1819405 (Refugee)

1819405 (Refugee) [2021] AATA 3195 (21 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1819405
COUNTRY OF REFERENCE:                   Iran
MEMBER:Michael Hawkins AM
DATE:21 May 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 21 May 2021 at 6:34pm

CATCHWORDS
REFUGEE – protection visa – Iran – Federal Circuit Court remittal – imputed political opinion – refusal to join Basij – religion – Christian convert – harassed and intimidated by Basij – Sepah – detained and interrogated – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5LA, 36, 65, 91R, 91S, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa (Class XA) (Subclass 866) under s.65 of the Migration Act 1958 (“the Act”).
The applicant who claims to be a citizen of Iran, applied for the visa on 20 June 2013 and the delegate refused to grant the visa on 7 November 2014.
The Tribunal affirmed the delegate’s decision, and that decision was set aside by the Federal Circuit Court. The matter is now before the Tribunal pursuant to an order of the Court.
The applicant appeared before the Tribunal on 30 April 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian (Farsi) and English languages.
The applicant was represented in relation to the review by his registered migration agent (“RMA”).
RELEVANT LAW
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
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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement 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 per cent.
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.
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
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’).
‘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.
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.
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 issue in this case is whether the review applicant is a person in respect of whom Australia has protection obligations under section 36 of the Act and subclause 866.211 of Schedule 2 to the Regulations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background:
The applicant claims to be a [age]-year old man from [Lorestan Province], Iran.
The applicant arrived in [Australia] [in] March 2013 aboard a vessel codenamed [name]. The applicant is an Illegal Maritime Arrival (referred to in the Migration Act as an unauthorised maritime arrival) who arrived directly to the mainland before I June 2013 (referred to as a non-offshore entry person (OEP)).
The applicant claims to have not travelled outside Iran prior to his departure for Australia in March 2013. He claims to have transited through [other countries] en route to Australia.
The applicant attended an entry interview with the delegate on 8 May 2013.
The applicant applied for and was granted a Bridging Visa E (Class WE) (Subclass 050) on 30 May 2013.
The applicant lodged an application for a Protection visa (Class XA) (Subclass 866) on 20 June 2013.
The applicant’s Bridging Visa E (Class WE) (Subclass 050) ceased on 25 July 2013.
The applicant attended a protection visa interview with the delegate on 9 September 2014.
Claims:
Summarised from the applicant’s XA 866 protection visa application and written claims:
The applicant claims he is a citizen of Iran born in [Lorestan Province] on [date].
The applicant claims he is a Shia Muslim
The applicant claims he worked at a factory in Isfahan owned by sepah. The applicant claims management of the factory started requiring employees to join the basij.
The applicant claims he and a few colleagues, who did not already have basij membership cards, refused to comply. The applicant claims they were told if they did not comply they would be sacked.
The applicant claims he did not want to join the basij because of his political opinions. The applicant claims the basij are associated with human rights violations. The applicant claims he also did not want to join the basij as there was an element of forcefulness to join.
The applicant claims he attended a meeting with management regarding this issue. The applicant claims the meeting ended up in a verbal fight and exchanges of insults. The applicant claims that as a result, the management team called for reinforcements and a number of basijis came to the factory to detain them.
The applicant claims that some of the members of the group tried to resist and were beaten by the basij. The applicant claims he did not resist, but was nevertheless beaten because of his earlier insults directed at the basij and sepah.
The applicant claims he and his colleagues were detained in a compound for a week. The applicant claims he was interrogated and made to sign a promissory note that he would comply with their demands. The applicant claims he was told if he made further problems they had the power to kill him.
The applicant claims he lost his position at the company without any severance pay.
The applicant claims that a week after his release from detention the basij came to his home and searched the premises. The applicant claims they were looking for an excuse such as “political” or “objectionable” materials to detain him further. The applicant claims they only found the satellite dish and confiscated it.
The applicant claims the basij returned to his home three or four days later. The applicant claims they had come to bully him for not joining the basij. The applicant claims they searched his home again and left.
The applicant claims that two or three days later, the basij returned to his home for a third time and searched his home. The applicant claims he felt this was too much for him and his family. The applicant claims he was intimidated to the extent that he felt he and his family could not sustain this level of intimidated from the basij.
The applicant claims he decided to leave the country for fear that he may be harmed or his family may be harmed because of him. The applicant claims it took him around two weeks to make the arrangements to leave Iran. The applicant claims that in those two weeks he was continually harassed and intimidated.
The applicant claims he fears persecution in Iran for reasons of his imputed political opinion as a person who did not want to join the basij.
The applicant claims he will be harmed for defying sepah's demands. The applicant claims the authorities were looking for an excuse to further detain or prosecute him or cause him harm. The applicant claims he was afraid they wanted to harm him to make an example of him or to ensure he would not cause further problems for them.
The applicant claims the authorities will not protect him. The applicant claims the basij and sepah are answerable to no one. The applicant claims they are above the law and will not be accountable for their actions.
The applicant claims he cannot relocate because the basij and sepah are everywhere in Iran. The applicant claims they will be able to easily find and harm him wherever he goes.
Summarised from the protection interview with the delegate
The applicant claimed he worked at a [factory] called [name] in [City 1], Isfahan. The applicant claims he worked in shifts with approximately 50-60 per shift.
The applicant claimed that one day the management team, which were sepah agents, brought in a new regulation requiring staff to obtain a basij membership card. The applicant claims they were told if they refused to comply, they would lose their jobs.
The applicant claims he did not get the basij card, because he did not believe in what the basij did, and because he believed he would have to do certain things for the basij if he joined, such as persecute people.
When asked by the delegate if the management told him that he would have to do work for the basij, the applicant claims that at the time they did not say that but he is familiar with basij requirements and regulations.
The applicant claims that he started to have problems with management because of his refusal to join the basij. The applicant claims that the factory management arranged a meeting with the employees (around 7 or 8 employees) who refused to join the basij and threatened to sack them. The applicant claims that an argument developed during the meeting and he became very angry and "talked against the basij and the Supreme Leader". When the delegate asked the applicant what he said exactly, the applicant claimed that he rejected their beliefs and mentioned he does not agree with their beliefs.
When the delegate asked the applicant again about what he specifically said about the Supreme Leader, the applicant claims he called him a dictator and swore at him. When the delegate asked why the applicant thinks that way about the Supreme Leader and the government, the applicant claims that many people know he is a dictator.
When the delegate asked the applicant about whether he had ever expressed these views before, the applicant claims he had not as if he had he would have been killed. The applicant claims he made those insults at the meeting because he was under pressure and suddenly reacted.
Detention and problems with authorities
The applicant claimed that more than 15 basiji arrived at the factory, as a result of the argument in the meeting.
The applicant claimed to have been beaten by the basij and then he and his colleagues were detained. The delegate asked the applicant to describe the place in which he was detained. The applicant claimed he was unable to describe the detention centre, its whereabouts or the route taken to arrive there. The applicant claimed he was being continuously beaten by the basij on the way to the detention centre (in a minibus) so he did not see the property in which he was detained.
The applicant claimed he was kept in a room on his own and was blindfolded whenever he was taken out of that room. The applicant claimed that he was held for one week and interrogated and tortured. The applicant claimed it was not physical torture, but that being in detention was torture.
The applicant claimed they interrogated him, generally every day, and asked him why he objected to the basij. The applicant claimed he was asked to sign a note that he would respect their beliefs, although he was not permitted to read it.
The applicant claimed that after one week he was taken to [City 1] in a sort of minibus, but that he could not see anything as the windows were covered.
The delegate asked the applicant if he spoke with the other colleagues with whom he was detained after his release. The applicant claimed he did not as he was warned by the basij not to and he was too scared. He stated that he could not return to work after this.
The applicant claimed that, following his release from detention, the basij came to his house on three occasions. The applicant claimed that they searched his house but that he was never arrested or removed from the house. The applicant claimed that they would not knock on the door; they would just jump the fence and enter the house.
The applicant claimed that 7 or 8 basiji searched his house. The applicant claimed they were looking for something to charge him with, such as being a member of the opposition.
Th applicant claimed that he is on a list of people who are opposed to sepah. The delegate asked the applicant how he knows this and the applicant claimed that when someone opposes them and are taken into custody they open a file and your name is recorded as someone who opposes the regime. The applicant claimed the basij who asked him to sign the note before his release from detention told him that they created a file on him.
Claims regarding family members
The applicant claimed that his father and brother were arrested since he left Iran. The applicant claimed he only recently came to know this as his family did not want to upset him while he was in detention in Australia.
The delegate asked the applicant when he first heard of these problems and the applicant claimed it was about seven or eight months ago.
The applicant claimed his father was arrested approximately one month after the applicant departed Iran, and was questioned as to the applicant's whereabouts. The applicant claimed that his father was arrested because the applicant was supposed to report to the authorities on a regular basis and failed to do so by departing Iran.

