1803139 (Refugee)

1803139 (Refugee) [2022] AATA 2612 (10 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Roya Majd (MARN: 0701239)
CASE NUMBER:  1803139
COUNTRY OF REFERENCE:                   Iran
MEMBER:Justin Meyer
DATE:10 June 2022
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 10 June 2022 at 10:29am

CATCHWORDS
REFUGEE – protection visa – Iran – religion – Baha’i faith – Christianity – evangelistic activities – vengeful ex-husband and father – guilt by association with non-Muslim – state as perpetrator of harm – whether ‘laws of general application’ – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2, cl 866.221
CASES
Applicant A v MIEA (1997) CLR 225
Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19
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 12 January 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Iran, applied for the visas on 21 September 2016. The delegate refused to grant the visas on the basis that not satisfied that the applicants were persons to whom Australia has protection obligations under section 36 of the Migration Act 1958 (Migration Act) and clause 866.221 of Schedule 2 to the Regulations), and also not satisfied the harm claimed by the applicants was significant harm for the purposes of subsection 36(2A) of the Migration Act.
The applicants appeared before the Tribunal on 14 April 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Reverend A], who is the two of the applicants’ ([the second-named applicant]’s and [the third-named applicant]’s) minister. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal 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 (Cth) (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
The issues in this case are whether the applicants have a well-founded fear of being persecuted in Iran for one or more of the five reasons set out, and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Iran there is a real risk that they will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Identity
The applicants’ identities are established as a [age]-year-old female, and her [age]-year-old and [age]-year-old daughters, as evidenced by Iranian passports. There is passport evidence before the Department and the Tribunal confirming identity and nationality.
Claims
In their first protection visa application the claims were these:
·The first applicant was untruthful during her entry interview regarding the journey that she took from Iran. She corrected her previous claim that she travelled out of Iran overland via [Country 1]. She clarified that she left Iran using her own passport.
·She was born in Tehran on [date] into a Shia Muslim family.
·As she grew up in Iran she became frustrated with Islam as she wasn’t allowed to have a choice in what she wore, who she socialised with and what music she listened to. As she grew older she renounced and completely abandoned Islam.
·She was exposed to the Baha’i faith through a neighbour K. Sometime in November 2011 she attended a Baha’i study/prayer group at K’s house. She made a conscious decision at this point in time to embrace the Baha’i faith.
·She attended approximately eight Baha’i study sessions in total with some other family members. Her husband did not attend with her.
·Her sister-in-law, Z also attended these sessions and at some point she started receiving anonymous calls. Z eventually fled Iran as the Iranian police were searching for her.
·A few days after Z fled, the Iranian police came to her (the applicant’s) house. She did not interact with them, but it was because of this that she became fearful for her life and she decided to flee Iran with both of her children.
·After her arrival in Australia she has regularly attended Baha’i prayer/study sessions.
·She fears returning to Iran because she has previously come to the attention of the authorities in Iran and fears that she will be killed or harmed because she has embraced the Baha’i faith.
[On 1 May 2013, the RRT affirmed the decision to refuse the protection visa. The member did not accept that the applicant (and other family members) provided a truthful account of the circumstances of their claims in Iran.]
Subsequent to the RRT decisions the following new claims were raised:
·It would be a conflict of interest for the Department to assess the ITOA as it was the Department who breached her privacy;
·A breach of procedural fairness has occurred because the Department did not disclose all the information related to the website disclosure;
·Her relationship with her husband in Iran has broken down, they started having problems in 2013 and in 2014 the applicant started a relationship with another man, [Mr B].
Following a data breach the s48b bar was lifted allowing the applicant to lodge a new application for a protection visa.
·In her application for a SHEV received on 21 September 2016, the applicant submitted a new statutory declaration and stated that she continues to rely on information provided both orally and in writing that was submitted to the Department (including ITOA submissions) and the RRT in support of her application for a protection visa. She submits that she has continued to receive further threats from her husband in Iran, specifically she states that she received an email on 27 December 2015 threatening that he would seek his revenge. She states that she is very fearful of her husband because she knows his character. She continues to see a psychologist to deal with her anxiety and fears of her husband and also for treatment with her depression.
