1908181 (Refugee) - [2024] ARTA 592

1908181 (REFUGEE) [2024] ARTA 592 (27 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 1908181
Tribunal:General Member V Price
Date:27 November 2024

Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 27 November 2024 at 4:38pm

CATCHWORDS
REFUGEE – Protection Visa – Iran – religion – converted to the Christian faith – political opinion – involvement in the National Liberation Movement of Ahvaz – is a genuine convert to Christianity – unresolved mental health condition – there is a real chance that the applicant will suffer serious harm – satisfied that the applicant is a person in respect of whom Australia has protection obligations – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 367, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant an adult male who claims to be a national of Iran, born in Ahvaz in Khuzestan. He arrived in Australia in October 2010 and since that time has had numerous assessments of his protection claims including a Refugee Status Assessment (RSA), an Independent Merits Review (IMR), Post Review Protection Claims assessment (PRPC), and an International Treaties Obligations Assessment (ITOA). He sought judicial review at the Federal Court, from which the Minister withdrew.
The applicant lodged the application for this visa on 27 July 2018. The delegate did not accept the applicant’s claimed political engagement in Iran was credible and did not accept he had genuinely converted to Christianity as he claimed. Accordingly, the delegate did not accept the applicant faced a real chance or risk of harm on return to Iran.
The applicant appeared before the Tribunal on 25 October 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, Ms LT who was present to support the applicant.
BACKGROUND
The applicant’s claims for protection were set out in his protection visa application, his interview with the Department delegate, and his written and oral evidence to the Tribunal.
In summary, the applicant claimed that he has an adverse political profile in Iran for his involvement in the National Liberation Movement of Ahvaz (NLMA). He also claimed that he converted to the Christian faith following a long-term interest in this religion arising from his childhood friendship with Armenian Christians in Iran.
At the Tribunal hearing the applicant confirmed his biographical and familial information and provided further details regarding the reasons he fears harm in Iran. His claims and evidence are discussed below.
Applicant’s background
The applicant was born in Ahvaz in Iran to Iranian citizen parents and is one of five children. He resided in Ahvaz with his family where he completed primary and secondary school. He began further studies but withdrew from these courses.
He obtained employment in as [an occupation] and then undertook employment in [a field], [doing specified job], and as a farm hand.
The applicant was married to Ms SM and they had a daughter. However, after the death of his wife, their daughter was adopted by the applicant sister who was unable to have children. The applicant married to his current wife Ms LT in Australia 2017. At the time of the hearing, they had four children and the birth of their fifth was imminent.
In Australia the applicant has been employed [at a workplace] and operated his own [business]. Earlier this year he obtained work with a [company] working as [an occupation]. However, in June 2024 he was assaulted at work leaving him hospitalised for two weeks. He had a concussion and injuries to his neck, shoulder, ribs, and neck. He required ongoing rehabilitation and psychological care and is currently on leave under Workcover.
The applicant’s parents are deceased, and to his knowledge his siblings continue to reside in Ahvaz, but they are no longer in contact.
Protection claims
The applicant was first introduced to Christianity as a child in primary school when he became friends with some Armenians who followed that faith. The applicant was curious about their beliefs, and they introduced him to their church services and showed him their written material. He was really interested in pursuing the faith but could no longer access the services after his friends left the area. He never told anyone and did not pursue the religion during his residence in Iran.
At age [age] his father asked him to confirm his Muslim faith and he advised his father he did not wish to be Muslim. His father was liberal in his views as he worked with people of other religious faiths and had an open mind. He respected the applicant’s views and did not push him to follow Islam.
The applicant became interested in politics from a young age stemming from verbal abuse and discrimination in accessing education and employment he experienced as Ahvaz Arab. He joined the NLMA and began distributing pamphlets and CDs educating Iranians about the situation of the Ahvaz Arabs. He had been doing this for some time without incident when his wife SM asked to join him one evening. They were caught by the Basij, taken for questioning and he and SM were tortured. His wife died from her injuries while in custody and the applicant was detained for three months before being released.
