1806389 (Refugee)

[2019] AATA 6014

1806389 (Refugee) [2019] AATA 6014 (23 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1806389

COUNTRY OF REFERENCE:                   Iran

MEMBER:Denis Dragovic

DATE:23 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 23 July 2019 at 9:48am

CATCHWORDS

REFUGEE – Protection visa – Iran – Federal Court remittal – religion – Christian faith – Christian conversion – not a genuine Christian conversion –credibility concerns – amend his story to achieve desired visa outcome – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 91,424, 499

Migration Regulations 1994, Schedule 2

CASES

CLS15 v Federal Circuit Court of Australia [2017] FCA 577

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Iran, applied for the visa on 12 November 2012 and the delegate refused to grant the visa on 14 March 2014. Based upon evidence provided at the hearing I accept that the applicant is a citizen of Iran.

3. The matter is before the Tribunal because of a court order. The court order pertains to the earlier Tribunal’s review in which the member concluded that the applicant was not a genuine Christian, but in assessing the level of risk the applicant faced in returning to Iran was found to have used the word ‘likely’ in one paragraph without due care being taken in considering its full meaning and how such meaning aligns with the judicial test for persecution. If the meaning of likely was taken into consideration the court was of the view that based upon information from the decision it left open the real possibility that the applicant would face persecution.

4. The applicant appeared before the Tribunal on 10 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Pastor A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

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

   RELEVANT LAW

6. 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, the applicant 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.

   Refugee criterion

7. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

8. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

9. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

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

11. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

12. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

13. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

14. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective element to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50%.

15. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

16. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

17. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

18. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

19. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

20. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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

21. Summary of claims: The applicant claims to fear returning to Iran for reasons of his new found Christian faith and the consequences he would face from the regime was he to seek to practice his faith in Iran.

22. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Consideration of evidence and finding of facts

23. The applicant is [an age] year old Iranian who was born into a Muslim family. He studied [in] Iran before moving to Australia in 2012. His father continues to live in Iran in [deleted] while his sister lives in Tehran.

24. The applicant departed Iran on his own passport in his own name.

25. The applicant has a brother in Australia with whom he doesn’t speak much. The applicant claims not to know of his brother’s reasons for coming to Australia but confirmed that his fears of returning to Iran are not related to those of his brother and nothing arising from his brother’s claims affects him.

26. I accept the above evidence as fact.

    Christian conversion

27. The applicant explained his faith journey as follows. In Islam, when boys reach the age of 15 they have to practise their faith regularly and ‘perfectly’. As he learned more about Islam he realised that he never sensed Allah in his heart and at the same time he would find questions that could not be answered. He claimed that he felt he could not remain in the religion. He believed that if he stayed he could only follow a quarter of the Koran but that wasn’t safe for people. He gave the example that in the Koran it is taught to kill anyone who doesn’t believe in God, even Christians and Jews.

28. When he tried to ask people in his school about this they would get upset and not answer him. So instead he asked the same questions to a Christian friend called [Mr B]. The applicant didn’t believe in Jesus at that time but slowly lost his belief in Islam. At the same time he was interested in learning about Zoroastrianism but couldn’t find enough information.  

29. As he had given the reason for leaving Islam that he couldn’t abide by the harsh passages that he didn’t agree with, I put to him that in Islam there is a concept called abrogation, which is an interpretive tool used to overcome apparently contradictory verses. This includes placing different emphasis upon passages revealed during the Mecca and Medina periods. I put to him that this is used to explain the questions he had. I put to him that I questioned how hard he had really tried to find answers if the answers could be found relatively straightforwardly.