The applicant claimed that the authorities also arrested his brother and, since his father is old, the authorities are basically just dealing with his brother now. The applicant claimed that as a result of these issues, his brother is preparing to flee to [Country 1] to seek asylum.
The applicant claimed this is all happening because of the offensive words he spoke against the Supreme Leader.
Summarised from the applicant’s statement of claim dated 17 February 2021:
The applicant claims that he hated Islam for what had happened to him and his country under the name of Allah.
The applicant claims he has a friend named [Mr A], who converted from Islam to Christianity in 2016. The applicant claims [Mr A] encouraged him to get faith in Jesus and asked him to go with him to [Church 1].
The applicant claims that in July 2017, he went to [Church 1] and felt inner peace for the first time in his life. The applicant claims he decided to go to this church regularly and learn more about Christianity.
The applicant claims that on 12 November 2017, he accepted Christianity and officially joined the followers of Jesus Christ. The applicant claims his interest in Christianity has since been growing daily and he has been given a new life by Jesus. The applicant claims he shall remain faithful to his Lord forever.
The applicant claims that as a Christian, he has invited six of his friends to the church, two of whom have become Christians. The applicant claims he tries to introduce the religion of love and peace to everybody and invites friends and acquaintances to Christianity.
The applicant claims to have a lot of religious activities in the telegram application. The applicant claims to be aware that this is a very dangerous activity, because the telegram is tightly controlled in Iran, but he does this for Jesus as he was crucified for our sins to be forgiven. The applicant claims to be sure that he has already been identified by the intelligence forces in Iran, but he is determined to continue his religious duty and evangelism.
The applicant claims that [in] June 2018, he became a member of the Ex-Muslim Council of Australia, where he is able to express his views, and share experiences with others.
The applicant claims to also be in a partner relationship with [Ms B], who has been a Christian since 2017. The applicant claims to have two [children] with [Ms B]. The applicant claims [the first child] was baptised in [Church 2] last year in Brisbane. The applicant claims [the second child] will be baptised in March 2021.
The applicant claims to fear that if he returns to Iran, he will be accused of apostasy and promoting Christianity. The applicant claims to fear that he will be arrested, face long-term imprisonment, be physically and psychologically tortured and executed as an apostate. The applicant claims to fear harm because he does not subscribe to the Islamic way of the Basij and Sepah and he is actively promoting Christianity. The applicant claims to fear he will not be able to openly practice his faith to which he is deeply devoted.
The applicant claims that in Iran if you are perceived not to be sympathetic to the regime and the Islamic values, you are seen to be against them. The applicant claims that according to the Islamic laws, apostasy has severe punishments, including life imprisonment and execution. The applicant claims that Muslims are allowed to kill apostates in Iran.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
·The applicant’s protection visa application forms completed and lodged on 20 June 2013 (“visa application”);
·The applicant’s identity documents being a copy of his Iranian national identity card, birth certificate, Iranian and Australian driver licences and ImmiCard;
·The protection visa decision record dated 7 November 2014 (“delegate’s decision record”);
·The review application form, which included a copy of the delegate’s decision record;
·All documents submitted to the Department of Immigration and Border Protection (“the Department”) in support of the applicant’s protection visa application, including the applicant’s statutory declaration dated 20 June 2013, statement of claim dated 20 June 2013 and Form 80 ‘Personal particulars for assessment including character assessment’;
·All documents submitted to the Tribunal in support of the applicant’s application for review, including:
othe applicant’s statement of claim dated 17 February 2021,
oreceipt issued by The Ex-Muslim Council of Australia Inc [in] June 2018,
othe applicant’s baptism certificate dated 12 November 2017,
ophotographs taken at the applicant’s church,
oscreenshots taken on the applicant’s phone (untranslated),
osupport letters from [Ms B], [Ms C] and [Church 1]; and
·Country information from the Department of Foreign Affairs and Trade’s (“DFAT”) most recent Country Information Report on Iran, published on 14 April 2020 (“the DFAT Report on Iran”).
Country of reference / receiving country:
The applicant claims to be a citizen of Iran. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Iran is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing:
The applicant attended the hearing on 30 April 2021 which was conducted in-person at the Brisbane registry of the Tribunal. He was accompanied and represented by his RMA, who appeared by telephone. The hearing proceeded in the Persian (Farsi) and English languages.
After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa, he must either be recognised as a refugee or be a person entitled to Complementary Protection.
The Tribunal explained that under Australian law, to be a refugee he must have a well-founded fear of persecution in Iran. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Iran. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.
With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Iran.
The Tribunal confirmed with the applicant that no witnesses were recorded for appearance during the hearing.
The Tribunal discussed the applicant’s background as referenced earlier. The applicant agreed that the Tribunal’s summary was accurate.
The Tribunal read to the applicant his claims as summarised by the Federal Circuit Court of Australia in its decision. Again, the applicant agreed that that was an accurate summary of his claims.
The Tribunal referred to the applicant’s Statement of Claim dated 17 February 2021 submitted by his Representative. The applicant confirmed that those claims had been prepared by him with his Representative and that they were an accurate and complete statement of all of his claims.
Assessment of claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]
[1] Guidelines on the Assessment of Credibility (July 2015) Available at >
However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]
[2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
The Tribunal noted the submission of the Representative and statements attached and discussed them at length with the applicant and the Representative.
The Tribunal discussed the applicant’s family situation in Iran and elsewhere.
The applicant advised that he had a partner here in Australia and that they lived together with their two children in [location]. The applicant stated that he worked as a [Occupation 1], working as a contractor. From time to time, he retained other [Occupation 1] to assist him who were similarly retained as contractors.
The Tribunal asked the applicant what work he performed in Iran before he travelled to Australia. The applicant replied that he was a [Occupation 2] in a factory.
The Tribunal asked the applicant about his parents and siblings. The Tribunal was advised that his mother and father were still living in Iran. He had a brother in [Country 1] and [sisters] who also lived in Iran. The [sisters] were married and had their own families.

