1825132 (Refugee)

[2023] AATA 1283

1825132 (Refugee) [2023] AATA 1283 (6 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Erskine Rodan

CASE NUMBER:  1825132; 2001213; 2107804

COUNTRY OF REFERENCE:                   Iran

MEMBER:Alison Murphy

DATE:6 February 2023

PLACE OF DECISION:  Melbourne

DECISION IN 1825132: The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

DECISION IN 2001213:  The Tribunal does not have jurisdiction in this matter.

DECISION IN 2107804: 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 06 February 2023 at 11:09am

CATCHWORDS

REFUGEE – protection visa – Iran – religion – agnostic – conversion to Christianity – local church involvement in Australia – particular social group – failed asylum seeker – political opinion – pro-western views – avoiding Islamic practices – bribery – physical assault – fear of killing – altercations with the Basij – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5AA, 5H, 5J – 5LA, 36, 46, 48, 65, 66, 91, 423, 499
Migration Regulations 1994, Schedule 2

CASES

DBB16 v MIBP (2018) 260 FCR 447
Jayasinghe v MIEA (1997) 76 FCR 301
SZASP v MIAC [2007] FCA 771
SZBWJ v MIAC [2008] FMCA 164

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Before the Tribunal are three valid applications for review relating to two separate decisions made by delegates of the Minister for Home Affairs. Each decision of the delegate is a decision to refuse to grant the applicant a Subclass 790 (Safe Haven Enterprise) visa (SHEV) under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The reasons for this are not made explicit in the material before the Tribunal but on the basis of that material, as well as discussions with the applicant’s representative at hearing, the Tribunal understands they are as follows:

   ·The applicant arrived in Australia in October 2012 by boat and without a valid visa. According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands. He was granted a UJ-449 (Humanitarian Stay) visa in December 2012 and released from detention as the holder of a bridging visa. As he had arrived in Australia by boat and without a visa, he was presumed to be an ‘unauthorised maritime arrival’ within the meaning of s 5AA and prevented by s 46A from making a valid visa application without the intervention of the Minister.

   ·The Minister subsequently lifted the bar and the applicant was invited to apply for a SHEV. He did so on 23 August 2016 (the first SHEV) and a delegate made a decision to refuse to grant that visa on 19 June 2017. As an ‘unauthorised maritime arrival’, he was advised that his review rights were to the Immigration Assessment Authority (the IAA) for review. The IAA affirmed the decision to refuse the applicant the SHEV on 16 October 2017.

   • Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447, a person is not an ‘unauthorised maritime arrival’ (UMA) through the act of entering Australia by sea at the Territory of Ashmore and Cartier Islands.

   ·[In] August 2018, the Federal Circuit Court of Australia declared that the applicant was not an ‘unauthorised maritime arrival’ within the meaning of s 5AA and that he had not been notified of the decision to refuse him the visa pursuant to s 66 of the Act. The court ordered that the decision of the IAA be quashed and that the Department notify the applicant of the delegate’s decision dated 19 June 2017 in accordance with s 66 of the Act.

   ·On 29 August 2018, the first application for review of the delegate’s decision dated 19 June 2017 was lodged with the Tribunal (AAT proceedings 1825132). As a consequence of the court’s declaration, the Department re-notified the applicant of the delegate’s decision dated 19 June 2017 on 9 January 2020. In that re-notification, the Department advised him that he could seek a review of that decision from this Tribunal. A further duplicate application for review was lodged on 23 January 2020 (AAT proceedings 2001213).

   ·On 1 October 2020, the applicant was notified under ss 91L(1) and s 48B(1) that the Minister had lifted the statutory bars set out in s 91K and s 48A and on 9 October 2020 the applicant made a further application for a SHEV (the second SHEV). A delegate of the Minister refused to grant the applicant that visa on 9 June 2021 on the basis that they were not satisfied the applicant is a person owed protection by Australia. On 15 June 2021 the applicant sought a review of that decision from this Tribunal (AAT proceedings 2107804).

