1715048 (Refugee)

Case •

[2019] AATA 6684

•

9 December 2019

1715048 (Refugee) [2019] AATA 6684 (9 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1715048

COUNTRY OF REFERENCE:                   Iran

MEMBER:Jason Pennell

DATE:9 December 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 9 December 2019 at 4.18pm

CATCHWORDS
REFUGEE – protection visa – Iran – Federal Circuit Court remittal – imputed political opinion – arrest as passer-by at political protest – detention and mistreatment by police – travel to another country and return without issue – religion – conversion to Christianity in Australia – belief and church membership and activity – wife on own protection visa, with Australian-born child as dependant – country information – status of Muslim converts to Christianity – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5J(1)(a), 36, 65

CASES
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Y [1998] FCA 515
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Saliba v MIMA (1998) 89 FCR 38

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 on 8 August 2014 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).

2.The visa applicant applied for the visa on 1 July 2013. The delegate refused to grant the visa on the basis that the applicant is not a person in respect to whom Australia has protection obligation under s.36(2)(a) and s.36(2)(aa) of the Act.

3.On 16 June 2016 the Tribunal affirmed the delegate’s decision to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa. By an order dated [July] 2017 the Federal Circuit Court of Australia remitted the applicant’s application for review to the Tribunal for determination according to law. 

4.The applicant appeared before the Tribunal on 7 December 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

5.The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6.For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration with the direction that the applicant satisfies s.36(2)(a) and s.36(2)(aa) of the Migration Act.

RELEVANT LAW

  1. 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).

  2. 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.’

  3. 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.

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

  5. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant,[1] and systematic and discriminatory conduct.[2] 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.

    [1] s.91R(1)(b)

    [2] s.91R(1)(c) of the Act

  6. 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.

  7. 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.[3]

    [3] s.91R(1)(a) of the Act

  8. 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.

  9. 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.

  10. 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

  1. 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’).

  2. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A).[4]  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. 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.[5]

    [4] s.5(1) of the Act

    [5] s.36(2B) of the Act

Mandatory considerations

  1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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

  1. The issue in this case is whether the applicant meets the criteria set out in either of s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration with the direction that the applicant satisfies s.36(2)(a) and s.36(2)(aa) of the Act.

The applicant’s migration history

  1. In his application for a protection visa, the applicant states that prior to seeking protection in Australia he had travelled as a tourist to [Country 1] in 1998 and [Country 2] in 2005 and 2012.[6] The applicant states that upon his departure from Iran in March 2013 he transited through [Country 3], [Country 4] and [Country 5] before reaching Australia.[7]The applicant arrived in Australia as an unauthorised maritime arrival [in] March 2013, aboard a boat codenamed ‘[Name]’.[8] He applied for a protection visa on 1 July 2013.

Country of Reference

[6] Form 866C, Department file [number] @ f. 32.

[7] Ibid.

[8] Primary decision, Department f. 111.

  1. In his application the applicant claimed that he was on born [Date] in Tehran City, Tehran Province, Iran. The applicant stated in his protection visa application that he was not able to provide a passport as it had been taken from him by people smugglers. He stated however, that he was able to provide four identity documents including his birth certificate,[9] national ID card,[10] drivers licence,[11] and Iranian Military Card.[12] A copy of each document was provided by the applicant and is located on the Department file. The decision of the delegate notes that the delegate was provided the originals of each document and was satisfied that they were originals.

    [9] Department file [number] @ f. 71

    [10] Ibid @ f.73

    [11] Ibid

    [12] Ibid

  2. In the absence of any evidence to the contrary, the Tribunal accepts that  the applicant is a citizen of the Islamic Republic of Iran and as such his protection claims will be assessed against Iran as the country of reference and 'receiving country' respectively.

  3. The Tribunal is therefore satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that he is not excluded from Australia's protection obligations under s.36(3).

The Applicant’s evidence.

  1. The applicant was born in Tehran, Iran on [Date]. The applicant’s evidence was that his mother and father continued to live in Iran together with his three brothers and sister. The applicant listed the following as his close relatives:

    ·[Name deleted], father, b [Date]

    ·[Name deleted], mother, b [Date]

    ·[Name deleted], brother, b [Date]

    ·[Name deleted], brother, b [Date]

    ·[Name deleted], brother, b [Date]

    ·[Name deleted], sister, b [Date]

  2. The applicant claims that he is a Persian Iranian who was born into a Shiite family. The applicant’s only language is Farsi. At time of application, the applicant had never been married or partnered.[13]

    [13] Form 866C, Department file [number], ff. 35-36.

  3. From [year] to [year] the applicant attended primary school at [a] School. The applicant claims that he missed a year of school due to the Iran Iraq war. He attended [another] Primary School from [year] until [year]. He then attended [a] Middle school from [year] until [year].

  4. After school the applicant commenced work at a [business].

  5. In 1996 the applicant commenced compulsory military service with the Iranian Army for a period of two years. He was discharged as a private. The applicant then operated [another] business for approximately two years and worked at [a Workplace], Tehran as [an Occupation] before joining his brothers at a family run [store][14]. The applicant worked at the [store] until his departure for Australia.

    [14] Ibid @ f. 28

  6. The applicant claims that prior to traveling to Australia he claims that had travelled to [Country 1] and [Country 2] but had returned to Iran on each occasion.

  7. In March 2013 the applicant departed Iran and travelled via [Country 3] [Country 4] and [Country 5] en-route to Australia. The applicant arrived in Australia [in] March 2013 aboard a boat codenamed ‘[Name]’.

  8. In or about 2015 the applicant commenced a relationship with his now wife, [Ms A], born [Date]. [15] This relationship started in early 2015; the couple married [in] February 2016 at [Name] Church, [Suburb].[16] His wife is currently on a Safe Haven Enterprise (XE-790) visa, granted 7 January 2018.

    [15] Rep’s submission in support of review, 21 February 2016, AAT file 1414270, ff. 78.

    [16] Ibid.

  9. The applicant and his wife have had a child, [the applicant’s daughter], born [Date] in Australia. The applicant’s daughter is currently on a XE‑790 visa as a dependant of his mother; the Department is considering adding the child to the applicant’s XA-866 application if remitted to the Department.

