1711493 (Refugee)

1711493 (Refugee) [2021] AATA 4180 (23 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711493
COUNTRY OF REFERENCE:                   Iran
MEMBER:L. Symons
DATE:23 September 2021
PLACE OF DECISION:  Sydney
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 23 September 2021 at 5:13pm
CATCHWORDS
REFUGEE – protection visa – Iran – religion and political opinion – family’s opposition to Islamic regime – harassment by government agencies – registration of relationship in Australia, not religious marriage – relationship ceased, sponsorship withdrawn and partner visa refused – ex-partner’s abuse, threats and prevention of access to communication from department – mental health and treatment – conversion to Christianity in Australia, with mother and husband – membership and activities – marriage and newborn baby – not eligible to apply for partner visa onshore – country information – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(3)(a), 36(2)(a), 65
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 dependants.
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 19 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Iran, arrived in Australia [in] June 2015 as the holder of a subclass 300 Prospective Marriage visa. On 18 February 2016, she applied for a subclass UK820/BS801 Partner visa and was granted an associated Bridging A visa on that date. On 3 June 2016, her application for a subclass UK820/BS801 Partner visa was refused. On 1 July 2016, she was granted a Bridging C visa in association with her application for a Protection visa.
On 28 June 2016, the applicant applied to the Department of Immigration (the Department) for a Protection visa. On 19 May 2017, the Department refused to grant the visa. On 30 May 2017, she applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal on 1 April 2021 to give evidence and present arguments. The Tribunal heard evidence from her husband, [Mr A], and her brother-in-law, [Mr B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi and English languages.
The applicant was represented in relation to the review by her registered migration agent, [Mr C], who attended the hearing.
The issues that arise on review are whether the applicants are owed Australia’s protection under the refugee criterion or the complementary protection criterion.
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 AND FINDINGS
The applicant’s claims in her application for a Protection visa are summarised as follows:
·She was born in [City] in Hamedan Province in Iran. Her family moved to Tehran shortly after she was born. She is a citizen of Iran.
·She and her family hold secular views and oppose the Islamic regime. Her father has been arrested and detained for his lack of faith in Islam and dissident political views. This has caused her family anxiety as they are persons of adverse interest to the Iranian security authorities. This is one of the reasons why she fears returning to Iran as authorities look for excuses to harass, harm and intimidate them.
·Her sister and her husband immigrated to Australia as skilled migrants and are both Australian citizens.
·She has had two consecutive failed relationships and has no children of these relationships. She fears harm and punishment from the Iranian authorities due to her decision to register her now failed relationship with [Mr D]. He became abusive in the early days of their relationship and she was the victim of violence.
·She recently received correspondence from the Department that was sent to her email address which revealed that her former de facto partner had withdrawn his sponsorship of her Partner visa and as a result her application for a Partner visa was refused on 3 June 2016. She then contacted the Department on the advice of her migration agent.
·She did not receive any of the emails sent by the Department to her in the lead up to the refusal of her application for a Partner visa as she had no access to the email account created on her behalf by her former de facto partner. He did not inform her of crucial correspondence from the Department as part of his effort to leave her with no legal avenue to secure residence in Australia.
·Her mother advised her that uniformed Sepah agents had visited her home and told her that they had information that she had been in unlawful relationships with men in Australia. Her mother told her that Pasdar agents told her that they have documents that prove her daughter had entered into an illegal relationship with at least one man in Australia.
·Her mother informed her that they received threatening telephone calls with threats to throw acid in her face and have her kidnapped and raped for entering into unlawful relationships in Australia.
·These incidents and her former de facto partner’s actions to conceal correspondence from the Department from her made her realise that her safety and liberty were in danger if she returned to Iran. She decided to cancel her plans to return to Iran. These incidents and when she found out that her former de facto partner may have sent documents to Iran in order to harm her because she left him have made her scared.
