1802630 (Refugee)

1802630 (Refugee) [2021] AATA 5197 (8 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1802630
COUNTRY OF REFERENCE:                   Iran
MEMBER:Nora Lamont
DATE:8 November 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

Statement made on 08 November 2021 at 1:53pm
CATCHWORDS
REFUGEE – protection visa – Iran – religion – Theist – Christian convert – imputed political opinion – anti-government – harassed after assisting political protestors – race – Faili Kurd – failed asylum seekers – data breach – credibility issues – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 46A, 56, 57, 65, 189, 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 Home Affairs on 1 February 2018 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Iran, applied for the visas on 20 December 2016.
The primary applicant did not appear before the Tribunal as he has dementia and other medical issues. His wife, the secondary applicant appeared before the Tribunal on 28 October 2021 via video link due to COVID 19 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant(s) were represented in relation to their review.
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
Background
The first applicant claims to be a Faili Kurd male born in Baghdad, Iraq. He claims that he travelled to [Country 1] seeking protection between 2000 and 2005, as well as transiting through [other countries] in 2011 before arriving in Australia. He identifies as being a Theist. He claims to speak, read, and write in the Arabic and Farsi languages, and to speak Kurdish.
His family consists of his wife (the second applicant), one daughter and one sister who currently reside in Australia, and a son, [number siblings] who reside in Iran, a brother who resides in [Country 1] and a sister who resides in [Country 2]. He lists his previous employment as working as a [Occupation 1] in Iran before arriving in Australia. He completed up to tertiary education in Iran.
The second applicant claims to be a Faili Kurd female born in Baghdad, Iraq. She claims that she travelled to [Country 1] from 2000 to 2005 seeking protection and transiting through [other countries] before arriving in Australia in 2011. She identifies as being a Shia Muslim. She claims to speak, read, and write in the Arabic and Farsi languages, as well as speak the Kurdish language.
Her family consists of her husband (the first applicant), her daughter and one brother who currently reside in Australia, as well as [number siblings] who reside in Iran, one brother who resides in [Country 3], and one brother who resides in [Country 2]. She lists no previous work history. She completed up to high school level education in Iran.
Country of reference
The applicants provided the Department with a certified copy of their Iranian documents and untranslated national identity cards from Iran on application.
In the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a citizen of Iran and as such his/her protection claims will be assessed against Iran as the country of reference and ‘receiving country’ respectively.
The Tribunal is 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 and, therefore, the Tribunal finds that he is not excluded from Australia's protection obligations under s.36(3).
There are no non-disclosure documents on the applicant’s file.
Migration History
The migration history of the applicants is set out in the Departmental Decision Record and extracted below:[1]
[1] Department Protection Decision Record, p.5.
·[date]/11/2011: Arrival to Australia and detained under s189(1) of the Act.
·06/02/2012: Protection Obligations Evaluation (POE) interview conducted.
·23/03/2012: Negative POE outcome.
·19/06/2012: Independent Protection Assessment (IPA) interview conducted
·07/08/2012: Negative IPA outcome.
·17/01/2013: Department initiated reconsideration of protection claims.
·01/04/2014: Reconsideration of claims result – not met.
·15/01/2015: International Treaties Obligation Assessment (ITOA) commenced.
·06/05/2015: Negative ITOA outcome.
·01/04/2016: s46A bar lifted and applicants invited to lodge an application for a Safe Haven Enterprise Visa (SHEV) or Temporary Protection Visa (TPV).
·03/01/2017: SHEV application lodged.
·20/06/2017: Bridging visa E (BVE) granted.
·29/06/2017: SHEV Interview scheduled. Applicants engaged new legal representation. Further time requested. Interview scheduled for 02/08/2017.
·02/08/2017: SHEV interview did not occur – issue with departmental notification. Rescheduled for 03/10/2017.
·03/10/2017: SHEV interview rescheduled. Postponement requested due to applicants’ medical issues. Medical certificates provided indicating Applicant 1 is likely to have [an operation] next week and is suffering from chest pain. Recommended he stay away from ‘stressful conditions. Applicant 2 is also unfit for interview from 29/09/2017 to 13/10/2017 due to medical issues.
·16/10/2017: Further correspondence with legal representative regarding applicants’ health and ability to be interviewed.
·27/11/2017: The applicants advised that they were unable to proceed with scheduled interview dates due to medical issues. Further information as to when they will be fit for interview in the reasonably foreseeable future had not been provided, therefore the applicants were invited to provide further information and comment under s56 and s57 of the Migration Act 1958.
·26/01/2018: A written response was provided by the authorised recipient on behalf of the applicants.