3. All three matters were listed for a single hearing on 14 September 2022. As there was insufficient time to hear from all of the witnesses on this date, the matter was adjourned part heard and resumed on 11 January 2023.

4. The applicant was represented in relation to the review.

5. At the commencement of the hearing the Tribunal advised the applicant that it was required to consider all the claims and issues raised over the course of both visa applications and that it was proposing to write a single decision addressing all the claims that he had made over the course of the three reviews. The Tribunal also advised him that in determining the two review applications of the delegate’s decision dated 19 June 2017 (being 1825132 and 2001213), the Tribunal could only review a decision once. As a consequence the Tribunal considered that once it had decided the first of those two review applications (1825132) it would no longer have jurisdiction to conduct a review in the second review application (2001213). No disagreement with this approach was expressed during or after the hearings.

   The Tribunal hearings

6. The applicant appeared before the Tribunal on 14 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from a number of witnesses attending the hearing in person, being [Leader A], [Mr A], [Friend A], [Friend B], [Mr B], [Friend C] and Ms [Friend D]. A number of other witnesses named on the hearing response were not called to give evidence either in person or by phone, being [Doctor A], [Doctor B] and [Mr C]. Two further people attended the hearing as support persons for the applicant but did not give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

7. The hearing resumed on 11 January 2023 where the Tribunal heard evidence from [Pastor A], who attended in person. [Psychologist A], psychologist, was available to provide evidence to the Tribunal by video link. At the first hearing I discussed with the applicant’s representatives my concerns about aspects of [Psychologist A’s] report dated 6 September 2022, being those parts of that report that purport to analyse country information and legal instruments. Such matters would not generally be considered to be within the expertise of a medical professional and it is not suggested that [Psychologist A] has any relevant expertise in these areas. Following the first hearing, a revised report was submitted. I accept [Psychologist A’s] account of the applicant’s medical history and diagnoses and after discussion with the applicant’s representative, I did not consider it necessary to hear further oral evidence from [Psychologist A].

8. The applicant’s sister, Ms [Sister A], was available at the second Tribunal hearing to give evidence by video from Iran about the applicant’s family background and relationship with his brothers. She provided a written statement outlining their difficult and violent childhood in a manner generally consistent with the evidence of the applicant himself as well as his recounting of that history to [Psychologist A]. The witnesses [Friend D], [Friend B] and [Friend C] also made reference to the applicant’s difficult relationship with his brothers. In view of the other evidence before the Tribunal I did not consider it necessary to hear further oral evidence from [Sister A].

   CRITERIA FOR A PROTECTION VISA

9. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

10. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

11. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

12. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

13. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

14. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. In this case the relevant report is the DFAT Country Information Report: Iran dated 14 April 2020.

    CONSIDERATION OF Claims and evidence

15. The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.

    Country of nationality

16. There is no dispute that the applicant is a national of Iran. He has consistently claimed to be so and has been accepted as such by the Department. The delegate’s decision dated 9 June 2021 records that he has provided to the Department copies of his Iranian national identity card, his shenasmaneh, indicating he was born in Karaj, and his Iranian driver’s licence, and copies of those documents are contained on the departmental file [number]. He participated in the departmental and Tribunal proceedings with the assistance of a Farsi interpreter. The Tribunal finds he is an Iranian national and has assessed his claims on the basis that Iran is his country of nationality and the receiving country.

    The applicant’s background

17. The applicant is [an age]-year-old male from the Iranian city of Karaj. He was born into a Shia Muslim family and has [specified family members], all of whom reside in Iran. His mother passed away in 2017 and his elderly father continues to live in Karaj. After finishing his education, the applicant undertook technical training as [an occupation 1] at a technical and trade school in Karaj. He also worked as [an occupation 2] at a workshop owned by his uncle for several years.