·Being in an unlawful relationship outside religiously sanctioned marriage in Iran carries a penalty of stoning to death for a woman. She fears returning to Iran because she believes that the Iranian regime has no rights to limit, deny or violate her personal freedoms by criminalising and penalising her relationship decisions and choices.
·The Iranian regime has no rights to impose a code of behaviour on her which is contrary to her personal beliefs as a modern and educated woman. She has no belief in Islam and strongly condemns the draconian Islamic laws that she will be prosecuted under.
The applicant provided the Department with a copy of her Iranian passport issued [in] 2013, a bundle of photographs of herself showing bruises on her face and body, an exchange of messages on Messenger that appears to be in Farsi with an English translation, email correspondence in what appears to be Farsi with English translations, a confirmation of flight bookings between Sydney and Melbourne with [Airline], an Employment Certificate dated 19 April 2017 from [Company] and country information on Iran.
The applicant attended an interview with the Department on 21 April 2017 accompanied by her migration agent. She was assisted by a Farsi interpreter. During the interview, she reiterated and expanded on her written claims. She made the following new claims:
·Her former de facto partner, [Mr D], threatened, physically abused and tortured her in Queensland. When she ended the relationship in June 2016, he threatened her that he had connections in Iran and would pay them to kidnap and harm her if she returned to Iran.
·[Mr D] has threatened her family in Iran and her sister in Australia.
Following the interview, the applicant’s migration agent provided the Department with written submissions, a Statutory Declaration dated 1 May 2017 from the applicant, a Statutory Declaration dated 1 May 2017 from her sister, [Ms E], and a Psychological Report dated 2 May 2017 from [Mr F].
In her Statutory Declaration dated 1 May 2017, the applicant reiterated her previous claims. She made the following new claims:
·[Mr D] told her that he had already sent their Relationship Certificate to his powerful friends in the Sepah and Basij. In his numerous threats he told her that he has reported the details of her previous relationship with [Mr G] to his connections in Iran to make sure she will face punishment for leaving him and refusing to be with him again. She knows this from emails sent to her by her mother and speaking to her mother when she visited Australia in late 2016.
·[Mr D] started making threats against her in May 2016 after their trip to Melbourne. Warning emails from her mother started in the first week of June 2016. She notified the Queensland Registry (of Births, Deaths and Marriages) of the end of her relationship with him in July.
·She has Police protection in Australia. In Iran, she is unable to access Police protection because she has committed adultery and she will be punished by the Iranian authorities. The Iranian authorities have evidence against her proving that she has been in an adulterous relationship.
·Her situation is different to those who enter into a temporary marriage. It is also different to Iranian couples who go out together despite the risk of being harassed. It is true that Iranian authorities turn a blind eye to casual relationships between young couples but what she is accused of is different and more serious.
·Relocation is not a safe option for her. She will be arrested at the airport on arrival in Iran.
·Follow up telephone calls have been made by the Iranian authorities in their efforts to pursue her.
·The threats and fear of harm have caused her to have mental health issues.
·She referred to an attachment that was not provided.
In her Statutory Declaration dated 1 May 2017, the applicant’s sister, [Ms E], stated that serious danger awaits the applicant if she returns to Iran. Her mother has been in communication with them but they have not conveyed sensitive information to the applicant. After discussions with the applicant’s Psychologist, they decided not to disclose the ongoing issues to the applicant as it would only exacerbate her fragile mental health and melancholic state of mind. Her mother told her that the authorities have been pressuring her and her father to disclose who the applicant is living with in Australia and when she is returning to Iran. Her mother remains concerned about the applicant’s mental health and her safety if she returns to Iran.
[Ms E] stated that her mother told her that there were several threatening letters and a Summons for the applicant to present herself to the authorities on her return to Iran. Her mother was told this by the security agent in charge of her file. This man visited her parents home in Tehran unannounced and asked for the applicant’s identity documents. Her mother told her that she did not have them. He told her mother she could bring the documents to [a] Gaol to bail her daughter out on her return to Iran. They have not told the applicant about this.