100. The Tribunal asked about his brother in [Country 1]. The applicant stated that his brother had obtained asylum in [Country 1] on the basis of his Christianity. Noting the applicant’s claims in relation to the Basij and to the treatment meted out on his father and brother, allegedly as a consequence of the applicant having fled Iran, the Tribunal inquired as to whether his brother’s claims for asylum were related to the applicant’s claims. The applicant confirmed that the asylum claims of his brother were unrelated to him.
101. The Tribunal referred again to the applicant’s claims to have concerns about his family in Iran. The applicant confirmed that once the authorities determined that the applicant was not in Iran, his family were left alone. The applicant reiterated that he no longer has any concerns for the safety of his family as they are unrelated to his claims.
102. The Tribunal discussed with the Representative that a common claim of Iranians was their membership, or perceived membership, of the Basij. The Representative, being an experienced Migration Agent, agreed that often protection claims were based on an Iranian’s fear of being perceived to be a Basij member. The Tribunal noted, however, that the applicant’s claim appeared to run counter to that theme of claim, that his fears were related to the fact that he had refused to join the Basij when he was resident in Iran. He was not a member of the Basij and never had been a member of the Basij. The Representative agreed but stated that the applicant’s fear of persecution was from the Basij itself for not having joined it when he lived in Iran.
103. Asked to clarify, the applicant stated that in his view, the Sepah and the Basij were one in the same. His effective claim was that he feared the system itself.
104. The applicant went on to state that people on Facebook in Iran, would see that the applicant is expressing anti-Basij views.
105. The Tribunal considered the Country Information that it had obtained from the DFAT Report in relation to the Basij, and critics of the state.
Basij Resistance Force
5.4 The Basij Resistance Force (‘the Basij’) is a volunteer paramilitary force that operates under the command of the IRGC. The Basij was established shortly after the Islamic Revolution as an auxiliary law enforcement unit and was brought under the direct command of the IRGC in 2007. The Basij is one of the primary enforcers of internal security and moral codes, including in relation to Islamic dress. The Basij has a countrywide presence, with branches in virtually every Iranian city and town. The Basij maintains three primary armed wings: (1) the Ashoura and Al-Zahra Brigades, which are tasked with defending neighbourhoods in the event of emergencies; (2) the Imam Hossein Brigades, which comprise war veterans and cooperate closely with IRGC ground forces; and (3) the Imam Ali Brigades, which deal with security threats. The IRGC also has multiple branches with specialised functions. According to the United States Institute of Peace, each of these specialised branches functions as a counterweight to NGOs and the perceived threat they pose to the state. For example, the Labor Basij provides a counterpart to labour organisations, unions and syndicates, while the Student Basij balances independent student organisations. The Basij is headed by a commander appointed by, and answerable to, the Supreme Leader.
5.5 Estimates of the total number of Basiji vary widely. In 2009, the IRGC commander claimed the Basij had 11.2 million members; however, independent sources cite considerably lower figures (the US Council on Foreign Relations estimates the Basij’s strength at 600,000). Not all Basiji are uniformed. As such, the Basij’s presence on the street is not always overt and obvious. Its membership includes both sexes and a wide range of ages, although the majority are between high school age and mid-30s. Membership of the Basij comes with privileges, including in relation to university admission, government jobs and bank loans. Local mosques provide background information about each volunteer applicant, and also serve as the Basij headquarters for the neighbourhood. For full-time paid positions, applicants must apply to the Basij’s provincial headquarters.
5.6 The state has periodically mobilised the Basij to suppress anti-government protests, including during the November 2019 unrest and Green Movement demonstrations. Basij members often receive less formal training than other Iranian security forces. International sources report that Basij units often repress political opposition elements and intimidate civilians perceived to be violating Iran’s strict moral code without formal guidance or supervision from their superiors. DFAT assesses that there is considerable popular resentment against the Basij, although this may vary according to location.
Critics of the State
3.86 Iranians have protested against the government in large numbers on three separate occasions since 2009. Following the June 2009 presidential election, up to 3 million supporters of reformist candidate Mir Hossein Mousavi took to the streets of Tehran to protest the official verdict that conservative candidate Mahmoud Ahmadinejad had been re-elected in a landslide, in what became known as the ‘Green Movement’ (so named after Mousavi’s campaign colour). Green Movement protesters used public holidays and national commemorations as opportunities to rally, chanting slogans that challenged both the system and the Supreme Leader himself. In response, the government despatched security forces, including the IRGC, Basij units (see Basij Resistance Force) and plain-clothed paramilitary forces. These forces beat thousands of protesters and arrested hundreds, while snipers killed dozens. By early 2010, the government had succeeded in quashing public displays of opposition. ‘Green Movement’ Activists discusses the aftermath of the 2009-10 demonstrations and provides an assessment on the ongoing risk profile of those involved.
3.87 In late December 2017, a small protest in Mashhad (Razavi Khorasan Province) rapidly escalated and spread to more than 50 other cities and towns across Iran, involving an estimated 40,000 protesters. The protests – which spanned ethnic and religious lines – focused on economic hardship but also had a virulent anti-government and anti-regime element (unlike the protests associated with the Green Movement, which took place predominantly in Tehran and involved secular, middle-class and reform-minded Iranians, the 2017-18 protests were concentrated in smaller cities on the periphery and spread, and participants were largely working-class and conservative). The 2017-18 protests were largely peaceful, although there were some isolated low-level incidents in which protesters set fire to security forces’ offices or other infrastructure. While police initially took the lead in attempting to disperse the protesters, the government deployed Basij units and the IRGC, and succeeded in ending the demonstrations by early January 2018. According to Human Rights Watch, 4,900 people were arrested during the protests, and at least 21 people were killed, including members of the security forces. Most of those arrested were released, although some were charged with national security offences and handed long prison sentences. DFAT is unable to verify how many people arrested in connection to the 2017-18 protests remain in detention. At least three protesters died in custody (the authorities reported two as suicides and attributed the third to a stroke).
3.88 DFAT assesses that the authorities retain an ongoing interest in those identified as having played a leading role in the 2017-18 protests. DFAT assesses that individuals meeting this profile are likely to face official discrimination, including arrest, monitoring and continuing harassment. DFAT assesses it unlikely that authorities will target ordinary participants whose motivation to demonstrate was to protest economic difficulties.

