1802634 (Refugee)

1802634 (Refugee) [2022] AATA 961 (17 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1802634
COUNTRY OF REFERENCE:                   Iran
MEMBER:Nora Lamont
DATE:17 February 2022
PLACE OF DECISION:  Brisbane
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 17 February 2022 at 11:35
CATCHWORDS
REFUGEE – protection visa – Iran – religion – Theist from semi-observant Muslim family converted to Christianity in Australia – church membership and activities – letters of support from church leaders and members – mother now also converted – forthright and engaging evidence – country information – state protection and relocation not available – ethnicity – Faili Kurd – application for protection as child with family in third country before returning to home country – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Iran, applied for the visa on 20 December 2016.
The applicant appeared before the Tribunal via video link due to COVID 19 on 7 December 2021 at 10:30 am. She was represented at the hearing.
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 applicant claims to be a Faili Kurd female born in Tehran, Iran.[1] She claims that she travelled to [Country 1] in 2000 seeking protection with her parents (she was approximately [Age 1] years old) and she transited through [Country 2] before arriving in Australia via boat to Christmas Island when she was [Age 2] years old.[2] She identifies as being Theist at the application stage but has since claimed that she has converted to Christianity.[3] She claims to speak, read, and write in the Farsi and English languages, and speak in the Faili Kurdish language.[4]
[1] Department File [Number 1], folio 39.
[2] Ibid, folio 15.
[3] See Tribunal File 1802634, Doc ID: 8997066.
[4] Department File [Number 1], folio 37.
Her family consists of her mother, father and sister who currently reside in Australia, and one brother who currently resides in Iran.[5] She does not list any previous employment.[6] She completed up to primary education in Iran, and secondary education in Australia.[7]
[5] Ibid, folio 15.
[6] Ibid, folio 14.
[7] Ibid, folio 13.
The applicant is currently employed as [an Occupation 1] and lives in [Suburb 1] with her parents.
Country of reference
The applicant provided the Department with a certified copy of her Iranian birth certificate on application, and I have sighted the applicant’s passport and I am satisfied she is a national of Iran.
In the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a citizen of Iran and as such 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 she is not excluded from Australia's protection obligations under s.36(3).
Migration History
The applicant claims that she was taken to [Country 1] in November 2000 by her father and mother seeking protection. However, the family returned to Iran in [Year 2]. They remained in Iran until 2011 when she departed for Australia with her parents, sister and nephew.[8]
Claims
[8] Tribunal Case Number 1802634, Doc ID: 8997066.
The applicant’s claims for protection are summarised by the delegate in the Protection Decision record and extracted below:[9]
[9] Protection Decision Record, pp.3-4.
·In summary, the applicant claims that she has become interested in Christianity and has explored the Greek Orthodox faith with a friend in Melbourne. She claims her mother is a very strict Muslim and is preventing her from formally converting to Christianity. She claims that she first became interested in Christianity whilst in [Country 1] as she attended a Christian school and had Christian friends. She claims she has never been interested in Islam.

·The applicant also claims that whilst in Iran she was sexually assaulted by a member of the Basij in Iran. She claims that she never told her parents of the incident, however the man had threatened to tell her parents that she is no longer a virgin. The applicant claims to fear that she will be required to undergo virginity testing by her family or the family of the man she marries if returned to Iran.

·Since arriving in Australia, the applicant claims she formed a relationship with a man without her parent’s knowledge. She claims to have fallen pregnant and subsequently had an abortion. She claims that these events had made her depressed and led her to make poor choices, such as stealing.

·On 31 October 2017 the applicant provided a further statutory declaration in support of her claims. In summary, the applicant reiterated her continued interest in Christianity, however stated that she is a member of the [Church congregation 1], an evangelical arm of the [Church 1]. She claims to have become interested in this Persian speaking Christian congregation after meeting her now fiancé in April 2017. She claims that she was initially interested in the Greek Orthodox because of her friend, however she did not find the same peace as the [Church congregation 1].