18. At the entry interview on 15 October 2012, he is recorded as stating that he left Iran legally, flying from Tehran to Country 1] and then on to Jakarta using his own passport. On arrival in Jakarta he was met by people smugglers who accommodated him in Jakarta, and later [a location], before he boarded a boat to Australia. He saw his passport get torn up by the people smugglers in Jakarta. He arrived in Australia by boat and without a visa in October 2012, [aged].

19. The Tribunal accepts the above matters to be true.

    Claims for protection

20. As is evident from the history recounted above, the applicant has made claims for protection over a period of more than 10 years, essentially the first ten years of his early adulthood. Unsurprisingly those claims have changed both in emphasis and substance during that period. By the time of the Tribunal proceedings, the applicant’s fear of harm on return was centred on his sur plus claims to have converted to Christianity since his arrival in Australia.

21. At the entry interview in October 2012 he is recorded as stating that he left Iran and travelled to Australia because of the job opportunities and for a better life. He said Iran’s police and security and intelligence organisations impacted on his life in Iran, stopping him for no reason on many occasions while he was driving. When asked what he feared would happen if he returned to Iran, he stated that he would never return.

22. In the first SHEV application lodged in August 2016 he stated that he feared that if he was returned to Iran, he would be seriously harmed or killed by the Iranian government, police, basij, sepah or criminal or violent civilians. He said he had been harassed by police and pro-government agencies as well as pro-military volunteer militias such as the basij and sepah who harass the public and inform the police. He stated he was constantly stopped and questioned by those agencies and his car searched and he was required to pay bribes to avoid trouble. He was stopped many times when he was attending [a location] in the city and harassed, insulted and extorted for bribes, especially when he had a female in the car. He described a number of such incidents, some of which involved alcohol, in which he was stopped, harassed, extorted and stated that on one occasion the police confiscated and held on to his national identity card for several months.

23. He claimed he would be harmed on return because he had spoken out about the Iranian regime in Australia, because he was a failed asylum seeker, because he held political views that were pro-western, because he had not completed military service in Iran and because his conduct contravened Islamic principles, norms and values. The delegate’s decision dated 19 June 2017 indicates that he elaborated on these claims at interview, stating that he was agnostic and did not follow Islam; he drank alcohol and failed to observe Ramadan. The delegate also assessed other elements of his profile including that he had tattoos and that he would return to Iran as a failed asylum seeker from a western country. The delegate did not accept the applicant would face serious or significant harm in Iran for any of these reasons.

24. In the second SHEV application lodged in October 2020, the applicant maintained his opposition to Islam, stating he was raised in an Islamic household and forced to take part in a religious practice he did not believe in. He stated he knew people who did not practise Islam who were punished and disappeared. He claimed to have been constantly punished by his family and his religious school for refusing to obey the strictures of Islam, including being slapped and hit with a belt by his brothers for not praying, fasting and wearing long sleeved clothes. He claims he was suspended from school for not fasting, shamed by the teachers and ostracised by the class. He recounted an incident when he was 15 or 16 years old where he was drinking alcohol in the street with a friend when the basij from a nearby mosque beat them up. When he woke up in hospital he had been stabbed and had [a serious injury], [corrected by surgery].

25. The applicant claimed that he had converted to Christianity since the first SHEV application and that he had been a regular attendee at [Church 1] since 2017. He claimed that if returned to Iran he would face harm from his family, the Iranian authorities and the Iranian community as a result of his religious conversion.

26. The delegate accepted that the applicant had had altercations involving the basij which had caused him distress and inconvenience but considered the applicant had embellished the psychological impact that these altercations had on him and did not accept they caused him trauma, torture or loss of liberty. While the delegate does not expressly say so, the Tribunal infers that the delegate did not believe the applicant’s account of the incident in which he claims to have been stabbed and to have had [the serious injury] by the basij.

