1906962 (Refugee)

1906962 (Refugee) [2022] AATA 4923 (3 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Alireza Majazi Amiri (MARN: 1801203)
CASE NUMBER:  1906962; 2108481
COUNTRY OF REFERENCE:                   Iran
MEMBER:Alison Murphy
DATE:3 November 2022
PLACE OF DECISION:  Melbourne
DECISION IN 1906962: The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
DECISION IN 2108481: 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 03 November 2022 at 9:33am
CATCHWORDS
REFUGEE – protection visa – Iran – ethnicity and religion – Kurdish and convert to Christianity – original claim as stateless Faili Kurd but Iranian citizenship later conceded – degrading interactions with authorities and fear of harm – claim on this ground not maintained at hearing – original claim as non-practising Muslim replaced by claim of conversion and church attendance and activity – baptised before genuine conversion – church’s teaching and practice of baptism – length of membership – gradual process rather than instantaneous conversion, and practical engagement rather than doctrinal knowledge – not solely for purpose of strengthening claims – country information – decisions under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AA, 5H(1)(a), 5J, 36(2)(a), 46A, 65, 66, 91K
Migration Regulations 1994 (Cth), Schedule 2
CASES
DBB16 v MIBP [2018] FCAFC 178
SZVTC v MIBP [2018] FCA 824
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Before the Tribunal are two valid applications for review relating to two separate decisions made by different delegates of the Minister for Home Affairs. Each decision of the delegate is a decision to refuse to grant the applicant a subclass XE-790 (Safe Haven Enterprise Visa) (SHEV) under s 65 of the Migration Act 1958 (Cth) (the Act).
The Departmental files indicate the procedural history is as follows:
·The applicant arrived in Australia in May 2013 by boat and without a valid visa. He was granted a UJ-449 (Humanitarian Stay) visa for one week in July 2013 and released from detention as the holder of a bridging visa. As he had arrived in Australia by boat and without a visa, he was presumed by the Department to be an ‘unauthorised maritime arrival’ within the meaning of s5AA. As a consequence he was prevented by section 46A from making a valid visa application without the intervention of the Minister.
·On 12 July 2016 the Department wrote to the applicant advising him that the Minister had lifted the s 46A bar and inviting him to apply for a temporary protection visa or a Safe Haven Enterprise Visa (SHEV). An application for a SHEV was lodged on 3 July 2017 (‘the first SHEV’) and a delegate made a decision to refuse to grant that visa on 5 September 2018. In the letter notifying the applicant of that refusal the applicant was advised that he was considered to be a ‘fast track applicant’ and that as a consequence, the refusal decision had been referred to the Immigration Assessment Authority (the IAA) for review.
·On 30 November 2018 the IAA wrote to the applicant advising him that following the Federal Court judgment in DBB16 v MIBP [2018] FCAFC 178, it had been determined that he did not enter Australia at an ‘excised offshore place’ and as a result he was not an ‘unauthorised maritime arrival’ or a ‘fast track applicant’ within the meaning of the Migration Act 1958.
·On 23 March 2019, the Department wrote to the applicant advising that his case had been reassessed and it had been found that he was not in fact a ‘fast track applicant’, with the consequence that he had not been correctly notified of the decision pursuant to s 66 of the Act. The letter dated 23 March 2019 advised him that he was being renotified of the decision dated 5 September 2018 to refuse him a SHEV and that he could seek review of that decision from this Tribunal. An application for review of the decision to refuse the applicant a SHEV was lodged on 25 March 2019 (AAT proceedings 1906962).
·On 3 September 2020, the Department wrote to the applicant advising him that the Minister had lifted the statutory bars set out in s 91K and s 48A and he had 7 days to apply for a valid visa. On 17 September 2020 the applicant made a further application for a SHEV (‘the second SHEV’). A delegate of the Minister refused to grant the applicant that visa on 22 June 2021 on the basis that they were not satisfied the applicant is a person owed protection by Australia. On 30 June 2021 the applicant sought a review of that decision from this Tribunal (AAT proceedings 2108481).
Both review applications were listed for a single hearing on 14 September 2022. At hearing the Tribunal heard oral evidence a number of oral witnesses being [Reverend A], [Reverend B], [Mr C], [Mr D] and [Ms E].
The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review.
Criteria for a protection visa
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.
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.
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).
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.
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
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.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Country of nationality
On arrival in Australia in May 2013, the applicant claimed to be a stateless Faili Kurd formerly resident in Iran. The Department subsequently became aware of information indicating that he was in fact an Iranian citizen and wrote to him inviting his comment on that information. In response the applicant provided the department with a statutory declaration made 27 August 2018 acknowledging that he is an Iranian citizen by virtue of his father being an Iranian citizen. He also provided copies of his Iranian national identity card, shenasmaneh and military completion card to the Department at that time. The Tribunal finds the applicant is an Iranian citizen and has assessed his claims against Iran as his country of nationality and the receiving country.
The applicant’s background
The applicant is a [Age]-year-old male born in the town of [Town], Illam province, Iran although the family had lived in Tehran for a number of years prior to the applicant’s travel to Australia. At hearing he gave evidence that his parents, [sisters] and brother all remain living in Iran.
In the first SHEV application, the applicant described himself as a stateless Faili Kurd who had received only a few years primary school education. As noted above, shortly before the decision was made to refuse to him the first SHEV on 5 September 2018, the applicant conceded he was not stateless but an Iranian citizen. At the Tribunal hearing he gave evidence that he is of Kurdish ethnicity, but not Faili Kurd ethnicity.
DFAT reports that Kurds make up 10% of the Iranian population and are concentrated in Iran’s north-western provinces including Illam. Faili Kurds are a sub-group of the larger Kurdish population from the Zagros Mountains on the border of Iran and Iraq and most Faili Kurds originate from Iraq.[1] As noted above, the applicant was born in Illam province. In each of the decisions to refuse the SHEV applications, the departmental delegate accepted the applicant to be of Kurdish ethnicity. The Tribunal finds the applicant is an ethnic Kurd, but not part of the sub-group of Faili Kurds.
[1] DFAT DFAT Country Information Report: Iran 14 April 2020 at 3.23
The second SHEV application indicates the applicant attended primary and middle school in Tehran before working as a [labourer] and undertaking military service. In Australia he is self-employed as [an Occupation]. The Tribunal notes the significant differences in the applicant’s personal history as set out in the first SHEV compared to the second SHEV and considers the applicant gave incorrect information in the first SHEV to make his history more consistent with that of a stateless Faili Kurd.
The Tribunal find the applicant is a [Age]-year-old male of Kurdish ethnicity, who was born in Ilam province but lived for most of his life in Tehran. The Tribunal finds he was educated to middle-school level before completing military service and working as a [labourer].
Statelessness
In the first SHEV application the applicant made claims for protection on the basis of his claimed status as a stateless Faili Kurd. As noted above, it is now acknowledged that the applicant is an Iranian citizenship of Kurdish ethnicity. The Tribunal notes that the applicant acknowledged that he had lied about his statelessness as soon as challenged and before his protection claims were assessed by the delegate in the first SHEV application.
At hearing the applicant stated that he had lied about his statelessness because the people smugglers told him that was what he had to say if he wanted to stay in Australia. The Tribunal finds that as an Iranian citizen, the applicant has no fear of harm on the basis of his initial claim that he was a stateless Faili Kurd formerly resident in Iran.
Kurdish ethnicity
For the reasons set out above the Tribunal has accepted the applicant is an Iranian citizen of Kurdish ethnicity.
At hearing I asked the applicant why he had travelled to Australia, given that it was not because he was a stateless person in Iran as he had originally stated. He said that had been instilled with a fear of the Iranian authorities since childhood because of his Kurdish ethnicity, that his father had a fear of officers of the Iranian government and that he himself had had a few interactions with the Iranian authorities where he had been degraded and he realised he would be unable to live the way he wanted. He said his Kurdish ethnicity put him at risk of harm from the Iranian authorities.
I discussed with the applicant the various claims he had made in his first visa application about his interactions with the Iranian authorities because of his Kurdish ethnicity. The applicant gave evidence that the incident he had described as occurring at a family wedding was partially true, in that the police had arrived due to noise complaint leading to an altercation involving himself and his father. He confirmed that he had no ongoing fear of harm in Iran related to that incident.
I discussed with the applicant an incident in which he claimed to have run from police when they were checking people’s identity documents. The applicant gave evidence that such incidents were common and that if young people were together the police would try and cause problems and create fear. He stated he ran because he was afraid of the police, not because he didn’t hold identity documents as stated in the visa application. He said he had no ongoing fear of harm arising out of this incident, although he still found it disturbing to remember.
DFAT reports that ethnic Kurds in Iran have traditionally harboured separatist tendencies, with an unsuccessful attempt to break away from the Islamic Republic of Iran after the 1979 Revolution. The Iranian authorities are highly sensitive to any organised political activity by the Kurds, with Kurdish political prisoners representing almost half the political prisoners in Iran and constituting a disproportionately high number of those who receive the death penalty and are executed. DFAT reports that while there is a perception among Iran’s Kurds that the state deliberately holds them back, there is an acceptance that independence from Iran is not a viable option. DFAT assesses that Kurds are not specifically targeted for discrimination on the basis of their ethnicity or religion but like other ethnic minorities, those who are active politically are likely to attract adverse attention from the authorities.[2]
[2] DFAT DFAT Country Information Report: Iran 14 April 2020 at 3.18 – 3.22
The Tribunal accepts that as a young male of Kurdish ethnicity, the applicant has had some adverse interactions with the Iranian authorities to whom he continues to feel a level of fear and resentment. Not all kinds of harm or discrimination will rise to the level of serious or significant harm. The Tribunal gives weight to DFAT’s advice that Iranian Kurds are not specifically targeted for discrimination on the basis of their ethnicity or religion. The applicant does not suggest that he or his family were politically active and gave evidence that he had no ongoing fear in relation to the particular incidents he described in his first SHEV application. At hearing the applicant’s representative submitted that the applicant was not asserting a well-founded fear of persecution on the basis of his Kurdish ethnicity.
On the evidence before it, the Tribunal does not accept there to be a real chance the applicant will face serious harm for reasons of his Kurdish ethnicity if he returns to Iran, now or in the foreseeable future. For the same reasons, the Tribunal does not accept there to be a real risk the applicant will be subjected to significant harm as a necessary and foreseeable consequence of being removed from Australia to Iran because of his Kurdish ethnicity.
Non-practising Muslim
In the first SHEV application, the applicant described himself as a non-practising Muslim with an interest in Christianity who was not following any religion. He told the Tribunal that he had no exposure to Christianity in Iran, nor was he interested in any other religion while he was living there. He was born into a Muslim family and was recorded as Muslim by the Iranian authorities. His mother was religious and when he was a child his parents encouraged him to go to mosque, but when he grew up he said he wouldn’t go. His older sister is interested in Islam, but his other siblings are not. He agreed that many young people in Iran would describe themselves as non-practising Muslims.
DFAT reports that secularism in Iran is widespread, particularly in the major cities and among younger Iranians. A significant proportion of the population does not attend mosque or pray on a regular basis, and alcohol consumption is common. Official sources told DFAT that beyond the expectation that people do not eat in public or hold parties during the holy Muslim month of Ramadan, how one wished to observe Islam was an individual choice and was not a matter for the state. DFAT assesses that non-practising Iranian Muslims face a low risk of official and societal discrimination, particularly in the major cities.[3]
[3] DFAT DFAT Country Information Report: Iran 14 April 2020 at 3.70 – 3.72
On the evidence before it, the Tribunal does not accept there to be a real chance the applicant will face serious harm as a non-practising Muslim if he returns to Iran, now or in the foreseeable future. For the same reasons, the Tribunal does not accept there to be a real risk the applicant will be subjected to significant harm as a necessary and foreseeable consequence of being removed from Australia to Iran as a non-practising Muslim.
Conversion to Christianity
The applicant claims to have converted to Christianity during the time he has been living in Australia. He made reference to his growing interest in Christianity and church attendance in Brisbane and Melbourne in the statutory declaration dated 30 June 2017 which accompanied the first SHEV application. He described himself at that time as a person with no religion but who believed that God exists. He stated that he did not attend church regularly, nor had he converted to Christianity, but he liked the positive message of Christianity and liked going to church where he had been welcomed with open arms.
At the departmental interview in relation to the first SHEV, the applicant gave evidence that he had attended church on a few occasions in Brisbane before relocating to Melbourne in 2014. For a time after his arrival he did not attend church due to his depression and work commitments but met a friend called [Mr C] at work who introduced him to [Church 1] in 2016 and he claimed that he had regularly attended that church and been baptised in December 2017. He also provided letters of support from members of that church. In his statutory declaration made 27 August 2018 in which he conceded he had given incorrect information about his citizenship, he stated that he was ashamed, as a Christian, that he had been untruthful and had asked Jesus to forgive him.

The delegate in the first SHEV application did not accept the applicant’s conversion to be genuine, considering that the applicant’s attempts to mislead the Department in relation to his nationality and citizenship meant he was not a generally credible witness. The delegate was also concerned that the applicant appeared not to understand the difference between the [Churches] and considered his evidence to be vague, contradictory and confusing. The delegate accepted the good faith of the various letters of support written by members of that church but stated that they did not mitigate the delegate’s concern about the genuineness of the conversion.
The applicant elaborated on his religious claims in the second SHEV application, in which he stated that he was unable to return to Iran because he feared persecution by the Iranian authorities due to his abandonment of Islam and conversion to Christianity. In a statutory declaration made 21 March 2021, he claims he was introduced to [Church 1] by his friend [Mr C] in June 2016 and welcomed with open arms, smiles and love and he has known them as his family ever since. Except for a period in which he was suffering depression in 2018 and later when churches were closed due to COVID restrictions he has attended church regularly and even during the COVID lockdowns he attended online services run by the church except when working.
The applicant stated that he had been baptised and attended bible studies regularly with a fellow believer, [Mr F], who is a Persian speaking Christian church leader who organises private and group bible classes and visits the applicant at home where they read Holy Scripts together. He has encouraged several people to attend the church and learn about Christianity. If he returns to Iran, he will never deny his faith and will face charges of apostasy and other forms of harm and persecution by the Iranian authorities. The applicant again provided a number of support letters from members of the church.
In the decision record dated 22 June 2021, the delegate accepted the applicant’s account of his Christian activities (noting it was confirmed by the supporting letters) but again concluded that the applicant’s claimed conversion to Christianity was not genuine. Of particular concern to the delegate were the following matters:
·That the applicant had admitted at interview that at the time of his baptism in 2017 he had not genuinely converted to the Christian faith;
·That the UNHCR had cautioned about the ‘particular credibility concerns that tend to arise in relation to sur place religious conversions and country information indicating that some refugees convert to Christianity for the suspected purpose of furthering an asylum claim and as a pretext not to be deported back to their country of origin[4];
·That the applicant claimed to have genuinely accepted Christianity in August 2018 when he confessed to [Pastor A] at the church that he had lied about being stateless, but [Pastor A]’s support letter did not indicate that he was aware that the applicant was baptised without genuinely believing in the Christian faith;
·That the applicant did not demonstrate a level of knowledge about Christianity that was consistent with his claimed activities.
[4] Various references cited by the delegate at page 10 of the decision record dated 22 June 2021
At hearing before the Tribunal the applicant gave evidence consistent with his earlier statements about the manner in which he came to attend [Church 1] and his activities over the past 6 years. In particular he acknowledged that at the time he was first visited a Christian church in Brisbane he thought it might help with his visa application. He said that the kindness shown to him by the church congregation over many years made him want to explore the source of that kindness. He gave evidence that he had perhaps a 50% understanding of his faith at the time he underwent the baptism in December 2017, but he didn’t know Jesus Christ properly at that time. It was in large part the kindness of [Reverend A] in 2018 when he confessed he had lied about his statelessness that led to the applicant’s full acceptance of Jesus Christ into his heart and the church congregation as his family. He gave evidence that he had told his family in Iran about his conversion and his mother cried but there is nothing they can do. Following the hearing the applicant provided to the Tribunal screenshots of a number of [Social media] posts from 2021 and 2022 where he has re-posted Christian messages and inspirational quotes.
It is unsurprising that the applicant’s claims to have converted to Christianity would be viewed with considerable scepticism, given the applicant’s previous claims to be a stateless Faili Kurd and his subsequent admission that he had lied about his citizenship in order to obtain a protection visa. Notwithstanding this, the applicant’s religious claims must be assessed on their merits and with regard to all the available evidence.
For the following reasons the Tribunal has reached a different conclusion about the genuineness of the applicant’s conversion. In summary, the applicant’s involvement in [Church 1] now spans more than six years and there is a significant amount of evidence verifying the applicant’s activities, none of which has been disputed by either delegate. Further, it is clear there has been a misunderstanding about the nature of the baptism in which the applicant participated in 2017. Despite the applicant’s lack of doctrinal knowledge, he demonstrates a strong commitment to the church by undertaking practical tasks in a manner consistent with the way in which the church expresses and shares its faith. Finally, and most compellingly, a significant number of witnesses attended the hearing to give powerful evidence as to their observations of the applicant’s conversion to and involvement with the church over a period of years. Each of these matters are discussed further below.
Involvement with [Church]
The applicant claims to have been introduced to [Church 1] in mid-2016 by his friend [Mr C]. He claims that he was immediately welcomed with open arms and treated like family. He was baptised in December 2017 and attends bible studies regularly with a fellow believer, [Mr F], a Persian speaking Christian church leader who organises private and group bible study classes.
[Reverend A] was the Minister of [Church 1] for 14 years. He provided letters of support to the Department and attended the hearing to give oral evidence to the Tribunal. Consistently with his written evidence, [Reverend A] told the Tribunal that he first met the applicant in mid-2016 when he attended [Church 1] where [Reverend A] was the Minister. He was introduced by another churchgoer, [Mr C], attending introductory classes about the basics of Christianity with [Reverend A] before deciding to go forward and commencing formal bible classes. [Reverend A] finished his tenure at the church in March 2018 and handed over to the next pastor, [Reverend B]. Since then he has met with the applicant a number of times for pastoral conversations and he understands the applicant has continued to be involved in the life of the church.
[Reverend B], the current Reverend of [Church 1], gave evidence that he had known the applicant for over three years and felt that like most Christians, the applicant is on a journey and learning more and more. He gave evidence that the applicant could be very nervous and confused but that he had had many conversations with him about his faith and believed him to be actively interested in the story of Jesus.
[Mr C] attended the Tribunal hearing and gave evidence that he met the applicant at work in 2015 when they were both working as [Occupation]s. [Mr C] is a Christian convert who introduced the applicant to [Church 1] in the middle of 2016. He gave evidence that the applicant was curious and eager to learn more about Christ, connecting well with the church community. Having observed the applicant’s behaviour and actions in the years since, he was convinced of his beliefs and love of Christ because his actions confirmed his words.
[Mr D] attended the Tribunal hearing and gave evidence that he met the applicant when they shared a house in Brisbane. When [Mr D] moved from Brisbane to Melbourne in 2018, the applicant introduced him to [Church 1] and [Mr D] has now attended that church for four years. He gave evidence that the applicant always asked questions about Christianity and he had witnessed the applicant speaking fearlessly about his Christianity with family and friends. He said the applicant always invites friends to the church and advised them to come and see it with their own eyes.
[Mr F] provided a statutory declaration to the Department dated 29 April 2021, stating that he had known the applicant for about four years after meeting through [Mr C] (above) and that he is a member of [Church 2] and previously affiliated to [Church 3]. He states that he is aware the applicant is a devoted member of [Church 1] and as they both speak Persian they enjoy reading the bible to understand God through His word. Consistently with the evidence of the applicant and [Mr D], [Mr F] states that he sometimes meets the applicant at his home or at a café where they read the bible and discuss how they can apply God’s words in their lives. It is [Mr F]’s stated view that the applicant is a true follower of Jesus and a genuine Christian.
[Mr F] was listed as a witness but did not attend the Tribunal hearing, although the Tribunal was advised that he was available to answer the Tribunal’s questions by telephone. Given that his evidence in the statutory declaration was largely corroborated by other witnesses at the Tribunal hearing together with the limited utility of taking evidence by telephone where identity cannot be confirmed, the Tribunal decided not to hear evidence from [Mr F] by telephone.
Views of church leadership about the genuineness of the applicant’s conversion
As noted above, [Reverend A] has known the applicant for six years and [Reverend B] has known him for three years. At hearing I discussed with each of them the possibility that the applicant’s conversion to Christianity was for the sole purpose of strengthening his claims to be a refugee rather than any genuine acceptance of the faith.
[Reverend A] acknowledged there is both a subjective and objective element of believing in Christ and becoming a Christian. He gave evidence that his observation over a period of years that the applicant’s conversion was a gradual process rather than an instantaneous one. He has considered the possibility that the applicant’s conversion was just to allow him to live in Australia but considers that possibility to be low. Rather he observed that the applicant had complied with the three promises he made at his baptism being firstly that he committed himself to learn more about Christianity; secondly that he committed himself to the well-being of others and thirdly that he would work towards a new and better world with less discrimination and violence. [Reverend A] gave evidence that being baptised into the [Church] was not conditional on how much a person knows about the bible, but rather the unconditional acceptance of God’s love and acceptance.
In his written evidence, [Reverend B] stated that he knows the applicant to be a very enthusiastic and genuine Christian man who has brought others to the congregation and made an active contribution the life and ministry of the congregation in many ways, including by contributing many hours of labour to create the church’s prayer garden. When asked at hearing if he had turned his mind to the possibility that the applicant had converted only for the purpose of getting a protection visa, [Reverend B] gave evidence that he had been a minister for 35 years working across different areas and cultures and used that experience to discern what he believed to be the applicant’s truth. It was his view that the applicant is sincere and honest within his faith.
Baptism in 2017
The delegate was concerned that the applicant had been baptised in December 2017 despite later saying that he did not genuinely accept the Christian faith at that time and that [Pastor A] did not appear to be aware of that. The applicant does not deny that he was in part motivated to attend the church and undertake the baptism in December 2017 because of his protection visa application. At hearing the applicant gave evidence that he was also motivated by the kindness of the congregation towards him without any regard for race or ethnicity and his desire to understand the source of that kindness. He said that even after his baptism in December 2017 he continued to have doubts about Christianity and only genuinely accepted the faith fully in 2018 after he confessed to [Reverend A] that he was not stateless as he had claimed and was struck again by the response of [Reverend A], who remained calm and kind and welcoming.
[Reverend A] gave evidence that he is aware that the applicant had not fully accepted the Christian faith at the time of his baptism in 2017, telling the Tribunal that the [Church] performs sacrament baptisms, not believer’s baptisms. A sacrament baptism requires three promises or commitments: to becoming a Christian and learning more about the faith; to the wellbeing of others; and to a new and better world without discrimination or violence. Unlike a believer’s baptism performed at other Christian churches, it is consistent with a sacrament baptism that a person might continue to have doubts about their faith and may not ultimately accept that faith.
[Reverend A] gave evidence that he has performed a whole range of baptisms where person enters into it in good faith and even though they might still have doubts, they are still prepared to commit themselves to values of Christ. It is the church’s expectation that person would be involved in local congregation in some way shape or form and live the beliefs not just quote the scripture. It is the view of [Reverend A] and [Reverend B] and that the applicant has kept the three promises that he made when he was baptised in 2017 though his involvement in the church and his actions towards others, notwithstanding that he may have had doubts about his faith at the time he underwent that baptism.
Commitment to the church
The delegate was concerned that the applicant did not demonstrate a level of knowledge about Christianity that was consistent with his claimed activities. However, knowledge of religion or another subject matter is not necessarily be determinative of the credibility of an applicant’s claims.
[Reverend A] gave evidence that within the [Church] tradition, the sign of someone who is a committed Christian is not their biblical knowledge but whether they are living according to values of Christ, the main ones being compassion and being involved in life of congregation. He gave evidence that this is more important than an intellectual or doctrinal understanding of the faith and that the applicant had made a valuable contribution to the caring ministry of [Church 1] by going out of his way to help out in a variety of ways.
