1906637 (Refugee)

[2023] AATA 3184

1906637 (Refugee) [2023] AATA 3184 (22 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Sachini Mandawala

CASE NUMBER:  1906637

COUNTRY OF REFERENCE:                   Iran

MEMBER:Brendan Darcy

DATE:22 June 2023

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 22 June 2023 at 10:20am

CATCHWORDS
REFUGEE – protection visa – Iran – race – Faili Kurd – religion – rejection of Shi’a Islam – Christian convert – apostasy – political opinion – anti-government – original stateless claims abandoned – credibility issues – decision under review remitted

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

CASES
CLS15 v Federal Circuit Court of Australia [2017] FCA 577
DFO19 v MICMSMA [2023] FCAFC 38
Kopalapillai v MIMA (1998) 86 FCR 547
McDonald v Director-General of Social Security (1984) 1 FCR 354; 6 ALD 6
Nagalingam v MILGEA (1992) 38 FCR 191
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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 Home Affairs on 14 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of the Islamic Republic of Iran (Iran), applied for the protection visa on 18 September 2018. The delegate refused to grant the visa on the basis that the applicant did not face a real chance of serious harm or a real risk of significant harm arising from claims about ethnicity, religion, political opinion or gender, either on an individual or cumulative assessment.

3. The applicant appeared before the Tribunal on 10 May 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.

4. The applicant was represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

5. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

7. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

8. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.

9. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

10. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    Background

12. The applicant was born on [date] in Ilam province in Iran.

13. [In] December 2011, the applicant arrived in Australia’s territorial waters as an irregular maritime arrival. She had been travelling with her brother.

14. The applicant attended a biodata interview [in] December 2011 and an entry interview on 2 February 2012. The applicant claimed to be a stateless unregistered Faili Kurd who did not have citizenship from either Iraq or Iran and that the Islamic Republic of Iran had been her reference country of habitual residence. As a result, the applicant was unwilling/unable to provide any identity documents.

15. (The Faili (also spelled Feyli, and commonly known as Iraqi) Kurds are a sub-group of the larger Kurdish population. They originate from the Zagros Mountains, which straddle the Iran-Iraq border, and many have family on either side of the border. Most, but not all, Faili Kurds originate from Iraq (some have lived in modern-day Iran for centuries). Faili Kurds in Iran typically reside either close to the Iraqi border, including in Khuzestan, Lorestan, Kermanshah and Ilam provinces, or in major cities. They are distinguishable from other Iranian Kurds by their religion (most Faili Kurds are Shi’a), their location and their distinctive dialect. Three main groups of Faili Kurds live in Iran: (1) Iranian citizens; (2) those of Iraqi origin who are registered refugees (Amayesh cardholders); and (3) those of Iraqi origin who are not registered refugees (non-Amayesh cardholders). Accurate population estimates for the three groups or for the overall number of Faili Kurds in Iran are not available. A local Kurdish source told DFAT that the number of Faili Kurds in Iran is not significant as a proportion of Iran’s population. Upon seizing power in the 1960s, the Ba’athist Government in Iraq adopted several policies with the effect of excluding Faili Kurds, who the Iraqi authorities considered to be Iranian. The most notable of these – Decree No. 666 (1980) – cancelled the Iraqi citizenship of all Iraqis of ‘foreign origin’, including Faili Kurds. Under the Decree, authorities seized the properties and documentation of Faili Kurds, and eventually expelled them by force from Iraq. The expulsion of Faili Kurds intensified during the Iran-Iraq War: some estimates of the numbers of Faili Kurds who crossed into Iran between the late 1970s and 1988 range up to 250,000 (although this estimate is at the high end). Most Faili Kurds expelled from Iraq settled in Iran’s Kurdish-populated north-western provinces.)

16. In a statutory declaration of 24 January 2012 in support of her Protection Obligations Evaluation, the applicant claimed to be an undocumented Faili Kurd resident in Iran without Iranian, or any other citizenship or residency rights.

17. A Protection Obligations Evaluation interview was conducted on 30 April 2012. A negative decision followed suit.  Furthermore, an Independent Protection Assessment was held on 5 October 2012. This also resulted in a negative decision. A Stateless Assessment was conducted between the applicant and Departmental staff on 24 April 2013.

18. Throughout this process, the applicant continued to claim to be a stateless Faili Kurd from Iran.  

19. The applicant appealed to the Federal Circuit Court of Australia on 6 March 2014, with the Minister withdrawing.

20. The s 46A bar was lifted for the applicant on 23 May 2018, and the applicant lodged an application for a Safe Haven Enterprise visa (‘SHEV’) on 19 September 2018.

21. In turn, the Department conducted a SHEV interview with the applicant on 19 February 2019.

    2019 claims for protection

22. Dated 5 March 2019, the applicant provided a statutory declaration to the Department, along with post-interview submissions detailing her claims for protection. These claims are summarised as follows:

    ·     The applicant converted to Christianity and fears persecution as an apostate in Iran. This claim was also raised in her statutory declaration of 1 February 2019 and discussed at her Subclass 790 SHEV interview;

    ·     The applicant is a Faili Kurd and has suffered ‘discrimination and violence’ because of her ethnicity, as set out in her previous statements;

    ·     The applicant fears persecution on the basis of her political opinion because, as a [teacher] at [university], she was reprimanded by the Department of Conformity with Islamic Laws and Regulations (a branch of the intelligence agency Ettela’at) for talking about what the Iranian government ‘should and shouldn’t be doing’ on nuclear energy with students. She was dismissed, threatened and ‘blacklisted’ so that she was unable to regain employment and left Iran because she was consequentially ‘living in fear.’ Additionally, in Australia the applicant has protested against the Iranian government; and

    ·     The applicant also fears returning because she will be a failed asylum seeker who, because of her political activity and her [research] into nuclear energy, will be suspected by the Iranian government of disclosing ‘information relevant to the Iranian nuclear industry’ and is already on a blacklist.

23. On 14 March 2019, a delegate for the Department found the applicant to not be a person in respect of whom Australia has protection obligations.

24. The applicant validly appealed this decision to the Tribunal on 20 March 2019. A partial copy of the Department’s decision record was provided.