3.89 On 15 November 2019, a reduction in petrol subsidies triggered large-scale protests and rioting in 100 cities and towns across 29 of Iran’s 31 provinces. According to the Interior Ministry, at least 200,000 people took part, most of whom – like in 2017-18 – were working-class. Protests and rioting were most intense in Khuzestan, Kermanshah, Kurdistan and Tehran provinces. Some protesters blocked main roads with cars and burning tyres, set fire to banks, shops and petrol stations, and chanted anti-regime slogans (the authorities also accused protesters of attacking military sites). Violent clashes occurred between police and protesters, with online footage showing police firing live ammunition and tear gas into crowds. The UN High Commissioner for Human Rights accused the security forces of using ‘severe violence’ and ‘shooting to kill’ to quell the protests. Reuters, in a special report published in December 2019, claimed 1,500 people were killed in total. The Office of the UN High Commissioner for Human Rights (OHCHR) and Amnesty International cite lower figures (around 300). The authorities acknowledged some deaths (including peaceful protesters, bystanders and members of the security forces), and claimed they had arrested 7,000 people, including individuals identified as protest leaders. The authorities claimed that most of those arrested were released. The government imposed a week-long, countrywide Internet blackout in an attempt to curtail the protests, which it attributed to hooligans, criminals and foreign elements, including the MeK. The unrest was the deadliest since the 1979 revolution. Further unrest is possible given Iran’s ongoing economic hardship.
3.90 DFAT assesses that the authorities retain an ongoing interest in those identified as having played a leading role in the 2019 protests. DFAT assesses that individuals meeting this profile are likely to face official discrimination, including arrest, monitoring and continuing harassment. DFAT assesses it unlikely that authorities will target ordinary participants whose motivation to demonstrate was to protest economic difficulties, although lack of due process could mean ordinary participants are wrongly charged.
3.91 In January 2020, low-level protests occurred in Tehran and other cities (including Shiraz, Isfahan, Hamedan, Orumiyeh and Rasht) following Iran’s admission that it mistakenly shot down a Ukrainian civilian airliner over Tehran (176 people were on-board, all of whom died. Most were Iranian). Iran initially denied responsibility. Protesters chanted anti-government slogans and called for the resignation of the Supreme Leader over the incident and subsequent cover-up. Online footage appeared to show security forces using tear gas, rubber bullets and live ammunition to disperse protesters in Tehran. According to the judiciary, 30 people were arrested, some of whom were reportedly released.
Political Opinion (Actual or Imputed)
3.78 The constitution contains several articles that relate to the expression of political opinion. Article 23 stipulates that the investigation of individuals’ beliefs is forbidden, and that no one may be molested or taken to task simply for holding a certain belief. Article 24 states that publications and the press have freedom of expression except where it is detrimental to the fundamental principles of Islam or the rights of the public. Article 26 permits the formation of political parties (and other professional/religious associations) provided they do not violate the principles of national unity, the criteria of Islam and the basis of the Islamic Republic, among other stipulations. Article 27 permits public gatherings and marches, provided arms are not carried and they are not detrimental to the fundamental principles of Islam.
3.79 The Political Parties Law (1981, last amended in 1989) gives the Interior Ministry authority to issue permits to political parties. The Interior Ministry grants permits only to parties loyal to the establishment and the Velayat-e faqih political philosophy enshrined in the constitution. Registered political parties that adhere to Velayat-e faqih generally operate freely, but lack clear manifestos and large, national memberships. Registered political parties do not pursue the goal of taking power – an impossibility given the governing structure of the Islamic Republic (see Political System). They are better described as ideologically-driven factions with common interests, who come together before elections to support particular candidates and go into ‘hibernation’ between elections. In practice, Iranians register for elections as individuals rather than as members of political parties, and, if they are approved to run as candidates, campaign with others on negotiated ‘lists’. The Guardian Council has power of veto over political candidates, and disqualified a large number of reformist candidates from contesting the 2020 parliamentary election (see Political System). Political organisation or activism against the existing system of government and the Velayat-e faqih political philosophy are not tolerated. Those with political affiliations considered hostile or unacceptable by the authorities, including in areas where ethnic minorities constitute a majority, risk harassment an imprisonment.
3.80 While public gatherings and marches are permitted by law, and protests do occur, significant restrictions on peaceful protest exist in practice. According to local sources, rules governing public gatherings and marches are applied inconsistently, with groups considered pro-regime routinely issued permits, while those seen as critical experience difficulty in obtaining a permit. For example, during the November 2019 unrest, gatherings of people protesting against the petrol price increase were vilified and put down with force, whereas pro-regime rallies occurred freely and received positive press coverage. The authorities regularly monitor public gatherings, including public entertainment and lectures, student and women’s meetings and protests, labour protests and Friday prayer gatherings.
3.81 Iranians are able to criticise the government of the day robustly, both in public conversation and online in social media, although this freedom is not unlimited — a number of well-established ‘red line’ topics are off-limits and critical commentary may lead to prosecution under national security legislation (see Media). Social media accounts of well-known figures and celebrities attract particular scrutiny (see Artists and Musicians). Authorities are more likely to crack down on dissent during times of political uncertainty, such as during ongoing political demonstrations, and may restrict the ability of individuals to comment or communicate online at such times (see Critics of the State).
3.82 Local sources told DFAT that it is common for Iranians to be critical of the government in public places, including supermarkets, shopping malls and taxis. However, people remain cautious about crossing well-understood ‘red lines’, like insulting the Supreme Leader, in their public interactions beyond close family and friends.