·A supporting letter from [Reverend A] dated 30 October 2017 was also submitted. The letter supports the applicant’s attendance at the church since July 2017 and overall states that she is a sincere and genuine believer. The letter supports the applicant’s claim that she was initially unable to convert or explore Christianity freely because her mother was a strict Muslim.
·The applicant was interviewed on 31 October 2017 and was given an opportunity to discuss her claims.
·Following her SHEV interview, the applicant’s representative submitted a post interview submission reiterating the applicant’s claims and provided supporting country information regarding the treatment of apostates in Iran.
Summary of Decision Record
The delegate noted that the applicant was initially included in the SHEV application as her parents. However, a separate statement of claims was provided by the applicant, and she instructed that she wished to be considered separately from her parents. The delegate noted that given her personal circumstances and adult age she would not be considered a member of the same family unit as her parents, and therefore her case was assessed separately.
At interview, the delegate raised that the applicant had used the alias or name of [Alias 1] in her parents’ application for asylum in [Country 1], where she was listed as a dependent. The applicant was asked about this, and she stated that this was the name her parents had given to authorities in [Country 1] in 2000 and she does not know anything about it. The delegate noted that the applicant would have been a minor during her stay in [Country 1], and therefore considered reasonable that she would not be able to provide further detail. The delegate also noted that the applicant’s claimed identity had been accepted by previous assessors during the Protection Obligations Evaluation (POE), Independent Protection Assessment (IPA), and International Treaties Obligations Assessment (ITOA) processes, and therefore was prepared to accept the applicant’s identity as claimed.
Having considered the applicant’s claims and evidence cumulatively, the delegate found the following:
·The applicant is of Faili Kurd ethnicity.
·The applicant had not converted to Christianity nor did she have a genuine interest in the religion and did not accept she would practice the faith if returned to Iran.
·The applicant did not believe in Islam nor does she practise the faith.
·The applicant would not be pursued by the man who assaulted her in Iran approximately seven years ago.
·The applicant would not be required to undergo virginity testing if returned to Iran.
·The applicant was affected by the data breach.
·The applicant would be returning to Iran as a failed asylum seeker.
The delegate accepted that the applicant was a Faili Kurd, and even though she did not raise any claims of harm due to her ethnicity, the delegate assessed the chance of harm due to her ethnicity. Based on the country information available to the delegate, they accepted that the applicant may have experienced some societal discrimination in Iran as a Faili Kurd but did not accept that they had been previously tortured or physically harmed by the Iranian authorities as a result of her Kurdish ethnicity, noting the applicant and her family had been able to subsist in Iran since her family had been expelled from Iraq prior to her birth.
As noted above, the delegate did not find the applicant had genuinely converted to Christianity but accepted that she was no longer a believer of Islam and would not practice the faith if she was returned to Iran. The delegate considered whether the applicant would be harmed because she no longer practised the Muslim faith or because she would be perceived to be against the Iranian regime for no longer practising her religion. The delegate cited DFAT country information which stated that it was unlikely individuals would be prosecuted on charges of apostasy, nor would the Iranian authorities generally be aware that a person was no longer faithful to Shia Islam. DFAT information indicated that a person would only be perceived as an apostate and come to the attention of the authorities through ‘public manifestations of their new faith, attempts at proselytization, attendance at a house church or via informants’.[10] The delegate found that the applicant was not of interest to the Iranian authorities when she left Iran and noted that she claimed she had been indifferent of Islam when she was in Iran. On this basis, the delegate was not satisfied that the applicant would be required to modify her behaviour in any way to avoid a real chance of persecution in Iran. The delegate found that the chance of the applicant being harmed for this reason was remote, and accordingly the applicant did not have a well-founded fear of persecution for this reason.