  10. The applicant claims that he felt unsafe in Iran since the 2009 elections. The applicant asserted that at the time of the 2009 elections, he was walking through the Vail Asr Square in Tehran, shopping when he came across a demonstration in favour of two of the local elected candidates. The police were arresting protesters and the applicant was mistakenly arrested.

  11. The applicants stated that he was put in a van before being taken to the Horr Square intelligence office, known as Payagaye Hashtom, where he was detained for a week. He claims that during his detention he was beaten, slapped, restrained and interrogated. He claims that he sustained an injury to his shoulder from being shackled and handcuffed.

  12. The applicant stated that he was eventually released and forced to sign a form stating he would never participate in the future demonstrations again. The applicant stated that he was fearful after being detention as he had heard of people having been wrongly accused of offences by the state. The applicant claims in the lead up to the 2013 elections he decided to flee Iran and was encouraged by his brother to do so.

  13. The applicant claims that within 20 days of having departed Iran, his brother informed him Iranian security police had visited his [shop] and their parents’ house to enquire about the applicant’s whereabouts.

  14. At the time of his application for a protection visa the applicant claimed that he no longer believed in or practiced Islam. [17] He now claims that he is a Christian. He was baptised in the [Name] Church, [Suburb] [in] March 2016 and claims to be an active member of the Church. The applicant stated that his wife had introduced him to Christian Church. As a result he has been attending Church on a regular basis since in or about 2015. He claims that in this time he has attended prayer groups and bible studies in order to further his knowledge of Christianity. He claims that through his study he has realised that Christianity is more akin to his personal beliefs and that the religion has become important to him. The applicant provided a number of photographs of him attending church gatherings and [Social media] postings indicating his Christian faith. As a result the applicant claims that there is a real chance that he will be seriously harmed in the event that he returns to Iran by reason, not only as a result of his rejection of Islam but in particular because, of his Christian faith. 

The applicant’s protection claims

[17] Statutory declaration of applicant, Department file [number], f. 39.

  1. The issue in this case is whether the applicant meets the criteria set out in either of s.36(2)(a) or s.36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

  2. The applicant’s written claims for protection are set out in his statement attached to his application for a protection visa dated 24 June 2013.[18] In his statement the applicant’s protection claims were as follows:

    [18] Department file [number] @ f. 39.

    Why I left my country:[19]

    [19] Ibid @ f.37

    I have felt unsafe in my country since the elections in 2009. During the election period I was traveling through Val Asr Square to do my shopping. There was a protect rally taking place in support of the two candidates that were elected. The police were arresting some f the protesters. I was mistakenly arrested. I was taken by the police and detained for about one week at the intelligence office in Tehran known as Horr Square, Payegahe Hashtom. In the period of my detainment I was physically assaulted, I still experience pain in my shoulders from the injuries.

    The police told me I was arrested because I was involved in the protests. I denied any involvement and I tried to explain I was shopping in the are .

    I pleaded with the authorities to release me however they kept me and continued to accuse me of being involved in the protest. Eventually they released me and I was forced to sign an undertaking agreeing not to participate in any protests or anti-government behaviour.

    Over the next few years I was living my life in fear. I feared that it would only be a matter of time before the Iranian government wrongfully accused me of doing something I had not done. I had fear as a result of what I witnessed happening to other Iranians who over the years were wrongfully accused of anti-government behaviour and as a result were imprisoned and persecuted.

    In the lead up to the most recent election in 2013 I became increasingly fearful of my safely. I feared that the government would arrest citizens who had been involved in the previous elections or who had been accused of anti-government behaviour.

    My brother advised me to leave the country to avoid being harmed. In addition to my fear of being persecuted on the basis of imputed political opinion I fear that if I return to Iran I will be forced to pretend I am strong practicing Muslim. My beliefs in Islam have changed over the years as a result of my experiences with the government. I do not believe in Islam and longer. I do not have any specific religious beliefs at present and I do not know if I will explore other religions in in the future. In Iran Muslims who covert to other religions or who stop believing in Islam are committing an offence.

    Since leaving Iran my brother has told me that when I was in Iran the Basiji, the police and the intelligence have come to my parents’ home and my brother [shop] looking for me. They have been on more than one occasion. I do not know how many times as my brother did not want to worry me by telling me this. They asked for me and they wanted to know where I was. My brother told me them I was still living in Iran and living with family. This is why I believe my brother wanted me to flee Iran and why he assisted me with leaving.’

    What I fear might happen if I go back to my country:

    I fear if I return to Iran I will be subjected to persecution at the hands of the Iranian authorities specifically the police and the Basiji. The authorities in Iran are all the same, they work together and they are all punishing Iranian citizens in the name of religion.

    Who I think will harm or mistreat me if I go back

    I fear the Basiji, the police and the Sepah.

    Why I believe they will harm or mistreat me if I go back.

    The authorities will persecute me on the basis of my religion (or lack thereof) as I do not believe in Islam. I do not want to conform to the strict requirements of Islam and I do not want to pretend to be Muslim and longer. I fear that I will be persecuted on the basis of imputed political opinion on the basis that I was wrongfully accused of being involved in protests in 2009.

    Why I believe that the authorities in my country will not protect me if I go back.

    The authorities in Iran will not protect me as it is the authorities that I fear persecution from. They are connected throughout the country.

    Why I believe I will suffer significant harm.

    I fear I will be detained against my will; I will be physically associated as I was in the past and I will be denied freedom to live as a non-Muslim.

    Why I cannot relocate.

    I cannot move to another part of Iran as I fear persecution for the reasons provided in all parts of the country. The entire country is governed under strict Islamic Law and thus the risk of breaking the law exists in all parts of Iran.

  1. In addition, as noted above, as a result of the applicant being baptised as a Christian he now claims that there is a real chance that he will be seriously harmed in the event that he returns to Iran by reason, not only as a result of his rejection of Islam but in particular because, of his Christian faith. 

The Applicant’s Documents.

  1. In support of his claim the applicant has provided the following documentation:

    (a)Applicant’s Statutory Declaration dated 26 June 2013.[20]

    [20] Department File [number] @ f.37

    (b)Applicant’s Statutory Declaration dated 24 June 2013.[21]

    [21] Ibid @ f.67

    (c)Applicant’s Statutory Declaration dated 13 November 2018[22].

