1909723 (Refugee)

1909723 (Refugee) [2022] AATA 466 (7 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1909723
COUNTRY OF REFERENCE:                   Iran
MEMBER:R. Skaros
DATE:7 February 2022
PLACE OF DECISION:  Sydney
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 07 February 2022 at 5:26pm
CATCHWORDS
REFUGEE – protection visa – Iran – religion – convert from Islam to Christianity – family not strictly religious – husband’s family strictly religious and connected to authorities – first arrived with husband, converted in Australia, divorced in home country and returned to Australia alone – church membership and activities in Australia – marriage to Australian citizen and pregnancy – harassment of immediate family by some extended family members and authorities – credibility – inconsistent or contrived claims and evidence, and questionable initial motives – regular church activities over time suggest genuine conversion – letters of support – country information – not reasonable to relocate or modify behaviour – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 5LA, 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
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 16 April 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 protection visa on 30 March 2018. She initially travelled to Australia with her former spouse in March 2015 as the holder of a [Student] visa. The applicant applied for and was granted a further student visa onshore, which was valid until 15 March 2019. The applicant departed Australia on 20 October 2017 and returned on 16 March 2018. She applied for protection on the basis of claims that she will be seriously harmed if she returns to Iran because of her conversion from Islam to Christianity.
The applicant attended an interview with an officer of the Department on 7 March 2019. The applicant’s evidence at the departmental interview was set out in the delegate’s decision record, a copy of which was provided to the Tribunal by the applicant.
The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 23 November 2021 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the English and Farsi languages; the Tribunal notes, however, that the applicant gave much of her evidence in English. The Tribunal also had the opportunity to take evidence from the applicant’s spouse, [Mr A], and the applicant’s brother, [Mr B], by telephone from Iraq.
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
SUMMARY OF CLAIMS AND EVIDENCE
Evidence before the Department
According to information on the visa application form, the applicant, who is [Age 1] years of age, was born in Rasht in the province of Gilan in Iran. She was issued with an Iranian passport [in] 2018, which is valid until [March] 2023. She indicated her relationship status as divorced. Her parents and older brother reside in Iran. She claimed that her religion is Christian and provided details of her education and employment in Iran and Australia.
The applicant stated that she left Iran to come to Australia to study. She is seeking protection as she cannot return to Iran due to family issues and religious activities. She claimed that she will be persecuted and that the Iranian authorities will not help or protect her and will also persecute her. She cannot relocate to another part of Iran as the authorities have control all over Iran. The applicant provided various identity documents, including a birth certificate, national identity card and Iranian passport.
Almost a year after lodging her application for the protection visa, the applicant provided a statement, dated 28 February 2018, in which she set out her claims for protection. The applicant stated that she was born into a Muslim family in Gilan, Iran. Her father worked as [an Occupation 1] at [Workplace 1]. Her mother was a housewife. She claimed that her mother was fired as [an Occupation 2] by the [Authority] during Iran’s revolution because she was against the Islamic republic government of Iran.
The applicant completed undergraduate studies in [Subject 1] at [University]. Her older brother lives and works in Iran. He completed a masters’ degree in [Subject 2]. She claimed that her parents were not strictly religious and that they had always stated their disagreement with the discriminations abundant in Islam, particularly against women. As she grew up, she gradually found that Islam was not the right religion for her. As a child she had to attend Islamic rituals by force, had to pray and had to fast at school. She stated that as she grew older, she could see there are no rights for women in Islam. Women had to wear a Hijab (head covering) so that men are not sexually tempted. Women are considered half that of men in almost all aspects. Men can have four wives. She claimed that the many shortcomings in Islam pushed her away from the religion, but she still believed in a good God that has created this beautiful world.
The applicant stated that, following her father’s retirement, they returned to Lahijan, her parents’ hometown. She was [Age 2] years of age at the time. There, she met her ex-husband ([Mr C]), who had a [shop] and was active in [Work sector]. The applicant claimed that [Mr C]’s family was highly religious and related to the regime. [Mr C]’s father used to be an employee of Iran’s [Government department 1] and later worked at [Workplace 2], which is related to Sepah Pasdaran (Islamic Revolutionary Guard Corps). She claimed that [Mr C]’s family were familiar with many important figures in the regime and the [Government department 2].
The applicant claimed that as the daughter-in-law of her ex-husband’s family, she was always under the control and supervision of her ex-father in-law, which made her feel uncomfortable. She stated that her ex-father in-law was the exact opposite of her own father in terms of character. She stated that [Mr C]’s father believed that women should be completely obedient, but she had not been raised in a family where she could accept illogical words blindly. She claimed that her ex-father-in-law was seriously domineering and considered women as weak creatures who must obey the orders of their husband as their rights are based on Islamic rules.
The applicant claimed that she did not have good relations with her ex-husband ([Mr C]) who suffered from mental problems. She stated that [Mr C] would hit himself whenever they had disagreements and seeing such reactions was painful for her. She decided to keep aloof from his family as she thought their perspective was the main reason for disagreements between her and her ex-husband, especially because they lived in the same apartment building.
The applicant stated that she always desired to live in a place where she could be respected as a woman regardless of any personal or religious beliefs, so she decided to travel overseas for education. She obtained a letter of offer from [University]. She and [Mr C] wanted to migrate, but [Mr C]’s father did not support this decision; however, after several arguments and discussions he finally agreed to them travelling to Australia.
The applicant claimed that after a short period in Australia, she realised that [Mr C]’s behaviour and perspective were becoming like those of his father, and he tried to strictly control and limit her actions. She was expected to obey him, otherwise he caused a huge fight over unimportant issues and this gradually distanced them. She and [Mr C] worked at [Workplace 3] at [Suburb 1]. It was there that she met her friend [Mr D], who was a Christian. She stated that [Mr D] had attended a Christian school in Sydney and always talked to her about Christianity. She claimed that [Mr D] had explained to her the differences between Christianity and other religions. Initially, she was a bit resistant as she thought Christianity was just another religion like Islam, which was full of lies. As time passed, she listened to [Mr D] more and was impressed to learn how Christianity is filled with peace. She claimed that she was influenced by [Mr D]’s logical words, which attracted her to Christianity more. She claimed that she tried to talk about the blessings of the religion with [Mr C] to encourage him to think about Christianity. She claimed that [Mr C] did not like to even talk about it, but she tried to convince him so that they could both go through this journey together. She stated that the disagreements between her and [Mr C] increased, and he did not trust her any longer. As a result of this suspicion and mistrust, he put listening devices in their home and in the car to record her voice. She claimed that she found out about the bugging devices later when she found that his father had a CD of her recorded voice.
