1833955 (Refugee)

[2023] AATA 2098

1833955 (Refugee) [2023] AATA 2098 (28 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Bernie Carrick

CASE NUMBER:  1833955

COUNTRY OF REFERENCE:                   Iran

MEMBER:Jane Marquard

DATE:28 March 2023

PLACE OF DECISION:  Sydney

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 28 March 2023 at 11:22am

CATCHWORDS
REFUGEE – protection visa – Iran – religion – Christian convert – employed as professional musician – harassed and threatened by police – censorship of the arts – musicians associated with western culture – failed asylum seeker who is a musician – government monitoring social media of Iranians in other countries – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5AAA, 5AA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 423A, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836)
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
DBB16 v MIBP (2018) 260 FCR 447
Fox v Percy (2003) 214 CLR 118
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZLVZ v MIAC [2008] FCA 1816

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 March 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   BACKGROUND TO THE APPLICATION

2. The applicant is a [age]-year-old man from Tehran, Iran. He is married and his wife resides in Iran, as do all his other family members including his father, stepmother, brother and three sisters. His mother passed away in 2000 and his father remarried in 2006.

3. The applicant first arrived in Australia [in] May 2013 by boat without a visa. He arrived at the Territory of Ashmore and Cartier Islands (Ashmore Reef), a remote reef located between Western Australia and Indonesia, and was classified as an ‘unauthorised maritime arrival’ by the Department of Home Affairs (the Department). Unauthorised maritime arrivals were defined in s 5AA of the Act, based on arrival method, and he was defined in this way as he arrived without a visa.

4. He was granted a humanitarian stay visa (449) on 9 July 2013 which was in effect until 17 July 2013.

5. He applied for a Safe Haven Enterprise visa (SHEV) on 9 May 2017. He claimed protection for fear of harm arising from his profession as a musician and his renouncement of Islam. This application was refused by the Department on 27 March 2018.

6. After the application was refused by the Department, it was referred to the Independent Assessment Authority (IAA) for review under Part 7AAA of the Act because at that time the applicant was considered to be an unauthorised maritime arrival and therefore a ‘fast track’ applicant and such decisions were reviewable by the IAA. The IAA affirmed the decision on 6 September 2018. The applicant’s case was impacted by the decision in DBB16 v MIBP (2018) 260 FCR 447 in which the court determined that Ashmore Reef is not an excised offshore place and therefore the applicant was not an ‘unauthorised maritime arrival’ through the act of entering Australia by sea at Ashmore and Cartier Islands. This meant that the applicant was not a ‘fast track applicant’, as defined in s 5(1) of the Act and the subsequent decision to refuse to grant the applicant a visa was not a ‘fast track decision’.

7. As a result, the applicant was able to apply to this Tribunal for review of the decision by the Department dated 27 March 2018 to refuse his application for a SHEV. The matter was then referred to this Tribunal for review. New evidence to the Tribunal has been provided claiming that the applicant is a Christian convert.

8. In a separate matter, on 22 October 2020 the Department invited the applicant to apply for a Temporary Protection visa or SHEV. He lodged a new application on 10 November 2020 (separate to this application for review before the Tribunal). In addition to claims made in his earlier application, he claimed protection for fear of harm arising from his conversion to Christianity. The applicant was interviewed by the Department on 24 February 2021 and 9 March 2021 in relation to this application. No decision has been made by the Department in relation to this application.

9. The applicant was represented in relation to the review by Mr Bernie Carrick.

   SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW

10. The applicant has applied for a SHEV.[1] Such visas are issued under the general power to issue visas conferred on the Minister, or his or her delegates, by the operation of s 65 of the Act. If granted, it gives the visa-holder the right to stay in Australia temporarily for five years.

    [1] See Migration Regulations 1994 (Cth), Sch 1

11. Australia acceded to the 1951 Convention relating to Status of Refugees[2] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[3] in 1973, thereby undertaking to apply their substantive provisions.[4] For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[5]

    [2] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)

    [3] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)

    [4] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)

    [5] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’

12. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). Extracts of the relevant legislative provisions are set out in the Attachment to this decision.

13. An applicant must establish that he or she:

    a.is a refugee (the refugee criterion);[6] or

    b.qualifies for complementary protection (the complementary protection criterion);[7] or

    c.is a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (the family member criterion).[8]

    [6] Migration Act 1958 (Cth) (the Act), s 36(2)(a)

    [7] Section 36(2)(aa) of the Act

    [8] Section 36(2)(b), (c) of the Act

    Refugee criterion

14. Section 36(2)(a) of the Act 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.

15. A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of their country of nationality: s 5H(1)(a) of the Act.

16. Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.

17. A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J(2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)).

18. The High Court has found that persecution may be directed against a person as an individual or as a member of a group: Chan v MIEA (1989) 169 CLR 379 at 429 (Mason CJ). The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (Brennan CJ).

19. 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 of the Act, which are extracted in the Attachment to this decision.

    Complementary protection criterion

20. If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.

21. 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) of the Act, which are extracted in the Attachment to this decision.

    Satisfying the statutory elements

22. Notwithstanding the inquisitorial nature of the Tribunal’s role, 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, to seek evidence (ABT16 v Minister for Home Affairs [2019] FCA 836) or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510.

    DECISION OF THE DELEGATE OF THE DEPARTMENT

23. The delegate of the Department accepted that the applicant was arrested, detained and fined for participating in a pyramid scheme, as claimed by the applicant. The delegate also accepted that the applicant was a musician, although not a prominent one, in Iran. The delegate did not accept that the applicant was of interest to the Iranian authorities on the basis of being a musician, or that he had a well-founded fear of persecution if he were to return to Iran, or that he met the complementary protection criterion.

24. The delegate accepted that the applicant identified as an atheist but did not accept that he would be harmed for this reason.

    EVIDENCE

25. The Tribunal has considered evidence in the Department files and evidence before this Tribunal. The Tribunal has also considered independent country information about Iran.

26. New submissions were provided to this Tribunal on 22 February 2023. Attached with the submissions were the following documents:

    a.Statutory Declaration of the applicant dated 5 February 2021

    b.Baptism photographs

    c.Baptism certificate

    d.Letter from [Ms A] dated 11 November 2020

    e.Letter from [Mr B] dated 25 September 2020

    f.Certificate of Appreciation from [Church 1]

    g.Photographs of the applicant playing music at church

    h.Social media posts featuring the applicant

    i.Letter from [Church 2 in Australia] dated 25 February 2023.

27. The applicant appeared before the Tribunal on 1 March 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant was represented in relation to the review and his representative, Mr Bernie Carrick, was present at the hearing. The applicant confirmed that he could understand the interpreter.

28. The evidence of the applicant is referred to in the findings below. Not all the evidence is referred to in the findings as they incorporate reference to the key information that the Tribunal has found to be relevant to the determination of the issues in the case.[9]

    [9] The Tribunal notes that it is not required to make explicit reference to every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271

    KEY ISSUES FOR DETERMINATION BY THIS TRIBUNAL

29. In determining whether the applicant meets the refugee or complementary protection criteria, the key issues are:

    ·Whether the incidents described by the applicant took place in Iran (findings of fact) including whether he was a musician and atheist, and whether he was arrested and tortured.

    ·Whether the applicant has genuinely renounced the Islamic faith and converted to Christianity in Australia.