    [22] AAT File 1414270 @ f.52

    (d)Copy of Applicant’s Birth Certificate (untranslated).[23]

    [23] Ibid @ f.71

    (e)Copy of Applicants Military Service Card (untranslated). [24]

    [24] Ibid @ f.73

    (f)Copy of Applicant’s Iranian Drivers Licence (untranslated).[25]

    [25] Ibid

    (g)Copy of Applicant’s Identity Card (untranslated).[26]

    [26] Ibid

    (h)Applicant’s Employment Confirmation Form dated [November] 2013.[27]

    [27] Ibid

    (i)Letter from [the] Executive Pastor [Name] Church dated [May] 2016.[28]

    [28] AAT File 1414270 @ f.102

    (j)Letter from [the] Executive Pastor [Name] Church dated [February] 2016.[29]

    [29] Ibid @ f.80

    (k)Letter from [Mr B], Executive Pastor [Name] Church dated [November] 2018.[30]

    (l)Photos dated [June] 2013, [July] 2013, [July] 2013, [February] 2016, and [May] 2016.[31]

    (m)Photos of the applicant at Church.[32]

    (n)Copy of Applicant’s Immicard.[33]

    (o)Applicant’s [Name] Church Certificate of Baptism dated [March] 2016.[34]

    (p)Statutory Declaration of [Ms A] dated 11 May 2016.[35]

    (q)Certificate of Marriage between the applicant and [Ms A] dated [February] 2016.[36]

    (r)Letter from [named person] dated 13 January 2018.[37]

    (s)Letter form [named person] dated 16 November 2018. [38]

    (t)Various phots and [Social media] posts relating to the applicants Christian faith and involvement in the [Name] Church and the applicant’s view of the political environment  in Iran.[39]

    [30] AAT file 1715048 @ f.40

    [31] Ibid @ f.100-101

    [32] AAT file 1715048 @ f.43-48

    [33] Ibid @ f.94

    [34] Ibid @ f.93; AAT file 1715048 @ f.36

    [35] Ibid @ f.91

    [36] Ibid @ f.63; AAT file 1715048 @ f.37

    [37] AAT file 1715048 @ f.41

    [38] Ibid @ f. 42

    [39] Ibid @ f.109-132

  2. In addition, the applicant’s representative provided the Tribunal with the following submissions:

    (a)Submission dated 21 February 2016.

    (b)Submission for hearing 6 December 2018.[40]

    (c)Supplementary submission dated 13 December 2018.[41]

    (d)Document entitled ‘Additional Information for AAT MR Division Hearing Dec 7 in case of [the applicant].’[42]

    [40] Ibid @f. 60

    [41] Ibid @ 106

    [42] Ibid @ f.134

COUNTRY INFORMATION

  1. In accordance with the Ministerial direction No 56 made under s.499 of the Act, the Tribunal in considering the applicants claims, had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT). In particular, the DFAT report on Iran dated 7 June 2018 (‘the DFAT Report’) notes the following:

    ‘Recognised Religious Groups[43]

    [43] DFAT report @ p.20

    3.23 Article 13 of the Constitution states that the Zoroastrian, Jewish, and Christian religions are the only recognised non-Muslim faiths in Iran. It gives adherents of these religions the freedom (within the limits of the law) to perform their own religious rites and ceremonies, and to comply with their own canon in their personal affairs and religious education. Adherents of the three recognised religions are permitted to hold religious services, run places of worship and religious schools, and celebrate religious holidays. Five parliamentary seats are reserved for these groups: two for Armenian Christians, and one apiece for Assyrian Christians, Jews, and Zoroastrians. Armenian Christians have observer status in the Guardian Council and Expediency Council. Members of the three recognised religions must register with the authorities. Recognised religious groups are permitted to operate private schools, but the Ministry of Education must approve all textbooks used in coursework, including religious texts. The directors of these schools must pass the gozinesh review, (a process whereby officials screen candidates for elected offices and applicants for public sector employment based on their adherence to, and knowledge of, Islam and loyalty to the Islamic republic).

    3.24 Despite the protections afforded to them through their constitutional recognition, members of the recognised religious groups face significant official and societal restrictions. By law, non-Muslims may not serve in the judiciary, the security services, or as public school principals. Non-Muslims seeking public sector employment or intending to run for public office are at a disadvantage compared to Muslims due to the requirement that all such candidates or applicants undergo the gozinesh review. Government workers who do not observe Islamic principles and rules are subject to penalties, and may be dismissed or barred from work in particular sectors. In October 2017, the Guardian Council upheld a decision to suspend a Zoroastrian city councillor in Yazd after a losing Muslim candidate lodged an appeal against the Zoroastrian’s election in May. The appeal successfully argued it was unconstitutional for a member of a religious minority to make decisions on behalf of the whole population of a Muslim-majority city.

    3.25 Most members of recognised religious minorities are indistinguishable from Muslims in terms of physical appearance and everyday dress. Christian, Jewish, and Zoroastrian women adhere to dress code requirements relating to the wearing of headscarves in public. However, many Christians have ethnically-distinct names that can identify them as Christian. This can result in low-level societal discrimination such as the loss of employment opportunities, but is unlikely to result in violence.

    3,26 Ethnic Armenians concentrated in Tehran, Isfahan, Tabriz, and Orumiyeh are the largest group of recognised Christians. Other recognised groups include Assyrian Christians, concentrated in Tehran and Orumiyeh; Chaldeans, and Sabean-Mandeans, although this last group does not self-identify as Christian. The ethnic churches have different denominations – there are Assyrian Catholic, Orthodox, and Presbyterian congregations – but the members of the various denominations maintain close links within their own community. Because the law prohibits citizens from converting from Islam to another religion, the government only recognises these groups because their presence in Iran predates Islam. Any citizen who is not a registered member of one of these groups, or who cannot prove that their family was Christian (or of another recognised religion) prior to 1979, is considered Muslim. Recognised churches are required to deliver sermons in their traditional language rather than in Farsi. Community leaders associated with the recognised churches have reported that authorities  respect their religious rights, and their communities are able to act freely in their own spaces (including holding mixed-sex gatherings, using alcohol for ceremonial purposes, and allowing women to uncover their heads) without government interference…………..

    3.29 DFAT assesses that members of recognised religions face a low risk of official discrimination. While they enjoy the benefits of official recognition, the structure of the Islamic Republic inevitably favours the Shi’a Muslim majority to the exclusion of others. The risk of societal discrimination, including violence, is low, but may be heightened at times when external factors come into play.’

