1712156 (Refugee)

[2022] AATA 1375

1712156 (Refugee) [2022] AATA 1375 (6 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1712156

COUNTRY OF REFERENCE:                   Iran

MEMBER:Simone Burford

DATE:6 April 2022

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 06 April 2022 at 2:51pm

CATCHWORDS

REFUGEE – Protection Visa – Iran – religion –former Muslim who has converted to Christianity – applicant’s commitment to Christianity is genuine – mental health – fear of persecution from the authorities is well-founded – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 91, 499

Migration Regulations 1994, Schedule 2

CASES

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

MIMA v Respondents S152/2003 (2004) 222 CLR 1

SZFDV v MIAC (2007) 233 CLR 51

SZATV v MIAC (2007) 233 CLR 18

SZFDV v MIAC (2007) 233 CLR 51

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 (Cth) (the Act).

   Background

2. The applicant is a [age]-year-old Iranian citizen who was born in Esfahan, Republic of Iran (Iran).  He is of Persian ethnicity and claims to have converted to Christianity since coming to Australia in 2012.

3. The applicant’s parents live in Esfahan, Iran. His mother was a [occupation] and his father was [an occupation]. Both are now retired. His sister is studying for a [degree] in Iran and living in the city of Shiraz. She is married but has no children.

4. Prior to coming to Australia he studied at [a] University in [Country 1] from April 2007 to December 2010. After completing his studies in [Country 1] the applicant returned to Iran in July 2011 where he started working as a [Occupation 1] for [Company 1].

5. The applicant arrived in Australia on a student visa on [date] February 2012 to [study]. He completed his studies in October 2014 was awarded the degree in January 2015. During the period of his study he was granted a series of student visas the last of which expired on 1 December 2014.

6. The applicant applied for the protection visa on 1 December 2014. The visa was refused on 22 June 2017. The applicant provided a copy of the delegate’s decision to the Tribunal.

   Issues

7. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The issue in this case is whether the applicant meets one or more of the alternative criteria in s 36(2)(a) or (aa) of the Act; that is, whether they are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are members of the same family unit of such a person. The relevant law is set out below.

8. The issue in the review is whether the applicant has a well-founded fear of persecution in Iran as a former Muslim who has converted to Christianity or for any other reason, or whether complementary protection provisions otherwise apply.

9. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

   Protection claims

   Protection visa application

10. The applicant detailed his claims for protection in his application form and in a ‘Personal statement’ accompanying the application. Essentially the applicant claimed to fear persecution in Iran on the grounds of his claimed conversion to Christianity. The applicant also claimed in his written protection visa application that he experienced persecution (captivity and torture) in Iran because he did not practise Islam.

11. As noted below, before the Tribunal the applicant maintained his claims with respect to his conversion to Christianity claiming that he is a member of [Church 1] in Australia. However, with respect to his claims to have been held captive and tortured in Iran due to being an apostate or non-practising Muslim and having been practising as a Christian in Iran and [Country 1] prior to coming to Australia, he stated in a Statutory Declaration signed on 15 December 2020 that:

    There were some details in my claims which exaggerated out of fear that my Protection visa application would be refused and I would be sent back to Iran. The nervousness I experienced when I was completing the application form was amplified at the interview, as the person interviewing me looked and sounded like they did not think I had anything to be afraid of, and that made me very anxious that my application was going to be refused and I made a big mistake in trying to make things sound worse than they were before I left Iran. I realise this was the wrong thing to do and I am sincerely sorry for what I have done.

12. He stated that he was not slapped, tortured or detained by police as previously claimed but had suffered bullying in the workplace due to not participating in prayers at work. He said that he exaggerated his involvement with Christianity in Iran and then in [Country 1] prior to coming to Australia.

    Evidence to the Department

13. The applicant attended an interview with the Department on 7 October 2015. Prior to the interview the applicant submitted the following documents to the Department:

    ·Written submissions from his (then) migration agents.

    ·Identity documents including an Iranian passport issued [in] 2009 and an Iranian birth certificate, military exemption certificate, Iranian police clearance and [Country 1] Letter of Good Conduct.

    ·Certificate of Work Reference Letter – [Company 1] dated 13 October 2015 (Original and Translation).

    ·A letter from Pastor [A], Senior Pastor, [Church 2] dated 20 December 2016.

    ·Documents relating to the applicant’s travel to Melbourne in December 2016.

    ·Correspondence between the Department and Pastor [A] and [another Pastor] in November 2016 regarding the applicant’s attendance at [Church 2].

    ·Applicant’s curriculum vitae.

    ·

    Baptism Certificate in the applicant’s name for [Church 2] dated

    
    

    [September] 2014.

    ·Copy of a Sunday service brochure for [Church 2].

    ·Country information:

    o‘The Cost of Faith: Persecution of Christian Protestants and Converts in Iran’, International Campaign for Human Rights in Iran, 2013;

    o‘Codifying Repression: An Assessment of Iran’s New Penal Code’, Human Rights Watch, August 2012;

    o‘Four Christian Converts Arrested in Karaj on New Year’s Eve’, International Campaign for Human Rights in Iran, 10 January 2014.

    The delegate’s decision

14. On 22 June 2017, a delegate of the Minister refused the protection visa application. The applicant provided a copy of the delegate’s decision to the Tribunal.

15. The delegate accepted the applicant was an Iranian citizen. However, due to inconsistencies in the applicant’s account of claimed events in Iran, the delegate did not find the applicant to be a credible witness and did not accept that the applicant’s claims to have been tortured and held captivity in Iran were credible and the delegate did not accept them. The delegate found there was nothing in the applicant’s account to indicate that he was persecuted in Iran for a Convention-related reason. He regularly travelled between Iran and [Country 1] where he studied, and he was allowed to depart Iran for his studies in Australia. In his statements he also indicated that he has never been charged by the police and he had obtained an Iranian police clearance certificate.

16. The delegate did not accept the applicant had been introduced to Christianity by a school friend in Iran. With respect to his claims to have engaged with Christians in [Country 1] the delegate found the applicant had provided general statements which led the delegate not to accept the applicant’s claimed prior engagement with Christianity, and to conclude that the applicant’s knowledge of Christianity was limited and did not indicate a genuine interest in Christianity.