The applicant stated that she and [Mr C] decided to travel to Iran [in] October 2017 so that the elders could intervene between them to reduce their disagreements, but things did not happen as expected and many of the most bitter events of her life occurred during that period. The applicant claimed that as soon as they arrived at the airport, [Mr C] took her passport by force, left her alone with her father and told her that she could no longer return to Australia. The applicant stated that she felt helpless and desperate thinking of how she could obtain her passport, how she could return to Australia and what would happen if she did not return to her workplace after her three-weeks’ leave. The applicant stated that when she finally returned to Australia, she found out that she had lost her job.
The applicant claimed that she was prohibited from leaving Iran as a result of [Mr C]’s father’s influence and power because, according to Islamic rules, a wife needs her husband’s permission to leave the country or home. She stated that the following day she decided to withdraw the claim for obtaining her marriage portion so that she could get the right to a divorce from [Mr C]. She stated that two weeks later she realised that he had left Iran, stayed in [Country 1] for a week with his mother and had returned to Australia and was living in Sydney.
The applicant claimed that she was worried and decided to apply for a divorce. She consulted several lawyers who advised her that she could not get a divorce based on the three-month divorce rules, as only a few weeks had passed. She was referred to one of the best lawyers in the city and was able to get the Court’s decision on her divorce. This allowed the applicant to leave Iran as she was no longer a married woman and did not need her husband’s permission to get a passport. The applicant stated that she applied for a new passport.
The applicant claimed that after her divorce, she heard rumours in the family that she cheated on her husband and converted to Christianity, but she never took them seriously as she knew that [Mr C]’s father was behind all the gossip and she simply prayed for guidance from God. She claimed that when she heard more and more rumours about her religion change and conversion to Christianity from people around her, she and her family became more concerned. She claimed that one day her father went to the [Workplace 2] where her ex-father-in-law used to work and asked him why he made up rumours about her even though she and [Mr C] were no longer husband and wife. She claimed that [Mr C]’s father mentioned to her father the CD of her recorded voice talking about Christianity with [Mr C], attempting to promote it and encouraging [Mr C] to change his religion. She claimed that [Mr C]’s father then played her voice to her father and threatened that he could punish her severely as an apostate and a non-Muslim.
The applicant claimed that when she applied to obtain her new passport, she was told that she could either wait for a while, as the previous passport had six months before expiration, or claim an urgent reason for travel to be able to receive a new passport. She stated that as she was a student at that time, she provided some documents from the university as proof that she should return to Australia urgently, but she was terrified of the threats of [Mr C]’s father because she knew that he was highly religious and had forced his own children to be religious like him.
The applicant stated that she wanted to leave Iran as early as possible. She felt scared and insecure and avoided going out alone. She provided all the necessary documents to the passport issuing office in Rasht. The manager of the office informed her that the passport would be issued two weeks later. Her passport was issued on [Date] 2018 and was posted to her home. She went to Tehran with her family as she felt more secure there. She purchased a ticket for [March] 2018 to return to Australia from Tehran via [Country 2]. Upon her return, she changed her passport number in her visa application through ImmiAccount.
The applicant claimed that on the day of her flight, a man called her father telling him that he has gone to their home, but no one opened the door. She claimed that the man had enquired about her from her father, but her father hung up and turned off his mobile phone. She stated that she was very scared. She claimed that her father called one of their neighbours using the telephone in her uncle’s home and they realised that apparently a few men went to their house, climbed up their front door and checked inside. She claimed that all of them were scared as they did not know what had happened. Her father encouraged them to remain calm and go to the airport as they still did not know where they were. She stated that because her father used to work at the airport, he called one of his colleagues who was still working there, and he kindly took her to the CIP section (a section like VIP) instead of staying in the queue and he told them not to worry as it was a less crowded area. She claimed that he also checked her status to see if she was legally permitted to leave the country and she was fortunately allowed to leave Iran on time without any problems.
The applicant stated that she left Iran [in] March 2018 and her family (parents and brother) went back to Lahijan the next day. She claimed that on that day the Information Organisation officers of Lahijan went to her home again searching for her; they took her father with them and no one was aware of his whereabouts for two days. After his return, her father told them that he was constantly asked about her and the reason for her hatred towards Islam, but he ignored all their claims. She stated that her father is [Age 3] years of age and all those stressful events affected his health negatively. She claimed that her father was forcefully pushed into a car and left alone after two days in one of the villages close to Lahijan. Realising what had happened to her father was truly upsetting for her. She stated that she cried a lot and asked for mercy from Jesus Christ. When she returned to Australia, she sought haven in the [church] where she heard the bible explained in Farsi. She enthusiastically went there for prayers and asked Jesus Christ to protect her and her family. The church pastor, [Mr E], warmly welcomed her into the church as he was aware of her situation and gave her hope and encouragement with his words and prayers. [Pastor E] also talked to her about Christianity, which made her realise the lies and fake claims within Islamic doctrines.
The applicant stated that pastor [Mr E] informed her that she could have her baptism ceremony on 30 March 2018, which was also Good Friday. She stated that she was unbelievably happy to become a true Christian. She converted to Christianity and was baptised with a genuine faith in the religion. She claimed to have attended the weekly bible learning sessions on a regular basis and donated monetary and non-monetary help to the church as much as she could. She claimed that her inner belief is that only Jesus Christ has the power to protect her at this time and place and that he saved her from an ‘absolute death’, as she would undoubtedly be arrested upon her return to Iran. The applicant stated that she does not want the torture, insults, and fear for the rest of her life.

The applicant claimed that she currently has a security and information profile in Lahijan and that this has made even her family feel concerned about the consequences that she might experience. She stated that she requires protection from the severe punishment that she will unquestionably receive for insulting Islam, devaluing its doctrine, and converting to Christianity.
In support of her claims the applicant provided the following documents:
·Baptism certificate, indicating that the applicant was baptised by full immersion on Good Friday, 30 March 2018, being the same day as she lodged her protection visa application, at the [Church 1] in [Suburb 2].
·Bible study and bible explanation certificates, which appear to be a record of topics/subjects completed towards the study of Christianity, awarded by the [Church 1], including, Christian living certificate, bible prophecy, soul winning, bible explanation and basic bible certificate.