    ‘Unrecognised Christian Groups (House Churches)[44]

    3.30 The Penal Code strictly prohibits proselytisation by religious minority groups – it is a capital crime for non-Muslims to convert Muslims. None of the three recognised minority religions proselytises or accepts converts as members. Strict instructions not to minister to Iranians apply to the small number of Latin Catholic and Protestant churches in Tehran and elsewhere that cater to expatriates. The prohibition is enforced through bans on the use of Farsi in services; bans on Iranians attending non-Muslim religious facilities, including for non-religious events such as musical performances; and the regular contacting of churches by telephone by false potential converts in order to test the reactions of church officials to receiving such enquiries. Security officials reportedly monitor registered congregation centres to verify that services are not conducted in Farsi, and perform identity checks on worshippers to confirm that non-Christians or converts do not participate in services. Authorities have closed several churches in recent years for failing to comply with these restrictions, including churches that had existed prior to 1979.

    3.31 As a result of these prohibitions, Iranian Christians who are not members of the recognised ethnic minority churches generally practise in underground ‘house churches’. The secrecy surrounding the house churches makes it impossible to provide an exact number of unrecognised Christians in Iran. Some international Christian advocacy groups estimate that between 800,000 and one million people worship in underground churches. While these numbers likely overstate considerably the true number, Iran nevertheless has a significant and growing unrecognised Christian population. DFAT understands a high percentage of unrecognised Christians in Iran are Farsi-speaking converts from Islam, or the children of converts. Local sources claim many converts are unhappy with being designated Muslim at birth, and wish to explore their religious identity. Others see adopting Christianity (albeit surreptitiously) as a means of rebelling against the government.

    3.32 According to international observers, house churches exist across Iran (particularly in major cities) and frequently change locations and members. The house churches, almost all of which follow Protestant or Evangelical teachings, vary considerably in size and style: some are very informal, and are merely small gatherings of close family and friends on a regular or semi-regular basis for prayer, worship and bible reading. Others may be larger, and may grow organically as members share their faith with family and friends. While some groups do not have any formal links with any other Christian groups, others are part of house church networks within a particular city or area. While some house churches have leaders trained in Christian theology (either online or in person through residential courses provided outside Iran), others may be untrained. An increasing number of house churches have ‘internet pastors’, where a pastor who has fled Iran may continue to lead the church remotely via the internet. Some isolated Christians who do not have regular contact with other Christians may receive all of their religious instruction via Christian television programs (which they can view via satellite) or through the internet, from the many foreign-based Farsi-speaking preachers who provide religious instruction online.

    3.33 Authorities have interpreted the growth in house churches as a threat to national security: official reports and the media have characterised house churches as ‘illegal networks’ and ‘Zionist propaganda institutions’. Authorities have periodically cracked down on house churches, focusing particularly on the leaders of churches that actively broadcast, proselytise, or seek out new members. Security forces have reportedly increased the frequency of these crackdowns under the Rouhani administration, although probably not as a result of any direct instruction from the government. The judiciary has handed down long sentences in relation to house church activities: in July 2017, the Revolutionary Court convicted eight Christians of ‘acting against national security through the establishment of a house church’ and ‘insulting Islamic sanctities’, and sentenced the group to between ten and 15 years’ imprisonment. According to international observers, as of December 2016 approximately 90 Christians were in detention or awaiting trial because of their religious beliefs and activities. Christian advocacy groups have reported that authorities have pressured some church leaders to emigrate, either through direct threats or through intentional harassment (including daily summons to security offices for questioning, confiscation of identity documents, or forcing them out of their jobs). Human rights observers have reported that authorities have subjected Christians in detention to severe physical mistreatment, including beatings and solitary confinement.

    3.34 International observers advise that Iranians who convert to Christianity outside the country are unlikely to face adverse attention from authorities upon return to Iran, provided they have not previously come to the attention of authorities for political activities conducted in Iran, maintain a low profile and do not engage in proselytisation or political activities within the country.

    3.35 DFAT assesses that 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 do engage in proselytisation and have connections to broader house church networks are more likely to face official repercussions, which may include arrest and prosecution. The leaders of such congregations are at particular risk in this regard.’

    [44] DFAT Report @ p. 22.

ASSESSMENT OF CLAIMS AND FINDINGS

Credibility 

  1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.

  2. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[45]

    [45] s.5AAA Migration Act 1958. MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

  3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[46] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

    [46]   Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482

  4. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[47] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

    [47]  The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

Applicant’s Refugee Claim

Applicant’s Relevant Grounds

  1. The applicant submits that his claims falls within the scope of s.5J(1)(a) of the Act by reason of his imputed political opinion, as a result of having been arrested and detained by the state and his discontentment with the religious agenda of the Iranian Government, which has caused him to become critical of the political regime of Iran.[48]

    [48] Applicants submissions dated 21 February 2016

  2. A political opinion need not be an opinion that is actually held by the refugee. It is sufficient that such an opinion is imputed to the applicant by the persecutor.[49] In Saliba v MIMA[50] the Court held:

    ... for Convention purposes, a claimant’s political opinion need not be expressed outright. It may be enough that a political opinion can be perceived from the claimant’s actions or is ascribed to the claimant, even if the claimant does not actually hold the imputed opinion.

    [49]   MIEA v Guo (1997) 191 CLR 559 at 571 referring to Chan v MIEA (1989) 169 CLR 379 at 416 per Gaudron J and at 433 per McHugh J.

    [50] (1998) 89 FCR 38 at 49.

  3. In MIMA v Y,[51] the Court,  when considering ‘political opinion’ under the Refugee Convention stated that ‘[t]he words ‘political opinion’ are ordinary words of the English language and have not been the subject of judicial exposition limiting their meaning in the context of the Refugees’ Convention’.[52] The Court considered the Tribunal’s finding that the applicant’s stance against criminal activity by police was an expression of a political opinion and held:

    In the context of the Refugees’ Convention, an opinion could be thought to be a political opinion if it were such as to indicate that its holder ... held views which were contrary to the interests of the State, including the authorities of the State. A person may be regarded as an enemy of the State by virtue of holding and propounding views which are contrary to the views of the State or its Government, or which are antithetic to the Government and the instruments which enforce the power of the State, such as the armed Forces, Security Forces and Police Forces or which express opposition to matters such as the structure of the State or the territory occupied by it and like matters.