    ·Whether there is a real chance of serious harm or a real risk of significant harm for the applicant as a person who has renounced Islam and converted to Christianity, or on the basis of his profession or as a returnee.

30. These issues and other threshold issues are discussed below.

    FINDINGS

    Nationality

31. For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’.

32. For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.

33. The applicant claims to be an Iranian citizen. The Tribunal is satisfied on the basis of his testimony and the language he speaks, that the applicant is a national of Iran, and that Iran is the receiving country for the purposes of the legislation.

    Findings of fact

    Assessing credibility

34. The Tribunal must assess the credibility of these claims. In doing so, the Tribunal acknowledges that asylum cases present particular complexities in regard to fact-finding. Applicants may have difficulties presenting evidence due to experiences in their home countries, as expressed by the Full Federal Court in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:

    refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.

35. These experiences may lead to nervousness and anxiety in presenting evidence to government authorities. Presentation may also be impacted by cultural behaviours, mental health issues or level of education, as well as stress caused by separation from home and family. An applicant may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons.[10] In submissions in February 2023 the representative requested that the length of time since the applicant arrived in Australia should be taken into consideration when assessing his application, as should his mental health. It was submitted that he has struggled with his mental health since he has been in Australia and has seen mental health professionals at various times. In submissions in 2017 his psychologist, [Dr C], Psychologist/Clinical Psychology Registrar of [Psychology service], had observed that the applicant presented with symptoms of post-traumatic stress disorder and depression. [Dr C] noted that [the applicant’s] symptoms included ‘low mood, negative automatic thoughts, hypervigilance, nightmares/flashbacks, and fear of stimuli that trigger memories associated with traumatic experiences’. The applicant confirmed at the Tribunal hearing that he was no longer having treatment and was capable of giving evidence at the Tribunal hearing. While there is no recent evidence of mental health problems, the applicant was assured that the length of time since he arrived in Australia, and his mental health struggles, would be taken into consideration in assessment of his evidence.

    [10] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT website, >

    Assessment of credibility is inherently difficult and at times can be based on imperfect perceptions of truth.[11] Research in Canada found that refugee decision-makers have unreasonable expectations of memory, and that ‘decades of psychological research’ has demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.[12] An Australian study found that tribunal members may rely on assumptions which can be inconsistent with psychological literature.[13]

    [11] Fox v Percy (2003) 214 CLR 118

    [12] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010), International Journal of Refugee Law, Volume 22, Issue 4, 469-511, < Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’

36. The Tribunal is conscious and mindful that there may be factors that influence how evidence is presented and assumptions which may consciously or otherwise influence decisions.[14] The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia.[15] In the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably. The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries. As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

    understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

    [14] H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9

    [15] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

1. The Tribunal has taken into consideration the Tribunal’s Guidelines on the Assessment of Credibility,[16] which reinforce that the Tribunal should be mindful of the various factors which may impact on evidence and should approach the assessment with an open mind. The courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[17] A similar approach is taken in the Department’s Refugee Law Guidelines[18] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[19] which provides useful guidance for this Tribunal.

   [16] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT website, < SZLVZ v MIAC [2008] FCA 1816 at [25]

   [18] Policy – Refugee and humanitarian – Refugee Law Guidelines, Department of Home Affairs, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)

   [19] UNHCR Handbook, re-issued February 2019 at [203]–[204]

   Personal particulars which are not in dispute

2. The Tribunal accepts the evidence provided by the applicant about his family and background, as this information has been consistently provided. The Tribunal accepts that the applicant’s family live in Iran, including his wife, father, stepmother, brother and three sisters. His mother passed away in 2000 and his father remarried in 2006. His father earns an income through [a business] and previously had a job [in another field]. Two of his sisters are housewives and take care of the children, and one sister is an [occupation]. His brother lives in Tehran and is married with children. He works for [deleted].

3. He was married in 2001. His wife lives in Tehran on the top of an apartment where his father lives. They have no children. She works as a [occupation].

4. The applicant completed school in Year [grade] in Tehran in [year]. After this, he completed his military service.

5. The family are all devout Muslims. His father attends mosque regularly, says his obligatory prayers and fasts when required. All other family members practise their religion as well. When he was a child, the applicant attended mosque ‘compulsorily’. He had to pray five times a day and fast during Ramadan. Asked if his family was more or less religious than other families, he said that they were the ‘same as everyone else’. Neither he nor other family members were involved in any political groups or activities.

   Is the applicant a musician and did he suffer harassment in Iran for being a musician?

6. The Tribunal accepts the applicant’s evidence that after two years of military service in Iran, he earned a living from music. His evidence about being a musician has been consistent, The applicant continues to play music in Australia.

7. He said that he learnt music from 1991 by enrolling in a music centre. He learnt [Instrument 1] and later [played] ‘through listening’ and he also sings. He said that once he learnt music, he used it as a means of income. He started by accompanying musicians who already had jobs, and gradually was asked to play himself.

8. The Tribunal accepts that the applicant was self-employed as a musician at weddings and parties until he came to Australia in 2013, playing solo and with a band of two to three and that he also composes music. His love of music was evident in his testimony, where he explained that ‘music was always a part of me’. He has also been consistent about his work as a musician in Iran.

9. He has continued to perform in Australia. A letter from [name] Council was provided to the Tribunal outlining the applicant’s musical contributions. A [clip] and a photograph were provided portraying the applicant singing. He produced a video called [title] with a songwriter called [name]. The video features a young woman dressed in clothes which he said ‘that the Iranian authorities would not approve of’. He has been invited to play music at local events for example the [name] Festival in [2017]. A letter from [a refugee support group] Manager at [Church 2] dated 25 February 2023 confirmed that the applicant is a ‘skilled musician’, playing [Instrument 1] regularly at the [support group] to entertain both clients and [group] volunteers and support workers. The Manager said that he also plays at other venues ‘to provide entertainment and pleasure to other people’.

10. The Tribunal also accepts the applicant’s evidence that he suffered harassment from the authorities in Iran as a result of his job as a professional musician. He summarised this harassment as follows in his February 2023 Statutory Declaration:

    14. I wish to clarify the details in relation to why I had to flee Iran. While I was living in Iran, I was a professional musician. Music has always been a part of me. However, in Iran, I was never able to freely play music. This was because the Iranian government did not allow these kinds of freedom.

    15. I was constantly harassed and threatened by police because they knew that I was someone that performed music at various events. I used to perform at weddings and events whenever I could. However, the authorities would be against this because they would accuse me of organising meet ups between men and women illegally. Dancing and singing and being happy was not allowed in Iran. They would prevent us from gathering together to enjoy music with everyone.

    16. I always had to bring a friend or someone to watch out for me when I went to these events to perform so that there was someone to look out for me when the authorities came. This was so that I could find a way to escape if the authorities raided the events. We used to run away whenever the authorities came.

    17. There was a time when the police blocked the road and pulled me over in my car. They put a gun to my head and they searched my car. When they saw the instruments in my car, they then threatened me by saying that they can put drugs in my car to accuse me of breaking the law and punish me. They warned that this was my last chance to get rid of the instruments. This frightened me and upset me very much. It is still upsetting to talk about this today.

    18. Music was my passion but I was never able to pursue this freely in Iran. I was always upset and down. There was nothing else in my life that I could rely on at the time. It makes me cry every time I need to think back to my past. It has also been difficult for me while I have been preparing this statement to think back about my life in Iran.