17. The delegate also found the applicant’s explanation for his conversion to Christianity to be unconvincing noting the delay in the applicant engaging with Christianity after arriving in Australia and the timing of his engagement several months prior to the expiration of his visa. These concerns led the delegate to find that the applicant’s conversion to Christianity had been conducted for the sole purpose of strengthening his claims for protection.

18. The delegate also noted that information before the Department cast doubt on the applicant’s adherence to Christianity including his apparent disengagement from the church in which he was baptised and his re-engagement with a different church after his history of disengagement was raised with him in a natural justice letter. The delegate found his adherence to Christianity was not genuine.

19. After reviewing all the evidence including country information the delegate was not satisfied that the applicant will attract any adverse interest from Iranian authorities based on his religion should he return to Iran and that there was no real chance he would be persecuted. The delegate found that the applicant’s fear of persecution was not well-founded.

20. Based on these concerns the delegate found the applicant’s claims were not credible. Accordingly, the delegate was not satisfied the applicant was a person with respect to whom Australia had obligations under the Refugees Convention. Therefore, the applicant did not satisfy the criterion under s 36(2)(a) of the Act.

21. The delegate was also not satisfied that there were substantial grounds for believing that the applicant faced a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Iran. Accordingly the applicant was not a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act.

    Proceedings before the Tribunal

22. The applicant appeared at an initial hearing before the Tribunal on 18 December 2020.

23. The applicant appeared again on 15 March 2021 and 20 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr [B], a friend of the applicant and member of the congregation at [Church 1], Pastor [A], from [Church 2], and [Pastor C], from [Church 1], regarding the applicant’s baptism (with [Church 2]) and engagement with their respective church congregations.

24. At the initial hearing the Tribunal outlined for the applicant the issues it was considering on the application, confirmed that he did not have any changes to make to his claims for protection and discussed his background and changes to his personal circumstances since the application was filed. The applicant’s claims for protection and the evidence on which he was seeking to rely were discussed at the subsequent hearings.

25. The applicant was provided with additional time following the first and second hearings to provide further evidence and submissions. Additional material was received following the first hearing and was discussed at the second hearing. Additional material was also received following the second hearing.

26. The Tribunal hearings were conducted with the assistance of an interpreter in the Farsi (Persian) and English languages. However, the Tribunal notes the applicant had a good command of English and elected to respond to questions from the Tribunal in English on most occasions. The Tribunal encouraged the applicant to seek the assistance of the interpreter if he did not understand the Tribunal’s questions or felt his responses would be better communicated in Farsi. The Tribunal was satisfied the applicant was able to fully participate in the hearing in either English or Farsi.

27. The applicant was represented in relation to the review. The representative attended the Tribunal hearings. The Tribunal notes the applicant was represented by a different registered migration agent with respect to the application for the protection visa and proceedings before the Department. Before the Tribunal, the applicant sought to distance himself from submissions made by or with the assistance of his previous migration agent.

    RELEVANT LAW

28. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Regulations. An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, 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.

    Refugee criterion

29. 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).

30. 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.

31. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

32. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

33. Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

34. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

35. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.

36. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

37. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

38. Section 91R(2) provides that the following are instances of serious harm: (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.

39. It is generally accepted that a person can acquire refugee status sur place where he or she has a well-founded fear of persecution as a consequence of events that have happened since he or she left his or her country. However, this is subject to s 91R(3) of the Act which provides that any conduct engaged in by the applicant in Australia must be disregarded in determining whether he or she has a well-founded fear of being persecuted for one or more of the Convention reasons unless the applicant satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee within the meaning of the Convention.

40. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

41. 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).

42. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

43. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

    Mandatory considerations

1. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Applicant’s identity and country of reference

2. The applicant travelled to Australia on an Iranian passport and claims to be an Iranian national. Copies of the applicant’s Iranian passport and other identity documents were provided to the Department and the Tribunal. The applicant confirmed at the hearing that he was a citizen of Iran. The delegate accepted the applicant’s identity. There is nothing before the Tribunal to suggest that the applicant is not the person identified in the relevant application for protection.

3. On this basis, and given the delegate had no concerns about his claimed nationality, the Tribunal accepts the applicant is a national of Iran and has assessed his claims for protection accordingly. The Tribunal finds that the applicant is a citizen of Iran, which is also his receiving country for the purposes of the refugee and complementary protection assessments.

4. The Tribunal notes that the applicant spent significant time in [Country 1] prior to travelling to Australia. However, there is no evidence before the Tribunal that the applicant has a right to enter or reside in [Country 1] or any country other than Iran.

   The applicant’s migration history

5. The Tribunal discussed the applicant’s migration history, as outlined in the delegate’s decision, with him at the second hearing. The applicant’s migration history is as follows:

   ·     In 2006 the applicant went to [Country 1] to complete his [degree] in [Country 1]. At the interview with the Department the applicant stated that his sister also studied in [Country 1] at the time and their father also resided in [Country 1] with them as their guardian.

   ·     During his studies the applicant repeatedly travelled back to Iran.

   ·     In July 2011 after completing his studies in [Country 1] the applicant returned to Iran where he started working as a [Occupation 1] for [Company 1].

   ·     On [date] February 2012 the applicant arrived in Australia as a holder of a student (Subclass TU-573) visa.

   ·     On [date] November 2012 he departed for [Country 1] where he resided for three months arriving back in Australia on [date] February 2013.

   ·     On 1 August 2013 the applicant was granted a bridging visa A (Subclass WA-010) that was valid until 10 February 2014.

   ·     On 10 February 2014 his bridging visa A expired because he was granted another student visa that was valid until 27 August 2014.

   ·     On 28 August 2014 the applicant was granted a bridging visa A (Subclass WA-010) that was associated with his application for a student visa and ceased on 17 October 2014 when the substantive student visa (Subclass TU-573) was granted with validity to 1 December 2014.

   ·     On 1 December 2014 the applicant lodged his protection visa application and he was granted an associated bridging visa A. The visa was still in effect.

6. The applicant confirmed that the migration history was correct with the exception that the delegate had listed a trip out of Australia as a return trip to Iran where it was actually a visit to see his father and sister in [Country 1].