30. He responded that his problem wasn’t only with the Koran. It was the God that was worshipped in Islam. He said that the truth of Allah is that he was just a statue in the Kabbah and had three daughters. I rephrased the question as he was not answering it, specifically stating that the reason he had claimed to have left Islam was because he could not find answers to those passages in the Koran that upset him. I put to him that these answers are readily available and asked him how deeply he searched for answers to try to understand Islam. He said that in Islam you have to do all you can to satisfy your God by praying five times a day. The applicant once again did not answer the question. I asked him again why he left Islam. He said that he couldn’t get to the bottom of the questions that he had in his mind. He gave a different example, questioning why the Koran is only for Arabic speaking people and that even following Koranic instructions should be in the Arabic language. Or why should a believer go to the Kabbah. Instead, he thinks that God can be anywhere and you can reach God using any language.

31. He emphasised that he couldn’t sense Allah in his heart. He found in his research that the Koran refers to Jesus 25 times and 11 times to the Saviour. He also mentioned that in Surah 19 Ayah 30 of the Koran, Mary is mentioned and it discusses how Jesus died and was given life again. So he speculated that maybe the Koran says to everyone, follow Jesus and follow Christianity.

32. He explained that when he was in Iran he couldn’t find a Persian Bible in the country but he was interested to find out more about Christianity. While he was at university he couldn’t find anyone who knew about Christianity, instead he faced a situation in which he had to study Islam and pass courses on Islam.

33. While he was undertaking his military service he felt that he, along with others, were pushed to follow Islam and keep practising. If recruits didn’t accept praying to Allah the army would send people to jail for a few days. He said that he was confused at that time - if Allah loves us, why so much pushing. He was never imprisoned, though he had friends who were. He was scared so he just followed the leaders.

34. I put to him that at the previous hearing he claimed that his interest in Christianity began through his friend [Mr B] while he was in Iran. I noted that since then, in a submission dated 7 May 2019, the representative stated that the applicant ‘misrepresented certain aspects of his reasons for fleeing Iran.’ At the Tribunal hearing, the applicant explained that he realised that he had to be honest as a Christian as he had found Jesus in his heart. He said that he was baptised in 2013. I asked him whether he had maintained the story of [Mr B] at his last hearing in 2015. He admitted that he had. I put to him that he maintained the lie for a period of two years after becoming a Christian. He explained that he continued to lie because he was scared. He also added that he didn’t believe at that stage that Jesus was his saviour. I asked what he was scared of, to which he responded of being sent back to Iran. He was scared because he thought Australia was a great country for Christians. I asked why he would fear returning to Iran when he wasn’t a Christian at that time since he hadn’t accepted Jesus as his saviour. He said that he would have returned to the same situation of questioning his religion. He also feared that he would never be able to find a good job. He explained that when he finished university and national service he was looking for work and found jobs in some places but because of his religious beliefs he couldn’t keep them. He explained that the government has put people into companies who monitor others to ensure they are following the rules of Islam. He added that when you have an interview about a job they don’t ask about skills but whether you fast and maintain the religious obligations.

35. He said that he passed an interview in a [workplace] where he worked for a few weeks. He had another interview for a job but he was asked about his religion and how he prays, whether it’s regularly or ‘perfectly’. I asked how he knew it was for that reason that he didn’t get the job. He responded that based upon his understanding there are only two reasons for being given employment: one is religious and the other is work experience and education. He explained that there are two stages of interviews, firstly a religious interview and then the second based upon qualifications. He said that he didn’t get through the first stage. I put to him that he may not have been invited to the second one because of a lack of experience. He said that he had experience beyond the two weeks in the [workplace] including the equivalent of a TAFE certificate.

36. He further added that all employees are under surveillance by Herasat (the agency which monitors religious adherence). I put to him that his concerns about surveillance are true for government employment, less so for large scale companies and not for small companies. He said that the government obliges private companies to have Herasat on site with a Mullah in charge. He agreed that small companies don’t have Mullahs. But he said that he can’t work in a small shop because he did [an Occupation 1 course].  He said that all shops have to close during prayer time and people go to pray. I put to him the information from the World Values Survey which found that nearly a quarter of Iranians never attend religious services and another 23% only attend on holy days.[1] He responded that they have to go and pray. I asked him to tell me how it is and not how it should be. He gave an example of a school. I explained that the school and military service are different circumstances to a work environment. He said that if he wanted to work in a place where he wouldn’t be required to go to a mosque then he’d be missing out on a number of opportunities.

