1909407 (Refugee)

1909407 (Refugee) [2023] AATA 3428 (31 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Roya Majd (MARN: 0701239)
CASE NUMBER:  1909407
COUNTRY OF REFERENCE:                   Iran
MEMBER:James Lambie
DATE:31 July 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 31 July 2023 at 4:37pm
CATCHWORDS
REFUGEE – protection visa – Iran – religion – non-practicing Muslim punished during military service and unable to obtain work – conversion to Christianity soon after arriving in Australia – attendance, activities and study disrupted by COVID and medical conditions – doubt as to genuineness – fluent and cohesive evidence – credible familiarity with church teachings and practices – extensive statutory declarations, supporting statements and oral evidence from partner, church leaders and friends – activities otherwise than for purpose of strengthening claim – country information – high level of official discrimination and real chance of serious harm – possible denunciation by former wife and family – ethnicity – late claim as Ahwazi Arab – no claim of past harm or political activity – returned failed asylum seeker – previous unsuccessful visa applications made for applicant by father-in-law – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), (6), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Iran, applied for the visa on 3 August 2018. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia has protection obligations.
The applicant appeared before the Tribunal on 13 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], [Mr B], [Mr C], [Mr D], [Ms E]. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages, and an interpreter in the [Language] and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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 meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
The applicant is a [Age]-year-old national of Iran.
The applicant and his wife lodged a subclass 676 tourist visa application on 5 January 2012 which was refused. On 4 September 2012, the applicant and his wife lodged a subclass 679 sponsored family visitor visa which was also refused. On 16 January 2014, a subclass 600 visitor visa application for the applicant, his wife and their child (born [Year]) was also refused. A further application for a visitor visa was refused on 20 May 2015. This refusal was remitted by the MRT on 15 September 2015. Their final application for a subclass 600 visitor visa was granted on 20 April 2018.
The applicant, accompanied by his wife and their child, first arrived in Australia [in] May 2018. He has remained onshore since.
The applicant applied for a protection visa on 3 August 2018. The application was refused by a delegate of the Minister for Home Affairs in a decision made on 26 March 2019.
The applicant applied for merits review of the delegate’s decision on 16 April 2019.
The applicant and his wife separated in about September 2019.
Claims
The applicant’s claims are summarised in his protection visa application form and the delegate’s decision.
The applicant claims that he was born in a non-practising Muslim family. He claims that, as a result, he never learned Islamic rituals and came to hate the rituals imposed by his school to the extent that he left school in [Year].
The applicant claims that he was conscripted for military service in [Year] and was punished for non-adherence to compulsory Islamic ritual observance. He claims that he completed his military service in [Year] but that, due to his lack of government or religious affiliation, he could not obtain work.
The applicant claims that he got married in [Year] and was able to start working for his father-in-law as [an Occupation]. He claims that, shortly after his marriage, his in-laws decided to emigrate to Australia to escape their own “issues” in Iran. He claims that, as a result, the [business] closed down and that he later opened his own [business]. He claims that his agency was closed down for a period of three months when he was discovered eating during Ramadan.
The applicant claims that his in-laws in Australia invited him and his wife to come and visit for three months and that, at the time, he had no intention of living permanently in Australia. He claims that, early into his visit, he and his wife were introduced to friends of his father-in-law, who were Christians. He accepted their invitation to attend their church, the pastor of which had converted from Islam to Christianity. He claims that he converted to Christianity and wishes to continue a Christian life in Australia, as part of a Christian community.
The applicant claims that he would be subject to persecution, including the death penalty, as an apostate if he returned to Iran. He claims that Muslims in Iran believe they will receive heavenly rewards for killing non-Muslims and apostates.
The applicant claims that, as a convert to Christianity, there is nowhere in Iran he would be safe.
The applicant further claims that, as an Arab from Ahwaz, he is viewed as an enemy by the Iranian authorities and that the authorities would therefore believe any accusations made against him, including accusations of apostasy and proselytization made by his former wife’s family. He claims that he would be subject to the death penalty if he returned to Iran.
