1716903 (Refugee)

1716903 (Refugee) [2021] AATA 2711 (30 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1716903
COUNTRY OF REFERENCE:                   Iran
MEMBER:L. Symons
DATE:30 June 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 30 June 2021 at 5:20pm
CATCHWORDS
REFUGEE – protection visa – Iran –religion – social group – follower of Dr Mohammad Ali Taheri and Erfan Halgheh – participated in protests – arrest – threats – no state protection – unable to relocate – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 July 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Iran, first arrived in Australia [in] February 2010 as the holder of a subclass 676 Visitor visa that was valid until [February] 2011. She departed Australia [in] February 2011. She returned to Australia [in] April 2012 as the holder of a subclass 676 Visitor visa that was valid until [October] 2012. She departed Australia [in] October 2012. She returned to Australia [in] November 2012 as the holder of a subclass 676 Visitor visa that was valid until [May] 2013. She departed Australia [in] May 2013. She returned to Australia [in] December 2015 as the holder of a subclass 600 Visitor visa that was valid until [June] 2016. On 28 June 2016, she was granted a Bridging visa in association with her application for a Protection visa.
The applicant applied to the Department of Immigration for a Protection visa on 23 June 2016. The delegate refused to grant the visa on the basis that she was not a person in respect of whom Australia owes any protection obligations. On 3 August 2017, she applied to the Tribunal for a review of that decision.
The Tribunal listed this case for hearing on 26 March 2021 at 11.30am. On 25 February 2021, the Tribunal received a request from the applicant’s new migration agent to reschedule the proposed hearing on the basis that he had recently received instructions in this case. The Tribunal granted his request and rescheduled the hearing on 13 April 2021.
The applicant appeared before the Tribunal on 13 April 2021 to give evidence and present arguments. The Tribunal also heard evidence from her daughter, [Daughter A], and a friend, [Ms B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi and English languages.
The applicant was represented in relation to the review by her migration [agent], who attended the hearing.
The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.
CRITERIA FOR A PROTECTION VISA
The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
The applicant’s claims in her application for a Protection visa are summarised as follows:
·She was born on [date] and is an Iranian citizen.
·She became interested in Dr Mohammad Ali Taheri and his school of thought “Erfan Halgheh” (EH) and started attending classes in 2011. Her interest turned to love and dedication to Dr Taheri’s teachings and EH principles.
·She had many friends who were passionate about exploring EH further but there were no official classes to attend because the government started cracking down on supporters of EH and followers of Dr Taheri.
·She attended a couple of protests against the arrest of Dr Taheri before she attended the protest in front of Elvin Prison in 2014. Later one of her relatives contacted her by telephone and informed her that she had seen her at the protest which was shown on a TV channel outside Iran.
·About a year later in 2015 she was informed by friends that Dr Taheri’s supporters had decided to peacefully protest against Dr Taheri’s execution. She and hundreds of others attended the sit in at the Holy Shrine of Hazrate Masouimeh in Ghom. The Police and plain clothes agents raided the protest and arrested many people including her. She was taken blindfolded to a cell and freed the following day after she wrote an undertaking that she would not attend any protests again.
·She tried to stay away from her friends and Dr Taheri’s supporters because her children were worried. When she went out, she was followed. “Strange phone calls” were made to her place. She was afraid to participate in any other protests and stayed home and cried all the time. Many of her friends who supported EH had been arrested.
·One day two of her friends went to her house. They were supporters of Dr Taheri and were planning a protest in the month of Mehr 1394 (October 2015). After they left, her home was raided by unknown agents in plain clothes. They took all her books, family photographs and other personal belongings. They put her into a car and blindfolded her. She was taken to Velenjak which is north of Tehran.
·A man gave her some paper and asked her to write down the names of the people she knows and what she talked about with her friends. She wrote what she knew. They threatened her that if she was arrested again, she would be put in gaol for a long time. She was then freed.
·She is unable to seek State protection as the Iranian regime is imposing threats on them. There is no point in relocating and she is too old to do so.
·If she returns to Iran she will be arrested and put in gaol. Her friends may still be in gaol. Her children are worried and do not allow her to return to Iran.