    [1] World Values Survey, ‘Iran Wave 2005-2009 Online Data Analysis: V186.- How often do you attend religious services’, available at [accessed 16 Sept. 16]. 

37. I asked if he did anything in Iran that would lead to the authorities being interested in him to which he responded that he had not.

38. The applicant provided information on his Christian studies when in Australia. He said that while at [a location] he attended some Bible study sessions where he learned about Christianity. He was there only for one month before being sent to [City 1], where he met Pastor [C]. There he attended church on Sundays. There was a Catholic minister there with whom he spoke, and he received a copy of the Bible from him. He subsequently obtained a Persian Bible. He spoke to Pastor [C] about sharing Christianity with others and so he started Bible study classes with the other Iranians (certificate provided in submissions). He claims that he was the leader of those sessions.

39. After two or three months in [City 1] he was moved into the community in [City 2]. He asked the interpreter where he could go to practise Christianity and that is how he found [Church 1].

40. I noted to the applicant that the chronology of his application appears to suggest that days after his release from detention he was baptised and the very next day he lodged a protection visa application. I said that the order of events and rapidity made it seem contrived. He explained that there was a process and the dates were given to him by the Department. I explained again that the dates appear to infer that he waited to be baptised before applying for protection. He explained that through his studies he learned that Baptism alone was not sufficient to make you a full Christian. The representative usefully noted that the actual date the application was completed was a fortnight before the Department received it and as such the application was completed prior to the Baptism. Due to this explanation I place no weight on the chronology of events.

1. I asked the applicant what he aspires to as a Christian. He responded that he wants to be like Jesus Christ. He quoted the Bible explaining this. I clarified asking him to explain what it means to him to live a life as a good Christian. He said continuing along the path of Jesus. I asked again what that means to him. He said that Jesus loved us so much that he died for us and he wants to share this reality. I asked if there was anything else. He added that when you believe in Jesus you feel your body is Jesus so you don’t want to harm your body by doing such things as lying. I put to him that we already established that he had lied. I asked if some lies are okay. He said that he feared returning and that is why he lied but in general lies are not okay. I put to him that I had asked him three times and received limited answers to the question of what he aspires to, and so rephrased the question, asking how being a Christian has changed how he wants to live his life. He then quoted from the Bible, John 16:4: ‘Just the one way to God and heaven is Jesus Christ.’ (This quote is not correct but I place no weight on this as I am not testing the applicant’s capacity to memorise text.) I noted that the question was not being answered and asked for the fourth time, using these words, ‘how has it changed your life, how do you act differently, what do you aspire to differently after you read the Bible, what does that mean to you?’. He said that his realisation of the importance of being honest is one example and that he believes in Jesus. He did not add anything further.

2. I asked him to clarify his earlier statement ‘Jesus loved us so much that he died for us so I want to share this reality’. He explained that he wants to share with other people that if they have Jesus in their heart they will be safe for ever. He explained that he and [Pastor A] have had a number of witnessing sessions (sharing what is in his heart with an Iranian person who wanted to know more about God). These sessions involve just him and [Pastor A] in a Christian library. Another example is of a person who came to the church where the applicant met him and spoke of his faith journey to the man. He also gave the example of an Australian person who was going to marry out of Christianity into Islam. The applicant explained his experiences of moving out of Islam and into Christianity to that man.

3. I heard from the witness, [Pastor A] of the [church] the applicant attends. He said that many Iranians who have come to his church think that they are adopting a religion like a football team. They will agree with the pastor when they hear of Jesus because they know of Jesus through the Koran. But the real process is a journey. Moving from acknowledging the teaching to a belief in Him being their personal saviour. The Pastor said that he believes the applicant has gone on that journey. He can’t say a date as to when that began. Somewhere along the way he had the born again conversion experience. I also acknowledge earlier submissions made to the Department by the pastor which align with the evidence he provided at the hearing.