   Evidence and submissions

7. The applicant submitted the following additional documents to the Tribunal:

   ·Written submissions from the applicant’s migration agents dated 16 December 2020.

   ·Statutory Declaration for the applicant dated 15 December 2020 including the following annexures:

   ·Corrections and updates to responses contained in the original application for protection;

   ·Photographs of the applicant with annotations indicating the photographs are of the applicant with [Church 1] members in April 2017, the applicant working at the [Church 1] food program in March 2018, the applicant with other volunteers in the church food distribution program in April 2018;

   ·Letter from Dr [D] dated 16 August 2018 noting the applicant had been a patient since [date] February 2015 and suffers from ‘chronic depression and anxiety/panic which has impaired his social and occupational function’. The letter notes he was taking antidepressants and sedatives and had undertaken psychotherapy for these conditions;

   ·Cover and referral letter from Dr [D] dated 14 February 2019 regarding the applicant’s referral to [a] Hospital Outpatient Clinic for psychiatric assessment;

   ·Photo of a medication box in the name of the applicant for [medication] on script dated 1 December 2020;

   ·Screen shots from the applicant’s [social media] page featuring posts from [a Christian website] from December 2019 and January of an unidentified year;

   ·Copy of the Department file obtained on freedom of information;

   ·Statutory Declaration of [Mr B], former minister with [a Christian organisation], dated 15 December 2020. Mr [B] is a member of [Church 1] and attested to meeting the applicant and his friend [Mr E] there. Mr [B] attests to the applicant’s genuine Christian faith.

   ·Letter from [Pastor C], [Church 1], dated 14 December 2020, noting his association with the applicant and his opinion that the applicant holds a Christian worldview and does his best to live according to Christian principles;

   ·Decision of the Upper Tribunal (Immigration and Asylum Chamber) UK PS (Christianity – risk) Iran CG [2020] UKUT 0046 (IAC) (PS (Iran));

   ·DFAT Country Information Report on Iran, April 2020;

   ·European Court of Human Rights, Case of A v Switzerland (Application No 60342/16)

   ·Letter from Pastor [A] dated 5 March 2021;

   ·Letter from [Pastor C] dated 6 March 2021;

   ·Corrected reference from Mr [B] dated 15 December 2020.

8. At the hearings the Tribunal heard evidence from the applicant, Pastor [A], Pastor at [Church 2], [Pastor C], Pastor at [Church 1] and Mr [B], a member of the [Church 1] congregation. The Tribunal found Pastor [A], [Pastor C] and Mr [B] to be credible witnesses and accepts their evidence in support of the application. Some elements of their testimony are referred to further below.

9. The Tribunal had significant concerns about some aspects of the applicant’s evidence, particularly with respect to earlier detailed claims he made to have suffered serious harm in Iran which he resiled from before the Tribunal and acknowledged to have been ‘exaggerated’. While the Tribunal acknowledges the applicant’s preparedness to correct false or exaggerated claims made earlier in the process, there was no satisfactory reason given for those false claims, aside from the desire to strengthen the claims for protection. This causes the Tribunal significant concerns regarding the overall credibility of the applicant’s claims and conduct with respect to the application for protection, particularly given evidence regarding lapses in the applicant’s engagement with the Christian faith in Australia. However, the other witnesses testified to their belief that the applicant’s conversion was genuine and that while his path to Christianity had been imperfect, they believed the applicant was genuinely a Christian and committed to being a member of the Christian community. For the reasons given below, the Tribunal accepted this evidence as ultimately addressing concerns regarding the credibility and genuineness of the applicant’s conversion.

10. At the hearing the Tribunal discussed with the applicant his path to conversion and issues raised in the delegate’s decision.

11. The Tribunal asked about the applicant’s religious practice in Iran. He said he was raised in a Muslim family. He said his father did not go to the mosque or celebrate religion but his mother was a strict Muslim. He said he did not practise at school or with family. His sister was also not practising. He said they did not have much contact with his mother’s family because they did not practise but his mother had contact with her sister.

12. He said he was first introduced to Christianity at school through a [friend] who introduced him to [a] Christian. As noted earlier, he stated he was not practising in Iran as previously claimed but had heard about Christianity through his friend. In [Country 1] he met another friend who was a member of [a] church. He approached her in class and asked her about a cross she was wearing and she told him about her faith. He said he met her in second year, around 2009. She invited him to attend church with her in late 2009 before Christmas. He attended 3 times with her, once in 2009 and twice in 2010. He was unable to say when exactly these visits were or what the sermons were about. After they graduated, they went their separate ways.

13. In 2013 he met a friend, [Mr E], in Australia who introduced him to [a church]. Around mid-June 2014 he started attending [Church 2] as he had a friend whose son attended there and it was near his home. He said he sat down the back for a few months before approaching Pastor [A] to be baptised. He said Pastor [A] told him there was a process and he has to be genuinely Christian. He was baptised in September 2014. The congregation heard his testimony and [Mr E] was there.

14. He said he attended regularly initially on Sundays and attending a youth group, until mid-2016 when his attendance became irregular. He said he was working and changing houses and developed depression. He decided to move to Melbourne in September 2016 and disengaged from the church. He only remained in Melbourne for a few months, returning to Perth in December 2016.

15. The Tribunal asked why he had not returned to [Church 2] and he said that he felt bad because he had not said goodbye when he left. He said a friend asked him to attend [Church 3] when he came back to Perth and it was appealing to him because the congregation was younger, and it was a vibrant practice. He said he attended regularly and did food distribution ministry 2 days a week in 2017. In 2019 he attended Sunday services but his attendance became irregular as he was struggling the last few years with mental health issues. He said he told [Pastor C] about his mental health struggles in 2017.

16. He was seeing a GP for mental health issues and had previously been treated by a psychologist. He offered evidence from [a health service] in support of his claims regarding his mental health issues in Australia. That evidence indicated that the applicant has been treated for anxiety, panic disorders and depression over a number of years from April 2016.

17. The applicant said that in 2020 his attendance was bad because of COVID. He said he had issues with his work schedule clashing with services and then the church was closed and services moved online. He thought they were closed for 3 months and then offering services online and then services for smaller numbers. He recommenced attending church in December 2020. He told the Tribunal it had been a year since he had been to a service when he returned.