·Post interview submissions were provided by the applicant’s registered migration agent.
·Although applicants 2 and 3 have submitted their own claims for protection, their claims about the reasons they left Iran rely on the claims detailed above, and their claims relating to the threats from their father, are based on Applicant 1’s claims.
·As the claims made by each of the family members were substantially each applicant discussed details about their case with other family members during their respective interviews.
Applicant 2
·Varied aspects of Applicant 2’s claims are that she fears returning to Iran because:
·She is an atheist and she will be forced to follow Islam and practice it.
·Her father would expect her to follow his instructions and ‘life would become hell.’ She would not have any freedom of movement because ‘he would want to control my life’.
Applicant 3
·Varied aspects of Applicant 3’s claims are that she fears returning to Iran because:
·Her father would force her to marry someone she does not love.
·She would have to pretend that she is a Muslim and does not want to be in that sort of position.
·She would like to continue to experience freedom of speech and democracy as in Australia, this does not exist in Iran.
·She has attended Baha’i meetings with her mother in Australia and would be considered Baha’i.
·The police in Iran would harm her because of her un-Islamic appearance.
The first applicant submitted on 13 April 2022:
“I believe that there were significant misunderstandings in general about how things
happened because different interpreters were used and so many people were involved.
I have learnt that interpreters are not always accurate and do not interpret things fully
and correctly which causes confusion and misunderstandings.
I also believe that if you ask a story from different people, the way in which different
people describe it, would be different because people’s understanding and description of events is different and this is just human nature in general, anywhere in the world.
At the present time, I continue to hold the same fears I have disclosed in the past.
I fear return to Iran because I am of the Bahai faith, and my life is entwined with its
practices. It has taken longer than expected for me to be granted membership into the Bahai faith, but I have submitted evidence showing that this delay has been for the reasons beyond my control and in any case, it does not affect my involvement with the Bahai community.
I also fear return to Iran because I have no doubt that my ex-husband will kill me.
Honour killings have increased in Iran especially within the last few months and the
lack of government action in bringing the responsible people to justice, has given the preparators more powers to continue with their actions.”
The second applicant submitted on 13 April 2022:
“I came to Australia when I was a teenager and the reason I came here was because
my mother had problems in Iran and fled the country and I came with her.
I was born Muslim but in Australia, I did not practice any religion for a few years.
I was invited to [Church 1] in June 2017 with my sister, and I just fell in love with the teachings of the Bible.
I went to church for about 18 months and then in December 2018 I was baptised.
I fear return to Iran because in Iran I will not be able to freely practice Christianity.
I also fear return to Iran because I fear my father who would believe we have ruined
his honour and are infidels.”
The third applicant submitted on 13 April 2022:
“I came to Australia when I was about [age] years of age. The reason I came here was
because my mother had problems in Iran and fled the country and I came with her.
I was born Muslim and around the time I came to Australia, I also participated in Bahai activities with my mother. After a while I decided that Bahaism was not for me.
In June 2017 I was invited to Church by an ex-partner [Mr C] and after research about Christianity and learning about it, in December 2018 I was baptised.
This day means a lot to me because it is the beginning of a new life free of sins.
I fear return to Iran because in Iran I will not be able to freely practice Christianity.
I also fear return to Iran because I fear my father who would believe we have ruined
his honour and are infidels.
The applicants gave the following oral evidence in the hearing:
The first applicant
·The first applicant arrived in Australia in June 2012 as a boat arrival. She came with her two daughters.
·The first applicant’s father had a public sector job in Iran and the family was a little above average in terms of income.
·The first applicant’s husband has a [specified] company. The couple own their own home.
·She was a Muslim but not observant.
·She embraced the Baha’i faith over 20 years ago. She first became interested in because she had a neighbour who was a Baha’i and she became curious. One or two years later she began following the faith. She attended classes including ethics classes. She became close friends with this neighbour couple. However, her husband was not interested in the Baha’i faith, although he did not intervene and he was more indifferent as opposed to against the faith. Her husband was concerned however and told the first applicant to be careful and make sure that nobody knew, so that nothing serious would happen.