[Reverend B] gave evidence that the applicant was deeply embedded in the church community, not only as a regular attendee but also as someone who seeks to be of assistance. He gave evidence that one of the church’s main areas of ministry is its community garden and the applicant was very helpful in his physical labour in that garden. More recently [Reverend B] had been approached by the family of an elderly disabled member asking if someone could pick him up from aged care and bring him to the church and the applicant immediately took on this role even though the trip was not a short one for him. [Reverend B] gave evidence that he believed that to be a sign of deep care for this person and a deeply Christian action coming out of the applicant’s own experience in the church.
[Ms E] attended the hearing and gave evidence that she had known the applicant through [Church 1] since mid-2016. She described the applicant as a good member of the church who was very helpful in getting work done including painting and helping in the garden. She said that she didn’t question the commitment of anyone who came to the church as the church is like her family and she doesn’t question their devotion, but she saw the applicant doing good things.
[Mr C] gave evidence that the applicant’s words of belief were confirmed by his actions in the church. He told the Tribunal that many of the church members were elderly people and without being asked, the applicant collects them and brings them to church so they didn’t have to wait at bus stops. He also helps with maintenance, painting and repair jobs around the church. His evidence is that the applicant’s actions towards the church congregation are consistent with his beliefs.
The Tribunal’s findings about the applicant’s conversion
In each of the reviews before the Tribunal, the delegate did not accept that the applicant’s engagement with or conversion to the Christian faith was genuine. The Federal Court has cautioned that holding a religious faith is a core, and highly personal, part of an individual’s identity, and that it is a very serious finding for a decision-maker to find that an individual does not hold such a faith.[5] It is important for decision-makers to take into account the fact that the practice of many religions has cultural as well as doctrinal aspects when assessing the genuineness of a claim to have a particular religion.[6]
[5] SZVTC v MIBP [2018] FCA 824 at [31
[6] SZVTC v MIBP [2018] FCA 824 at [28]–[29]
In considering all of the available evidence about the applicant’s Christian faith, the Tribunal makes the following findings:
·The applicant began regularly attending [Church 1] in mid-2016, participating in introductory confirmation classes and then more formal bible studies before undergoing a sacrament baptism in December 2017;
·At the time the applicant underwent the sacrament baptism in December 2017, he had not fully accepted the Christian faith but he made a public commitment to learn more about it, to live within its values and to help others. He was motivated at that time by a range of factors including the kindness he had received from the church congregation; a curiosity about the source of that kindness and his protection visa application;
·The applicant has been a regular attendee and involved participant of the church since that time, except for a period in 2018 when he stopped attending while experiencing depression. It is the experience of the pastors and congregants of [Church 1] that the applicant has kept the promises or commitments that he made at his baptism in 2017, by fully engaging with the life of the congregation over a number of years and living according to the values of the church;
·While the applicant’s motivations in joining the church in 2016 included strengthening his claims for protection in the visa application, he has since accepted the Christian faith and played a full role in the life of the church congregation. He has spoken freely to his friends and family about his faith, including his family in Iran and has introduced several new worshippers to the church. Over the course of his now six year exploration of the Christian faith, he has genuinely accepted the tenets of that faith.
Section 91R(3) requires the Tribunal to disregard the applicant’s conduct in Australia, unless satisfied that the conduct has been engaged in ‘otherwise than for the purpose of strengthening the person’s claim to be a refugee’. This means that where conduct in Australia could strengthen a person’s refugee claim, the Tribunal must consider the applicant’s motivation for engaging in the conduct before considering the consequences that may flow from that conduct.

As set out above, the Tribunal has found that while the applicant’s motivations in joining the church in 2016 included strengthening his claims for protection in the visa application he was not solely motivated for that purpose and he has since genuinely accepted the tenets of that faith. In these circumstances the Tribunal accepts the applicant’s conversion to Christianity in Australia was not undertaken for the sole purpose of strengthening his refugee claims. Therefore his conduct in Australia cannot be disregarded under s 91R(3).
Having accepted that the applicant has genuinely converted from Islam to Christianity and that he continues to actively practise his Christian faith in Australia, the Tribunal accepts that he would seek to continue to practise his Christian faith should he return to Iran, now or in the reasonably foreseeable future.
