1828146 (Refugee)
[2024] AATA 3296
•30 April 2024
1828146 (Refugee) [2024] AATA 3296 (30 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Tony Tran
CASE NUMBERS: 1828146 & 1903676
COUNTRY OF REFERENCE: Iran
MEMBER:Jason Pennell
DATE:30 April 2024
PLACE OF DECISION: Melbourne
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 30 April 2024 at 3.10pm
CATCHWORDS
REFUGEE – Protection Visa – Iran – religion – Faili Kurd – Kurdish ethnicity – practising Christian – conversion to Christianity – witnessing the Green Movement protests – a returned failed asylum seeker – applicant will continue to express his faith freely – there is a real chance that the applicant will suffer serious harm – satisfied that the applicant is a person in respect of whom Australia has protection obligations – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 46, 65, 424, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 August 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be stateless, applied for the visa on 3 November 2015. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
The applicant lodged an application for review of the delegate’s decision to the Administrative Appeals Tribunal (the Tribunal) on 18 February 2019 and provided the Tribunal with a copy of the delegate’s primary decision record dated 1 August 2018.
The applicant appeared before the Tribunal in person on 1 November 2023 to give evidence and present arguments and the Tribunal is satisfied that he was given a fair opportunity to give evidence and present arguments.
The Tribunal also received oral evidence from Reverend [A] and Reverend [B].
The Tribunal hearing was conducted with the assistance of interpreters in the Kurdish, Persian and English languages.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country.[1] 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.[2]
[1] Section 5H(1)(a) of the Act.
[2] Section 5H(1)(b) of the Act.
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–5LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and where applicable, 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.
APPLICANT’S CLAIMS AND EVIDENCE
Applicant’s identity and country of reference
The applicant claimed in his visa application that his name was [Name 1] and that he was born on [date] in [City 1] Baghdad, Iraq. He claimed to be stateless.
However, the delegate recorded that the applicant’s fingerprints matched a visa application for [a country], made in the name [Alias 1] born on [a different date]. Therefore, based on the biometric and documentary evidence, the delegate found that the applicant is [Alias 1] born on [a different date] and not [Name 1] born on [date], as claimed in his application.
The applicant confirmed to the Tribunal that he is not [Name 1] born on [date] in [City 1] Baghdad, Iraq as claimed. His evidence was that his name is [Alias 1], born on [a different date] in Tehran, Iran.[3] The applicant confirmed to the Tribunal that he was an Iranian citizen and not stateless as claimed.[4] The applicant’s evidence was that he destroyed his passport on the boat to Australia and provided a false name and identity to the authorities on the instructions of the people smuggler who arranged his journey to Australia.
[3] Applicant’s statutory declaration dated 2 November 2020, paras 5, 6, 20, 21, AAT File No. 1903676, Doc ID 11690681; Applicant’s statutory declaration dated 25 October 2023, p.1, AAT File No. 1903676, Doc ID 11690681.
[4] Applicant’s statutory declaration dated 2 November 2020, para 8, AAT File No. 1903676, Doc ID 11690681.
Therefore, based on the biometric and documentary evidence and the applicant’s own evidence to the Tribunal, it finds that the applicant’s name is [Alias 1] and that he was born on [a different date] in Tehran, Iran. As such the Tribunal finds that the applicant is a citizen of Iran. There is no evidence to suggest the applicant has the right to enter and/or reside, whether temporarily or permanently, in any other country. As such, the applicant’s protection claims will be assessed against Iran as ‘the country of reference’ and ‘receiving country’ respectively.
Applicant’s migration history
The applicant arrived in Australia as an unauthorised maritime arrival on [date] September 2012.[5] The applicant travelled by air from Iran to [Country 1]. The applicant then travelled to Australia by boat. The applicant arrived in Australia at Ashmore Reef and was taken to immigration detention upon arrival.[6]
[5] Department Movement Records, AAT File No. 1903676, Doc Id 11744591.
[6] Applicant’s submissions dated 25 October 2023, AAT File No. 1903676, Doc ID:11690672.
On 12 December 2012 he was granted a Humanitarian Stay visa (UJ-449) valid until 19 December 2012. The applicant held a total of six bridging visas E, with the current one granted on 8 December 2015.[7]
[7] Ibid.
On 3 November 2015 the applicant applied for a Safe Haven Enterprise Visa (Subclass 790) (SHEV). On 1 August 2018 the delegate refused the applicant’s SHEV application. On 7 August 2018 the applicant was deemed to be a ‘fast track’ applicant and as such the matter was referred to the Immigration Assessment Authority (IAA). However, on 7 September 2018, the IAA found that the applicant was not affected by DBB16 v Minister for Immigration and Border Protection and as such the applicant was not properly notified for the delegate’s decision under s 66 of the Act. Accordingly, the applicant was able to apply to the Tribunal for a review of the delegate’s decision.[8]
[8] Ibid.
On 25 September 2018 the applicant applied to the Tribunal for a review of the delegate’s decision (Case No 1828146).[9]
[9] Ibid.
On 18 February 2019 the Department renotified the applicant of the refusal of his SHEV application lodged on 3 November 2015. As a result, on 18 September 2019 the applicant applied to the Tribunal for a further review (Case No 1903676).[10]
Applicant’s claims for protection
[10] Ibid.
The applicant first submitted claims for protection when he applied to the Department on 3 November 2015, in a statutory declaration dated 19 October 2015 (‘the 2015 Statutory Declaration’).[11]
[11] The 2015 Statutory Declaration, Department File No. [deleted], Doc ID 6057857.
The delegate summarised the applicant’s protection claims, including those provided at his Protection interview, as follows:[12]
[12] Department decision record dated 1 August 2018, AAT File No. 1903676, Doc ID: 5284569.
· He was born in Baghdad, Iraq in [year].
· His parents are Faili Kurds and were expelled from Iraq in 1980 when he was [age]. They left behind all of their property.
· Once in Iran they were to a temporary shelter for refugees from Iraq. His family suffered at this camp. After a year they were able to leave the camp and they travelled to Tehran.
· His parents have never tried to return to Iraq and are still living in Iran.
· His parents were issued ‘Green Cards.’ He and his siblings also had these cards. His card had a photograph of him at approximately [age] years of age. The photograph was never updated until the card was taken from him in 2009.
· The card allowed him to study up to Grade [deleted] and gave him limited access to medical care. His family had to pay money if they went to a hospital.
· In 2002 or 2003 the Iranian authorities said that the Green Cards would no longer be recognised and that Faili Kurds had to apply for White Cards. He remembers that people were suspicious about the Iranian authorities’ intentions. As such, his father decided that it was safer not to apply for White Cards.
· After this he was careful not to be stopped by the authorities. If he was stopped, he would show his expired Green Card and have to pay a bribe.
· He briefly attended a secondary school; however, his parents were called in to the school as other parents were not happy with him attending the school as he was seen to be an Arab. He then moved to [another school]. He did not receive a formal certificate despite passing all the examinations.
· He paid to sit the National University Entrance Examinations even though he did not have the right to attend university. He did well enough to qualify for entry but because of his ethnicity he was prevented from enrolling in a public university. He was only able to attend private institutes in limited courses.
· He enrolled at the [an] Institute. He was not allowed to study [a degree], but he was permitted to enrol in [another degree] which he completed in four years. He studied part time and worked to support himself. He finished the course in 2007/08 and enrolled to do further studies. He completed two more units of coursework before he was prohibited from further study.
· He was issued a ‘pass card’ from the university which gave him access to the building and grounds.
· His expired Green Card and university card were taken from him on 16th June 2009 by people he believes were from the Basij. From then until August 2012, he did not have possession of any official Iranian documentation.
· The only other document he possessed in Iran was a ‘Voter Card.’ It was issued to him for the purpose of voting in the Iraqi elections in January 2005. His father advised the family that they should vote in the election. He went to vote at a mosque in Tehran. Officials from United Nations facilitated this. He showed his expired Green Card when he voted, and his finger was marked with ink after he voted. They were told that the Voter Card could be used in the future to get Iraqi identification documents.
· This Voter Card is the only document he was able to bring to Australia. When he was detained, the document was taken from him. He is certain that the document was not returned to him when he was released from immigration detention. His family located a photograph of the card and sent it him.