    19. I felt I could not keep living in fear as a person who wanted to live life as a musician. However, in Iran, it always put me at risk whenever I tried to perform. This was a painful life to live. I was also an atheist at the time so I had nothing else to rely on in my life other than music. It was the only thing that got me going at the time. When I was a child, I was always interested in playing music. My mother did not like this because she strictly followed the Islamic faith and music was not part of the religion. She would kick me to wake me up to pray in the morning. I would hear her pray and say things such as, "Allah, please if my son does not follow the Islamic faith properly, please kill him." This made me feel so scared since I was a child. My family and my community would always tell me not to do music.

11. At the Tribunal hearing he confirmed that on occasion, when performing in Iran, he had people warning him when the authorities were nearby, and sometimes he would have to pack up his [Instrument 1]/musical instruments. The applicant also confirmed that in July 2012 neighbours and people threatened him and called him an infidel. He said that on one occasion a mullah asked what ‘this infidel’ was doing playing music.

12. The evidence about the applicant’s passion for music and the harassment he encountered in Iran has been consistently given and appears to be heartfelt. His experiences also accord with country sources about the treatment of artists and musicians in Iran. The 2016 Department of Foreign Affairs and Trade (DFAT) Report referred to censorship of the arts generally, including music. According to the Report, prominent musicians, artists and film industry professionals faced prosecution for their artistic expression (both because they were perceived as ‘anti-Islamic’ and because of their political messaging), and some had been subject to house arrest and time in prison and banned from publishing or exhibiting their works. Security forces and the judiciary also shut down some music performances, particularly involving women.[20]

    [20] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 21 April 2016

    Was the applicant an atheist in Iran, and did this lead to his ill-treatment?

13. The applicant claimed that he was an atheist in Iran, although his family were Shi’a. He said that at the age of around 14 or 15 years, he began to renounce Islam as he questioned why the religion did not allow music or alcohol. He claimed in his Statutory Declaration dated 7 November 2017 that he does not believe in Islam because he thinks that the Muslim faith has no respect for humans, animals and nature. He also feels rejected because he is a musician. He said then that he was an atheist as it allows him to express himself through music. He said that he became more public in his beliefs as he got older.

14. At the Tribunal hearing he said that Islam ‘makes him sick’. He said that this feeling ‘goes back to his childhood’. He said that he recalls that his mother would kick him and say ‘get up it is prayer time’. He said that he did not like being forced to do prayers. He said that in winter she would open the door and they would have to get up and do prayers. His mother would be praying and she would say ‘please God either guide him or kill him’, referring to the applicant. He did not share his anti-Islamic views with his siblings, as he ‘had to be like them’. At school it was also compulsory to study Islam.

15. The Tribunal accepts that although he practised Islam with his family, he rejected the religion privately. His experience accords with independent country information which indicates that among the youth in particular, there are many Iranians who are not devout practitioners. ACCORD’s July 2018 report quotes two different recent sources indicating that ‘it is not uncommon for people to claim that they do not believe’ and that ‘a significant number of young Iranians do not consider themselves Muslims’.[21]

    [21] Austrian Centre for Country of Origin and Asylum Research and Documentation, ‘Iran COI Compilation’, 1 July 2018

    Was the applicant arrested in Iran, detained for two weeks and tortured?

16. In his application the applicant said that he became involved in a pyramid marketing scheme in 2001. It involved purchasing [deleted] in exchange for points. The applicant said that he recruited other people to gain points. He said that in about 2009 he was arrested for this and interrogated by the police. In an interview with the Department, he said that:

    Applicant (A): On a particular day, I wanted to change the music program. [Near] my house, there was a station and I went over the bridge. Someone approached me about an address and I went to look up the address and a van approached me. I had conducted some inductions. My purchase was on instalments.

    Department (D): what purchase?

    A: [Deleted]. When I purchased that [deleted] I got some points. And for recruiting others I got some points.

    D: please explain how this connects you to network marketing?

    A: I was the head of the pyramid and I recruited others.

    D: can we talk about what happened with this marketing and you got arrested? You were arrested by the police and taken to a police station. What happened?

    A: They took all of us to a space. They asked for passwords, IDs. A guard found a document I had in my bag. The other[s] denied their involvement. Plain clothed agents told me that they found some evidence and took us to a yard. They took us down stairs to a second floor and started interrogating us.

    D: what were they interrogating you about?

    A: they interrogated how we recruited new members, how network marketing worked. They asked if we were involved in the presidential election. Asked if we were opponents of the incumbent president. We said no, the only activity we had was a network marketing.

    D: is this legal or illegal in Iran? Are you aware?

    A: Those at the head, the leaders. They told us the police was involved in this. Lawyers were involved.

    D: do you know if this was illegal or legal in Iran?

    A: I didn’t have any investigation about it because there were so many people in that year involved in this.

    D: If you don’t know, just say so.

    A: I didn’t know.

17. The applicant told the Department in interview that he was strip-searched and threatened by the interrogators. When the applicant was released, he was ordered to pay a fine for his interaction in the network marketing business.

18. The applicant claimed in his interview with the Department that in about February 2013, he was approached and put into a van and driven to a house with a small room where he was kept captive for two weeks and tortured. After two weeks of being held captive, the applicant was driven to a cemetery where he was told he had three days to leave and go to any country that does not practise Islam, or they would kill him. He said that he returned home and bought tickets to Indonesia and got help to come to Australia. He also referred to being threatened with having his blood drained because he was not a Muslim. He also claimed that these people “were making sounds like wolves”. He claimed that he was kept and tortured in a room for two weeks, after which they put him in the same car and dropped him on the highway. They told him that he had “three days to get lost, or they would kill me”. He said that he left the country three days after this.

19. In a Statutory Declaration dated 5 February 2021 he said that:

    I wish to confirm that I still maintain that my fear of harm in returning to Iran is due to my profession as a musician and because I do not follow the Islamic faith and practices. However, since I have arrived in Australia, I have experienced significant changes in my life. Ever since I was able to finally find God through the Christian faith, my life changed. The moment I found Jesus my life changed completely and I have learned and have experienced the wonders of God through my church and through the teachings of Jesus.

    8. Through the teachings of Jesus, I have also come to accept the wrongs I have done in the past and I also became shameful of my past as an atheist. I am now a Christian and would like to make right some of the wrongs that I have done in the past. Therefore, I would like to provide to the Department I am particularly regretful about the narrative that I made in my previous protection visa application about my experiences of being abducted in Iran. I would like come forward to say that this information was not true. I admit that I have made up the story about the kidnapping that I said I experienced in Iran. I would like to come clean about this and express my deepest regrets regarding this.

    9. Ever since I have become a Christian, I have learned and realised that I should not provide false information anymore as it is against my beliefs. My Pastor also told me and encouraged me and said that I have to be honest. I am unsure of how I was able to come up with the stories about the kidnapping but I remember feeling very trapped, scared and extremely desperate to escape from Iran. My life was miserable in Iran particularly as a musician and atheist at the time. When I arrived in Australia I felt I had to find any way or means to stay here.

    10. I have come to understand that providing false information to the Department is extremely serious. I have been living with a heavy heart for a very long time ever since I had made this claim. However, through the teachings of God, I have realised that I need to take responsibility for the actions of the past now that I know that that is against the teachings of Jesus and to ask for forgiveness for my wrongdoings.