    [51]   MIMA v Y [1998] FCA 515 (Davies J, 15 May 1998) at 5.

    [52] [1998] FCA 515 (Davies J, 15 May 1998) at 4.

  4. As a result, the Tribunal accepts that as a result of the applicant’s claim that he was  arrested and detained and his alleged discontentment and criticism of the political regime of Iran, that the applicant’s claims are within the scope of s.5J(1)(a) of the Act by reason of his imputed political opinion.

  5. In addition, the applicant submits that his claims fall within the scope of s.5J(1)(a) of the Act by reason of his religion on the basis of his Christian faith. The applicant stated at the time of his application that he had rejected Islam. However, having been introduced to the Christian Church by his wife, he has become a Christian and involved in the activities of the Church.  The Tribunal accepts that the applicant’s claim in relation to his Christian faith falls within the scope of s.5J(1)(a) of the Act   

Applicant’s well-founded fear.

  1. In Chan v MIEA[53] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[54]

    [53] (1989) 169 CLR 379 at 396.

    [54] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.

  2. The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case based on the evidence of the applicant the Tribunal accepts that the applicant has a subjective fear of being harmed or of being persecuted in the event that he returns to Iran.

  3. However, to hold a ‘well found fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J [55]stated:

    “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.

    [55]  Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397

  1. In MIEA v Guo, the Court stated that: [56]

    Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.

Applicant’s detention.

[56]  MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

  1. The applicant stated that he was arrested for being in the vicinity of a demonstration that occurred at Vali Asr Square in the aftermath of the 2009 elections. He claims that he was put into a van and taken to the Horr Square intelligence office where he was detained for a period of a week. He claims that during the time of his detention he was beaten, slapped restrained and interrogated. He claims that he sustained injury to his shoulder for being shackled and handcuffed.

  2. The delegate’s decision notes that Horr Square is located approximately 7 kilometers from Vali-ye-Asr in metropolitan Tehran and approximately 3.5 kilometers for Valiasr Square Subway station.[57] The delegate also noted that a Google Search indicated that there are several Sepah offices in Central Tehran including at Sanglaj near the Tehran Bazaar approximately three kilometers from Horr Square.[58]

    [57] Delegates decision dated 8 August 2014 Dept File [number] @ f.126

    [58] ibid

  3. The country information reports that following the June 2009 presidential election, up to three million supporters of reformist candidate Mir Hossein Mousavi turned out on Tehran streets to protest the official verdict that conservative candidate Mahmoud Ahmadinejad had won in a landslide. The ‘Green Movement’ took its name from Mousavi’s campaign colour which, in turn, was derived from a poster showing former President Mohammad Khatami placing a green sash over Mousavi. The Green Movement evolved in the next six months following the disputed election, from a mass group of angry voters to a nation‑wide force peacefully demanding the democratic rights originally sought in the 1979 revolution. Green Movement protesters used public holidays and national commemorations as opportunities to rally on the streets of major cities, chanting slogans that challenged both the system and the Supreme Leader himself. In response, the government despatched security forces, including the IRGC, Basij units, and plain-clothed paramilitary forces. These forces beat thousands of protesters and arrested hundreds, while snipers killed dozens. By early 2010, the government had quashed all public displays of opposition.

  4. The Freedom from Torture Report[59] states that in 2009 the largest number of people was detained in Iran, with most detentions during this period being related to political activities or perceived dissent, reflecting violent crackdowns connected with the presidential elections that year. It reports that a number of people were detained before 2009, but over half were detained more recently, between 2010 and 2015.

    [59] Freedom from Torture, Turning a blind eye: Why the international community must no longer ignore torture in Iran, December 2017, available at: 5 December 2019

  5. The US Department of State reported that common methods of torture and abuse in Iranian prisons include prolonged solitary confinement with extreme sensory deprivation, beatings, long confinement in contorted positions kicking detainees with military boots, hanging detainees by the arms and legs, threats of execution, burning with cigarettes sleep deprivation.[60] Torture generally occurred in circumstances where the person had no personal history of political or other activism or family profile of dissent prior to 2009 election period.

    [60] CIS26267: Iran: Austrian Centre for Country of Origin and Asylum research and Documentation (ACCORD), Iran, COI Complication, September 2013, .ord/docid/522

  6. The applicant’s evidence in relation to the protests, his arrest and the types of torture he experienced while detained was consistent with that described in the country information.  Therefore, based on the available country information and in the absence of any evidence to the contrary, the Tribunal accepts that the applicant was arrested and detained as claimed.

Applicant forced to sign a form in relation to future demonstrations.

  1. The applicant’s evidence was that when he was released he was forced to sign a document stating that he would never participate in demonstrations in the future. The applicant claimed that he was fearful after this had occurred because he has heard of other people being wrongly accused of offences against the State. As a result he claimed that in the lead up to the 2013 elections he decided to flee Iran and was encouraged by his brother to do so.

  2. The country information reports that torture was often used in Iran to obtain information about individuals’ networks involved in political or other activities deemed to be anti‑regime.[61] 

    [61]  Freedom from Torture, Turning a blind eye: Why the international community must no longer ignore torture in Iran, December 2017, available at: 5 December 2019

  3. Given the period of time that has elapsed, DFAT assesses it would be highly unlikely that those arrested at the time for simply participating in the protests would remain imprisoned, or would face continuing surveillance or harassment, including being prevented from accessing employment in either the public or private sector.[62] Nevertheless, given the sensitivity of the government to such challenges, DFAT reports that it is likely that those who had a higher profile or a more active organisational role are likely to face continuing official attention.[63]

    [62] DFAT report @ p.28

    [63] Ibid

  4. The applicant claimed that ‘once the security people have your name, when they are searching for trouble makers they could come and arrest you.’ As such, he claimed that it was only a matter of time before they came for him again.[64]  However, the Tribunal notes that the applicant did not have a high profile and was not involved in the organisation of the protests. In addition, he did not suffer any harassment or further detention from the authorities after the time that he was detained.

Iranian security forces enquire about Applicant  

[64] Applicant’s statutory deceleration date 13 November 2018 AAT File No 1715048 @ f.52.