    Evidence to the Tribunal

25. On 3 March 2023, the Tribunal received a statutory declaration dated on the same day as its receipt outlining her claims for protection, including various sur place activities, and her mental health. Also attached were:

    ·     A legal submission prepared by the applicant’s representative;

    ·     Various supportive photographs taken at demonstrations against the Iranian government;

    ·     A letter from the applicant’s clinical psychologist;

    ·     A baptismal certificate from [Church 1] dated 30 December 2012;

    ·     A letter dated 3 April 2023 from the senior pastor of [Church 1] attesting to the applicant’s regular attendance and participation at the church;

    ·     A character letter from a member of [Church 1] congregation who is of Iranian background; and

    ·     A character letter from a charitable organisation for asylum seekers.

26. On 10 May 2023, the applicant attended a scheduled hearing at the Tribunal’s Melbourne facilities to give evidence and present arguments that she is owed Australia’s protection obligations, as mentioned above.

27. On 24 May 2023, the Tribunal received a number of post-hearing submissions from the applicant’s representative. This included a further legal submission prepared by the representative, a statutory declaration by the applicant dated 3 May 2023.   

28. There are no non-disclosure certificates attached to either the Department’s or the Tribunal’s files.   

    Country information: Iran

29. Below is an extract from the most recent DFAT country information report on Iran dated 14 April 2020, about the religious environment and laws in Iran and its treatment of both recognised and unrecognised Christians.   

    RELIGION

    3.27 Over 99 per cent of Iranians are Muslim, of whom 90-95 per cent are estimated to be Shi’a and 5-10 per cent Sunni. Small religious minority communities – including Baha’is, Christians, Zoroastrians, Jews and Sabean-Mandaeans – make up the remainder. Of Iran’s religious minorities, only Christians, Zoroastrians and Jews (excluding converts) enjoy legal recognition and, in turn, the ability to worship openly (see Recognised Religious Minorities). Adherents of non-recognised religions are considered Muslim and are prohibited from expressing their faiths publicly. Religious minority communities – recognised and non-recognised – have shrunk considerably since 1979, with many choosing to leave Iran after the Islamic Revolution.

    3.28 Iran is a theocracy with Islamic beliefs and customs enshrined in law. Shi’a Islam is the official state religion. Article 4 of the constitution requires that all laws and regulations be based on (Shi’a) Islamic criteria. Legislation and government policy heavily favour the majority Shi’a population, leading to pervasive structural discrimination against non-Shi’a Muslims and recognised religious minorities. Non-Shi’a Muslims, for example, are constitutionally-barred from serving as Supreme Leader or as members of the Guardian Council, the Assembly of Experts and the Expediency Council. Adherents of non-recognised religions, particularly Baha’is, face widespread official and societal discrimination. According to a July 2019 survey on religious restrictions conducted by the Pew Research Center, Iran ranks among the top 10 countries in the world for laws and policies restricting religious freedom.

    […][…]

    Christians

    3.37 According to the most recent national census (2016), there are 130,000 registered Christians in Iran. Ethnic Armenians concentrated in Tehran and Isfahan are the largest group of recognised Christians. Other recognised Christian groups include Assyrians, Chaldeans and Sabean-Mandaeans, although the latter group does not self-identify as Christian. Those citizens able to prove they or their families were Christian prior to 1979 are also recognised. Conversions after 1979 are not recognised (see Unrecognised Christian Groups (House Churches)). The ethnic churches have different denominations – there are Assyrian Catholic, Orthodox and Presbyterian congregations – but the members of the various denominations maintain close links within their own community. Because the law prohibits citizens from converting from Islam to another religion, the government only recognises these groups because their presence in Iran pre-dates Islam. Recognised churches are required to deliver sermons in their traditional language. Farsi-language services are not permitted, as they could promote proselytisation. There are approximately 20 officially recognised Christian churches in Iran. All pre-date the Islamic Revolution (the authorities have not granted permission for the construction of new churches since 1979).

    3.38 The activities of recognised Christian communities are closely regulated, to guard against proselytisation. All Christians and Christian churches must be registered with the authorities, and only recognised Christians can attend church. Security officials closely monitor registered churches to verify that services are not conducted in Farsi, and perform regular identity checks on worshippers to confirm that non-Christians or converts do not participate in services. Authorities have closed several churches in recent years for failing to comply with these restrictions, including churches that had existed prior to 1979.

    3.39 Despite these restrictions, community leaders associated with recognised churches report that the authorities respect their religious rights, and their communities are able to act freely in their own spaces without government interference (including holding mixed-gender gatherings, using alcohol for ceremonial purposes and allowing women to uncover their heads). A local Christian from Tehran told DFAT they experienced no official or societal discrimination, and felt comfortable practising their faith. DFAT assesses that, while their congregations are monitored and they are subject to restrictions, Christians from recognised churches are permitted to practise their faith.

    3.40 DFAT further assesses that, except for their exclusion from senior government, military, intelligence and judicial positions, recognised Christians who do not engage in proselytisation activities face a low risk of official discrimination.

    ASSESSMENT OF CLAIMS AND FINDINGS

    Identity and country of reference

30. Between the applicant’s January 2012 statutory declaration and early 2019, the applicant advanced a number of times, with the assistance of an interpreter that the key aspect of her identity included her being a Faili Kurd who had been denied citizenship rights by both Iran and Iraq and Iran had been her country of habitual residency. 

31. However, in March 2019, the applicant abandoned the specific claim as lacking citizenship of any country in favour of being a citizen of Iran. She also submitted a number of identity documents including a copy of her Iranian Shenasnameh (birth certificate) with a certified translation.

32. On the basis of copies of the applicant’s Iranian identity documents, the Tribunal is satisfied that the applicant is a citizen of the Islamic Republic of Iran – and not without nationality. The Tribunal accordingly finds that Iran is her receiving country for the purpose of assessing her claims to be assessed under ss 36(2)(a) and 36(2)(aa).

    Third country protection

33. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any other country for the purposes of s 36(3).