Claims for Protection
The applicants’ claims for protection are set out and summarised in the Department’s PV Decision record and extracted below:
POE:
Applicant 1 claimed to be a Faili Kurd with Iranian citizenship. He claimed that he was a [Occupation 1] in Iran, however, was educated in [Country 4] as he was not allowed to enrol in university in Iran. He claimed that the Iranian regime discriminated against Faili Kurds and Faili Kurds are unable to express their culture freely. Applicant 1 also claimed that whilst he is a Shia Muslim, he does not share the fundamentalist view of the regime.
Applicant 1 claimed that he, his wife and daughter resided in [Country 1] from approximately 2000 to 2005, whilst they awaited the outcome of their asylum application. He claimed that his family returned to Iran as processing of their application was taking too long. In 2009 Applicant 1 attended a political demonstration. After the demonstration, he provided [assistance] to [a relative], which resulted in the police arresting the applicant. After he was released, the Basij began to threaten him and threw acid on his car. Six months later, the intelligence authorities came to Applicant 1’s house and took his documents and other belongings. He claimed that he was taken for questioning about his involvement in the demonstrations and his reasons for travelling to [Country 1]; however, he was released after a few hours. Applicant 1 claimed that he was detained again in March 2010 and was prevented from [continuing to work as an Occupation 1].
The assessor accepted that whilst the applicants are Faili Kurds, any discrimination faced did not amount to persecution, particularly noting the personal circumstances of Applicant 1, whereby he was able to find profitable employment in his chosen field. The POE assessor found that Applicant 1 was not known by the authorities for [assisting] political demonstrators, nor that he was targeted and questioned by the authorities in relation to this event. The evidence presented was found to be vague and overall was found to lack credibility. It was found that Applicant 1 did not have a profile with the Iranian government and there was no real chance of persecution due to his imputed political opinion or religion.[2]
[2] Department Protection Decision Record, p.6.
PA:
Applicant 1 reiterated his previous protection claims to the IPA, however also put forward new claims for consideration. He stated that he no longer believes in Islam, although he believes in God. Applicant 1 maintained that after briefly attending the political demonstrations in 2009 and [assisting] protesters, he began to receive threats by authorities and [was prevented from working as an Occupation 1]. He claimed that he was arrested, beaten and harassed approximately 10 times due to his participation in protests and because of his return from [Country 1]. Applicant 1 also claimed that he had written articles for a [publication]; however, these articles were never published because of his profile with the regime. The applicants claimed to fear harm as returnees from [Country 1]/Australia as they would be considered to be against the regime and possibly ‘imputed Christians’. It was also claimed the Iranian regime was fearful of educated people.
The IPA assessor found that the applicant was not a credible witness and the misleading information provided to the [Country 1] authorities, i.e. that the applicants were Arabs from Iraq, was a concern and indication of a willingness to mislead authorities for a period of five years. The IPA found that the claimed discrimination due to the applicants’ Faili Kurd race did not amount to persecution. It was accepted that whilst Applicant 1’s [Occupation 1 business] may have been closed; this was likely for other reasons than that claimed. It was not accepted that the applicants were under surveillance since their return from [Country 1] in 2005, nor that Applicant 1 had been interrogated, detained and beaten by the Basij for his brief attendance at the 2009 demonstrations, or for his role in [assisting] protesters.
The IPA accepted that whilst Applicant 1 may have written an article for a [publication], considering the paper was not published, that this would not give him an adverse profile. It was also found that applicants would not be considered as imputed Christians and they did not have a well-founded fear due to Applicant 1’s lack of belief in Islam; being an ‘educated person’ or the applicants being a failed asylum seekers.[3]
[3] Department Protection Decision Record, pp.6-7.
ITOA:
The applicants were found to be affected by the unintentional public release of details of people in immigration detention. This incident is referred to as the ‘data breach’. As part of the ITOA, the applicants put forward a number of protection claims, including a reiteration of their previous protection claims, outlined above. The applicants claimed that the data breach would increase their profile and put them at greater risk of interrogation or violence after authorities identify that his family had sought protection in Australia.
In support of Applicant 1’s claim to have an adverse profile, the applicants provided copies of documents (with English translations) purported to be a court summons issued [in] March 2011 and a court verdict dated [August] 2011. Official English translations were subsequently provided of the documents, which indicated that the court verdict date was in fact [November] 2011 and not [August] 2011. A ‘translation of court document’ letter dated [September] 2014 indicated that Applicant 1 was given a [specified term] suspended sentence in accordance with Islamic Penal Laws.