Evidence
The Tribunal has before it a range of material, including, relevantly:
·the applicant’s protection visa application form, which was lodged on 16 April 2019;
·the applicant’s identity documents, including copies of his Iranian passports (expired [2018] and [2023]), his birth certificate, his national identity card, his Iranian driver’s licence, his Iranian military service completion certificate, his Iranian marriage certificate, and his current Queensland driver’s licence;
·letter of support from [Mr A], [Church 1, Suburb 1], Queensland, dated 4 November 2018 (signature dated 6 October 2018);
·baptism certificate, [Church 1], dated 2 December 2018, with accompanying photographs;
·submissions from the applicant’s registered migration agent, dated 22 January 2019
·the protection visa decision record dated 26 March 2019 (delegate’s decision);
·the application for review form, which was lodged on 16 April 2019 and included a copy of the delegate’s decision;
·Department file [Reference] concerning the applicant’s protection visa application;
·the applicant’s statutory declaration, dated 24 January 2023;
·undated letter of support from [Mr F];
·letter from [Mr G]. Persian Pastor, [Church 2, Suburb 2], dated 17 January 2023;
·medical certificate from [Dr H], dated 20 January 2023;
·letter of support from [Mr I], dated 20 January 2023;
·letter from [Mr J], Minister, [Suburb 3 Church 3], dated 22 January 2022;
·Australian Taxation Office notice of assessment for year ended 30 June 2022;
·character reference from [Ms E], the applicant’s partner, dated 25 January 2023;
·statutory declaration of [Mr B], dated 12 June 2023;
·statutory declaration of [Mr K], dated 10 June 2023;
·submissions from the applicant’s representative, dated 12 July 2023;
·copy of protection order dated 10 October 2019;
·bundle of photographs;
·letter from [Mr L], [Church 2], dated 11 June 2023;
·letter from [Pastor A], [Church 4], dated 8 June 2023;
·letter from [Ms M], solicitor, dated 1 May 2023;
·medical certificate, [Dr N], dated 27 March 2023;
·medical certificate, [Dr O], dated 9 March 2023;
·medical certificate, [Health Services], dated 7 June 2023;
·appointment notification, [Health Services], dated 7 November 2022;
·statutory declaration of [Mr F], dated 10 June 2023;
·statutory declaration of [Mr D], dated 11 June 2023;
·statutory declaration of [Mr C], dated 10 June 2023;
·letter from [Mr J], [Suburb 3 Church 3], dated 11 June 2023;
·statutory declaration of [Mr I], dated 12 June 2023; and
·country information on Iran, referred to below.
Country of reference / receiving country
The applicant claims to be a citizen of Iran. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Iran is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing
The applicant appeared before the Tribunal on 30 January 2023 to give evidence and present arguments at a videoconference hearing.
The applicant was represented in relation to the review. His representative attended the hearing.
After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection Visa, the Tribunal discussed with the applicant that to be granted a Protection Visa he must either be recognised as a refugee or be a person entitled to Complementary Protection.
The Tribunal explained that under Australian law, to be a refugee he must have a well- founded fear of persecution in Iran. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Iran. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.
With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Iran.
The Tribunal discussed his claims as summarised in his protection visa application, written claims and the delegate’s decision. He confirmed that they were and that he did not need to change them.