The Psychological Report dated 2 May 2017 from [Mr F] indicates that the applicant was referred to him by her General Practitioner and had been seeing her since 22 April 2016. She was assessed through semi structured individual clinical interviews to determine the presence of psychological disorders. He referred to the history she provided him of her relationship with [Mr D] and expressed his views on what the Iranian authorities are likely to do if she returns to Iran.
In his Psychological Report, [Mr F] did not make a diagnosis. He stated that her prognosis is poor as her melancholic state of mind had not improved and recommended that she needs long term treatment.
In his written submissions dated 4 May 2017, the applicant’s migration agent reiterated the applicant’s claims, referred to the evidence put before the Department and country information. He submitted that the applicant holds an objective and genuine fear of harm if she returns to Iran.
The delegate found that the applicant is not a person in respect of whom Australia has protection obligations and refused the application for a Protection visa on 19 May 2017.
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 19 May 2017, a Marriage Certificate dated [July] 2018, a Certificate of Water Baptism from [a Church] dated 21 April 2019, a Statutory Declaration from herself dated 24 March 2021 and her daughter’s Birth Certificate.
In her Statutory Declaration dated 24 March 2021, the applicant made the following new claims:
·She came to Australia on 23 June 2015 on a subclass 300 Prospective Marriage visa. She was supposed to get married to her fiancé, [Mr G]. Their relationship broke down a few weeks later.
·She started another relationship with her ex-partner [Mr D]. They moved in together in September 2015. Her visa was due to expire and she was expected to return to Iran. [Mr D] told her to stay in Australia with him and he would arrange for a visa for her. They registered their relationship with the Queensland Registry of Births, Deaths and Marriages [in] February 2016.
·[Mr D] sponsored her for a Partner visa and her application was lodged on 18 February 2016. He did everything including creating an email account and the follow up. He started to abuse her physically and mentally. When she threatened to end the relationship, he threatened to cancel her visa, send her back to Iran and get someone in Iran to harm her.
·In April 2016, [Mr D] physically abused her. She left Brisbane, where they were living, and travelled to Sydney, where her sister lived. He contacted her, apologised and suggested that they go on a trip together to sort things out. They travelled to Melbourne on the following day. On their second day in Melbourne, they had an argument when she discovered he had other relationships from the time she left Brisbane and returned to Sydney. She decided to end their relationship.
·[Mr D] threatened her and reported her to the Iranian authorities as detailed in her visa application. She blocked his telephone number and blocked him on social media. He withdrew his sponsorship of her application for a Partner visa. She subsequently found out that he was not eligible to sponsor her as he had sponsored his former partner less than 5 years previously. She was in a bad psychological situation and did not return to Iran because of [Mr D]’s threats.
·Her sister’s brother-in-law, [Mr H], came to Australia in July 2017. He converted to Christianity in Iran in 2016. He talked to her about Christianity and took her to Church with him. She attended the [Church] with him for the Christmas ceremony in December 2017 and had an amazing experience.
·She became interested in Christianity and [Mr H] gave her a Bible to read. She continued attending Church with him. Her husband, [Mr A], later joined them. She did some research into Christianity and realised that Jesus Christ was the true God. At the end of May 2018, the main Pastor asked the members of the congregation to raise their hands if they thought Jesus Christ could save them, she raised her hand, realised that she was touched by the Holy Spirit and her life changed completely.
·She and [Mr A] decided to get married and registered their marriage [in] July 2018. Their families came to Australia and they had a wedding celebration [in] March 2019. She was baptised [in] April 2019. She is pregnant and her baby is due at the end of [date].
·She attends [Church] at [Suburb] every Sunday. During the Covid pandemic she attended services online. She talks to anyone she knows in Iran and Australia about Christianity and has taken many people to Church. A few of them, including her mother, have converted to Christianity.
·Her life would be in danger if she returns to Iran because of her conversion to Christianity and her evangelical activities. She practices Christianity freely in Australia and most people in the Iranian community know that she is a Christian convert. There is a good chance that [Mr D] has found out about her conversion through their mutual friends and has informed the Iranian authorities.