Applicant 1 also provided photographs of his car, allegedly damaged by authorities prior to his departure. The applicants also submitted a letter from a Counsellor Advocate in relation to Applicant 2’s physical and mental health conditions. It was also claimed that the applicants’ eldest daughter’s claims (found to engage protection obligations in September 2012 on a separate application), were connected to the applicants and should be considered.
The applicants were afforded procedural fairness on any matters considered to be adverse and were provided with an opportunity to provide additional information. The ITOA noted a number of credibility concerns as per the previous assessors’ findings, as well as in relation to the new evidence submitted by the applicants.
The applicants also claimed that since the POE assessment, violence in the region, ‘especially in Syria and Iraq initiated by Sunni extremists,’ had placed Iran on heightened security alert, which would impact his family if they returned to Iran.
The ITOA concluded:
·The applicants would not face a real chance of harm in Iran because of their Faili Kurd ethnicity or for having sought asylum in a western country, nor that would they be imputed as Christians for this reason.
·Applicant 1 did not have an adverse profile or imputed political opinion against the government and the findings of the IPA continued to be valid and effective. The ITOA assessor also noted that given that the applicants departed Iran in October 2011 and that their claims for protection revolve around Applicant 1 being targeted, detained and interrogated by authorities since 2009, it was reasonable to conclude that if he had genuinely been issued with a court summons in March 2011, this evidence would have been mentioned previously.
·It was also noted that no information was submitted as to how Applicant 1 obtained the court verdict of 2014 and with regard to the relevant country of origin information about the issuance procedures of such documents; the applicant’s evidence was not accepted as credible.
·There was no objective evidence to indicate that the applicants would have an adverse profile or be subjected to harm because of the data breach or because of the security situation in the region.
·It was not accepted that the applicants’ distant connection to their daughter’s husband’s family is sufficient for the applicants to be imputed with an anti-government opinion in Iran.[4]
[4] Department Protection Decision Record, pp.7-8.
SHEV:
As part of their SHEV application, lodged with the Department on 3 January 2017, the applicants have reiterated previous protection claims, as well as raising new claims for assessment in the s56 and s57 response provided to the Department, dated 26 January 201815.
Applicant 1:
Applicant 1 has relied on his previous protection claims (summarised above) pertaining to harm from the Basij due to his assistance providing [assistance] to [protesters] in 2009. In the s56 and 57 response, Applicant 1 states the following:
-He has been very unwell, undergoing an operation approximately six weeks ago which has left him in considerable pain, and he is relying on strong medication for pain relief.
-In 2009 Applicant 1 attended a demonstration with members of his extended family, however he left before his family did.
-After the protest he received a phone call stating that [a relative] had asked to see him.
-Applicant 1 called his brother and said they should not go to [Location 1] because they would be identified as protesters by intelligence officers.
-His brother suggested they go to [Location 2] instead. [Deleted].
-There were police officers at [Location 2], and they began to question them. When the officers realised, they were from the same small town, [named], the police officers said they would not report Applicant 1’s [relative]. However, because the officer knew about it, one of them would have to accept charges. Applicant 1’s [other relative] did this.
-After this the trouble started for Applicant 1 including:
oAcid being thrown on his car
oHis house raided and laptop and documents confiscated
oGraffiti appeared on the wall directly outside his house which promised death to those who opposed the regime.
-Applicant 1 then received an invitation asking him to attend court “to answer a few questions”. He states that the invitation was not a “summons” as such and not a formal legal imperative. This is the reason why the applicant did not previously state that he had been summonsed nor that he had been found guilty of anything at the time.
-When he realised, he needed proof of the letter, Applicant 1 asked [a relative] to send it and check the letter box of his home which had been unoccupied since the applicants left Iran. This is when the verdict was found that was allegedly handed down in 2014.
-Applicant 1 also states that he is a Theist who believes in God but no particular religion, including Islam.
-He fears he will be arrested and executed by authorities if returned to Iran because he would be a considered an Apostate for this belief. He states that he cannot modify his behaviour as his actions are a result of his beliefs.
-Applicant 1 fears returning to Iran as there is a verdict with a guilty finding against him. As soon as he returns to Iran the authorities will arrest him.
-He also fears harm because his wife and youngest daughter have become Christians.
Applicant 2:
As per her written statutory declaration included with her SHEV application, Applicant 2 claims the following (summarised):
-She fears harm due to her husband’s issues with Iranian authorities
-She would not be able to survive in prison as she has [Medical Condition 1] and requires [treatment].
In the s56 and s57 response submitted to the Department on 26 January 2018, Applicant 2 states:
-She is unwell and has been suffering from [severe pain] for a long time. Recently the doctors discovered [Medical Condition 2] which is not malignant, however puts pressure on [organ] and causes her pain.