The Tribunal heard first from [Ms E], with the assistance of an interpreter in the [Language] and English languages. [Ms E] told the Tribunal that she has known [the applicant] since late 2020 and has been his de facto partner since February 2021. She said that she comes from a Muslim family but that she has no religion herself. She told the Tribunal that [the applicant] told her he was a Christian when they met and that he had been attending church every week since about October 2022. She said he had not attended before that because of Covid lockdowns and some problems with his ears. She said that, recently, he had been attending church twice on Sundays: once in the morning and once in the afternoon, at different churches. She said that he has invited her to come with him but, so far, she has not done so. She has told him “one day” she would. She said that [the applicant] had told her that Christians are good people and that being Christian is good for your body and soul. She told the Tribunal that [the applicant] also attends gatherings with church friends at the park or at their homes and that he sees his friend, [Mr I], several times a month. She named his other church friends as [Mr C or D] and [Mr F]. She told the Tribunal that she and [the applicant] celebrate Christmas, although she does not join him in his religious observances. She said there were no special Easter celebrations at home.
The Tribunal heard from [the applicant]. He confirmed that, for the last few weeks, he had been attending Sunday morning services at [Suburb 3 Church 3] and also Sunday evening services from 5pm to 8pm at [Church 2, Suburb 2].
The Tribunal took [the applicant] to the statutory declaration of [Mr I]. He told the Tribunal that he met [Mr I] around Christmas 2019 at [Church 5] in [City]. He said that he had gone to Ipswich to retrieve some tools from a friend and had noticed a church “with a picture of a lady”. He said he had gone into the church and was warmly greeted by [Mr I]. He said that their conversation had given rise to a friendship that included regular discussions of a religious nature. He told the Tribunal that [Mr I]’s beliefs, as a Catholic, are a little bit different to what he has been taught at the churches he attends. He said that, due to the language differences, he was not sure he fully understood the differences that [Mr I] had tried to explain to him.
The Tribunal took [the applicant] to his statutory declaration of 24 January 2023. He told the Tribunal that his conversion to Christianity was sincere. He said he was introduced to the Persian church in [Suburb 1] by friends of his then father-in-law shortly after he and his former wife arrived in Australia. He said that he was warmly welcomed and that both he and his former wife were very receptive to the fellowship of the church. When asked, he provided a succinct and accurate narrative summary of the life and ministry of Jesus Christ, including relevant quotations from Biblical texts. He also quoted some texts that he said had found helpful in his spiritual journey and applicable to his personal circumstances. He was able to provide details, when asked, of certain Gospel accounts and sought to explain how the message of the New Testament was the fulfilment of the prophecies of the Old Testament. He was able to describe and explain the sacraments of baptism and holy communion as celebrated in the [Church 3] and similar protestant churches. [The applicant]’s evidence was fluent and cohesive.
The Tribunal heard from [Mr D]. [Mr D] is an assistant pastor (lay preacher) at [Church 2] and claims to have known [the applicant] since early 2019. The Tribunal took him to his statutory declaration of 11 June 2023. He told the Tribunal that he first met [the applicant] on a [work task] job. At the time, [the applicant] was attending the Persian church in [Suburb 1]. He told the Tribunal that, soon after, [the applicant] started attending [Church 2] and he learned that [the applicant] and his wife had separated. He said that he had attempted to contact her because her father was a friend of his, but he had not been successful. He said that he also did what he could for [the applicant]’s welfare: he had him to stay at his house for a brief period until he moved in with another church member, [Mr C], on a longer-term basis. [Mr D] told the Tribunal that [the applicant] regularly attended Sunday services at [Church 2] until the Covid lockdown started in about March 2020. Following this, he said, the church uploaded videos of its services and also conducted online bible studies on Wednesdays and Fridays. He said that he believed that [the applicant] participated in these. He told the Tribunal that, sometime in 2022, he became aware that [the applicant] was attending a different church. He said that, from about April or May 2023, [the applicant] had again been attending Sunday evening services at [Church 2]. He said that he believed [the applicant] was genuine in his Christian faith.
The Tribunal heard from [Mr B]. The Tribunal took him to his statutory declaration of 12 June 2023. He told the Tribunal that he was introduced to [the applicant] by his friend, [Mr P], in about March 2020. He said he remembered it because it was the start of the Covid lockdowns. He said that, when it became permissible for people to start visiting each other again, he had [the applicant] as a guest on a several occasions at his home. He said that [the applicant] had told him of his sadness at not being able to contact his son and, through their conversations, had invited him to attend the Farsi language services at [Suburb 3 Church 3]. He said that [the applicant] has attended the 9.30am Sunday services at this church regularly since October 2022. He said that he is a co-ordinator at this church and maintains a database recording attendances by members. He said that [the applicant] is an active participant in church services and community events organised by the church.