·I asked the first applicant for a description of Baha’i beliefs and she said that it was a faith formed around 170 years ago with a theory of unification of the whole of humanity. All become one and live in peace. She said there were 12 basic foundations of the religion. There was a figure called the person they were waiting for, named Bab. Islam has had such a person. Another is Baháʼu'lláh. There is equality between men and women. Alcohol is not permitted. Sexual purity is held up.
·The applicant said that she came from Shiraz but originally lived in Tehran.
·It is a long, drawn-out process to become recognised as a Baha’i and it had not yet occurred. The Baha’i Centre and written that there was still discussion about her recognition.
·The applicant said she attended a local Baha’i session in a district in Melbourne, which became online due to the pandemic. She had followed a practitioner.
·The Tribunal discussed with the applicant why she suddenly left Iran. She said that the neighbour had reported her. She encountered problems. They had come to arrest her. She said that authorities had come to her door but she fled. She went from friend to friend to avoid them. The military were knocking on doors. The younger daughter had been looking at the window at the time in coming. Her other daughter was at school.
·I put to the applicant I was not sure as to why uniformed men came to her door. I asked her how she could be sure it was about religion and whether it could have been about something else. The applicant said that it was because of the gathering - her sister-in-law had a friend who had been attending and also had issues.
·I asked the applicant whether her husband was getting concerned at this point. She confirmed that he was. He had warned her that she could end up in jail. She agreed it was dangerous to the group. The group discussed books – it was always the same group and they gathered together only in houses and thought that by only reading books no one would be aware of them.
·The Tribunal discussed further the applicant’s decision to leave Iran. I asked the applicant what her husband thought of her departing the country. He accepted this because there was no other choice. He was on the road at the time as his [business] required him to be away for long periods. She departed the country with his permission and knowledge.
·Her husband did not want to go with her because the parties had a business and a home. He said that the home would be sold when she settled in Australia. Her husband said that he would sell up and come to Australia.
·The first applicant said that from news she found that a people smuggler would charge around AUD4,000 get her to Australia.
·I asked the applicant if her husband had reported her to authorities. She said this was probably the case because he said he had done this. I asked the applicant why he was spiteful. She said that two years after her arrival in Australia the parties had family problems with each other. The first applicant said she had a relationship with a partner in Australia and this made her husband jealous.
·Her husband’s sister came to Australia and she would have reported back. She is a Baha’i as well. She accompanied the applicants to Australia.
·The Tribunal put to the applicant that the Department had asserted that hers was a false Baha’i claim and that she had merely left her husband, obtained a new partner and a better life. The applicant said that this was not the case and she only had family problems after coming to Australia.
·Her husband did not want to divorce her and she has not heard from him in seven years. She wished that he would divorce her but there was nothing that she could do legally about it.
·The first applicant said she had no trouble getting through the airport in Iran. The Tribunal queried whether this could be the case if she was wanted by the police. The first applicant said that if the matter was not in court there would be no hindrance to leaving the country.
·The Tribunal queried whether matters from seven years ago would still motivate her husband. She said that they would. He had developed a complex because of life.
·It was noted that the first applicant had said in an interview that her husband had sold the house and sold the furniture. He did this because he was no longer in that house. There was no need for him to keep the house and furniture because he was travelling around Iran for his work.
·The first applicant said her daughters had embraced Christianity. I asked how they came to be interested in a religion different to the first applicant’s. The first applicant said that under her Baha’i faith daughters were free to pursue other religions and there was no force involved. She said her daughters went to church and are Christians. Her elder daughter previously had a partner but had broken up with him. He is a Christian man.
·The first applicant had lied upon entry to Australia on the advice of a people smuggler – she incorrectly said she had moved overland to [Country 1] and then escaped the region. She had in fact left legally by air from Iran. She eventually corrected this because she wanted to be honest.
The second applicant
·The second applicant described her mother as a convert to the Baha’i faith. She said that her mother was still practising her faith in Australia and described the classes and Zoom sessions she participates in. The second applicant said that her mother had involved the children in the Baha’i faith as well. Lately the second applicant has not been involved.
