1837954 (Refugee)

[2022] AATA 4979

1837954 (Refugee) [2022] AATA 4979 (2 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1837954

COUNTRY OF REFERENCE:                   Iran

MEMBER:Jason Pennell

DATE:2 December 2022  

PLACE OF DECISION:  Melbourne

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

Statement made on 2 December 2022 at 1.20pm

CATCHWORDS

REFUGEE – Protection Visa – Iran – religion – rejection of Islam – conversion to Christianity – a member of a particular social group – departed Iran illegally – has a tattoo of a Christian symbol in Iran – there is a real chance that the applicant will suffer serious harm – perceived anti-government political opinion – failed asylum seeker– decision under review remitted

LEGISLATION

Migration Act 1958, ss 5H, 36, 46, 65, 91, 499

Migration Regulations 1994, Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Randhawa v MILGEA (1994) 52 FCR 437

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. Mr [name] (‘the applicant’) who claims to be a citizen of Iran, applied for the protection visa on 17 September 2012 and the delegate refused to grant the visa on 22 October 2012 on the basis that the applicant is not a person to whom Australia owes protection obligations.

3. On 17 September 2012 the applicant initially applied to the Tribunal (differently constituted, case number 1216597) (‘the first Tribunal’) for review of the delegate’s decision. On 15 February 2013 the First Tribunal affirmed the delegate’s decision not to grant the applicant’s protection visa.

4. The applicant then applied for judicial review to the Federal Circuit Court of Australia (FCCA) and on [date] December 2018 the matter was remitted back to the Tribunal for reconsideration.[1] As a result, the applicant appeared before the Tribunal on 14 September 2021 to give evidence and present arguments. In addition to the applicant’s evidence the Tribunal also received oral evidence and submissions from Pastor [A].  The hearing was conducted via video conference using the Microsoft Teams (MS) program.  The Tribunal exercised its discretion to hold the hearing by video, determining that it was reasonable to do so, during the COVID-19 pandemic, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.

   [1] [Deleted]

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

6. The applicant was represented in relation to the review by his registered migration agent Mr Tony Tran of WLW Migration Lawyers.

Relevant law

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

Refugee criterion

1. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

2. Australia is a party to the Refugees Convention and, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

10.Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

11.There are four key elements to the Convention definition. First, an applicant must be outside his or her country. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12.Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared.[2]

[2]    s.91R(1)(a) of the Act

13.Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14.In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

15.If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm[3] (‘the complementary protection criterion’).

[3]    s.36(2)(aa) of the Act

16.‘Significant harm’ for these purposes is exhaustively defined in s.36(2A).[4]  A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

[4]    s.5(1) of the Act

17.There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Mandatory considerations

18.In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

THE APPLICANT’S CLAIMS AND EVIDENCE

Identity and Country of Reference

19.The applicants claims that he was born in Tehran on [date] and that he is a citizen of Iran. The applicant provided the Department with a copy of his birth certificate (untranslated),[5] a copy of a driving licence (untranslated),[6] a copy of a military service card (untranslated)[7] and a copy of an ID card (untranslated)[8] which confirmed the applicant’s date and place of birth as claimed. There is no evidence to suggest that the applicants have the right to enter and reside, whether temporarily or permanently, in any other country.

[5]    Dept File No [DELETED] Doc ID: 8636158, f. 30

[6]    Dept File No [DELETED] Doc ID: 8636158, ff 31-32

[7]    Dept File No [DELETED] Doc ID: 8636158, f.34

[8]    Dept File No [DELETED] Doc ID: 8636158, ff. 28-29

20.Therefore, based on the applicant’s own evidence and the supporting documentation provided, the Tribunal is satisfied that the applicant is a citizen of the Islamic Republic of Iran (Iran) and that he does not have a right to enter and reside in any other country. The Tribunal therefore finds that he is are not excluded from Australia's protection obligations under s36(3). As such his protection claims will be assessed against Iran as the country of reference and 'receiving country' respectively.

Applicant’s Migration History in Australia

21.The Applicant claimed that he departed Iran for [Country 1] from Imam Khomeini Airport Tehran on [date] April 2012. The applicant claims that he rented a room in [Country 1] with some Afghan nationals for a period of approximately [number] days. The applicant claimed he departed Iran on a false passport under the name of [Name 1]. He claims that the false passport was taken from him by smugglers while in [Country 1]. The applicant then travelled to Australia by boat. The applicant’s boat was intercepted by the Australian and the applicant arrived at Christmas Island, Australia as an illegal maritime arrival on [date] June 2012. He applied for a Protection visa (Subclass 866) on 17 September 2012.

Applicant’s claims

22.The applicant's claims are detailed in his statutory declaration dated 17 September 2012 attached to his application for a protection visa.[9]  The applicant’s claims are as follows:

[9]    Dept File No [DELETED] Doc ID: 8636158, ff.40-35

·He is Iranian, single and was born on [date] in Tehran.

·     His parents and siblings reside in Tehran except for one brother who lives [in] Australia. He is not sure how his brother came to Australia and is not aware of his brother's visa status but speaks to him every few days or once   a week.

·     When he arrived at Christmas Island, he told the Department that he was born in [year] and as such is under 18 years of age. He wrote a letter explaining that the smuggler in [Country 1] told him to say that, but it was incorrect, and he should not have lied. He clarified his date of birth in a letter addressed to the Department and can confirm his date of birth is [date].

·     He also made a mistake on his entry interview as it records his religion as Islam. He does not consider himself Muslim and is not a follower of Islam. He has no faith. He told the officials he was Muslim upon arrival because he was scared.

·     He left Iran in April 2012 because of religious persecution

·     He renounced Islam several years ago. During the PV interview the applicant stated that he has never actually practiced Islam.

·     He decided to renounce Islam after meeting some Christians in the [Workplace 1] where he was working. He claimed that it was very difficult to approach his new friends to raise the topic of Christianity or investigate it because in Iran you don't know who you can trust and who is connected with State agents like Sepah or the Basij.

·     He made the connection with his new Christian friends while working in a [Workplace 1] as he had good relations with the customers. He could tell from the way these people approached him and spoke to him that they were good people and as such were Christians. They were different to other Iranian customers. These people were calm and peaceful, and he liked them.

·     He met the Christians a few times at the [Workplace 1] and thought they might not be Muslims and when he asked them, they said they were Christians. They did not give any advice on Christianity at all. They did not answer any questions as they were scared. The regime is strict on these types of people. During the PV interview the applicant clarified that these people were Armenian Christians and were born into Christianity, opposed to converting from Islam.

·     After four or five months of their first meeting in the [Workplace 1] he began to see these people outside the [workplace] but not socially. One of them went to his gym. They tried to avoid communication and contact with him. He asked them to take him to their church, but they refused

·     He tried twice to attend a Christian church [but] was not allowed in. The people at the church said we are not looking for problems or trouble. The applicant was asked how he knew where the church was, and he claimed that he called the information line [and] they advised him of the church location.

·     He wanted to choose a religion that did not preach violence and killing of innocent people

·     He believes in God but does not have a specific religion and does not believe in Islam. He has not practiced Islam for 3 years now. During the PV interview the applicant stated he has never practiced Islam.

·     In late 2009 or early 2010 he got a tattoo of a cross on his [arm] and in the middle of the cross is the letter '[deleted]' which is his mothers initial. He loved the cross as a symbol, and he loves his mother so got both tattooed together.

·     Young men are often stopped on the streets by the Basij and Sepah because of their dress, hairstyle. This is very common in Iran.

·     In about late 2011 he was stopped by the Basij near his home. He was walking from a friend's house and had to pass through a Basij checkpoint. At that time, he had bleach blonde hair and was wearing a short sleeve shirt. The Basij called him and said, 'you beautiful girl where are you going at this time of night?' He answered back and said, 'do you want me to be like you with a dirty, scruffy beard and this buttoned up shirt tight around your neck. ' They were offended and started beating him. There were a lot of people on the street, but the Basij grabbed the applicant and took him. The applicant's shirt was torn, and his tattoo was exposed but at that time the Basij did not say anything about the tattoo. His family could not lodge a complaint as you cannot complain about the Basij or Sepah to anyone.

·     Another incident occurred two or three days later. He was with a friend on his way home and a car and motorbike pulled up alongside. Three bulky men with beards and collarless shirts got out of the car and pulled his sleeve and saw his tattoo. Without saying anything they pushed his friend. They blindfolded the applicant and shoved him in the car. He couldn't tell where they were taking him, but they took him to a very cold place. They took his clothes off, so he was in his underwear. He was kicked, punched, beaten with cable wires and had cold water poured on him. He was insulted and the Basij threatened him by saying things like, 'Are you trying to prove you are a Christian? Fuck Christianity, if we want to kill you, your blood would be halal to us. It is religiously lawful for us to do these things to you. We are going to teach you such a good lesson that you will remember the Basiji name until the end of your life. Do not dare think about converting to another religion. Do not defy our religion. '

·     He did not tell them that he did not believe in Islam or that he was a Christian because he knew they would have killed him.

·     He lied to the Basij and said he had got the tattoo for fun and there was no special reason why he got the tattoo in the shape of the cross. He told them he is Muslim, but they started abusing him further.

·     The applicant begged the Basij to let him go and he gave the Basij his family's home phone number to call.

·     He was locked up for three days and beaten and was not allowed any contact with anyone during the three days. He was kept in a dark cell in a basement by himself.

·     When his father found out he had been detained by the Basij he provided them with a letter written by the local Imam. He did not see the letter and only heard about it from his father after he was released. The letter stated that the applicant was a Shi'a Muslim

·     He was released after the Basij got the letter and was taken and dumped on a highway with a bloodied shirt and face.

·     After he found his way home, his father made plans through a smuggler for him to leave Iran. He had to stay in Iran for four months before the arrangements were finalised for him to leave. He stayed at home during this time as he was very depressed. His father was worried although he was very opposed to his beliefs and the way he had chosen his beliefs

·     The Basij used to call his home phone number and threaten whoever answered.

·     He left Iran on a false passport which was arranged by the smuggler.

·     He fears he may be detained, arrested, harassed and possibly executed if he is convicted of apostasy.

·     It is well known in Iran and by human rights organisations that the Iranian government executes and jails people for renouncing Islam. He fears this will happen as he is known to the local Basij

·     He is unable to seek protection from the government, police or any other state agents.

·     He has already experienced what the state will do to a citizen who is accused of being anti-Islamic and interested in Christianity.

·     If he returns to Iran he will be forced to convert to Islam and if he does not, he could be executed or jailed for a long time.

·     There is nowhere in Iran he is safe, and his friends have abandoned him because they know that to be associated with a person who is known to the authorities to have renounced Islam is dangerous and their lives might be followed more closely by the authorities.

Applicant’s evidence.

23.The applicant’s evidence was that he was born in Tehran on [date] and that he is a citizen of Iran. The applicant’s parents continue to live in Teheran. His father is a retired [occupation], and his mother was engaged in home duties. The applicant has two brothers who live in [Australia]. The applicant is not married and has no children.

24.The applicant attend school in Tehran until year twelve in [year]. While the applicant was at school he worked in a [Workplace 1]. The applicant was enrolled in a pre-university course for one year in 2008/09, which he did not pass and was not accepted into University or College. As a result, he continued to work in the [Workplace 1] until approximately six months prior to his departure from Iran. The applicant’s evidence was that he trained with the Sepah (the Revolutionary Guards) from February 2010 until July 2011.

25.The applicant’s evidence was that he renounced Islam because of meeting some Christians through the [Workplace 1] at which he worked in Tehran.[10] The applicant claims that he wanted to choose a religion that did not preach violence and killing of innocent people.[11] At this time, while believing in a God, the applicant not have a specific religion but was not a believer in Islam.[12] The applicant’s evidence was that while he was working at the [Workplace 1], he developed a good relationship with some Christian customers. After four or five months the applicant developed a social connection with them and asked if he could attend Church with them to which they said that he would not be allowed in. The applicant’s evidence was that he tried to attend a Christian Church [but] was not allowed in. The applicant was told that the members of the Church were not looking for trouble.[13]

[10]  Applicant’s Statutory declaration dated 17 September 2012 at [10]-[17]. Dept File No [DELETED] Doc ID: 8636158, ff.40-35.

[11]  ibid

[12]  ibid

[13]  ibid

1. In or about late 2009 / early 2010 the applicant got a tattoo of a crucifix on his [arm]. In the middle of the cross is the letter ‘[deleted]’ which is the first letter of his mother’s name. The applicant’s evidence was that he loved crosses and his mother and wanted the two together in his tattoo.[14] The applicant evidence to the tribunal was that he got the tattoo because he wanted to be closer to Christ and that he reminded him that Christ died of his sins.

   [14] Applicant’s Statutory declaration dated 17 September 2012 at [18]. Dept File No [DELETED] Doc ID: 8636158, ff.40-35.

27.In or about 2011 the applicant claims that he was stopped by the Basiji and Sepah agents while he was walking home from a friend’s house.[15] At the time the applicant’s evidence was that he had bleached blonde hair and was wearing a short-sleeved shirt. While walking home the applicant passed a Basiji checkpoint upon which a member of the Basiji called out to him ‘Come here. You beautiful girl, where are you going at this time of night?’ to which the applicant answered: ‘Do you want me to be like you with a dirty, scruffy beard and this buttoned up shirt tight around your neck?’ [16]The applicant’s evidence was that the Basiji became offended at the applicant’s response and beat him. As a result, a group of people gathered around. While being beaten the applicant’s shirt was torn off and his tattoo was exposed. The Basiji did not say anything about his tattoo at the time.[17]

[15] Applicant’s Statutory declaration dated 17 September 2012 at [20]. Dept File No [DELETED] Doc ID: 8636158, ff.40-35

[16] ibid

[17] ibid

28.The applicant’s evidence was that about three days later the applicant was on his way home from the gym with a friend when a car and a motorbike pulled alongside the applicant. Three ‘bulky men with breads and collarless shirts’ got out of the car.[18] Without asking any questions, one of the men pulled up the applicant’s shirt sleeve to reveal the tattoo. They pushed the applicant’s friend aside, blindfolded the applicant and shoved him in their car.[19] The applicant’s evidence was that he was taken to a very cold place, stripped to his underwear, punched, beaten with cable wire had freezing water poured on him and was abused for three days.[20] The applicant’s evidence was that he did not say to them that he did not believe in Islam or that he was a Christian because he would have been killed. He claims that he lied to the Basiji and said to them that he got the tattoo for fun and for no special reason.

[18] Applicant’s Statutory declaration dated 17 September 2012 at [22]. Dept File No [DELETED] Doc ID: 8636158, ff.40-35

[19] ibid

[20] ibid

29.The applicant’s evidence was that when his father heard about him being detained by the Basiji he arranged for a letter written by [a] Cleric of the local Islamic Council, to be sent to the Basiji to secure his release. The applicant was not released to his father but rather dumped on a highway with blood on his face and shirt. [21] When the applicant arrived home his father arranged for his departure from Iran. The applicant remained in his home for a period of three months while the arrangements for his departure were made. He claims that the Basiji continued calling his home and threatening him.

[21]  Applicant’s Statutory Declaration dated 7 September 2021. AAT File No 1837954 Doc ID: 8805300

30.The applicant’s evidence was that he departed Iran on a false passport. A smuggler arranged for the applicant to pass through Iranian immigration at Imam Khomeini Airport in Tehran. The applicant claims that he was directed by a particular smuggler to go to a particular gate and as a result, his departure for [Country 1] went smoothly. The applicant’s evidence was that he was told the person sitting at the gate was aware of what was going on and knew that the applicant’s passport was false but that the person would let him pass.[22] The applicant claims that he fears returning to Iran because he will be detained and prosecuted for having departed Iran illegally on a false passport. 

[22] Applicant’s Statutory Declaration dated 7 September 2021 at [18]. AAT File No 1837954 Doc ID: 8805300

31.The applicant’s evidence was that he does not believe in the Islam faith. Despite having been born a Muslim he has never recognised himself as a Muslim and has not recognised the religious traditions of Islam including attending the Mosque to pray and fasting during Ramadan.[23] After the applicant arrived in Australia, he attended Church and bible studies every Wednesday and Sunday at the [Immigration] Detention Centre.[24] The applicant then moved to Melbourne and initially attended [a Catholic Church]. The applicant’s evidence was that due to his poor English skills at the time he found it difficult to become engaged with a particular congregation. As a result, he attended Church in [City 1] and [Church 1] in [Suburb 1], Victoria. In June 2013 he began attending [Church 2], Victoria. The applicant was baptised at the [Church 2], Victoria on [date] October 2014[25] and admitted to full membership of the Church. The applicant’s evidence is that he attends Church twice a week and bible studies prior to the service each Sunday morning. In addition, he is involved with the Church community as a volunteer at Church functions and activities including painting the Church and helping to prepare and cook the BBQ at Church events such as Christmas carols. [26] The applicant has posted his Christian beliefs on [social media].[27] The applicant claims that he fears that he will be seriously or significantly harmed in Iran as an apostate because of his rejection of Islam and his conversion to Christianity.

[23] Applicant’s Statutory Declaration dated 7 September 2021 at [4]. AAT File No 1837954 Doc ID: 8805300

[24] Applicant’s Statutory Declaration dated 7 September 2021 at [20]. AAT File No 1837954 Doc ID: 8805300

[25]  Certificate of Baptism [Church 2] dated [date] October 2014 AAT File No 1837954 Doc ID: 8805300

[26] Applicant’s Statutory Declaration dated 7 September 2021 at [24]. AAT File No 1837954 Doc ID: 8805300

[27] Applicant’s Statutory Declaration dated 7 September 2021 at [27]. AAT File No 1837954 Doc ID: 8805300

32.The applicant also claims that he will be harmed if he is returned because of his mental health. The applicant’s evidence was that because of his experience of having been detained in Iran, the dangerous journey to Australia by sea and his experience in detention he suffered from mental health issues.   The applicant provided a [Mental] Health Summary report which assessed the applicant as having a history of anxiety and depression following significant changes to his sense of security and safety. The applicant claims if he is returned to Iran, he will suffer serious or significant harm as a result of his mental health.[28]

[28]  [A] mental health Summary 28 October 2014. AAT File No 1837954 Doc ID: 8886141

Evidence of Pastor [A]

33.In addition to his oral evidence Pastor [A] provided the Tribunal with a letter of support for the applicant dated 12 October 2014.[29] His evidence was that he is the Minister at [Church 2] and that he had known the applicant for a period of approximately fifteen months. His evidence was that the applicant had a contention with his Church since 2013 and that he was Baptised and admitted as a communicant member of the Church on [date] October 2014.

[29]  Pastor [A] letter of Support dated 14 October 2014. AAT File No 1837954 Doc ID: 8816734

34.[Pastor A’s] evidence was that as a communicant member the applicant is entitled to participate as a member of the church including the taking of communion.  His evidence was that a person is declared as a communicant member of the Church by the local leadership body known as the Assession upon making, on an objective basis, a creditable affirmation of their faith. Similarly, if a person within the Church is determined to have objectively not practiced as a Christian, the Assession Committee may implement a process of discipline on that person or ultimately exclude them from the Church community. His evidence was that the applicant has displayed both a subjective and an objective commitment to the Christ and as a result had been accepted as a communicant member of the Church. [Pastor A’s] evidence was that as the applicant’s command of the English language has improved, he has gained in confidence and has become more involved Church activities. He confirmed that the applicant attends Church twice per week and bible studies. In addition, he confirmed that the applicant volunteers for Church activities including painting the Church and working on the BBQ at Christmas Carols.

1. [Pastor A] noted that in Iran the Orthodox Churches are accepted but the evangelical Churches, including the Presbyterian Church, are viewed with greater suspicion. As a result, members of such Churches face a greater risk of official and societal prejudice and discrimination. As a result, they are forced to modify their behaviour and be more discreet about their faith. [Pastor A] states that the applicant is active in his Church community and that he will continue to be active in any Church to which he belongs if he is returned to Iran. He noted that the applicant was born Muslim. His local community will know that he has converted to Christianity and at the very least he will suffer societal discrimination because of converting to being a Christian.

Applicant’s documents

36.The applicant provided the Department with the following documents to prove his identity and age:

·a copy of an untranslated birth certificate.[30]

[30] Dept File No [DELETED] Doc ID: 8636158, f. 30

·a copy of a driving licence (untranslated).[31]

[31] Dept File No [DELETED] Doc ID: 8636158, ff 31-32

·a copy of a military service card (untranslated).[32]

[32] Dept File No [DELETED] Doc ID: 8636158, f.34

·a copy of an ID card (untranslated)[33]

[33] Dept File No [DELETED] Doc ID: 8636158, ff. 28-29

·a letter to DIAC regarding his age in Persian with an English translation dated 17       September 2012.[34]

[34] Dept File No [DELETED] Doc ID: 8636158, ff.26-27

·Legal submission by Craddock Murray Neumann Lawyers dated 12 December 2012.[35]

[35] AAT File No 1216597 Doc ID: 1251343

·Post-hearing submission by Nicholas Adler of Playfair Visa and Migration Services dated 5 February 2013.[36]

[36] AAT File No 1216597 Doc ID: 1307024

·Response to 424A invitation to comment on or provide information by Michael McCrudden dated 7 February 2013.

·WLW Legal Submissions by Tony Tran of WLW Migration Lawyers dated 7 September 2021

·Statutory Declaration of Applicant dated 17 September 2012.[37]

[37] Dept File No [DELETED] Doc ID: 8636158, ff.40-35

·Certificate of Baptism of Membership, dated [date] October 2014.[38]

[38] Dept File No [DELETED] Doc ID: 8636158, f.173

·Support letter by [name], dated 21 October 2014[39]

[39] Dept File No [DELETED] Doc ID: 8636158, f.174

·Letter of support by Reverend [A], dated 12 October 2014[40]

[40] Dept File No [DELETED] Doc ID: 8636158 f.176

·Letter of support by [name] dated 21 October 2014.[41]

[41] Dept File No [DELETED] Doc ID: 8636158 f.168

·Letter of support from Rev [B] dated 29 October 2014.[42]

[42] Dept File No [DELETED] Doc ID: 8636158, f.175

·[A] mental health Summary dated 28 October 2014.[43]

[43] Dept File No [DELETED] Doc ID: 8636158, f.172

·Support Letter by Reverend [A] dated 2 September 2021.

·Support Letter by Session Clerk, [name], dated 22 August 2021

·Collage of Social Media posts about Christianity.[44]

[44] AAT file No 1837954 Doc ID:9088128

·Photo Collage of Baptism.[45]

[45] Dept File No [DELETED] Doc ID: 8636158 f.112

·Country Information Annexure

·Audio recording of Baptism.[46]

[46] AAT File 1837954 Doc ID 8802611

COUNTRY INFORMATION

37.The Tribunal in accordance with the Ministerial direction No 56 made under s.499 of the Act the Tribunal also had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT), in particular, the DFAT report on Iran dated 14 April 2020 (‘the DFAT Report’).[47] The Tribunal has had particular regard to those parts of the DFAT report as detailed in annexure A attached to these reasons.

[47] DFAT Country Information Report India 17 October 2018

CONSIDERATION OF Claims and evidence

38.The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

Credibility

39.When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

40.The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[48]. Nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[49]

[48] s.5AAA Migration Act 1958.

[49]  MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

41.A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[50] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

[50]   Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482

42.If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[51] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.

[51]  The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

43.In considering the overall the credibility of the applicant, the Tribunal refers to Randhawa v MILGEA (1994) 52 FCR 437 at 451, in which Beaumont J stated that 'in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants'. In addition the Tribunal refers to  Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191, in which Gummow and Hayne JJ said that 'the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising'. The Tribunal has sought to adopt in this case a liberal attitude in consideration of the applicant’s claims in this case.

Applicant’s Refugee Claim

A past fear of persecution is not sufficient

1. A past fear may be a relevant consideration in determining if the applicant has a well-founded fear of persecution. However, the approach applicable under Article 1 of the Convention is a forward looking one. That is, whether the applicant is outside his country owing to a present, well-founded fear of persecution for a reason that falls within the scope of Article 1A(2) of the Convention and he is unable or unwilling, due to the present and well-founded fear, to avail himself of the protection of that country.[52]

   [52] Savvin v MIMA [1999] FCA 1265 (Dowsett J, 13 September 1999) at [61]–[62], referring to Chan v MIEA (1989) 169 CLR 379, s 5H of the Act

Relevant Grounds

45.The applicant claims to have a well-founded fear of persecution within the scope of s.91R(1)(a) of the Act by reason of his religion having rejected Islam and being baptised as a Christian.

46.The scope of ‘religion’ within the context of the Convention was considered in MIMA v Darboy[53] in which the Federal Court referred to the following passage from the High Court’s judgment in Church of the New Faith:

[53] [1998] FCA 931 (Moore J, 6 August 1998). (See also Wang v MIMA (2000) 105 FCR 548 and Liu v MIMA [2001] FCA 257 (Cooper J, 16 March 2001) at [19]-[22]).

‘The canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself. Conversely, unless there be a real connexion between a person’s belief in the supernatural and particular conduct in which that person engages, that conduct cannot itself be characterised as religious.’

47.The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status provides an overview of the scope of ‘religion’[54] as:

[54] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status @ [71]-[73] Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which right include the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.

72Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.

73.Mere membership of a religious community will normally not be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground.’

48.The question of whether an applicant has a well-founded fear of being persecuted for reasons of religion may arise in a variety of factual circumstances and may include the application of generally applicable religious-based laws, departing from orthodox religious beliefs or transgressing social mores, conversion, apostasy and mixed marriage.[55]  It will often depend on the motivation of the persecutor or, in circumstances where any fear is caused by the operation of generally applicable laws, whether there is a persecutory intent or nature to those laws or to the way they are applied.[56] It will often involve prohibition against, restrictions on, or punishment for, a particular religious practice.[57] In all the circumstances it requires an assessment, the ‘central tenets’ of the religion, how an applicant is likely to manifest his or her religious beliefs and the likelihood of that manifestation attracting a persecutory reaction from the authorities.[58]

[55] To be an apostate does not require conversion from one faith to a different faith but does require abandonment or rejection of the first faith: WZAOO v MIAC (2012) 134 332 at [12], citing W161/01A v MIMA [2002] FCA 285.

[56]   See VCAD v MIMIA [2004] FCA 1005 (Kenny J, 4 August 2004) at [35] where Kenny J held that where an applicant has avoided military service for religious reasons there may be a well-founded fear of persecution for reasons of religion if a law, neutral on its face, has an indirect discriminatory effect or indirectly inflicts disproportionate injury, for reasons of religion.

[57]   Wang v MIMA (2000) 105 FCR 548; Woudneh v Inder (unreported, Federal Court of Australia, Gray J, 16 September 1988); MIMA v Zheng [2000] FCA 50 (per Hill, Whitlam & Carr JJ, 10 February 2000)

[58]   Pei Lan He v MIMA [2001] FCA 446 (Ryan J, 23 April 2001).

49.In this case, the applicant claims that he has rejected Islam and converted to Christianity. He claims that if he is returned to Iran he will be persecuted by the authorities.  The applicant has provided the tribunal with a copy of his Certificate of Baptism at the [Church 2] Victoria and various references from members of the [Church 2] confirming his baptism and membership of the Church. Therefore, based on the applicants’ own evidence and the documentation provided, the Tribunal accepts the applicant’s claim falls within s.91R(1)(a) of the Act by reason of his religion.

50.In addition, the applicant submits that his claim falls within the scope of s.91R(1)(a) of the Act by reason of him being a member of a particular social group (PSG). The applicant claims to be a member of a PSG because he:[59]

[59]  WLW Migration Lawyers Legal Submissions at p.3, AAT File No 11837954 Doc ID: 8805300

(a) has converted out of Islam to Christianity (as an apostate),

(b)has a tattoo of a Christian symbol in Iran,

(c)departed Iran illegally,

(d)is a failed asylum seeker from a western country.

51.To be considered as part of a particular social group, it is necessary for the applicant to share, or be perceived to share, a characteristic with each member of the group. The characteristic must distinguish the group from the rest of society and must be innate or immutable or so fundamental to the identity or conscience of the members of the group that a member should not be forced to renounce it.[60]

[60] /Section 5L of the Act

52.In this case, for the reason expressed below in this decision, the Tribunal has some reservations about the applicant’s claim that he would be persecuted because he has a tattoo of a Christian symbol, because he departed illegally or as returnee from a western country. The Tribunal has reservations that each of these issues would constitute a characteristic that may be considered so fundamental to his identity or conscience that they would distinguish him and the group from society at large so that it would make him a member of a PSG. Nevertheless, for the purposes of this decision, the Tribunal is prepared to accept that he is a member of a PSG for the reason detailed as claimed. Accordingly, the Tribunal accepts that the applicant is a member of a PSG pursuant to s.91R(1)(a) of the Act.

Applicant’s well-founded fear

53.In Chan v MIEA[61] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Dawson J noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[62]

[61] (1989) 169 CLR 379 at 396.

[62] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.

54.The subjective element of ‘well-founded fear’ concerns the state of mind of each applicant. That is, whether they hold a genuine fear is a question of fact. In this case, based on the applicants’ evidence, the Tribunal accepts that they have a subjective fear of being harmed in the event that they return to Iran by reason of their religion.

55.However, to hold a ‘well-founded fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J stated:[63] “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.

[63]  Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397

1. In MIEA v Guo, the Court stated that:[64]

   [64]  MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

   Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is ‘well-founded’ when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.

57.The applicant claims that if he is returned to Iran there is a real chance, he will suffer serious harm because of him becoming a Christian and rejecting Islam. For the reasons expressed below, the Tribunal accepts that the applicant has subjective fear and an objective fear of persecution for a reason mentioned in s.91R(1)(a) of the Act by reason of their religion. 

58.However, for the reason expressed below the Tribunal does not accept that the applicant holds a well-founded fear, either subjectively or objectively, of being persecuted by reason of his membership of a PSG as claimed.

Applicant’s Tattoo

1. The applicant claims that in or about late 2009 or early 2010 he got a tattoo of a crucifix on his [arm]. The applicant showed the tattoo to the Tribunal and as such it accepts that he received the tattoo as claimed. The country information reports[65] that men have claimed to have been harassed or discriminated against based on their appearance. That is because of their western style appearance or clothing and visible tattoos. The applicant claims that because members of the Basiji did not agree with his appurtenance (he had bleached blonde hair and was wearing a short-sleeved shirt) they approached him and beat him. As a result of physical contact, the applicant’s shirt was removed to reveal his tattoo. The applicant claims that later he was detained and beaten by the Basiji because of his tattoo. 

   [65] DFAT Report at p.50

60.The country information[66] reports that it is increasingly common to see young men in Iran, particularly in the larger cities such as Tehran, with western style clothing, haircuts and tattoos. It’s reported that tattoos have become increasingly popular in Iran. The DFAT report[67] notes that the authorities are more likely to target women rather than men in relation to their styling and dress. While there have been reports of men being harassed and detained for violating the dress code it’s reported[68] that they are more likely the result of an overzealous enforcement by an individual security officer rather than any systematic or discriminatory conduct by the authorities generally.  DFAT assess there is only a low risk of official and societal discrimination because of a person having tattoos.

[66] ibid

[67] ibid

[68] DFA report at p.51

61.Based on the available country information, the Tribunal accepts that it is possible for the applicant to have been detained as claimed because of his appearance and his tattoo. However, based on the applicant’s evidence (in particular his evidence in relation to the exchange between him and the Basiji officer) and the available country information, the Tribunal finds that the incident was a one-off event rather than any systematic or discriminatory conduct by the authorities against the applicant as a member of a PSG as claimed. 

62.The Tribunal accepts that the design and nature of the applicant’s tattoo may alert the community and officials to his Christian faith. The Tribunal accepts that the fact that the tattoo is a crucifix may alert people to the fact that he is a Christian and cause them to enquire if he has converted from Islam to Christianity. However, based on the available country information, the mere fact that the applicant has a tattoo would not mean that there is a real chance he would be seriously harmed if he was returned to Iran. As such, the Tribunal does not accept that there is a real chance the applicant would be seriously harmed if he is returned to Iran by reason that he has a tattoo.

Applicant irregular departure from Iran.

63.The applicant claims that he departed Iran on a false passport. He claims that his father paid a smuggler to arrange for him to pass through Iranian immigration at Imam Khomeini International Airport in Tehran. As such he stated that a person sitting at the gate at the airport knew he was departing on a false passport but let him pass.[69] He claims that if he is returned to Iran he will be detained and prosecuted for having departed Iran illegally.

[69] Applicant’s Statutory Declaration dated 7 September 2021 at [18]. AAT File No 1837954 Doc ID: 8805300

64.The country information[70] states that the Iranian identity documents include sophisticated features that are difficult to manufacture for fraudulent use. The DFAT report[71] notes that while it may be possible to obtain a genuine indentation document with the intention of impersonating another person, the sophisticated border control procedures would make it difficult use such a document upon a person’s departure. It’s reported that document fraud in relation to any primary form of identification (including a passport) is extremely difficult and considered beyond the financial and technical the capabilities of most Iranian citizens. Passports and national identification cards have advanced security feature including chips bearing the bearer biometric data, making the difficult to forge. The applicant did not provide any details of the smuggler engaged by his father including the amount paid by his father and the technical expertise of the smuggler. 

[70]   DFAT report at p.72

[71]   ibid

1. The country information reports that in addition to being financially prohibitive, the potential consequences for officials involved in any fraudulent document or activity is so great as to constitute a major deterrent. The DFAT report[72] assess that the chances of obtaining a fraudulent document in Iran or a genuine document through fraudulent means is low. Finally, the country information[73] states that the security procedure at Imam Khomeini International Airport in Tehran are robust and include computerised cross checking and multiple layers of physical security and document checking. It’s reported that immigration officials are highly competent making it extremely unlikely that a person on a false document would be able to pass through. Accordingly, the Tribunal does not accept the applicant’s evidence that an official at the airport knew he was on a false passport and simply allowed him through to the appropriate gate as claimed. 

   [72]  ibid

   [73]  DFAT report at p.73

2. Therefore, based on the available country information the Tribunal does not accept that the applicant departed Iran illegally on a fraudulent passport as claimed. As such the Tribunal finds that there is no real chance the applicant will be seriously harmed because of having departed the country illegally as claimed.

Applicant’s Mental Health

67.The applicant claims because of his past experiences and the uncertainty of his application for protection he suffers from mental health issues. The applicant provided a Mental Health [Summary] (‘the report’) in support of his claim. The report states that the applicant suffers from depression and anxiety because of the significant changes to his safety and security. The Tribunal accepts that the applicant’s journey from [Country 1] by boat and his subsequent experience in detention would have been stressful giving him concerns for his safety and security. As such the Tribunal accepts that he suffers from depression and anxiety as claimed.

68.The country information reports that the need for mental health services in Iran is significant.[74] A study conducted by the Ministry of Mental Health and Medical Education found that nearly a quarter of adults in Iran suffer from some form of mental illness.[75] In particular, a study in 2017 found that 12 percent of Iranian adults suffered from depression and 14 percent from an anxiety related disorder.[76]

[74] DFAT report @ p.15

[75] ibid

[76] ibid

69.The country information refers to the fact that Iran has had a national policy on mental health since 1986[77] which aims to increase access to mental health services by building psychiatric wards in general hospitals and developing a mental health component in primary care.[78] It is reported that as part its implementation of the Health System Development Plan, the government has increased its availability of counselling services and therapeutic interventions for people suffering from mental health issues.[79]  It is reported that the availability of mental health services has improved. In addition, private mental health services are available, but the cost can be prohibitive for the ordinary person.

[77] ibid

[78] ibid

[79] ibid

70.While the Tribunal accepts that mental health facilities and treatment in Iran are not as good as Australia, the country information reports that mental health services are available to be accessed in Iran. There is no evidence to suggest that the applicant would be denied access to any mental health services in Iran on a discriminatory or systematic basis. As such, based on the available country information the Tribunal finds that the applicant would be able to access mental health services in Iran. As a result, it finds that there is no real chance the applicant will be seriously harmed if he is return to Iran by reason of his mental health as claimed. 

Applicant as a failed asylum seeker

1. The Tribunal has considered that if the applicant is removed from Australia to Iran as a failed asylum seeker and/or forced returnee the possibility exists that he may be imputed with an adverse political opinion or imputed with a political opinion of being opposed to the Iranian regime and having alleged persecution by the regime abroad.

72.The advice from DFAT[80] is that, while it is possible that a known dissident may be prosecuted, it is unlikely that an individual simply claiming asylum overseas will be prosecuted as an asylum seeker. The country information states that the authorities pay little attention to failed asylum seekers on their return to Iran.[81] This who return on a lasses-passer are questioned by the Immigration Police at the airport about the circumstances of their departure and why they are traveling on a lasses-passer.[82] The questions take about 30 minutes.[83] It’s reported[84] that arrest and mistreatment are not common.

[80] DFAT Report @ p.69

[81] DFAT Report at p.70

[82] ibid

[83] ibid

[84] ibid

73.The question for the Tribunal is whether the applicant will come to the attention of the Iranian authorities on or after his return to Iran as a failed asylum seeker, and so be imputed with an anti-government political opinion as a result.  In this case the Tribunal has not accepted that the applicant’s evidence that he departed Iran illegally. Accordingly, the Tribunal finds that the applicant will not be detained or arrested because of having departed the country illegally upon his return to Iran as a failed asylum seeker as claimed.  

74.In addition, the applicant claims because of being questioned upon his return to Iran he will be discovered as a Christian as a result detained, arrested and subjected to the death penalty as a Christian convert. While the Tribunal accepts that the applicant will be questioned upon his return to Iran and that there is a real chance it will be discovered that he is a Christian convert, the country information indicates that the Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including converting to Christianity.[85] The risk profile will be the same as any other person in Iran within that category.[86] DFAT reports that, unless a person was the subject of adverse official attention prior to departing Iran, returnee are unlikely to attract any attention from the authorities and face a low risk of monitoring, mistreatment or other forms of official discrimination if returned to Iran.[87]As such, the Tribunal finds that there is no real chance the applicant will be seriously harmed due to being a failed asylum seeker upon his return to Iran.

[85] ibid

[86] obid

[87] OP Cit @ p.70

The applicant as a Christian

75.The applicant’s evidence was that in Iran he did not believe in the Islamic faith. While believing in a God he did not believe in Islam.[88]  He claims that he became interested in Christianity due to having met some Christians through his work at the [Workplace 1] in Tehran.[89] He claims that he wanted to choose a religion that did not preach violence and killing of innocent people.[90] Nevertheless despite his requests to attend the Christian Church the applicant’s evidence was that he was not allowed as the members of the Church were not looking for trouble.[91]

[88]  ibid

[89]  Applicant’s Statutory declaration dated 17 September 2012 at [10]-[17]. Dept File No [DELETED] Doc ID: 8636158, ff.40-35.

[90]  ibid

[91]  ibid

1. In or about late 2009 or early 2010 the applicant got a tattoo of a crucifix on his [arm]. The applicant showed the tattoo to the Tribunal. In the middle of the cross is the letter ‘[deleted]’ which is the first letter of his mother’s name. The applicant’s evidence was that he loved crosses and his mother and wanted the two together in his tattoo.[92] The applicant’s evidence to the tribunal was that he got the tattoo because he wanted to be closer to Christ and that he reminded him that Christ died of his sins.

   [92] Applicant’s Statutory declaration dated 17 September 2012 at [18]. Dept File No [DELETED] Doc ID: 8636158, ff.40-35.

77.In Australia the applicant attended Church and bible studies every Wednesday and Sunday at the [Immigration] Detention Centre.[93] After moving to Melbourne he found it difficult to become engaged with a particular congregation. Nevertheless, his evidence was that he attended the Catholic [Church], a Church in [City 1] and [Church 1] in [Suburb 1], Victoria. In June 2013 he began attending [Church 2], Victoria and was baptised at the Church on [date] October 2014[94] and admitted to full membership of the Church as a communicative member. That is the applicant, on an objective basis has displayed an adherent to the Christian faith to be recognised by the Assession committee of the Church for him to be admitted as a full communicative member. The applicant’s evidence is that he attends Church twice a week and bible studies prior to the service each Sunday morning. In addition, he is involved with the Church community as a volunteer at Church functions and activities including painting the Church and helping to prepare and cook the BBQ at Church events such as Christmas carols. [95] The applicant’s involvement in the [Church 2] was supported by [Pastor A]. Therefore, based on the evidence of the applicant and [Pastor A] together with the documents provided by the applicant the Tribunal accepts that he has converted to Christianity and that he is an active member of the [Church 2] as claimed.

[93] Applicant’s Statutory Declaration dated 7 September 2021 at [20]. AAT File No 1837954 Doc ID: 8805300

[94]  Certificate of Baptism [Church 2] dated [date] October 2014 AAT File No 1837954 Doc ID: 8805300

[95] Applicant’s Statutory Declaration dated 7 September 2021 at [24]. AAT File No 1837954 Doc ID: 8805300

78.The country information[96] states that under Iranian Law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. The Penal Code does not specifically criminalise apostasy, but provisions of the Penal Code and the constitution stipulate that sharia applies to situations in which the law is silent, and judges are compelled to enforce sharia-based judgements in such situations. The DFAT report states that while apostasy and blasphemy cases are no longer an everyday occurrence in Iran, authorities continue to use religiously based charges against a diverse group of individuals. These include Shi’a members of reform movements and Muslim born coverts to Christianity.[97] 

[96] DFAT Report @ p.36

[97] Op Cit @ p.37

1. In addition, DFAT assess[98] that Muslim converts to Christianity risk arrest and detention if their conversion is revealed. Christians found to be proselytising face high risk of arrest, prosecution, and imprisonment. In addition, DFAT assess those Christian converts face high risk of social discrimination in the event their conversion becomes widely known, particularly if they are from a religiously minded Muslim family.[99]

   [98] Op Cit @ p.34

   [99] ibid

80.The country information[100] reports that many of the young people in in Iran who convert to Christianity are tired of the old regime and its oppressive and religiously rooted administration. They are wanting social freedom and look for an alternative to Islam and see Western culture and Christianity as attractive. Consistent with the country information, the applicant in this case claims that he turned to Christianity as he was looking for a faith which did not preach violence and hatred. He claims that if he is returned to Iran his conversion to Christianity will be self-evident and recognised within his community and therefore to the authorities as he will continue to practice as a Christian and proselytise his faith. As a member of the Presbyterian Church, the applicant claims that he would not be considered a member of a recognised Church in Iran. 

[100]  Landinfo ‘Iran: Christian converts and house churches (1) – prevalence and conditions for religious practice’ dated 27 November 2017; country information states[101] that Christian, Zoroastrian and Jewish religions are the only are the only non-Muslim religions recognised by the Iranian state. While members of recognised religions can hold religious services, operate places of worship and religious schools an issue marriage contracts within their own faith, there are strict restrictions. In addition, despite the protection afforded them under the law member of recognised religious minorities do face official and societal discrimination and restrictions.[102] Its reported that non-Muslims are barred from holding senior positions in the government, military and intelligence or serving on the judiciary. In addition, government workers who do not observe Islamic principles and rules are subject to penalties and may be dismissed or barred for work.[103]  

[101]  DFAT report at p.29

[102]  ibid

[103]  DFAT report at p.30

82.The country information reports that the activities of recognised Christians are closely regulated to guard against proselytization.[104] All Christians and Christian Church’s must be registered with the authorities and only recognised Christian can attend church. It’s reported[105] that security officials monitor registered churches to ensure that the services are not conducted in Farsi and to ensure that non-Christians or converts are not participating in services.

[104]  ibid

[105]  ibid

83.Christians who are not members of a recognised Church practice underground in house Churches. The Penal Code strictly prohibits proselytising by religious minority groups. It is a capital crime for non-Muslims to convert Muslims. In February 2021, Articles 499 and 500 of the Penal Code were amended to allow converts to be sentenced to five years imprisonment for ‘engaging in propaganda that educates in a deviant way contrary to the holy religion of Islam.’[106] Nevertheless it’s reported that the number of converts to Christianity in Iran is growing even though it’s difficult to  determine the precise amount. [107] It’s reported that house churches exist across Iran, particularly in major cities and generally follow the evangelical protestant teaching. It’s reported that they are more common in the more affluent and liberal parts of Iranian cities.[108]  

[106]  Radio Free Europe ‘No Place for Converts: Iran’s Persecuted Christians Struggle to Keep the Faith’ 5 May 2022 by Michael Scollon; DFAT Report at p.32

[108]  ibid

84.The authorities see the growth in house Churches as a threat to national security and as such carry out raids against them. The raids tend to focus on those house Churches that actively proselytise or seek new members. It’s reported that the judiciary have handed down long sentences in relation to house Church activities. In 2017,[109] the Revolutionary Guard convicted eight Christians of acting ‘against the national security through the establishment of a house church,’ ‘conducting evangelism’ and ‘acting against the national interest.’ They were sentenced to between 10- and 15-years imprisonment.  A London-based non-profit organization that promotes religious freedom in Iran, known as that Article 18, has reported that more than 120 incidents of arrest, detention, or imprisonment of Christian converts occurred in 2020-21.[110]  Its noted that the most striking trend was the increased involvement of the Revolutionary Guard on cracking down on Farsi-speaking Christians. The Revolutionary Guard was responsible for 12 of the 38 documented incidents of arrests of Christians or raids on their homes or house Churches in 2021.[111] In addition, it was reported that in April 2022 alone there was a raft of cases involving Christian converts, including three Christian Iranian men who were sentenced by the Rasht Revolutionary Court to five-year prison terms for ‘propaganda activities’ related to their alleged teachings of a ‘deviant sect.’[112]

[109]  DFAT Report at p.33

[110]  Radio Free Europe ‘No Place for Converts: Iran’s Persecuted Christians Struggle to Keep the Faith’ 5 May 2022 by Michael Scollon; ibid

[112]  ibid

85.The Tribunal has accepted that the applicant is a person who has left the Islamic faith and has converted to Christianity. Based on the applicant’s own evidence and the evidence of [Pastor A] the Tribunal accepts that the applicant possesses a deep belief and commitment to the Christian faith and that he is a person who will continue to proselytise his faith if he is returned to Iran. Having considered the relevant country information, the Tribunal accepts that there is a real chance he will be seriously harmed if he is returned to Iran by reason of his conversion to Christianity.[113]

[113]  ibid

Laws of General Application

86.It’s well established that enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Convention, because enforcement of such a law does not ordinarily constitute discrimination.[114] However, in this case, the Tribunal notes that the law the applicant would be subjected to upon his return to Iran is either discriminatory on its terms or generally expressed with discriminatory intent. As referred to above, the Iranian Penal Code specifies the death sentence for proselytising by religious minority groups.[115] As such conversion from Islam to Christianity is prohibited with converts facing the risk of arrest, detention, and prosecution.[116]

[114] Applicant A v MIEA (1997) 190 CLR 225 at 258 referring to Yang v Carroll (1994) 852 F Supp 460 at 467; Chen Shi Hai v MIMA (2000) 201 CLR 293 at [20].

[115] ‘International Religious Freedom Report for 2020 – Iran’; DFAT Report at p.32; DFAT Christians in Iran COISS dated 27 July 2021 at p.2

[116] ‘DFAT Report  at  p.30; ‘Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise’, Landinfo - Norwegian Country of Origin Information Centre, 27 November 2017, p.6, DFAT Christians in Iran COISS dated 27 July 2021 at p.1

87.Whether a law is properly characterised as a law of general application turns on identifying those members of the population to whom it applies.[117] It can be necessary to look behind a law that is generally expressed, to establish whether the law itself is in truth discriminatory in its intent or whether it has a discriminatory impact on members of a group recognised by the Convention. Laws or policies that target, or only apply to, or impact adversely upon, a particular section of the population cannot be properly described as laws or policies of general application.[118]

[117] See Weheliye v MIMA [2001] FCA 1222 at [50].

[118] Chen Shi Hai v MIMA (2000) 201 CLR 293 at [19], [20]

88.In this case it is necessary to consider if the law specifying the death sentence for proselytising by religious minority groups is appropriate[119] and adapted for a legitimate object of the state.[120] This involves considering if the mean adopted is proportional to achieve the object of securing an Islamic dominated State.[121] A legitimate object is generally considered an object the pursuit of which is required to protect or promote the general welfare of the State and its citizens. Therefore, the enforcement of a generally applicable criminal law, or the enforcement of laws designed to protect the general welfare of the state, would not ordinarily constitute persecution.[122] However, in this case, the threat of a death sentence for proselytising by religious minority groups does not appear to the Tribunal be proportional to the objective of promoting and maintaining an Islamic State. 

[119] Applicant S v MIMA (2004) 217 CLR 387

[120] Applicant A v MIEA (1997) 190 CLR 225

[121] See Applicant S v MIMA (2004) 217 CLR 387 at [44], [48]. In MZQAP v MIMIA [2005] FCAFC 35.

[122] Applicant A v MIEA (1997) 190 CLR 225 at 258.

89.Even in circumstances where the possibility of the law being enforced is remote, the mere existence of such a law which imposed the death penalty for expressing one religious view contrary to the regime, in the Tribunal’s view, is discriminatory. That is not to say that the mere existence of a criminal law could never constitute persecution. Living under the shadow of the mere possibility of a death sentence for apostasy in Iran, regardless of how remote that possibility might be, has been considered to constitute persecution.[123] Accordingly, the Tribunal accepts that there is a real chance the applicant will suffer serious harm if he is returned to Iran by reason of his religion as claimed.

[123] SGKB v MIMIA [2003] FCAFC 44 at [21], endorsed by Kirby J in Applicant NABD of 2002 v MIMIA [2005] HCA 29 at [94].

90.Having considered the applicant’s claims singularly and cumulatively, the Tribunal finds that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Iran, there is a real chance that the applicant will suffer serious harm.

91.For the reasons given above, the Tribunal is satisfied the applicant is a person in respect of whom Australia has protection obligations under the Article 1 of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention) and as a result, s 36(2)(a) of the Act.

CONCLUSION

92.For the reasons given above, the Tribunal is satisfied the applicant is a person in respect of whom Australia has protection obligations under the Refugee Convention and as a result, s 36(2)(a) of the Act.

DECISION

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

Jason Pennell
Senior Member