    Claims and credibility findings

34. It is rarely appropriate to speak in terms of onus of proof in relation to administrative decision making: see Nagalingam v MILGEA & Anor (1992) 38 FCR 191 and McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357; 6 ALD 6 at 10. The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraphs 196–197 and 203–204 recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt. Given the particular problems of proof faced by applicants a liberal attitude on the part of the decision maker is called for in assessing refugee status and complementary protection obligations.

35. However, decision makers are not required to accept uncritically any or all allegations made by an applicant. Moreover, decision makers are not required to have rebutting evidence available before they can find that a particular factual assertion by an applicant has not been made out. In addition, the Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.

1. In her March 2019 statutory declaration, the applicant outlined the following to explain the reasons she put forward false and misleading claims:

   I apologise for saying previously that I am stateless, but I did this to protect my brother, [Mr A], who told me he had told the Department that he is stateless. I did not wish to adversely affect his claims. My brother, [Mr A], was under great pressure and threats of harm from others who came to Australia on the same boat as him to say that he is stateless as they were claiming statelessness. In trying to protect [Mr A] and against my own better judgement, I found myself in the terrible situation of not being able to tell my own story of persecution and why I left Iran. It has caused me great personal conflict and I am very remorseful for making the statements I have previously made and hope the Department will now consider my claims afresh without judging me too harshly.

2. The Tribunal appreciates that there were familial pressures on her to make false claims about being stateless to correspond with those of her brother, [Mr A], who arrived prior to her. As discussed in the hearing, the applicant’s brother had been granted a protection visa on the basis of being a stateless Faili Kurd, and the visa was subsequently cancelled in 2021 due to him providing incorrect information about his statelessness. The cancellation process had been triggered by the applicant’s brother providing Iranian citizenship identity documents as part of his 2017 citizenship application. (On review at the Tribunal, the protection visa was restored in 2023.) The reasons a ‘stateless’ Faili Kurdish identity has been falsely claimed by Iranian citizens in the past is because undocumented Faili Kurds are not legally entitled to work, access government services or obtain birth, death and marriage certificates, and were subsequently granted protection visas on the basis that returning to Iran as their country of reference amounted to a real chance of serious harm through the denial of basic services for at least two of the nexus reasons: ethnicity and lack of nationality.

3. The Tribunal does not accept she was under any significant or any notable duress to do so. Given her brother was granted a visa in April 2012 on the basis of being stateless, the applicant was actually significantly incentivised to make similarly contrived claims herself for the sole purpose of being granted a protection visa. Elaborately, this included denying she had reached tertiary level education and was employed in a public sector university. 

4. As mentioned above, the Tribunal accepts the applicant is an Iranian citizen as later clarified and corroborated. Accordingly, the Tribunal does not accept the following abandoned claims:

   ·     None of the family members were born in Iraq and were expelled from Iraq and migrated to Iraq; 

   ·     Neither the applicant nor any of her parents or siblings were refused citizenship of Iran and were unable to gain access to Iranian residency status by obtaining ‘White’ cards or were denied basic educational, health and other essential services accessible to Iranian citizens;

   ·     The applicant and her family members had low levels of educational attainment or were denied suitable employment opportunities; and

   ·     That the applicant lived in fear of the authorities because of her lack of nationality or that she fraudulently obtained an Iranian travel document or that it provided any credible explanation for her departure from Iran in 2011.

5. The Tribunal makes the finding that the applicant does not have a well-founded fear arising from statelessness, should she return to Iran, either now or into the foreseeable future. There are also no substantial grounds for it to believe that the applicant will suffer, as a foreseeable and necessary consequence of being removed from Australia to Iran, a real risk of significant harm. In this regard, the applicant does not satisfy either s 36(2)(a) or s 36(2)(aa).

6. In fabricating claims when the applicant was under the ethical and legal obligations to present truthful claims, she has invited reasonable suspicion that newer or updated claims presented to the Tribunal lacked veracity too. It is in this context that the Tribunal does not accept a number of other later past harm incidents advanced by the applicant since 2019. These adverse credibility findings are outlined below.

7. Nonetheless, the Tribunal does accept the following personal characteristics of the applicant as credible:

   ·     The applicant was born in Iran’s Ilam province to Iranian citizens who were both Faili Kurds by ethnicity;

   ·     The applicant has three brothers, two of whom are in Australia, and another who resides in Iran; and two sisters, both of whom reside in Iran;

   ·     The applicant speaks Farsi and the Faili dialect of the Kurdish language and is of Faili Kurdish ethnicity;

   ·     The applicant is a tertiary graduate with a [degree];

   ·     The applicant was employed at a university, as claimed;

   ·     The applicant had a number of negative and arbitrary encounters with the authorities on the basis of allegations of not properly adhering to Islamic dress code; 

   ·     The applicant departed Iran on a genuine passport with her own name and identity; and

   ·     The applicant has never been married, engaged to be married or lived in a de facto relationship, either in Iran or Australia, and she does not have any children. 

8. The applicant also made a claim that she is no longer a Muslim and that she became a Christian. She submitted a baptismal certificate from 2012 indicating her formal embrace and acceptance into a Christian fellowship known as [Church 1] and a few supportive letters. The Tribunal notes that [Church 1] is an affiliate to the evangelical Protestant movement known as the Pentecostal movement or Pentecostalism. Pentecostalism is a charismatic Christian movement that emphases direct personal experience of God and a commitment to the Christian bible as authoritative. During the hearing, the Tribunal enquired into how she abandoned Islam in favour of Christianity and asked a range of questions for her to demonstrate her knowledge of Christian doctrine and practices, including her knowledge of the Christian Bible. Under the Tribunal’s questioning, the applicant was able to demonstrate a degree of knowledge about Christianity’s basic text and practices commensurate with a tertiary educated person who had claimed to attend Christian services and religious instruction for over a decade. In particular she provided insight into the events pertaining to Moses in the Old Testament (Jewish canon) and how it related to the mission of Jesus as a religious reformer in the Christian New Testament. The Tribunal did not find the applicant’s approach to Christianity as trite or platitudinous.