106. The Tribunal discussed a summary of these provisions with the applicant. Asked to comment on that Country Information, the applicant replied that the DFAT Report is wrong. He replied that information gathering in Iran is strong and it easily identified the applicant as being critical of the government. He went on to add that persecution is not limited to the leaders of opposing parties or organisations. He stated that ordinary people are also subject to torture and death. He said that the Sepah and Basij want to exterminate objectors.
107. The Representative referred to the DFAT Report, noting a protest that had occurred in November of 2019, noting that some 1,500 people had been killed.
108. The Tribunal was particularly interested in paragraph 3.82 of the DFAT Report that stated that local sources told DFAT that it is common for Iranians to be critical of the government in public places, however, people remain cautious about insulting the Supreme Leader.
109. The Tribunal was curious, and also noted that the Delegate had expressed a similar concern, in the fact that the applicant had not raised in his claims any reference to him having insulted the Supreme Leader. The Tribunal noted that the applicant had claimed to have been critical of the Basij and Sepah, which are two organisations. When asked why he had not done that, the applicant replied that it should be interpreted that when he insults the Basij or the Sepah, he is in fact insulting the Supreme Leader.
110. When asked when he had insulted the Supreme Leader, he replied that it was during the confrontation at his workplace.
111. The Tribunal stated that it was concerned by the fact that he had not referenced specifically in his claims any conduct on his part that could be seen to be insulting of the Supreme Leader. The applicant replied that he did not think to mention those exact words.
112. The Tribunal noted that the applicant claimed that his name had been put on a list. It confirmed with the applicant that he had been told that his name had been put on a list. The applicant agreed, stating that there was a list of all opponents of the government and those critical of the government. He reiterated that data collection in Iran is strong.
113. The Tribunal noted that and also noted Country Information from the DFAT Report dealing with exit procedures at Iran’s major airport, noting that the applicant had departed from Iran’s major airport using his own passport.
Treatment of Returnees: Exit and Entry Procedures
5.22 Millions of Iranians travel into and out of Iran each year without difficulty, including the large Iranian diaspora residing in North America, Europe, the United Arab Emirates and Australia. Iranian nationals must pay an exit tax each time they depart Iran, which increases with each outbound journey. Payments of exit taxes are made at the airport, as one is departing Iran. An exit permit for foreign travel is required for Iranians employed in fields considered sensitive (e.g. employees of the Iranian Atomic Energy Organisation); those studying abroad (whether on government scholarships or privately-funded); and all males aged 18-30 who are yet to complete military service (principally those who have deferred military service to undertake tertiary studies). To obtain an exit permit, one must provide proof of their status (e.g. a letter from their university confirming their enrolment) and pay a bond (the bond is retrievable on return). Iranian nationals resident in Iran who require an exit permit must obtain one each time they leave the country (multiple exit permits are not available for Iranian nationals resident in Iran). Application for, and issuance of, an exit permit, where it is required, is done electronically.
5.23 In some cases, citizens require special permission to obtain a passport (see also Passports). This includes minors under the age of 18, who require the permission of their father/custodian; males who have not completed their military service, who must present authorities with their military service exemption or the written permission of the Public Military Service Department; and married women, who require their husband’s permission. Iranian citizens residing abroad who are not under the obligation of military service can apply for the issuance of a multiple exit permit through the Ministry of Foreign Affairs. They are required to provide completed forms detailing their place of residence and requesting a multiple exit permit, evidence of the completion of (or exemption from) military service, the original and photocopies of their existing passport and photocopies of pages related to their previous travel to Iran, a photocopy of their residence permit and two passport photographs. Beyond their passport and, where it is required, an exit permit, Iranians exiting Iran are not required to present any other documents.
5.24 The authorities impose travel bans on some Iranian citizens. Reasons for a travel ban can include security concerns, financial debts, outstanding taxes and outstanding sentences awaiting enforcement. Citizens with ongoing charges or outstanding court matters and those released on bail or parole are subjected to travel bans. Civil and political activists may be subjected to travel bans. In some cases, individuals must obtain the permission of others to leave the country: the husbands of married women and fathers of unmarried women and underage children can request travel bans against their dependents. MOIS and the IRGC have the power to impose travel bans without recourse to the judiciary. Iranians under travel bans are often unaware of their status until they reach passport control at the airport and are turned back. The presence of security organisations in all Iranian airports, particularly those with border checkpoints, enables authorities to determine whether any Iranian citizen can leave the country by air.
5.25 DFAT assesses that leaving Iran through irregular means is more likely to be achievable overland (particularly in rugged mountain areas) than via air or sea, including for registered and unregistered refugees. Under Iranian law, smuggling people into or out of Iran is a crime punishable by up to 10 years’ imprisonment. The law against people smuggling applies to all Iranian nationals, including those outside the country.
5.26 Passengers undertaking domestic air travel are usually only required to present their ticket. Passengers may be asked for identification, but DFAT understands this practice is not consistent.
Treatment of Returnees: Conditions for Returnees
5.27 Iran has a global and longstanding policy of not accepting involuntary returns. Historically, Iran has refused to issue temporary travel documents (laissez-passers) to facilitate the involuntary return of its citizens from abroad. In March 2018, Iran and Australia signed a Memorandum of Understanding on Consular Matters. This includes an agreement by Iran to facilitate the return of Iranians who arrived after March 2018 and who have exhausted all legal and administrative avenues to regularise their immigration status in Australia. A laissez-passer can be obtained from an Iranian diplomatic mission on proof of identity and nationality.
5.28 The IOM runs a program to assist voluntary returnees to Iran, in cooperation with the country from which they are returning. Iranian authorities cooperate with the IOM in this regard. In cases where an Iranian diplomatic mission has issued temporary travel documents, authorities will be forewarned of the person’s imminent return. DFAT is not aware of any legislative or social barriers to voluntary returnees finding work or shelter in Iran, nor any specific barriers to prevent voluntary returnees from returning to their home region. Some countries offer failed asylum seekers financial packages to support their reintegration on return to Iran. The IOM also provides some resettlement assistance to voluntary returnees who fail to secure asylum in a third country.
5.29 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. Those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are traveling on a laissez-passer. Questioning usually takes between 30 minutes and one hour, but may take longer where the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history on the part of the returnee. Arrest and mistreatment are not common during this process. A well-placed source was not aware of voluntary returnees being prosecuted for criticising the Islamic Republic, converting to Christianity or proselytising while abroad on their return to Iran. As far as DFAT is aware, the authorities do not check the social media accounts of Iranians returning from abroad.
5.30 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), protesting outside an Iranian diplomatic mission, converting to Christianity or engaging in LGBTI activities. In such cases, the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists. The treatment of returnees, including failed asylum seekers, depends on the returnees’ profile before departing Iran and their actions on return. According to local sources, the greatest challenge facing failed asylum seekers on return is reintegrating economically and finding meaningful employment.
5.31 DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination.

114. Noting the number of security checkpoints, the Tribunal asked the applicant how he had managed to get out of Iran if his name was on, as he claimed, a list of opponents and critics of the government. The applicant replied that he was surprised that he had been allowed to leave Iran as he was so stressed. In fact, he claimed that he was so stressed at the time of departing through the airport that he thought his behaviour would become noticed.
115. The Tribunal suggested to the applicant that it was more likely that he had no problem departing through the security checkpoints in Iran because he was not of a high profile or had no profile. The applicant replied that he didn’t know about that.
116. The Tribunal further suggested to the applicant that maybe he was nothing more than a “supermarket” protester. The applicant dismissed that suggestion, stating that he had a problem with the government and that he had been arrested.
117. The Tribunal discussed the circumstances of the applicant’s arrest. It asked him whether he had any evidence of his arrest. He replied he had nothing.
118. The Tribunal asked the applicant what happened to him upon his arrest. The applicant replied that the authorities would undertake searches for evidence of some crime having been committed. They would search for anti-regime materials. He went on to state that if the authorities found nothing, they would require people so arrested to sign a Promissory Note to agree not to offend again.
119. The Tribunal confirmed that the applicant had signed such a Promissory Note. The applicant confirmed that he had, but also confirmed that he did not have a copy of the Promissory Note that he had signed.
120. The applicant went on to state that once he had signed the Promissory Note, he assumed all was done and that there would be no more interference. However, he stated that the searches of his house started and that his house was searched on three occasions. He was convinced that the authorities were determined to find something and charge him with something. Hence, his fear. It was at that time that he formed the view that he needed to leave Iran and so he secretly got a passport.
121. The Tribunal asked the applicant how he could have obtained a passport (in secret) given that he would have been making an application for a passport in the normal way through the Passport Office. The Tribunal was concerned that given the sophistication of Iran’s data collection and data matching, if the applicant’s profile was as he claimed, then he would have been so identified. The applicant responded that the Passport Office was not aware of the Basij’s searches for evidence and he stated that the Basij was not aware that he applied for a passport.