[10] CIS38A8012677: Department of Foreign Affairs and Trade (DFAT), "DFAT Country Information Report Iran", 21 April 2016, 3.55
The delegate went on to consider if the applicant would be harmed on the basis of being a failed asylum seeker returning from a western country. The delegate noted that the applicant departed Iran lawfully on her own passports, and that the applicant was of no particular interest to the Iranian authorities when they departed Iran. There was no information before the delegate which indicated that the applicant had been involved in any activities since arriving in Australia, online or in public, which would have come to the adverse attention of the Iranian authorities. The delegate cited country information which stated that the treatment of failed asylum seekers returning to Iran is generally determined by their profile and their actions on return. The fact of claiming asylum whilst abroad is unlikely in and of itself to a trigger for maltreatment upon return. The delegate was not satisfied that there is a real chance tat the applicant would suffer serous harm for the reason of being a failed asylum seeker returning from a western country, either now or in the reasonably foreseeable future.
The delegate noted that the applicant may have been affected by a data breach that allowed confidential Departmental information to become briefly accessible. While there was no evidence that the Iranian authorities were aware of the data breach and accessed the applicant’s information, the delegate could not discount the possibility that this occurred. The information disclosed by the breach did not reveal the applicant’s claims nor that she had applied for a protection visa. However, inherent in this claim is the applicant’s fear that she is at risk from the Iranian authorities due to her profile as a failed asylum seeker returning from a western country. As noted above, the delegate found that the applicant had departed Iran lawfully on her own passport and was of no particular interest to the Iranian authorities during this departure. As the delegate found that the applicant had not been involved in any activities which would have come to the adverse attention of the Iranian authorities, they found that the applicant did not face a real chance of harm because of the inadvertent release of her information.
On the basis of all of the above, the delegate was not satisfied that the applicant was a refugee as defined by s5H(1) of the Act and therefore was not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) of the Act. The delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Iran, that there is a real risk they will suffer significant harm as defined in s36(2A) of the Act, and therefore the applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(aa) of the Act. Therefore, the delegate refused to grant the applicant a SHEV.
Tribunal Hearing
At the beginning of the hearing, we talked about when the applicant was a child and went to [Country 1]. She said she was approximately [Age 1] years old and attended a local primary school. She spoke Kurdish a home and some Farsi and had to learn English. She said she knew her father had some serious issues in Iran and her mother cried each night as her older brother and sister were still in Iran. She first attended a church during this period and marvelled at the stain glass windows. She also attended a Hindu Temple.
The applicant said that when they arrived back in Iran, she remembered her mother was being questioned for 6 or 7 hours by the authorities. She said she had to cover her head which she didn’t want to do and that she didn’t want to go to school in Iran. She said she had a lot of facial hair and they would not let her take her hair off or she would be punished.
She spoke of living under the Basij that she would get in trouble for not wearing her hijab and she was afraid to talk to anyone who was a male. I asked her if she remembered what kind of trouble her father got in and she said that she knew her parent’s brother-in-law was shot and her father helped. She said she saw the authorities come into the house and take things and their car had acid poured on it.
I asked the applicant about if she wanted to speak about her sexual assault which occurred in Iran before she left for Australia. She did not want to speak about it, and it was painful. I asked her if she thought she would have contact or was afraid if she returned to Iran this man would find her or hurt her. She said she didn’t know after all these years but that women don’t have any rights in Iran, and she hates Iran. I did not feel there was a need to further question her in this regard.
She said her father was never religious and he never practiced religion. Her mother was a Muslim and a bit strict but not overly religious. After her arrival in Australia, she went to various detention centres before landing in Melbourne where she lived in [Suburb 2]. She attended [Suburb 2] Secondary, and this was when she first went to a Christian church. She went to the Greek Orthodox Church in [Suburb 3]. She didn’t tell her mother at the time as she was scared to tell her.
After her first church visit, she had some personal issues and didn’t go to church for a few years. Then she met her now ex-Fiancé and he said there was a Persian church, and she should come and try it. She went with her mother and Fiancé to the [Suburb 4] [Church congregation 2] in July 2017.
I asked her what she found interesting about Christianity and she stated she hated Islam and that Christianity was a symbol of love and kindness not like in Islam where it is an eye for an eye and in Islam if you get a hit on the cheek you have to hit them back it’s a way of life. In Islam they show off going to the Mosque and fasting in Christianity you don’t have to do that.