4. I put to the applicant information under s.424AA. I noted that at the last hearing he added a claim that his father’s phone was tapped because of his son’s attendance at church in Iran and that his father continues to be asked by security agencies about the applicant’s location and that the father was interrogated but did not reveal where he had gone. The applicant said that this claim was not true. He had said it for the reasons that he had explained earlier in the hearing. The second matter put under s.424AA was related to his employment. I put to him that at the previous Tribunal hearing he had claimed to have worked as an [Occupation 1] for two years, at the entry interview he said he had no job and was unemployed and at today’s hearing he said that he had worked for only two weeks. I explained that this was relevant as it may lead to questioning his credibility. He acknowledged that that was also a lie and that he had tried to make his case stronger but added that as of today’s hearing he is telling the truth. The third matter put to him under s.424AA was from his previous Tribunal hearing relating to the name of the church he attended when he moved away from where he was living in [City 2]. At that hearing he had said that he couldn’t remember the name of the church but that it was in the suburb of [Suburb 1]. I asked him whether he remembered saying this. He said that he could not remember what was said. I asked if he remembered attending any church in [Suburb 1] to which he responded that he had never been to a church in [Suburb 1]. I read to him from the previous Tribunal decision, ‘The Tribunal asked the applicant about his participation in church in Australia. He responded that because of his work he goes when he can on Saturday and Sunday. He goes every 2 to 3 weeks but he has now moved and attends a new Church closer to his home but can't remember the name, it is in [Suburb 1] but he hasn't been going long, maybe 2 to 3 weeks’ (paragraph [37]). He then said that he remembered saying that. He said that at his last interview he didn’t believe that Jesus Christ could save him and as such he lied, he hadn’t gone to any church in [Suburb 1].

5. I noted to the applicant that he had told a lot of lies and asked why I should believe him now. The applicant responded that he is truthful now and people who he is with now are true believers in Jesus Christ and they can testify to that.

6. I now turn my mind to consider the applicant’s claims of being a genuine Christian convert. The applicant has engaged with the Australian government on numerous occasions, beginning with an entry interview upon arrival by boat to Australia in 2012, submitting a protection visa application to the Department and appearing before an earlier constituted Tribunal, at each stage presenting evidence. Through this period the applicant had maintained consistent claims about why he fled Iran. They were first enunciated in his statutory declaration accompanying his protection visa application dated October 2012, in which he wrote that he fled Iran because he had an interest in Christianity, had attended a church and taken a photo from inside, which was subsequently found. This led to the intelligence organisation, Etilaat, searching his house and pursuing him. He added to these claims by stating at the previous Tribunal hearing in 2015 that his father’s phone was tapped and that he continues to be asked by the security agencies about the applicant’s location and that he continues to be interrogated.

7. In a pre-hearing submission the representative stated that the applicant had misled the Australian government by embellishing his claims to include that he attended church in Iran, and took a photo from within the church, which was subsequently found and that led him to flee. It was not until this submission, dated 7 May 2019, that the applicant had clarified that he had no reason to fear returning to Iran based upon the circumstances that arose while he was living in Iran.

8. For this reason I do not consider further his claim as presented at the prior Tribunal hearing that he was ‘blacklisted’.

9. This is relevant for two reasons: firstly, the entirety of the applicant’s claims now rest on his actions in Australia and in particular his claimed conversion to Christianity and secondly, these actions contribute to a perception that the applicant has a problem with telling the truth and will amend his story to achieve his desired visa outcome.

10. The applicant claims that he has genuinely converted to Christianity. He has provided a certificate of appreciation from Serco for his role as a Church Leader while in [detention]; a letter from Father [C], a Catholic priest and the Chaplin of [the] Immigration Detention Facilities; and a letter of reference from [Pastor A] dated [March] 2013, along with evidence provided by a witness at the hearing and the applicant’s own testimony.

