The applicant said that he never set out to find a particular church but when he first came to [City 2], the first group he got to know was [his current] Church. He had no idea who they were. They took his phone number and address and told him about the English classes.

26. The applicant gave evidence about the days and times of church services, consistent with information on the church’s website.[1] A band performs on Saturday, inside the church during winter and outside in the summer. Asked to describe what happened during the Sunday service, the applicant said that at 9.30 the pastor started with Bible Study, and sometimes played a recording from other countries. At 10.30 am, the band arrives, and there is prayer and music. Some people may make personal prayers before the preaching starts. When the band plays everyone joins in the singing; at first they clap and then they sing.

    [1] [Footnote deleted].

27. Asked if he had a favourite part, the applicant said he enjoyed the singing and the words were on a board so he could sing along. The applicant said he does not have work rights, and he has no friends outside of the church. He said he went to church three days a week and attended all the bible study classes. He said he lived in a [house] shared with other single men who were members of the same church; they were a mix of nationalities.

28. The applicant said that his parents did not like it when he told them he had converted as they feared the consequences for him. He said he does not have a strong relationship with his parents and that was partly because of problems in communicating because of the time differences between Australia and Iran. He said he has [siblings] and they do not understand the relationship between him and his god, and they also fear something would happen to him.

29. The applicant has posted about Christianity on his [social media] account. He submitted photos of posts from December 2015 to October 2018. They include posts [in] December 2015 and 2017; [in] December 2016;  [in] April and June 2017; and  [in] June 2017 and January and March 2018. Some messages are in Farsi.

30. The Tribunal asked the applicant why he would do this, knowing the attitude of authorities in Iran towards converts from Islam. The applicant said that was the essence of his belief and you have to share it with other people. He referred to the second letter of St Paul to the Corinthians and that the true freedom is to tell people about your beliefs. He said that spreading the religion is fundamental to it.

31. The applicant said that every week he and others from the church go into the city to spread the word, and that he has done that as much as possible. They stay in front of [a location], play music and give out leaflets.

32. The applicant had provided over 75 photos covering 2014 to 2018, in relation to his claim to do with his Christianity. He confirmed that the people in the photos were generally church members and the photos were taken at a variety of events, including weddings between church members; outreach activities held in [City 2] including a re-enactment of the death of Jesus Christ; church services; bible studies; gatherings of church members; and an international bible conference . The applicant featured in almost all the photos.  

33. The applicant said that he wants to get married and is waiting for the outcome of his visa application. He said his future wife is also a member of the church and they would want their children to be part of it.

34. The Tribunal asked the applicant if he returned to Iran, how he would practice his religion. He said that according to the bible, Christianity is good news and that as much as he could, he would promote it. Asked how long he had been talking publicly about his faith, the applicant said that Christianity had a lot of layers and he started to talk about it since he received the Holy Spirit which was four or five years ago

35. Given the period he has been attending the same church, the support letters listed above, the applicant’s evidence about the activities of the church and his regular attendance there, that he lives with [other] men who are church members, and that he is hoping to marry his girlfriend who is a member of the church, the Tribunal was satisfied that the applicant’s conversion to Christianity was genuine and heartfelt, and formed the view that his life revolves around the church. It was also apparent that proselytising is fundamental to his belief system. The Tribunal accepts that to be the case as it is central tenet of [his] Church movement.

36. The applicant said that as he has been posting about Christianity on social media, the Iranian authorities might know about it.

37. The Tribunal then considered his situation in relation to country information about Iran. Relevant sections from the DFAT report on Iran and religion follow:[2]

    [2] DFAT Country Information Report Iran, dated 7 June 2018

    POLITICAL SYSTEM

    2.29      Iran is a theocratic republic, established under the principle of Velayat-e faqih (‘governance of the jurist’) whereby an Islamic jurist (the Supreme Leader) makes final policy decisions …

    2.31 The Council of Guardians of the Constitution (‘Guardian Council’) reviews all bills passed by Parliament to determine whether they are in line with both the Iranian Constitution and sharia (Islamic law).

    RELIGION

    3.17    Approximately 98 per cent of Iranians are Muslim – 90 per cent Shi’a, and 8 per cent Sunni. The remainder consists of religious minority communities, including Yarsan (approximately one million followers), Baha’is (more than 300,000), various Christian denominations (around 300,000), Zoroastrians (30,000–35,000), Jews (20,000) and Sabean-Mandeans (5,000–10,000). Religious minority communities have shrunk considerably since 1979, with many members leaving Iran.

    3.18 Iran is a theocracy that, with the possible exception of The Holy See, mixes religion and state more completely than any other country in the world. Article 4 of the Constitution requires that all of the country’s laws and regulations be based on (Shi’a) Islamic principles. In practice, government policy and legislation heavily favours the majority Shi’a population, leading to pervasive structural discrimination against non-Shi’a Muslims and religious minorities. The Ministry of Culture and Islamic Guidance, and the Ministry of Intelligence and Security (MOIS) monitor religious activity. The IRGC also monitors churches ...