·Letter from pastor [Mr A] dated 7 March 2019 stating that he has known the applicant since 25 March 2018 when she visited their church. He stated that the applicant attended bible study and spent time with one of their pastors discussing the differences between Islam and Christianity. He stated that the applicant had prayed to receive Jesus as her saviour, has an excellent attendance record at their Sunday morning services, was baptised on Good Friday, attended various bible study classes several times a week and completed 65 of 184 subjects in the course. He further stated that the applicant had told her family and friends in Iran that she is a Christian, that she makes some donations to the church, and that she has put bible information on [Social media] sites. He also stated that the applicant is interested in assisting Muslims to become Christians. He stated that the applicant would be harmed if she returns to Iran, that she would not be able to find a [church] where she can serve, study the bible and bring Iranians to Jesus. He stated that if the applicant is returned to Iran, she is likely to face death for converting from Islam to Christianity.
·A letter of support from [Mr D], together with a copy of [Mr D]’s NSW Driver Licence. In the letter, [Mr D] states that he worked with the applicant at [Workplace 3] in [Suburb 1]. He saw how the applicant was treated by her ex-husband and how he had forced Islam upon her. He stated that the applicant was in constant fear of angering her ex-husband. [Mr D] stated that he is a Christian, and that between July 2017 and September 2017 he spoke to the applicant about Christianity and that the applicant had taken an interest in the religion.
·An undated document issued by the Social work Clinic regarding the applicant’s relationship with [Mr C]. It states that they were married for five years, living, studying and working in Sydney, Australia. It sets out the problems identified by the wife (the applicant) about her husband ([Mr C]) and notes that [Mr C] no longer wants to remain in the relationship and has refused to attend the counselling sessions.
Departmental interview – 7 March 2019
At the time of the interview, the applicant was living with her partner [Mr A], to whom she is now married. They were living with [Mr A]’s mother in [Town] (Central Coast).
The applicant gave evidence that in Iran she lived with her parents, then with her ex-husband after marriage. Her brother is four years older than her and works with a company as an [Occupation 3]. She gave evidence that she contacts family in Iran via WhatsApp, messages and calls. She communicates with her family about the events of her day. She stated that she has told her family about attending church and the topics they have been looking at.
The applicant gave evidence that she found out about protection visas in Australia through a lawyer in Iran who told her that it was possible to apply for protection in Australia. She decided to apply for protection after the incidents that happened in Iran. She stated that she went to [Mr F] (her former migration agent) to get his advice about making an application for protection. She confirmed that she wrote her own protection claims. The delegate raised the concern that despite lodging her application for protection in March 2018, she had not provided details of her claims until March 2019. In response, the applicant stated that she was given a form and answered the questions, she was waiting for her baptism certificate and she was not aware that she had to provide a statement of her claims. She stated that her claims are complete and that she did not wish to make any changes.
The applicant stated that she met her current partner, [Mr A], while they were working in [Suburb 3]. She indicated that [Mr A] is a Christian. In relation to her studies in Australia, she stated that she completed an English course before commencing the [Subject 3] course at [University]. She was not involved with any Christian groups at the University as she did not know much about Christianity.
The applicant gave evidence that she applied for protection because of the incidents that occurred after she came to Australia. She stated that people are talking behind her back and have found out that she is interested in Christianity. She had to fly out of Iran and the next day her father was arrested and taken by the intelligence service, and he was kept for two days; no one knew his whereabouts. She claimed that her father was questioned about her. She stated that as her friends and family are now aware that she is a Christian she cannot return to Iran. She stated that she will be killed, not just by the government but by any individual. She does not feel safe. She stated that she will be arrested at the airport. She will also not be able to go to church in Iran or speak about her religion.
The applicant gave evidence that she was born into a Muslim family, but they were not religious. Her parents did daily prayers and sometimes fasted. Regarding the practice of her religion, she stated that at school during the month of Ramadan they were expected to fast. She did not do it voluntarily and had difficulties with fasting.
The applicant stated that she stopped practising Islam because it is based on fear and suffering. Her ex-husband ([Mr C]) expected her to be religious and they started arguing because she did not want to be.
The applicant stated that she met her ex-husband ([Mr C]) as they were neighbours; they have a mutual friend ([G]) on [Social media]; they became friends and the relationship developed. They had a luxurious wedding with over 1,000 guests, made up of family and friends. They travelled to Australia together. Their relationship had problems. He would beat himself if they disagreed on any issue. They worked at [Workplace 3] together.
The applicant gave evidence that many of her colleagues at work noticed the problems she had with [Mr C] and were supportive of her. She became close to [Mr D], whom she is still in contact with. She stated that [Mr D] has a good knowledge of Christianity. When asked what they (the applicant and [Mr D]) talked about regarding Christianity, she gave an example of an incident; she stated that she was speaking with [Mr D] at work and [Mr C] came and fought with her. She stated that [Mr D] commented about how women were disrespected in Islam and told her that in Christianity a woman is like your own body, who should be respected and looked after. She stated that the second time she spoke to [Mr D] about Christianity was after work when a group of them gathered for a meeting and pizza was ordered for everyone. She stated that [Mr C] came and started screaming at her in Farsi telling her there was pork in the pizza and that she should not be eating it. She stated that [Mr D] explained him that there is nothing unclean about eating it, but it is what comes out of a person that makes them unclean.
The applicant stated that the first time she spoke to [Mr D] about Christianity was in July 2017. She stated that this was the first time she had engaged with Christianity. She had never explored Christianity in Iran. She stated that at the beginning she was not interested in Christianity as she thought it was another religion, but the more [Mr D] spoke to her, the more she became interested and started to ask questions. In relation to the types of questions she asked, she stated that she asked about the place of women in [Mr D]’s religion, the types of freedom a woman has, what is the place of parents in a Christian’s life, and about Jesus Christ. She stated that she met with [Mr D] after work, on a Thursday, they went to a restaurant near her home and spoke about Christianity. She stated that she most recently spoke to him a week ago and asked him about the difference in fasting between Catholics and ‘us’; when asked what she meant by ‘us’, she stated the [Church]. When asked why she wanted to know about fasting, she stated that she was confused because she had an Indian friend who was fasting for 24 hours and [Mr D] explained to her that it is different in Christianity and that she can fast by not eating meat. When asked if [Mr D] was Catholic, she stated she thinks so as he was Church of England. She stated that she did not explore any other religion.
When asked if she had spoken to anyone else about what [Mr D] had told her, she stated that she had told her ex-husband ([Mr C]). When asked if she explored Christianity on her own after speaking with [Mr D], she stated that a few times she was upset, she was living in [Suburb 4] and there was a church that was 10 minutes from the station that was selling things for charity and she went there. She indicated that she went there on two occasions. The delegate noted that she did not mentioned going to a church in [Suburb 4] in her claims, and the applicant confirmed that she had not mentioned it.