·She faces a real chance of persecution because of her religious beliefs. She will be detained and tortured by the Iranian authorities. She will be executed on the basis of acting against the government and apostasy. She wants to practise her religion freely and without fear in Australia.
The Tribunal received written submissions dated 25 March 2021 from the applicant’s migration agent. In his submissions, he reiterated the applicant’s claims and referred to country information.

Following the hearing on 1 April 2021, the Tribunal received a number of further documents including a Statutory Declaration from the applicant dated 15 April 2021, a Statutory Declaration from her husband, [Mr A], dated 15 April 2021, a Statutory Declaration from her sister, [Ms E] dated 15 April 2021, a Statutory Declaration from her mother, [Ms I] dated 15 April 2021 and printouts from the applicant’s [Social media] page and printouts of written messages on Social Media in another language without an English translation.
Receiving country
The applicant claims to be a citizen of Iran and has provided a copy of her Iranian passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that she is a citizen of Iran. The Tribunal finds that Iran is the receiving country for the purpose of assessing her claims for protection under the refugee criterion and the complementary protection criterion.
Third country protection
The Tribunal finds that the applicant is outside her country of nationality. There is no evidence before the Tribunal to suggest that she has the right to enter and reside in any country other than her country of nationality.
Assessment of claims
The applicant gave evidence that her application for a Protection visa was prepared by her former migration agent on her instructions. She stated that she wrote out her Statement of Claims in Farsi and her former migration agent translated it into English. Her Statement of Claims is true and correct and she is satisfied that it is accurate and complete. When asked whether there have been any changes in her circumstances since she filed her visa application, she stated that she has recently got married and she is now a Christian.
During the hearing, the Tribunal discussed with the applicant her background, her family, her relationships in Australia, incidents in Iran, her path to conversion to Christianity, her beliefs and practices and why she fears returning to Iran.
Conversion to Christianity
In her Statutory Declaration dated 24 March 2021, the applicant made new claims in relation to her conversion to Christianity. She stated that her sister’s brother-in-law, [Mr H], came to Australia in July 2017. He converted to Christianity in Iran in 2016. He talked to her about Christianity and took her to Church with him. She attended the [Church] with him for the Christmas ceremony in December 2017 and had an amazing experience. She became interested in Christianity and [Mr H] gave her a Bible to read. She continued attending Church with him. Her husband, [Mr A], later joined them.
The applicant stated that she did some research into Christianity and realised that Jesus Christ was the true God. At the end of May 2018, the main Pastor asked the members of the congregation to raise their hands if they thought Jesus Christ could save them, she raised her hand, realised that she was touched by the Holy Spirit and her life changed completely. She attends [Church] at [Suburb] every Sunday. During the Covid pandemic she attended services online. She talks to anyone she knows in Iran and Australia about Christianity and has taken many people to Church. A few of them, including her mother, have converted to Christianity.
The applicant claimed that her life would be in danger if she returns to Iran because of her conversion to Christianity and her evangelical activities. She practices Christianity freely in Australia and most people in the Iranian community know that she is a Christian convert. There is a good chance that her former partner has found out about her conversion through their mutual friends and has informed the Iranian authorities.
During the hearing, the applicant gave evidence that she decided to become a Christian because Jesus Christ is the saviour and he shows us the path to salvation. This is her heart felt belief. When asked what she believes as a Christian, she responded that she believes that God, in the form of a human, came down to earth, was tortured, went through problems and lost his life. After his physical death, he resurrected after 3 days. This showed her that there is life after death and life does not end after physical death. The only path for people to be saved is through Jesus Christ. The only correct way to life is Christianity. The way is forgiving, living in the light and living as a true Christian. In choosing to be a Christian, her life has changed and she has changed into a different person. Christianity is not only a religion, it is a way of living.