-Applicant 2 suffers from dangerously high blood pressure causing her discomfort.
-The doctors have advised her she requires surgery to [treat Medical Condition 2] and relieve the pain.
-Applicant 2 is now a strong believer in Christianity.
-It became obvious to her that Islam held no comfort and no promise of peace. Those in ISIS were committing atrocities in the name of Islam.
-Through Christianity and the presence of Jesus, Applicant 2 has found peace.
-She went to a Christian Camp held by [Church 1] and has provided a support letter from Reverend [C] with her statement.
-The support letter from Reverend [C] dated 20 November 2017 states:
oReverend [C] has known Applicant 2 and her daughter since July 2017 when they began attending [Church 1], a Farsi-speaking congregation
oApplicant 2 was formerly a strong and committed Muslim, attending mosque often.
oHer daughter [named] had been wanting to explore Christianity for years, however her mother (Applicant 2), would not allow her to as she had an aversion to Christianity.
oAccording to Applicant 2 and her daughter, [Applicant 2]’s husband (Applicant 1) is not a believer in any particular religion and had a strong dislike of Islam.
o[Applicant 2] reports that she became disillusioned with Islam due to learning of the atrocities committed in the name of Islam by ISIS.
oThrough a friend she heard about [Church 1].
oHer experience of Christianity has been very different to what she knew of Islam in Iran.
oShe recently attended [a Church 1] teaching camp which has helped her with her physical and emotional issues.
oShe is not yet ready for baptism; however she has renounced Islam and needs to consolidate her decision and grow in regular worship.
oReverend [C] has no hesitation in commending her as a sincere Christian.
In regard to their overall credibility, both applicants state that there has been a series of unfortunate circumstances that have led to the Department doubting their credibility. The applicants claim their story remains the same, however their story has not been understood, or assumptions have been made without understanding culture and religion.[5]
Summary of Decision Record
[5] Department Protection Decision Record, pp.8-9.

The delegate found the following in relation to the applicants’ claims:
·The applicants are Faili Kurds and nationals of Iran.
·The first applicant does not have an adverse profile with Iranian authorities due to his assistance following the 2009 protests or following his return to Iran after an unsuccessful asylum application in [Country 1] in 2005.
·The first applicant does not believe in Islam.
·The second applicant does not have a genuine interest in Christianity, nor has she converted to the faith.
·The applicants were affected by the data breach.
·The applicants would be returning to Iran as failed asylum seekers from a western country, who have been absent from Iran for a number of years.[6]
[6] Department Protection Decision Record, p.12.
The delegate accepted that the applicants may have experienced some societal discrimination in Iran as Faili Kurds but did not accept that they have previously been tortured or physically harmed by the Iranian authorities as the result of their Kurdish ethnicity. The delegate also noted that the applicants had been able to subsist in Iran as a married couple until the day of their departure to Australia and although country information supports that Faili Kurds suffer discrimination in Iran, the delegate did not accept that this discrimination as described amounts to persecution in its isolation. The delegate found that there was no real chance that the applicants will incur serious harm in Iran as a result of their Faili Kurd ethnicity.
In relation to the applicants’ claims to fear harm in relation to apostasy, the delegate noted that the first applicant was no longer a believer of Islam and does not practice his faith. The applicant had not claimed that he would engage in proselytization or publicly proclaiming that he is a non-practicing Muslim or Theist. The delegate also found that that the applicant was not of interest to the Iranian authorities when he left Iran, and held the same views about Islam when he was still in Iran, and therefore the delegate was not satisfied that the applicant would be required to modify his behaviour in any way as to avoid a real chance of prosecution in Iran. The delegate found that the applicant did not have a well-founded fear of persecution for this reason. As noted above, the delegate did not accept the second applicant’s claim that she had any interest in Christianity, and therefore did not accept that she had a well-founded fear of persecution for this reason.
The delegate noted that the applicants departed Iran lawfully on their own passports and were of no particular interest to the Iranian authorities when departing Iran. The delegate stated that they had no information before them which indicates that the applicant had been involved in any activities since arriving in Australia that would have come to the attention of the Iranian authorities. The delegate accepted that, on the basis of country information, persons considered opponents to the current Iranian regime or those who have publicly embarrassed the regime whilst abroad may face persecution if returned to Iran. However, the delegate found that the applicants’ profile as Faili Kurd asylum seekers would not be of specific interest to the Iranian authorities. The delegate acknowledged that the applicants may be questioned by Iranian authorities as failed asylum seekers but did not find that the country information supported the view that they would be persecuted as failed asylum seekers returning from Australia. The delegate found that the chance of harm because of the applicants returning as failed asylum seekers from a western country was remote and that the applicants did not have a well-founded fear of persecution for this reason now or in the reasonably foreseeable future.