    11. I understand that admitting that I have provided false information can be very detrimental to my case. However, I am presenting this claim in hopes to come clean and present my claims properly, to express my absolute remorse for my past actions, and to desperately ask for the opportunity to tell the Department the truth and be assessed with the truth only.

    12. I ask the Department to please give me an opportunity to correct the wrongs of my past and a chance to be assessed in full with my true and correct claims for protection.

    13. Although the reasons that I said was the for why I have left Iran was not true, I wish to emphasise that I maintain that I am still fearful of returning to Iran due to my profile as a professional musician and as a person that does not follow the Islamic faith, as I am now a Christian convert.

20. Given his Statutory Declaration dated 5 February 2021, the Tribunal does not accept that the applicant was arrested or tortured for two weeks while living in Iran because he was an atheist or for any other reason.

    Is the applicant a Christian convert?

21. The applicant provided new evidence to the Tribunal, claiming he is a Christian convert. This evidence has also been provided to the Department in a separate application. He provided the following evidence in his February Statutory Declaration:

    22. At the time, I did not think that I would ever believe in any God or religion. However, ever since I started to properly attend church in Australia, this changed completely. I found that the teachings of Christianity was the opposite of what I have known of through Islam. Jesus has changed me and taught me about forgiveness and love, as opposed to revenge and death that is emphasised in Islam.

    23. I was always an atheist even after many years in Australia. However, my life in Australia had also been very hard. I was under a lot of stress and my mental health was deteriorating and getting worse every day. I had to see some counsellors but it never really helped me. I couldn't find my way in life. There was no purpose for me at the time.

    24. There were some people around me who would invite me to church. However, at the time, I didn't accept their invitation. Some people told me to come perform at their church events when they knew that I was a musician but I didn't go to these events at the time.

    25. I continued living life in Australia lonely and sad. I felt tired of living. That was when I started thinking about trying attending church because I knew there would be some people there that I can interact with. I was very lonely and felt stuck. So, I then decided to contact my friend, who is [Mr D], to ask if I could go to church because I was so tired with myself. He said to me that I was so lucky because the church had been closed for many months because of COIVD19 but at the time I asked if I could go to church it was when the church was reopened.

    26. When I heard this, I felt like Jesus was available at the time I needed him most. I was able to talk to the Pastors at the church and felt like I had my questions answered. It was like a miracle. don't really remember everything in detail about the first day I went to church but I do remember crying and feeling overwhelmed by the love of Jesus. I feel like Jesus has given me the path in life to find my way and save me from living life as an atheist. Not believing in God did not make me happy. I was not getting anything out of being an atheist and I was very lonely. When I found Jesus, I felt I could be free and I was not scared any more. I feel very calm.

    28. I believe Jesus is the real God. I don't care about anything else anymore. All I want is to contiue to live life as a Christian.

    29. I have been actively involved with my church ever since I have found Jesus. My life has changed completely. I have found joy and hope, which I never thought I would be able to find.

    30. At church, I am able to play music and pray to God and celebrate life. This is a beautiful thing and it makes me cry to think about how happy this makes me. I have been suffering a lot throughout my life. My mental health is also very bad. However, music and the words of God has made me a new person. I am not scared anymore. I know now that God is with me and I feel I can take on anything in life now.

    31. On [date] October 2020, I was officially baptised. It was a very emotional day for me. I have photos of this day that I can provide. I feel I am born again.

    32. I still attend church regularly and Bible studies, and have been involved with church activities whenever I can. I have also performed at the Christmas event at church. I put Jesus and church as first priority because that is what makes me happy.

    33. The thought of being forced to return Iran scares me because the thought of not being able to go to church is terrifying. My life has changed for the better but to now be taken away of this would kill me.

1. Subject to s 5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. In this case, the applicant has claimed that he has converted to Christianity in Australia and therefore his fear of persecution is partly a consequence of this (he also claims persecution based on his profession and his returnee status). Section 5J(6) of the Act provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the Tribunal that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.

2. According to the Revised Explanatory Memorandum, the provision ‘maintains the integrity of Australia’s protection process by ensuring that a protection applicant cannot generate sur place claims by deliberately creating circumstances to strengthen his or her claim for refugee status’.[22]

   [22] Migration Legislation Amendment Bill (No 6) 2001 (Cth), Revised Explanatory Memorandum, at [29]. In the Second Reading Speech it was similarly stated that action ‘deliberately seeking to attract hostile attention from a home country government, makes a mockery of an applicant having a real fear of persecution. ... The convention was not intended to provide protection to applicants who contrive claims in second or third countries and who have no other basis for claims to refugee status’: Commonwealth, Parliamentary Debates, House of Representatives, 28 August 2001, 30421 (Philip Ruddock, Minister for Immigration and Multicultural Affairs)

3. The Tribunal questioned the applicant about this at the hearing. He was also asked why he provided incorrect information to the Australian government about the arrests, and how the Tribunal could be certain that he was telling the truth about other matters if he had admitted lying to the Australian government on previous occasions. He said that he was scared at the time, and thought he ‘better say something’ in order to be able to remain in Australia but he regrets it now. He said that when he started believing in Christianity he decided to tell the truth. The representative, Mr Carrick submitted that they acknowledged the seriousness of the applicant’s actions in providing false information however they requested that the Tribunal take into account the circumstances under which he provided the false information.

4. After consideration of the totality of the evidence, the Tribunal accepts that the applicant is a genuine Christian convert and that he genuinely regrets providing incorrect information to the Department when he first arrived in Australia. His conversion to Christianity appears to be a progression from his general rejection of Islam while living in Iran and also helped ‘save’ him when he was feeling sad and lonely. He appears to have connected with the faith, stating that ‘the teachings of Christianity was the opposite of what I have known of through Islam. Jesus has changed me and taught me about forgiveness and love, as opposed to revenge and death.’ He appears to have a genuine passion for the religion and has found a community in the church in Australia. Asked at the Tribunal why he first became interested in Christianity in Australia, he said that it was in 2020 and he was ‘tired’ and ‘looking for a saviour’. He said that during the COVID pandemic he went to the nearest Farsi church to ask them questions. He went by himself. He had previously visited the church with ‘a guy called [Mr E]’, who has passed away. When he visited the church there was no-one there, so he called [Mr D] whom he had met in the church three years prior to ask him some questions about the church. After that he started attending church regularly and continues to attend. He said that he was ‘crying’ when he first attended, because he felt as if a spiritual person set him free. He said that he has been attending Bible classes on Wednesdays regularly. He said that he had questions about God and how to know him, and some of these questions were answered by attending Bible class. He said that he now feels that he is part of the church community and only has friends from the church community. He was able to describe attending a service and party at the church at Christmas time and knew that it was the birthday of Christ. He knew that Jesus was born in a stable in Bethlehem and that his parents were Mary and Joseph, but his real parents are God in Spirit. He was able to relate a number of Bible stories. Asked what Christianity had added to his life, he said that it had taught him to be kind and generous and he feels ‘full of the holy spirit’. He said that he feels that his life has changed and he does not judge anyone and he wants his life to be aligned with Christianity. Overall these descriptions and examples appeared to be genuine.