The applicant provided the Department with copies of her Iranian passports issued [in] 2010 and [2014], Iranian Identity Card issued on [date], a Cosmic Consciousness Course Questionnaire and Enrolment (First Semester) dated [April] 2011 and a Completion Certificate dated [March] 2012.
On 21 June 2016, the applicant’s former migration agent provided the Department with written submissions.
The applicant attended an interview with the Department on 12 May 2017. She was accompanied by her former migration agent and assisted by a Farsi interpreter. During the interview, she re-iterated and expanded on her written claims. The delegate found that she is not a person in respect of whom Australia has protection obligations and refused her application for a Protection visa on 6 July 2017.
The applicant provided the Tribunal with copies of the Department’s Decision Record dated 6 July 2017, her Iranian passport dated [2014], a Statutory Declaration by her dated 1 April 2021, a Statutory Declaration dated 28 March 2021 from [Daughter A], the bio data page of the Australian passport of [Daughter A] issued [in] 2013, a Certificate of Appointment of [Daughter A] as a Justice of the Peace [in] May 2015, an undated Statutory Declaration from [Ms B], a Certificate of Registration as [an occupation] dated [January] 2006 in the name of [Ms B], a Certificate of Recognition and Appreciation for 15 years of service dated July 2020 presented to [Ms B] by [a named organisation], a Certificate of Citizenship dated [June] 2004 from the [Country 1] government, the bio data page of the [Country 1] passport of [Ms B] issued [in] 2004, an Australian Citizenship Certificate dated [October] 2011 issued to [Ms B], the bio data page of the Australian passport of [Ms B] issued [in] 2013, the NSW Driver Licence for [Ms B], a Statutory Declaration dated 18 March 2021 from [Mr C], the bio data page of the Australian passport of [Mr C] issued [in] 2021, a Statutory Declaration dated 26 March 2021 from [Mr D], the bio data page of the Australian passport of [Mr D] issued [in] 2012, a Statutory Declaration dated 26 March 2021 from [Ms E], the bio data page of the Australian passport of [Ms E], a Statutory Declaration dated 24 March 2021 from [Ms F], the bio data page of the Australian passport of [Ms F] issued [in] 2019, Enrolment in Term 1 of the Interuniversal Consciousness Course dated [April] 2011 and a Certificate of Completion indicating that her connection “Guard Layer” was granted to her [in] March 2012.
In her Statutory Declaration dated 1 April 2021, the applicant reiterated the claims made in her Statutory Declaration dated 19 June 2016 filed with her application for a Protection visa. She stated that her former migration agent did not inform her that her visa application had been refused until August (2017) when he lodged an application for review with the Tribunal on her behalf. She stated that in July 2017 she found out through a friend of her daughter, [Ms B], that EH classes were available in [Australia]. Since then she has been learning and practising EH with [Mr C], [name deleted] and [Ms B]. These Masters are well known active practitioners within the practice.
The applicant stated that she started EH classes in July 2017 at the home of [Mr C]. She has completed Terms 1 to 8 (each term being 6 weeks long) and two Master classes. She received four Certificates upon completing these courses. These Certificates put her in a risky position if confiscated by the authorities upon forced return to Iran. The authorities could use the Certificates as evidence of her EH affiliation to prosecute and sentence her on charges of apostacy and supporting a philosophy that has been banned by the authorities and is offensive to the religious sensibilities of the conservation Islamic regime.
The applicant stated that the only reason she completed four out of ten courses in EH in Iran is because she came to the adverse attention of the Iranian authorities and could not complete the courses without the risk of arrest, detention and harm. She stated that she has personally experienced the miracle or the effectiveness of Faradarmani (healing through spiritual practices) in quitting her nicotine addiction and in [post] operation recovery.
The applicant stated that the only reason she stated that her religion is Shia Muslim in her application for a Protection visa is because, from a legal point of view, she is still considered to be a Shia Muslim. She stated that it is the faith ascribed to her as it is her parents’ faith but she has not and does not practise it. She has no faith in Islam much less in the Shia sect of Islam. She does not consider her spiritual practices and beliefs as a follower of EH to be a religion. Dr Taheri has never branded his ideas and philosophy as a religion. Her answer in relation to religion is that she is a Muslim by birth but not by belief. EH has no opposition to Islam or the Shia sect. It is Islamic fundamentalists in Iran that oppose EH.