The applicant gave evidence that she and her ex-husband had a lot of problems before they returned to Iran in October 2017. When they were in Australia, he had left her for one month and stayed with a friend, but because they were working together, she still saw him at work. [Mr C] asked her to forgive him and told her that he wanted to get back together with her. They got back together for five months, but there were still issues. They thought if they returned to Iran the family could help them rebuild their life. She took one month’s leave from work.
The applicant gave evidence that she and [Mr C] travelled to Iran. Her father was waiting for them at the airport. After she returned from the bathroom, she noticed that [Mr C] seemed agitated. She had her passport bag on her shoulder; he took the passport bag from her shoulder and told her he would fix her and left. [Mr C] then called her the next day and told her to go to the registry office and give up her dowry. She stated that her brother was against her giving up her dowry, but she thought if she listened to him that he would give back her passport. She stated that her father went with her to the registry office and [Mr C] arrived shortly after. The person who was at the registry office told her if she gives up her dowry, she should also request a divorce. She asked [Mr C] if she could get a divorce after one month, but they were informed that it had to be after at least three months. She stated that she then got the right to divorce. She then found out that [Mr C] had left Iran and went to [Country 1] with his mother. She stated that she wanted to act on her divorce; she went to a few lawyers and found a lawyer who was able to finalise her divorce. When she found out that [Mr C] was in [Country 1], she called her friends and asked them to pick up her stuff.
The applicant was asked about her claim that [Mr C]’s father had played a recording of her voice, to which she responded that he had played it on a laptop. She stated that [Mr C] had given his father the CD. When asked how she knew [Mr C] had those recordings, she stated that when they were at the airport [Mr C] told her that he had been recording her, that she had been speaking about his mother and he repeated the exact sentence she used. She stated that she was not aware of where the devices were placed. When asked if she had any evidence to support her claim, she stated that two weeks ago she was in church and she noticed that two of [Mr C]’s friends were there and they took a picture of her. The friends told her that [Mr C] had recorded her voice and does not regret it. She stated that this occurred at the [Church] and the pastor was witness to this. She stated that this occurred in a bible study class.
Regarding the claimed phone call on the day that she left Iran, the applicant stated that someone called her father from a no caller ID and told him that they were from Ettelaat (intelligence service); they would not give their name and asked about his daughter. She stated that her father hung up on them and turned off his phone. She stated that the guy said they were at their house and asked her father where he was. She stated that they called a neighbour and the neighbour told them that someone came to their home, jumped in and left about 20 minutes later.
In relation to her claim that her father was abducted, the applicant stated that the day after her flight her parents returned to their city. Someone rang the bell, and her father went out. She stated that her father was blindfolded, and no one knew where he had been taken. She stated that her parents told her what happened. She stated that her father does not know where he was taken or where he was kept. When asked to give details, she stated that they had asked her father questions, they interrogated him about her whereabouts and then took him to one of the villages close by and let him out.
When asked why she thought Christianity was the religion for her, the applicant stated that she saw the miracles in her own life. She stated that she was in communication with [Mr D] when she was in Iran and he told her to pray. She stated that she communicated with [Mr D] by messages. When asked if she had evidence, the applicant stated that she had not kept a copy of those messages but thought [Mr D] may still have the messages on his phone.
The applicant stated that she has told her family about believing in Christianity and that they had accepted her belief. She gave evidence that she first attended church in Australia on 25 March 2018 at the [Church 1]. She did not go with [Mr D] because he has a busy lifestyle and she wanted to go to a church that had Farsi services. She went by herself to the church. There she met [G], who then took her to the pastor. She stated that since then she has been attending church regularly. She stated that the pastor invited her to bible study classes, to which she agreed to go. She was given a Farsi bible by [Mr H], who is second in charge at the [Church 1]. In relation to her baptism, the applicant stated that it was on Good Friday. It was the same day [Mr H] evangelised to her and asked her if she believed in Jesus.
When asked about a passage in bible that has a personal meaning to her, the applicant stated the passage about God coming into the world as human, and that through his preaching he taught kindness, goodness and gave us a new birth. She stated that it was important because God as a human had sacrificed himself for us. Jesus said he is the son of God and that he who has seen him has seen the father.
The applicant gave evidence that she had moved to the central coast to live with [Mr A], but that she still goes to the [Church 1]. When asked why, she stated that she owes it to the church, the pastor is kind and supportive. She gave evidence that her partner ([Mr A]) has been baptised and is a Christian but does not understand Farsi so does not go to the [Church 1] with her.
The delegate put to the applicant that there was information before the Department that she has been planning to secure a permanent migration outcome since she first came to Australia and that she may not be a genuine protection visa applicant. In response, the applicant stated that her ex-husband was supposed to financially support her studies, but he decided not to pay the fees and she had to return to Iran to get additional funds to complete her studies and she undertook two further subjects after returning.
The delegate put to the applicant that she may have engaged in the practice of Christianity in Australia for the sole purpose of establishing protection claims as she had not shown any interest in Christianity prior to returning. The applicant denied that this was the case, and stated that she had no place to live when she returned from Iran and she went to the [Church 1] from the bottom of her heart.
Following the interview, the applicant provided extracts from a [Social media] account in her name, dated 11 November, indicating that she had posted a bible verse.
In refusing to grant the protection visa, the delegate was not satisfied that the applicant was a genuine convert to Christianity. The delegate considered that the applicant’s evidence was inaccurate, evasive, and lacking in detail. The delegate did not accept as credible that the applicant’s ex-husband had placed listening devices in her home or that her ex-husband’s father had threatened to report her as an apostate and non-Muslim after playing to her father the CD of her speaking about Christianity. The delegate also did not accept the claim that her father had received a phone call from Ettelaat on the day she departed Iran or that her father was abducted by the Information Organisation officers in Lahijan.
Evidence before the Tribunal
Prior to the hearing, the Tribunal received statements from the applicant, the applicant’s brother ([Mr B]) and her spouse ([Mr A]). The applicant and [Mr A] married [in] September 2019 and a copy of their marriage certificate was provided to the Tribunal. They are expecting their first child in January 2022.
In her statement, the applicant provided details of her current personal circumstances, including that she moved to the Central Coast in March 2019, married [Mr A] and has been attending the [Church 2], where she has been warmly welcomed. The applicant stated that she also takes her stepdaughter, [Ms I], who stays with her and [Mr A] every second week. The applicant provided details of her struggles to get pregnant, including failed attempts at fertility treatment and experiences of two miscarriages. The applicant provided details of how her faith was strengthened during this difficult time and of the support she received from members of the congregations who prayed for her and her family. She stated that getting pregnant naturally was a miracle and a blessing from God. She referred to various bible verses and described how her faith in Christianity had grown and how she had shared her faith with others, including her family in Iran and through Instagram.