18. The Tribunal asked the applicant what it was about his Muslim faith that made him turn to Christianity and he said he had been interested in worship through music and song, worshipping God through song. He said the point of his converting was to learn to forgive others and think deeply within himself, how love and forgiving faith can enable you to forgive another person.

19. The Tribunal asked what he understand his obligations to be as a Christian and he said that his main obligation was to himself to be Christian toward others, to forgive them. He was obliged to practise in Sunday service, take holy communion, spread the word of Jesus Christ by saying good words and doing good deeds and manifestly living in a way that is acceptable to Christianity. He said that comparing himself to before his conversion he was a calmer person. He told the Tribunal the message of Christ was one of salvation and eternal life. ‘Christ died for us and we have eternal life in Heaven.’ He spoke about the significance of communion and the ceremonies of the church and missionary work of his current church.

20. He said his parents became aware of his conversion in 2018. He didn’t tell them when he converted but his mother became ill and was begging him to visit and he told her why he couldn’t come. He said up to that point they thought he was working in Australia. He said they were upset at that time but a few months later he reached out and they asked questions, but they felt he would bring shame to them and their family. He said they said they would not have anything more to do with him. He had last spoken to them in March 2020. He spoke to his sister in July 2020. His sister had already been aware of his conversion and was busy with her own life. He said she found out in 2015 when she was in Australia and working for his previous representative, but she didn’t tell him then. She told him she knew after the application was rejected and she said not to tell his parents.

21. He said he could not see how he could practise in Iran but would have to seek an underground church. He later said he would be forced to marry a Muslim woman and he didn’t want that. He said the authorities would become aware through relatives or those who knew him.

22. The Tribunal asked whether he was engaged with Christianity when he wasn’t attending [Church 1] and he said that he was ‘engaging with [a named person]. He didn’t know [his] last name, but they would meet in a coffee shop and do Bible study. He said he met [him] through the church and they met 6–8 times, at least once a month. He also went to Christmas lunch with ‘[a named person]’ who was a member of the church.

23. Pastor [A] testified that he came to know the applicant after he introduced himself following a service. He said that he asked about baptism and after several baptism classes he was satisfied he understood what he was doing, and the applicant was baptised. He said he was not aware whether the applicant had prior engagement with Christianity but that he knew he had a friend who had converted. He said the applicant was a member of the congregation for more than 6 months before he moved on. He said he attended service, an English Bible study lesson and [did some specified work]. He described the applicant’s faith as ‘growing’. He said he thought the applicant had come to Christianity through observing changes in his friend who had converted. The Tribunal asked when the Pastor had last had any engagement with the applicant and he said it was in 2014 or sometime in 2015, after he had been to Melbourne. He said he saw the applicant once or twice and he had moved and was attending another church with his friend. The Tribunal asked if it was common for people to move between churches and the Pastor said that it often depended on where they were living and working, travel and personal differences. His evidence before the Tribunal was consistent with his written statement.

24. [Pastor C] testified that he had been the pastor at [Church 1] for [number of] years. He said that he met the applicant some years ago when he joined the church. He thought he had first visited with [Mr E]. He said the congregation was around [number] people, but he knew those who attended regularly. He said the expectation at the church was that members attended services regularly and conducted themselves in a Christian way. He said the applicant was polite and pleasant. He said that there were periods when the applicant had not attended church but overall, he has stayed with the church. He said he had discussed the applicant’s faith with him and that he had also shared his fears of returning to Iran. He said the applicant’s family were aware of his conversion, but their response was ‘not great’, and he was only in contact with his sister. He noted that to be fair to them they were worried about what would happen to them because of the applicant’s actions. [Pastor C] confirmed the applicant had told him his first engagement with Christianity had been in [Country 1] and that he had been a member of the Baptist Church in Perth before joining [Church 1]. He said he believed the applicant’s faith was genuine because he was not perfect, and he struggled with his faith. The Pastor indicated that he felt that the applicant’s flaws indicated his beliefs were genuine. He found his behaviour over time to be consistent with this and did not believe he would have been able to sustain a false belief in the church over such a long period without that being evident. His evidence before the Tribunal was consistent with his written statement.

25. Mr [B] testified that he met the applicant in 2016 after church at [Church 1]. He said he had been a member at [Church 1] for more than 20 years. He said that he had worked overseas with people who had converted and was aware of the issues they faced so when he saw the applicant at church, he reached out to him. He hosted Bible study which the applicant attended from late December 2016 until July 2017. At that time, he went overseas for work, returning in March 2020. He next saw the applicant in December 2020. Mr [B] testified that the applicant had told him that his father was secular, and his mother was religious. He explained that the applicant had told him he had not been a strict follower of Islam and led a secularised life prior to coming to Australia. He felt he couldn’t have much of a life in Iran. He said his family were aware of his conversion, but the reception had not been great. He said he had been in contact with his sister but that this had also ‘dried up’ more recently. Mr [B] testified that he believed the applicant’s faith in God was genuine and that he would have an ‘untenable future’ if he went back to Iran. He said he was a believer who wanted to live a quiet Christian life. His evidence before the Tribunal was consistent with his written statement.

    Country information

26. The Tribunal also discussed with the applicant country information regarding Christian converts in Iran, including information contained in the most recent country information report issued by DFAT in April 2020 (the DFAT Country Information Report).[1]

    [1] DFAT Country Information Report – Iran, 14 April 2020

27. The DFAT Country Information Report indicates that the official religion of Iran is Shi’a Islam and that over 99 per cent of Iranians are Muslim. Article 4 of the Iranian Constitution requires ‘all of the country’s laws and regulations be based on (Shi’a) Islamic criteria’. Government policy and legislation heavily favour the majority Shi’a population in practice, leading to pervasive structural discrimination against non-Shi’a.[2]

    [2] DFAT Country Information Report – Iran, 14 April 2020 at 3.27–3.28.

28. DFAT reports that there are non-Muslim recognised religions in Iran, including certain Christian religions however proselytisation by religious minority groups is strictly prohibited under the Penal Code: it is a capital crime for non-Muslims to convert Muslims. As well, none of the 3 recognised minority religions proselytise or accept converts as members, further:[3]

    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.

