1828146 (Refugee)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a protection visa, who claimed to fear persecution in Iran due to his conversion from Islam to Christianity. The applicant, identified as a Faili Kurd, asserted that his conversion made him an apostate and that he would face serious harm if returned to Iran.

The central legal issue before the Tribunal was whether the applicant had a well-founded fear of persecution for reasons of religion, as defined by the Migration Act 1958. This required an assessment of both the subjective fear of the applicant and the objective reality of a real chance of persecution, considering the motivation of persecutors and the nature of any applicable laws. The Tribunal also examined whether the applicant's ethnicity as a Faili Kurd or his past involvement in the Green Movement protests presented a real chance of serious harm.

The Tribunal applied the principles established in cases such as *Chan v MIEA* and *MIEA v Guo*, which define a well-founded fear as one with both subjective and objective elements, requiring more than mere plausibility and a real, substantial basis. While the Tribunal found no real chance of harm based on the applicant's Faili Kurd ethnicity or his past involvement in the Green Movement protests, it accepted his evidence of conversion to Christianity. Citing country information indicating that apostasy is illegal in Iran and that converts face arrest, detention, and potential prosecution, the Tribunal concluded that the applicant's expressed intention to freely practice and proselytise his faith upon return to Iran would expose him to a real chance of serious harm. The Tribunal found that the Iranian Penal Code's provisions regarding proselytising by religious minorities, which carry the death penalty, were not proportional to the objective of maintaining an Islamic state and were therefore discriminatory.

Consequently, the Tribunal was satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Migration Act 1958. The decision under review was remitted for reconsideration with a direction that the applicant satisfies the criteria for a protection visa.