· The photo of his card was one of several sent by his family to his cousin [who] lived in Baghdad, and who is the only remaining member of the extended family in Iraq. She was able to remain in Iraq as she married an Iraqi citizen. He has spoken with her, and she advised him that she was trying to assist his father in obtaining official acknowledgment of his status as a Fail Kurd and of the property that he was forced to abandon. He has been told that her effort to get his father Iraqi documents has been fruitless.
· His cousin also sent him a photograph of the back of his father’s student identification card.
· Whilst studying he met and married his [wife]. She is an Iranian citizen. Their marriage could not be formalised because of his status in Iran. They lived in a house owned by her grandmother. He was able to get employment with her father’s business.
· His wife was diagnosed with [a medical condition] in 2008. Some members of her family, including her father, blamed him for this. She became vulnerable and he believes his issues in Iran made her situation worse.
· In June 2009 there were political protests in Tehran. One day his wife called and suggested he meet her to see what was [happening]. She was interested in the ‘Green Movement’ in Iran. After twenty minutes a group of Basij approached them. One started hitting his wife with a baton. His reaction was to protect her and he pushed the Basij. A passer-by also assisted his wife. He was then shocked with a baton and hit in the head with a baton, breaking his teeth.
· He was taken to a van and had his mobile phone and documents, including his Green Card, taken from him.
· A large group of students approached the van and distracted the Basij and he ran away. He hailed a motorcycle taxi and fled.
· He needed medical treatment. He was able to get medical treatment from a connection of his wife’s family who was a surgeon.
· On [date] July 2009 he was taken from his home by Sepah officers. He was taken to a military [building]. He was interrogated about attending the protest and assaulted by someone referred to as [name]. After seven hours he was transferred to [a prison] and held overnight.
· The next day he was taken to a holding facility. He was detained in a room for seven days with the lights on all day. After this he was taken to another room with a detainee who seemed mentally unwell.
· He was taken to [another prison] and interrogated and assaulted repeatedly by the same Sepah officer. Sometimes this occurred until he passed out.
· He was taken to the Revolutionary Court three times. He was not told what offences he was charged with. He was accused of damaging national security, endangering public peace and cooperating with western forces in Iraq. A bond of 100 million toman was set for his release.
· His mother-in-law secured his release when she handed over the deed to an apartment in Tehran. He was ordered not to leave Tehran and to report to the Bureau of Aliens and Foreign Immigrants Affairs (BAFIA).
· He was required to report to BAFIA and on average he did this every two weeks. Sometimes he only had to sign his name and other times he was questioned.
· He tried to reenrol at [University 1] but was he was not allowed to.
· He felt depressed and was given anti-depressants by his wife’s doctor.
· In September 2011 he attended the BAFIA office. An officer told him that he was to be interviewed in front of a television camera. He was told that he would have to admit to working with foreigners. He refused to do this. He was asked to do this several more times.
· In February 2012 the Sepah officer [pressured] him to do this as well. He told [the officer] that he would not do this and threatened to tell foreign media what he was being pressured to do.
· He never went back to the BAFIA building.
· On [date] March 2012 he was abducted by plain-clothed men. He was driven for an hour or so and taken to a farm shed. He was assaulted and raped by one of the men. He was shocked with an electric device and was found unconscious.
· He awoke in hospital and was told that he was in a coma and that his arm may need to be amputated. He was hospitalised for approximately five months. The hospital was asking for his documents before they could treat him. His in-laws intervened and gave permission for the hospital to treat him and his arm was saved. It was later discovered that he had fractures in his back and he was hospitalised for another 45 days. Sometimes he was transferred to a Sepah hospital for scans or treatment.
· He was told that when he was released he must present himself to BAFIA.
· His mother-in-law made arrangements with a smuggler to facilitate his departure from Iran.
· On 17th August 2012 a nurse helped him escape the hospital.
· A fake passport was arranged for him as well as a document saying that he had business in [Country 1]. He was given instructions on how to pass immigration control.
· He has limited contact with his wife and now considers himself to be separated from her. He does not have any contact with his parents but he does have contact with his [brother].
· He grew up as a Shia Muslim although his parents were not particularly observant in the sense of attending mosque. As he grew older his beliefs moved away from Islam. After he left school he no longer did his daily prayers. His wife comes from a secular family. In the last ten years in Iran, he had no religion. His wife had some interest in the Christian church, and he attended a [church] with her a ‘couple of times.’
· When he was in immigration detention he was supported by Christian people. He attended church in detention and an Anglican church in Darwin after his release. He was baptised in late-2013. He describes himself as a Christian and continues to have this private faith. He goes to church when he is able but does not talk to people about it.
On 22 April 2018 the applicant made a statutory declaration with the following additional claims:
· He has had intermittent contact with his family via [social media].
· He has been told that his wife and mother-in-law have been questioned by the authorities who asked where he was. His wife also reports that she received suspicious phone calls.
· He has been told that in 2016 a woman came to his wife’s apartment looking for him,
· The property used as a guarantee for his release from jail is still being held by the Iranian authorities. He has been told that his in-laws have had to pay a lot of money to stop the property from being confiscated permanently. His in-laws are now living in a very ‘reduced’ financial situation.
· He has made contact with his brother [who] lives in Tehran. [The brother] has told him that their brother [Mr C] is in custody in a town on the border of Iran and ‘Kurdistan.’ [Mr C] had previously tried to leave Iran and was detained and tortured on that occasion.
· He has been told that his cousin [Mr D] was killed in Iran around three years ago. He believes this was related to someone in the basij who had ‘targeted’ [Mr D]’s sister.
· He has tried unsuccessfully to contact his cousin [in] Baghdad.
· Since he lodged his visa application, he has had two further surgeries related to his hand injury. He has back pain and is on prescription medication.
· He has established a business in Australia.
On 25 October 2023 the applicant made a statutory declaration in which he affirmed the contents of his statutory declaration dated 2 November 2020 submitted to the Department in support of his invalid SHEV application made on 28 September 2020. In the statutory declaration dated 25 October 2023 the applicant claims to fear returning to Iran by reason of his conversion to Christianity.
Applicant’s evidence
The applicant’s evidence to the Tribunal was that he was born on [a different date] in Tehran, Iran.[13] The applicant’s evidence was that he is an ethnic Faili Kurd and a practising Christian.
[13] Applicant’s statutory declaration dated 2 November 2020, paras 5, 6 and 20, AAT File No. 1828146, Doc ID: 11690681.
His evidence was that his parents continue to live in Tehran, Iran. The applicant’s father owned and operated a small shop, and his mother was engaged in home duties. The applicant has four brothers. Two of the applicant’s brothers live overseas [and] two of his brothers continue to live in Tehran and work in his father’s business.
The applicant’s evidence was that his father and mother were originally Faili Kurds who were expelled from Iraq in or about 1975.[14] The applicant was informed by his father that he was apprehended by the authorities in Iraq and forcibly taken from Baghdad to Basra. From Basra the applicant’s father and his family were transferred to Iran.[15] The applicant claims that his grandfather’s property in Baghdad was lost to the Iraqi authorities at the time they were expelled to Iran.
[14] Op Cit at para 87.
[15] Op Cit at para 88.
In Iran the applicant’s family were initially taken to a military compound [and] then transferred to another [camp]. After the camp was opened the applicant’s father moved the family to Tehran.[16]
[16] Op Cit at para 88.
The applicant’s evidence was that he and his family were issued Green Cards when they arrived in Iran and later with an Iranian Shenasnameh (Iranian identity booklet).[17] The applicant provided copies of his mother’s and father’s Iranian passports, Iranian Shenasnameh and Iranian ID cards that confirmed they were born in Iraq as the applicant claimed.[18]
[17] Op Cit at para 94.
[18] Op Cit at para 91; mother’s and father’s identity documents; applicant’s submission pp.125–138, AAT File No. 1828146, Doc ID: 11690681.