9. The Tribunal accordingly accepts the applicant’s account that she became disillusioned with Islam while in Iran – the religion to which she was born; that she abandoned Islam while in Australia; that she formally and genuinely converted to Christianity in 2012; and she has conscientiously continued to deepen her knowledge of Christianity.  Specifically, the Tribunal accepts the applicant is an evangelical Christian who is strongly ‘scripture orientated’ and finds considerable spiritual and personal cohesiveness in her Christianity. In reaching these findings, the Tribunal has placed considerable weight on the corroborative evidence that the applicant’s baptism occurred in late 2012 – well before she recanted her false identity as a stateless person in 2018.

   Some adverse credibility findings

10. The Tribunal accepts that the applicant has participated in demonstrations in the religious, civil and political rights of Iranian citizens in general or against the Islamic Republic Revolutionary Guards or the Islamic Republic of Iran in general.  Based on the photographic evidence, it relatedly accepts these included a number of protests between 2018 and March 2023 including outside the Iranian diplomatic mission in Melbourne.

11. However, the Tribunal finds that the applicant’s sur place activities at demonstrations occurred after the Department raised concerns about incorrect information regarding the applicant’s brother claiming statelessness as the basis of granting a protection visa. This strongly indicates to the Tribunal that the applicant did not hold any genuine, deep or urgent fear of persecution based on her political activities prior to coming to Australia and attended such demonstrations only to augment her claims for refugee status on political opinion grounds.

12. In regard to the applicant’s past political activities in Iran, the Tribunal accepts that the applicant genuinely holds some anti-government political opinions and accepts that she participated in a green movement protest in 2009. She does not claim to have ever participated in any Kurdish specific political organisations or demonstrations while in Iran. However, opposing the election of Mahmoud Ahmadinejad in 2009 was not necessarily indicative of the applicant holding anti-regime political opinions or opinions in favour of Kurdish separatism. Given the applicant had worked in a public sector university, holding anti-regime views or opinions incompatible to a unified Iran country directed by the Shi’a Muslim religious authorities that currently govern Iran, this is very unlikely.

13. With this in mind and in the context of the applicant’s earlier contrived claims, the Tribunal makes the following credibility assessments in her more recent claims for protection:

    ·     While the Tribunal accepts the authorities in Iran arbitrarily entered and destroyed an illegally installed satellite dish in the applicant’s family house and in doing so shoved and insulted the applicant and other family members in 2011, it does not accept they were targeted for such arbitrary behaviour because of the ethnicity or political opinions of any of the family members. The only reason the family were subjected to such treatment was because they had been breaking the general law in Iran and because the authorities are sensitive to foreign satellite broadcasting that they deem hostile to the regime;

    ·     The applicant claimed that her brother, [Mr A], was arrested in the 2009 protests and that the family paid a bond to the authorities to have him released into the community. The Tribunal does not accept this;

    ·     The applicant claimed her other brother who had travelled to Australia with her, had been investigated by one of the security agencies of Iran for anti-Islamic or anti-regime views and that his family organised for him to leave Iran because of such a fear. The Tribunal does not accept this; and

    ·     While the Tribunal accepted the applicant had been employed at a university in [2005] and had been discussing the implications of using alternative energy sources other than nuclear fission to avoid international sanctions, it does not accept that she was admonished for offering this opinion or lost her employment on this basis. The issue of international sanctions is driven by fears the Islamic Republic is evading international oversight of its nuclear research to develop nuclear weapons and accompanying missile technology which will threaten neighbouring countries. It is not about nuclear energy per se or the use of alternative energy sources. Neither is it credible to claim that university students were unaware of the health risks arising from radioactive material whereby the applicant’s students were required to understand what are widely understood health risks. The views expressed are not sufficiently provocative whereby she was either admonished or had lost her employment or was prevented from seeking employment in [research] or teaching and does not accept any of the related claims, including being interrogated by the authorities or being prevented from working in Iran through ‘blacklisting’.

14. Based on these contrived claims, it is not accepted the applicant held a deep or genuine or urgent fear of persecution when she departed Iran or continues to hold these fears in returning to Iran.

    Claims arising from being a failed asylum seeker/forced returnee

15. During the hearing, the applicant stated that if she had to return to Iran she would not do so voluntarily.

16. On 19 March 2018 Iran and Australia signed a Memorandum of Understanding (MOU) on Consular Matters that includes an agreement by Iran to facilitate the return of Iranians who arrived after this date and who have no legal right to stay in Australia.[1]

    [1] DFAT country information report on Iran, 14 April 2020 p.70

17. Charlesworth J in CLS15 v Federal Circuit Court of Australia [2017] FCA 577 stated at [64] that, ‘It is for the Tribunal to determine, on the evidence before it, whether or not the appellant can be forcibly returned to Iran and hence whether a fundamental premise of this aspect of his claim exists.’

18. In having regard to this, the Tribunal invited the applicant’s representative to consider the authority of this approach given it had been upheld in DFO19 v MICMSMA [2023] FCAFC 38 by the Full Federal Court of Australia (FFCA). The FFCA dismissed the application for judicial review of the decision by the Administrative Appeals Tribunal. DFO19 claimed, among other things, to face harm as a failed asylum seeker. The applicant in that matter said during the Tribunal hearing that he ‘cannot return voluntarily’ to Iran. In considering whether he faced a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Iran under s 36(2)(aa) of the Act, the Tribunal considered the prospect of both involuntary and voluntary return. It concluded the Iranian government would not revisit its practice of not accepting involuntary returnees who arrived in Australia before 19 March 2018, the date of an MOU between Iran and Australia facilitating return of Iranians who arrived in Australia after this date with no legal right to stay. The Tribunal considered the Department would not return him involuntarily. If he persisted in not returning voluntarily, he would not return and as such would not face a real chance of serious harm (for the purposes of s 36(2)(a)) or a real risk of significant harm. The Tribunal in that matter also considered the circumstances if he were to return voluntarily, taking account of the circumstances he would face, found he did not face a real chance of serious harm or real risk of significant harm. The FFCA found no jurisdictional error.

    The relevant claims and circumstances of the DFO19 and the applicant were similar as both arrived in Australia before the above-mentioned MOU was signed. Therefore, if her claims for asylum were unsuccessful, the applicant would be faced with the choice of either indefinite detention in Australia or voluntary return to Iran.