The Tribunal heard from [Pastor A]. [Pastor A] officiates at [Church 4] at [Suburb 4], and was formerly the pastor at [Church 1] at [Suburb 1]. It was at the [Suburb 1] church that [Pastor A] first met [the applicant] in June 2018 and it was he that performed the baptism of [the applicant] and his former wife in December 2018. He told the Tribunal that one his parishioners in [Suburb 1] by the name of [Mr Q] had invited them to the church and that he believed [Mr Q] was a friend of [the applicant]’s former father-in-law. He said that he had witnessed the disintegration of the marriage and that he had attempted to provide pastoral care or mediation to [the applicant] and that his wife had sought to speak to [the applicant]’s then wife. He said it was clear, however, that [the applicant]’s then wife was not interested in reconciliation. He said that, owing to the circumstances of the separation, [the applicant] could not continue to attend the [Suburb 1] church. He said that he believed that [the applicant] was genuine in his faith and that he continued to maintain it under the guidance of a different church from about April 2019.
The Tribunal heard from [Mr C]. The Tribunal took [Mr C] to his statutory declaration of 10 June 2023. He told the Tribunal that he met [the applicant] in about May 2019, when a friend of his at [Church 2] [Mr D], asked if he could provide temporary accommodation to [the applicant] who was experiencing family and financial difficulties. He said that, at the time, he was also recently separated and that he and [the applicant] bonded over their shared experiences and through attending services and bible study at [Church 2]. He said that [the applicant] lived with him until 2020. He said that he is convinced that [the applicant] is genuine in his Christian belief.
Country information
The Tribunal has had regard to the following country information relevant to the applicant’s claims.
The Department of Foreign Affairs and Trade’s latest county information report on Iran[1] reports the following on Christians, non-practising Muslims and atheists, apostasy, and Arab ethnicity:
[1] Department of Foreign Affairs and Trade, DFAT Country Information Report: Iran (24 July 2023)
Christians
There are a small number of recognised Christians in Iran: 117,700 according to government figures quoted in the US Department of State’s 2021 Religious Freedom Report, and up to a million according to Christian groups. The majority of Christians are ethnic Armenian and Assyrian. Chaldean and Roman Catholic communities also exist in small numbers.
Protestant (including Evangelical) and Pentecostal churches, which some asylum seekers join while they are in Western countries like Australia, are not legal. Conversions that took place after 1979 or conversions that take place outside Iran are not recognised by the government. A person who claims to be Christian, however cannot prove that their family was Christian before 1979, would be considered Muslim by the government and thus subject to apostasy laws.
The activities of recognised Christian communities are closely regulated, to guard against proselytisation. Recognised Christian groups refuse to proselytise as a result, and in-country sources told DFAT this resolve is tested regularly by authorities. All Christians and Christian churches must be registered with the authorities, and only recognised Christians can attend church. Security officials closely monitor registered churches to verify that services are not conducted in Farsi (they must be performed in the traditional language of the Church and not the vernacular) and perform regular identity checks on worshippers to confirm that non Christians or converts do not participate in services. Churches that do not comply face closure.
Community leaders associated with registered churches report authorities respect their religious rights, and their communities can act freely in their own spaces without government interference (including holding mixed-gender gatherings, using alcohol for ceremonial purposes and allowing women to uncover their heads). However, in-country sources report that the government restricts their community members from senior management roles in public and private organisations due to an Iranian law that prohibits non-Muslims from holding positions of authority over Muslims. This means that the heads of Christian schools Shi'a Muslims appointed by the government.