11. The first question to consider is whether the applicant converted only on paper for the sake of furthering the chances of his asylum application or alternatively whether he undertook a genuine spiritual conversion that is informing him on how he lives his life. I note that when I asked him questions about how his life has changed or how he intends his life to change the answers were limited. The impact his conversion appeared to have made upon his life could be characterised as skin deep. The applicant was quick to reference the Bible, albeit mistakenly in at least one instance, but assessing the genuineness of a religious conversion is not a memory test. It needs to delve deeper into whether the applicant sees the world anew, to be born again as the Pastor described. I was not convinced that this was the case. His willingness to lie and then to continue to maintain his lie about why he fled Iran, despite converting to Christianity in 2013 by way of baptism and attending Bible studies and services, weighs heavily in my decision. That he not only lied but upped the ante by adding new claims about his father further seeds doubt in my mind over the applicant’s willingness to tell the truth. Had he embraced Christianity as he had claimed such that he did not want to lie then I would expect that to have occurred some time in the preceding six years and not a few days before the Tribunal hearing. I respect the witness’ statement that converts are on a journey and there is no fixed date when the moment of realisation that Jesus is one’s personal saviour occurs. I also acknowledge that the applicant has participated in Christian outreach activities and place some weigh on that but note that they were limited in scope and arranged by others and ultimately are only one aspect that goes to the genuineness of a conversion.

12. I accept that the applicant labels himself as a Christian and accept that he has converted to Christianity through a baptism process but I find that it is not a conversion that shapes his decisions and actions and therefore find that it is not what would be referred to as a genuine Christian conversion. As such I find that the applicant without an incentive to obtain a visa, would not be involved in Christianity and free from fear in Iran would not seek out a Christian church to participate in mass. 

13. Despite not accepting that the applicant’s conversion is genuine it is relevant that at the hearing the applicant claimed that there was publicly available evidence of the applicant’s conversion in the form of an announcement on the church’s website regarding the applicant’s Administrative Appeals Tribunal hearing. A screen shot was provided of the advertisement as it was not appearing on the website at the time of the hearing. I accept that the advertisement was uploaded for a period beginning 6 May 2019 and remained publicly visible until 10 May 2019.

    Considerations

14. I now turn my mind to considering the circumstances the applicant faces returning to Iran as a failed asylum seeker, a Christian convert on paper, someone who has participated in Christian activities, and his employment prospects, among other claims.

    Harm arising from being a failed asylum seeker

15. The applicant stated that if he had to return to Iran he would not do so voluntarily.

16. The Iranian Foreign Minister, during his March 2016 visit to Australia, stated that Iran would only accept failed asylum seekers from Australia who returned voluntarily.[2] On 19 March 2018 Iran and Australia signed a Memorandum of Understanding (MOU) on Consular Matters that includes an agreement by Iran to facilitate the return of Iranians who arrived after this date and who have no legal right to stay in Australia.

    [2] ‘Iran would welcome back asylum seekers “with pride”, Iranian Foreign Minister says’, 2016, ABC News, 16 March, < accessed 25 January 2019.

17. Charlesworth J in CLS15 v Federal Circuit Court of Australia [2017] FCA 577 stated at [64] that, ‘It is for the Tribunal to determine, on the evidence before it, whether or not the appellant can be forcibly returned to Iran and hence whether a fundamental premise of this aspect of his claim exists.’ Based upon the long history of the Iranian government not accepting involuntary returnees and that only in recent times a diplomatic breakthrough led to a change of position, I find that into the reasonably foreseeable future the Iranian government will not again give ground and revisit its agreement not to accept involuntary returnees prior to the date of the MOU. For this reason, if the applicant persists in not returning voluntarily I find that he would not return and as such would not face a real chance of serious harm or a real risk of significant harm. Alternatively, despite his insistence that he would not voluntarily return, I have also considered the circumstances if he was to return to Iran in the reasonably foreseeable future voluntarily and any integers that are associated with this, including his extended period abroad.