The applicant attended school in Tehran. The applicant’s evidence was that he attended middle school at [a] Middle School. He then attended [a] Secondary School for a short period but left due to being considered an Arab and remaining tensions from the conflict between Iran and Iraq. As a result, the applicant attended [another school] at which he completed school and received his formal certificate.[19]
[19] Applicant’s statutory declaration dated 2 November 2020, paras 198–102, AAT File No. 1828146, Doc ID: 11690681.
The applicant then attended [University 1] [and] completed a [course] in 2008. The applicant then enrolled in a course for further studies [but] was only able to complete two research units before being prohibited from study in 2009. The applicant’s evidence was that in or about June 2009 his student card and mobile handset were taken from him by members of the Basij and not returned to him.
The applicant’s evidence was that when he arrived in Australia, he enrolled in [a course] at [an educational institution] in Darwin at which he completed two subjects. His evidence was that he had been sponsored to attend the [educational institution] and did not complete the course because he did not want to be any further burden on his sponsor.
The applicant was married in 2002. His wife is an Iranian citizen and was studying [at] [University 1] when they met.[20] During his marriage the applicant worked as a [Occupation 1] in a [business] owned by his father-in-law before establishing his own [business]. In or about 2008 the applicant’s wife was diagnosed with [a medical condition]. His evidence was that because of her illness she was hospitalised many times and suffered from depression. The applicant divorced in 2012.[21]
[20] Op Cit at para 110.
[21] Op Cit at para 114.
The applicant’s evidence was that following the Iranian presidential election on 9 June 2009 there were many protects in Tehran, known as the Green Movement protests. On or about 16 June 2009, the applicant agreed to meet his wife at Enghelab Square in central Tehran, opposite the University of Tehran, to watch the protest. The applicant’s evidence was that people often gathered to watch the protests. While the applicant claimed to have little interest in the protests, his evidence was that his wife, together with two of her friends, was interested in the protest’s movement, including wearing strips of green around her wrist in support of the Green Movement.[22]
[22] Op Cit at para 119.
While watching the protest in Enghelab Square after about 20 minutes, the applicant’s wife was attacked by members of the Basij. At the time of the attack, they were about 50 to 70 metres from the protest. The applicant went to his wife’s assistance upon which he became the focus of the Basij’s attention. The applicant’s evidence was that he was beaten and hit in the head by the Basij, a result of which he suffered two broken teeth and a broken nose. The applicant claims that he was detained with others in a van for approximately 15 minutes before a large crowd assisted in freeing them. After being freed from the van the applicant hailed an unlicensed taxi to take him home. The applicant’s evidence was that his wife was assisted by another woman at the protest and was home when he arrived.[23]
[23] Op Cit paras 120–125.
The applicant’s evidence was that he received treatment for his broken nose and teeth from an orthopaedic surgeon and a dentist who were family friends.[24]
[24] Op Cit para 128.
The applicant claims that early in the morning on 6 July 2009, three members of Sepah came to his house and detained him.[25] He believes that he was located by the Sepah from his student ID card which was taken from him on the day of the protest. The applicant’s evidence was that he was taken to a military [building]. He was taken to the second floor of the building where he was held for approximately 7 hours and interrogated about his attendance at the protest on 16 June 2009. The applicant was accused of working for the ‘Iraqi Americans’ and beaten. His interrogators demanded that he provide them with the names of his ‘contacts.’[26]
[25] Op Cit paras 129–131.
[26] Op Cit paras 129–135.
The applicant was then transferred to [a prison] by the same members of Sepah who had detained him at home. The applicant’s evidence was that he arrived at the prison at about 4.00pm upon which he was strip-searched, photographed, and fingerprinted. The applicant was held overnight in a cell with 300 other prisoners. The next day the applicant was interrogated and then taken to [another prison] where he was held for 4 months. The applicant was initially held in a room by himself for 7 days with the light on 24 hours per day. He was then taken to another room where he was initially held alone, but after some days later shared the cell with another person who appeared to have mental health issues.[27]
[27] Op Cit paras 136–142.
While the applicant was held at [the prison], he claims he spoke to his wife, on a mobile phone provided by the guards, on two occasions. The applicant appeared before the Revolutionary Court (a court controlled by Sepah) on three occasions. His first appearance was at the Court in Matahari Street, Tehran with his remaining appearances before the Court being conducted in a building in Moalem Street, Tehran. Bail was set at the applicant’s third appearance before the Court.
The applicant’s release from prison was secured by his then mother-in-law who provided a deed to an apartment in Tehran as surety for the applicant’s bail. Upon being released the applicant was told he could not study any longer and ordered not to leave Tehran. The applicant was directed to report to the intelligence services of the Bureau of Aliens and Foreign Immigrants Affairs (BAFIA) located in Villa Street, Tehran (located between Taleghani Street and Karim Khan Street). The applicant was ordered to report to BAFIA to confirm that he continued to reside in Tehran. His evidence was that his reporting requirements varied depending on the time of the year. He reported to BAFIA for 2 years during which he was often detained and interrogated about who he had been talking to. The applicant claims he was verbally abused and asked if he had anything to confess.[28] The applicant was never informed of the offences with which he had been charged.[29]
[28] Op Cit para 145.
[29] Op Cit para 144.
In or about September 2011 the applicant was asked by an officer to be recorded in front of a camera admitting to working with foreigners and that he was supported by Israel and the Americans. The applicant refused out of fear of being killed for betraying the Government of Iran.[30] The applicant was subsequently asked to make the same admissions on video, including on February 2012 the officer who had interrogated him in [the prison] threatened and coerced him to make a video recording as requested. The applicant refused and left the intelligence building without receiving his next reporting date. As a result, he did not return.
[30] Op Cit para 147.
On [date] March 2012 when returning home in the afternoon, the applicant noticed a [car] parked across the street from his house. The applicant was abducted by two men and forced into the car. The applicant was held down in the car and taken to a place he did not recognise but claimed had a foul smell like a farm. The applicant was handcuffed, and cold water poured on him. He claims he was beaten, verbally abused and raped.[31] The applicant then received several electric shocks to his left leg and arm. The applicant claims he then does not remember anything else but was informed he was found naked and unconscious by a taxi driver in the street [on] the outskirts of Tehran, who took him to [a] [Hospital]. The applicant was later transferred to [another] Hospital upon which his family were contacted. The applicant claims he was hospitalised for 5 months, during which he received treatment for his arm and fractures to his thoracic spine.[32]
[31] Op Cit paras 151–155.
[32] Op Cit paras 156–161.
The applicant’s evidence was that because he was without identification documentation, he was to report to the police upon being discharged from the hospital. The applicant feared having to report to the police and as a result his mother-in-law arranged for him to receive a renewal of his passport. On 17 August 2012 the applicant left the hospital with the assistance of a [nurse]. The applicant was then driven to the airport by his sister-in-law. On the way, his sister-in-law stopped to pick up a man (the applicant did not know his name) who provided the applicant with his renewed passport and an International Business identity. On his arrival at the airport the applicant, on the instructions of the man in the car, proceeded directly to the boarding area and boarded the flight while concealing his injuries. The applicant did not see his wife and she was not informed by her family that he had departed the country.
The applicant flew to [Country 1] [and] remained in [Country 1] for 4–5 days before taking a boat to Australia.
The applicant claims that after his arrival in Australia he was informed by his friend [that] when he left Iran the Basij and Sepah attacked his home, but his wife was not at home. They forced his uncle to open the door and searched his home. They took a laptop, a PC, photographs and various documents. He claims that they have subsequently interrogated his wife and tortured her with electric shocks for having sold herself to a ‘foreigner.’
The applicant’s evidence was that if he returns to Iran he will be harmed by the authorities because he left the country in breach of his reporting obligations to BAFIA.
The applicant’s evidence was that in Iran he grew up identifying as a Shi’a Muslim. The applicant attended religious schools in Iran where he was required to attend the Mosque daily. However, he claims his parents were not observant of the Muslim faith in that they did not attend the Mosque regularly. Once the applicant left school, he no longer attended the daily prayers. His evidence was that at university there was an expectation that students would attend daily prayers. As a result, the applicant was careful not to bring attention to himself. The applicant’s wife came from a secular family. He claims his wife had some interest in Christianity and as a result he did attend the [Church] with her on a couple of occasions. Nevertheless, for the 10 years prior to him leaving Iran he claims to have had no religion.[33]
[33] Op Cit paras 189–196.