The applicant stated that she arrived (in Australia) [in] December 2015 and retained her former migration agent on 7 January 2016. The delay in lodging her application for a Protection visa occurred because her former migration agent told her and her daughter that they had to wait until he had time to see them.
The applicant stated that she has a genuine fear of harm because of her adherence to Dr Taheri’s school of thought and philosophy which is opposed and suppressed by the Iranian authorities. She will not have the freedom of thought nor the liberty to practice her spirituality in Iran as she does in Australia. She provides support to EH believers who seek her assistance in relation to different issues. She will not be able to practise her spirituality without fear of harm and harassment in Iran.
The applicant’s daughter, [Daughter A], provided a Statutory Declaration dated 28 March 2021. She stated that she has been privy to all the problems her mother faced in Iran in relation to her practise of EH. Her mother genuinely fears returning to Iran because of her adherence to EH. She will attend the hearing and is prepared to answer any questions.
The applicant’s daughter’s friend, [Ms B], provided an undated Statutory Declaration. She stated that she has been a follower of EH since September 2016, has been a Master for almost a year and holds private classes with her students. She has attended the EH course conducted by Mr Azmikhah in his home. Two of her sisters practise EH secretly in Iran. She has been friends with [Daughter A] for over 10 years and met the applicant in mid-2017. They bonded quickly as they both follow the same spiritual path being EH.
[Ms B] stated that the applicant told her that she had undertaken EH classes in Iran, had her fair share of issues with the authorities as a result of her support of EH, had been arrested and detained because of her active support of EH. The applicant thought there were no EH courses in Australia and asked her how she followed and practised EH. She informed her that there are courses in [Australia] run by [Mr G]. The applicant expressed an interest in attending the classes and she offered to give her a lift to and from the classes. The applicant is authentic and genuine in her adherence of EH and has earned her Mastery position through spiritual and academic endeavours. She will attend the hearing to vouch for her EH fellowship.
The applicant’s EH teacher, [Mr C], provided a Statutory Declaration dated 18 March 2021. He has been a follower of EH since 2006 and a Master and trained student since 2008. He is currently completing advanced courses online under the tutelage of Dr Taheri of Taheri Academy. He has known the applicant since 13 July 2017 when she was brought to his EH classes and introduced to him by [Ms B]. At their first meeting, she informed him of her prior active interest in EH in Iran and that she was not aware that EH classes were held in [Australia] until she met [Ms B].
[Mr C] stated that the applicant started attending the courses he tutored on a regular basis for 38 months. She completed all 10 terms as well as all 10 complementary Mastery courses which ended on 24 September 2020. He has witnessed a genuine interest in her to follow the path of EH which she has diligently pursued for over 3 years. He recommends her as an authentic follower of EH. She will not be able to freely practice her EH activities in Iran without fear of harm at the hands of the Iranian authorities.
[Mr D] provided a Statutory Declaration dated 26 March 2021. He stated that he has been a follower of EH for 11 years. He has attended the EH course conducted by [Mr G] and [name deleted]. He has known the applicant since her daughter brought her to the Iranian community on different cultural occasions. He attended the EH course conducted by [Mr G] with her. He noticed that she was very focussed, passionate and serious at the EH course.
[Mr D] stated that the applicant disclosed to him that she had undertaken EH classes in Iran and had her fair share of issues with the authorities as a result of her support of EH. She told him she had been arrested and detained because of her active support of EH. To the best of his knowledge she is authentic and genuine in her adherence of EH and has earned her Mastery position through spiritual and academic endeavours.
[Ms E] provided a Statutory Declaration dated 26 March 2021. She stated that she has known the applicant since October 2010 and she introduced her to EH in July 2017. Since then she has sought the applicant’s advice and treatment to help her and her son cope with the consuming anxiety of her son’s partner’s debilitating [medical condition] and multiple surgeries. The applicant’s Faradarmani methods have also been effective in her spiritual development outside the monolithic religions like Islam that had been forced upon her while she lived in Iran. She continues visiting the applicant at her home every week and by telephone for spiritual guidance during her hard times. She could not have freely and without fear of harm accessed this treatment if she lived in Iran due to the repressive attitude of the Iranian regime against EH practitioners.