19. Based on this authority and the relevant facts that the applicant will not be forced to return to Iran for the foreseeable future, the Tribunal finds that the applicant does not face the prospect of facing a real chance or a real risk of being an involutory returnee and therefore, being subjected to the kinds of interrogations on arrival that Iranian failed asylum seekers  are typically subjected to and during which incriminating or negatively implicating information about the applicant’s sur place activities can be discoverable by the authorities.

20. As such, the Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm for reasons of being a failed asylum seeker returning to Iran, even when cumulatively considering her ethnicity, her religion, her political opinion, imputed or actual, or any other reasons mentioned under s 5J(1)(a). Neither are there any substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to her country of reference, there is a real risk of significant harm of any kind mentioned under s 36(2A) arising from the applicant being a forced returnee or a failed asylum seeker.

    Voluntary return

21. Alternatively, the Tribunal has also considered the circumstances if she was to return to Iran in the reasonably foreseeable future voluntarily and any integers that are associated with this, including her extended period abroad, either on arrival or in the Iranian community.

22. According to some international observers, Iranian authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. International observers report those Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims.[2] This country information indicates that the authorities will have even less interest in voluntary returnees from Western countries on arrival. Given the applicant is not a high-profile political dissenter or apostate, the Tribunal assesses that there is only a remote or far-fetched chance of interview on arrival as a voluntary returnee. It follows, therefore, that the applicant only has a remote and far-fetched chance, and not a real chance, of serious harm arising from her sur place activities in relation to being an apostate from Islam and political demonstrations, including her social media activities, and in combination with her Kurdish or Faili Kurdish ethnicity on arrival, either now or into the reasonably foreseeable future.

    [2] DFAT country information report on Iran, 14 April 2020 p.70

23. In making that finding, the Tribunal is now required to consider whether Australia owes the applicant any protection obligations while in the community, should she return on a voluntary basis as it arises under s 36(2)(a) and s 36(2)(aa).

    Kurdish claims

24. The applicant has made a general claim that she holds a well-founded fear of persecution arising from the applicant’s ethnicity as Faili Kurdish and Kurdish, should she return to Iran. As mentioned above, the Tribunal accepts the applicant to be a Faili Kurd by ethnicity or to be of Kurdish ethnicity more generally.

25. The Tribunal has had regard to a 2018 joint report from the Danish Immigration Service and the Danish Refugee Council on Iran, which found that Kurds who assert their ethnic and religious identity are a target, as well as Kurds who engage in or are associated with political activities. Kurds who promote or are perceived as promoting separatism are also targeted, as are those who are affiliated with women’s rights. The Tribunal has also had regard to the UK Upper Tribunal guidance case of HB,[3] which is approved in the UK Home Office Guidance, issued in January 2019. It stated that even ‘low-level’ political activity, or activity that is perceived to be political, such as, by way of example only, mere possession of leaflets espousing or supporting Kurdish rights, if discovered, involves the same risk of persecution or Article 3 ill-treatment (of the IPCC).

    [3] HB (Kurds) Iran CG [2018] UKUT 430 (IAC), (heard 20–22 February and 25 May 2018 and promulgated 12 December 2018), available at >

    The Tribunal also notes that the most recent DFAT report states that Faili Kurds who are citizens of Iran enjoy the same rights as other Iranians. DFAT is not aware of specific instances whereby authorities have singled out Faili Kurds for mistreatment, regardless of the category to which they belong.

26. The Tribunal does not discount the possibility that the applicant may be imputed in Iran as a supporter of Kurdish specific causes whereby she will be considered as a separatist or a person of concern. Nor does it discount the suspicions Kurdish Iranians are held by many in authority whereby the applicant has a likelihood to be interrogated, detained, suffer significant physical ill-treatment, torture or long-term imprisonment. However, without an extensive history of such activities in Iran or Australia or whereby she is an office-bearer of such an organisation held in suspicion by the Iranian government, the Tribunal assesses that the chance of such serious harm or risk of such significant harm will amount to a remote or far-fetched chance or risk but not amount to a real chance of serious harm or real risk of significant harm, should the applicant return to Iran as a voluntary returnee. 

    Political opinion

1. As mentioned above, the applicant gave written and oral evidence that she had participated in a number of political protests in Melbourne against the Iranian regime. She relatedly claimed to have been filmed in attendance at the protests and that she was clearly identifiable in the footage and that the footage had been widely circulated on social media and been televised. Links to the relevant footage, as well as the time in the footage when the applicant appeared in the footage are outlined in a statutory declaration. It is submitted that the applicant’s numerous attendances at anti-Iranian government protests since 2018, along with her history of regular social media posting on political matters indicates that her protest activity constitutes a genuine expression of her long-held political beliefs, and is conduct “otherwise than for the purposes of strengthening the applicant’s claim to be a refugee” for the purposes of s 5J(6) of the Act. Moreover, the fact that the applicant’s participation in anti-government protest activities has been filmed and shown on social media and television places her at significant risk of interrogation upon her arrival in Iran, as well as arrest, detention, prosecution, torture, discrimination and other ill-treatment.

2. The Tribunal does not discount the possibility that the applicant has a chance of being interrogated about her participation in anti-government protests in Australia or that they have been recorded and broadcast through television, the internet or social media platforms, should she voluntarily return to Iran.

3. Nor does it discount those suspicions regarding Kurdish Iranians are held by many in authority whereby the applicant has a likelihood to be interrogated, detained, suffer significant physical ill-treatment, torture or long-term imprisonment for holding actual political opinions against the regime in Iran or for her imputed political opinions about Kurdish separatism and other anti-regime views given the substantial time she has spent in Australia.  

4. However, without being intercepted as a failed asylum seeker, the Tribunal does not accept the applicant’s sur place participation in anti-regime activities will come to the attention of the authorities while she is in the community. Further, the applicant will be able to return to Iran and share the same rights as other Iranians in being able to demonstrate, whereby she will only face a remote chance of serious harm. Moreover, without an extensive history of such activities in Iran or Australia or whereby she is an office-bearer or prominent spokesperson of such an organisation held in suspicion by the Iranian government, the Tribunal assesses that the chance of such serious harm or risk of such significant harm will amount to a remote or far-fetched chance or risk but not amount to a real chance of serious harm or real risk of significant harm, should the applicant return to Iran based on her political opinion. 