·I asked the second applicant whether there was any reason that she feared going back to Iran. She said her father was a frightening figure and had a complex in his heart. Six or seven years ago her father disowned the children. Her mother had a partner in Australia. It was suggested that the second applicant leave her mother.
·The former partner of her mother had been her mother’s boyfriend when she was about [age] or [age]. He eventually finished up in Australia. He later returned to Iran.
·Her father found out about relationship because an aunt had told him. The second applicant said of her father “this man can do anything when he is nervous”. He had threatened to “settle the issue”, which implied violence. He would report her mother for conversion. There was possible family violence against the second applicant because of her Christianity if she returned. The daughters had had partners and might be killed for this. They could be prosecuted. She feared her father. She had not heard from him for several years – she had turned away from him because she stayed with her mother. She resented him. The daughters had supported their mother in having a partner. The Tribunal asked whether he would do anything about it if they returned to Iran. The second applicant said he felt dishonoured and he had the right to do whatever he wanted to them. He had made actual threats. The passage of time had not changed things. Various extended family members came to Australia on the father’s side. They were active in Baha’i sessions.
The third applicant
·I asked the third applicant whether she could recall her father being violent while she was growing up. She said he was not really violent but he had very strong beliefs. She said her father had remarried and has got a grudge. She said family members would tell him. She said that her father was a [Occupation 1] and through this skill set could find the applicants anywhere in Iran.
·The third applicant said that she found out about Christianity in Melbourne when she met a man called [Mr C] who went to church. She described this man. She went to a church in Melbourne and one and a half years later was baptised. What appealed to her in Christianity was finding the relationship between her and the living God. She was able to identify Jesus Christ as the central figure in Christianity and understood him to be the son of God. She could describe the elements in the communion as being representative of the body and blood of Christ which was sacrificed. She has served in parts of the church and she has evangelised other people for example at her work. She is a [Occupation 2] and has taken colleagues to church. She is lay office holder and has administered grants through the church.
·The third applicant was previously sceptical of religion and had challenged her pastor a good deal. She completed a ‘Christianity Explained’ course, which gave her answers. She previously could not understand how Jesus could be the son of God, but got the answers she needed. She saw miracles in her life and people prayed for her. She prayed every day and felt she put God first in her life.
·The most recent DFAT country report on Iran[1] was discussed in relation to Christianity:
[1] DFAT Country Information Report Iran, 14 April 2020
3.37
Christians According to the most recent national census (2016), there are 130,000 registered Christians in Iran. Ethnic Armenians concentrated in Tehran and Isfahan are the largest group of recognised Christians. Other recognised Christian groups include Assyrians, Chaldeans and Sabean-Mandaeans, although the latter group does not self-identify as Christian. Those citizens able to prove they or their families were Christian prior to 1979 are also recognised. Conversions after 1979 are not recognised (see Unrecognised Christian Groups (House Churches)). The ethnic churches have different denominations – there are Assyrian Catholic, Orthodox and Presbyterian congregations – but the members of the various denominations maintain close links within their own community. Because the law prohibits citizens from converting from Islam to another religion, the government only recognises these groups because their presence in Iran pre-dates Islam. Recognised churches are required to deliver sermons in their traditional language. Farsi-language services are not permitted, as they could promote proselytisation. There are approximately 20 officially recognised Christian churches in Iran. All pre-date the Islamic Revolution (the authorities have not granted permission for the construction of new churches since 1979).
3.38
The activities of recognised Christian communities are closely regulated, to guard against proselytisation. All Christians and Christian churches must be registered with the authorities, and only recognised Christians can attend church. Security officials closely monitor registered churches to verify that services are not conducted in Farsi, and perform regular identity checks on worshippers to confirm that non-Christians or converts do not participate in services. Authorities have closed several churches in recent years for failing to comply with these restrictions, including churches that had existed prior to 1979.