  1. The applicant claims that his brother informed him that within 20 days of him departing from Iran, the Iranian security forces visited his brother’s [shop] and his parents’ house looking for him.  The applicant did not provide any independent evidence such as a statement for his brother and/or parents in relation to the security forces’ visit.

  2. The Tribunal notes that the applicant departed Iran legally under his own name and used a valid Iranian passport. In addition, he had previously visited [Country 1] and [Country 2] without incident. The applicant was at no time stopped at the airport and, as such, appears not to have been subjected to a travel ban list to prevent his departure.[65] Article 133 of the Iran’s Procedures for Criminal Prosecutions provides that individuals may be barred from travelling abroad but only if an active prosecution case is underway. It therefore appears that the applicant was not subjected to any active prosecution case against him.

    [65] CISLIB 27141:Iran: United Kingdom: Home Office Country of Origin Information Report – Iran 16 January 2013. @ 32.17

  3. Therefore, in absence of any independent evidence and in light of his evidence that he had not been approached by the security forces prior to departing Iran, that he had previously visited [Country 1] and [Country 2] without incident, that he was able to leave the country without being detained or questioned and the fact that was a mere spectator of the protests and not a high profile participant, the Tribunal does not accept that the security forces visited his brother at the [shop] or his parents’ house looking for him as claimed.

The Applicant as a Christian.

  1. The applicant’s evidence was that he is a Persian Iranian born into a Shiite family. He asserted that at the time of his application he had turned away from Islam. He claimed that he feared persecution from the authorities on the basis that he does not believe in Islam and that he did not wish to conform to the strict requirements of Islam.  He claimed that he did not want to pretend to be Muslim.

  2. In addition, at the Tribunal hearing the applicant claimed that as a result of having met his wife he had become a Christian and that he was actively involved with the [Name] Church. He was baptised in the Church [in] March 2016. The applicant claims that both he and his wife have informed their respective families that they have become Christians.[66] This claim was not put to the delegate.

    [66] Applicant’s statutory deceleration date 13 November 2018 AAT File No 1715048 @ f.52.

  3. The Tribunal has considered whether the applicant is a genuine Christian. This is a relevant consideration when assessing how he may act and/or be perceived if returned to Iran. Initially the Tribunal held concerns about the applicant's motivations for converting, particularly given the timing: that is becoming a Christian after his arrival in Australia and after his application for a protection visa. On one view, it is possible that the applicant may have been motivated to convert to Christianity initially in order to strengthen his protection claims.

  4. However, the applicant has provided the Tribunal with significant evidence in statements from the Pastor of the [Name] Church and various members of the congregation, photos and a copy of his baptism certificate and marriage certificate. The Tribunal has placed significant weight on the statement of Ps [B] dated 8 November 2018, Pastor of the [Name] Church.[67]  Therefore, based on the applicant’s and his wife’s oral evidence together with the documentation provided by the applicant in support of his claim, the Tribunal accepts that the applicant has turned away from Islam and is a Christian and is an active member of the [Name] Church community as claimed.

    [67] AAT File No 1715048 @ f.40.

  5. The Tribunal has considered that if the applicant were to return to Iran whether there is a real chance that he will suffer serious harm from the authorities or anyone else as Christian convert from Islam.

  6. As mentioned, at hearing the applicant said he fears significant harm from the Iranian authorities and the community as a Christian convert from Islam if he is returned to Iran, noting that members of the public would think it is their duty to harm him if they found out he had converted. In this case, the applicant’s evidence is that the he and his wife have both informed their families that they are now Christians. In addition the applicant provided [Social media] posts in which he expresses his Christian faith.  As a result, it is likely that the applicant’s extended family, his friends and other members of his community will be aware that he is a Christian convert.

  7. The Tribunal accepts that the applicant will be subjected to significant social pressure and will likely be rejected by family members and friends as a result of having converted to Christianity.  The Tribunal accepts the applicant's family in Iran would be upset about his conversion, which may result in a period of estrangement or rejection of him completely. However the loss of friends and family, although difficult, does not constitute serious harm. The applicant has not indicated that his friends or any other members of the community have threatened him in any way and the Tribunal does not accept that the applicant faces a real chance of serious harm at the hands of his (former) friends or the broader community if returned to Iran because of his conversion. They may disapprove, voice their disapproval and distance themselves from him, but on the evidence before it the Tribunal is not satisfied that they would seek to seriously harm him. On this basis the Tribunal finds the applicant does not face a real chance of serious harm from his family members and friends if removed from Australia to Iran on the basis of his Christian conversion.

  8. However, the Tribunal has considered independent country information about the situation for Christian converts in Iran to determine whether the applicant faces a real risk of significant harm from the authorities. That is, as a person who has turned away from Islam and has now embraced Christianity. The applicant claims such people are considered apostates by the authorities in Iran and face harsh penalties under the law, including (possibly) death.

  9. The DFAT report indicates that the official religion of Iran is Shi'a Islam and that approximately 98 percent of Iranians are Muslim. The report states that article 4 of the Constitution requires all of the country's laws and regulations be based on (Shi'a) Islamic principles; that government policy and legislation heavily favours the majority Shi'a population in practice, leading to pervasive structural discrimination against non-Shi'a Muslims and religious minorities; and that the Ministry of Culture and Islamic Guidance and the Ministry of Intelligence and Security (MOIS) monitors religious activity and the Islamic Revolutionary Guards Corps (IRGC) also monitors churches.

  10. The DFAT report notes that there are non-Muslim recognised religions in Iran, including certain Christian religions; however, proselytisation by religious minority groups is strictly prohibited under the Penal Code: it is a capital crime for non-Muslims to convert Muslims. As well, none of the three recognised minority religions proselytises or accepts converts as members and that prohibition is 'enforced through bans on the use of Farsi in services; bans on Iranians attending non-Muslim religious facilities, including for non-religious events such as musical performances; and the regular contacting of churches by telephone by false potential converts in order to test the reactions of church officials to receiving such enquiries.' As a result, Iranian Christians who are not members of the recognised ethnic minority churches generally practise in underground 'house churches'.