5. The Tribunal accepts also that he has had some conversations with his Iranian family about his interest in Christianity. He told the Tribunal that members of his family had said that they do believe that Christ is one of the manifestations of God. This conversation has the kind of detail which suggests direct experience. His evidence that he had not told his family ‘clearly’ about his conversion was reasonable, given that he said they are all devoutly practising Shi’a Muslims in Iran. However it is notable that he told them that he had attended church, which demonstrates how serious he is about his new path.

6. Corroborative evidence has been provided, including a number of photographs to demonstrate the applicant’s involvement in the church, which he said were of him playing and singing at church. He said that he played at the Christmas celebrations, but is not playing now in the church because he has consulted God and he has been told that his time has not come for him to play. However he is playing at [Church 2] at the refugee [support group]. He also provided a Certificate of Baptism from [Church 1] dated [October] 2020.

7. A Youth Pastor at the church, [Ms A], in a letter dated 11 November 2020, stated that she had known the applicant for three years through the church. She said that the first time the applicant attended church he was ‘touched by the Holy Spirit’ and he became a regular attendee from July 2020. She said that he regularly attends the Sunday service and the Youth Bible Studies on Wednesdays. He had also started to play worship music.

8. A letter from [Mr B], Persian Pastor, dated [September] 2020 stated that the pastor had known the applicant for three years and ‘witnessed his transformation due to his relationship with the Lord Jesus Christ’. The pastor said that he had found the applicant to be sincere and dedicated. He said that the applicant attends meetings and programs such as Sunday main service and Wednesday Bible Study. He said that the applicant was an atheist when he first came to church, and God ‘spoke to him through his Spirit and Word’.

9. The pastor also gave evidence at the Tribunal hearing. He said that he is a pastor at [Church 1], which is a Christian [denomination] church. He has been in this position for eight years and prior to this was a pastor assistant at another church. He said that he met with another pastor who told him that he had a dream that the Lord wanted them to start a church for people with Iranian backgrounds. They had their first meeting in 2015 and established the church for people primarily with an Islamic background, but also from Bahai and Jewish backgrounds, as well as atheists.

10. The pastor told the Tribunal that he first met the applicant through a woman called [Ms F] who told him that the applicant was in a tough situation and needed help. He was happy when the applicant came to the church and they started to pray for him. On his first visit he had an ‘encounter with the Lord Jesus’. After a few months he stopped coming but they kept him in their prayers. A few years later he returned and came to have a personal relationship with God. He has been coming regularly and to Bible Study. The pastor said that he has seen the transformation in the applicant’s life. The applicant was very depressed when [Ms F] and [Mr E] brought him but now he is laughing and happy.

11. The pastor was asked how he distinguishes between people who are genuine converts and others who may be there for another purpose. The pastor said that it is a question for Jesus himself. He said that he can see transformations and knows that the Lord is working on the applicant. He said that the applicant is always talking about the verses he is learning. He said that the applicant works in [industry], looking after people and he talks and prays with permission of the [clients], and they feel joy. He said that he feels that the word of God is planted in his heart and that the applicant is contributing to the community through his music, making people happy through the talent. The evidence of the pastor was persuasive.

12. Also provided was a Certificate of Appreciation from [Church 1] dated [October] 2020, because the applicant ‘has served the Lord in the church’.

13. On the basis of this evidence considered cumulatively the Tribunal is satisfied that the applicant is a genuine convert and that he has engaged in Christian worship and activities other than for the purpose of bolstering his refugee claim (s 5J(6)).

14. Section 423A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of claims or evidence not raised or presented before the primary decision was made, unless the Tribunal is satisfied there is a reasonable explanation as to why that occurred. The Tribunal is satisfied that the explanation that the applicant had not yet converted to Christianity at the time of primary decision, is a reasonable one.

    Does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?

15. A person is a refugee if he or she is outside their country of nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail him or herself of the protection of that country.[23]

    [23] Section 5H(1) of the Act

16. The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution. The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act, which provides that 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, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned above; and

    ·the real chance of persecution relates to all areas of a receiving country.

    Does the applicant fear being persecuted for one of the stated reasons?

17. Section 5J(1)(a) of the Act requires that the person ‘fears being persecuted’ for one of the stated reasons.

18. The Tribunal is satisfied that the applicant fears being persecuted for reasons of his religion, given that he has converted to Christianity and given evidence of persecution of Christian converts in Iran.

    Is there a real chance of serious harm if the applicant were to return to Iran in the reasonably foreseeable future?

19. For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act, provides an objective element to that concept;[24] not only must a person fear persecution, but there must also be a prospect of that fear being realised.

    [24] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <>

    The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[25]

    [25] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p171

20. The Tribunal is satisfied that the applicant has genuinely converted to Christianity, for reasons set out earlier. For this reason, given his passion for his new religion, the Tribunal is satisfied that he would continue to practise Christianity if he returned to Iran. He confirmed that he would ‘hundred percent practice Christianity if he returned to Iran’.

21. The applicant claims to fear that in the airport the authorities would ask him questions and he would have to tell the truth that he is Christian. He was asked why he would tell the truth about this, and he said it is because he believes in Christ. In a Statutory Declaration to the Tribunal the applicant further discussed his fears about returning to Iran. He said that:

    I know that if I return to Iran as a Christian my life will end..I am very fearful of returning to Iran. I am particularly fearful because of my Christian conversion and my continued beliefs and practices as a follower of Jesus. I feel I have finally been able to find calm and control my mental health through the power of Jesus. I want to continue my life finding the ways of Jesus and to become a better person. I feel like I am able to withstand everything now that I know that Jesus will always be with me and I will continue my faith even if it kills me. It scares me to think about this but I believe Jesus is my saviour.

22. The Tribunal is satisfied that the applicant faces a real chance of serious harm if he returned to Iran in the reasonably foreseeable future. The reasons are set out below.

23. DFAT reports that over 99 per cent of Iranians are Muslim, Islamic beliefs and customs are enshrined into law and it is illegal to be an apostate.[26] While there are many non-religious Iranians who do not appear to be targeted by the authorities, those who actively denounce Islam and the regime and convert to Christianity may well be targeted for harm. A ‘senior research fellow in Iranian studies at a university in Germany’ advised ACCORD in August 2015 that ‘non-practising Muslims form a large part of the population of Iran’s cities. They lead normal daily lives and are rarely called upon to answer direct questions about Muslim religious practice and are rarely pressured to observe Muslim precepts.’[27] The 2020 DFAT Country Information Report on Iran states, in regard to non-religious Iranians:

    Local sources told DFAT that secularism is widespread, particularly in the major cities and among younger and wealthier Iranians. A significant proportion of the population does not attend mosque or pray on a regular basis, and alcohol consumption is common. Official sources told DFAT that religion was a private matter — that, beyond the expectation that people do not eat in public or hold parties during the holy Muslim month of Ramadan, how one wished to observe Islam was an individual choice, and was not a matter for the state. DFAT heard anecdotally that many Iranians do not observe Ramadan strictly, including by eating, drinking liquids and smoking at home. Most restaurants are closed during Ramadan, although many (especially in Tehran) reportedly serve food discreetly. Those caught eating in public during Ramadan run the risk of arrest and prosecution.[28]

    [26] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020

    [27] Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), ‘Iran: Freedom of Religion; Treatment of Religious and Ethnic Minorities COI Compilation’, 1 September 2015, p.31