3.39
Despite these restrictions, community leaders associated with recognised churches report that the authorities respect their religious rights, and their communities are able to act freely in their own spaces without government interference (including holding mixed-gender gatherings, using alcohol for ceremonial purposes and allowing women to uncover their heads). A local Christian from Tehran told DFAT they experienced no official or societal discrimination, and felt comfortable practising their faith.
3.40
DFAT assesses that, while their congregations are monitored and they are subject to restrictions, Christians from recognised churches are permitted to practise their faith. DFAT further assesses that, except for their exclusion from senior government, military, intelligence and judicial positions, recognised Christians who do not engage in proselytisation activities face a low risk of official discrimination.
…….
Unrecognised Christian Groups (House Churches)
3.49
The Penal Code strictly prohibits proselytisation by religious minority groups — it is a capital crime for non-Muslims to convert Muslims. Against this background, the three recognised minority religions do not proselytise or accept converts. Strict instructions not to minister to Iranians apply to all recognised churches, including the small number of Latin Catholic and Protestant churches in Tehran and elsewhere that cater to expatriates. To enforce this prohibition, authorities closely monitor recognised churches (see Christians). DFAT understands that recognised churches regularly receive telephone enquiries from individuals falsely claiming to be interested in converting, as a way of testing their adherence to the prohibition on converts.
3.50
Iranian Christians who are not members of recognised churches generally practise in underground ‘house churches’. The secrecy surrounding house churches makes it impossible to provide an exact number of house churches or unrecognised Christians in Iran. The Special Rapporteur on the situation of human rights in Iran estimates there are between 300,000 and 350,000 Muslim converts to Christianity, with international Christian advocacy groups citing significantly higher numbers. While precise figures are elusive, Iran has a growing unrecognised Christian population. DFAT understands a high percentage of unrecognised Christians are Farsi-speaking converts from Islam, or the children of converts. Some converts reportedly travel to Turkey (with which Iran has visa-free travel arrangements) to be baptised, then return to Iran and practise in private. Local sources claim many converts are unhappy with being designated Muslim at birth and wish to explore their religious identity. Others see adopting Christianity (albeit surreptitiously) as a form of protest against the government.
3.51
According to international observers, house churches exist across Iran, particularly in major cities. DFAT understands that most house churches follow evangelical Protestant teachings and tend to be situated in more affluent and liberal parts of major cities (including north Tehran). House churches vary in size, style and structure. Most are small and informal, and consist of close family and friends gathering on a regular or semi-regular basis to pray, worship, read the Bible and/or watch Christian television programs broadcast via satellite or discs smuggled from abroad (including in Farsi). Other house churches may be larger, and may grow organically as members share their faith with family and friends. While some groups do not have any formal links with other Christian groups, others are part of house church networks within a particular city or area. Some house church leaders are trained in Christian theology (either online, via Christian satellite television or through residential courses completed outside Iran). A growing number of house churches have ‘Internet pastors’, where a foreign-based preacher leads the church and provides instruction remotely via the Internet. DFAT understands that house church congregants regularly change houses to avoid detection.
3.52
Authorities interpret the growth in house churches as a threat to national security and periodically carry out raids against them. Raids focus particularly on house churches that actively proselytise or seek out new members. DFAT is unable to verify if the frequency of raids of house churches is increasing or whether a warrant is required to execute a raid. Local sources were unaware of any raids in the first half of 2019, although raids may not necessarily be publicised. According to the UK Home Office, the authorities use informants posing as converts to infiltrate house churches. Where the authorities receive a report of a house church, they may initiate a monitoring process to survey and collect information about its members. Local sources told DFAT that the authorities do not actively look for house churches. Rather, raids – where they occur – are usually the result of tip-offs by Muslim neighbours.