27. The delegate further accepted that the applicant was agnostic; he did not practise Islam and had little interest in religion. However, the delegate did not accept the applicant’s claimed conversion to Christianity to be genuine and did not believe the applicant would be harmed because of his agnosticism or because he did not practise Islam. Rather, the delegate considered that the applicant had converted to Christianity in Australia only to bolster his protection claims.  

28. Before the Tribunal, the applicant gave evidence that was broadly consistent with his earlier claims to the Department. He gave evidence about his past interactions with the basij in Iran and showed the Tribunal [evidence of his injury], [details deleted]. He also elaborated on his claims to have experienced past harm from his brothers and his claims they would again harm him if he returned to Iran as a Christian.

29. Consistently with his evidence to the delegate at interview in relation to his second SHEV application, the applicant told the Tribunal he no longer had a fear of harm in Iran for reason of his tattoos or his consumption of alcohol. At hearing the applicant gave evidence that he was aware that during the time he had been in Australia, attitudes towards tattoos had changed in Iran and many people now had them. He said that he no longer drank alcohol as a result of his religious conversion and he had no fear of future harm on that basis.

30. In relation to his previous claims about military service, the applicant confirmed his earlier evidence to the Department that he held an exemption from military service because his [brothers] had completed military service and he was exempt as the youngest brother. However, he said that his exemption could be revoked if his service was required and that with current conditions in Iran, anyone could be required to do military service. He told the Tribunal that Iranian males were eligible for conscription between the ages of 18 and 33. As at the time of the Tribunal’s decision, he is [age] years old.

1. While the applicant’s claims appear in some respects to be disparate and unconnected, the Tribunal has formed the view that most of his claims in fact have the same genesis, being his long-standing opposition to Islam and the strictures it has imposed on his life in Iran and his later interest in and conversion to Christianity in Australia. The applicant’s evidence suggests that his rejection of his family’s Muslim religion arises at least in part from the harsh treatment he experienced at the hands of his brothers and the Iranian authorities.

2. Given the centrality of these issues to the applicant’s claims, the Tribunal considers it appropriate to consider the applicant’s religious claims first.

   Non-practising Muslim

3. The applicant has consistently stated from the time of his first entry interview in 2012 that while he was born into a Muslim family, he did not himself accept or practise the tenets of that religion and on several occasions came to the attention of the Iranian authorities for conduct that breached Iran’s sharia laws. Both delegates appear to have broadly accepted the applicant’s account of his interactions with the basij.

4. The delegate who decided the first SHEV application accepted that the applicant was agnostic, that he drank alcohol and did not observe Ramadan. The delegate also accepted that the applicant was stopped and questioned by the Iranian authorities while driving, but considered he was just an opportunistic target and that he was not seriously harmed. The delegate’s decision records that he considered that ‘the applicant, like all persons in Iran, would be required to observe laws relating to standards of public etiquette, including consumption of alcohol.’ The delegate found that there was not a real chance the applicant would be seriously harmed upon return to Iran for his agnosticism or his lack of adherence to Islamic observances.

5. The delegate who decided the second SHEV application also accepted that there had been several altercations between the applicant and the basij which resulted in fines but noted his evidence he had not been arrested and charged with any criminal offence. The delegate considered the applicant did not have a significant profile threatening the values of the regime and would not attract adverse attention because he was a non-practising Muslim or because he shared his personal views in private.

6. The Tribunal accepts the applicant was born into a Muslim family in Iran, but that he did not accept or practise that faith. In making that assessment, the Tribunal notes DFAT’s advice that secularism in Iran is widespread, particularly in the major cities and among younger and wealthier Iranians. A significant proportion of the population does not attend mosque or pray on a regular basis, and alcohol consumption is common.[1] The Tribunal further accepts that the applicant identified as agnostic by the time he arrived in Australia in 2012.