Iranian Christians who are not members of recognised churches generally practise in underground ‘house churches’. House churches are usually Evangelical Protestant and are found throughout the country, but especially in more affluent and cosmopolitan areas. Numbers of house church adherents are not known because these churches are secret and illegal. The Joshua Project, an Evangelical ministry from the United States that publishes information for missionaries, estimates 0.52 per cent of the population is Evangelical Christian. In 2019, UN Special Rapporteur Rehman estimated that there were between 300,000 and 350,000 Muslim converts to Christianity. In-country sources told DFAT in 2019 that the number of underground Christians was growing, and Christians may travel to Turkey (with which Iran has visa-free arrangements) to be baptised then continue to practise their religion in secret. Reasons for conversion vary, but local sources told DFAT that it may be an earnest desire to explore their own spirituality, or it may be a subtle form of protest against the government. DFAT has been unable to source more recent figures on Christian conversions.
House churches vary in size, style and structure. Most are small and informal, and consist of close family and friends gathering on a regular or semi regular basis to pray, worship, read the Bible and/or watch Farsi Christian television programs broadcast via satellite or discs smuggled from abroad. Foreign Christian missionaries, to which asylum seekers may have links, may participate in Iranian Christianity through house ‘internet pastors’ who preach and conduct services remotely via the internet. Local Christian leaders and adherents may be foreign trained while overseas.
Authorities interpret the growth in house churches as a threat to national security and periodically carry out raids against them. Congregants regularly change houses to avoid detection. Raids focus particularly on house churches that actively proselytise or seek out new members. Sources told DFAT authorities do not actively look for house churches. Rather, raids – where they occur – are usually the result of tip-offs by Muslim neighbours. Other sources say the government sends people posing as converts to infiltrate house churches.
Prison or the death penalty are possible outcomes for Christians meeting in house churches, both leaders and everyday adherents. DFAT understands that while not a common punishment, prison or the death penalty for apostasy is possible. Years or even decades-long prison sentences are also possible. Changes were made to the Islamic Penal Code in February 2021 that mean that those guilty of ‘deviant psychological manipulation’ or ‘propaganda contrary to Islam’ could be found to be members of a ‘sect’, which can lead to imprisonment, fines, flogging or the death penalty. According to international or media reports, three Christians in the city of Karaj, near Tehran, were sentenced to total of nine years in prison under the new offences in August 2021.
In-country sources told DFAT that returnees who have not had a profile previously (for example through political activism in country) are unlikely to come to attention of authorities if they keep a low profile, and that this is not affected by social media posts about their conversion that they may have made while they were in a Western country like Australia.
DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed. Christians found to be proselytising face a high risk of arrest, prosecution and imprisonment. DFAT assesses Christian converts face a high risk of societal discrimination in the event their conversion becomes widely known, particularly if they are from more religiously-minded Muslim family backgrounds. This may involve ostracism from one’s family and discrimination in employment. DFAT further assesses that, while their congregations are monitored and they are subject to restrictions, Christians from recognised churches are permitted to practise their faith. DFAT assesses that, except for their exclusion from senior government, military, intelligence and judicial positions, recognised Christians who do not engage in proselytisation activities face a low risk of official discrimination. DFAT assesses that those who convert while outside of Iran and who intend to continue to practise their Christian religion would face a high level of official discrimination and could be subject to the death penalty[2].
[2] Ibid, pp 20-21
Non-practising Muslims and atheists
In-country sources told DFAT many younger and wealthier Iranians, particularly in the major cities, are secular; a majority of the population does not attend mosque. Alcohol consumption is common among the youth. Official sources told DFAT that, despite government laws, religion was a private matter —beyond the expectation that people do not eat in public during the Muslim holy month of Ramadan or hold parties during the mourning months of Muharram and Safar - how one wished to observe Islam was an individual choice and was not a matter for the state. DFAT understands many Iranians do not observe Ramadan strictly, including by eating, drinking liquids and smoking at home. Most restaurants are closed during the day in Ramadan, although many (especially in Tehran) reportedly serve food discreetly. Those caught eating in public during Ramadan run the risk of arrest and prosecution.