3.53
The judiciary has handed down long sentences in relation to house church activities. In July 2017, the Revolutionary Court convicted eight Christians of ‘acting against national security through the establishment of a house church’, ‘conducting evangelism’ and ‘insulting Islamic sanctities’, and sentenced the group to between 10 and 15 years’ imprisonment. Among those sentenced were Victor Bet-Tamraz, an Assyrian Christian pastor and former head of the Assyrian Pentecostal Church in Iran, and a Christian convert arrested during a private Christmas gathering in Bet-Tamraz’s Tehran home. In January 2018, Bet-Tamraz’s wife was sentenced to five years in prison for ‘acting against national security by organising house churches, attending Christian seminars abroad and training Christian leaders in Iran for the purpose of espionage’. Bet-Tamraz and his wife have been released on bail, but reportedly remain the subject of close surveillance. A priest, Ebrahim Firouzi, was arrested in 2013 on allegations of ‘promoting Christian Zionism’ and handed a five-year prison sentence on charges of acting against national security.
3.54
According to media reports, nine Christian converts received five-year prison sentences in December 2019. At least three of those sentenced had reportedly been arrested in a house church in Rasht (Gilan Province). In June 2018, four Christian converts were sentenced to 10 years’ prison each, and another 114 were reportedly arrested on charges of proselytising in December 2018. In March 2018, 20 Christian converts allegedly participating in a workshop were arrested near Karaj (most of whom were subsequently released). Christian advocacy groups claim that authorities pressure some church leaders to emigrate, either through direct threats or through intentional harassment (including daily summons to security offices for questioning, confiscation of identity documents or forcing them out of their jobs).
3.55
DFAT assesses that small, self-contained house church congregations that maintain a low profile and do not seek to recruit new members are unlikely to attract adverse attention from authorities beyond monitoring and, possibly, low-level harassment. Members of larger congregations that engage in proselytisation activities and have connections to broader house church networks are more likely to face official repercussions, which may include arrest and prosecution. Of particular interest to the authorities are the leaders of house church congregations, who, according to local sources, face a higher risk of arrest and prosecution than ordinary congregants. According to these sources, while there have been instances of ordinary congregants being prosecuted, this is not common — most are released.
3.56
Despite occasional arrests and prosecutions, the authorities do not actively search for Christian converts and, as far as DFAT is aware, do not employ people exclusively for this purpose. DFAT assesses that a Christian convert would not face harm if they maintain a low profile, do not openly proselytise and are not of interest to the authorities for other reasons (e.g. political activism). Official sources told DFAT that converts who keep their beliefs private are not of interest to the authorities. Those who openly propagate Christianity and seek to convert others, in contrast, would draw the attention of the authorities, and face a high risk of official discrimination, including harassment, arrest and prosecution, and some societal discrimination. Local sources were not aware of Christian converts being executed for apostasy in recent times. DFAT assesses the risk of execution for conversion/apostasy to be low (see Religiously-Based Charges).
3.57
International observers report that Iranians who convert to Christianity abroad are unlikely to face adverse official attention upon their return, provided they have not previously come to the attention of the authorities for political activities, maintain a low profile and do not engage in proselytisation activities. This includes individuals who publicise their conversion online while abroad. According to local sources, in 2017 an Iranian mother and her child who were baptised in Turkey were briefly detained on their return to Iran (they were carrying baptism certificates), but then released. DFAT understands such arrests are not common (see Conditions for Returnees).
3.58
DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed. Christians found to be proselytising face a high risk of arrest, prosecution and imprisonment. DFAT assesses that Christian converts face a high risk of societal discrimination in the event their conversion becomes widely known, particularly if they are from more religiously-minded Muslim family backgrounds. This may involve ostracism from one’s family and discrimination in employment.
·The Tribunal questioned whether the third applicant was low profile and therefore had a lower risk. The country information stated that low-profile house church members in small gatherings were unlikely to attract adverse attention. She disagreed and said she was higher risk – she could not practice her religion freely as she does in Australia. She said she believed in the great commission as mentioned in the gospel of Matthew - to share the good news with all nations and people, and said she did this with her friends and colleagues. She felt it was her duty to do this and she saw miracles in people’s lives in Australia when she did so. She would do this in Iran as well.
Witness: [Reverend A]
·The witness is a pastor to the second and third applicants. He met them for the first time in 2017. His Persian speaking congregation has 80 to 85 people attending services. It has 150 to 200 people registered. The witness does not believe that the applicants will drop their beliefs if there are hardships. He said the second and third applicants experience hardships in Australia and they are faithful. This to him suggested they would persevere if they returned.