    [28] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020

24. DFAT notes, however, that Iranians who renounce Islam are at risk of persecution:

    A Muslim who renounces Islam and becomes atheist is considered apostate and risks state persecution and, potentially, the death penalty…[29]

    [29] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020

25. This information suggests that while there is widespread secularism and generally atheists do not come to the attention of authorities, However, under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. There are also charges of the crime of ‘swearing at the Prophet’ (blasphemy) if utterances are made that are deemed derogatory toward the Prophet Mohammed, other Shi’a holy figures or divine prophets. DFAT states that:

    The Penal Code does not specifically criminalise apostasy, but provisions in the Penal Code and the constitution stipulate that sharia applies to situations in which the law is silent, and judges are compelled to deliver sharia-based judgements in such cases. Although the Quran does not explicitly say that apostasy should be penalised, most Islamic judges in Iran agree that apostasy should be a capital crime. This ruling is based both on oral traditions attributed to the Prophet Mohammed and to Shi’a Imams, whom Shi’a consider the Prophet’s rightful successors. Chapter 5 of the Penal Code specifically criminalises swearing at the Prophet as a capital offence, although a clause states that the sentence can be reduced to 74 lashings of the whip if the accused states the insults were the result of a mistake or were made in anger.[30]

    [30] ‘Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020

26. The US Department of State reports that ‘the constitution states citizens shall enjoy all human, political, economic, social, and cultural rights “in conformity with Islamic criteria” … The law prohibits Muslims from changing or renouncing their religious beliefs. The only recognized conversions are from other religions to Islam.’[31]

    [31] US Department of State, ‘2021 Report on International Religious Freedom: Iran’, 2 June 2022, <>

    DFAT notes that in most cases people charged with apostasy also faced other charges related to national security and were executed, but apostasy and blasphemy cases are no longer an everyday occurrence in Iran and death sentences are rare. Instead, authorities continue to use religiously based charges (such as ‘insulting Islam’) against a diverse group of individuals, including cases with political undertones.[32] There was a case in March 2017 in which the Supreme Court upheld the decision of a criminal court in Arak (Markazi Province) to sentence a 21-year-old man to death for apostasy. Authorities arrested the man after he made social media posts considered critical of Islam and the Quran while on military service.[33]

    [32] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020

    [33] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020

27. The Tribunal has accepted that the applicant has a genuine passion for Christianity and would want to practise his religion which would likely lead to his arrest or other ill-treatment. The government prohibits conversion to Christianity.[34] Christian converts can face arrest, harassment, surveillance, assault, torture and other ill-treatment.[35] The UK Home Office in 2022 found that Christian converts who seek to openly practise their faith ‘are likely to be subject to treatment or discrimination by the state that is sufficiently serious, by its nature or repetition, to amount to persecution’.[36] Amnesty International noted that in 2021, religious minorities suffered arbitrary detention, and torture and other ill-treatment for professing or practising their faith.[37]

    [34] US Department of State, ‘2021 Report on International Religious Freedom: Iran’, 2 June 2022, < Canadian Immigration and Refugee Board, Canada, ‘Iran: Situation and Treatment of Christians by Society and the Authorities (2017-Februrary 2021)’, 9 March 2021, < UK Home Office, ‘Country Policy and Information Note: Christians and Christian converts, Iran (Report, September 2022)’, < Amnesty International, ‘Amnesty International Report 2021/22: The State of the World's Human Rights: Iran 2021’ (Report, 29 March 2022), < type="1">

28. While the government does recognise some religious minorities, the only Christians recognised are those who are Armenian or Assyrian Christians and similar groups, because the presence of these groups in the country predates Islam.[38] These groups do not accept converts[39].

    [38] US Department of State, ‘2021 Report on International Religious Freedom: Iran’, 2 June 2022, < Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020

29. Iranian Christians who are not members of recognised churches generally practise in secret underground ‘house churches’ which operate across Iran, particularly in major cities. The Special Rapporteur on the situation of human rights in Iran estimates there are between 300,000 and 350,000 Muslim converts to Christianity, although the secrecy surrounding house churches means that precise figures are elusive. DFAT reports that a high percentage of unrecognised Christians are Farsi-speaking converts from Islam or their children, many of whom are unhappy with being designated Muslim at birth and wish to explore their religious identity. Others see adopting Christianity (albeit surreptitiously) as a form of protest against the government. The Iranian authorities interpret the growth in house churches as a threat to national security and periodically carry out raids against them, using informants posing as converts to infiltrate the house churches.[40]

    [40] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020

30. Authorities are more likely to prosecute pastors or those with roles in house churches, or those engaged in proselytising activity.[41] Open Doors has suggested, however, that since 2014, more non-leaders have faced national security charges.[42] The DFAT Report, written in 2020, suggests that treatment of converts depends on their profile, activities and whether they are known to authorities, and if they maintain a low profile and do not proselytise, there is less chance of harm.[43] Other reports refer to discrimination against converts[44] and the use of the law to justify violent treatment against converts.[45] There are punishments mandated by sharia for proselytising.[46]

    [41] Open Doors, ‘Iran: Full Country Dossier’, January 2022, p.30; UK Home Office, ‘Country Policy and Information Note – Iran: Christians and Christian converts’, 27 February 2020, pp.7–8; Landinfo – Norwegian Country of Origin Information Centre, ‘Iran: House churches and converts’, 27 November 2017, p.25; Danish Immigration Service and the Danish Refugee Council, ‘Iran: Christian converts and house churches (1) – prevalence and conditions for religious practise’, February 2018, p.7; UK Home Office, ‘Country Policy and Information Note – Iran: Christians and Christian Converts’, May 2019, paras 2.4.7, 8.2.7, 8.2.10, 8.2.11 and 8.5.1, ‘various Mohabat News articles

    [42] Open Doors, ‘Iran Full Country Dossier’, January 2022

    [43] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020

    [44] US Department of State, ‘2021 Report on International Religious Freedom: Iran’, 2 June 2022, < Human rights lawyer quoted in US Department of State, ‘2021 Report on International Religious Freedom: Iran’, 2 June 2022, < US Department of State, ‘2021 Report on International Religious Freedom: Iran’, 2 June 2022, <>

    DFAT reports that the Iranian judiciary has handed down long sentences in relation to house church activities, including 10 to 15 years’ imprisonment for eight Christians convicted of ‘acting against national security through the establishment of a house church’, ‘conducting evangelism’ and ‘insulting Islamic sanctities’. Media reports suggest that nine Christian converts received five-year prison sentences in December 2019. At least three of those sentenced had reportedly been arrested in a house church in Rasht (Gilan Province). In June 2018, four Christian converts were sentenced to 10 years’ prison each, and another 114 were reportedly arrested on charges of proselytising in December 2018. In March 2018, 20 Christian converts allegedly participating in a workshop were arrested near Karaj (most of whom were subsequently released).[47]

    [47] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020

31. The Tribunal is satisfied that, as the applicant will be returning as a failed asylum seeker who is a musician, this may well draw further adverse interest in him, if in fact he is not already known to authorities.