The applicants claimed that the Iranian government would know about their claims for asylum due to the data breach of Departmental information in which the applicants’ basic bio-data details were briefly made available to the public. These details included the applicants’ name, date of birth, nationality, that they were irregular maritime arrivals and detention statuses. The delegate noted that while there was no evidence to support the assertion that the Iranian authorities were aware of the data breach and accessed the applicants’ information, the delegate could not discount the possibility that this occurred. While the information disclosed did not reveal the applicants’ claims or that they applied for a protection visa, the applicants’ fear is that they are at risk from the Iranian authorities because of their profile as failed asylum seekers returning from a western country. However, as discussed above, the delegate found that the applicants departed Iran on valid passports and have not engaged in any conduct whilst in Australia that would come to the attention of the Iranian authorities. Therefore, the delegate found that the applicants do not face a real chance of harm because of the inadvertent release of this information.
The delegate was not satisfied that the applicants were refugees as defined by s5H(1) of the Act and was not satisfied that the applicants were persons in respect of whom Australia has protection obligations as outlined in s36(2)(a) of the Act. The delegate was not satisfied that the applicants will suffer significant harm as outlined in s36(2)(aa) as a necessary and foreseeable consequence of being removed to Iran, and was not satisfied that there was a real risk they will suffer significant harm as defined by s36(2A) of the Act..
Tribunal Hearing
The primary applicant was unable to give evidence as he suffers from multiple health issues and dementia.[7] The Tribunal took evidence from his wife who is the secondary applicant in his absence.
[7] AAT Folio documents medical condition of the applicant
For the reasons that follow the Tribunal finds that the secondary applicant is a genuine Christian convert and that she faces a well-founded fear of persecution for this reason on return to Iran. Her husband the primary applicant is not religious at all and the Tribunal finds that the applicants are owed protection given the secondary applicants conversion to Christianity and country information around conversion and returnees to Iran.
At the hearing the applicant said her husband was [an Occupation 1] and that he had his own [related business]. He wanted to study aerospace engineering but because he was born in Baghdad, he could not so he went to [Country 4] to become a [Occupation 1].
The applicant said that her husband was against the regime in Iran and he attended a rally/political event in 1388 in the Persian calendar (2009-2010). The protest was large scale and people were chanting. He went to [location] to help some people as his [relative]. The applicant said it was after this incident that the Basij came after him and the family.
They threw acid onto his car and they wrote on the walls of the house. Then they stopped her husband from [working as an Occupation 1]. When asked how they stopped him she said they called him and then they cancelled his license. He didn’t have any right to work. She said the Basij came to her house and searched it, taking the laptop and documents.
They arrested her husband several times and beat him, they knew he had been to [Country 1] and that he was at the protest. She said they made arrangements through the smuggler and they had no idea that they would have to take a boat. She said she lost her sister, brother in law and nieces and nephews who drowned after their boat capsized on the trip to Christmas Island.
The Tribunal asked the applicant why they went to [Country 1] seeking asylum and then went back to Iran? She said they sought protection using their Iraqi names. But her children were in Iran with family and the process was taking too long and then it was refused. They wanted a review, but it was taking too long and with the children in Iran with her mother who was ill, and they were young, they needed to return. She said they used their Iraqi names as they were frightened about the regime and what may happen. She said there were Mullahs in [Country 1], so they were afraid, and her husband used his grandfather’s name.
The Tribunal asked her about her eldest daughter, and she said she came with them and she had her own application for protection and her claims were the same as hers and her husbands and she was granted the visa. However, her younger daughter and of course her and her husbands visa was refused.
The Tribunal asked her when she started in her interest in Christianity? She said her husband was never religious or a believer at all, but she was interested. She got to know more about Christianity from her daughter. She said initially she didn’t really accept it, but her daughter got engaged and she started attending church. The Tribunal asked her what the process was for someone to get baptised. She said it was a long process and she had to do some lessons and go through a step by step process. She and her daughter were baptised together.
She said she goes to church events and prior to lockdown she went to church but COVID and lockdown she was doing bible classes online and they do it in Persian. She said her favourite things about Christianity are kindness, respect, forgiveness and they help others.
The Tribunal asked her what she thought would happen if she was to return to Iran with her husband. She said she would be an apostate and they would find out she was a Christian even if she didn’t tell people, her relatives and neighbours would tell the authorities and there would be talk and gossip.