·The witness said that the third applicant was only interested in Christians as a potential marriage partner. This was potentially a harder road to take.
·The witness said the state-tolerated churches generally do not evangelise and are not political out of necessity. However, even the state-approved church members would have a fear. The house churches that were not state approved still were not safe even if quiet and small. Relatives of the witness still received threatening calls just for worshipping. Even people in state-tolerated churches experienced threats.
·The first applicant is not a Christian and claims to be a Baha’i follower, the Tribunal noted. The witness was asked if her daughters’ Christianity might be imputed to her if she returned to Iran. The witness said was not sure, but he had witnessed many cases in Australia where a man became a Christian and the family back home in Iran were in trouble as a result. They would receive threats. This had even occurred in his own family. Association with non-Muslims would put people in a negative light. They might be seen as infidels. There is informing on Christians – people in Australia can tell others back in Iran, sometimes with gossip and sometimes with bad intent. Gossiping and back-biting are unfortunately prevalent in Iranian society, perhaps more so than in other cultures, he said.
Findings and evaluation
Baha’i claim

The Tribunal has given consideration to the claims that the first applicant is a Baha’i follower.
The Tribunal found the first applicant’s account of how she came to be involved in Baha’i practice to be vague and uncertain.
The Tribunal is particularly concerned with the account of police authorities coming to her apartment which she submitted was because of her involvement in Baha’i practice. However, the Tribunal did not discern clear reasons as to why she thought police authorities were visible around her apartment. The Tribunal asked why the first applicant left around suddenly and she said it was because a neighbour reported her and “they came to arrest her.” The Tribunal considers her account of going to apartment opposite staying with a friend for ten days to be implausible. She did not know who opened the door to those in a military uniform. I do not accept that a family member happened to be looking out of the window and saw military people. I do not accept that they rang the bell and when she heard it she saw them. She could not identify them as religious police for example, only that they wore security outfits. I find it speculative that she knew it was about a religious matter when it could have been another matter on this account. I do not accept that a friend’s husband who is a security officer informed her to be careful. The Tribunal is also concerned about how upon arrival in Australia the applicant gave an incorrect story that she had gone by land to [Country 1] and does not accept that this was done only to enhance the claim because of poor advice. It detracts from the credibility of the applicant.
While I find the first applicant has had an involvement with Baha’i groups in Australia and knows some detail about the faith, it observes that recent contacts are said to have been online. I also note that she is not accepted as a Baha’i follower yet, although this process can take very long time. The Tribunal has such strong doubts about her claims about Baha’i involvement and the claimed reasons for leaving Iran that it positively does not accept that she is an adherent of this religion. This is so even though the Tribunal acknowledges that there are certain testimonials and other evidence claiming her adherence.
Christian Claims
The Tribunal is satisfied that the second and third applicants are active and devout Christians. It accepts that they came to their faith spontaneously and of their own free will through being introduced to church. They gave straightforward and consistent evidence in writing and in the hearing.
The written and oral evidence of the [Reverend A] was also unequivocal on this point. The former priest in charge [Mr D] also wrote a personal and detailed account of knowing the parties and seeing ample evidence of faith in their lives. There are letters of commendation acknowledging their Christian belief and baptism and confirmation certificates submitted.
While DFAT draws something of a distinction between seemingly safer state-tolerated churches, and underground churches, the Tribunal finds that in both there is a real prosect of threat regardless of whether the individual evangelises or is public.
In any event I find both of these applicants are evangelistic and involved in their church. While their faith would be severely tested in Iran it would only be remote possibility that they would abandon it. I note that at least one of the applicants avoids forming personal relationships with non-Christian men as a part of her ethical code. Noting that the parties are young and accomplished women, the Tribunal agrees with the witness that this is untypical in society and is a mark of seriousness.
The parties also gave consistent accounts of how and why they evangelise and could cite biblical authority for this. In DFAT’s terms they would openly propagate Christianity and seek to convert others, and draw the attention of the authorities, and face a high risk of official discrimination, including harassment, arrest and prosecution, and some societal discrimination.