The applicant claimed that while her immediate family has been supportive of her decision to become a Christian, some members of her extended family have expressed their disapproval to her parents. She claimed that her father’s cousin, [Mr J], who was recently appointed as a judge in Iran, had been giving her parents a hard time, and has humiliated and disrespected them since finding out that the applicant had converted to Christianity. The applicant fears that she will be arrested upon return to Iran on crimes of changing her religion. The applicant also expressed fears for the safety of her family in Australia, including her unborn child, if they had to return to Iran.
The applicant’s brother, in his letter, stated that the applicant had endured many events with her ex-husband ([Mr C]) when she was in Iran. He referred to the claim about the applicant’s father being abducted by the Information Organisation officers the day after the applicant left Iran. He stated that everyone in the family knows about the applicant’s conversion and that he and his parents are concerned about the applicant’s safety if she returns to Iran.

The Tribunal also received numerous letters of support from the Pastor of the [Church 2] and members of the congregation, attesting to the applicant’s regular attendance at the church and her participation in the various services and outreach activities of the church. The Tribunal has had regard to this evidence in its considerations further below.
At the hearing, the Tribunal asked the applicant about her family, education, and immigration history. Her evidence on these matters was consistent with information provided in her application and other evidence before the Tribunal. The Tribunal asked the applicant about her and her family’s practise of religion (Islam) growing up, and her responses on these matters were also consistent with the information she provided in her statement of claims.
The Tribunal asked the applicant about her relationship with her ex-husband ([Mr C]) and his family. In response, the applicant provided details of how she met and married [Mr C], the difficulties they experienced after she moved into an apartment in the same building as his family, the decision to travel to Australia to study, the difficulties she encountered in Australia and the various incidents which led to the breakdown of her relationship with [Mr C].
The Tribunal asked the applicant about why she did not want to return to Iran. The applicant stated that she would not be safe in Iran because she has changed her religion. She stated that leaving Islam can get you killed in Iran, and that this could be carried out by anyone. She fears that she will be arrested at the airport by the authorities if she has to return. When asked if there was any other reason why she did not want to return to Iran, she stated that everyone in her city knows that she is now a Christian and this will put her life in danger.
The Tribunal asked the applicant about [Mr C]’s family in Iran and whether she has any fear from [Mr C] or his family. The applicant stated that she did not fear [Mr C], whom she understands is still residing in Sydney, but she fears his father who may seek to harm her. The Tribunal put to the applicant that she had been divorced from [Mr C] for almost four years and had given up her claim to her dowry, and that it was difficult to believe that [Mr C]’s family would harm her or that they would have any reason to. In response, the applicant stated that [Mr C]’s father was a monster and could do something to her. He spread rumours about her after she and [Mr C] separated and had a CD of her talking to [Mr C] about Christianity. The Tribunal queried the applicant further about this claim and in response she stated that her father had gone to [Mr C]’s father’s place of work (the [Workplace 2]) to ask him why he was spreading rumours about her as she and [Mr C] had already divorced. She claimed that [Mr C]’s father then played a CD of her voice talking about Christianity to [Mr C]. She claimed that [Mr C]’s father had threatened to go to the authorities. When asked if she believed [Mr C]’s father had told the authorities that she was speaking about Christianity to his son, she stated that she is not sure if it was [Mr C]’s father who told Ettelaat or how they knew about her.
The Tribunal asked the applicant about her interest in Christianity and her knowledge about the Christian faith prior to travelling to Iran in October 2017. Her evidence, which was consistent with her statement of claim, was that she had several conversations with [Mr D], whom she worked with at [Workplace 3]. When asked about her claim at the departmental interview to have visited a church in [Suburb 4], the applicant explained that she did not attend a church service but had just visited the church because they were selling items and she went inside to have a look. The Tribunal discussed with the applicant its concern with her claim that she tried to promote Christianity to [Mr C] and encourage him to change his religion given that, prior to her travel to Iran in October 2017, she only had a few conversations with her work colleague about Christianity and had never attended a church service. In response, the applicant stated that she spoke to [Mr C] about his behaviour, about [Mr D] and how Christian people look after their wives and that maybe, if they were Christian, they would not have problems. The Tribunal noted that this was quite different from the claim that she had been recorded talking about Christianity and trying to persuade [Mr C] to change his religion.
The Tribunal asked the applicant how she came to know about the content of the recordings. The applicant stated that when she was at the airport [Mr C] had taken her passport and told her he had recorded everything she said and knows she has been talking about his mum. She stated that when she went to church (the [Church 1]) two of [Mr C]’s friends were there, it was during a bible study in Farsi, and they mentioned that they know [Mr C] had recorded her talking and he does not regret his actions. The Tribunal expressed to the applicant its surprise that, if [Mr C] was religious (a devout Muslim), he would have friends that attended church and bible study classes. In response, the applicant said that she knows he stayed with one of those friends for one month just before they travelled to Iran.
The Tribunal asked the applicant if, since she departed Iran in March 2018, [Mr C]’s father had spoken to her family or bothered them in any way. The applicant said she does not know and that if it did occur her parents may not have told her as they would not want her to worry. When asked if [Mr C] had contacted her since she returned from Iran in March 2018, the applicant said that he called her regarding a complaint she had made to the police about him accessing her bank account while she was overseas and transferring her money to his bank account. She stated that following that phone call she called the police and the police spoke to him and told him not make any contact with her. She stated that since then [Mr C] has not contacted her, and she does not know anything about his circumstances.
When asked about the people in Iran, other than her immediate family, who know about her conversion, the applicant stated that she had told her extended family, including aunts and cousins, as she wanted to share with them her new faith. She said that some of them were accepting of her decision, particularly on her mother’s side, but not so much on her father’s side. She said that she is concerned about the reaction of her father’s cousin, who is a judge in Iran, as he has been so rude to her parents, taunting them about their daughter converting to Christianity and threatening that she will be arrested on return to Iran.
The Tribunal discussed with the applicant her claims of adverse events in Iran, including her claim that her father received a call from Ettelaat on the day that she left Iran (15 March 2018) and the claimed abduction of her father by the Information Organisation for two days. The applicant’s response was limited to that which she had provided in her statement of claims. The Tribunal expressed its concern that her evidence about these claims was vague and lacking in detail and appeared inconsistent with country information[1]. The applicant was given an opportunity to respond to the concerns, and the Tribunal has had regard to her responses in its considerations further below.