The applicant was also concerned about the data breach that occurred with the Department. She was concerned that the authorities in Iran would know about them.
The Tribunal read the applicant country information in relation to the Green Protests her husband had been involved in, that indicated that with the passage of time and other factors people who were involved in these protests were no longer being targeted or wanted by the authorities. She said that she didn’t think this was the case. She said some people were under house arrest and some were in prison. She said how could she be certain they wouldn’t be after them. She said they had committed a lot of crimes and they won’t forgive us.
The Tribunal asked if she and her husband had suffered for discrimination as Faili Kurds. She said they had to present the right documents especially during the time of war of they would be killed. The Tribunal asked how it was that her and her husband were able to get Iranian citizenship? She said her husbands father got Iranian citizenship and her husband applied for an ID. He had to bribe people and it was a lengthy process. The Tribunal asked if she had any relatives in Iraq. She said she had some of her mother’s relatives, but they had passed away. She said she hadn’t been back to Iraq since she was 8 years old.
The applicant said she has been in Australia for over 10 years now she cannot go back, and her husband has so many health issues and dementia its impossible for him to return.
Country Information
Faili/Feyli/Iraqi Kurds
The Faili (also spelled Feyli, and commonly known as Iraqi) Kurds are a sub-group of the d larger Kurdish population. They originate from the Zagros Mountains, which straddle the Iran-Iraq border, and many have family on either side of the border. Most, but not all, Faili Kurds originate from Iraq (some have lived in modern-day Iran for centuries). Faili Kurds in Iran typically reside either close to the Iraqi border, including in Khuzestan, Lorestan, Kermanshah and Ilam provinces, or in major cities. They are distinguishable from other Iranian Kurds by their religion (most Faili Kurds are Shi’a), their location and their distinctive dialect. Three main groups of Faili Kurds live in Iran: (1) Iranian citizens; (2) those of Iraqi origin who are registered refugees (Amayesh cardholders); and (3) those of Iraqi origin who are not registered refugees (non-Amayesh cardholders). Accurate population estimates for the three groups or for the overall number of Faili Kurds in Iran are not available. A local Kurdish source told DFAT that the number of Faili Kurds in Iran is not significant as a proportion of Iran’s population.
Upon seizing power in the 1960s, the Ba’athist Government in Iraq adopted several policies with the effect of excluding Faili Kurds, who the Iraqi authorities considered to be Iranian. The most notable of these – Decree No. 666 (1980) – cancelled the Iraqi citizenship of all Iraqis of ‘foreign origin’, including Faili Kurds. Under the Decree, authorities seized the properties and documentation of Faili Kurds, and eventually expelled them by force from Iraq. The expulsion of Faili Kurds intensified during the Iran-Iraq War: some estimates of the numbers of Faili Kurds who crossed into Iran between the late 1970s and 1988 range up to
250,000 (although this estimate is at the high end). Most Faili Kurds expelled from Iraq settled in Iran’s Kurdish-populated north-western provinces.
Iran recognises many (but not all) Faili Kurds as refugees. Those Faili Kurds registered as refugees, like all other registered refugees, are entitled to government services and other rights under the Amayesh system. In contrast, undocumented Faili Kurds are not legally entitled to work, access government services or obtain birth, death and marriage certificates (see Refugees and Undocumented Afghans). Many Faili Kurd refugees returned to Iraq after the fall of Saddam Hussein in 2003 and had their Iraqi citizenship reinstated (the Iraqi Nationality Law, adopted in 2006, repealed Decree No. 666 and stipulated that all persons de- naturalised by the former government have their Iraqi citizenship restored). DFAT is unable to verify how many Faili Kurd refugees have returned to Iraq from Iran.
Faili Kurd refugees with paternal Iranian ancestry are eligible for Iranian citizenship. Reports suggest that, while many Faili Kurd refugees have applied, only a small number have succeeded in obtaining Iranian citizenship, due to the lengthy and complicated process and the high costs involved (this is also true for applications for Iranian citizenship from other groups, including those who have married Iranians or resided in-country for generations). Other Faili Kurds have not applied for naturalisation because they do not have the required family members in Iran to prove their Iranian ancestry. Faili Kurds who are citizens of Iran enjoy the same rights as other Iranians. DFAT is not aware of specific instances whereby authorities have singled out Faili Kurds for mistreatment, regardless of the category to which they belong.