The applicant has been attending a church in [Suburb 5] and does bible study on Tuesdays. They speak Farsi and all the people are from Iran. The applicant spoke about getting her friend involved in Christianity and how she, her older sister, mum attended a 3-day bible camp. She talked of celebrating Christmas and the traditions she now has around Christianity.
I asked her what she thought would happen to her if she was returned to Iran. She said she would be sentences for being a Muslim who is now Christian, and her mother’s family would kill her, and they have the right because she is an apostate. I asked how they would know that she had converted, and she said her cousins had seen posts she had on Instagram.
She said even if she was returned, she would continue to pray as she cannot deny God or Jesus. She said, “If you deny me, I will deny you”.
The applicant spoke of her schooling and how she has been improving her life and was looking forward to the future and to continue to practice her faith. In addition, I was given letters from her church confirming her attendance, baptism and ongoing faith.
We spoke of her sexual assault at the hands of a Basij in Iran and about the difficult time she had for a few years when she completed secondary school.
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. [11]
[11] DFAT Country Information Report Iran (14 April 2020)
The Tribunal considers that the country information supports the applicant’s contention that Christian converts face harm rising out of their religion and faith. The applicant could face charges and find herself imprisoned or receive the death penalty. As this news article explains:
Converts to Christianity from Islam, according the Iran's Islamic law, can face the death penalty. The Iranian Islamist judges generally resort to verses from the Quran and Hadith (Muhammad's sayings and acts) to justify their verdicts. One particular verse in Qur'an states:
"They wish you would disbelieve as they disbelieved so you would be alike. So do not take from among them allies until they emigrate for the cause of Allah. But if they turn away, then seize them and kill them wherever you find them and take not from among them any ally or helper." (Qur'an 4:89)
A hadith attributed to Muhammad says: "Whoever changed his Islamic religion, then kill him". [12]
Findings
[12] >
I found the applicant to be forthright and engaging within the hearing. The applicant spoke openly about her childhood and coming to Australia. She was open about her Christianity and the struggles she had earlier in her life.
I have considered the applicant’s background and life in Iran and if she was affected as a Faili Kurd, suffered discrimination or would otherwise be unable to return to Iran based on her ethnicity. Given the fact that she and her parents were given citizenship, her father was able to [work] as [an Occupation 2] and they were able to leave Iran on several occasions and return I do not believe that the applicant did or would have any issues related to her being a Faili Kurd.
I have also considered that the applicant was assaulted at some point during her life in Iran. She did not wish to speak about it, and I have considered that it would not be a mitigating factor should she be returned to Iran. It was a long time ago and she has no connection to this person or their life.
I note that the applicant has been a Christian convert since 2017 and was baptised in 2018 some five years ago and is still involved in prayer, bible study and worship. She demonstrated a solid and strong involvement in Christianity and was open about her dislike for Islam. Her ongoing commitment to Christianity was evident and we spoke at length about her involvement and the change her mother has gone through as she too is now a Christian. I note that the applicant has a well-founded fear of persecution based on her religion. She cannot return to Iran and openly practice her Christianity and she cannot practice her faith in an open manner without persecution. She cannot convert as she will be considered an apostate.
I have taken into account that she was underage when she arrived in Australia and that her parents were the one’s who made the decisions to go to [Country 1] and to come to Australia and this was out of the applicant’s hands. The Tribunal is willing to accept the applicant’s claims that her mother’s family who are very strict Muslims would harm her now that they know she has converted to Christianity.
I note that the applicant would be a western returnee, but I have considered that she would not rise to the level of attention from the government for any reason upon return at the airport including for the data breach which occurred as she did leave the country using her own passport and would not be flagged on the Iranian system. However, I note that the applicant would be returning as a young single woman without a male guardian or family to support her. I have considered this aspect as well.
Having considered the applicants claims cumulatively and taking into account the country information I have considered there is a real chance the applicant would face serious harm upon return to Iran. The essential reason is for her religious beliefs and her conversion to Christianity.
Conclusion
The Tribunal finds that the applicant has a real chance of serious harm on return to Iran for her conversion to Christianity and for her religion. The Tribunal finds that the applicant has a well-founded fear of persecution for this reason.