32. In the past, country information on the overseas monitoring capabilities of the Iranian government indicated that the authority’s main interest was in higher profile anti-government activists. However it is known that Iran sends agents to overseas countries. The Immigration and Refugee Board of Canada reported, in February 2021:

    When asked whether Iran monitors overseas anti-government activities, the retired Professor[48] responded that Iran’s government "sends people as agents to other countries" (Retired Professor 25 Jan. 2021). The Assistant Professor[49] indicated that the government "will try to find [anti-government activists] inside and outside of the country" and that the intelligence agency will help gather information (Assistant Professor 23 Jan. 2021). The same source noted that Iran uses refugees to monitor other refugees outside of the country (Assistant Professor 23 Jan. 2021). A December 2019 Associated Press (AP) article reports that in December 2019 an Iraqi man was charged with spying and was sentenced to two and a half years in prison for collecting information about Iranian refugees in Sweden, Denmark, Belgium, and the Netherlands (AP 20 Dec. 2019).

    The Assistant Professor explained that people are "forced and coerced into working with Iranian security authorities" and that authorities will use personal information to pressure them (Assistant Professor 23 Jan. 2021). The same source indicated that "sometimes" prisoners are promised that they will be released if they collaborate (Assistant Professor 23 Jan. 2021). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

    The Assistant Professor also noted that Iran's government monitors political opponents abroad to find out about their activities (Assistant Professor 23 Jan. 2021). The same source noted that the authorities "usually focus on important people, but they are interested in any information that they can use to put pressure on people," such as information about a person's consumption of alcohol or romantic relationships (Assistant Professor 23 Jan. 2021). The retired Professor indicated that Iran's government spies on the opposition and Iranians abroad (Retired Professor 25 Jan. 2021).

    The Assistant Professor stated that the authorities will "hack" for information on a "mid-rank" activist and will monitor "an ordinary Iranian," "because any information is useful" (Assistant Professor 23 Jan. 2021). Based on a report by the cybersecurity company Check Point, a February 2021 article by Arab News, an English-language newspaper published in Saudi Arabia (Arab News n.d.), reports that "Iran is running two surveillance operations in cyberspace, using various methods to spy on more than 1,000 dissidents" and that "[p]eople in Iran, the UK, the US and 10 other countries have been tracked by Iranian hackers" (Arab News 9 Feb. 2021).[50]

    [48] This refers to information provided to the Canadian Immigration and Refugee Board (IRB) on 25 January 2021 by ‘a retired professor at York University, who has published books and articles in English and Persian on the leftist movement in Iran, religious fundamentalism, secularism, multiculturalism, and the diaspora’: ‘IRN200457.E – Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019–February 2021)’, < 22 February 2021

    [49] This refers to information provided to the IRB on 23 January 2021 by ‘an assistant professor of political science at the University of Tennessee at Chattanooga, who studies authoritarian regimes with a focus on the Middle East and North Africa and has written about Iran’: ‘IRN200457.E – Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019–February 2021)’, < IRB, 22 February 2021

    [50] Canadian Immigration and Refugee Board, 22 February 2021, ‘IRN200457.E – Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019-February 2021)’, <>

    DFAT, in its April 2020 Country Information Report for Iran, played down the monitoring activities of the Iranian regime, except in regard to activists:

    DFAT assesses that the authorities do not comprehensively monitor Iranians’ online activities. Individuals with a public profile (including with large social media followings, particularly on Instagram), who are politically active, advocate for greater human rights, have connections to foreigners and are otherwise perceived as threats to the Islamic Republic are more likely to have their social media monitored – and, concomitantly, face a higher risk of arrest or harassment – than other Iranians.[51]

    [51] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020, sections 3.111 and 3.113, pp.44–45.

33. DFAT has maintained that the treatment of failed asylum seekers returning to Iran generally depends on their profile (acquired before leaving Iran or whilst abroad) and their actions on return.[52] DFAT reported in April 2020 that as far as it was aware, the authorities do not check the social media accounts of Iranians returning from abroad.[53] According to DFAT, this includes posting social media comments critical of the government (noting that heavy internet filtering means most Iranians will never see them), protesting outside an Iranian diplomatic mission, converting to Christianity or engaging in LGBTI activities. DFAT suggests that in such cases, the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists.[54]

    [52] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020

    [53] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020

    [54] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020

34. In contrast to the DFAT Report, there are some reports suggesting that the Iranian authorities do take an interest in returnees. In February 2021, a representative of Human Rights Activists News Agency (HRANA) stated that there had been multiple reports of dissidents being arrested upon their return and ‘even lured into returning to Iran’ to then be arrested.[55] The UK Home Office also provides some examples of failed asylum seekers being prosecuted and/or punished for political or other activities upon return; these appear to have obtained a profile whilst abroad or else had a criminal record in Iran before leaving.[56] The Austrian Centre for Country of Origin Information and Asylum Research and Documentation has stated that it is likely that the regime knows the name of and monitors substantial numbers of converts.[57] A Belgian report referred to a Christian convert who was deported from Germany in 2019 and was arrested at the airport.[58]

    [55] IRB, 22 February 2021, ‘IRN200457. E – Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019–February 2021)’, < UK Home Office, ‘Country Policy and Information Notes – Kurds and Kurdish Political Groups’, May 2022, < Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), ‘Iran: Freedom of Religion; Treatment of Religious and Ethnic Minorities COI Compilation’, 1 September 2015

    [58] Belgian Office of the Commissioner General for Refugees and Stateless Persons, ‘Treatment of Returnees by their national authorities’, 20 March 2020

35. DFAT’s Country Information Report on Iran for 2020 is in some respects now somewhat out of date when considering recent events in Iran. In September 2022, protests erupted across Iran over the death of Mahsa Amini, a 22-year-old Kurd who had been detained for inappropriate dress. The demonstrations, the largest in many years, have evolved into calls for the ousting of the supreme leader, and an end to the Islamic Republic. The security forces have responded with deadly force.[59] An ABC article claimed that HRANA said 410 protestors had been killed in total and 17,251 people arrested as at November 2022.[60] The report also documented the use of batons, electric shocks, pepper spray, tear gas, pellets, plastic bullets and handguns. The Basij is referred to as the key body used to suppress protestors.[61] Protests have involved all classes of Iranians, including lower, middle and upper classes, and different ethnic groups and religions.[62] In February 2023 the state announced 20,000 pardons of protestors, although those charged with ‘corruption on earth’ have not been pardoned.[63] Four people charged with this charge have been executed, and 100 are facing death sentences according to a Norwegian Human Rights group, which an Aljazeera report said led to a slowing in protests.[64]

    [59] United States Institute of Peace, < ABC News, 21 November 2022, < Human Rights Activists News Agency, September/October 2022, <

    [62] Human Rights Activists News Agency, September/October 2022, < Aljazeera, ‘Protests in Iran’, 5 February 2023, <Iran’s supreme leader pardons ‘tens of thousands’ of prisoners | Protests News | Al Jazeera>

    [64] Aljazeera, ‘Protests in Iran’, 5 February 2023, <Iran’s supreme leader pardons ‘tens of thousands’ of prisoners | Protests News | Al Jazeera

36. One report on the protests said that there had been unprecedented solidarity between Iranians in the diaspora and Iranians within the country.[65] It referred to the ‘international community’ becoming the ‘voice of the Iranian people in an unprecedented way, and by disseminating information and taking various actions, they have attention to what is going on in Iran’.[66] Australian Iranians have also become active, calling on the Australian government to sanction the Iranian government.[67] An article in The Australian quotes academic Kylie Moore-Gilbert, who spent more than 800 days in Iran’s Evin prison, as stating that Iranian Australians were calling for tangible action from the Australian government including the sanctioning of officials, listing the Islamic Revolutionary Guard Corps as a terrorist organisation and addressing Iranian government infiltration domestically.[68]