    [3] DFAT Country Information Report – Iran, 14 April 2020 at 3.49.

29. The established Christian communities, including the Armenian and Assyrian communities, have a long history in Iran and are generally tolerated and permitted to practise their faith by the regime.[4] Conversely, conversion from Islam to Christianity is prohibited by the authorities with converts facing the risk of arrest, detention and prosecution. As such, the recognised Christian groups do not accept conversions or proselytise.[5]

    [4] ‘Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise’, Land info - Norwegian Country of Origin Information Centre, 27 November 2017, p.6.

    [5] ‘Country Policy and Information Note - Iran: Christians and Christian converts’, UK Home Office, 27 February 2020, p.7; ‘Christian Converts in Iran’, Finnish Immigration Service, 21 August 2015, p.9.

1. As a result, Iranian Christians who are not members of the recognised ethnic minority churches generally practise in underground ‘house churches’.[6]

   [6] Ibid at 3.50.

2. In terms of the treatment of Christian house church participants in Iran, DFAT states that:[7]

   Authorities interpret the growth in house churches as a threat to national security and periodically carry out raids against them. Raids focus particularly on house churches that actively proselytise or seek out new members. DFAT is unable to verify if the frequency of raids of house churches is increasing or whether a warrant is required to execute a raid. Local sources were unaware of any raids in the first half of 2019, although raids may not necessarily be publicised. According to the UK Home Office, the authorities use informants posing as converts to infiltrate house churches. Where the authorities receive a report of a house church, they may initiate a monitoring process to survey and collect information about its members. Local sources told DFAT that the authorities do not actively look for house churches. Rather, raids – where they occur – are usually the result of tip-offs by Muslim neighbours.

   Members of house churches have been convicted of offences and given significant prison sentences.[8]

   [7] DFAT Country Information Report – Iran, 14 April 2020 at 3.52.

   [8] DFAT Country Information Report – Iran, 14 April 2020 at 3.53–3.54.

3. However, DFAT assesses that:[9]

   small, self-contained house church congregations that maintain a low profile and do not seek to recruit new members are unlikely to attract adverse attention from authorities beyond monitoring and, possibly, low-level harassment. Members of larger congregations that engage in proselytisation activities and have connections to broader house church networks are more likely to face official repercussions, which may include arrest and prosecution. Of particular interest to the authorities are the leaders of house church congregations, who, according to local sources, face a higher risk of arrest and prosecution than ordinary congregants. According to these sources, while there have been instances of ordinary congregants being prosecuted, this is not common – most are released.

   Despite occasional arrests and prosecutions, the authorities do not actively search for Christian converts and, as far as DFAT is aware, do not employ people exclusively for this purpose. DFAT assesses that a Christian convert would not face harm if they maintain a low profile, do not openly proselytise and are not of interest to the authorities for other reasons (e.g. political activism). Official sources told DFAT that converts who keep their beliefs private are not of interest to the authorities. Those who openly propagate Christianity and seek to convert others, in contrast, would draw the attention of the authorities, and face a high risk of official discrimination, including harassment, arrest and prosecution, and some societal discrimination. Local sources were not aware of Christian converts being executed for apostasy in recent times. DFAT assesses the risk of execution for conversion/apostasy to be low.

   [9] DFAT Country Information Report – Iran, 14 April 2020 at 3.55–3.56.

4. With respect to Iranians who convert while overseas:[10]

   International observers report that Iranians who convert to Christianity abroad are unlikely to face adverse official attention upon their return, provided they have not previously come to the attention of the authorities for political activities, maintain a low profile and do not engage in proselytisation activities. This includes individuals who publicise their conversion online while abroad. According to local sources, in 2017 an Iranian mother and her child who were baptised in Turkey were briefly detained on their return to Iran (they were carrying baptism certificates), but then released. DFAT understands such arrests are not common (see Conditions for Returnees).

   DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed. Christians found to be proselytising face a high risk of arrest, prosecution and imprisonment. DFAT assesses that Christian converts face a high risk of societal discrimination in the event their conversion becomes widely known, particularly if they are from more religiously-minded Muslim family backgrounds. This may involve ostracism from one’s family and discrimination in employment.

   [10] DFAT Country Information Report – Iran, 14 April 2020 at 3.57–3.58.

5. According to one source, Iran has agents abroad to monitor Iranian citizens. However, rather than monitoring people all the time the authorities seek to create a fear that people are being perpetually monitored.[11]

   [11] ‘Iran: House churches and converts’, Danish Immigration Service and the Danish Refugee Council, February 2018, p.26.

6. The DFAT report notes that religiously-based charges are possible in Iran. The report states that:[12]

   Under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. Separately, a person of any religion may be charged with the crime of ‘swearing at the Prophet’ (blasphemy) if they make utterances that are deemed derogatory toward the Prophet Mohammed, other Shi’a holy figures or divine prophets. The Penal Code does not specifically criminalise apostasy, but provisions in the Penal Code and the constitution stipulate that sharia applies to situations in which the law is silent, and judges are compelled to deliver sharia-based judgements in such cases. Although the Quran does not explicitly say that apostasy should be penalised, most Islamic judges in Iran agree that apostasy should be a capital crime. This ruling is based both on oral traditions attributed to the Prophet Mohammed and to Shi’a Imams, whom Shi’a consider the Prophet’s rightful successors. Chapter 5 of the Penal Code specifically criminalises swearing at the Prophet as a capital offence, although a clause states that the sentence can be reduced to 74 lashings of the whip if the accused states the insults were the result of a mistake or were made in anger…

   Politically-motivated apostasy charges were frequent in the years following the Iranian revolution, often leading to death sentences. However, in the vast majority of cases, defendants charged with apostasy also faced other charges related to national security. Many of these cases were quickly tried, ending in execution, so apostasy was not fully discussed in the prosecution of these defendants.

   While apostasy and blasphemy cases are no longer an everyday occurrence in Iran, authorities continue to use religiously-based charges (such as ‘insulting Islam’) against a diverse group of individuals. This includes Shi’a members of the reform movement, Muslim-born converts to Christianity, Baha’is, Muslims who challenge the prevailing interpretation of Islam (particularly Sufis) and others who espouse unconventional religious beliefs (including members of recognised religious groups). Some religiously-based cases have clear political overtones, while other cases seem to be primarily of a religious nature, particularly when connected to proselytisation.