122. The Tribunal noted its concern that the applicant appeared to be inconsistent in his views as to the sophistication of Iran’s data collection. It appeared to the Tribunal that when it suited the applicant’s arguments, Iran’s data collection was extremely sophisticated, however, when the argument didn’t suit him, he was dismissive of the authority’s knowledge of him.
123. On the evidence before it, the Tribunal is satisfied that the applicant did encounter some issues with the Basij in Iran during his employment. The Tribunal accepts that the applicant’s claims as to his employer requesting that he joined the Basij is consistent with Country Information at that time. The Tribunal accepts that it was not uncommon for employers to insist upon their employees being members of the Basij and that that expectation extended to all levels of the public service as well.
124. However, the Tribunal is of the view that the applicant’s claims as to being arrested and detained have been embellished in order to enhance the severity of his concerns about the Basij. The Tribunal is quite certain that the applicant is not of sufficient profile, or indeed has any profile, that he would have been of interest to the authorities upon his departure from Iran, or whilst he was in Iran, or would be of interest to the authorities if he were to return to Iran in the reasonably foreseeable future.
125. The applicant has not produced any corroborative evidence of his detention or arrest, or of the raids upon his home by the basij, whether that evidence be photographic or be merely statements from family members.
126. Given the applicant’s claims as to his father and brother having been arrested after his departure, the Tribunal might have reasonably expected corroborative evidence in the form of copies of arrest warrants for either his father or brother, or statements from either of them supporting those claims.
127. The Tribunal noted that the applicant claims to have been detained with several other of his work mates, but claims to have had no contact with them since, on instruction of the basij. The Tribunal might reasonably have expected the applicant to seek statements supporting his claims from any of them, given that he is now away from Iran and the authorities would not be likely to know of any such request.
128. The Tribunal is satisfied that the applicant faces no real risk of serious harm by reason of any actual political or imputed political opinion in Iran. The Tribunal is satisfied that the applicant is not a political activist. The Tribunal is similarly satisfied that the applicant would not engage in behaviour in Iran that would bring him to the adverse attention of the authorities, the basij or the sepah, or anyone else, if he were to return to Iran.
129. The Tribunal is satisfied that there is no real chance of the applicant suffering serious harm in Iran now, or in the reasonably foreseeable future, for any of the reasons referred to above.
130. The Tribunal accepts that Country Information is quite specific as to the entry and exit procedures of Iranians through Iran’s International Airport and that if the applicant was on any list of objectives, or had been arrested, as the applicant claims, then he would have been identified upon attempting to depart Iran and detained.
131. The Tribunal turned to the applicant’s claim to having become a Christian and his fear that he would then be considered an apostate for having converted to Christianity.
132. The Tribunal expressed its grave concerns from the outset that it noted that the applicant had only engaged with Christianity after his visa application had been rejected. The Tribunal explained to the applicant that in those circumstances, it might not consider his claims to Christianity to be genuine. It said to the applicant that it might be perceived that he may have taken advice from people that were he to become a Christian, that it may help his claims to protection. In response, the applicant stated that it wasn’t he who decided to become a Christian, that in fact it was God’s blessing.
133. The Tribunal engaged in a lengthy discussion with the applicant as to when he first explored Christianity, how he engaged with Christianity and his longer-term intentions as to the practice of Christianity.
134. The Tribunal asked the applicant when he first decided he wanted to become a Christian. The applicant replied that he had a long resentment to Islam. He said that a friend of his had become a Christian and that he attended with him for the first time at a church service on 17 September 2017. The applicant described feeling an inner peace.
135. The Tribunal asked the applicant whether he had practiced Islam in Iran. The applicant replied that the family were Muslims and that they encouraged him to be a good Muslim and practice Muslim traditions. Notwithstanding that, he claims to have become irreligious in 2009. He said he stopped practicing any Muslim traditions and did not attend mosque.
136. The Tribunal noted a letter from [Church 2] confirming his regular attendance at church. The applicant stated that he liked [Church 2], that it had a Filipino Priest with whom his wife, who was also part Filipino, got on well. When asked, the applicant was categoric that he would continue to practice Christianity in Iran.
137. The Tribunal has strong doubts about the genuineness of the timing of the applicant’s engagement with Christianity, but can not conclude with certainty that enhancing his protection claims is the sole reason for his engaging in Christianity.
138. The Tribunal explored the applicant’s social media activities in relation to his practice of Christianity. He asked the applicant why he participated in social media knowing that his views could be seen in Iran. He replied that it was his spiritual duty to invite friends and strangers to share the good news about Christianity. He stated that he often wrote quotes from Jesus encouraging friends, both in Australia and Iran, to become Christians.
139. The Tribunal noted the extensive submission of extracts of social media provided to the Tribunal.
140. The Tribunal also noted the extensive letters of support from members of his church attesting to his attendance at church and participation in the broader church community.
141. The Tribunal noted that the applicant’s social media activities included him often “liking” expressed political views that he saw as anti-government.
142. The Tribunal also noted the letter of support from Pastor [D] from [Church 1] in New South Wales which provided a very substantial chronology of the applicant’s participation in church activities and his baptism and attendance at a large range of Bible study programs. The reference also notes the applicant’s capacity to introduce others to the church and noted that many of them had been baptised into the faith of the church. The Tribunal noted that the Pastor’s reference alluded to the applicant’s social media activities. The reference also noted that the applicant had advised his parents of his conversion, who appeared to have accepted that.
143. The Tribunal considered Country Information that it had obtained from the DFAT Report on Iran:
Christians
3.37 According to the most recent national census (2016), there are 130,000 registered Christians in Iran. 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 toemigrate, 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 faceofficial 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.

144. The Tribunal discussed the country information with the applicant, and particularly the information discussed earlier, to the effect that 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) or converting to Christianity. In such cases, the risk profile for the individual will be the same as for any other person in Iran within that category.
145. The applicant stated that he went further than merely converting, as he encouraged others with his Christian messaging in Iran and indeed actually causing others to convert to Christianity. He also said that it was his duty to continue his faith and sharing the good news with others in Iran if he returned.
146. The applicant also reminded the Tribunal of his having become a member of the Ex-Muslim Council of Australia and the many postings he has done expressing his views.
147. The applicant said he will be harmed for being an apostate, by promoting Christianity.
148. The Tribunal asked the applicant whether anyone in Iran could be aware of his conversion from Islam. He replied that his family is aware, and given his postings, coupled with the Iranian Government’s sophisticated data collection practices, they must know.