The applicant’s evidence was that since his arrival in Australia he has become a Christian. The applicant’s evidence to the Tribunal was that when he arrived in Darwin, he was helped and supported by a Christian woman, [Ms E], who introduced him to the Anglican Church in Darwin. His evidence was that he initially attended Church for fellowship, but through [Ms E] and her husband, he came to learn more and become more involved with the Church.
In or about 2015, in Darwin the applicant commenced a business with a friend as [a] subcontractor known as [name] (‘the business’). The applicant was initially involved in performing subcontracting work for the [company] performing [specified work], but later qualified to perform [other work]. The business initially received contracts to perform work in Darwin and Adelaide. In 2016 the applicant moved to Melbourne to pursue other opportunities for the business.
The applicant was baptised [in] September 2013 at [Church 1] in Darwin.[34] The applicant provided a Certificate of Baptism from [Church 1], Darwin dated 30 September 2013 confirming the applicant’s baptism.[35] As a result, the applicant sees himself as a Christian and continues to have faith.[36] The applicant’s evidence was that in Darwin as well as worshipping at church he worked translating documents and performing voluntary work as his health allowed. The applicant continues to perform volunteer work within the church community with the poor and refuges through [charity organisation].
[34] Op Cit para 194.
[35] Certificate of Baptism and letter from [Church 1] dated 30 September 2013, Department File No. [no.], Doc ID 6057857.
[36] Op Cit para 194.
Since moving to Melbourne in 2016, the applicant has become involved with [a church] (‘the Iranian Church’). His evidence was that he was slow to become involved in the church because he was initially involved in establishing the business in Melbourne. However, since 2020 he has become a regular member of the Iranian Church and participates in every course, training and conference conducted by the Church. The applicant has participated in a course entitled ‘Christianity Explained’, an 18-session course designed for those wanting to be baptised. The applicant’s evidence was that he participated in the course because he wanted a deeper understanding of Christianity.
The applicant claims that if he is returned to Iran, he would continue to practise his religion as a Christian. He claims that since becoming a Christian he has ‘found his way’ and would not be able to give up his practice as a Christian if returned to Iran. The applicant’s evidence was that he had informed his family of his conversion to Christianity. Although his family have accepted his decision to adopt Christianity, he claims that he will be harmed by the authorities if he is returned.
Evidence of Reverend [A]
Reverend [A] provided a statement to the Tribunal dated 18 October 2023, and appeared before the Tribunal to give evidence and make submissions on behalf of the applicant. Reverend [A] is the [role] of the Iranian Church working under the oversight of Bishop [name]. He commenced serving in the Church in 2012 and was ordained as a minister in 2019. His evidence was that the Iranian Church currently has congregations in [suburbs].
Reverend [A]’s evidence was that as a member of the Church he was aware the applicant had attended the Iranian Church in [a suburb] several occasions. However, his evidence was that he did not get to know the applicant personally until 2021. The applicant now regularly attends the Church at the[suburb] congregation because it is closer to the applicant’s home.
Reverend [A]’s evidence was that when the applicant first attended the Church, he was a physical and mental wreck. His evidence was that after attending Church regularly, the applicant was exposed to a series of teachings and prayers that helped him overcome his depression and spiritual emptiness. The applicant is now one of the key leaders serving in the Church who is committed to serving within the Church. The applicant leads the public reading of the Bible and prayers. He is a member of the Church Council and as such helps oversee and drive the vision and mission of the Church, assists with the decision making of the Church and generally helps oversee functions of the Church. In addition, the applicant has been elected as [a role]. His role [means] that he contributes to the wider Anglican Diocese and not just his own church. [Deleted].
Reverend [A]’s evidence was that the applicant has not just converted to Christianity but lives his life in accordance with the Christian beliefs. His interactions with the applicant through prayer, as stated in his evidence, have shown him that the applicant holds an intimate familiarity with his faith.
Evidence of Reverend [B]
Reverend [B] provided a statement to the Tribunal dated 20 October 2023 and appeared before the Tribunal to give evidence and make submissions on the applicant’s behalf. Reverend [B] was ordained in 2020 and has known the applicant since 2021.
Reverend [B] confirmed that the applicant attended the Iranian Church regularly and was an active participant in training and conferences conducted by the Church. Her evidence was that she had witnessed the applicant’s commitment to the Christian faith firsthand and believes that he is a genuine, committed and generous believer. The applicant has been open about sharing the difficulties he has had in life and openly asked for her prayers. Her evidence was that the applicant is an enthusiastic student and wants to learn more about the faith and develop his Christianity.
Applicant’s documentation
The applicant provided the following material to the Tribunal in support of his protection claims:
·Department of Home Affairs’ protection visa refusal decision record dated 1 August 2018
·Department of Home Affairs’ notification letter dated 18 February 2019
·Pre-hearing legal submissions dated 25 October 2023 attaching various annexures.
COUNTRY INFORMATION
In accordance with Ministerial Direction No. 84 of 24 June 2019 made under s 499 of the Act, the Tribunal also had regard to the country information assessments prepared by DFAT. The Tribunal has referred to the DFAT Country Information Report on Iran dated 24 July 2023 (the DFAT Report),[37] in particular, those parts of the DFAT Report marked as Attachment A to this decision.
[37] DFAT Country Information Report on Iran dated 24 July 2023.
CONSIDERATION OF CLAIMS AND FINDINGS
The issue in this case is whether the applicant is a person to whom Australia owes protection obligations pursuant to s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Credibility
When assessing claims, the Tribunal must make findings of fact in relation to those claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these 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, the fact 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 the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[38]
[38] Section 5AAA of the Act; 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.
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[39] Care must be taken not to exclude from consideration the totality of some evidence, where a portion of it could reasonably have been accepted.
[39] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at 482.
If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[40] However, such a benefit should 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.
Accepted facts
[40] The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].
Based on the applicant’s evidence, the Tribunal accepts and finds that:
(a)the applicant was born on [date] in Tehran, Iran.[41]
(b)the applicant is an ethnic Faili Kurd.
(c)the applicant’s parents continue to live in Tehran, Iran.
(d)the applicant has four brothers, two of whom currently live overseas.
(e)the applicant and his family were each issued a Green Card and later with an Iranian Shenasnameh (Iranian identity booklet) and passports.[42]
(f)the applicant completed school in Tehran.[43]
(g)the applicant then attended [University 1] [and] completed a [course] in 2008.
(h)the applicant was married in 2002 and divorced in 2012.[44]
(i)the applicant worked as a [Occupation 1] in a [business] owned by his father-in-law before establishing his own [business].
[41] Applicant’s statutory declaration dated 2 November 2020, paras 5, 6 and 20, AAT File No. 1828146, Doc ID: 11690681.
[42] Op Cit at para 94.
[43] Applicant’s statutory declaration dated 2 November 2020, paras 198–102, AAT File No. 1828146, Doc ID: 11690681.
[44] Op Cit at para 114.
Refugee
A past fear of persecution is not sufficient
A past fear may be a relevant consideration in determining if the applicant has a well-founded fear of persecution. The approach applicable under the Act is whether the applicant is outside his or her country owing to a present, well-founded fear of persecution for a reason that falls within the scope of s 5J(1)(a) of the Act, and he or she is unable or unwilling, due to the present and well-founded fear, to avail himself or herself of the protection of that country.[45]
[45] Savvin v MIMA [1999] FCA 1265 (Dowsett J, 13 September 1999) at [61]–[62], referring to Chan v MIEA (1989) 169 CLR 379, s 5H of the Act.
Findings in relation to past events can provide a rational basis from which to assess whether an applicant’s fear of being persecuted for a reason pursuant to s 5J(1)(a) of the Act is well-founded.[46] The extent to which past events are a guide to the future will depend on the probability that they have occurred, the regularity with which they occurred and the conditions under which they are claimed to have occurred.[47] In addition, the likelihood of such events occurring in the future will also depend on the introduction of any relevant new or other events.[48]
Applicant’s relevant grounds
[46] MIEA v Guo (1997) 191 CLR 559 at 574.
[47] MIEA v Guo (1997) 191 CLR 559 at 574–5.