[1] DFAT Country Information Report Iran (14 April 2020).
Given her brother’s recent statement to the Tribunal, which referred to the claim that the applicant had a security profile in Iran and that their father had been abducted by the Information Organisation officers, I asked the applicant if she was agreeable to the Tribunal contacting her brother ([Mr A]), who at the time was in Iraq for work, to ask him about the information he provided in his statement. The applicant agreed to the Tribunal speaking to her brother. Just before the conclusion of the hearing, the applicant called her brother from her mobile via WhatsApp. With the assistance of the interpreter, the Tribunal confirmed his name, date of birth and his relationship with the applicant. The Tribunal queried the applicant’s brother about the evidence given in his statement. His evidence to the Tribunal, which is discussed further below, was, in part, inconsistent with the information he provided in his statement and inconsistent with the applicant’s oral and written evidence. The applicant expressed her surprise at her brother’s evidence, in which he suggested that both the applicant and their father had been arrested and questioned by different organisations in Iran. The Tribunal discussed with the applicant the conflicting evidence regarding the events she claimed had occurred in Iran. The applicant was given an opportunity to respond to the Tribunal’s concerns and the Tribunal has had regard to her explanations in its considerations further below.
The Tribunal asked the applicant whether she would practise Christianity upon return to Iran and how she would go about doing this. The applicant gave evidence that, if she had to return, she would try and find a group of believers with whom she would regularly meet and pray together. She stated that she would also tell people about the Christian religion. When asked if she would seek to convert people, the applicant stated that she would talk to people about the miracles that occurred in her own life and how she came to trust in Jesus. When asked how she would explain the Christian faith to those who were not familiar with the religion, the applicant stated that she would tell them that Jesus is God, that we are sinners and that Jesus had come to earth and died for our sins so that we could be forgiven.
When asked about her current church attendance, the applicant gave evidence that she attends church every Sunday, though during the periods of lockdown she watched the services on YouTube. She stated that she also attends bible study and prayer evenings with the ladies at the church. She stated that the church is like a small family. The Tribunal observed that she had undertaken a lot of bible courses at the [Church 1] and that she continued to attend bible study at her current church and asked her to explain the difference between the old and the new testaments, her favourite passages or verses in the bible and what meaning they had for her. The applicant confirmed that she had undertaken regular bible study, she referred to several books which made up the old testament and referred to various passages which she indicated were about the coming of Jesus. She stated that the new testament was after the coming of Jesus, who came to tell of the good news. The applicant easily recounted the names of various books in the new testament. She provided details of a few miracles that had an impact on her, and she spoke about the holy spirit and stated that she could see the miracles in her own life.
When asked about her motivation for becoming a Christian, the applicant stated that when she was in Iran, she was in a mess because of everything that happened while she was there. She felt hopeless and could not see a way out of her situation. She spent her time crying and was unsure of what to do. At the time she was talking to [Mr D] and he told her to just pray to his God. She stated that she recalls praying and crying and saying to God that if he was real he would help her. She stated that the events that occurred after that, being able to obtain a passport and depart Iran, were a miracle. The applicant then recounted various events in her life since returning to Australia, including her struggles to fall pregnant. She stated that she was diagnosed with early menopause, had difficulty getting pregnant, went through unsuccessful rounds of IVF treatment and thought getting pregnant was impossible. She stated that getting pregnant naturally, and staying pregnant, was a miracle in her life.
The Tribunal asked the applicant about who in Iran was aware of her conversion to Christianity and how they came to know. The applicant stated that she had informed her parents, brother and some members of her extended family. When asked why she had done this, she stated that she wanted them to think about it. She stated that her parents were supportive, but other family members were not. She stated that some of her cousins were shocked and did not have a good reaction when she told them.
In his evidence to the Tribunal, the applicant’s spouse stated that he met the applicant at [Suburb 3] where she worked as [an Occupation 4]. He stated that they got along well and commenced a relationship. They moved in together and lived with his mother in the Central Coast, but they have since moved to their own place. He has shared custody of his [Age 4]-year-old daughter, [Ms I], from a previous relationship. He stated that while he does not attend church, the applicant attends on a regular basis and takes [Ms I] with her. He stated that the applicant is a committed Christian and he fears for her safety, and the safety of his unborn son, if they were forced to return to Iran.
In her further evidence, the applicant stated that her marriage to [Mr A] would not be recognised in Iran and that he would have to first convert to Islam. She stated that she cannot leave her child in Australia and that they would not be able to return to Iran as a family as they would all face problems.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal finds that the applicant is a citizen of Iran and has assessed her claims for protection against Iran as her country of nationality. The Tribunal is satisfied that the applicant does not have a right to enter and reside in any other country.
The Tribunal accepts that the applicant was born into a Muslim family. It also accepts that her family were not particularly religious, that she was not committed to the Islamic faith and that any rituals she undertook growing up, such as fasting and praying, were out of obligation.
The Tribunal accepts that the applicant was married to [Mr C] in Iran. It is also prepared to accept that [Mr C] was from a religious family, that [Mr C]’s father was employed with [Workplace 2], which is related to the regime, and that he was familiar with known figures in the regime. The Tribunal accepts that the applicant found it difficult to adjust to married life with [Mr C] given his family’s strong religious views, and particularly [Mr C]’s father’s views that women should obey their husbands and follow Islamic rules. The Tribunal accepts that the applicant and [Mr C] continued to have disagreements after travelling to Australia, and that the relationship broke down and they divorced in 2018.
The Tribunal is also prepared to accept that [Mr C]’s family may have spread rumours about the applicant having cheated on [Mr C] following her divorce from [Mr C]. The Tribunal however does not accept, for reasons set out below, that [Mr C]’s father-in-law had in his possession a CD recording of the applicant talking to [Mr C] about Christianity and trying to convince [Mr C] to change his religion. Nor does it accept that [Mr C]’s family had spread rumours about the applicant converting to Christianity.
The evidence before the Tribunal about the claimed CD recordings was inconsistent and lacking in credibility. Firstly, in her written statement the applicant stated that [Mr C] had put listening devices at home and in the car to record her voice, whereas at the departmental interview she gave evidence that she was not aware of where the devices were placed. Secondly, the applicant also gave evidence that she knew about the devices because at the airport [Mr C] told her that he had been recording her and knew that she had been speaking about his mother, and two of [Mr C]’s friends, whom she met at a bible study at the [Church 1], had told her that [Mr C] does not regret recording her voice. The Tribunal does not find credible that [Mr C], whom the applicant claimed was from a devout Muslim family and was resistant to Christianity and did not want to speak about it, would be friends with two people who attended church/bible study. When this concern was discussed with the applicant at the hearing, she stated that she knows [Mr C] had stayed at the house of one of those friends for one month. The Tribunal is not satisfied with the applicant’s explanation as it does not address the Tribunal’s concerns, and the Tribunal does find not credible that the applicant’s ex-husband would inform two people, who are church/bible study attendees, that he had a recording of his ex-wife speaking about Christianity.
Thirdly, as discussed with the applicant at the hearing, at the time the applicant and [Mr C] had returned to Iran (in October 2017) the applicant had not yet converted to Christianity. On her own evidence, prior to returning to Iran, the applicant only had a few conversations with [Mr D] about Christianity and had only visited a church building in [Suburb 4]. The Tribunal does not consider that with such limited knowledge of Christianity, the applicant, who had not herself converted, would have sought to encourage her ex-husband to convert to Christianity. When this was discussed with the applicant at the hearing, she stated that she spoke with [Mr C] about how women are treated in Christianity and, if they were Christian, then maybe they would not have problems. The Tribunal has considered the applicant’s response but considers it inconsistent with her written claims that she tried to convince [Mr C] to convert to Christianity.
For the above reasons, the Tribunal does not accept the applicant’s claim that there was a CD voice recording of her trying to convince [Mr C] to convert to Christianity. The Tribunal does not accept that [Mr C]’s father had possession of such a CD or that he played the recording of the applicant’s voice to her father, or that [Mr C]’s father had threatened that he could punish the applicant severely for being an apostate and non-Muslim. Accordingly, the Tribunal does not accept that there is a real chance that the applicant will experience harm in Iran from [Mr C]’s father or any members of [Mr C]’s family or any members of the regime to whom [Mr C]’s father is connected on the basis of claims related to the CD recordings.
The Tribunal also does not accept that, when the applicant was in Iran, [Mr C]’s father had spread rumours about the applicant’s religious change and conversion to Christianity as she has claimed. This is because, as noted above, at that time, the applicant had still not converted and had limited knowledge of Christianity and the Tribunal has not accepted the claim that there existed a CD voice recording of the applicant speaking about Christianity.
The Tribunal is prepared to accept that rumours may have circulated in Iran about the applicant having cheated after she divorced from [Mr C], however, the Tribunal is not satisfied that the applicant will face harm in Iran because of these rumours. On her own evidence, the applicant stated that she did not take those rumours seriously because she knew that [Mr C]’s father was behind all the gossip.
When asked if, since she departed Iran, [Mr C]’s father had contacted or caused any issues for her family in Iran, the applicant stated she does not know and that her family would not want to bother her about this. The Tribunal considers that if [Mr C]’s father had caused issues for her family then her family would have likely informed her about it. There is no current evidence before the Tribunal which suggests that [Mr C]’s father, members of his family or any connected persons have any interest in the applicant. The applicant divorced from [Mr C] in 2018, she gave up her right to her dowry, and neither she nor members of her family in Iran have had contact with [Mr C] or his family in Iran since 2018. On this basis, the Tribunal finds that there is no real chance that the applicant will experience harm in Iran from [Mr C]’s family members or any associated persons (including those connected to the regime) for any reason.

The Tribunal has next considered the applicant’s claims regarding the events leading up to her departure from Iran in March 2018, including the claimed phone call received by her father and his claimed abduction by the authorities for two days. For reasons that follow, the Tribunal does not accept that any of these claimed events occurred.
At the hearing, the applicant stated that they were at her uncle’s home when a person called from Ettelaat and told her father that they were at the family home, but no one was there, and they enquired as to her and her father’s whereabouts, and that her father had hung up the phone. When the Tribunal expressed its surprise that her father would hang up the phone on a person from the Iranian intelligence services, the applicant stated that maybe her father got scared and panicked. When asked to provide further details, the applicant stated that her father called their neighbour who informed him that some people had gone to their home and jumped over the wall. The applicant stated that this was why her father called his friend at the airport who assisted her and took her through the VIP section in the airport.
While the Tribunal accepts that the applicant was taken through the VIP section of the airport by a friend of her father, the Tribunal is not satisfied that this was arranged by the applicant’s father out of fear for the applicant’s safety. It is likely that the applicant’s father, who had worked as an [Occupation 1] for many years at the airport, had friends who were happy to assist his daughter get through customs more quickly. The Tribunal does not accept that the applicant was taken through the VIP section because of any fear that she or her father had of the authorities.
As explained to the applicant at the hearing, she was issued a passport by the Iranian authorities in her own name and was able to depart Iran without incident. The Tribunal discussed with the applicant country information before it which indicates that intelligence services in Iran have the power to impose a travel ban on individuals whom they considered to be a threat to national security without recourse to the judiciary.[2] The Tribunal expressed doubt that the applicant’s profile was one that would attract the attention of the intelligence services, including raiding her family’s home and contacting her father regarding her whereabouts and noted that, if she did have such a profile, she would not have been able to depart Iran on a passport issued in her own name. In response, the applicant stated that Lahijan is a small place and that maybe the information had not been communicated to the authorities in Tehran. She also suggested that they may have been trying to gather information about her. As explained to the applicant at the hearing, the Tribunal doubts that the Iranian authorities, be it in Lahijan or Tehran, would have any interest in the applicant. Country information before the Tribunal indicates that the Iranian authorities have little interest in activities conducted by Iranian nationals outside Iran, including converting to Christianity.[3]
[2] DFAT Country Information Report Iran (14 April 2020) at 5.24 and 5.25.
[3] DFAT Country Information Report Iran (14 April 2020) at 5.29 and 5.30.
In relation to the claim that her father was abducted by authorities the day after she departed Iran, the applicant’s evidence was limited to that which she had included in her statement. She was unable to provide additional detail about the location to which her father was taken or expand on her evidence that her father was questioned about her for two days. The Tribunal considers that if information/intelligence officers had abducted her father as she has claimed, then she would have been able to provide more detail than she has been able to.
Further to the above concerns is evidence given by the applicant’s brother at the hearing regarding the claimed house raid and abduction of the applicant’s father. In his evidence to the Tribunal, the applicant’s brother stated that his father and the applicant were arrested and questioned in Iran. When asked to confirm his evidence that the applicant had been arrested and questioned in Iran, he stated that she was. When asked who had arrested his father and sister, the applicant’s brother stated that they were arrested by different organisations and he was not sure of the name. He gave evidence that on the day the applicant departed Iran, the whole family travelled to Tehran by car and stayed at their uncle’s house before going to the airport. When asked about whether, on the day the applicant departed Iran, his father had received a phone call from a person enquiring about the applicant, he stated it was a long time ago and he cannot recall. In response to the Tribunal’s queries about the claimed arrest of his father, he gave evidence that this occurred about one month after the applicant departed Iran. He did not know where his father was taken but stated that it was for a few days.