149. The Tribunal is mindful of the DFAT Report where it advises that 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.
150. Further, 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.
151. It appears that the applicant’s family is accepting of the applicant’s conversion.
152. The applicant is firmly of the view that the authorities are aware of his postings. He maintains he has been monitored.
153. According to one source, Iran has agents abroad to monitor Iranian citizens. However, rather than monitoring people all the time the authorities seek to create a fear that people are being perpetually monitored.[3]
[3] ‘Iran: House churches and converts’, Danish Immigration Service and the Danish Refugee Council, February 2018, p.26.
154. The DFAT report notes that religiously-based charges are possible in Iran. The report states that:[4]
Under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. Separately, a person of any religion may be charged with the crime of ‘swearing at the Prophet’ (blasphemy) if they make utterances that are deemed derogatory toward the Prophet Mohammed, other Shi’a holy figures or divine prophets. The Penal Code does not specifically criminalise apostasy, but provisions in the Penal Code and the constitution stipulate that sharia applies to situations in which the law is silent, and judges are compelled to deliver sharia-based judgements in such cases. Although the Quran does not explicitly say that apostasy should be penalised, most Islamic judges in Iran agree that apostasy should be a capital crime. This ruling is based both on oral traditions attributed to the Prophet Mohammed and to Shi’a Imams, whom Shi’a consider the Prophet’s rightful successors. Chapter 5 of the Penal Code specifically criminalises swearing at the Prophet as a capital offence, although a clause states that the sentence can be reduced to 74 lashings of the whip if the accused states the insults were the result of a mistake or were made in anger....
Politically-motivated apostasy charges were frequent in the years following the Iranian revolution, often leading to death sentences. However, in the vast majority of cases, defendants charged with apostasy also faced other charges related to national security. Many of these cases were quickly tried, ending in execution, so apostasy was not fully discussed in the prosecution of these defendants.
While apostasy and blasphemy cases are no longer an everyday occurrence in Iran, authorities continue to use religiously-based charges (such as ‘insulting Islam’) against a diverse group of individuals. This includes Shi’a members of the reform movement, Muslim-born converts to Christianity, Baha’is, Muslims who challenge the prevailing interpretation of Islam (particularly Sufis) and others who espouse unconventional religious beliefs (including members of recognised religious groups). Some religiously-based cases have clear political overtones, while other cases seem to be primarily of a religious nature, particularly when connected to proselytisation.
Today, death sentences in apostasy and blasphemy cases are rare. In March 2017, the Supreme Court upheld the decision of a criminal court in Arak (Markazi Province) to sentence a 21 year-old man to death for apostasy. Authorities arrested the man after he made social media posts considered critical of Islam and the Quran while on military service. According to publicly available information, the death sentence had not been implemented at the time of publication. The court also convicted two co-defendants of posting anti-Islamic material on social media, sentencing them to prison.
DFAT assesses that those accused of religiously-based charges are also likely to face charges related to national security. They are unlikely to have adequate legal defence, and are likely to be convicted.
[4] DFAT Country Information Report – Iran, 14 April 2020 at 3.73–3.77.

155. However, country information suggests that charges and convictions solely on the basis of apostasy involving Christian converts have been very rare.[5]
[5] ‘Country Policy and Information Note - Iran: Christians and Christian converts’, UK Home Office, 27 February 2020, p.7; ‘Christian Converts in Iran’, Finnish Immigration Service, 21 August 2015, p.7; ‘Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran’, UN Human Rights Council, 18 March 2014, p.11; ‘Iran: Christians and Converts’, LandInfo, 7 July 2011, p. 16.
156. The UK Home Office in a May 2019 report about Christians and Christian converts in Iran states that simply converting to Christianity is not considered enough to put a person at a real risk of persecution but that their actions and activities and the degree to which their conversion is visible will determine whether or not they would be at a real risk.[6] The report goes on to state that the Iranian authorities are interested in those engaged in evangelical or proselytising activities and that it is not usually a problem for those who practise their faith discreetly, including for those who return to Iran and do not actively seek to influence others to convert to Christianity, who consider their faith a personal matter, and who are unlikely to seek to express in public their faith. Such people are likely to be able to continue practising Christianity discreetly.[7] The UK Home Office also reported that members of evangelical/house churches are ‘subject to harassment, arrest, close surveillance and imprisonment by the Iranian authorities’.[8]
[6] UK Home Office, Country Policy and Information Note, Iran: Christians and Christian converts, May 2019 at 2.4.13 < Ibid at 2.4.14.
[8] UK Home Office, Country Policy and Information Note, Iran: Christians and Christian converts, May 2019 at 2.4.4 < The Australian Institute of International Affairs published an Iran Study Tour Report in April 2018 which stated as follows:
Under the current Islamic regime, citizens are, at least in theory, free to practice the religion of their choice. Each religious minority is guaranteed a seat in parliament, as stipulated in Iran’s constitution. However, whilst conversion to Islam is accepted and encouraged, it is illegal to convert to a different religion once one has identified as Muslim. This is considered apostasy and harsh penalties can apply. Apostasy is punishable by death in certain cases, however the crime has never been codified in law.[9]
[9] Cited in: UK Home Office, Country Policy and Information Note, Iran: Christians and Christian converts, May 2019 at 8.1.3.