[48] Ibid.
The applicant submits that he will suffer serious harm if he is returned to Iran, within the scope of s 5J(1)(a) of the Act, because of his Christian religion, having converted from Islam to Christianity.
The scope of ‘religion’ within the context of the Convention was considered in MIMA v Darboy,[49] in which the Federal Court referred to the following passage from the High Court’s judgment in Church of the New Faith:
The canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself. Conversely, unless there be a real connexion between a person’s belief in the supernatural and particular conduct in which that person engages, that conduct cannot itself be characterised as religious.
[49] [1998] FCA 931 (Moore J, 6 August 1998). (See also Wang v MIMA (2000) 105 FCR 548 and Liu v MIMA [2001] FCA 257 (Cooper J, 16 March 2001) at [19]–[22].)
The UNHCR Handbook provides an overview of the scope of ‘religion’[50] as:
71The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which right include the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.
72Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.
73Mere membership of a religious community will normally not be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground.
[50] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [71]–[73], <>
The question of whether an applicant has a well-founded fear of being persecuted because of his religion can arise in a variety of factual circumstances and may include the application of generally applicable religious-based laws, departing from orthodox religious beliefs or transgressing social mores, conversion, apostasy and mixed marriage.[51] It will often depend on the motivation of the persecutor or, in circumstances where any fear is caused by the operation of generally applicable laws, whether there is a persecutory intent or nature to those laws or to the way they are applied.[52] It requires an assessment of all the relevant circumstances, including, where relevant, the ‘central tenets’ of the religion, how an applicant is likely to manifest his or her religious beliefs and the likelihood of that manifestation attracting a persecutory reaction from the authorities.[53]
[51] To be an apostate does not require conversion from one faith to a different faith but does require abandonment or rejection of the first faith: WZAOO v MIAC (2012) 134 ALD 332 at [12], citing W161/01A v MIMA [2002] FCA 285.
[52] See VCAD v MIMIA [2004] FCA 1005 (Kenny J, 4 August 2004) at [35] where Kenny J held that where an applicant has avoided military service for religious reasons there may be a well-founded fear of persecution for reasons of religion if a law, neutral on its face, has an indirect discriminatory effect or indirectly inflicts disproportionate injury, for reasons of religion.
[53] Pei Lan He v MIMA [2001] FCA 446 (Ryan J, 23 April 2001).
In this case, the applicant claims that the essential and significant reason he will be subjected to persecution if he is returned to Iran is because he has converted to the Christian faith. As an apostate, the applicant claims there is a real chance he will be seriously harmed if he is returned to Iran. Based on the applicant’s evidence, the Tribunal accepts that his claim falls within the scope of s 5J(1)(a) of the Act.
The applicant’s well-founded fear
Section 5J of the Act states that for the purposes of application under the Act, a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country.
In Chan v MIEA[54] the Court held that, when considering ‘well-founded fear’ for the purposes of the Convention, it involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution based on a Convention reason. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted…’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[55]
[54] (1989) 169 CLR 379 at 396.
[55] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact.
However, to hold a ‘well-founded fear of persecution’ on an objective basis, the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J stated:[56]
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.
[56] Chan v MIEA (1989) 169 CLR 379 per Dawson J at 397.
In MIEA v Guo, the Court stated that:[57]
Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
[57] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293
The applicant claims that, if he is returned to Iran, there is a real chance he will suffer serious harm from authorities because of his religion, having converted from Islam to Christianity. For the reasons detailed below, the Tribunal has accepted that the applicant has a well-founded fear of persecution if he is returned to Iran because of his religion.
Applicant as a Faili Kurd
The applicant claims that as a Faili Kurd there is a real chance that he will be seriously harmed if he is returned to Iran. By the 2015 Statutory Declaration the applicant claims that he was not a citizen of Iran.
Then country information reports[58] that Faili Kurds originate from the Zagros Mountain range that straddles the Iran–Iraq border. Most Faili Kurds are Shi’a Muslims and have lived in modern-day Iran for centuries. As a result, many are citizens of Iran while others have family on both sides of the border. Many had land and documents seized in the 1960s by the then Ba’athist government in Iraq, which considered the Faili Kurds Iranian, and refugees from that time still live in Iran.[59] Faili Kurds registered as refugees, are entitled to government services and other rights under the Amayesh system. In contrast, undocumented Faili Kurds are not legally entitled to work, access government services or obtain birth, death and marriage certificates.[60] However, it’s reported that Faili Kurds who are citizens of Iran enjoy the same rights as other Iranians.[61]
[58] DFAT Report at p.17.
[59] Ibid.
[60] Ibid.
[61] Ibid.
In this case the applicant claimed[62] that he is a stateless Faili Kurd. He stated that he had been granted a Green Card, that had expired, and had not obtained any further formal documentation in Iran. However, his evidence to the Tribunal was that he was an Iranian citizen and had departed Iran on his own passport. The applicant provided the Tribunal with copies of his mother’s and father’s passports and National Identification booklets as evidence of his status as an Iranian citizen. Based on the evidence provided by the applicant the Tribunal has found that he is a citizen of Iran.
[62] The 2015 Statutory Declaration, Department File No. [deleted], Doc ID 6057857.
Therefore, based on the available country information, the Tribunal finds that there is no real chance the applicant will be seriously harmed if he is returned to Iran by reason of him being a Faili Kurd.
Applicant’s detention
The applicant claims that there is a real chance he will be seriously harmed if he is returned to Iran by reason of him witnessing the Green Movement protests and being detained by members of Basij.
The applicant claims that on 16 June 2009 while witnessing the Green Movement protests his wife was attacked by members of the Basij. Upon going to his wife’s assistance, the applicant was beaten by the Basij members. The applicant was placed in a van but escaped. The applicant’s evidence was that he suffered two broken teeth and a broken nose for which he received treatment by an orthopaedic surgeon and a dentist who were friends of his family.[63]
[63] Op Cit para 128.
The applicant claims that early in the morning on 6 July 2009, three members of Sepah came to his house and detained him.[64] The applicant believes that he was identified and located by his student ID card which was taken from him at the protest. He was taken to a military building [where] he was held for 7 hours during which he was interrogated about his attendance at the protest. He claims that he was then taken to [a prison] where he was strip-searched, photographed and fingerprinted. He was held overnight with 300 other prisoners then taken to [another prison] where he was held for 4 months.
[64] Op Cit paras 129–131.
The country information reports[65] that protests are relatively common in Iran and can be violent. It’s reported[66] that until 2022, protests were largely driven by economic issues. However, in recent years’ protests, while economic factors remain an issue, there has been more of an anti-government and anti-regime theme. It’s reported that protests can be met with lethal force.[67] The country information reports[68] that the Iranian authorities reacted strongly to the Green Movement. The protests were about the election of Mahmoud Ahmadinejad as President. The movement was violently suppressed by authorities. It’s reported[69] that some high-profile participants went into exile and continued to promote anti-regime political views, but the movement did not last beyond 2010.[70]
[65] DFAT Report at p.24.
[66] Ibid.
[67] Ibid.
[68] DFAT Report at p.26.
[69] Ibid.
[70] Ibid.
Therefore, based on the applicant’s detailed evidence and available country information the Tribunal accepts and finds that the applicant was detained while watching the Green Movement protests as claimed and was detained and interrogated in prison as claimed.
The applicant’s evidence was he was released from prison on security provided by his mother-in-law and ordered to report to BAFIA on a regular basis. The applicant’s evidence was that he reported to BAFIA for a period of 2 years. The applicant’s evidence was from about September 2011 to February 2012 he refused several requests to admit to working with foreigners on video. On [date] March 2012 the applicant was detained and beaten by the authorities. It was not clear to the Tribunal why the applicant was beaten by the authorities merely because he had refused to make admissions as requested. As a result of his injuries, the applicant was taken to [a] Hospital [where] he was treated for injuries to his arm and thoracic spine. The applicant did not provide any evidence of his treatment for his injuries at [the] Hospital as claimed. Nevertheless, the applicant received treatment for his injuries in Darwin and provided the Tribunal with x-rays and photographs of the treatment of his injuries from [a] hospital. The Tribunal is unable to determine if the applicant was injured by the Iranian authorities as claimed or by some other means prior to his arrival in Darwin. Nevertheless, the Tribunal is prepared to give the applicant the benefit of the doubt and accepts his evidence that he was injured by the Iranian authorities as claimed.