The Tribunal asked the applicant about the process she went through to get baptised at the [Church]. She responded that the first step was to enrol as a person who has accepted Christianity and wants to be baptised. Before expressing her acceptance of Christianity, she felt it in her heart and accepted that she is a sinful individual. The next step was to repent for her sins. The next step was attending Bible study classes. The final step was getting baptised by immersion in water. It was like leaving behind her sins and being reborn as a new person. She attended Bible study classes from the beginning of 2018 and was baptised at Easter 2019. The Church arranged classes for 3 or 4 months. They then attended Bible study groups. Because of the Covid pandemic, all in-person sessions were stopped and converted to online sessions.
The applicant stated that she has her own copies of the Bible in Persian and English but finds it easier to understand the Persian (version of) the Bible. She also has the Bible downloaded on her mobile telephone. She has read the Bible. When asked about the difference between the Old Testament and the New Testament, she responded that the Old Testament is before Jesus Christ and is about prophets like Noah and Moses. The New Testament is about the life of Jesus Christ. It is the story of his birth, about his life, his miracles and teachings, his arrest and his crucifixion.
The Tribunal asked the applicant who wrote the New Testament. She responded that four of Jesus Christ’s disciples did. They were Mathew, Mark, Luke and John. There are others written by disciples of Jesus Christ. When asked about Mary Magdalene, she responded that she was one of the female followers of Jesus Christ. She was the person that Jesus Christ showed himself to and the first person he appeared to. Before becoming a Christian, she was a prostitute. She was supposed to be stoned to death in the centre of the town. Jesus Christ was present and said, “whoever is not a sinner is to throw the first stone”. When Jesus Christ said that, people started to leave. After everyone left, Jesus Christ told her that her sins were forgiven by God and she should go and sin no more. She then became one of his followers. When asked who betrayed Jesus Christ, she responded that one of his disciples named Judas sold out for 30 silver coins.
The Tribunal asked the applicant who she had spoken to in Iran about Christianity. She responded whoever she knows in Iran like her relatives, friends and former colleagues. When asked how she has contact with them, she responded by telephone and WhatsApp. She wants to spread the good news and the path to a good life. When asked whether she had any concerns for their safety because of her actions, she responded that, as a Christian, it is her duty to evangelise to others. The WhatsApp application they use for communication is alright security wise. Telephones could be bugged but the application they use is not.
The applicant stated that she has converted her husband and her mother to Christianity. She has also spread the good news to some of her Muslim friends who live in Australia. Her husband was a Muslim prior to his conversion to Christianity. He has been baptised. She will practise Christianity if she returns to Iran. Christianity has changed her life and this is the only way she knows to be saved. That is the way God has shown them. If she returns to Iran and stays alive, she will follow her duties as a believer.
The applicant provided the Tribunal with a copy of her Certificate of Water Baptism issued by the [Church] on 21 April 2019.
Following the hearing, the Tribunal received a Statutory Declaration dated 15 April 2021 from the applicant. In her Statutory Declaration, she stated that if she returns to Iran her life would be in danger because of her conversion to Christianity and her Christian evangelical activities. She practises Christianity freely in Australia and most people in the Iranian community in Australia who are in her social circles are aware that she is a Christian convert. She evangelises on [Social Media]. She believes that there is a real chance that her former partner would be aware of her Christian activities in Australia through mutual contacts in the Iranian community and he would have informed his contacts in Iran that she has converted to Christianity.
Following the hearing, the applicant provided the Tribunal with printouts from her [Social media] page in her own name. They contained posts from 7 February 2019 to 28 March 2021 with photographs taken during services at the [Church] including photographs of herself, her husband and her mother in attendance at services and pictures depicting Jesus Christ. The Tribunal was also provided with a printout of written messages on Social Media in another language without an English translation.
During the hearing, the applicant’s husband, [Mr A], gave evidence that he met the applicant at work in about late 2016. In early 2017, they became boyfriend and girlfriend. He started going to Church with her and gradually converted to Christianity. In 2019, he accepted Christianity and converted. He was a Muslim prior to his conversion to Christianity.