158. The Tribunal notes that significant time has passed since the delegate’s decision, the decision of the First Tribunal and the decision of the Federal Circuit Court.
159. Since that time, the applicant has visited and joined [Church 1] in Sydney. According to a support letter from that church, he has maintained a continuous connection and commitment to the church community and encouraged others to join the church, some of whom have since been baptised into that church.
160. Whilst the Tribunal initially had its concerns, particularly in relation to the timing of the commencement of his engagement with the church, based on the evidence before it, the Tribunal accepts the applicant’s claims about his Christian conversion and that his involvement in Christian activities in Australia are genuine.
161. Specifically, the Tribunal accepts the first applicant was baptised on 12 November 2017 at [Church 1] in Sydney. The Tribunal accepts that prior to his baptism he had encouragement from a friend to explore Christianity and tuition from Pastor [D] to learn about Catholic faith and practises.
162. The Tribunal accepts that the applicant and his partner moved from Sydney to Brisbane in 2019. It accepts that his partner is also a Christian. It accepts that the applicant and his partner, when they are able, attend church services at the Catholic [Church 2], and that he is involved in some other church activities.
163. The Tribunal accepts that the applicant’s two children have been baptised into the Catholic faith at [Church 2].
164. The Tribunal notes the applicant’s membership of the Ex-Muslim Council of Australia. It finds his membership card to be genuine. The Tribunal finds such membership to be consistent with his claims to have converted from Islam.
165. The Tribunal found the applicant’s account of his conversion to be credible. This included a generally consistent account of the applicant’s early exposure to Christianity and his decision to explore Christianity in Australia.
166. The Tribunal finds the applicant’s conversion to Christianity to be genuine.
167. The Tribunal finds the applicant is a committed Christian and is now a member of the Catholic Church in Australia.
168. The Tribunal has considered the applicant’s motivations for converting to Christianity in Australia and their timing, noting that it is required to disregard such conduct in Australia unless satisfied that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee: s.5J(6).
169. The Tribunal is of the view that the first applicant’s commitment to exploring Christianity was genuine and has grown over time as claimed. The Tribunal regarded that his interest in Christianity was consistent with his account of his engagement encouraged by his friend in Sydney.
170. The Tribunal has also found that whilst his parents were observant and committed Muslims, their reported reaction to his conversion and the fact that a brother has also converted to Christianity (and fled to [Country 1] as a consequence) indicates a level of religious tolerance consistent with the applicant’s own exploration of faith.
171. Further, the Tribunal accepts that the Church and its members and the broader Christian community have become a source of community for the applicant and his family.
172. The Tribunal notes that the first applicant has told his parents about his conversion however he did not claim to have publicised his conversion in a manner which might suggest an attempt to strengthen claims for protection. His response was very matter of fact. He said his family accepted his conversion.
173. Having regard to the evidence the Tribunal is satisfied that the first applicant’s conversion and his notification to his family of the conversion were engaged in otherwise than for the purpose of strengthening his claim to be a refugee: s.5J(6).
174. The Tribunal has considered how the applicant may act on return to Iran as a Christian and a convert from Islam and whether that would lead to a real chance of serious harm by the Iranian authorities or his family.
175. The applicant fears harm based on being an apostate and Christian who has renounced Islam. The Tribunal has considered then whether he faces a well-founded fear of persecution on return to Iran due to his religion (as an apostate and Christian who has renounced Islam) and as a member of the particular social groups of ‘Christian coverts in Iran’ and ‘apostates who have converted to Christianity’.
176. The representative submitted that he is an active participant of a Christian community and that he believes he must spread Christianity by talking to people about Christ. If the applicant, on return to Iran, speaks to others about Christianity or expresses his belief with others, for example by attending house churches, then the country information indicates he could be at risk. It is submitted that even if the applicant’s conversion were not considered to be genuine, he would nonetheless be at risk for perceived apostacy. It was submitted he faces a real risk of persecution as a Christian convert from Islam, punishable by harsh and violent sentences, including death.
177. The country information set out above indicates that the government in Iran continues to regulate Christian religious practises and those at greatest risk are its leaders and proselytisers. The information suggests that the state is focused more on the public practise of religion and proselytising than on private conviction. On this basis, the Tribunal considers that if the applicant were to return and practise his Christian religion discreetly he might be able to do so without attracting the adverse attention of the Iranian authorities.
178. However, the Tribunal notes that individuals seeking protection are not required, and cannot be expected, to take reasonable steps to avoid persecutory harm, or to live ‘discreetly’ to avoid such harm: s. 5J(3) and Appellant S395/2002 v MIMA (2003) 216 CLR 473.
179. The Tribunal accepts that the applicant’s family has accepted his conversion. Accordingly, the Tribunal does not consider, on the evidence before it, that the applicant faces a risk of serious harm from his family in Iran due to his conversion.
180. The Tribunal has considered the applicant’s claimed practise of his faith in Australia to include activities which could be characterised as proselytisation, given its acceptance that the applicant has genuinely converted from Islam to Christianity and that he continues to actively practise his Christian faith in Australia, make social media postings and encourage others to join the Christian faith.
181. The Tribunal accepts that the applicant would seek to continue to practise his Christian faith should he return to Iran. The Tribunal accepts that if the applicant were to return to Iran, he would seek to attend church, seek out other Christians, possibly attend house church gatherings, and speak of his Christian faith and encourage others to engage with the Christian faith.
182. The Tribunal also accepts that should his partner and children return to Iran with him, the applicant would also continue to raise his children as Christians and live in a manner consistent with Christian beliefs, including seeking to take communion.
183. For these reasons and having regard to the country information concerning the situation for Christian converts in Iran and the applicant’s particular circumstances, the Tribunal accepts that should the applicant return to Iran, now or in the foreseeable future, there is a real chance he will face serious harm from the authorities as required by s.5J(4)(b) of the Act in that it involves a threat to his life or liberty or significant physical harassment or ill-treatment.
184. The Tribunal accepts that the treatment of apostates who come to the attention of authorities in Iran constitutes serious harm for the purposes of s.5J(5)(a) of the Act in that it involves a threat to life or liberty, even noting that though the death penalty is now rare, other harsh penalties can apply.
185. The Tribunal accepts that the applicant wishes to freely practise his faith but fears that to do so in Iran will expose him to persecution, including arrest and detention. The weight of country information before the Tribunal indicates that the applicant’s fears in this regard are well-founded and that there is a real chance that continuing to practise his Christianity would draw attention to his conversion from Islam and expose him to harm. The Tribunal finds the applicant’s religion is the essential and significant reason for the persecution which the applicant fears, as required by s.5J(4)(a), and that the persecution which he fears involves systematic and discriminatory conduct, as required by s.5J(4)(c), in that it is deliberate or intentional and involves his selective harassment for reason of his religion, as a convert to Christianity and a member of the Catholic Church.
186. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
187. A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).
188. Since the Iranian government is responsible for the persecution that the applicant fears, the Tribunal is not satisfied that the effective protection measures as per s.5LA are available to the applicant in Iran provided by the state, party or organisation. The Tribunal finds that the applicant would not be able to access effective protection if returned to Iran for the purposes of s.5LA(2).
189. For the same reasons, the Tribunal is not satisfied that there is any part of Iran in which the applicant would be safe from the persecution that he fears as a Christian convert. The Tribunal is satisfied the first applicant would face a real chance of persecution in all areas of Iran and therefore satisfies s.5J(1)(c).
190. The Tribunal notes that s.5J(3) states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or conceal an innate or immutable characteristic. In this case the Tribunal is satisfied that the modification would require the applicant to ‘alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practise of his or her faith’: therefore s.5J(3) does not apply.
191. Accordingly, the Tribunal accepts that the applicant has a well-founded fear of persecution for the purposes of s.5J. In considering whether he comes within the definition of a refugee contained in s.5H, it accepts that he is outside the country of his nationality and unable to return to it owing to his well-founded fear of persecution. Therefore he meets the criteria in s.5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s.5H(2) apply to the applicant. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in a third country for the purposes of s.36(3) of the Act.
192. The Tribunal finds, therefore, that for the purposes of s.36(2)(a) of the Act, the applicant is a refugee.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?
193. As the Tribunal has determined that the applicant is a refugee in accordance with s.36(2)(a), it is not required to consider whether, on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Iran.

Conclusion: Refugee Criterion
194. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is a real chance that in the reasonably foreseeable future the applicant will be persecuted for a Convention reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is well-founded as required by s.5J of the Act and therefore he is a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
195. As the Tribunal has determined that the applicant is a refugee in accordance with s.36(2)(a), it is not required to consider whether, on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Iran.
Overall Conclusion
196. For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(a).
DECISION
197. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act;
Michael Hawkins AM
Member

[2021] AATA 3195

21 May 2021

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