   [1] DFAT DFAT Country Information Report: Iran 14 April 2020 at 3.70

   Conversion to Christianity

7. It is not in dispute that the applicant has been regularly attending [Church 1] since 2017 and that he underwent a water baptism at that church in March 2018. The evidence before the Tribunal indicates that he has continued to regularly attend that church and participate in a range of church activities up until the present time. The applicant’s claim to fear harm for reasons of his conversion to Christianity post-dates the first SHEV application, but was made to the Department in the context of the second SHEV application.

8. The delegate recorded in the decision record dated 9 June 2021 that he was satisfied the applicant had ‘a reasonable knowledge of Christian dogmata and concepts and has studied scripture to some extent.’ The delegate further accepted that the support letters from two priests from [Church 1] were sincere. However, the delegate considered that ‘regular church attendance and baptism cannot serve as a singular benchmark in determining whether one has genuinely converted and is committed to Christianity’, citing country information about the existence of fraud among Iranians who claim to have converted to Christianity for the purpose of furthering an asylum claim.[2]

   [2] Delegate’s decision dated 9 June 2021 in relation to the second SHEV application pp 10 - 12

9. The delegate considered that the applicant was not interested in Christianity in Iran or during his first five years in Australia and that his conversion to Christianity posed a late addition to his story, and found it ‘can be explained by the fact that his first SHEV application was refused by both department and IAA in 2017’. The delegate considered that the applicant took steps to join the church only after his visa application was refused by the Department, considering that ‘he was more driven by a desire to create evidence in support of his claim to asylum than by real interest in the Christian faith even though he seems to attend the church and its activities on a regular basis’.[3]

   [3] Ibid at p 13

10. The Tribunal acknowledges the concerns of the delegate around the genuineness of his conversion to Christianity, but for the following reasons the Tribunal has formed a different view.

11. The applicant has now been a regular attendee and member of the congregation of [Church 1] since mid-2017, a period of almost six years. After undertaking nine months of bible studies, he was baptised [in] March 2018. Since that time, he has been a regular attendee at Sunday services and participated in a range of other church activities, including ongoing bible studies, assisting with the food bank and outreach and working bees to maintain church property. While it is not impossible that the applicant has been falsely presenting himself as a Christian convert for that whole period, such a finding should not be made lightly.

12. The Tribunal is satisfied that the applicant has been accepted into that church community as a Christian convert with a genuine commitment to that faith. A number of congregation members and the pastor attended the Tribunal hearings and gave evidence in support of the applicant, while others provided letters of support. While they generally acknowledge that they accept the professions of faith of members of their congregation at face value, they each gave evidence that the applicant’s conduct, character and values aligned with that of the church:

    ·[Pastor A], a pastor at [Church 1] for the past three and a half years, gave evidence that the applicant is a regular attendee who is always available to assist the church and get involved in different activities, and who has a lot of friendships within the church. [Pastor A] has been pastoring for more than 40 years and gave evidence that the applicant’s character and beliefs have been consistent and that he has undergone a time of growth, development and understanding. When asked if he had considered the possibility that the applicant’s conversion may have been for the purpose of strengthening his refugee claims, [Pastor A] acknowledged that it is not possible for him to be 100% sure of the applicant’s spiritual beliefs, but he considered the applicant identified, behaved and was accepted as a Christian. He said he and his wife have a good idea of how people operate and he didn’t have any strange feelings about the applicant’s commitment when he saw him with the rest of the congregation. He stated that the applicant’s values, behaviour and character align with the church’s belief system and he had no reason to think the applicant’s faith was not genuine. [Pastor A] gave evidence that there were other occasions in his pastoring history where he has doubted the genuineness of the conversion of other persons in his congregations, but he did not feel that way about this applicant.