   Today, death sentences in apostasy and blasphemy cases are rare. In March 2017, the Supreme Court upheld the decision of a criminal court in Arak (Markazi Province) to sentence a 21 year-old man to death for apostasy. Authorities arrested the man after he made social media posts considered critical of Islam and the Quran while on military service. According to publicly available information, the death sentence had not been implemented at the time of publication. The court also convicted two co-defendants of posting anti-Islamic material on social media, sentencing them to prison.

   DFAT assesses that those accused of religiously-based charges are also likely to face charges related to national security. They are unlikely to have adequate legal defence, and are likely to be convicted.

   [12] DFAT Country Information Report – Iran, 14 April 2020 at 3.73–3.77.

7. However, country information suggests that charges and convictions solely on the basis of apostasy involving Christian converts have been very rare.[13]

   [13] ‘Country Policy and Information Note - Iran: Christians and Christian converts’, UK Home Office,

8. The UK Home Office in a May 2019 report about Christians and Christian converts in Iran states that simply converting to Christianity is not considered enough to put a person at a real risk of persecution but that their actions and activities and the degree to which their conversion is visible will determine whether or not they would be at a real risk.[14] The report goes on to state that the Iranian authorities are interested in those engaged in evangelical or proselytising activities and that it is not usually a problem for those who practise their faith discreetly, including for those who return to Iran and do not actively seek to influence others to convert to Christianity, who consider their faith a personal matter, and who are unlikely to seek to express in public their faith. Such people are likely to be able to continue practising Christianity discreetly.[15] The UK Home Office also reported that members of evangelical/house churches are ‘subject to harassment, arrest, close surveillance and imprisonment by the Iranian authorities’.[16]

   [14] UK Home Office, Country Policy and Information Note, Iran: Christians and Christian converts, May 2019 at 2.4.13 < Ibid at 2.4.14.

   [16] UK Home Office, Country Policy and Information Note, Iran: Christians and Christian converts, May 2019 at 2.4.4 <>

   The Australian Institute of International Affairs published an Iran Study Tour Report in April 2018 which stated as follows:

   Under the current Islamic regime, citizens are, at least in theory, free to practice the religion of their choice. Each religious minority is guaranteed a seat in parliament, as stipulated in Iran’s constitution. However, whilst conversion to Islam is accepted and encouraged, it is illegal to convert to a different religion once one has identified as Muslim. This is considered apostasy and harsh penalties can apply. Apostasy is punishable by death in certain cases, however the crime has never been codified in law.[17]

   [17] Cited in: UK Home Office, Country Policy and Information Note, Iran: Christians and Christian converts, May 2019 at 8.1.3.

9. People who convert from Islam to Christianity in Iran can face rejection by the community and family members. Iranian Christian converts reportedly face ongoing societal pressure.[18] DFAT assesses that converts face a ‘high risk of societal discrimination’ if their conversion becomes widely known, particularly if they are from more ‘religiously-minded Muslim family backgrounds.’[19] According to DFAT, this may involve ostracism from one’s family and employment discrimination.[20] Many social norms and cultural activities are associated with Islam and non-participation in religious events can raise suspicion from neighbours and the community.[21] Sources indicate that it is possible that converts not conforming to social norms in smaller, more religiously conservative parts of the country could be at greater risk of being reported by someone in their social network, than those in larger urban cities.[22] The DFAT report notes that where raids of house churches occur, they are usually the result of tip-offs by Muslim neighbours.

   [18] ‘Iran 2018 International Religious Freedom Report’, US Department of State, 21 June 2019, Section III; ‘Iran – World Watch List 2020 Country Dossier – Second Revision: 6 January 2020’, Open Doors, 6 January 2020, p.21 and p.23.

   [19] DFAT Country Information Report – Iran, 14 April 2020, p. 34.

   [20] Ibid.

   [21] ‘Iran: House churches and converts’, Danish Immigration Service and the Danish Refugee Council, February 2018, p. 22; ‘Christian Converts in Iran’, Finnish Immigration Service, 21 August 2015, p.11.

   [22] ‘Update on the Situation for Christian Converts in Iran’, Danish Immigration Service, 1 June 2014, p.14, CIS28931

10. The Tribunal discussed the country information with the applicant. With respect to how people might become aware of his conversion he said the authorities could easily find out because Basij members find information from people and his relatives would find out and someone would probably let the Basij know. He said his mother would tell her relatives. The Tribunal queried why she would do this when he said she was humiliated by what he has done and he said his sister told him his mother had told his aunts. He said his mother shared his situation with relatives. He didn’t know what their reaction was as she had never said anything to him about it.

11. The applicant said he would have to keep his faith private and would not be able to share his faith. He gave the example that he would have to indicate he was Muslim if he was to apply for a job and he didn’t want to disown his Christian faith. He said that in a small community if people were not told they would find out because he wouldn’t attend religious events. He said people would ask questions and would find out. He said that he was raised in his family only saying prayers and not going to mosque but if you are Muslim and not practising when you go back to Iran or were searching for a church to practise in people would know. He said the underground churches were always under surveillance. He said because he is a convert that is even worse than someone who kept their faith secret from the beginning.

12. He said that when he returned home from [Country 1] he was questioned about what he was doing in [Country 1]. He said that in that process he would have to either disown his faith or he would be arrested. The Tribunal understood him to be saying that he would be questioned again on return this time and may be forced to disown his faith or face arrest.

13. The applicant’s submissions cited the UK Upper Tribunal in the PS (Iran) decision in support of the applicant’s claims, where the Upper Tribunal found that:

    [W]e have no hesitation in finding that a genuine Christian would face serious difficulties on arrival in Tehran. Asked about the basis of his claim for asylum, he cannot be expected to lie. The interviewer will quickly establish that here is an individual who has been attending church abroad, and who has perhaps been baptised into this new faith. Here is an individual who would then, as Ms Enayat puts it, be treated like “any other convert”. There is a real risk that he would be asked to sign an undertaking which among other things (see above) would require him to renounce Christianity. The convert who in fear chooses to sign that document will be quickly released, but will almost certainly be placed under surveillance. The effect of that surveillance would be that his ability to practice his faith in his own country would be completely denied. The convert who refuses to recant, and to make the admissions required of him, is on the road to martyrdom: even if he manages to avoid ill-treatment in the process, he will be detained until he agrees to sign.