Religiously Based Charges
Under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. Separately, a person of any religion may be charged with the crime of ‘swearing at the Prophet’ (blasphemy) if they make utterances that are deemed derogatory toward the Prophet Mohammed, other Shi’a holy figures or divine prophets. The Penal Code does not specifically criminalise apostasy, but provisions in the Penal Code and the constitution stipulate that sharia applies to situations in which the law is silent, and judges are compelled to deliver sharia-based judgements in such cases. Although the Quran does not explicitly say that apostasy should be penalised, most Islamic judges in Iran agree that apostasy should be a capital crime. This ruling is based both on oral traditions attributed to the Prophet Mohammed and to Shi’a Imams, whom Shi’a consider the Prophet’s rightful successors. Chapter 5 of the Penal Code specifically criminalises swearing at the Prophet as a capital offence, although a clause states that the sentence can be reduced to 74 lashings of the whip if the accused states the insults were the result of a mistake or were made in anger.
Politically motivated apostasy charges were frequent in the years following the Iranian revolution, often leading to death sentences. However, in the vast majority of cases, defendants charged with apostasy also faced other charges related to national security. Many of these cases were quickly tried, ending in execution, so apostasy was not fully discussed in the prosecution of these defendants.
While apostasy and blasphemy cases are no longer an everyday occurrence in Iran, authorities continue to use religiously based charges (such as ‘insulting Islam’) against a diverse group of individuals. This includes Shi’a members of the reform movement, Muslim-born converts to Christianity, Baha’is, Muslims who challenge the prevailing interpretation of Islam (particularly Sufis) and others who espouse unconventional religious beliefs (including members of recognised religious groups). Some religiously based cases have clear political overtones, while other cases seem to be primarily of a religious nature, particularly when connected to proselytisation.
Today, death sentences in apostasy and blasphemy cases are rare. In March 2017, the Supreme Court upheld the decision of a criminal court in Arak (Markazi Province) to sentence a 21-year-old man to death for apostasy. Authorities arrested the man after he made social media posts considered critical of Islam and the Quran while on military service. According to publicly available information, the death sentence had not been implemented at the time of publication. The court also convicted two co-defendants of posting anti-Islamic material on social media, sentencing them to prison. DFAT assesses that those accused of religiously based charges are also likely to face charges related to national security. They are unlikely to have adequate legal defence and are likely to be convicted.
‘Green Movement’ Activists
Security forces arrested hundreds of demonstrators and beat and harassed thousands more during and after the 2009-10 Green Movement protests. At least 30 people were reportedly killed, and some died in prison (see Deaths in Custody). Others associated with the Green Movement fled the country (in numbers likely to be in the hundreds), a small number of whom were handed sentences by Iranian courts in absentia. Many prominent Green Movement activists were imprisoned following ‘show trials’ in which they confessed on television to crimes against the nation. The Green Movement’s leaders – Mir Hossein Mousavi,
Zahra Rahnavard (Mousavi’s wife) and Mehdi Karroubi (who, like Mousavi, contested the 2009 presidential election) – have been under house arrest without formal charge or trial since 2011.
The Green Movement has little profile in Iran today. Neither the movement nor its supporter base played a significant role in the 2017-18 or 2019 protests. Local sources told DFAT that ordinary participants in the Green Movement are not of interest to the authorities. One source noted that a family member who had been briefly detained and arrested for their participation in the Green Movement, and had subsequently secured asylum abroad, returns to Iran regularly without experiencing any harassment.
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 Green Movement protests would remain imprisoned or be the subject of continuing surveillance or harassment, including being prevented from accessing employment in either the public or private sector. Nevertheless, the 2009-10 protests represented a major challenge to the authority of the Islamic Republic. Given authorities’ sensitivity to such challenges, DFAT assesses it likely that those who had a more active organisational role in the Green Movement and therefore have a higher profile are more likely to face continuing official attention and possible monitoring and harassment. This includes family members of the Green Movement’s leaders. DFAT assesses that Green Movement participants who were arrested but then released without prosecution are unlikely to be of ongoing interest to the authorities. Those who acquired criminal records as a result of their involvement in
the Green Movement may face discrimination when applying for government employment, particularly if they played prominent, high-profile roles in the movement. The authorities would generally not have records of, nor interest in, participants who avoided arrest at the time. DFAT assesses that ordinary participants who avoided arrest face a low risk of official discrimination.
Findings

Country information indicates that Faili Kurds can and do live quite freely in Iran. The applicants are both Faili Kurds and the Tribunal accepts that they are. They also were able to obtain Iranian citizenship giving them the same rights as other Iranian citizens. When asked if they had been discriminated against due to being Faili Kurds the applicant said they had. However, the current country information indicates that there will be little to no discrimination based on their ethnicity. Further, the primary applicant was a [Occupation 1] who had his own [business]. Therefore, the Tribunal does not accept that the applicants were discriminated against based on being Faili Kurds.