After his release he became more determined to participate in the movement and avenge his wife’s death. He joined the Basij to obtain information for the movement, and as part of this, became involved with the daughter of a high-ranking leader. He was discovered and arrested, escaping custody on route to his interrogation. He was able to depart Iran with assistance from others and by bribing airport officials. He believes he will be on a ‘black-list’ and will be identified, arrested, and imprisoned on return to Iran.
In Australia the applicant came back to Christianity, introduced to the church by his housemate at the time and attended regularly. He was officially baptised into the Church in October 2016, after he passed the knowledge test. His preparation for the test involved three or four nights a week of religious study for over two and half years and was not easy. The Church supported him and helped him find accommodation when he needed to move to a new home. It was Ms LT’s parents who offered to take him in, and the applicant and Ms LT met for the first time at a Christmas dinner held by her parents.
The applicant and his wife continue to follow their faith. Their four children are baptised, and they pray every night. The family had moved interstate and joined a new congregation just prior to the applicant’s workplace injury. As such his opportunities to attend have been limited by his health. However, he still attends online worship and attend Church as soon as he is more mobile. He would practise his faith if he had to return to Iran, it is now a core part of his life, and will face harm from the authorities if he does so.
The applicant also has PTSD, anxiety, and depression from the past events in Iran, and as well as the recent workplace assault.
Witness evidence:
The applicant’s wife, Ms LT is and Australian citizen. She works as [an occupation] and specialises in [an area]. She confirmed how she and the applicant met and stated that she is aware of his experiences in Iran. She has no doubt of his honesty regarding his political participation, the events leading to the death of his first wife and his subsequent arrest. She has witnessed his PTSD and mental ill health firsthand. He is a good and kind person, and their faith is a big part of their shared values and their life together.
Ms LT has no doubt the applicant genuinely fears for his safety and that of their family. He has no social media accounts and is careful to ensure their names and those the children are not made public. He is trying to keep a low profile and off the radar of the Iranian authorities. She believes he will be killed in Iran.
Documentary evidence
In addition to independent country information cited below, the following documentary evidence was before the Tribunal:
·Submission from the applicant’s former legal advisor dated 7 dated March 2019.
·Evidence in support of the applicant’s religion.[1]
·Evidence to support his membership and activities within the NLMA.[2]
·Statutory declaration by the applicant dated 1 October 2014, regarding his claimed political activities and detention of he and his first wife by the Basij.
·Reports by the applicant’s treating medical professionals, including regarding claimed past incidents of trauma in Iran, and his recent workplace incident.[3]
·Marriage certificate for the applicant and Ms LT and copies of their children’s birth certificates.
·Evidence of his workplace injury and subsequent medical treatment.
[1] A statutory declaration dated 6 March 2019 from Reverend [name]; A statutory declaration from [named person], dated 2019; Attestation of the applicant’s baptism dated [December] 2017; Statutory Declaration from [named person] dated 4 March 2016; Certificates of Baptism for the applicant’s children with his wife Ms LT; and letter from the applicants Congregation confirming their membership of the Church dated 24 March 2024.
[2] Letter from [an agency] dated 6 June 2011.
[3] Report from the applicant’s counsellor from [an organisation], dated17 April 2012; Report from [the organisation], dated 19 June 2012; Letter from the [specialist] at [a] Clinic, dated 18 January 2012; and Letter from the applicant’s Clinical Psychologist at [a] Clinic, undated but written in 2024.
I have had regard to the above evidence in making my assessment as well as the Department decision, interview with the delegate and other relevant material on the Department file.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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.
REASONS AND FINDINGS
The issue in this case is whether the applicant has a well-founded fear of persecution in Iran or, if not, whether he faces a real risk of significant harm in that country.
For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Application of s. 367A of the Act
In accordance with s 367A of the Act, if the Tribunal is satisfied that the applicant does not have a reasonable explanation for not raising or presenting claims or evidence before the primary decision was made, the Tribunal is to draw an adverse inference regarding the credibility of those matters.
Additional supporting evidence was provided to the Tribunal. To the extent these relate to his claims, some of these documents had been referenced by the delegate in the decision record but not provided to the Tribunal, and some were identified as relevant during the hearing and were requested by the Tribunal. I find that there are reasonable explanations for failing to provide the new evidence before the primary decision was made. I find that s 367A of the Act does not apply. I am not required to draw an adverse inference of the credibility of the new claims and evidence, and I do not do so.