    ·Previous pastors of [Church 1] have also provided letters in support of the applicant. [Pastor B], now retired, stated in October 2020 that he had known the applicant for three years since meeting him at the church and conducting a bible studies course for him, and that he considered his interest in the bible to be genuine. [Pastor C] stated in October 2020 that he had met the applicant at [Church 1] in [Suburb 1] and kept in semi-regular touch with him. He said that the applicant was a regular attendee of Sunday services and also completed the church’s teaching and discipleship programs before [Pastor C] baptised him. [Pastor C] states that he has spent a lot of time with the applicant over several years and he has been a guest in his home many times.  

    ·[Leader A] is a leader who looks after prayer week for that church. She gave evidence that she has known the applicant for several years through his attendance at the church and that she believes him to share their belief in God and the precepts of their faith. She recalled the testimony he gave at the time he committed to the church and he has attended a church gathering at her home.

    ·[Mr C] is a member of [Church 1] who has known the applicant for several years through his involvement in the church. He believes the applicant’s conversion is genuine and that he is a sincere follower of Christ.

13. The above people have spent a great deal of time over the past six years observing the applicant’s conduct and behaviour in their church and the Tribunal gives weight to their assessment that he genuinely shares their beliefs.

14. The applicant’s conversion is also known among his friends in Australia and at least some of his family in Iran. The most compelling evidence of the applicant’s Christian conversion came from his close friend [Friend D], herself a Sunni Muslim, who described the applicant as like her brother. She gave evidence that she was aware that he didn’t accept Islam before his conversion and they used to argue about it because her own experience of Islam was that it was peaceful and taught to her in a good way. She attributed the applicant’s negative view of Islam to the brutality of his brothers who followed the wrong Islamic ways in Shia Islam. She said she was hurt when the applicant told her he had converted to Christianity, saying it doesn’t sit right for a Muslim to convert to Christianity. She gave evidence that despite her personal hurt and confusion, she understood his decision. [Friend D] is in touch with the applicant’s sister, [Sister A], in Iran and has discussed his conversion to Christianity with her.

15. [Sister A’s] statement records the applicant has discussed his conversion and his new faith with her and encouraged her to consider it as well. She confirms her friendship with [Friend D], whom she describes as being like a kind and caring sister to the applicant.

16. Several members of his [sport] club also attended the hearing and gave evidence, attesting that they were not themselves Christian, but they knew the applicant to be of Christian faith and that he missed [training] to attend church on Sundays ([Friend A], [Friend C] and [Friend B].)

17. The delegate considered the timing of the applicant’s conversion coincided with the refusal of the first SHEV by the Department in 2017. However, that timing also coincides with the death of the applicant’s mother in Iran in the same year. The applicant gave evidence that he went to the church with his cousin following the death of his mother in Iran and [Friend D] and [Sister A] corroborate the applicant’s evidence that he did not want to convert to Christianity while his mother was still alive.

18. Having regard to the totality of the evidence before the Tribunal, much of which was not available to the delegate, I am satisfied the applicant’s conversion to the Christian faith is genuine and not for the purpose of strengthening his refugee claims. Therefore his conduct in Australia must not be disregarded pursuant to s 5J(6).

    Fear of harm from family

19. Before the Tribunal, the applicant made new claims about harm perpetrated on him in the past by his brothers because of his refusal to practise or abide by the tenets of Islam while growing up in Iran. In particular, he claimed to have been subjected to bullying, physical harm and harassment from his father and older brothers. As a teenager, he didn’t want to attend 3am and 5am prayers during Ramadan, leading to his brothers beating him and kicking him in the head. On another occasion he stood up for his mother when his brother threw a plate at her, as a result of which his brother stabbed him in [body part]. On another occasion his brother hit him across the head, as a result of which the applicant continues to suffer from tinnitus. In a further incident, the applicant came home to find his [pets] had been killed and mutilated by his brothers.

20. Section 423A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of claims or evidence not raised or presented before the primary decision was made, unless the Tribunal is satisfied there is a reasonable explanation as to why that occurred. 