A 2020 study from Utrecht and Tilburg Universities found that atheism was quite common; about 20 per cent of people do not believe in God. The study itself points to Iranians being uncomfortable speaking about religion; discussions about it are not tolerated in Iranian society. Figures about the number of atheists in Iran are, therefore, difficult to verify.
Those who publicly renounce Islam face apostasy charges (see Atheists). According to local sources, atheists are discreet about their non-belief beyond their close family and friends. Unless they widely publicise their non-belief, atheists are unlikely to come to the attention of the authorities. Atheists from conservative families might face familial pressure and potential ostracism if their atheism were revealed, however would generally not be subjected to physical harm. Sources told DFAT that atheists from more liberal families and parts of the country, like north Tehran, would face no such pressure.
DFAT assesses that non-practising Iranian Muslims face a low risk of official and societal discrimination, particularly in the major cities. DFAT assesses that atheists who are open about their non-belief face a moderate level of official and societal discrimination[3].
Arabs
According to Minority Rights Group International, there are around two million Arabs living in Iran, although estimates vary. Most ethnic Arabs live along the west of the Persian Gulf coast in Khuzestan province, bordering Iraq. The capital of Khuzestan province is Ahvaz and Arab Iranians may be referred to as ‘Ahvazis’. In-country sources told DFAT Arab cultural activities, clothing styles and language are tolerated by authorities across Iran. Although most Arabs are Shi’a, some are Sunni, or have converted to Sunni Islam, however DFAT understands such conversions are not widespread.
Khuzestan is oil-rich; however the region is underdeveloped, which is a source of tension between Arabs and the Iranian Government occasionally leading to protests. Protests in 2021 led to mass arrests and at least nine deaths of what Human Rights Watch alleges were peaceful protesters who demanded greater access to water in the midst of an historic drought. (See Protests)
In October 2018, the authorities launched a major security sweep in Khuzestan Province following a deadly terrorist attack on a military parade in Ahwaz which killed 29 people. Freedom House claims up to 800 people were arrested in relation to the attack, some of whom were reportedly executed. DFAT is unable to verify these claims. DFAT understands some of those arrested were subsequently released.
DFAT understands most Iranian Arabs do not harbour strong separatist tendencies. For example, the 2021 protests in the region involved other ethnic groups in Khuzestan. Nonetheless, some separatist groups do exist, and such groups were blamed for the 2018 terrorist attack. The government maintains a strong security presence to oppose separatism. Arabs who hold separatist tendencies would face a high risk of arrest and imprisonment.
DFAT assesses that Arabs are not specifically targeted for official discrimination based on their ethnicity, including access to government services, and are afforded the same state protections as other ethnic minorities. However, since the September 2018 terrorist attack, closer scrutiny has been applied to Arabs and Arabs who are politically engaged are likely to be watched closely (see Political Opinion (Actual or Imputed)). Furthermore, Arabs were among Iran’s ethnic minorities who joined protests following the death of Mahsa Jina Amini. DFAT assesses that those who advocate for greater rights and autonomy, or self-determination face a high risk of official harassment, monitoring, imprisonment and mistreatment.[4]
[3] Ibid, p 23
[4] Ibid, p 16
Assessment of claims and evidence, and findings
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, and Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which notes:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[5]
[5] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf
However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[6]
[6] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
Immigration history
Departmental records indicate that the applicant’ father-in-law had carriage of the numerous unsuccessful visitor visa applications while the applicant was in Iran. The delegate accepted that the applicant was not aware of the particulars of these applications. The applicant’s evidence to the Tribunal was consistent in this respect and it is accepted that the applicant only personally applied for one of the visitor visas.