The Tribunal has considered whether the applicant can avail herself of state protection. The Tribunal notes in its considerations that the actors causing harm in this instance include state actors who can be said to have a real chance of seriously harming the applicant in the future. Therefore, the Tribunal does not consider that the applicant can avail herself of state protection.
With respect to the consideration of relocation, the Tribunal considers that the state is responsible for serious harm in this instance, and there is no location within Iran where the mistreatment of Christian converts and apostates is not reported. The Tribunal does not consider that there is a location within Iran where the applicant would not face the real chance of serious harm arising out of her religious beliefs.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant satisfies the criterion set out in s.36(2)(a).
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has a protection obligation under s.36(2)(a).
There is no suggestion that the applicant satisfies s.36(2) on the basis if being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Nora Lamont
Member

Document List – 1802634 – [SURNAME]
Tribunal File – 1802634
1. Email from Representative – dated 22/10/2021
2. Protection Visa Decision Record – dated 1/2/2018
3. Notification of refusal of application for SHEV – dated 1/2/2018
Department File – [Number 1]
Department File – [Number 2]
1. Notification of refusal of application for SHEV – dated 1/2/2018
2. Protection Visa Decision Record – dated 1/2/2018
3. Five Country Conference Fingerprint Referral Form
4. Support letter: [Suburb 6] [Church 1] – dated 30/10/2017
5. Support letter: [Mr A] – undated
6. Statutory Declaration of [the applicant] - dated 26/10/2017
7. Identity documents of [the applicant]
8. Representative Submission – dated March 2017
9. Email from Representative to Department – dated 10/11/2017
10. Email from Department to Representative – dated 3/11/2017
11. Notification of Protection Obligations Determination outcome – dated 23/3/2012
12. Protection Obligations Evaluation (POE) Referral – dated 23/3/2012
13. Independent Protection Assessment (IPA) – dated 5/8/2012
14. International Treaties Obligations Assessment (ITOA) – dated 6/5/2015
15. Internal Department email regarding Biometric Appointments – dated 5/2/2019
16. Representative submission containing SHEV applications – dated 19/12/2016
17. Authority to seek personal information in relation to effective (prior) protection – dated 19/12/2016
1. Letter from Department regarding exercise of power under s46A(2) – dated 28/4/2014
2. Acknowledgment of request for Ministerial Intervention under subsection 46A(2) of the Migration Act 1958 – dated 14/6/2013
3. ICSE Screenshots
4. Representative Submission – dated 17/1/2013
5. POD Checklist
6. Notification of Protection Obligations Determination outcome – dated 23/3/2012
7. Referral from Protection Obligations Evaluation (POE) – dated 23/3/2012
8. Five Country Conference Fingerprint Referral Form – [Mr D]
9. POD Interview Preamble of [Mr B] and [Ms C] – dated 6/2/2012
10. IAAAS Interview Coversheet – dated 3/2/2012
11. Statutory Declaration of [Mr B] - dated 3/2/2012
12. Form 80 of [Mr B] – dated 3/2/2012
13. Attachment to Form 80
14. Request for Protection Obligations Determination (POD) and Statement of Claims 0 dated 3/2/2012
15. UNHCR Consent to Share and Release Information – dated 3/2/2012
16. Authority to seek personal information in relation to effective (prior) protection – dated 3/2/2012
17. Form 956 – dated 3/2/2012
18. Form 815 – dated 3/2/2012
19. Copy of Iran National ID Cards
20. Copy of Iran Birth Certificates
21. Translation of [Qualification] of [Mr B]
22. Form 80 of [Ms C] – dated 3/2/2012
23. Attachment to Form 80
24. ICSE Screenshot of POD
25. Biodata Page
26. Untranslated documents – Shooting incident as discussed in Entry Interview
27. Irregular Maritime Arrival Entry Interview of [Mr B] – dated 11/12/2011
28. ICSE Screenshot of [Ms C]
29. Irregular Maritime Arrival Entry Interview of [Ms C] – dated 11/12/2011
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.
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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.
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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[2022] AATA 961

17 February 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Jurisdiction