5. Given the applicant’s lack of profile and the country information in relation to the country in which she would voluntarily return, the Tribunal finds that the applicant does not face, into the reasonably foreseeable future, a real chance of serious harm arising from political opinion claims, either imputed or actual, in combination with her Kurdish ethnicity.

6. There are also no substantial grounds for it to believe that the applicant will suffer, as a foreseeable and necessary consequence of returning to Iran on a voluntary basis, a real risk of significant harm arising from her political opinion claims in combination with her accepted Kurdish ethnicity and background.

7. In this regard, as a voluntary returnee, the applicant does not satisfy either s 36(2)(a) or s 36(2)(aa) on the basis of her political opinion.

   Apostasy claims: harm arising from no longer practising Shi’a Islam

8. During the hearing she outlined her general disillusionment with Islam, especially as it is practised in Iran where Shi’a Islam is enforced as the national religion and whose leaders have adopted Sharia law to police, prosecuted and punished Muslims and others that breach those religious-motivated laws.

9. Her written and oral claims included that if she were returned to Iran she would refuse to participate in Islamic practices and rituals such as mosque attendance, prayer and fasting at Ramadan. In her most recent statutory declaration, the applicant also claimed her refusal to participate in Islamic practices would be quickly detected in her local community and the authorities alerted.

10. The Tribunal accepts that should the applicant voluntarily return to Iran as a person who rejects Islam, she will not outwardly practise it.  

11. During the hearing she outlined her general disillusionment with Islam, especially as it is practised in Iran where Shi’a Islam is enforced as the national religion and whose leaders have adopted Sharia law to police, prosecute and punish Muslims and others that breach those religious-motivated laws. The Tribunal accepts that should the applicant voluntarily return to Iran she will not practise Islam, either publicly or privately but this will not lead to a real chance of alerting others, including Shi’a Muslims, that she is an apostate.

12. Nearly a quarter of Iranians never attend religious services and another 23% only attend on holy days.[4] The applicant’s distancing from Islam would not draw undue attention to her. During her time in Australia, she has not publicly voiced any statements against Islam in general or Shi’a Islam in particular. The Tribunal acknowledges that privately she has had discussions regarding her claimed journey away from Islam, but these do not amount to a real chance of serious harm as the authorities are unaware of them.

    [4] World Values Survey, ‘Iran Wave 2005-2009 Online Data Analysis: V186.- How often do you attend

13. Given the country information in relation to the country in which she would voluntarily return and notwithstanding her claims of conversion, the Tribunal finds that the applicant does not face, into the reasonably foreseeable future, a real chance of serious harm arising from her objections to Shi’a Islam, her rejection or her indifference to that state religion, including any potential association of objections against Islam as being objections against the regime.

14. There are also no substantial grounds for it to believe that the applicant will suffer, as a foreseeable and necessary consequence of returning to Iran on a voluntary basis, a real risk of significant harm arising from objections to and rejection of Shi’a Islam.

15. In this regard, the applicant does not satisfy either s 36(2)(a) or s 36(2)(aa).

    Apostasy claims: harm arising from claimed conversion to Christianity

16. It is the applicant’s accepted claim that she has rejected Shi’a Islam in favour of Christianity and that she was baptised as a Christian in 2012. Taking this into account with credible reference letters that she has participated in Christian evangelical church services and lessons over a sustained period, the Tribunal is satisfied the applicant is an apostate who has rejected Shi’a Islam in favour of evangelical Christianity.

17. In reaching this decision, the Tribunal has placed considerable weight on his conversion to Christianity as one that predated the beginning of the visa cancellation process pertaining to his brother’s protection visa on the grounds that he was not stateless, which had prompted her to abandon his own claims for refugee status on the basis of being a stateless Faili Kurd. There are no reasonable grounds for the Tribunal to find that the applicant has advanced her conversion to Christianity as sur place activities solely for the grant of the visa.

18. As the Tribunal does not accept the applicant has a real chance of serious harm as a failed asylum seeker, it has considered the applicant will be able to voluntarily return to Iran as an apostate and resettle in the community. Country information from DFAT states in the context of genuine Christian converts:

    3.34 International observers advise that Iranians who convert to Christianity outside the country are unlikely to face adverse attention from authorities upon return to Iran, provided they have not previously come to the attention of authorities for political activities conducted in Iran, maintain a low profile and do not engage in proselytization or political activities within the country.

19. DFAT assesses that a Christian convert would not face harm if they maintain a low profile, do not openly proselytise and are not of interest to the authorities for other reasons (e.g. political activism).  Official sources told DFAT that converts who keep their beliefs private are not of interest to the authorities. Those who openly propagate Christianity and seek to convert others, in contrast, would draw the attention of the authorities, and face a high risk of official discrimination, including harassment, arrest and prosecution, and some societal discrimination. Local sources were not aware of Christian converts being executed for apostasy in recent times. DFAT assesses the risk of execution for conversion/apostasy to be low.

20. DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed. Christians found to be proselytising face a high risk of arrest, prosecution and imprisonment. DFAT assesses those Christian converts face a high risk of societal discrimination in the event their conversion becomes widely known, particularly if they are from more religiously-minded Muslim family backgrounds. In this matter, the applicant has not advanced that she is a proselytising evangelical Christian and the Tribunal does not accept that she has a real chance of her apostasy to Christianity coming to the attention of the authorities for this reason.

21. Notwithstanding the operation of 5J(3) of the Act, the Tribunal accordingly finds that the applicant does not hold a well-founded fear of persecution on the basis of low-profile religious conversion, should she return to Iran on a voluntary basis. On the evidence before it, including the country information referred to above, the Tribunal finds that the applicant in voluntarily returning to Iran will be able to discreetly practise her religion with only a remote or insubstantial chance of the applicant suffering serious harm for reasons of her Christian faith.

22. Neither are there substantial grounds for the Tribunal to believe that the applicant, on return to Iran on a voluntary basis, will suffer a real risk of significant harm as a Christian convert based on the same considerations.