Assessment of credibility
As noted above the delegate did not consider the applicants claims of his involvement with the NLAM, his arrest, detention, and activities within the Basij to be credible. The delegate also did not accept his Christian conversion to be genuine.
I have read the material provided to the Tribunal by the Department, including the findings of the RSA, the IMR and the ITOA and have listened to the applicant’s interview with the delegate. I have also considered the material the applicant’s provided to the Tribunal and the oral evidence of he and his wife at the hearing. Having carefully considered and weighed the evidence before me, I do not share the credibility concerns raised by the delegate.
I found the applicant to be entirely forthright in oral evidence to the Tribunal, his evidence was highly detailed and specific which indicates it is based on genuine events, and he did not exaggerate his claims even when do to so would have been to his benefit. While some aspects of his claims, including this escape from the Basij, may sound fantastical they were not implausible. Moreover, much of his evidence is supported by independent material including medical reports and country information. I also found the evidence from Ms LT to be persuasive, particularly in relation to the applicant’s ongoing psychological trauma, and his religious convictions. To the extent there were delays in raising his claims at various stages of his interactions with the Department, or minor inconsistencies in his previous accounts, I find this is largely due to the nature of the questions put to him, a lack of trust in the Australian immigration authorities arising from his prior engagement with authorities in Iran, and his ongoing mental ill health and past trauma. I am not concerned by those matters. I find the applicant to be a credible witness.
Country of reference, ethnicity, area of return and s 36(3)
The applicant provided copies of Iranian identity documents supporting he was born in Ahvaz, Khuzestan province, in Iran. The Australian Department of Foreign Affairs (DFAT) reports that the majority of the two million Arabs living resided in Khuzestan province, bordering Iraq.[4] I accept that he is a national of Iran and that he is an Ahvaz Arab.
[4] Australian Department of Foreign Affairs and Trade (DFAT), ‘Country Information Report Iran’, July 2023 (DFAT Iran Report) at [2.48].
In Iran, the applicant has only ever resided in Ahvaz. His parents are deceased, but his siblings still reside there. I find this is the area to which he would return.
There is no evidence before me to indicate that the applicant as a right to enter and reside in any country apart from Iran and I am not satisfied that he does. I find that s 36(3) does not apply.
Refugee Assessment.
The applicant claimed he was of interest to the Iranian authorities due to his past political activism in support of Avhaz Arabas. Available information states that Arabs from Ahvaz have historically been subject to societal mistreatment including denial of access to employment, housing, and services.[5] There was significant unrest in Khuzestan Province between 2005 and 2006, resulting in increasing control by security forces.[6] Since that time, Arab cultural and political organisations were subject to frequent harassment, and members were sentenced to imprisonment and even death.[7] Of those arrested, interrogated and detained during that period, there were numerous reports of physical violence and psychological abuse perpetrated by the authorities, including to extract confessions.[8] Relevantly, the NLMA, of which the applicant claimed to be a member, is a non-violent group who support a separate and independent Ahvaz state.[9]
[5] DFAT, ‘Country Information Report Iran’, 29 November 2013, (DFAT 2013 Report) at [3.11].
[6] Iran Human Rights Documentation Centre, ‘A Framework of Violence: Repression of the Arab Ethnic Minority in the Islamic Republic of Iran’, 25 September 2014, page 13;and DFAT 2013 Report.
[7] Iran Human Rights Documentation Centre, ‘A Framework of Violence: Repression of the Arab Ethnic Minority in the Islamic Republic of Iran’, 25 September 2014, page 13; and DFAT 2013 Report.
[8] Iran Human Rights Documentation Centre, ‘A Framework of Violence: Repression of the Arab Ethnic Minority in the Islamic Republic of Iran’, 25 September 2014, page 13.
[9] UKHO, 'Country Policy and Information Note - Iran: Ahwazis and Ahwazi political groups', 9 June 2018 (UKHO Ahwazis and Ahwazi political groups Report), page 23; Wikipedia, National Liberation Movement of Ahwaz’, last updated 31 October 2024’ and NAOA - National Assembly of Ahwaz, wwww.ahwaz-parliament.com accessed 26 November 2024.