Following the hearing, the Tribunal received a Statutory Declaration dated 15 April 2021 from [Mr A]. In his Statutory Declaration, he stated that he and the applicant started their relationship in early 2017. They registered their de facto relationship [in] March 2018 and got married [in] July 2018. He wanted to apply for a Partner visa for the applicant from the time they commenced a de facto relationship. However, at that time she was on a Bridging visa pending the outcome of her application for a Protection visa. She was not eligible to apply for a Partner visa onshore and could only do so offshore.
[Mr A] stated that the applicant cannot return to Iran as her life is in danger there. She does not have a current passport. If she applies for a passport, the Iranian authorities will understand that she has applied for a Protection visa. They might refuse her application for an Iranian passport or put her name on the airport watchlist so she will be arrested on her return to Iran. They may already have her name on the watchlist because of the claims she made in her application for a Protection visa. They would be aware of her conversion to Christianity because of her Christian and anti-Islam activities in Australia given that she has been active on [Social Media]. She will be detained, persecuted and probably executed if she returns to Iran. He requested that the Tribunal consider the fact that she is pregnant with their child, the current Covid 19 restrictions and health risks and the serious consequences for their lives and the life of their unborn child.
During the hearing, the applicant’s brother-in-law, [Mr B], gave evidence that in mid-2017 his brother came to Australia. He was a Christian convert. The applicant was very fragile at the time and was on medication. When she started going to Church and after she met her husband she started improving and could live again. Prior to that, it was hell for her because of the trauma and her fear of going back to Iran. She converted to Christianity a few years ago. She is very happy with her husband. Her life has changed dramatically.
[Mr B] gave evidence that he and his wife are non- believers. If he was in her situation, he would be more worried. Her attachment to her religion makes her calm. Christianity has changed her life. He is sure that if she goes back to Iran she will be in trouble. He hopes that she can stay here.
Country information
The Tribunal has had regard to the DFAT Country Information Report on Iran[1] which states, in part, the following:
Over 99 per cent of Iranians are Muslim, of whom 90-95 per cent are estimated to be Shi’a and 5-10 per cent Sunni. Small religious minority communities – including Baha’is, Christians, Zoroastrians, Jews and Sabean-Mandaeans – make up the remainder. Of Iran’s religious minorities, only Christians, Zoroastrians and Jews (excluding converts) enjoy legal recognition and, in turn, the ability to worship openly. Adherents of non-recognised religions are considered Muslim and are prohibited from expressing their faiths publicly. Religious minority communities – recognised and non-recognised – have shrunk considerably since 1979, with many choosing to leave Iran after the Islamic Revolution……..
According to the most recent national census (2016), there are 130,000 registered Christians in Iran. Ethnic Armenians concentrated in Tehran and Isfahan are the largest group of recognised Christians. Other recognised Christian groups include Assyrians, Chaldeans and Sabean-Mandaeans, although the latter group does not self-identify as Christian. Those citizens able to prove they or their families were Christian prior to 1979 are also recognised. Conversions after 1979 are not recognised….. Because the law prohibits citizens from converting from Islam to another religion, the government only recognises these groups because their presence in Iran pre-dates Islam.
The Penal Code strictly prohibits proselytisation by religious minority groups — it is a capital crime for non-Muslims to convert Muslims. Against this background, the three recognised minority religions do not proselytise or accept converts. 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. DFAT understands that recognised churches regularly receive telephone enquiries from individuals falsely claiming to be interested in converting, as a way of testing their adherence to the prohibition on converts……..
Iranian Christians who are not members of recognised churches generally practise in underground ‘house churches’…… According to international observers, house churches exist across Iran, particularly in major cities. …DFAT understands that most house churches follow evangelical Protestant teachings and tend to be situated in more affluent and liberal parts of major cities (including north Tehran)….. DFAT understands that house church congregants regularly change houses to avoid detection. …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.
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.
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.
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.
[1] DFAT Country Information Report on Iran dated 14 April 2020.