21. At the first Tribunal hearing, I discussed with the applicant that he had not made such claims to the delegate in either of the visa applications. The applicant gave evidence that he had lived in such fear of his brothers that he was unable to speak about these events even after his arrival in Australia.

22. The psychological report of [Psychologist A] dated 12 October 2022 provides some support for that explanation. [Psychologist A] is not the applicant’s treating psychologist but has had access to clinical notes from his GP, [Dr A], his consultant psychiatrist, [Psychiatrist A], and psychologists who treated the applicant between 2017 and 2021. Copies of those materials have also been provided to the Tribunal. In her reports dated 6 September 2022 and 12 October 2022, [Psychologist A] records at length the applicant’s account of his traumatic childhood in Iran.

23. Consistently with the applicant’s medical history, [Psychologist A] states that the applicant has been diagnosed with PTSD, major depression disorder and generalised anxiety disorder and that a possible explanation for the lack of disclosure regarding the trauma reported in youth is avoidance:

    Avoidance is a core symptom of PTSD, with at least one avoidance symptom required for a diagnosis. People often try to cope with the trauma by avoiding distressing memories, thoughts, or feelings associated with the event.

    Further exploration had led to opinion that the process of reapplying for a visa has required [the applicant] to recount memories of experiences he previously supressed. The application itself could be viewed as a trigger as it caused [the applicant] to revisit the reasons, previously supressed as to why he felt he had to leave. It is a coping mechanism that suffers use to reduce the adverse effects of trauma that can be helpful in the short term after trauma but does not assist a person long term.

24. I accept the applicant’s [brothers] were violent and abusive towards him during his childhood with the consequence that he has had no contact with them in the past nine or 10 years. I further accept that the applicant has sent money back to Iran to assist his parents and that his parents’ money and property has been misappropriated by his brothers to the exclusion of the applicant. I accept that the applicant’s [Sister A] has moved away from the family with her husband and has little contact with her brothers for similar reasons.

    Risk on return to Iran

25. The applicant is [an age]-year-old male who has now been living in Australia for more than 10 years. For the reasons set out above, the Tribunal has accepted that the applicant has converted to Christianity and has been practising that faith at [Church 1] for almost six years.

26. DFAT reports that over 99% of Iranians are Muslim and Islamic beliefs and customs are enshrined into law. While there are around 130,000 registered Christians in Iran, they are made up of minority ethnic groups who are able to prove that they or their families were Christian prior to the 1979 revolution and recognised only because their presence in Iran pre-dates Islam. It is a capital crime for non-Muslims to convert Muslims to their faith and the Penal Code strictly prohibits proselytisation. Farsi-language services are not permitted as they could promote proselytisation and security officials closely monitor registered churches to confirm that they deliver their services in their traditional language and perform identity checks to ensure that non-Christians or converts do not participate in services.[4]

    [4] DFAT DFAT Country Information Report: Iran 14 April 2020 at 3.37 – 3.38

27. Iranian Christians who are not members of recognised churches generally practise in secret underground ‘house churches’ which operate across Iran, particularly in major cities. The Special Rapporteur on the situation of human rights in Iran estimates there are between 300,000 and 350,000 Muslim converts to Christianity, although the secrecy surrounding house churches means that precise figures are elusive. DFAT reports that a high percentage of unrecognised Christians are Farsi-speaking converts from Islam or their children, many of whom 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. The Iranian authorities interpret the growth in house churches as a threat to national security and periodically carry out raids against them, using informants posing as converts to infiltrate the house churches.[5]

    [5] Ibid at 3.49 – 3.58

28. DFAT reports that the Iranian judiciary has handed down long sentences in relation to house church activities, including 10 to 15 years imprisonment for eight Christians convicted of ‘acting against national security through the establishment of a house church’, ‘conducting evangelism’ and ‘insulting Islamic sanctities’. Media reports suggest that 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).