The applicant claims that he will be seriously harmed if he is returned to Iran because he departed the country in breach of his reporting obligations to BAFIA. However, the country information[71] reports that the authorities pay little attention to failed asylum seekers on their return to Iran. The authorities generally accept that many will seek to live and work overseas for economic reasons. It’s reported[72] that unless a person was 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. People returning 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 travelling on a laissez-passer. Arrest and mistreatment are not common during this process.[73]
[71] DFAT Report at p.40.
[72] Ibid.
[73] Ibid.
In this case the applicant’s evidence was that he was subject to adverse attention by the authorities prior to his departure from Iran. However, the applicant’s evidence was that upon his release in February 2012 he was not provided any further dates that he was required to report to BAFIA and as such his obligation to continue to report had ceased. In addition, the applicant departed the country on his own passport without being detained or coming to the attention of the authorities. Finally, the country information reports that people who participated in the Green Movement protests are no longer of any interest to the authorities in Iran. Therefore, based on the applicant’s own evidence and the available country information the Tribunal finds that there is no real chance he will be seriously harmed if he is returned to Iran by reason of his involvement in the Green Movement as claimed.
Applicant as a Christian
The applicant claims that as a person who has converted from Islam to Christianity, there is a real chance he will be seriously harmed if he is returned to Iran. The applicant’s evidence was that while he grew up as a Shi’a Muslim, his family did not observe the Muslim faith by regularly attending the Mosque and that his wife came from a secular family. As such he claimed that in Iran, he had no religion.
The applicant’s evidence was that after he arrived in Australia, he was introduced to Christianity in Darwin by his sponsor [Ms E]. He initially attended church for fellowship but through his contact with the church learned more about Christianity and was baptised [in] September 2013 at [Church 1] in Darwin. Based on the applicant’s evidence and the supporting documents, including the applicant’s Certificate of Baptism and a letter from [Church 1] confirming his baptism,[74] the Tribunal accepts and finds that the applicant was baptised in Darwin as claimed.
[74] Certificate of Baptism and letter from [Church 1] dated 30 September 2013, Department File No. [no.], Doc ID 6057857.
The applicant’s evidence was that he has become an active member of the Iranian Church. He attends the Church regularly, attends and participates in church meetings and seminars and is a member of the Church Council. Reverend [A] and Reverend [B] both gave evidence in support of the applicant and confirmed his involvement in the Church and his commitment to the Christian faith. Based on the applicant’s evidence and the evidence of Reverend [A] and Reverend [B] the Tribunal accepts that the applicant is a committed Christian and involved in the Iranian Church as claimed.
The country information reports that it is estimated that 99.6 percent of Iranians are Muslim.[75] Christians, Zoroastrians and Jews may practise their faith, unless they are converts from Islam.[76] Apostasy is illegal in Iran.[77] While not specifically a crime, it is a crime under Sharia law, which is enforceable by the constitution.[78] A person can be found guilty of a crime of apostasy based on the testimony of two male witnesses, the knowledge of a judge or a confession.[79] The death penalty may be imposed but this rarely occurs.[80]
[75] DFAT Report at p.18.
[76] Ibid.
[77] Ibid.
[78] Ibid.
[79] Ibid.
[80] Ibid.
It’s reported[81] that Iranians who are not members of the recognised churches generally practise in underground ‘house churches’ that are usually Evangelical Protestant. While the number of adherents to the house churches is unknown, because they are secret and illegal, it’s estimated that 0.52 percent of the population is Evangelical Christian.[82] It’s reported that the number of underground Christians is growing. Christians may travel to Türkiye to be baptised and then return to continue to practise their faith in secret.
[81] DFAT Report at p.20.
[82] Ibid.
It’s reported that the authorities regularly carry out raids against the underground churches, having interpreted the growth in such churches as a threat to national security.[83] As a result, congregations regularly change houses to avoid detection. The authorities generally conduct raids on house churches because of tip-offs from Muslim neighbours and tend to focus on those house churches that actively proselytise or seek out new members.[84] It’s also reported[85] that the authorities will send people posing as converts for the purpose of infiltrating a particular house church.
[83] DFAT Report at p.21.
[84] Ibid.
[85] Ibid.
100.While it is not a common punishment, the death penalty for apostasy is a possible outcome for Christians meeting in house churches.[86] Long prison sentences are also possible. In 2021 amendments to the Islamic Penal Code meant that those found guilty of ‘deviant psychological manipulation’ or ‘propaganda contrary to Islam’ are now liable to be found to be a member of a sect punishable by either a fine, prison, flogging or the death penalty.[87] It’s reported that in August 2021, three Christians in the city of Karaj were sentenced to a total of 9 years in prison under the new amendments.[88]
[86] Ibid.
[87] Ibid.
[88] Ibid.
101.The DFAT Report[89] states 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 and prosecution and imprisonment. In addition, DFAT assesses[90] that Christian converts face a high risk of social discrimination if their conversion becomes known in the wider community. This may involve being ostracised from a person’s family and discrimination at work.[91] DFAT assesses that those Christians who convert while outside the country of Iran and who intend to continue to practise their Christian religion would face a high level of discrimination and could be subjected to the death penalty.[92]
[89] Ibid.
[90] Ibid.
[91] Ibid.
[92] Ibid.
102.In this case, the applicant has converted to Christianity in Australia. He became involved with the Church in Darwin upon his arrival into Australia and has continued his faith as a Christian through the Iranian Church in Melbourne. He is an active member of the Church including as a member of the Church Council. His evidence was that if he is returned to Iran, he would continue attending the house church and would freely express his faith at every opportunity for the purposes of proselytising the Christian religion to others. As referred to above both Reverend [A] and Reverend [B] confirmed his involvement in the Iranian Church and his commitment to the Christian faith. Their evidence was that the applicant has embraced the evangelical expression of his faith, and that he would continue to practise as a Christian if he was returned to Iran. Reverend [B] gave evidence that her sister had experienced harm as a Christian in Iran. Having experienced the nature and practice of the house churches in Iran she expressed concern that the applicant would experience serious harm from the authorities if he was returned to Iran because of his expression of faith.
103.Based on the applicant’s evidence and the evidence provided by Reverend [A] and Reverend [B], the Tribunal accepts that the applicant will continue to express his faith freely in the event he is returned to Iran.
Laws of general application
104.It’s well established that enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Convention, because enforcement of such a law does not ordinarily constitute discrimination.[93] However, in this case, the Tribunal notes that the law the applicant would be subjected to upon his return to Iran appears to be either discriminatory on its terms or generally expressed with discriminatory intent. As referred to above, the Iranian Penal Code specifies the death sentence for proselytising by religious minority groups.[94] As such, the rejection of Islam and conversion to another religion such as the Baha’i faith is prohibited, with converts facing the risk of arrest, detention and prosecution.[95]
[93] Applicant A v MIEA (1997) 190 CLR 225 at 258 referring to Yang v Carroll (1994) 852 F Supp 460 at 467; Chen Shi Hai v MIMA (2000) 201 CLR 293 at [20].
[94] ‘International Religious Freedom Report for 2020 – Iran’; DFAT Report at p.32; DFAT, Christians in Iran, COISS, dated 27 July 2021 at p.2.
[95] DFAT Country Information Report of 14 April 2020 at p.30; ‘Iran: Christian converts and house churches (1) – prevalence and conditions for religious practise’, Landinfo – Norwegian Country of Origin Information Centre, 27 November 2017, p.6, < DFAT, Christians in Iran, COISS, dated 27 July 2021 at p.1.
105.Whether a law is properly characterised as a law of general application turns on identifying those members of the population to whom it applies.[96] It can be necessary to look behind a law that is generally expressed, to establish whether the law itself is in truth discriminatory in its intent or whether it has a discriminatory impact on members of a group recognised by the Convention. Laws or policies that target, or only apply to, or impact adversely upon, a particular section of the population cannot be properly described as laws or policies of general application.[97]
[96] See Weheliye v MIMA [2001] FCA 1222 at [50].