Research undertaken by the Country of Origin Services Section of the Department of Home Affairs[2] indicates the following:
Christian converts cannot usually live openly as Christians and may be prosecuted by the state because of their religion; many of the restrictions placed on recognised Christians in Iran are designed to prevent conversions.45 As outlined above, Iranian law prohibits conversion from Islam.46 There are no reliable figures on how many converts live in Iran;47 however, reports estimate there may be between 300,000-350,000.48 Christian advocacy groups provide higher estimates ranging from 400,000 to 3 million converts.49 Most converts are Protestants (Pentecostals, Presbyterians and Anglicans); other conversions are rare.50 A high percentage of unrecognised Christians in Iran are converts from Islam or the children of converts.51 Converts with a Muslim background constitute the largest group of Christians in the country.52
Many churches that, before 1979, conducted services in Persian have been closed, and others have come under pressure.53 All Christians and churches must be registered with the authorities.54 Since 2012, the government has banned converts from attending services in registered churches.55 People who convert to Christianity are not recognised as Christians under the law and are not able to register as Christians, nor are they afforded the same rights as recognised Christians.56 As such, Christian converts (along with members of other unrecognised religious minorities) are considered by the authorities to be Muslim.57 Christian converts have faced adverse attention since 1979, though there was a short period in the 2000s where there was less pressure.58 ………
Because the official churches do not accept converts, Christian converts often meet in unofficial, illegal ‘house churches’. Recognised churches do not accept converts as members mainly due to prohibitions enforced by Iranian authorities. The authorities monitor registered congregation centres to ensure that they are complying with restrictions, which has resulted in the closure of several churches in recent years due to non-compliance. Therefore, converts practise in underground house churches.173 House churches are characterised as ‘illegal networks’ and ‘Zionist propaganda institutions’ by official reports and the media.174……..
The adverse attention given to Christian converts by Iranian authorities has been attributed to three factors. Firstly, convert churches conduct services in Persian which is perceived as threatening to the authorities; secondly, converts have been prone to undertaking missionary work directed at the Muslim population; and thirdly, convert churches have been affiliated with churches in Western countries.62 The Iranian authorities view Christian missionary work and the spread of Western, secular values within the country as an attempt by the West to subvert Iranian culture and undermine the Islamic rule of law.63 ………..
Treatment of Christian converts varies; those with roles in their churches are more likely to be prosecuted. Although ‘ordinary’ converts have been prosecuted, authorities are more likely to prosecute pastors or those with roles in their house churches, or those engaged in proselytising activity.207 …………
Arrests and prosecution of Christians, particularly Christian converts, continued in 2020 with prison sentences ranging from three months to 10 years.116 The judiciary has issued long sentences for house church activities.117
[2] Department of Home Affairs Country of Origin Services Section Issues Paper: Christians in Iran.

The United Stated Commission on International Religious Freedom reports that Iran escalated its persecution of Christians in 2020, particularly converts from Islam.[3]
Findings
[3] United Stated Commission on International Religious Freedom Annual Report 2021. (2021 Annual Report_0.pdf (uscirf.gov)
The Tribunal has considered the applicant’s claims in relation to her conversion to Christianity and all the relevant evidence. The Tribunal accepts that she was born on [Date] at [Town] in Iran. The Tribunal accepts that her father lives in Iran and her mother lives in Australia temporarily. The Tribunal accepts that her older sister is an Australian citizen and she lives in Australia with her family. The Tribunal accepts that she married her husband, who is an Australian citizen, [in] July 2018. The Tribunal accepts that their daughter was born on [Date].
The Tribunal accepts that the applicant was first introduced to Christianity in Australia by her sister’s brother-in-law, [Mr H], who came to Australia in July 2017. The Tribunal accepts that he had converted to Christianity in Iran in 2016, talked to her about Christianity and took her to Church with him. The Tribunal accepts that she attended the [Church] with him for the Christmas ceremony in December 2017 and had an amazing experience. The Tribunal accepts that she thereafter became interested in Christianity and that [Mr H] gave her a Bible to read. The Tribunal accepts that she continued attending Church with him and that her husband later joined them.