    Recognised Religious Groups

    3.23 Article 13 of the Constitution states that the Zoroastrian, Jewish, and Christian religions are the only recognised non-Muslim faiths in Iran. It gives adherents of these religions the freedom (within the limits of the law) to perform their own religious rites and ceremonies, and to comply with their own canon in their personal affairs and religious education. Adherents of the three recognised religions are permitted to hold religious services, run places of worship and religious schools, and celebrate religious holidays. Five parliamentary seats are reserved for these groups: two for Armenian Christians, and one apiece for Assyrian Christians, Jews, and Zoroastrians …

    3.24    Despite the protections afforded to them through their constitutional recognition, members of the recognised religious groups face significant official and societal restrictions. By law, non-Muslims may not serve in the judiciary, the security services, or as public school principals. Non-Muslims seeking public sector employment or intending to run for public office are at a disadvantage compared to Muslims due to the requirement that all such candidates or applicants undergo the gozinesh review. Government workers who do not observe Islamic principles and rules are subject to penalties, and may be dismissed or barred from work in particular sectors …

    3.26    … Because the law prohibits citizens from converting from Islam to another religion, the government only recognises these groups because their presence in Iran predates Islam. Any citizen who is not a registered member of one of these groups, or who cannot prove that their family was Christian (or of another recognised religion) prior to 1979, is considered Muslim.

    Unrecognised Christian Groups (House Churches)

    3.30    The Penal Code strictly prohibits proselytisation by religious minority groups – it is a capital crime for non-Muslims to convert Muslims. None of the three recognised minority religions proselytises or accepts converts as members..

    3.31    …DFAT understands a high percentage of unrecognised Christians in Iran are Farsi-speaking converts from Islam, or the children of converts. Local sources claim many converts are unhappy with being designated Muslim at birth, and wish to explore their religious identity. Others see adopting Christianity (albeit surreptitiously) as a means of rebelling against the government.

    3.32    … Some isolated Christians who do not have regular contact with other Christians may receive all of their religious instruction via Christian television programs (which they can view via satellite) or through the internet, from the many foreign-based Farsi-speaking preachers who provide religious instruction online …

    3.34    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 proselytisation or political activities within the country.

    Religiously-based charges

    3.41 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 he or she makes utterances that are deemed derogatory towards the Prophet Mohammed, 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 in which the law is silent, and judges are compelled to deliver sharia-based judgements in such cases. Although the Koran 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 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.

    3.42    Politically motivated apostasy charges were frequent in the years following the Iranian revolution, often leading to death sentences. In the vast majority of cases, however, defendants charged with apostasy also faced a litany of 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.

    3.43    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. 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 others who espouse unconventional religious beliefs (including members of recognised religious groups). Some religiously-based cases have clear political overtones, while other cases do seem to be primarily of a religious nature, particularly when connected to proselytisation.

    3.44    Death sentences in apostasy and blasphemy cases are now rare. However, 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 had 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 authorities tricked the man into confessing to the charges with the promise of release if he did so. The death sentence had 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.

    3.45    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.

1. The representative submitted that the applicant had a different profile to that of his witness, Mr [B], in that the applicant has been evangelising and bringing people into the Christian religion. He said that the applicant told him [a number of] people had prayed for a positive outcome from the hearing the previous Sunday. He also said that with regard to the applicant’s faith, the applicant is at the level where he can engage in tongue language, used between Christians who have reached a particular level of faith. The Tribunal understands this to be what is also known as speaking in tongues which is associated with Pentecostal churches; as already noted, the [applicant’s] Church is Pentecostal.  

2. The Tribunal is satisfied that the applicant’s religion requires him to pray and practice with other people, and that the [Church] has an evangelistic focus. The Tribunal accepts that the applicant would not be able to practise his faith in Iran without putting himself at risk of serious harm. 

3. The Tribunal is satisfied that if removed to Iran, the applicant would not be free to practise his chosen religion openly in the way in which he would like because of Iranian law and society. The Tribunal is satisfied that the applicant’s conduct while he has been living in Australia is an expression of who he is and he has not changed or exaggerated his conduct to strengthen his protection claim.

4. The Tribunal is of the view that one of the ways in which the applicant practices his faith is by sharing it with others and spreading the word. The Tribunal concluded that seeking to spread Christianity is fundamental to the applicant’s belief system and that expecting him to modify this behaviour to avoid a real chance of persecution is not reasonable.

5. The Tribunal accepts that the applicant has a well-founded fear of persecution because of his religious belief and practice should he be removed from Australia to Iran.

6. The Tribunal considered whether relocation was an option for the applicant and concluded it was not as the harm he fears is from the state and its agents.

   CONCLUDING PARAGRAPHS

7. The Tribunal concludes that the applicant has a well-founded fear of persecution for reasons of religion, and relocation within Iran to avoid that persecution is not an option for the applicant as the same laws and attitudes regarding conversion from Islam to Christianity, as the applicant has done, apply nationwide.

8. The Tribunal is satisfied that the persecution faced by the applicant should he return to Iran would be at the hands of the state, and therefore protection by the state or any other body would not be available to him.

9. The Tribunal is also satisfied that the applicant fears persecution by reason of his true religious beliefs and that reason is the essential and significant reason for the persecution. It also finds that the persecution feared is systematic, in the sense of not being random, and discriminatory in that it is directed at the applicant because of his religious beliefs. The Tribunal is satisfied that the persecution feared by the applicant involves serious harm as it would be a threat to his life, liberty or significant physical harassment or ill treatment. The Tribunal is satisfied that the criteria set out in s.91R of the Act are met.

10. The Tribunal is satisfied on the evidence that the applicant has a well-founded fear of persecution for a Convention reason if he is returned to Iran now or in the foreseeable future.

11. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

12. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Susan Hoffman
    Member