[Ms F] provided a Statutory Declaration dated 24 March 2021. She stated that she has known the applicant since August 2017 and she introduced her to EH in October 2017. Since then she has sought the applicant’s advice and treatment to help her overcome a sleep disorder. Her Faradarmani methods have been effective in helping her overcome her problem. She continues to visit her every 2 weeks for spiritual guidance. She could not have freely and without fear of harm accessed this treatment had she lived in Iran due to the repressive attitude of the Iranian regime against EH practitioners.
Receiving country

The applicant claims to be a citizen of Iran and has provided a copy of her Iranian passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that she is a citizen of Iran. The Tribunal finds that Iran is the receiving country for the purpose of assessing her claims for protection under the refugee criterion and the complementary protection criterion.
Third country protection
The Tribunal finds that the applicant is outside her country of nationality. There is no evidence before the Tribunal to suggest that she has the right to enter and reside in any country other than her country of nationality.
Assessment of claims
During the hearing, the Tribunal discussed with the applicant her background, her family, how she became an EH practitioner, how she practised EH in Iran, what EH related activities she was involved in in Iran, her interactions with the Iranian authorities, her overseas travel, her practise of EH in Australia and why she fears returning to Iran. The Tribunal found her to generally be a credible witness.
The Tribunal discussed with the applicant the evidence she gave during her interview with the Department about the two friends who visited her prior to the raid on her house by the Iranian authorities. She responded that they are older. She suspects that they did not get into trouble with the Iranian authorities because they co-operated with them.
The Tribunal discussed with the applicant the fact that she had travelled to [Country 2] and Australia a number of times to visit her son and daughter respectively and voluntarily returned to Iran. She responded that she went on these trips prior to attending the demonstrations. Once the Iranian authorities raided her home, she became very concerned. She fears that if she returns to Iran her life would be in danger. These people do not have mercy for anyone.
The Tribunal also heard oral evidence from the applicant’s daughter, [Daughter A]. She stated that they were concerned that the Iranian government was listening to telephone conversations between her and her mother. Her cousin, who lives in Iran, told her that her mother was in danger, she lived alone in a unit, they could not always be there to check on her and it was better for her to come to Australia. She spoke to her brother, who lives in [Country 2], and then to her mother about coming to Australia.
[Daughter A] stated that in Iran if anyone wants to be independent, be involved in activities and be healthy of mind and heart, they (the Iranian authorities) harm them. Her mother did not do anything wrong or harm anyone. She is [age] years old and they harmed her. She is proud of what her mother has done since coming to Australia. She has got a Driver Licence, lost 12 kgs and quit smoking after 40 or 45 years. She is no longer fearful of doing things and is able to practise EH freely and with peace, At her age and even with the language barrier, she is full of love and helps everyone.
[Daughter A] stated that a friend’s mother is in the early stages of Alzheimer’s disease. She lives a block away from her mother. Her friend asked her mother to stay there as she is able to keep his/her mother calm. In Australia, her mother can grow, be safe and practise what she believes in. She cannot do that in Iran.
The Tribunal heard oral evidence from the applicant’s daughter’s friend, [Ms B], who gave evidence that was consistent with her evidence in her undated Statutory Declaration. She stated that she has been friends with the applicant for 4 years, knows that she had problems in Iran and believes her. She knows that people who practise EH in Iran get into trouble. She has two sisters in Iran who are EH practitioners. They have to practise their beliefs in secret and be very careful. If the Iranian government finds out, they will be in trouble. She has lots of friends in Iran who have been imprisoned and tortured and the government causes trouble for their family members as well.
[Ms B] stated that her Master (Dr Taheri) had been in gaol for 9 years. He was tortured. It was a miracle he got out. His beliefs are about peace and love but the Iranian government is against it. Whoever follows the EH training can get into trouble. Her Master in Australia ([Mr C]) was also imprisoned. She is a teacher now and the training is ongoing. By getting to know yourself, you get closer to God. Unconditional love has helped her a lot. She is able to stay calm and help people. EH has dramatically changed her life. It happens not just to her but to anyone who does the training. She believes in God and in her Master (Dr Taheri). Thank God he is now in Canada. The Iranian authorities wanted to execute him twice in Iran. It was a miracle.