[97] Chen Shi Hai v MIMA (2000) 201 CLR 293 at [19], [20].
106.In this case, it is necessary to consider if the law specifying the death sentence for proselytising by religious minority groups is appropriate[98] and adapted for a legitimate object of the state.[99] This involves considering if the means adopted are proportional to achieving the object of securing a predominantly Islamic state.[100] A legitimate object is generally considered to be an object that must be pursued to protect or promote the general welfare of the state and its citizens. Therefore, the enforcement of a generally applicable criminal law, or the enforcement of laws designed to protect the general welfare of the state, would not ordinarily constitute persecution.[101] However, in this case, the threat of a death sentence for proselytising by religious minority groups does not appear to the Tribunal to be proportional to the objective of promoting and maintaining an Islamic state.
[98] Applicant S v MIMA (2004) 217 CLR 387.
[99] Applicant A v MIEA (1997) 190 CLR 225.
[100] See Applicant S v MIMA (2004) 217 CLR 387 at [44], [48]; MZQAP v MIMIA [2005] FCAFC 35.
[101] Applicant A v MIEA (1997) 190 CLR 225 at 258.
107.Even in circumstances where the possibility of the law being enforced is remote, the mere existence of such a law that imposes the death penalty for expressing religious views contrary to the regime is, in the Tribunal’s view, discriminatory. That is not to say that the mere existence of a criminal law could never constitute persecution. Living under the shadow of the mere possibility of a death sentence for apostasy in Iran, regardless of how remote that possibility might be, has been considered to constitute persecution.[102] Accordingly, the Tribunal accepts that there is a real chance the applicant will suffer serious harm if he is returned to Iran by reason of his religion as claimed.
[102] SGKB v MIMIA [2003] FCAFC 44 at [21], endorsed by Kirby J in Applicant NABD of 2002 v MIMIA [2005] HCA 29 at [94].
108.Having considered the applicant’s claims singularly and cumulatively, the Tribunal finds that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Iran, there is a real chance that the applicant will suffer serious harm.
CONCLUSION
109.For the reasons given above, the Tribunal is satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
DECISION
110.The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.
Jason Pennell
Senior MemberATTACHMENT ‘A’
Corruption
2.16 Corruption is widespread and a major barrier to economic activity. Iran is a State Party to the UN Convention against Corruption, and Article 3 of the Iranian Constitution commits the government to fighting all forms of corruption. While Iran has a range of anti-corruption laws and agencies, ultimately these have little effect in a system structured around transferring large amounts of wealth to Iran’s elite including the Supreme Leader himself. Iran ranked 147th out of 180 countries in Transparency International’s 2022 Corruption Perceptions Index. GAN Integrity notes a high risk of corruption in the judiciary, police, public services (acquiring licences, utilities), land administration, tax and customs, public procurement, and the natural resources industry. Corruption takes the form of irregular payments, cronyism, and embezzlement. Officials may expect bribes to conduct routine services.
Mental Health
2.22 Mental health services are provided as part of the mainstream health services available to all Iranians. However, according to a 2021 study published in the Iranian Journal of Psychiatry, the Iranian Mental Health Survey indicated almost one in four people had one or more psychiatric disorders (23.6 per cent); two-thirds of patients did not benefit from health interventions; and many provided services were inadequate and imposed a high burden on Iranian families. As in many countries, stigma is a significant barrier to seeking treatment. While mental illness has, to date, not been considered a legitimate medical condition, and people living with mental illness have been expected to ‘tough it out’, there are signs that this is changing – at least in the more progressive parts of Iran. Stigma can include difficulties in relationships, prejudicial attitudes including social discrimination, or societal acceptance and approval of such discrimination. Families will typically hide the fact that a member is living with a mental illness and will isolate them socially; families may also physically restrain the individual. Private services are available, especially in Tehran, but are expensive.
2.23 A 2023 study published in the BMC Psychiatry Journal exploring the prevalence of violence and its association with mental health among the Iranian population one year after the outbreak of COVID-19 found prevalence of violence had increased. The study reported overall prevalence of domestic and social violence was 11.4 per cent and 5.5 per cent, respectively, and verbal violence was the most common type; with 61.8 per cent and 66.8 per cent for domestic and social violence, respectively. The study found suspected mental disorder, female gender, being younger than 25 years, living together, unemployment, low education, and history of COVID-19 infection presented a significant association with domestic and social violence. (See also Women).
POLITICAL SYSTEM
2.29 Iran is a theocratic republic, established under the principle of Velayat-e faqih (‘guardianship of the jurist’). Under this principle, an Islamic jurist (the Supreme Leader) makes final policy decisions. While the President is technically the head of state, the Supreme Leader is the highest power in the land, and the commander of its armed forces. The Supreme Leader is responsible for setting overall state policy and has significant influence over foreign policy and national security. The Supreme Leader appoints the head of the judiciary, half the members of the Guardian Council and all members of the Expediency Council (see below). The Supreme Leader can annul any bill passed by parliament and must approve any constitutional changes. The current Supreme Leader, Ayatollah Ali Khamenei, assumed the role in 1989, following the death of the Islamic Republic’s founder, Ayatollah Ruhollah Khomeini.
2.30 Iran’s political system is a combination of elected and unelected institutions. Elections are held regularly for president, parliament, local councils, and the Assembly of Experts. The Supreme Leader and members of the Guardian Council and the Expediency Council, where most power is concentrated, are not popularly elected.
2.31 The Assembly of Experts, comprising 88 clerics, is elected for eight-year terms by popular vote. It selects the Supreme Leader and has the constitutional power to remove them from office should they be unable to perform their duties. In practice, the Assembly of Experts has never challenged the Supreme Leader’s authority.
2.32 The Council of Guardians of the Constitution (‘Guardian Council’) reviews all bills passed by parliament to determine whether they comply with sharia (Islamic law) and the constitution. It vets all candidates for election to the presidency, parliament, and Assembly of Experts, including on the basis of a candidate’s allegiance to Shi’a Islam and to the Islamic Republic. Disqualification of reform-minded candidates, or candidates considered insufficiently loyal to the clerical establishment, is common. The Guardian Council comprises 12 clerics, half of whom are appointed directly by the Supreme Leader for phased six-year terms. The head of the judiciary (appointed by the Supreme Leader) nominates the other six, who are then approved by parliament.
2.33 The Council for the Discernment of Expediency (‘Expediency Council’) resolves impasses between parliament and the Guardian Council. It also acts as an advisory body for the Supreme Leader. The Expediency Council comprises the president, the speaker of parliament, the chief of the Supreme Court, the chief-of-staff of the armed forces, the secretary of the Supreme National Security Council (the body responsible for directing national security policy), four Guardian Council jurisprudents and 38 members appointed to five-year terms by the Supreme Leader.
2.34 The Islamic Consultative Assembly (commonly referred to as the Majlis) is Iran’s unicameral parliament. It comprises 290 members elected for four-year terms by popular vote (the most recent parliamentary election took place in February 2020). Deputies represent 208 constituencies. Constituencies with large populations have multiple seats (for example, Tehran, the largest constituency, has 30 seats). Five seats are reserved for deputies from recognised religious minorities, and women serve in the parliament (though in small numbers, currently there are 16 women compared to 268 men). Parliament has the power to initiate bills, but they must be approved by the Guardian Council to become law. Overall, the parliament is not as powerful as unelected committees such as the Guardian Council or the Expediency Council, however, plays an important role as an outlet for public debate and challenges to political power. While all members are vetted, reformist and moderate members do sit in the Parliament but currently comprise less than seven per cent of all members.
2.35 The most recent Presidential election in June 2021 was won by conservative cleric Ebrahim Raisi. The election was characterised by poor voter turnout amid allegations of rigging – many potential rivals were disqualified by the Guardian Council. Raisi, a former judicial head, is subject to US sanctions for human rights abuses including judicial execution of children, his role in crackdowns on protests, and in a commission that ordered thousands of executions of political opponents in 1988.
HUMAN RIGHTS FRAMEWORK
2.36 The constitution provides for freedom of expression, association, opinion, assembly, and religion, if those rights do not violate certain principles, including Islam. In practice, these rights are not typically upheld by authorities. See Religion, Political Opinion (Actual or Imputed) and Groups of Interest.