Arab ethnicity
In his statutory declaration of 24 January 2023, the applicant stated:
I fear the Iranian authorities and the Iranian religious people like the Basijies. Because I am an Arab from Ahvaz, I am already viewed as an enemy of the Iranian authorities.
The applicant did not raise this claim in his protection visa application and did not mention it in any of the submissions to the Department. He has made no claim to the Tribunal of suffering any persecution, ill-treatment or discrimination by reason of his Arab ethnicity.
The applicant has not made any claims or provided any detail that might elevate his risk profile in terms of the country information above. There is no evidence to suggest, for example, that he has been politically active in issues relevant to Khuzestan Province or that he has advocated for greater rights or autonomy, or self-determination for the region or for those of Arab ethnicity more widely. Accordingly, the Tribunal cannot be satisfied that there is a real chance that the applicant would suffer persecution by reason of his Arab ethnicity.
Conversion to Christianity
[The applicant] submitted extensive evidence relating to his claimed conversion to Christianity. The Tribunal expressed a measure of doubt as to whether the claimed conversion was genuine, given the immediacy with which it occurred following [the applicant]’s arrival in Australia on a visitor visa in May 2018 (the protection visa application being lodged in August 2018) in circumstances in which [the applicant] had expressed no interest in religion in general, or in Christianity in particular, until that time. However, the Tribunal must accept that religious faith is a highly personal matter and that the reasons and motivations for conversion can be necessarily complex and perhaps opaque to a decision-maker. The Tribunal, therefore, does not suggest, in view of the evidence provided, that the sur place nature of the claimed conversion should be disregarded for the purposes of s. 5J(6).

At the hearing, the applicant demonstrated a credible familiarity with the texts, doctrines and practices of Christianity. He also described the assistance he derived from the teachings of the Church, and from his fellowship with other members of the churches he has attended, in dealing with his day-to-day problems and the more serious problems attendant on his domestic history. In this, he was supported by the written and oral evidence of his current and former church leaders and members of the congregations to which has belonged. These claims are supported by the internal records of the churches concerned. [The applicant] has provided medical evidence in support of his claims relating to the period in which there is no record of church attendance, the reasons for which were also adverted to by the witnesses, and the Tribunal makes no adverse finding in that regard. In view of all of the evidence, and in the absence of any evidence to the contrary, the Tribunal accepts that [the applicant]’s claims to have converted to Christianity are genuine.
[The applicant], in his statutory declaration, claimed that in the bitter circumstances of the breakdown of the marriage, the family of his former wife has disseminated news of his conversion to Christianity to other family members in Iran. He says that the (perhaps understandable) hostility of this branch of the family towards him may result in him being denounced to the authorities on his return to Iran. Although there is no independent evidence of this, the Tribunal accepts that there is a plausible risk that this may occur.
Previous country information on Iran in relation to claimed conversions in foreign countries was to the effect 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. This includes individuals who publicise their conversion online while abroad. According to local sources, in 2017 an Iranian mother and her child who were baptised in Turkey were briefly detained on their return to Iran (they were carrying baptism certificates), but then released. DFAT understands such arrests are not common.[7]
[7] Department of Foreign Affairs and Trade, DFAT Country Information Report: Iran (14 April 2020), p 30
However, that report has been superseded. In view of the current country information quoted at paragraph 44 above, and in particular the assessment that:
… those who convert while outside of Iran and who intend to continue to practise their Christian religion would face a high level of official discrimination and could be subject to the death penalty[,]
the Tribunal, having accepted that the applicant’s conversion to Christianity is genuine and continuing, and that there is a plausible risk that his conversion may be made known to Iranian authorities, must accept that that there is a real chance that he will face serious harm if he returned to Iran by reason of his religion.
Having accepted the applicant’s claims in respect of his conversion to Christianity, it is not necessary to examine his subsidiary claims in respect of being a non-practising Muslim and/or a returned failed asylum seeker.
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 remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
James Lambie
Senior 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.
…

[2023] AATA 3428

31 July 2023

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