[Ms B] stated that she knows Iran and it is not a fair country. In the name of Islam, they do a lot of things to people especially to women. Women are under a lot of pressure. She has an elderly mother in Iran and when she goes to Iran she is scared. If they know something, they put you in gaol. She did her EH training in Australia and does not talk about her beliefs when she is in Iran. It is not a safe place for women.
The Tribunal has had regard to the written submissions dated 21 June 2016 from the applicant’s former migration agent to the Department.
Country information
The Immigration and Refugee Board of Canada, Research Directorate (Response IRN 200459) states:
Situation and Treatment of Practitioners of Erfan Keyhani
2.1 Treatment by Society
As cited in the Danish report, the former member of Erfan Keyhani's Coordination Committee noted that Erfan Keyhani is "generally a well-reputed movement" in Iranian society and that, aside from certain small, conservative religious groups who have a negative perception of Erfan Keyhani, "there is no social discrimination" against Erfan Keyhani practitioners (Denmark May 2019, 18). In correspondence with the Research Directorate, a representative of IEHCF indicated that Erfan Keyhani practitioners can be categorized into two groups: on one hand, followers and practitioners, and on the other, teachers and tutors (IEHCF 8 Feb. 2021). The same source stated that as long as followers and practitioners "comply" with authorities and "do not defy them" after they are caught attending classes or practicing Erfan Keyhani, they do not face social discrimination, employment discrimination, or violence (IEHCF 8 Feb. 2021). However, the same source indicated that teachers and tutors and their families "are heavily discriminated against in the areas of employment, education, and many other social aspects of their lives" (IEHCF 8 Feb. 2021). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
2.2 Treatment by Authorities
The representative of IEHCF noted that in the case of followers and practitioners, "there is an ongoing government campaign to intimidate and deter members of the public from attending classes and doing the practices" (IEHCF 8 Feb. 2021). As cited in the Danish report, the former member of Erfan Keyhani's Coordination Committee indicated that the Iranian authorities want Erfan Keyhani followers to stop spreading "alternative interpretations" of the Twelver version of Shia Islam and instead "promote the regime's understanding of Shia Islam through their courses" (Denmark May 2019, 17). The HRWF Int'l report notes that "the Iranian government has sought to actively repress the spread of Erfan-e Halghe, claiming that Taheri is 'acting against national security' and guilty of 'corruption on earth'" (HRWF Int'l 1 Mar. 2018, 33). The US Department of State's International Religious Freedom Report for 2019 indicates that according to NGO reports, Erfan Keyhani followers "continued to be subject to frequent arrests, detentions, harassment, and surveillance" (US 10 June 2020, 21). In correspondence with the Research Directorate, a representative of the Human Rights Activists News Agency (HRANA) [3] stated that there "have been multiple reports of arrest[s] and prison terms given to Erfan Halgheh practitioners" (HRANA 2 Feb. 2021). The same source indicated that "there has been a significant decline in arrest[s] and harassment of Erfan Halgheh [m]embers" since Taheri left Iran [4] (HRANA 2 Feb. 2021). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
The IEHCF representative indicated that teachers and tutors "suffer the most social pressure due to government smear campaigns intended to deter the public from participating in Erfan Halqeh" (IEHCF 8 Feb. 2021). The same source stated that "[m]any active" Erfan Keyhani teachers and practitioners have been sentenced to "long" terms of imprisonment and "heavy" fines (IEHCF 8 Feb. 2021). The IEHCF representative also noted that teachers of Erfan Keyhani are "heavily under pressure [from] the police and judiciary systems" and face interrogation under torture if they are caught (IEHCF 8 Feb. 2021). According to the former member of Erfan Keyhani's Coordination Committee, "[i]t is particularly individuals who have been very active" within Erfan Keyhani, including course instructors, who are "targeted" by Iranian authorities (Denmark May 2019, 17). The same source states that "[g]enerally, the level of persecution of [Erfan Keyhani] followers depends on [their] level of activity and how open and visible the activity is," adding that Erfan Keyhani practitioners who participated in public protests against Taheri's arrest have been "subjected to arrest and harassment" (Denmark May 2019, 17). However, the former member of Erfan Keyhani's Coordination Committee noted that in certain instances, "low-profil[e]" individuals, such as Erfan Keyhani course attendees, have been "arbitrarily arrested or harassed" by authorities (Denmark May 2019, 17).