18. I presented the following country information to the applicant:

    5.25 According to international observers, Iranian authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government – heavy internet filtering means most Iranians will never see them – converting to Christianity, or engaging in LGBTI activities.[3]

    [3] Department of Foreign Affairs, DFAT Country Information Report: Iran, 7 June 2018 at [5.25].

19. The applicant responded by saying that this is about people who can hide their beliefs. With regards to his situation he feels that it can be a big risk because he can’t hide his beliefs and he wants to be among people who believe in Jesus Christ with all their heart. He said that he will perform his role until Jesus comes back. He said that he wants to die for Jesus Christ. I challenged him on this considering his claims that he feared harm. He clarified that if it’s a risk for him and he had to die he’ll see Jesus one day.

20. I note that there was publicly available information uploaded onto the church’s website for a period of four days which indicated that the applicant had a hearing at the AAT. The information does not indicate for what visa class the hearing was for. As such there is no publicly available information to indicate that the applicant has sought protection. Based upon this information, from the perspective of considering the risk the applicant faces for having sought asylum, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm.

21. In considering the country information and the applicant’s evidence through all stages of the review process I find that the country information is explicit in the authorities paying little attention to a failed asylum seeker and find that implicit in the country information is that this includes people who are abroad for an extended period, based upon the words, ‘many will seek to live and work overseas’. Was he to return voluntarily he will not be questioned at the airport, he will not be asked whether he has converted, and the authorities would not know of his activities in Australia. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm for reasons of being a failed asylum seeker returning to Iran.

    Harm arising from claimed conversion to Christianity

22. I have found that the applicant has not undertaken a genuine Christian conversion. As such upon return I do not accept that he would practise Christianity. The consideration I now turn my mind to is whether the applicant faces harm for converting on paper to Christianity and participating in Christian activities while in Australia.

23. DFAT country information discussed with the applicant and referenced above at [58] states that, ‘authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government – heavy internet filtering means most Iranians will never see them – converting to Christianity, or engaging in LGBTI activities.’

24. Additionally, country information from DFAT states in the context of genuine Christian converts:

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

25. In response to this country information the applicant said that he probably agreed with the assessment. He maintained that he was a genuine convert and emphasised that the information is applicable to people hiding their Christian beliefs but not for people like him who believe in Jesus Christ in their heart and cannot hide it.

26. I note that the information at [64] is in the context of genuine Christian converts, but nevertheless, it could be relevant to the applicant’s activities and process of conversion overseas when it states, ‘International observers advise that Iranians who convert to Christianity outside the country are unlikely to face adverse attention from authorities upon return to Iran, provided they have not previously come to the attention of authorities for political activities conducted in Iran.’ As I have found that the applicant is not a genuine Christian convert, the DFAT report’s full reference including to maintaining a low profile and not engaging in proselytisation or political activities is not relevant. Instead, I engage with the first half of the statement.  

27. Having regard to country information as discussed at [58] and [66], I find that, based upon the applicant’s circumstances, including that he does not have a political profile or any profile with the authorities prior to his departure, he does not face a real chance of serious harm or a real risk of significant harm into the reasonably foreseeable future.

28. I accepted that there was publicly available evidence in the form of an announcement on the church’s website of the applicant’s Administrative Appeals Tribunal hearing. It is not clear the extent to which the site was viewed. It is farfetched to believe that the Iranian authorities would be monitoring the website for the reason noted by the above quoted country information at [58], namely that they have little interest in Iranians who conduct activities outside Iran, including converting to Christianity. While it is possible that the website was archived and information could be available, I find, based upon country information that indicates Iranian authorities have little interest in prosecuting returnees for Christian conversion activities conducted outside of Iran, that the existence of the webpage in an archive would not lead in the reasonably foreseeable future to the applicant facing a real chance of serious harm or a real risk of significant harm.

29. For similar reasons any of the applicant’s engagements through his church with members of the Iranian community which may have been conveyed to the Iranian authorities I find will not led to the applicant facing into the reasonably foreseeable future a real chance of serious harm or a real risk of significant harm.