There is very little independent information regarding the activities of Ahvazi activists in the relevant period.[10] However, the applicant’s evidence regarding his activism was detailed. He was able to plausibly explain his reasons for joining the movement which was consistent with the country information above regarding the treatment of Ahvaz Arabs in Iran. He also explained how he found and made initial contact with the organisation, his activities (including described where and what time of day he undertook those activities), and how he received instructions for those activities. His evidence regarding the arrest, detention, and mistreatment of he and his first wife is also entirely consistent with available independent information. Moreover, his evidence is also supported by medical reports from qualified professionals who consider his anxiety, depression and PTSD were consistent with his claims of past torture. I also note that during his time in Christmas Island, he was treated for a medical condition consistent with the injuries he claimed to have sustained during mistreatment whilst in detention in Iran. I also give some weight to the letter from the NLMA supporting his claimed activities. The letter has the logo and seal of the organisation, the correct contact information in the letterhead, and on its face, there is no reason to doubt its authenticity.
[10] UKHO Ahwazis and Ahwazi political groups Report, which notes that not a lot is known about their activities.

On the totality of the evidence, I accept that the applicant undertook the claimed political activities. I accept he and his then wife were detained and tortured by Iranian authorities, and that upon his release he was informed of her death. I accept this prompted him to continue his activities against the regime in support of the Ahvazi Arab cause. I accept that the applicant, along with several other members of his group, joined the Basij under an assumed names to obtain information. I also accept he formed a relationship with the daughter of a commander and his activities were ultimately discovered. I accept he was arrested and escaped while being transported to the police station and was able to leave Iran in the manner detailed at hearing. I accept he would be known to authorities on return for his political activism.
In Iran, only ‘ethnic’ Christians (Armenians, Assyrians, and Chaldeans) and those who ‘can prove [that] they or their families were Christian before Iran’s 1979 Islamic Revolution’ are recognised by the state.[11] This is consistent with the applicant’s evidence that he first learned about Christianity through his Armenian classmates, and his oral evidence regarding his encounters was detailed and indicative of lived experience. I accept he was introduced to Christianity at that time. On his evidence, I also accept that when his classmates moved, he did not pursue the faith further in Iran. I accept he did not consider himself to be Muslim.
[11] United Kingdom Home Office (UKHO), ‘Country Policy and Information Note - Iran: Christians and Christian converts', 28 September 2022, (UKHO 2022 Report) page 12.
The applicant’s narrative about adopting the Christian faith in Australia was highly detailed and very plausible. He was able to describe the reasons for choosing the Christian faith and detailed the extensive studies and test required before he was able to be baptised. His conversion is also supported by statements from the Reverend from his Church in Western Australia confirming he is a long standing and active member of the Church; statements from two different elders of the church stating that they know the applicant as an active member of the church; the attestation of baptism confirming he was baptised in October 2016; the letter from the current Church confirming the applicant’s family are members of the congregation; baptism certificates for the applicant’s children with Ms LT; and the oral evidence of Ms LT.
The delegate was not satisfied that the applicant’s conversion was genuine, however, I find that the evidence suggests otherwise. I find that the evidence indicates the applicant’s conversion to Christianity was a considered decision and that he was only baptised after at least two years of regular intensive bible study. This demonstrates a commitment to adopting the faith. I find that since his 2016 baptism he has been an active member of the church, that his children are being raised in the faith, and that Christianity is an integral part of his daily life and mindset. I find that he is a genuine convert to Christianity and that he would follow and practise this faith on return to Iran.
Having regard to the reports before me, I also accept the applicant has PTSD, anxiety and depression.
Country information.[12]
[12] Some country information cited herein has been taken from previous Tribunal decisions ART 1913736 (uplublished), and AAT 2014529 (unplublished), but is equally relevant to this matter.