    Consideration

14. The Tribunal notes that significant time has passed since the delegate’s decision. During the years since the decision the applicant has maintained a connection to the church community at [Church 1] as supported by the evidence of [Pastor C] albeit on a sporadic basis.

15. The Tribunal notes the findings of the delegate. The Tribunal shares the delegate’s concern that the applicant’s initial engagement with Christianity was motivated at least in part by a concern to establish a basis to seek protection in Australia. This view is supported by the applicant’s relatively short engagement with Christianity prior to his baptism and the timing of his subsequent departure from the church. The Tribunal was concerned in this regard by the timing of the applicant’s re-engagement with Christianity which followed the issuing of a natural justice letter from the Department noting that the [Church 2] had reported he was no longer attending there. Similarly, the applicant re-engaged with [Church 1] in December 2020 which coincided with the issuing of an invitation by the Tribunal for the applicant to appear in relation to the review. This caused the Tribunal to have similar concerns regarding the genuineness of the applicant’s engagement.

16. However, the Tribunal is mindful of giving the applicant the benefit of the doubt and while the Tribunal understands the concerns raised in the delegate’s decision, based on the evidence before it the Tribunal accepts that the applicant’s Christian conversion and involvement in Christian activities in Australia are genuine. Specifically, the Tribunal accepts the applicant was baptised on [date] September 2014 at [Church 2]. The Tribunal accepts that prior to his baptism he had instruction with Pastor [A] preparing him for baptism and that he was baptised when Pastor [A] formed the view he was ready to join the faith. Importantly, Pastor [A] testified that he considered the applicant’s interest in Christianity was genuine and did not regard that his change of church or period of disengagement in Melbourne called into question his commitment to Christianity.

17. The Tribunal also notes [Pastor C]’s assessment that the applicant’s commitment to Christianity is genuine. The Tribunal assessed [Pastor C]’s evidence to be credible and sincere and while it may be said the Pastor is potentially inclined to see the promise in an individuals’ engagement with Christianity, the Tribunal formed the view that his assessment was formed from having engaged with the applicant in his faith journey over several years and with an expressed intention to continue to support the applicant in that journey. The Tribunal also acknowledges the depth of his and Pastor [A]’s experience as Christian ministers. The Tribunal places weight on their assessment of the genuineness of the applicant’s commitment in this regard.

18. Similarly, Mr [B] testified in his belief the applicant’s commitment to Christianity was genuine, drawing on his interaction with the applicant and his experience with Christian converts from Muslim backgrounds. While he was unable to speak to the applicant’s engagement while he was away, Mr [B] has since been in contact with the applicant on his return and testified to his belief that the applicant’s engagement with Christianity was sincere and ongoing.

19. Ultimately, while there were some inconsistencies in the evidence regarding the applicant’s journey to his conversion and about his practice in Australia, the Tribunal found the applicant’s account of his conversion to be generally credible. While his early claims were acknowledged to be false, the Tribunal accepts he has a genuine desire to live as a Christian and as a member of a Christian community. The applicant’s account of his family background was consistent with having been raised by a father who was a secular Muslim who encouraged his children to study internationally and live as secular Muslims. The Tribunal has some concern in this regard with the claim that his mother is a strict Muslim whose family would pose a risk to the applicant. The applicant was unable to explain how this was consistent with his mother marrying his father who was said to be secular and whose actions in raising his children suggest a secular Muslim outlook. The Tribunal does not regard this as consistent with the claim his mother is from a strict Muslim background such as may present a risk to the applicant on return.

20. The Tribunal finds that the applicant converted to Christianity on [date] September 2014 after joining the [Church 2]. He remained a member of the congregation until around July 2016 when he left. He briefly attended [Church 3] with his friend but did not become a member of the congregation at that time, citing issues with his mental health and a desire to move interstate. He moved to Melbourne in September 2016 but returned a short time later, in December 2016. When he returned, he joined the [Church 1] where he remains a member of the church congregation. He attended Bible study with Mr [B] from late 2016 to mid-2017 and volunteered with the church food program. The Tribunal finds that the applicant has had some broader involvement in the church community including volunteering for church activities. The Tribunal finds the applicant’s conversion to Christianity to be genuine. The Tribunal finds the applicant is a committed Christian and a member of the [Church 1].

1. Given these findings the Tribunal has gone on to consider the applicant’s motivations for converting to Christianity in Australia. It is generally accepted that a person can acquire refugee status sur place where he or she has a well-founded fear of persecution as a consequence of events that have happened since he or she left his or her country. However this is subject to s 91R(3) of the Act which provides that any conduct engaged in by the applicant in Australia must be disregarded in determining whether he or she has a well-founded fear of being persecuted for one or more of the Convention reasons unless the applicant satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee within the meaning of the Convention.

2. The Tribunal is of the view that the applicant’s commitment to exploring Christianity was genuine and has grown over time. While the Tribunal has some concerns regarding his initial motivations for seeking engagement with Christian churches in Australia, the Tribunal regarded that his interest in Christianity was consistent with his account of his engagement with a Christian friend in [Country 1] and his background having been raised in a household headed by a secular Muslim. Further, the Tribunal regards on the evidence that the church and its members and the broader Christian community have become a source of community for the applicant and have supported him through mental health challenges.

3. The Tribunal finds that the applicant was not engaged with Christianity while in Iran. The Tribunal finds that claims the applicant was detained in Iran due to being suspected of holding Christian beliefs are not credible and were fabricated to enhance the applicant’s claims for protection. In light of the other fabrications regarding the applicant’s experiences in Iran the Tribunal also does not accept that he was abused at work for being an infidel and refusing to participate in prayers. The applicant submitted to the Department a work reference from the company noting his period of employment and refers to him being ‘expelled from his job’. However, it gives no reason for his employment ceasing. Given the applicant was provided with a reference letter in relation to his employment the Tribunal does not accept he was fired from his employment based on being considered an infidel, particularly in circumstances where the applicant no longer sought to claim he had been referred to authorities or that his lack of faith or adherence to religious practice resulted in any other action. The Tribunal considers this is not consistent with country information or with the applicant’s own claims regarding the treatment he will suffer on return to Iran as a Christian convert or secular Muslim.