    Behaviour modification

23. Section 5J(3) states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity, or conceal an innate or immutable characteristic: part (a); or be required to do anything to alter his or her religious beliefs, including by renouncing a religious conversion, or to conceal his or her true religious beliefs, or to cease his or her true religious beliefs to be involved in the practice of his or her faith: part (c)(i).

24. At the end of the hearing, the Tribunal sought a further submission with the matter of the applicability of s 5J(3) to be specifically outlined. The Tribunal notes that the applicant’s representative presented the following arguments whereby the applicant would have to modify her behaviour to avoid serious harm. The post-hearing submission argued that:

    ·     The applicant would be compelled to adopt Muslim dress, including the hijab, against her wishes and wearing the hijab invalidates her identity as a devout Christian who has spent many hours learning about her faith, attending church services and volunteering in church activities; and

    ·     The applicant’s current religion forbids her from worshipping the prophets of other religions or engaging in rituals other than those of the Christian faith. In the further statutory declaration (3 May 2023), the applicant has outlined her fears that her refusal to participate in Islamic practices would be quickly detected in her local community and the authorities alerted.

25. As mentioned above, the Tribunal finds the applicant is an evangelical Christian woman who converted from Shi’a Islam, which is punishable under Iran’s religious laws as it applies to apostate from Islam.  

26. With regard to Islamic dress code, the Tribunal accepts that while its origins of such laws and practices are religious and cultural, they are generally applicable to all women in Iran, including those who are permitted to practise Christianity, such as the members of the recognised Armenian Christian church. Indeed, non-Islamic males are also subjected to dress modestly according to Islamic practices or norm in Iran. While the applicant may not wish to wear the hijab, as a general law of application the Tribunal does not accept such a modification of behaviour invalidates her religion as a Christian or as someone who has followed Western dress codes since her arrival in Australia or that it conflicts against her conscience in a manner that is fundamental to her Christian identity or alters or conceals her beliefs.

27. Nonetheless, the Tribunal accepts the applicant, as a practising evangelical or Pentecostal Christian, will have to modify her behaviour to avoid persecution as a voluntary returnee living in the community.

28. It is fundamental to the applicant’s Christian faith to renounce the Prophet, Muhammad, as the divinely inspired founder of Islam and as the last and final messenger of God’s monotheistic revelations as outlined in the Qur’an, the Hadith and the Sunnah, as authoritatively interpreted by the Iran’s ayatollahs. Since the 1979 overthrow of the Shah and the more secular monarchist institutions in Iran, the Iranian constitution elevated the Grand Ayatollah as the most senior cleric of Twelver Shi’a Islam, the Supreme Leader. The constitution of Iran’s Islamic Republic has entrenched strict laws against Muslims converting to Christianity with punishments that include long-term arbitrary detention and lawful executions.

29. As a Christian convert, the applicant will be compelled to conceal her religious beliefs as she will not be able to demonstrate her religious faith with co-congregants other than participating in underground house churches or to openly practise her faith and religious beliefs. The country information indicates that the laws and practices against house or underground Christians practising in clandestine churches in Iran are draconian, designed to have a chilling or suppressive effect on them gathering and proselytising according to Pentecostal doctrine and practices.

30. Most converts to house churches in Iran are Protestants (Pentecostals, Presbyterians and Anglicans); other conversions are rare.[5] House churches are perceived as a national security threat by the regime. This is due to their secrecy and perception of the meetings as a potential source of opposition activity and their links to foreign, Western governments.[6] The authorities choose informers to infiltrate house churches, however, house churches restrict numbers and remain mobile (and change locations) in order to prevent being infiltrated.[7] Potential new house church members are typically surveilled by the house church for months.[8] As noted above, the regime targets house church leaders[9] and to a lesser extent, members.[10] The regime has publicly declared its intent to prevent the growth of house churches.[11]  The judiciary has handed down long prison sentences in relation to house church activities.[12]

    [5] ‘Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise’ Landinfo - Norwegian Country of Origin Information Centre, 27 November 2017, p.7, CISEDB50AD8640

    [6] ‘Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise’, Landinfo - Norwegian Country of Origin Information Centre, 27 November 2017, p.23, CISEDB50A D8640

    [7] ‘DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, p.32, 20200414083132; ‘Iran: House churches and converts’, Danish Immigration Service and the Danish Refugee Council, February 2018, p. 5, CIS7B83941873; ‘Over 450,000 Join Iranian House Church Movement, ‘Great Number of Muslims Turning to Christ’’, Christian Post (United States), 3 March 2016, CX6A26A6E1858; ‘Update on the Situation for Christian Converts in Iran: Report from the Danish Immigration Service’s fact-finding mission to Istanbul and Ankara, Turkey and London, United Kingdom’, Danish Immigration Service, 23 June 2014, p. 21, CIS28931

    [8] Update on the Situation for Christian Converts in Iran: Report from the Danish Immigration Service’s fact-finding mission to Istanbul and Ankara, Turkey and London, United Kingdom’, Danish Immigration Service, 23 June 2014, p. 24, CIS28931

    [9]  ‘DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, p.32, 20200414083132; ‘Iran: Christian converts and house churches (2) - arrests and prosecutions’, Landinfo -Norwegian Country of Origin Information Centre, 29 November 2017, p.21, CISEDB50A D8641; ‘Iran: House churches and converts’, Danish Immigration Service and the Danish Refugee Council, February 2018, pp. 7 & 9, CIS7B83941873

    [10]‘DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, p.32, 20200414083132; ‘Iran: House churches and converts’, Danish Immigration Service and the Danish Refugee Council, February 2018, p. 7, CIS7B83941873

    [11] ‘Iran: Christian converts and house churches (2) - arrests and prosecutions’, Landinfo - Norwegian Country of Origin Information Centre, 29 November 2017, p.21, CISEDB50A D8641

    [12] ‘DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, p.33, 20200414083132