  11. In terms of the treatment of house church participants in Iran, the Tribunal notes that the DFAT report states that:

    Authorities have interpreted the growth in house churches as a threat to national security: official reports and the media have characterised house churches as ‘illegal networks’ and ‘Zionist propaganda institutions’. Authorities have periodically cracked down on house churches, focusing particularly on the leaders of churches that actively broadcast, proselytise, or seek out new members. Security forces have reportedly increased the frequency of these crackdowns under the Rouhani administration, although probably not as a result of any direct instruction from the government. The judiciary has handed down long sentences in relation to house church activities: in July 2017, the Revolutionary Court convicted eight Christians of ‘acting against national security through the establishment of a house church’ and ‘insulting Islamic sanctities’, and sentenced the group to between ten and 15 years’ imprisonment. According to international observers, as of December 2016 approximately 90 Christians were in detention or awaiting trial because of their religious beliefs and activities. Christian advocacy groups have reported that authorities have pressured some church leaders to emigrate, either through direct threats or through intentional harassment (including daily summons to security offices for questioning, confiscation of identity documents, or forcing them out of their jobs). Human rights observers have reported that authorities have subjected Christians in detention to severe physical mistreatment, including beatings and solitary confinement.

  12. In addition, the DFAT report notes that:

    International observers advise that Iranians who convert to Christianity outside the country are unlikely to face adverse attention from authorities upon return to Iran, provided they have not previously come to the attention of authorities for political activities conducted in Iran, maintain a low profile and do not engage in proselytisation or political activities within the country.[68]

    [68] Ibid

  13. The DFAT report also states that under Iranian law a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. It states that:[69]

    The Penal Code does not specifically criminalise apostasy, but provisions in the Penal Code and Constitution state that sharia applies to situations in which the law is silent, and judges are compelled to deliver sharia-based judgements in such cases. Although the Koran does not explicitly say that apostasy should be penalised, most Islamic judges in Iran agree that apostasy should be a capital crime. This ruling is based both on oral traditions attributed to the Prophet Mohammed and to Shi'a Imams, whom Shi'a consider the Prophet's rightful successors. Chapter Five of the Penal Code specifically criminalises swearing at the Prophet as a capital offence, although a clause states that the sentence can be reduced to 74 lashings of the whip if the accused states the insults were the result of a mistake or were made in anger

    [69] DFAT report @ p.24

  14. While the DFAT report notes that apostasy and blasphemy cases are no longer an everyday occurrence in Iran, it reports that authorities continue to use religiously-based charges (such as 'insulting Islam') against a diverse group of individuals. In recent years, the group has included Shi'a members of the reform movement, Muslim-born converts to Christianity, Baha'i, Muslims who challenge the prevailing interpretation of Islam (particularly Sufis), and others who espouse unconventional religious beliefs (including members of recognised religious groups).[70]

    [70] Ibid

  15. The report notes that some religiously-based cases have clear political overtones, while other cases do seem to be primarily of a religious nature, particularly when connected to proselytisation.[71] As a result, 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.[72]

    [71] Ibid

    [72] Ibid

  1. In their 2019 annual report, the United States Commission on International Religious Freedom notes the following about Christians in Iran:[73]

    Iran has nearly 300,000 Christians, including traditional Armenian and Assyrian/Chaldean ethnic churches and newer Protestant and evangelical churches. The government monitors members of the historical churches and imposes legal restrictions on constructing and renovating houses of worship. Christians have been sentenced to prison terms for holding private Christmas gatherings, organizing and conducting house churches, and traveling abroad to attend Christian seminars. Evangelical Christian communities face repression because many conduct services in Persian and proselytize to those outside their community. Pastors of house churches are often charged with national security-related crimes and apostasy.’

    In 2018, Iran drastically escalated its arrests of Christians. Whereas 16 Christians were arrested in Iran in 2017, at least 171 were arrested in 2018. While Iran often arrests Christians ahead of Christmas, arrests in 2018 began earlier and took place in a wider set of cities and towns than usual. A total of 114 Christians were arrested in Iran during the first week of December 2018 and more than 150 were arrested between November and December 2018. Christians arrested in Iran are often treated and charged as enemies of the state, and lawyers who take on their cases face the threat of detention. In September 2018, for example, Iran revolutionary court judges Mashaullah Ahmadzadeh and Ahmad Zargar affirmed sentences levelled in 2017 against Saheb Fadaie and Fatemeh Bakhteri on the charge of “spreading propaganda against the regime…

    [73] United States Commission on International Religious Freedom >

    The UK Home Office, in a May 2019 report[74] 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. 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.

    [74] GOV.UK, Iran: country policy and information notes

  2. The UK Home Office also reports that members of evangelical/house churches are 'subject to harassment, arrest, close surveillance and imprisonment by the Iranian authorities'.[75]

    [75]  Ibid

  3. In a November 2017 Landinfo report, the underlying rationale for the way the Iranian government monitors and treats house church members is explained as follows:

    In general, the government regards religious pluralism beyond their control as a security risk. Iran does not have freedom of association, and all organised activity, whether political, religious or cultural, must be applied for and authorised by the Ministry of the Interior and the Ministry of Culture and Islamic Guidance. Activities that are considered to undermine or threaten the legitimacy and stability of the Islamic regime are not allowed and may have criminal consequences. The regime bases its legitimacy on Islam being the religion of the people, and that the government exercises the will of the people through an Islamic regime.

  4. The March 2015 Christians in Parliament report on ‘The persecution of Christians in Iran’ found that:[76]

    The most severe abuse is faced by Christians who have converted from a Muslim background, and those who engage in ministry among Persian speaking people of a Muslim background. ‘Christian converts in Iran - and any Christians who minister among individuals from a Muslim background - know they are either already being monitored by the Ministry of Intelligence and Security (MOIS), or that MOIS may identify them and begin monitoring at any time. ‘Converts to Christianity have additional battles to face in daily life. Most converts still have names that identify them as having a Muslim heritage. Given that conversion is not tolerated, these individuals are still viewed and treated as Muslim in Iranian law and bureaucracy. ‘Furthermore, conversion away from Islam can lead to the loss of a job in state institutions, or in cases where the employer does not tolerate conversion. ‘With regards to education, according to Dr Shaheed, University regulations continue to officially grant admission only to Muslims or members of officially recognized minority religions. Christian converts and unrecognised religious minorities can face pressure within academic institutions; or lose opportunities for education or the right to complete educational courses because of their faith.