Worsening the prospects of living peacefully is by all accounts a vengeful father who has not forgiven his wife for once forming another relationship and opposes his daughters because they accepted the relationship. While he may not carry out harm himself, I accept that gossip spreads, possibly from Australian relatives, sometimes innocently, but the parties would be unlikely to be anonymous if returned to Iran. The applicant’s psychologist - [Dr E] (Clinical Psychologist) - wrote on 20 December 2021 that the first applicant’s ex-husband has made threats about making trouble for her when she returns to Iran including exposing her to the Iranian Government for changing her religion and becoming a Baha’i. He added that her ex-husband is one of her close relatives and unfortunately, she becomes aware of his intentions through family members who inform her of his threats, which in turn increases her distress level. He also has refused to divorce her to date which means as soon as she goes to Iran, he has every power to create problems for her because she is still officially his wife.
All three applicants might well be tarred with an ‘infidel’ description, because of their beliefs, and attitudes towards the marriage in question. The first applicant may well have an imputation of Christianity or supporter or fellow traveller of her Christian daughters. The country information paints a picture of there being guilt by association with non-Muslim or anti-Muslim persons. The Tribunal does not consider that potential perpetrators would make a distinction between the mother and her daughters in this case, especially as the daughters are young people and to a substantial degree still need their mother.
I find that the harm the Iranian state would impose upon the applicants as apostates who rejected Islam, embraced Christianity and are actively proselytising amounts to serious harm (or in the case of the first applicant linked and associated as earlier described). As such I find that the applicants face a real chance of serious harm in the reasonable and foreseeable future for reasons of religion were they to return to Iran.
As the perpetrator of the harm is the state and the Iranian government has control of all areas of the country I do not accept relocation as a viable option nor the option of state protection. Furthermore, I have considered whether the laws that justify the serious harm being brought against the applicants can be considered laws of general application. Chief Justice Brennan has noted that for applicants to claim protection based upon feared persecution by the state then the laws ‘must be discriminatory’ and ‘for the reasons of one [the prescribed] categories.’ [2] In the circumstances of this case I find that the Iranian court’s tendency to defer to particularly strict interpretations of Islamic jurisprudence in cases of apostasy is discriminatory for reasons of religion.
[2] Applicant A v MIEA (1997) CLR 225 at 233
It targets on the basis of religion those who are no longer practising Muslims. It is the applicants’ faith that would lead to them being persecuted by the state (or in the case of the first applicant linked and associated as earlier described).
I now consider whether the law is appropriate and adapted to achieving some legitimate object of the country. In Chen Shi Hai v Minister for Immigration and Multicultural Affairs at [29] the majority of the High Court said:
Whether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity. Ordinarily, denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education involve such a significant departure from the standards of the civilised world as to constitute persecution. And that is so even if the different treatment involved is undertaken for the purpose of achieving some legitimate national objective.
In this case, the limitation on their ability to practise their religion stems from a state sanctioned application of Islamic law which threatens apostates with death albeit rarely implemented. The limitation upon people in changing their religion has a government object couched in religious terms but very political in nature, namely to maintain the Islamic Revolution. Whether this is appropriate and adapted to achieving a legitimate government object requires further consideration, in particular of what is legitimate. The courts have provided guidance by finding that a legitimate object protects or promotes the general welfare of the state and its citizens but when its enforcement places additional burdens on members of a particular race, religion, nationality or social group then the proportionality of the means employed to achieve those objects should be considered.
In considering the proportionality of the laws against conversion I find that they do not rise to a level of legitimate object such that it justifies offending the standards of civil society which is the case of any law that prevents the freedom to choose to practise the religion of one's choice.
The applicants have well-founded fears being persecuted for reasons of religion or implied religion. The reasons are the essential and significant reasons for the persecution; the persecution involves serious harm to them and the persecution involves systematic and discriminatory conduct.
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s 36(2)(a)
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.
Justin Meyer
Member

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

[2022] AATA 2612

10 June 2022

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