    [65] Human Rights Activists News Agency, September/October 2022, < Human Rights Activists News Agency, September/October 2022, < The Australian, 11 November 2022, < The Australian, 11 November 2022, <>

    A recent report in the Sydney Morning Herald[69] quotes Iranian democracy protestors in Australia who claim family members have been arrested in retaliation for their actions. One protestor has said that his mother has been arrested and asked questions about her son in Australia. While the reports are unverified, they have been widely accepted by academics in Australia, including Kylie Moore-Gilbert, who said that she had heard direct reports from other Iranian Australians whose relatives had been harassed and questioned about them. She also claimed that there was a lot of fear in the Australian community due to the involvement of agents and informers in Australia, recording protests, sending threatening messages and letting people know they are being watched. A Melbourne lawyer and anti-regime activist is also quoted in the article. He said that he had direct knowledge of six Australian Iranians whose relatives had been arrested or interrogated since the protest movement began. The article also refers to the head of Britain’s MI5 intelligence agency claiming recently that Iran was plotting to kill or kidnap 10 British residents.[70]

100.   The Australian Federal Police has urged Iranians in Australia to report harassment or surveillance by Tehran authorities to the national security hotline, including monitoring of social media.[71] While the applicant has not been involved in political activities or in the Iranian diaspora in Australia, he has been out of Iran since 2013 and has been depicted on [social media] pages for the church and playing music. It is reported that within Iran the authorities monitor social media[72] and the sources above indicate significant monitoring in Australia. It is likely therefore that the Iranian government has the tools to monitor social media of Iranians in other countries and to have the motivation to do so, given the current repressive environment.

101.   In this environment, where the diaspora including Australian Iranians, is connected to the protest movement in Iran, and where there is recent evidence of monitoring and harassment of overseas and Australian activists and their families, it is conceivable that the authorities would be observing returnee asylum seekers much more closely than they have in the past. The UK Upper Tribunal (Immigration and Asylum Chamber) has said that returnees are interrogated upon return, including being questioned about asylum claims[73] which in the applicant’s case may lead to questioning about his profession and religion. The applicant has been in Australia since 2013, such that there may be particular interest in why he has been out of the country for so long. The Danish Immigration Service report, citing an unnamed source from Elam Ministries, states that those who spent extended periods outside Iran are more likely to be suspected of spying upon return.[74] Not only is there the possibility that the applicant’s social media has been noticed, but it is likely that if the applicant were to be questioned, the authorities would become aware that he is a failed asylum seeker and musician and suspect, or become cognisant of, the applicant’s Christian conversion. He has been fully engaged with the church in Australia, attending bible study and social gatherings. The Tribunal is satisfied that the authorities may well arrest and otherwise physically harm him once they become aware of his conversion, particularly in light of the fact that he is a musician, often associated with western culture. In October 2022 PEN America issued a statement of concern about reports of multiple arbitrary arrests and torture in prison of writers, creative artists and musicians.[75] Given the conduct of the authorities towards protestors in the last six months, and to families of Australian activists, the Tribunal is satisfied that there is a real chance of serious harm. Once the authorities are aware of his anti-Islamic views and conversion, this could lead to religiously based charges or charges relating to national security, without adequate legal defence, and a likelihood of conviction.[76] DFAT has reported that Muslim converts to Christianity face a risk of arrest and detention if their conversion is revealed.

102.   The Tribunal is satisfied that the chance of harm would be substantial, as opposed to a remote or far-fetched possibility (Chan v MIEA (1989) 169 CLR 379), given the current conduct of the regime and the attitude to the diaspora and would relate to all areas of the country. In MIEA v Guo (1997) 191 CLR 559, the Court stated that 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. A fear of persecution is not well-founded if it is merely assumed or if is mere speculation’. In this case, given the substantial volume of country information about the repressive and unpredictable conduct of the Iranian regime, the Tribunal is satisfied that the chance of harm is more than mere speculation, and amounts to a real, substantial chance.

103.   The Tribunal is satisfied that the chance of harm would be substantial, as opposed to a remote or far-fetched possibility (Chan v MIEA (1989) 169 CLR 379), given the current conduct of the regime and the attitude to the diaspora and would relate to all areas of the country.

104.   Section 5J(2) of the Act provides that a person does not have a well-founded fear of persecution if effective protection is available. As the harm would be from the authorities, the Tribunal is not satisfied that effective protection would be available.

105.   Section 5J(3) of the Act provides that a person does not have a well-founded fear of persecution if they could take steps to modify their behaviour. The Tribunal accepts that should he return to Iran, the applicant would wish to participate in his faith in a similar way to here in Australia and that to renounce or cease to be involved in the open practise of his faith in order to avoid harm from the Iranian authorities would be an impermissible modification of his behaviour for the purposes of s 5J(3)(c)(i).

[69] Sydney Morning Herald, ‘Iran cracks down on family of Australian protestors’, 16 January 2023, < Sydney Morning Herald, ‘Iran cracks down on family of Australian protestors’, 16 January 2023, < The Guardian, ‘AFP urges Iranians in Australia to report harassment by Tehran authorities as anti-government protests escalate’, 21 December 2022

[72] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020

[73] UK Upper Tribunal, PS (Christianity-risk) Iran CG [2020] UKUT 00046 (IAC)

[74] Danish Immigration Service and the Danish Refugee Council, ‘Iran: Christian converts and house churches (1) – prevalence and conditions for religious practise’, February 2018

[75] PEN America, October 2022, <Deep Concern Over Multiple Arrests of Writers, Artists, Musicians in Iran, Related to Repression Of Mass Protests Since September - PEN America>

[76] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020

1. The Tribunal is satisfied that the applicant faces a real chance of serious harm for the essential and significant reason of his religion. The Tribunal is satisfied that the harm would involve serious harm (s 5J(4)(b)) as it is described in s 5J(5) of the Act, as it is likely to involve deprivation of liberty or physical ill-treatment. The Tribunal is satisfied, given the conduct of the regime in recent months towards political opponents, that the harm would involve systematic and discriminatory conduct (s 5J(4)(c)).

107.   In conclusion, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for the essential and significant reason of his religion were he to return to Iran in the reasonably foreseeable future.

CONCLUDING PARAGRAPH

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

DECISION

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

Jane Marquard
Member

Attachment – Extract from Migration Act 1958

5 (1) Interpretation

…

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

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

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

but does not include an act or omission:

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

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

…

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

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

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

…

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

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

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

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

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

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

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

…

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

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

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

…

5H    Meaning of refugee

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

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

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

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

…

5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b)     significant physical harassment of the person;

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

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

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

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

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

5K    Membership of a particular social group consisting of family

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

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

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

(i)the first person has ever experienced; or

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

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

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

5L    Membership of a particular social group other than family

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

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

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

(c)     any of the following apply:

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

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

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

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

5LA Effective protection measures

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

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

(i)the relevant State; or

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

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

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

(a)     the person can access the protection; and

(b)     the protection is durable; and

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

…

36     Protection visas – criteria provided for by this Act

…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

…