4. The Tribunal notes that the applicant told his parents about his conversion in 2018 following requests from them for him to visit Iran. He claimed to have told them because he was unable to explain why he wasn’t returning to Iran including when they were suffering health issues. His sister was aware he had converted since around 2015 when she was in Australia and working for his (then) migration agent. However, he did not claim to have publicised his conversion in a manner which might suggest an attempt to strengthen claims for protection. He said his parents were not supportive of his conversion and he has limited contact with them. He claimed he had heard his mother had told her family members of his conversion however he was unable to provide a satisfactory explanation as to why she would have done so given he claimed she was ashamed of his conversion and afraid of what the authorities may do to his family if they became aware of it. The Tribunal accepts his parents are aware of his conversion but that the applicant did not tell his parents of his conversion in order to strengthen his claims for protection in Australia.

5. Having regard to the evidence the Tribunal is satisfied that the applicant’s conversion and his notification to his family of the conversion were engaged in otherwise than for the purpose of strengthening his claim to be a refugee: s 91R(3).

6. The Tribunal has considered how the applicant may act on return to Iran as a Christian convert and whether that would lead to a well-founded fear of persecution by the Iranian authorities or his extended family.

100.   The applicant submitted that he faces a well-founded fear of persecution on return to Iran due to his religion as an Evangelical Christian convert. The applicant’s representative submitted that a convert seeking to openly practise the Christian faith in Iran would face a real chance of persecution. The representative submitted that even if the applicant practises discreetly in Iran there was a real chance that the applicant would come to the attention of authorities and face harm, citing the examples provides by the UK Upper Tribunal in the PS (Iran) decision. It was submitted the applicant will be questioned by authorities on return to Iran and will either be forced to disavow Christianity due to a threat of serious harm or be exposed to such harm by refusing to disavow his faith. If he avoids harm by disavowing his faith this would amount to modifying his conduct to avoid offending his persecutors.

101.   The country information set out above indicates that the government in Iran continues to regulate Christian religious practices and those at greatest risk are its leaders and proselytisers. The information suggests that the State is focused more on the public practice of religion and proselytising than on private conviction and on this basis the Tribunal considers if the applicant were to return and practise his Christian religion discreetly, he might be able to do so without attracting the adverse attention of the Iranian authorities. However, the Tribunal notes that individuals seeking protection are not required, and cannot be expected, to take reasonable steps to avoid persecutory harm, or to live ‘discreetly’ to avoid such harm: Appellant S395/2002 v MIMA (2003) 216 CLR 473. Further the Tribunal accepts the applicant’s submissions citing the examples in the PS (Iran) case that even for those practising discreetly they remain at risk of detection by authorities and resulting harm including the risk of detention and execution.

102.   The Tribunal does not regard, on the evidence, that the applicant faces a well-founded fear persecution from family in Iran due to his conversion. Based on the account given by the applicant of his family’s background and the history of study and travel of the applicant and his sister the Tribunal finds the applicant was raised in a predominantly secular household and while his parents may not support his decision to convert there is no evidence to support his contention, they would report him to authorities or cause him harm themselves. The Tribunal does not regard that the applicant faces a real chance or a real risk of serious or significant harm from family members on this basis.

103.   While the Tribunal does not regard the applicant’s claimed practise of his faith in Australia to include activities which could be characterised as proselytisation, having accepted that the applicant has genuinely converted from Islam to Christianity and that he is a member of an Evangelical Church in Australia, the Tribunal accepts that he would seek to continue to practise his Christian faith should he return to Iran. This includes taking communion though for the applicant this was done around once a month when attending services. The Tribunal accepts that if the applicant were to return to Iran, were it not for his well-founded fear of persecution he would seek to attend church, seek out other Christians, possibly attend house church gatherings, and speak of his Christian faith.

104.   For these reasons and having regard to the country information concerning the situation for Christian converts in Iran and the applicant’s particular circumstances, the Tribunal accepts that should the applicant return to Iran, now or in the foreseeable future, there is a real chance he will face serious harm from the authorities in that it involves a threat to his life or liberty or significant physical harassment or ill-treatment: s 91R(1)(b). The Tribunal accepts that the treatment of apostates who come to the attention of authorities in Iran constitutes serious harm in that it involves a threat to life or liberty, even noting that though the death penalty is now rare, other harsh penalties can apply: 91R(2). The Tribunal accepts that the applicant wishes to freely practise his faith but fears that to do so in Iran will expose him to persecution, including arrest and detention. The weight of country information before the Tribunal indicates that the applicant’s fears in this regard are well-founded and that there is a real chance that continuing to practise his Evangelical Christianity would draw attention to his conversion from Islam and expose him to harm.

105.   The Tribunal finds the applicant’s religion is the essential and significant reason for the persecution which the applicant fears, as required by s 91R(1)(a), and that the persecution which he fears involves systematic and discriminatory conduct, as required by s 91R(1)(c), in that it is deliberate or intentional and involves his selective harassment for reason of his religion, as a convert to Evangelical Christianity.

106.   Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29].

107.   Since the Iranian government is responsible for the persecution that the applicant fears, the Tribunal is not satisfied that the Iranian state will take reasonable measures to protect him by reference to international standards.

108.   For the same reasons, the Tribunal is not satisfied that there is any part of Iran in which he would be safe from the persecution that he fears as a Christian convert. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

109.   As the applicant has a well-founded fear of persecution from the Iran state and its apparatuses, the Tribunal is satisfied the applicant has a well-founded fear of persecution in all areas of Iran.

110.   Accordingly, the Tribunal accepts that the applicant has a well-founded fear of persecution for the purposes of Art 1A(2). In considering whether he comes within the definition of a refugee contained in the Convention, the Tribunal accepts that the applicant is outside the country of his nationality or former country of habitual residence and unable or, owing to the fear of persecution, is unwilling to return to it. There is no evidence before the Tribunal that any of the exclusions apply to the applicant.

111. 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

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

Simone Burford
Senior Member

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