The Tribunal accepts that the secondary applicant is a Christian and baptised in the faith. It was clear from the evidence given that she has been practicing Christianity for several years and has a deep connection to the faith. Further country information about apostasy and religious conversion bolsters the secondary applicants claims of fear of harm upon return to Iran. The country information is clear that religious conversion is not accepted by any means and the applicants would face harm based on the applicant’s religious conversion to Christianity. As the secondary applicant is a Christian her husband the primary applicant would also suffer harm based on her religious conversion.
The country information demonstrates that those who participated in the green movement demonstrations are no longer of any interest to the authorities in Iran. When the Tribunal put to the applicant that this was the case the applicant responded that this wasn’t the case and that there were people in prison who had participated in the protests. The Tribunal has looked at the evidence presented and concludes that the applicants were already on the governments radar after their failed attempt at asylum in [Country 1], followed by the primary applicant’s involvement in the protests and that he is Faili Kurd combined to make him a target of the regime. It is clear the applicants attempted to leave the country when they left for [Country 1] and given that the primary applicant was a [Occupation 1] with a [business] which is not necessarily something one would give up if all was ok in their home country. Therefore, the Tribunal accepts that there was a combination of factors that led to the applicants becoming known to authorities as anti-regime.
Finally, the Tribunal finds and accepts that the primary applicant is incapable of having a hearing or responding to questions. He would not be capable of returning to Iran given his serious medical condition.
Conclusion
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by the State and that State is willing and able to offer such protection.
Since the Iranian government is responsible for the persecution that the applicants fear, the Tribunal is not satisfied that the effective protection measures as per s.5LA are available to the applicants in Iran provided by the state. The Tribunal finds that the applicants would not be able to access effective protection if returned to Iran for the purposes of s.5LA(2).
For the same reasons, the Tribunal is not satisfied that there is any part of Iran in which they would be safe from the persecution that they fear as the secondary applicant is a Christian convert and the applicants are known to the authorities. The Tribunal is satisfied the applicants would face a real chance of persecution in all areas of Iran and therefore satisfies s.5J(1)(c).
The Tribunal notes that s.5J(3) states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person's identity or conscience, or conceal an innate or immutable characteristic.
In this case the Tribunal is satisfied that the modification would require the applicants to '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': therefore s.5J(3) does not apply.
Accordingly, the Tribunal accepts that the applicants have a well-founded fear of persecution for the purposes of s.5J. In considering whether they come within the definition of a refugee contained in s.5H, it accepts that they are outside the country of their nationality and unable to return to it owing to this well-founded fear of persecution.
Therefore, they meet the criteria in s.5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s.5H(2) apply to the applicants. The Tribunal finds, therefore, that for the purposes of s.36(2)(a) of the Act, the applicants are refugees.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.
Nora Lamont
Member

Document List – 1802630 – [APPLICANT 1]
Tribunal File – 1802630
1. Protection Visa Decision Record – dated 1/2/2018
2. Notification of refusal of application for a Safe Haven Enterprise (subclass 790) visa – dated 1/2/2018
3. Email from Representative – dated 25/3/2021
4. Email from Representative – dated 21/9/2021
5. Email from Representative – dated 22/9/2021
6. Email from Representative – dated 11/10/2021
Department File – [number]
1. Letter from Representative regarding fitness to be interviewed – undated
2. [Health Service 2] General Practice Referral – dated 16/10/2017
3. Results of [medical] scan – dated 11/10/2017
4. Email from Representative to Department regarding medical letters – dated 17/11/2017
5. Email chain between the Department and the Representative – dated between 25/10/2017 to 17/11/2017
6. Letter from [Health Service 2] in relation to [Applicant 2] – dated 14/11/2017
7. Invitation to comment on information under section 57 and to provide information under section 56 of the Migration Act 1958 – dated 27/11/2017
8. International Treaties Obligations Assessment (ITOA) – dated 6/5/2015
9. Notification of Protection Obligations Determination (POD) – dated 23/3/2012
10. Referral from Protection Obligations Evaluation (POE) Officer for Independent Protection Assessment – dated 23/3/2012
11. POE Referral – dated 23/3/2012
12. Independent Protection Assessment – dated 5/8/2012
13. Email from Department to Representative requesting medical reports – dated 8/11/2017
14. Protection Visa Decision Record – dated 1/2/2018
15. Notification of refusal of application for a Safe Haven Enterprise (subclass 790) visa – dated 1/2/2018
16. Statement of [Applicant 1] – dated 19/12/2016
17. Email from Representative to the Department with attachments – dated 19/12/2016
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 5197

8 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Appeal