29. 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. However, DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed and those found to be proselytising face a high risk of arrest, prosecution and imprisonment.[6]

    [6] Ibid at 3.49 – 3.58

30. The evidence before the Tribunal does not indicate the applicant practises his faith in isolation; rather he has been fully engaged with the life of the congregation over a number of years. This includes attending bible studies, Sunday services, working bees, outreach activities and social gatherings. His conversion to Christianity is known to his friends and family, some of whom he has tried to bring into the church. The Tribunal accepts that should he return to Iran, he would wish to participate in his faith in a similar way and that to renounce or cease to be involved in the open practise of his faith in order to avoid harm from the Iranian authorities would be an impermissible modification of his behaviour for the purposes of s 5J(3)(c)(i).

31. The Tribunal finds that if the applicant were to return to Iran and openly practise his Christian faith, he would be at real risk of harm if his conversion were revealed to the Iranian authorities. The Tribunal finds that harm constitutes ‘serious harm’ involving systematic and discriminatory conduct for the essential and significant reason of his Christian religion for the purposes of s 5J(4) and (5). As the persecutor is the Iranian state, effective protection is not available to him and the real chance of persecution relates to all areas of Iran, and so s 5J(2) and (3) do not apply to him. For the reasons set out above, the applicant’s conduct in Australia is not to be disregarded under s 5J(6). Therefore the applicant meets the definition of a refugee set out in s 5J(1) and satisfies s 36(2)(a) of the Act.

1. I note the applicant’s claims that his brothers will seriously harm him for reasons of his Christian conversion if he returns to Iran. While I have accepted the applicant’s brothers were violent and abusive towards him during his childhood, he is now an adult who has been living independently of his family for many years. While I accept his brothers may be angered by his religious conversion and he will not be welcome to return to the family home, I am doubtful that they will pursue him and seek to harm him throughout Iran as claimed. However given my findings above, it is unnecessary for the Tribunal to determine this matter.

   CONCLUSIONS

2. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a). As such the decision of the Tribunal is to remit both review applications for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.

   DECISION ON JURISDICTION IN 2001213

3. This Tribunal has determined the application for review of the same delegate’s decision in the terms set out above. Where the Tribunal has received a valid application for review of a reviewable decision and carried out its statutory duty to review the decision under the Act, the decision is no longer a reviewable decision: SZBWJ v MIAC [2008] FMCA 164 at [41] and the cases cited therein. The Tribunal has no jurisdiction to review a delegate’s decision twice: Jayasinghe v MIEA (1997) 76 FCR 301 and SZASP v MIAC [2007] FCA 771. For these reasons the Tribunal finds it has no jurisdiction in AAT proceeding 2107804.

   CONCLUSIONS

4. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

   DECISION IN 1825132:  

5. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

   DECISION IN 2001213:  

6. The Tribunal does not have jurisdiction in this matter.

   DECISION IN 2107804:  

7. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

   Alison Murphy
   Member
   Attachment  -  Extract from Migration Act 1958

   
   

   5 (1) Interpretation  

   …

   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)     that is not inconsistent with Article 7 of the Covenant; or

   (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)     that is not inconsistent with Article 7 of the Covenant; or

   (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)     for the purpose of intimidating or coercing the person or a third person; or

   (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   receiving country,  in relation to a non-citizen, means:

   (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5H    Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

   …

   5J     Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:     For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:     For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K    Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)     disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L    Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)     a characteristic is shared by each member of the group; and

   (b)     the person shares, or is perceived as sharing, the characteristic; and

   (c)     any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)the characteristic distinguishes the group from society; and

   (d)     the characteristic is not a fear of persecution.

   5LA Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   …

   36     Protection visas – criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

   (2A)A non‑citizen will suffer significant harm if:

   (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)     the death penalty will be carried out on the non‑citizen; or

   (c)     the non‑citizen will be subjected to torture; or

   (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)     the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …