1906464 (Refugee) - [2023] AATA 4642

1906464 (Refugee) [2023] AATA 4642 (15 December 2023)
OUTCOME OF REVIEW
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Farnam Razzaghipour (MARN: 9789359)
CASE NUMBER: 1906464

COUNTRY OF REFERENCE:            Iran
MEMBER:Senior Member G.A.F. Connolly
DATE OF ORAL DECISION:             15 December 2023
TIME OF ORAL DECISION:             2:30pm
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision of the Department to refuse the grant of a protection visa and remits the matter with the following directions:

[a] that both the first applicant and the second applicant satisfy s 36(2)(aa) of the Migration Act; and
[b] that the other applicants satisfy s 36(2)(c)(i) of the Migration Act, because of their membership of the same family unit as the first named applicants.

Statement made on 15 December 2023 at 2:30pm
CATCHWORDS
REFUGEE – protection visa – Iran – religion – conversion to Christianity – delay in church attendance in Australia – delay in applying for protection – greater risk of harm for evangelical Christians – personal testimonies of Christian faith – decision under review remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975, s 43
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 104, 423, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
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 REASONS
[1] The practice of this Tribunal is, overwhelmingly, to hear cases and then reserve them, with the Tribunal’s decision and reasons to be communicated to applicants at a later date.
[2] Owing to the sheer length of this case, its complexities, its evidence, and my preference for it to be resolved sooner rather than later, I have chosen to deliver these reasons orally.

[3] The applicants in this case are Iranian nationals who have made a claim of protection on Australia.

[4]    The applicants and family members in this matter are:
A.[Name]  (first applicant) ([age] year old man)
B.[Name]          (second applicant) ([age] year old woman)
C.[The third applicant]   ([age] year old daughter)
D.[The fourth applicant]                    ([age] year old son)
E.[The fifth applicant]           ([age] year old daughter)

[5] For the purposes of this decision, I will refer to the family of the first applicant and second applicant as ‘the applicant family’.
[6] On 03 February 2012, the first applicant was granted a business visa.[1]
[1] Protection Visa Decision Record of 07 March 2019 at page 3.

[7] [In] September 2012, the first applicant arrived in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] AATA 4642
Decision Date: 15 December 2023

CaseChat Overview and Summary

The applicant, an asylum seeker from Iran, sought review of a decision by the Minister to refuse to grant a protection visa. The applicant claimed to have converted to Christianity in Iran and continued to practice their faith in Australia. The primary dispute concerned whether the applicant had a well-founded fear of persecution for reasons of religion should they be returned to Iran, and whether they met the criteria for a protection visa. The matter was heard by G.a.f. Connolly SM in the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the applicant's conversion to Christianity was genuine, and if so, whether they would face a real chance of serious harm upon return to Iran due to their religious beliefs. Specifically, the Tribunal had to consider the applicant's delay in attending church services in Australia and the delay in lodging their protection visa application, and assess whether these factors undermined the credibility of their claim. The Tribunal also needed to evaluate the evidence presented regarding the general risk faced by evangelical Christians in Iran.

In reaching its decision, the Tribunal considered the applicant's personal testimonies regarding their Christian faith and the circumstances of their conversion. It acknowledged that while delays in church attendance and application lodgement were noted, these did not necessarily negate the genuineness of the applicant's conversion or their fear of persecution. The Tribunal applied the principles established in refugee law concerning the assessment of credibility and the evaluation of risk, particularly in the context of religious persecution. The Tribunal found that the evidence, including the applicant's personal accounts, suggested a greater risk of harm for evangelical Christians in Iran.

Consequently, the Tribunal remitted the decision under review to the Minister for reconsideration, indicating that the applicant had established a case for the grant of a protection visa.

Orders