According to Agence France-Presse (AFP), Taheri was arrested for the first time in 2010 (AFP 23 Apr. 2019). The same source reports that he was arrested again in May 2011 and charged with "'corruption on earth' – one of the gravest charges in the Islamic [R]epublic" (AFP 23 Apr. 2019). The HRWF Int'l report indicates that in October 2011 Taheri was convicted of "'insulting Islamic sanctities'" and was sentenced to five years in prison (HRWF Int'l 1 Mar. 2018, 34). Sources report that Taheri was sentenced to death in 2015 and 2017, but both death sentences were overturned (AFP 23 Apr. 2019; Reuters 18 Aug. 2018). According to Reuters, Taheri's second death sentence was overturned in 2018 and replaced with a five-year prison sentence (Reuters 18 Aug. 2018). Sources report that Taheri was released in April 2019 after serving almost eight years in prison (AFP 23 Apr. 2019; US 10 June 2020, 21).
The HRWF Int'l report states that Erfan Keyhani followers have been arrested at "different times and places" on charges including "insulting the sacred, corruption of earth, blasphemy, obtaining illicit wealth and interference in medical affairs" and have received sentences ranging from two to five years in prison (HRWF Int'l 1 Mar. 2018, 35). The US International Religious Freedom Report for 2019 indicates that according to HRANA, in February 2019 authorities arrested an Erfan Keyhani practitioner and sentenced them to five years in prison for "'acting against national security'" (US 10 June 2020, 21). Sources report that an Erfan Keyhani practitioner was sentenced to 13 years in prison and 74 lashes (HRANA 2 Feb. 2021; BBC 5 Apr. 2020). BBC Monitoring's March 2020 monthly human rights report on Iran indicates that the Erfan Keyhani practitioner was sentenced for charges including "'propaganda' against the establishment" (BBC 5 Apr. 2020). The HRANA representative indicated that one of the charges was acting "'against national security through the administration of the [so-called] illegal Erfan Halgheh channel'" (HRANA 2 Feb. 2021, square brackets in original).[1]
Notes
[1] Human Rights Without Frontiers International (HRWF Int'l) is "a non-profit association that seeks to shape European and international policy in ways that strengthen democracy, uphold the rule of law and protect human rights globally" (HRWF Int'l n.d.).
[2] The interviewee was active on Erfan Keyhani's Coordination Committee from 2007 until 2010, at which point Mohammad Ali Taheri was arrested and the committee member's house was raided (Denmark May 2019, 13).
[3] Human Rights Activists News Agency (HRANA) is a non-profit news organization established by a group of Iranian human rights activists that reports "daily news of human rights violations in Iran" (HRANA n.d.).
[4] The US Commission on International Religious Freedom (USCIRF) reports that Taheri arrived in Toronto on 8 March 2020 after being granted asylum by Canada (US 16 Apr. 2020).
[1] IRN200459: Iran: Situation and treatment of Erfan Keyhani [Erfan-e Keyhani, Erfan-e Halgheh, Erfan Halgheh, Erfan Halqeh, Erfan-e Halghe] practitioners and their family members by society and the authorities (2019–March 2021), Immigration and Refugee Board of Canada, Research Directorate, 2 March 2021.
The US International Religious Freedom Report on Iran for 2020 reports:
In a January 28 report to the UN Human Rights Council, the special rapporteur on the situation of human rights in the Islamic Republic of Iran said he was “deeply concerned” about a bill adopted by the Committee for Judicial and Legal Affairs of parliament in 2019 on “misguided sects” that would criminalize membership in religious groups that the government considered to be “misguided.” The special rapporteur stated, “According to a member of the Committee, the bill was proposed because of concerns about sects that have no jurisprudential or religious status but attribute their belief to Islam and about the cults that have emerged recently. Members of nonrecognized religious minorities have expressed concern that passage of the bill would make it a criminal offence to follow certain religions and could be used to increase discrimination against them.”