2.37 Iran does not have a single national human rights institution. A number of official bodies are tasked with promoting human rights. The High Council for Human Rights is the peak body and a commission set up under article 90 of the constitution (the Article 90 Commission) legally empowered to investigate and report on complaints received by the public on any branch of government. In practice, it would be unusual for complaints made to these bodies to lead to a prosecution.
2.179 DFAT assesses that the authorities use violence or other pressure tactics to extract confessions from defendants, including those charged with security-related offences.
CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
2.180 Article 39 of the constitution prohibits all affronts to the dignity and repute of detained persons. The law allows for Sharia law punishments that include amputation, flogging, blinding and stoning and the Government does not consider these to breach constitutional provisions.
2.181 More than 100 offences attract the punishment of flogging, including dress code violations, same-sex sexual activity and alcohol consumption. Flogging has been used in political cases where offences are often vaguely worded, such as ‘propaganda’, ‘defamation’ or ‘rebellion’. Amputations, of the fingers or hands for example, may be applied for property offences such as theft.
2.182 Blindings have been used as retribution, for example where an offender has blinded a victim the punishment is to be blinded. DFAT understands blinding is rare; compensation money followed by forgiveness is more common.
2.183 Stoning is uncommon but can be applied as a punishment for adultery and same-sex sexual intercourse. The method of execution may be changed to hanging instead of stoning for these offences. DFAT understands some hard-line judges still impose the punishment on offenders but is not aware of recent examples.
2.184 In November 2022, international media reported female protesters arrested as part of anti-government protests (see Mahsa Amini protests) were raped while in detention.
Arbitrary Arrest and Detention
2.185 Article 32 of the constitution stipulates no one may be arrested ‘except by the order and in accordance with the procedure set down by law’. Authorities must communicate the charges to the arrested person in writing without delay and forward a provisional dossier to the competent judicial authorities within 24 hours. Article 36 states that only a competent court may pass and execute a sentence, and it must be in accordance with the law. Article 37 guarantees the presumption of innocence.
2.186 Despite these constitutional protections, human rights groups allege that arbitrary arrest is common, particularly against ethnic and religious minorities, activists, journalists and their lawyers and families. The arbitrary nature of arrests makes it difficult to conclude a pattern. For further information please see the relevant section of the report about minorities or political activists.
STATE PROTECTION
Islamic Revolutionary Guards Corps (IRGC)
2.187 The Islamic Revolutionary Guards Corps (IRGC) is Iran’s most powerful security and military organisation, responsible for the protection and survival of the Islamic Republic. The IRCG was established as a guardian of the 1979 revolution’s values and played a key role in the early days of the Republic. It is now Iran’s preeminent internal and external security force with an army, navy and air force, which it operates separately from the regular military, and also has cyber and intelligence wings. The IRCG’s associated companies in the banking, communications, construction, shipping and other sectors play a significant role in the economy. There are around 150,000 to 200,000 members of the IRGC across various divisions. 2.188 The IRGC helped to suppress the Green Movement demonstrations in 2009 and, together with other parts of the security apparatus, played a role in responding to the December 2017, January 2018 and November 2019 protests. International media reports and leaked documents point to IRGC involvement in more recent protests and planning to crack down on protests before price rises took effect in 2022, for example. Following the election of President Raisi, the IRGC is playing an ever-increasing role in politics, including many former IRGC officers now holding senior political appointments.
Police
2.191 The national police force of Iran are described as a ‘disciplinary force’ and may be known by their abbreviation, ‘NAJA’. They are distinct from the now-disbanded morality police, known as the Gasht-e Ershad, who enforced religious rules on hijabs, alcohol and showing affection in public. NAJA is responsible for internal security, although receives support from the IRGC and the Basij in quelling large-scale protests. NAJA have an obvious street presence, particularly in the major cities. NAJA is highly organised, including in responding to crime. The level of violent crime in Iran is low relative to other countries in the region (see Security Situation)
Detention and Prison
2.198 Prison conditions are widely considered to be poor. In his February 2023 report on the situation of human reports in Iran, UN Special Rapporteur Rehman described conditions in one solitary cell as ‘inhumane’. He noted severe overcrowding, ill-treatment of prisoners including prison guards assaulting prisoners, long periods of solitary confinement that amount to torture and a lack of healthcare (including routine medical care and specialist care during the COVID-19 pandemic).
2.199 The US Department of State’s 2021 Human Rights Report called prison conditions ‘harsh and life threatening’ with food shortages, ‘gross overcrowding’, inadequate sanitary conditions and lack of medical care. The report quotes human rights organisations that note a lack of medical care (sometimes as a form of punishment), contaminated food and water, water shortages, rodent and insect infestations, shortage of bedding, ‘intolerable heat’ and poor ventilation.
2.200 Political prisoners by law should experience better conditions; for example, they do not have to wear prison uniforms, should not be held in solitary confinement unless a judge deems it necessary, and should have better access to the outside world through communication with friends and family, and access to newspapers, radio and television. In practice, this does not occur. DFAT understands political prisoners are at a greater risk of torture than are other prisoners, and in many cases have not been held separately from other prisoners, meaning that the conditions described above apply equally to political prisoners.
TREATMENT OF RETURNEES
2.202 The Iranian Government has a longstanding policy of not accepting involuntary returns. Voluntary returns are possible and are sometimes assisted by returning governments or the International Organization for Migration (IOM). 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.
2.203 In general, authorities pay little attention to failed asylum seekers on their return to Iran. DFAT understands their actions (including social media posts about sur place activities) are not routinely investigated by authorities. Iranians with a public profile in Australia (or elsewhere) may have activities visible on social media tracked by the Iranian government. (See also Media.) Iranians have left the country in large numbers since the 1979 revolution, and authorities accept 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, however may take longer if 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.
2.204 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. Local sources told DFAT the greater challenges for returnees are finding work and economic considerations, which will differ from person to person depending on the location of return, family support and skills and experience.
Exit and Entry Procedures
2.205 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, citizens 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). Exit permits are issued electronically. 2.206 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; and married women, who require their husband’s permission. Beyond their passport and, where it is required, an exit permit, Iranians exiting Iran are not required to present any other documents.
2.207 Government authorities can impose travel bans on 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 also be subjected to travel bans. Husbands of married women and fathers of unmarried women and underage children can request travel bans against their dependents. Intelligence and law enforcement services have the power to impose travel bans without judicial oversight. (See 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.
2.208 It is not possible to assess or profile travellers who will be successful in a border crossing attempt; chances of success depend on individual circumstances of the traveller and individual sanctions against them by the government, which are not always clear. Sources report the government knows of those who have departed illegally, such as via an unauthorised border crossing, and that such people will face consequences such as the inability to get a passport in the future. Passengers undertaking domestic air travel are usually only required to present their ticket. Passengers may be asked for identification, however DFAT understands this practice is not consistent. Overland border crossing, including via rugged mountain areas, is more achievable for some Iranians than crossing at official crossing points. Such actions can be very dangerous because of the risk of violent crime.
2.209 Security procedures at Imam Khomeini International Airport in Tehran are robust. They include computerised cross-checking and multiple layers of physical security and document checking. Immigration officials are considered highly competent. A source told DFAT that it was ‘next to impossible’ to bypass security procedures at Imam Khomeini International Airport. DFAT assesses that the likelihood of an individual exiting Imam Khomeini International Airport with a fraudulent passport is extremely low. DFAT assesses that it is easier to depart Iran on a fraudulent passport at land border crossings, where immigration authorities deal with a greater volume of people and their capacity can be stretched.
Passports
2.216 Passports demonstrate Iranian citizenship. Applicants are required to provide their original shenasnameh, photocopies of all of the pages of the shenasnameh containing an ID photograph, the original and a copy of their Residence Permit, and three passport photographs taken within the last three months. Applications can be lodged at police stations. As with driver’s licences and other forms of identification, women must have a headscarf covering their hair completely in their passport photographs.
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
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
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.
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.
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.
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.
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.
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
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.
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.
…
Protection visas – criteria provided for by this Act
…
A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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