The Tribunal accepts that the applicant attended Bible Study classes organised by the Church for 3 or 4 months in early 2018 and thereafter joined a Bible Study group. The Tribunal accepts that she was baptised at Easter 2019. The Tribunal accepts that she attended the [Church] at [Suburb] every Sunday prior to the Covid pandemic and thereafter attended online services. The Tribunal accepts that she has been evangelising in Australia and with family, friends and former colleagues in Iran as part of her religious beliefs. The Tribunal accepts that she has taken people to Church including her mother. The Tribunal accepts that, prior to her conversion to Christianity, she held secular views but was considered to be a Muslim.
The Tribunal accepts that the applicant has posted photographs of herself and family members attending the [Church] and pictures depicting Jesus Christ on her [Social media] page.
In considering whether the applicant’s conversion to Christianity is genuine, the Tribunal has placed weight on the length of time she has been involved with the Church, her involvement of her husband in her Church activities and her husband’s conversion to Christianity. The Tribunal has also placed weight on the fact that she was able to demonstrate a good knowledge of the Bible, explain her beliefs, why they were important to her and the impact her conversion to Christianity has had on her spiritual life. She spoke with passion and the zealousness of a convert. The Tribunal found her evidence to be convincing. The Tribunal also found her husband and her brother-in-law to be persuasive witnesses.
Having considered all these factors, the Tribunal is satisfied that the applicant is a genuine convert to Christianity and that she will continue to practise Christianity if she returns to Iran now or in the reasonably foreseeable future. The Tribunal accepts that, as a Member of the [Church], proselytising is an innate part of her religious beliefs and practises.
The Tribunal accepts that the applicant has a subjective fear of being persecuted by the Iranian authorities for reason of her conversion to Christianity if she returns to Iran. In considering whether she has a well-founded fear of persecution, the Tribunal has had regard to relevant country information. The country information referred to above indicates that Iranian law prohibits citizens from converting from Islam to another religion and that the Penal Code strictly prohibits proselytisation by religious minority groups.
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”.
In considering whether the applicant can take reasonable steps to modify her behaviour so as to avoid a real chance of persecution in Iran, the Tribunal notes that this would require her to either alter her religious beliefs, including by renouncing her religious conversion, or conceal her true religious beliefs, or cease to be involved in the practice of her faith including proselytising. Such a modification of behaviour would conflict with a characteristic that is fundamental to her identity or conscience and is not considered to be a reasonable step under s.5J(3)(a) of the Act.
In view of the above, the Tribunal finds that the applicant fears being persecuted for reason of her religion and that there is a real chance that she would be persecuted, including being subjected to significant physical harassment and ill treatment, for reason of her religion if she returns to Iran now or in the reasonably foreseeable future.
The Tribunal finds that the persecution will be directed at the applicant for the essential and significant reason of her religion, that the persecution involves serious harm to her and that it involves systematic and discriminatory conduct in that it is deliberate or intentional and involves her selective harassment or ill treatment for reason of her religion. Given that the Iranian government is the agent of persecution, the Tribunal finds that the real chance of persecution relates to all areas of Iran and effective protection measures are not available to the applicant in Iran. The Tribunal finds that she cannot take reasonable steps to modify her behaviour so as to avoid a real chance of persecution in Iran as a modification would conflict with a characteristic that is fundamental to her identity or conscience. Accordingly, the Tribunal finds that the applicant has a well-founded fear of persecution for reason of her religion.
The Tribunal finds that the applicant is outside the country of her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail herself of the protection of that country. Therefore, the Tribunal finds that she is a refugee as defined in s.5H(1) of the Act.
Given these findings, the Tribunal does not consider it necessary to assess the other claims made by the applicant under the refugee criterion or the complementary protection criterion.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
L. Symons
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 4180

23 September 2021

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Immigration

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