In May, parliament passed the legislation on “misguided sects” in the form of amendments to articles 499 and 500 of the Islamic Penal Code. The legislation stated that those found guilty of “deviant psychological manipulation” or “propaganda contrary to Islam” could be labeled as members of a “sect” and punished with imprisonment, flogging, fines, or the death penalty. A human rights lawyer living in Europe stated, “The law should protect citizens, including Christian converts and Baha’is, against the government, but in Iran the law has become a tool to justify the government’s violent treatment of converts and other unrecognized minorities.” The NGO Article 18 reported that the Guardian Council, which must approve all parliamentary bills, returned the bill to parliament in July, seeking eight clarifications, the majority of which related to “ambiguous” language. An Article 18 official cautioned that the legislation would still likely to return in a “different, perhaps more minimal, form.” ARTICLE 19, another human rights NGO based in the UK, reported that in November, it was believed that parliament addressed issues raised by the Guardian Council, but the specific changes were not publicly released. The NGO said the proposed amendments, regardless of any changes, would “further erode the rights to freedom of expression and freedom of religion and belief.”[2]
Other considerations
[2] US Department of State, 2020 Report on International Religious Freedom: Iran, 12 May 2021. (Iran - United States Department of State)
The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility.The Tribunal has also had regard to the DFAT Country Information Report on Iran and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.
Findings
Having considered all of the applicant’s claims, all the evidence and the submissions, the Tribunal finds that the applicant and her witnesses are credible witnesses.
The Tribunal accepts that the applicant was born on [date] in Iran. The Tribunal accepts that she was married and has two children of her marriage; a daughter and a son. The Tribunal accepts that her daughter lives in Australia with her family and her son lives in [Country 2]. The Tribunal accepts that she was widowed [in] February 2006.
The Tribunal accepts that as a young girl the applicant was interested in Baha’ism under the influence of the wife of one of her uncles. The Tribunal accepts that in April 2011 her sister-in-law[introduced] her to EH. The Tribunal accepts that she thereafter started attending EH classes at the homes of various followers. The Tribunal accepts that she completed four terms of the course in Iran. The Tribunal accepts that in November 2014 she and other EH followers attended a demonstration outside Evin Prison to protest against the arrest and imprisonment of Dr Taheri (the founder of EH). The Tribunal accepts that the Iranian authorities dispersed them and cautioned them not to participate in demonstrations.
The Tribunal accepts that in August 2015 the applicant attended a demonstration at the Holy Shrine of Hazrate Masoumeh in Ghom to protest against the decree to execute Dr Taheri. The Tribunal accepts that she and others were arrested, taken to a detention centre and kept there overnight. The Tribunal accepts that she was released the following day after she signed an undertaking that she would not participate in anymore protests. The Tribunal accepts that she was thereafter under surveillance and received “strange” telephone calls. The Tribunal accepts that her children were worried about her so she tried to stay away from her friends who were supporters of Dr Taheri. The Tribunal accepts that many of her friends who were EH followers had been arrested and she did not attend any further protests as she was afraid to do so.
The Tribunal accepts that two of her friends who were EH practitioners visited her in October 2015 and encouraged her to join them in further protests. The Tribunal accepts that after they left, her home was raided by the Iranian authorities who confiscated her books, family photographs and personal belongings such as her digital camera. The Tribunal accepts that she was taken somewhere in Velenjak, north of Tehran, where she was told to write down the names of the EH practitioners and what she and her friends had talked about. The Tribunal accepts that she was threatened that if she was arrested again, she would go to gaol for a long time and was then released.
The Tribunal accepts that the applicant spoke to her daughter and arrangements were made to apply for a visa so she could travel to Australia. The Tribunal accepts that she came to Australia [in] December 2015. The Tribunal accepts that her daughter contacted her former migration agent and retained him on 7 January 2016. The Tribunal accepts that the delay in applying for the Protection visa was caused by her former migration agent.
The Tribunal accepts that in early July 2017 the applicant found out from [Ms B] that EH classes are conducted in [Australia] and thereafter started attending classes, conducted by [Mr C] in his home, [in] July 2017. The Tribunal accepts that she has completed 10 terms as well as all 10 complementary Mastery courses which ended on 24 September 2020. The Tribunal accepts that she is now a Master and practises Faradamani on herself and others. The Tribunal accepts that she is a genuine EH practitioner and will continue to practise EH if she returns to Iran now or in the foreseeable future.
The Tribunal accepts that the applicant has a subjective fear that she is at risk of serious harm or significant harm if she returns to Iran because she is an EH practitioner and follower of Dr Taheri. The Tribunal notes that Dr Taheri does not advocate that EH is a religion but rather a philosophy or a way of life. However, the country information indicates that the Iranian authorities consider EH to be a religious practise or sect.