Risk of harm on return
DFAT reports that over 99% of Iranians are Muslim and Islamic beliefs and customs are enshrined into law. While there are around 130,000 registered Christians in Iran, they are made up of minority ethnic groups who are able to prove that they or their families were Christian prior to the 1979 revolution and recognise only because their presence in Iran pre-dates Islam. It is a capital crime for non-Muslims to convert Muslims to their faith and the Penal Code strictly prohibits proselytization. Farsi-language services are not permitted as they could promote proselytization and security officials close monitor registered churches to confirm that they deliver their services in their traditional language and perform identity checks to ensure that non-Christians or converts do not participate in services.[7]
[7] DFAT DFAT Country Information Report: Iran 14 April 2020 at 3.37 – 3.38
Iranian Christians who are not members of recognised churches generally practise in secret underground ‘house churches’ which operate across Iran, particularly in major cities. The Special Rapporteur on the situation of human rights in Iran estimates there are between 300,000 and 350,000 Muslim converts to Christianity, although the secrecy surrounding house churches makes precise figures are elusive. DFAT reports that a high percentage of unrecognised Christians are Farsi-speaking converts from Islam or their children, many of whom are unhappy with being designated Muslim at birth and wish to explore their religious identity. Others see adopting Christianity (albeit surreptitiously) as a form of protest against the government. The Iranian authorities interpret the growth in house churches as a threat to national security and periodically carry out raids against them, using informants posing as converts to infiltrate the house churches.[8]
[8] DFAT DFAT Country Information Report: Iran 14 April 2020 at 3.49 – 3.58
DFAT reports that the Iranian judiciary has handed down long sentences in relation to house church activities, including 10 – 15 years imprisonment for eight Christians convicted of ‘acting against national security through the establishment of a house church’, ‘conducting evangelism’ and ‘insulting Islamic sanctities’. Media reports suggest that nine Christian converts received five-year prison sentences in December 2019. At least three of those sentenced had reportedly been arrested in a house church in Rasht (Gilan Province). In June 2018, four Christian converts were sentenced to 10 years’ prison each, and another 114 were reportedly arrested on charges of proselytising in December 2018. In March 2018, 20 Christian converts allegedly participating in a workshop were arrested near Karaj (most of whom were subsequently released.
International observers report that Iranians who convert to Christianity abroad are unlikely to face adverse official attention upon their return, provided they have not previously come to the attention of the authorities for political activities, maintain a low profile and do not engage in proselytisation activities. However DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed and those found to be proselytising face a high risk of arrest, prosecution and imprisonment.[9]
[9] Ibid at 3.49 – 3.58
For the reasons set out above, the Tribunal has accepted the applicant to be a regular attendee and involved participant of [Church 1]. He does not practise his faith in isolation, rather he has been fully engaged with the life of the congregation over a number of years including by attending services and bible study classes and helping to paint, repair and maintain the church and its gardens. He has spoken freely to friends and family about his conversion and has introduced several people to the church. The Tribunal accepts that should he return to Iran, he would wish to participate in his faith in a similar way and that to renounce or cease to be involved in the open practise of his faith in order to avoid harm from the Iranian authorities would be an impermissible modification of his behaviour for the purposes of s 5J(3)(c)(i).
The Tribunal finds that if the applicant were to return to Iran and openly practise his Christian faith, he would be at real risk of harm if his conversion were revealed to the Iranian authorities. The Tribunal finds that harm constitutes ‘serious harm’ involving systematic and discriminatory conduct for the essential and significant reason of his Christian religion for the purposes of s 5J(4) and (5). As the persecutor is the Iranian state, effective protection is not available to him and the real chance of persecution relates to all areas of Iran and so s 5j(2) and (3) do not apply to him. For the reasons set out above, the applicant’s conduct in Australia is not to be disregarded under s 5J(6). Therefore the applicant meets the definition of a refugee set out in s 5J(1) and satisfies s 36(2)(a) of the Act.
CONCLUSIONS
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a). As such the decision of the Tribunal is to remit both review applications for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act
DECISION in 1906962:
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act
DECISION in 2108481:
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Alison Murphy
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.
…

[2022] AATA 4923

3 November 2022

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