Approximately 99 per cent of Iranians are Muslim, and the Constitution states that all laws and regulations must be based on ‘Islamic criteria’ and an official interpretation of sharia.[13] Apostacy is illegal under Sharia Law and is punishable by death.[14] Moreover, the offences of ‘enmity against god’ (mohabebeh) and ‘insulting the Prophet’ (sabb al-nabi), which are codified, can include apostacy and these offences are punishable by death.[15] Those accused of blasphemy are also charged with ‘spreading corruption on earth’ (fisad fil-arz or efsad-e fel arz) or other crimes, also punishable by lashes or the death penalty.[16] The penal code outlines several ‘offenses that violate religious sensibilities’ which are punishable by up to three years imprisonment or a fine.[17] Recent amendments to the Penal Code widened the scope for prosecuting Christians, especially converts from Islam, who are now covered by provisions related to the activities of sects.[18]
[13] 'United States Department of States (USDOS), ‘2023 Report on International Religious Freedom- Iran’, 26 June 2024, (USDOS Religious Freedom Report) pages 1 and 7; DFAT Iran Report at [2.62]; and UKHO 2022 Report page 12.
[14] UDSOS Religious Freedom Report page 9; DFAT Iran Report at [2.63]
[15] USDOS Religious Freedom Report, pages 1 and 7; DFAT Iran Report at [2.65].
[16] UDSOS Religious Freedom Report page 7.
[17] UDSOS Religious Freedom Report page 7.
[18] UKHO 2022 Report page 14.
Human Rights Watch and Amnesty International state that Iran remains one of the world’s top practitioners of the death penalty, including for crimes related to mohabebeh. sabb al-nabi and fisad fil-arz or efsad-e fel arz. [19] There were 354 executions in Iran during the first half of 2023, 10 of which pertained to political, security related charges and/or religious charges.[20] The recent report of the United States Commission on International Religious Freedom (USCIRF) states that between June and July, security forces arrested at least 69 Christians across 11 cities.[21] DFAT advises that former Muslims who convert to Christianity overseas and who intend to practise their Christian religion on return face high levels of societal and official discrimination and could be subject to the death penalty or imprisonment. [22]
[19] Human Rights Watch (HRW), 'Human Rights Watch World Report 2024', 11 January 2024, (HRW 2024 Report), pages 310-317.
[20] HRW 2024 Report, pages 310-317; and Amnesty International, 'State of the Worlds Human Rights 2024- Iran' 23 April 2024, Amnesty International report) pages 201-206.
[21] United States Commission on International Religious Freedom (USCIRF), 'United States Commission on International Religious Freedom 2024 Annual Report', 1 May 2024 (USCIRF Report), pages 32-33.
[22] DFAT Iran Report at [2.86] – [2.88].
Protestant and Pentecostal Churches, such as those attended by the applicant, are illegal in Iran fall into the category of ‘unrecognised’ churches.[23] Iranian Christians who are not members of recognised churches generally practise in underground ‘house churches’, which authorities consider to be a threat to national security.[24] Iranian authorities periodically carry out raids against house churches, focusing particularly on those who proselytise. According to DFAT, some sources indicate the authorities do not actively seek out house churches and that raids generally arise from tips offs from community members. In contrast, other sources state that the authorities actively pursue these churches, sending people to pose as converts and infiltrate the church.[25]
[23] DFAT Iran Report at [2.80].
[24] DFAT Iran Report at [2.85].
[25] DFAT Iran Report at [2.85].
In terms of political opinion, the constitution protects freedom of belief, association, and assembly, providing they are not ‘detrimental to the principles of Islam’.[26] The United Nations Report of the independent international fact-finding mission on the Islamic Republic of Iran noted a widespread pattern of security forces arbitrarily arresting or detaining protesters for a range of protected conduct.[27] As of August 2024 four women, an aid worker, a labour activist, a protestor and a political campaigner, were charged with ‘armed rebellion against the state’, two of whom received death sentences.[28]
[26] DFAT Iran Report at [2.103]
[27] 'Report of the independent international fact-finding mission on the Islamic Republic of Iran', United Nations Human Rights Council, 2 February 2024 (UN 2024 Report), page 6.
[28] Kian Sharifi and Diako Alavi, ‘Rising Number Of Iranian Women Sentenced To Death Amid Surge In Executions’, 29 August 2024.
DFAT confirms that protests in general can be met with lethal force.[29] The USDOS stated that political dissidents are charged with vague crimes including: ‘anti-revolutionary behaviour’; ‘corruption on earth’; ‘siding with global arrogance’; ‘waging war against God’; and ‘crimes against Islam, ’ and that prosecutors sought strict penalties against government critics for minor violations.[30] DFAT advises that subjects considered to be politically sensitive and which remain of interest to the authorities include: women’s rights; criticism of the regime; and relations with the United States.[31] The USDOS states that those associated with militant Ahwazi groups are likely to be at real risk of serious harm or persecution on return, but even those involved in non-violent activities can be perceived as political and anti-government.[32] DFAT also states that the volunteer paramilitary force, the Basij, have been involved in torture, forced disappearance and violence against protesters in the recent past.[33]
[29] DFAT Iran Report at [2.105].
[30] USDOS 2024 Iran Report page 19-20.
[31] DFAT Iran Report at [2.103].
[32] UKHO Ahwazis and Ahwazi political groups Report page 8.
[33] DFAT Iran Report at [2.190].
Recently, the death of Mahsa Amini following her arrest for violation of hijab laws, resulted in widespread protests across Iran. Sources indicate that as of 10 January 2023 around 20,000 people had been arrested for participation in these protests.[34] DFAT noted that 400 protesters had been sentenced to jail, 160 of whom were sentenced to between five and 10 years in prison, 80 sentenced to two to five years, and 160 people to up to two years. Trials occurred quickly, in secret, and without legal representation.[35] The USDOS stated in 2024 that about 22,000 persons detained in connection with these protests, were released from prison in February as part of a general amnesty. [36] However, they were forced to sign confessions of guilt and provide assurances not to engage in future protests and man were later rearrested.
[34] DFAT Iran Report at [2.109].
[35] DFAT Iran Report at [2.109].
[36]USDOS 2024 Iran Report, page 1.
The authorities executed nine people in connection with the above protests: of the six executions that took place in 2023, five were executed on charges of either moharebeh or ‘fisad fil-arz.[37] The Revolutionary Courts have jurisdiction over these charges, and Amnesty International has noted concerns over the lack of impartiality and independence of these courts, as well as systematic violations of the principles of a fair trial throughout their proceedings.[38]
[37] Amnesty International, "Don't let them kill us": Iran's relentless execution crisis since the 2022 uprising’, 4 April 2024 (AI 2024 Don’t Let them Kill Us Report).
[38] Amnesty International, "Don't let them kill us": Iran's relentless execution crisis since the 2022 uprising’, 4 April 2024 (AI 2024 Don’t Let them Kill Us Report).
The USDOS advises that the Iranian government restricted and disrupted access to the internet and censored online content and cited reports that the government monitored private online communications.[39] Other sources stated that the Iranian authorities will ‘hack’ for information on a ‘mid-rank’ activist and will monitor ‘an ordinary Iranian’.[40] The UKHO states that is not realistic to assume that internet searches will not be carried out until a person’s arrival in Iran, and that applicants for temporary entry visas into Iran, provide an obvious pool of people in respect of whom basic searches (such as open internet searches) are likely to be carried out.[41]
[39] USDOS 2024 Iran Report page 42-43.
[40] A report from the IRBC, as cited in the UKHO at [6.4.6]
[41] UKHO 2022 Report at page 11.
DFAT states that those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are traveling on a laissez-passer. [42] The UKHO indicates that anti-regime political activity conducted overseas may also be identified on arrival in Iran, stating:
‘Iranians returning to Iran are screened on arrival. A returnee who meets the profile of an activist may be detained while searches of documentation are made. Students, particularly those who have known political profiles are likely to be questioned as well as those who have exited illegally…[43]
The IRBC also states that upon their return to Iran, citizens whose activities abroad have been monitored by authorities are questioned on arrival at the airport.[44]
[42] DFAT Iran Report at [2.203].
[43] UKHO 2022 Report at [2.4.11].
[44] IRBC: “Iran: Monitoring of Iranian citizens outside of Iran, including political opponents and Christians, by Iranian authorities; monitoring of Iranian citizens in Canada; consequences upon return to Iran (2021–March 2023) [IRN201321.E]”, Document #2090343 - ecoi.net, at [2].
Relevantly, information supports that security agencies, and prison officials, are known to utilise torture, physical and sexual assault, and psychological mistreatment, in the process of questioning individuals, as well as during periods of detention.[45] Both DFAT and the USDOS report that torture and other mistreatment is routinely employed as a means of extracting information, including in pre-trial detention.[46] The USDOS stated as follows in their most recent 2024 report:
… the use of physical and mental torture to coerce confessions was prevalent, especially during pretrial detention, including in cases of detained protesters, and there were reports that security forces and prison personnel tortured and abused detainees and prisoners throughout the year. NGOs and international media reported numerous instances of security forces and prison personnel torturing, beating, or raping individuals in detention throughout the year.[47]
Several prison facilities are noted by human rights agencies for the cruel and prolonged torture of political opponents, including Evin Prison in Tehran and Qarchak Prison, among others.[48] DFAT advises that political prisoners are at a greater risk of torture than others.[49]
Consideration of future harm
[45] USDOS 2024 Report page 1,8- 9, 41, 63, 75; DFAT 2023 Iran Report at [2.176]- [2.179].
[46] DFAT Iran Report at [2.177]; USDOS 2024 Report page 1,8- 9, 41, 63, 75.
[47] USDOS 2024 Report page 8.
[48] USDOS 2024 Iran Report, page 9.
[49] DFAT Iran Report at [2.178].
I have accepted that at the time he departed Iran the applicant was of interest to the authorities for his political activism in support of Ahvaz Arabs. I find that on return the applicant will be questioned at the airport and that, if they are not already known, his past activities will become known at that time. I also consider there is a real chance that his Christian conversion will become known as part of questioning over his activities, marriage and life in Australia. I give weight to information above that those interrogated and detained by Iranian authorities are routinely subject to mistreatment during that process, and to information from DFAT that Muslims found to have converted to Christianity overseas face sanctions including imprisonment and/or the death penalty. I find there is a real chance that the applicant faces significant physical ill-treatment and harassment during the process of questioning, and that he faces a real chance of prosecution, detention and/or the death penalty on return to Iran now or in the reasonably foreseeable future.
Even if the applicant is not discovered on arrival into Iran, I find that there is a real chance he will subsequently come to the adverse attention of the authorities., I find there is a real chance that he will continue to practice his faith and in doing so would try to find a house church on return. Irrespective of whether it arises through the covert actions of Iranian authorities, or community reporting, noting that raids of house churches occur and that there have been several recent arrests of Christians in Iran, I find there is a real chance that he faces arrest and questioning over his conversion. I also find that his prior political activism would become known during that process, further exacerbating his chance of harm. On the above country information, I find the applicant faces mistreatment amounting to serious harm during any questioning and that he faces a real chance of being prosecuted, imprisoned, and/or receiving the death penalty.
I find that the applicant faces a real chance of serious harm on return to Iran now or in the reasonably foreseeable future for the essential and significant reasons of his religion and political opinion. I find that this treatment amounts to systematic and discriminatory conduct.
The applicant fears harm from the Iranian authorities and security agencies, and as such I find that effective protection measures are not available to him in Iran, and that the real chance of harm arises throughout the country.
The persecution relates to his religious conduct and political beliefs. I find that it is not reasonable for him to modify his behaviour, as to do so requires him to alter or conceal his true political and religious beliefs and alter an immutable characteristic (being his past activities). These are impermissible modifications for s 5J(3), and I find this provision does not apply in this case.
To the extent that applicant one fears harm for reasons of his conversion to the Christian faith, I find that this was a genuine religious conversion and was done otherwise than for purpose of strengthening the applicant’s claims to be a refugee. I am not required to disregard this conduct for s 5J(6) of the Act and do not do so.
On the totality of the claims and evidence before me, I find the applicant has a well-founded fear of persecution.
The applicant meets the requirements of the definition of refugee in s.5H(1).
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date/s of hearing:   25 October 2024
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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