The Tribunal has considered the country information referred to above and other open source country information. The country information from the Immigration and Refugee Board of Canada (IRB) above refers to “an ongoing government campaign to intimidate and deter members of the public from attending classes and doing the practices", EH followers continuing “to be subject to frequent arrests, detentions, harassment, and surveillance" and “multiple reports of arrest[s] and prison terms given to Erfan Halgheh practitioners".
The Research Response from the IRB also indicates that teachers and tutors "suffer the most social pressure due to government smear campaigns intended to deter the public from participating in Erfan Halqeh" and that "[m]any active" Erfan Keyhani teachers and practitioners have been sentenced to "long" terms of imprisonment and "heavy" fines. It indicates that the level of persecution of [Erfan Keyhani] followers depends on [their] level of activity and how open and visible the activity is," and EH practitioners “who participated in public protests against Taheri's arrest have been "subjected to arrest and harassment".
The US International Religious Freedom Report on Iran for 2020, referred to above, indicates that in May 2019 the Iranian Parliament “passed the legislation on “misguided sects” in the form of amendments to articles 499 and 500 of the Islamic Penal Code. The legislation stated that those found guilty of “deviant psychological manipulation” or “propaganda contrary to Islam” could be labeled as members of a “sect” and punished with imprisonment, flogging, fines, or the death penalty. The Report refers to concerns being expressed that the passing of this amendment could “further erode the rights to freedom of expression and freedom of religion and belief”.
In the applicant’s case, she has participated in two protests against the imprisonment and sentencing of Dr Taheri and was arrested and detained following the second protest. Her evidence is that she was too afraid to participate in any protests after that. She was under surveillance thereafter and was subject to harassment particularly when the Iranian authorities raided her home in October 2015, arrested and detained her, confiscated her books, family photographs and personal belongings like her digital camera, took her to another location where she was required her to disclose the names of other EH practitioners and details of conversations she had with her friends and warned that if she was arrested again she would end up in gaol.
At the time the applicant was in Iran, she was a follower of Dr Taheri and an EH practitioner. Since coming to Australia, she has advanced her spiritual practise both academically and in her practise of Faradarmani. She is now a Master and practises Faradarmani on herself and others and has progressed into the role of a teacher. In view of the above, the Tribunal is of the view that if she returns to Iran, continues her current practise of EH and remains under surveillance by the Iranian authorities, there is a real chance that she will again come to the adverse attention of the Iranian authorities with more serious consequences. The Tribunal finds that there is a real chance of persecution if she returns to Iran now or in the foreseeable future.
Does Australia have protection obligations to the applicant under the refugee criterion?
Having considered all of the applicant's claims, individually and cumulatively, all the evidence, the submissions and in view of the findings above, the Tribunal finds that the applicant fears being persecuted for reason of her religion/membership of a particular social group and that there is a real chance that she would be persecuted, including being subjected to significant physical harassment and ill treatment, for reason of her religion/membership of a particular social group if she returns to Iran now or in the reasonably foreseeable future.
The Tribunal finds that the persecution will be directed at the applicant for the essential and significant reason of her religion/membership of a particular social group, that the persecution involves serious harm to her and that it involves systematic and discriminatory conduct in that it is deliberate or intentional and involves her selective harassment or ill treatment for reason of her religion/membership of a particular social group. Given that the Iranian government is the agent of persecution, the Tribunal finds that the real chance of persecution relates to all areas of Iran and effective protection measures are not available to the applicant in Iran.
The Tribunal is satisfied that the applicant cannot take steps to modify her behaviour so as to avoid a real chance of persecution in Iran as a modification would conflict with a characteristic that is fundamental to her identity or conscience and would require her to alter her religious beliefs or conceal her true religious beliefs or cease to be involved in the practice of her faith. Accordingly, the Tribunal finds that she has a well-founded fear of persecution for reason of her religion/membership of a particular social group in Iran.
The Tribunal finds that the applicant is outside the country of her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail herself of the protection of that country. Therefore, the Tribunal finds that she is a refugee as defined in s.5H(1) of the Act.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
L. Symons
Member

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

[2021] AATA 2711

30 June 2021

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