    [76] Christians in Parliament, ‘The persecution of Christians in Iran’, March 2015 >

    Human Rights Watch’s world report 2017, covering events in 2016 (HRW’s 2017 report) noted that ‘Security forces also continued to target Christian converts of Muslim heritage, as well as members of the “house church” movement who gather to worship in private homes.’[77]

    [77] Human Rights Watch, ‘World Report 2017’, 12 January 2017, >

    The UN Special Rapporteur on the situation of human rights in the Islamic Republic of Iran, Asma Jahangir, reported to the UN Human Rights Council (HRC) in March 2017,[78] that “targeting and harsh treatment” of religious minorities including Christian converts from Islam whose faiths are considered as “deviant” by the authorities and parts of the clerus. The situation of these religious groups was described as follows:

    These groups continue to face arbitrary arrest, harassment and detention, and are often accused of national security crimes such as “acting against the national security” or “propaganda against the state.” Under Iranian law, individuals, including Christians of Muslim backgrounds, can be prosecuted for the crime of apostasy although the crime is not specifically codified as a crime in the Islamic Penal Code. The Special Rapporteur notes that apostasy laws clearly contravene Iran’s obligation to protect the right to freedom of religion or belief.

    [78] UN Human Rights Council, Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran, 6 March 2017, >

    The Australian Institute of International Affairs published an Iran Study Tour Report in April 2018,[79] which stated that under the 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.

    [79]  The Australian Institute of International Affairs published an Iran Study Tour Report in April 2018https://>

    In August 2017, when asked by the UK Home Office what attracts the authorities to new converts and what kind of activities could therefore lead to ill-treatment, Open Doors and Article 18 suggested the following would (although these can depend on the city):[80]

    [80] United Kingdom: Home Office, Country Policy and Information Note Iran: Christians and Christian converts , March 2018, Version 4.0, available at: kind of gathering

    (b)Sharing the gospel

    (c)Being in possession of more than one Bible (usually one Bible will be tolerated by the authorities, but not always)

    (d)Possession of a library of Christian literature

    (e)Holding discipleship classes

    (f)Studying theology

    (g)Contact with Christian organisations

    (h)Attending Christian conferences and seminars inside the country or abroad where teaching takes place

    (i)Hosting or, in some cases, even attending house churches.

  5. Therefore, having accepted that the applicant has genuinely converted from Islam to Christianity and that he continues to actively practise his Christian faith in Australia, the Tribunal accepts that he would seek to continue to practise his Christian faith should he return to Iran.

  6. If the applicant on return to Iran speaks to others about Christianity or expresses his belief with others, then the country information indicates he could be at risk. The Tribunal notes (and accepts) the applicant's evidence at hearing that he feels compelled to share the 'news' and does so with friends in Australia, as well as via social media, indicating his desire to share his faith.

  7. Taking into account these considerations, the Tribunal accepts that if the applicant returns to Iran and attempts to practise his Christian faith (including and in particular based on country information, sharing his faith), there is a real risk that he will come to the adverse attention of the Iranian authorities and be perceived as an apostate. The weight of country information before the Tribunal indicates that there is a real chance that continuing to practise his Christianity would draw attention to his conversion from Islam and expose him to significant harm. Accordingly, the Tribunal is satisfied that the applicant faces a real chance of serious harm from the authorities on return to Iran. The Tribunal is satisfied that the harm involves severe physical and/or mental pain or suffering, which is intentionally inflicted on the applicant. The Tribunal is satisfied that the harm also involves an act that causes, and is intended to cause, extreme humiliation. The Tribunal is therefore satisfied that the treatment that the applicant will be subjected to amounts serious harm as defined in the Act.

  8. Given the Iranian government is responsible for the harm that the applicant fears the Tribunal is not satisfied that the applicant could obtain effective protection for the harm he would suffer.

  9. The Tribunal is therefore satisfied that the applicant is a refugee as defined in Article 1 of the Convention and as such is a person in respect of whom Australia has protection obligations pursuant to s.36(2)(a) of the Act.

Complimentary Protection

  1. The applicant claims that, without conceding in any way his claims under the Refugee Convention, that the same factual matrix may invoke Australia’s protection obligations under complementary protection criteria pursuant to s.36(2)(aa) of the Act. Accordingly, the Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. That is, the Tribunal has considered if the applicant faces a real risk of significant harm upon his return to Iran arising from his fear of having been detained and because of his rejection of Islam and conversion to Christianity.

  2. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear'. The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm of any kind.

  3. For the reasons as expressed in considering the applicant’s claim under the Refugee Convention, the Tribunal accepts that there is a real risk he will suffer serious harm in the event that he is returned to Iran by reason of his rejection of Islam and his conversion to Christianity.

  4. Given the Iranian government is responsible for the harm that the applicant fears, the Tribunal is not satisfied that the applicant could obtain effective protection from the  authorities, remove the real risk of significant harm, or that there is any part of Iran where he would not be a real risk that he will suffer significant harm, as required by s.36(2B)(a) and s.36(2B)(b) of the Act.

  5. In addition, the Tribunal is satisfied that the significant harm the applicant faces is one faced by him personally and not faced by the population of the country generally, as required by s.36(2B)(c) of the Act.

  6. Therefore, the Tribunal finds that the applicant is not precluded by the operation of s.36(2B)(a), (b) and (c) of the Act.

100.The Tribunal is satisfied that the applicant does not have a legally enforceable right to enter and reside in any country other than his country of nationality, Iran. The Tribunal finds that the applicant is not excluded from Australia's protection by s.36(3) of the Act.

101.In all of the circumstances of this case, the Tribunal finds that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that he will suffer significant harm from the Iranian authorities as a Christian convert from Islam.

102.For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and that he he satisfies the criterion set out in s.36(2)(aa).

CONCLUSIONS

103.For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations pursuant to Article 1 of the Convention. Therefore the applicant does satisfy the criterion set out in s.36(2)(a).

104.Having concluded that the applicant does meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa) and is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

DECISION

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

Jason Pennell
Senior Member



Key Legal Topics

Areas of Law

  • Immigration

  • Administrative Law

Legal Concepts

  • Judicial Review

  • Procedural Fairness

  • Statutory Construction

  • Remedies

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22
MZWMF v Minister for Immigration and Multicultural Affairs [2006] FCA 780
Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20