    Other claims

30. The applicant claimed that he became critical of Shia Islam while living in Iran, questioning the faith. I accept that the applicant has objections to some aspects of Shia Islam and that he had at some point become agnostic. But I also note, as discussed with the applicant, that nearly a quarter of Iranians never attend religious services and another 23% only attend on holy days.[4] The applicant’s distancing from Islam, I find, would not draw undue attention to him. During his time in Australia when he was free from fear he had not publicly voiced any statements against Islam. I acknowledge that privately he has had discussions regarding his claimed journey away from Islam, which may have included voicing objections to that faith, but these I found to be driven by a concocted veneer of a commitment to Christianity. As such I find that he would not speak publicly or privately against Islam even if free from fear in his home country of Iran. Given his behaviour in Australia and the circumstances to which he would return, I find that the applicant does not face into the reasonably foreseeable future a real chance of serious harm or a real risk of significant harm arising from his objections to Shia Islam and his agnosticism, including any potential association of objections against Islam as being objections against the regime.

    [4] World Values Survey, ‘Iran Wave 2005-2009 Online Data Analysis: V186.- How often do you attend religious services’, available at [accessed 16 Sept. 16]. 

1. In a statutory declaration dated 30 October 2012 the applicant stated that he wanted to look into other religions and have the freedom to choose his own religion and practise it, noting that the government does not allow that. As I have questioned the genuineness of his conversion to Christianity, and as a result his genuine interest in Christianity, I find that the applicant’s claimed interest in other religions was contrived for the purposes of pursuing a particular visa outcome. As such, I find that the applicant does not face into the reasonably foreseeable future a real chance of serious harm or a real risk of significant harm.

2. The applicant claims that in the past his lack of commitment to Islam led to him losing his employment and that he feared at the time that he would not be able to secure employment if he did not feign adherence to Shia Islam. At the hearing we discussed the prevalence of the government’s monitoring of employee adherence to Islam and that it is for government employment and large private companies but not for small businesses. The applicant agreed but added that his training was [Occupation 1 course] and that he couldn’t work in a small business.

3. While I acknowledge that the applicant may not be able to find work as an [Occupation 1], there is no claim and no evidence before me that suggests he would be unable to find work. The applicant acknowledged this by stating at the hearing that if he wanted to work in a place which doesn’t require him to go to a mosque then he’d be missing out on a number of opportunities. I find that the applicant missing out on a number of career or employment opportunities does not amount to serious or significant harm. I find that the applicant will into the reasonably foreseeable future be able to find employment such that he would be able to subsist and as such not face a real chance of serious harm or a real risk of significant harm.

4. The applicant acknowledged that his reasons for departure from Iran are not related to his brother or any actions his brother may have taken while in Iran. I have also considered whether his brother’s presence in Australia as a refugee could lead to harm. Based upon the applicant not making such claims and there being no evidence to suggest that he would, and noting the country information referred to above, namely, ‘Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons’ I find that the applicant does not face into the reasonably foreseeable future a real chance of serious harm or a real risk of significant harm arising from his brother’s situation.

5. The applicant had claimed for the first time at his hearing that he had lost access to services in Iran due to his religious belief. As I have already established that he had not pursued Christianity while in Iran, that he had stated that there were no reasons for the government to have an interest in him prior to his departure and he was able to complete [a] degree from an Iranian university, I do not accept that he had any services denied to him by the Iranian government.

6. I have also considered the claims cumulatively with an eye to situations in which the claims and circumstances overlap, leading to the potential for the chance/risk or level of harm to be exacerbated. I find that even when considering the entirety of the applicant’s claims, the applicant does not face a real chance of serious harm or a real risk of significant harm into the reasonably foreseeable future.

7. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

8. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

9. There is no suggestion that the applicant satisfies s.36(2) on the basis of 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

10. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Denis Dragovic
    Senior Member