31. There is a lack of due process surrounding the arrest and detention of Christians[13] released, or else held (sometimes without charge) for months.[14] Bail can be paid in the form of cash, a bank guarantee or by mortgaging real estate. It is often used to force the person to keep a low profile and is maintained even if the matter is not followed up with more legal action.[15] Some converts have been released on very high bail, while no formal charges are laid.[16] Converts arrested for the first time are usually released within 24 hours.[17] Interrogations are usually undertaken by agents of the Ministry of Intelligence and Security.[18] There are reports of beatings, solitary confinement and sexual abuse of converts in detention, as well as psychological pressure being placed on them.[19]

    [13] IRN200458.E - Iran: Situation and treatment of Christians by society and the authorities (2017–February 2021)’, Immigration and Refugee Board of Canada, 09 March 2021, 20210330090142; ‘The Persecution of Christians in Iran’, The Christians in Parliament All Party Parliamentary Group and the All Party Parliamentary Group for International Freedom of Religion or Belief, 1 March 2015, pp. 11–12, CISEC96CF1343

    [14] ‘Christian Converts in Iran’, Finnish Immigration Service, 21 August 2015, p. 11, CISEC96CF14127; ‘Annual Report 2020 - Rights violations against Christians in Iran’, Open Doors, Article 18, Middle East Concern, Christian Solidarity Worldwide, 02 February 2021, p.11, 20210203085117. Recent examples: ‘Two Christians sentenced to 8-year prison in Iran’, Middle East Concern (United Kingdom), 9 January 2018, CXBB8A1DA309; ‘Iran: Christian converts arrested in Dezful’, Iran Human Rights Monitor (United States), 16 October 2017, CXC90406615721; ‘Recently Arrested Christian Convert Couple still Held in Uncertainty’, Mohabat News, 4 October 2017, CXC90406614881; ‘Iranian Christian Prisoners to Go on Hunger Strike’, Mohabat News, 7 February 2017, CXC9040661530; ‘Imprisoned Iranian convert ‘seriously ill’ after hunger strike’, World Watch Monitor, 14 February 2017, CXC9040661793 Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise’, Landinfo - Norwegian Country of Origin Information Centre, 27 November 2017, p.25 , CISEDB50A D8640

    [15]  ‘Iran: Christian converts and house churches (2) - arrests and prosecutions’, Landinfo - Norwegian Country of Origin Information Centre, 29 November 2017, p.22 - 23, CISEDB50AD8641

    [16] ‘Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise’, Landinfo -Norwegian Country of Origin Information Centre, 27 November 2017, p.25, CISEDB50A D8640

    [17]  ‘Iran: Christian converts and house churches (2) - arrests and prosecutions’, Landinfo - Norwegian Country of Origin Information Centre, 29 November 2017, p.22–23, CISEDB50AD8641

    [18]  ‘The Persecution of Christians in Iran’, The Christians in Parliament All Party Parliamentary Group and the All Party Parliamentary Group for International Freedom of Religion or Belief, 1 March 2015, p.8, CISEC96CF1343

    [19] ‘2021 Report on International Religious Freedom: Iran’, US Department of State, 2 June 2022, Sec II, 20220603091924; ‘IRN200458.E - Iran: Situation and treatment of Christians by society and the authorities (2017-February 2021)’, Immigration and Refugee Board of Canada, 09 March 2021, 20210330090142; ‘Annual Report 2020 - Rights violations against Christians in Iran’, Open Doors, Article 18, Middle East Concern, Christian Solidarity Worldwide, 02 February 2021, p.10, 20210203085117; ‘Christian Converts in Iran’, Finnish Immigration Service, 21 August 2015, p. 9, CISEC96CF14127; ‘Saeed Abedini Recounts Torture in Iranian Hospital: ‘They Beat Me in Front of My Mom’’, Gospel Herald (United States), 18 April 2017, CXC9040666164; ‘Iran’s hidden Christians are becoming visible in the migrant camps of Europe’, World Watch Monitor, 15 March 2017, CXC904066384

1. Under such a legal and security environment, the Tribunal accepts the applicant will be powerfully and compellingly encouraged to modify her behaviour as an expressive and open evangelical Christian, as practised in Australia, to avoid harm. While she is not a proselytising Christian, her modified behaviour will come at the expense of the applicant who has been able to openly display her Christian charity through voluntary charitable works, open worship and sought out religious instruction and guidance from co-congregants and from those in leadership or experience. It would be unreasonable for the applicant to take steps to modify her religious behaviour as an outwardly faithful Christian so as to avoid a real chance of persecution in Iran as the modifications would conflict with a characteristic fundamental to her conscience and because it would require the applicant to alter her religious beliefs or conceal her true religious beliefs, pursuant to s 5J(3).

   Summary

2. In summary, the Tribunal finds that the essential and significant reason for the applicant’s real chance of persecution in Iran is the reason of the applicant’s religion, namely, as an apostate from Islam to evangelical Christianity, for the purposes of s 5J(4)(a).

3. It relatedly finds that the applicant has a well-founded fear of persecution on the basis the applicant cannot take reasonable steps to modify her behaviour so as to avoid a real chance of persecution in Iran as a voluntary returnee, as such a modification would conflict with a characteristic that is fundamental to the person’s identity or conscience, or require the applicant to alter or to conceal her religious beliefs for the purposes of part (a) or (c)(i) for

   
   

   s 5J(3). 

4. As the harm the applicant would face is at the hands of the Iranian government and those responsible with enforcing religious and moral conformity among those designated as Shi’a Muslims, the applicant will be unable to obtain protection by those authorities from the harm she faces. 

5. The Tribunal is satisfied that the real chance of serious harm exists in the country as a whole and that safe relocation within Iran is therefore not reasonably open to the applicant.

6. For the reasons above, the Tribunal finds that the applicant has a well-founded fear of persecution for one of the five reasons mentioned under s 5J(1)(a), if she voluntarily returns to Iran now or in the reasonably foreseeable future.

100. Therefore, the Tribunal finds that the applicant satisfies the criteria under ss 36(2)(a) and 5H(1) of the Act.

1. Having concluded that the applicant meets the refugee criterion in s 36(2)(a), the Tribunal is not required to consider the alternative criterion in s 36(2)(aa).

   Conclusion

102.   The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

103.   As mentioned above, the applicant cannot avail herself of the protection of any third country.

DECISION

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

Brendan Darcy
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.

…

religious services’, available at [accessed 16 Sept.
16].