The inconsistences in the evidence about when the claimed abduction occurred, by whom it was carried out and the additional claim that the applicant had also been arrested and questioned in Iran, casts doubt over the credibility of the evidence given by the applicant’s brother and the claimed events in Iran. When the concerns with the evidence were discussed with the applicant at the hearing, she expressed her shock at the evidence given by her brother and stated she does not know why he would say the arrest occurred one month after she departed Iran. The Tribunal considers that the reason the applicant’s brother could not recall whether their father had received a phone call, nor which organisation had arrested him, and inconsistency in the evidence about when the applicant’s father was arrested, is because these events never occurred.
For all the above reasons, the Tribunal does not accept that the applicant’s father received a phone call about her on the day she departed Iran or that her family’s home was raided, and it does not accept that her father was abducted and/or questioned by any organisation in Iran as claimed.
While the Tribunal has not accepted many of the applicant’s claims, this does not necessarily mean that the applicant is not a genuine convert to Christianity. The Tribunal considers that the applicant had contrived claims about events in Iran to bolster her claim for protection. She likely did this because at the time she applied for protection she had only attended church for the first time in the weeks prior to her application being made and had been baptised on the same day. The timing of the application for protection is of some concern; the applicant was on a student visa and had divorced from her ex-husband who had been financially supporting her, and the Tribunal considers it likely that her initial interest in Christianity was motivated by a desire to remain in Australia.
However, given the passing of time since she first attended church and her baptism, a period of almost four years, the Tribunal is satisfied that the applicant has developed a strong commitment to the Christian faith. The conduct she has undertaken in Australia, including regular attendance at church and bible study, taking her stepdaughter to church, speaking to others about her faith journey and regular participation in her church’s community activities, strongly suggests that the applicant is a committed convert to the Christian faith.
Following her baptism, which the Tribunal accepts occurred on 30 March 2018 at the [Church 1], the applicant attended regular church services and bible study classes. The Tribunal is satisfied on the evidence before it that the applicant undertook numerous bible study courses conducted by the [Church 1] and regularly attended services at that church. The Tribunal accepts that in early 2019 the applicant met and commenced a relationship with [Mr A] (an Australian citizen by birth) and the couple moved to the Central Coast in March 2019. The Tribunal accepts that the applicant continued to travel to the [Church 1] to attend services for some time before seeking out and attending a church that was closer to her place of residence, the [Church 2].
As noted above, the Tribunal received numerous letters of support from members of the [Church 2] attesting to the applicant’s attendance, participation in community activities and the active sharing of her faith with others. The pastor of the church, [Mr K], confirmed that the applicant commenced attending the church in 2019, that she regularly attended Sunday services, that she meets up with other worshipers to study the bible, that she attends prayer gatherings with church members and that the applicant had shared her story of how she came to trust God as a Christian with members of the church. He stated that the applicant has a strong desire to learn about God from the bible, and that she prays and trusts Jesus as her Saviour. He stated that many members of the church had connected with the applicant, that she serves and helps with church lunches and that his family have enjoyed her company over many meals during which they discussed her Christian beliefs. [Pastor K] stated that their church is aware of the dangers that Christian converts from Islam face in countries like Iran and that several people in the congregation have read the book titled ‘Captive in Iran’, which describes the horrific treatment of Christian women in Iran.

100. The Tribunal also had regard to the letter of support from [Mrs L] who worked as [an Occupation 5] with the [Employer] and is currently residing in [Country 3] with her husband who is undertaking work as [an Occupation 6]. [Mrs L] (a member of the [Church 2]) stated that she had spent time with the applicant over the last two years, including as part of a small bible study group, and believes that the applicant is a genuine Christian. [Mrs L] stated that the applicant reads the bible, prays, cares for others, encourages the elderly members of the community, lives her life as a Christian and is a much-loved member of the Christian community. [Mrs L] expressed concern for the safety of the applicant if she had to return to Iran and the dangers she would face because of her Christian faith.
101. [Ms M] also provided a letter to the Tribunal in which she expressed her strong support of the applicant. [Ms M] stated that she has known the applicant since 2019 when she joined the church. She stated that in the time she has known the applicant, she has observed the applicant practising her faith consistently in all aspects of her life. She stated that the applicant, in addition to being a regular congregant on Sunday services and a regular attendant of the [Group] (weekly bible study), also regularly assists with Kids’ church, welcoming duties on Sundays and is a regular volunteer with church community activities. [Ms M] stated that the applicant has a faith in God that is strong and has a profound belief that her redeemer is Jesus Christ, and that she wants nothing more than to freely worship God and raise her family in faith and understanding of God. [Ms M] expressed the concern that this freedom of belief and expression of faith would not be viable in Iran where the applicant risks being beaten or imprisoned because of her faith.
102. Similarly, other members of the church expressed their concern for the welfare and safety of the applicant if she is forced to return to Iran given the dangers faced by Christians, and particularly converts.
103. At the hearing the applicant demonstrated a high level of knowledge about the main principles of the Christian faith and the bible, which the Tribunal considered to be commensurate with a person who has been practising the Christian faith, including attending regular church services and bible study, for almost four years. The applicant’s evidence regarding her faith journey and the ‘miracles’ that occurred in her life, including her ability to leave Iran following her divorce and becoming pregnant naturally after unsuccessful fertility treatment, appeared genuine and uncontrived. The Tribunal is satisfied on the totality of the evidence before it that the applicant is a genuine convert to Christianity. The Tribunal accepts that the applicant’s parents and brother know about her conversion. It is also prepared to accept that she has told some extended family members (cousins) in Iran that she is a Christian. The Tribunal is satisfied that if the applicant returns to Iran she would continue to practise as a Christian, including seeking out other Christians with whom she would regularly meet, pray and worship. It also accepts that she would want to share her faith with others as she considers this an important aspect of practising Christianity.
104. Having accepted that the applicant is a genuine convert from Islam to Christianity, and that she would seek to practise her Christian faith upon return to Iran, the Tribunal has considered whether the applicant faces a real chance of harm in Iran.
105. According to the most recent DFAT Country Information Report (14 April 2020), over 99 per cent of Iranians are Muslim, of whom 90-95 per cent are estimated to be Shi’a and 5-10 per cent Sunni. Small religious minority communities, including Baha’is, Christians, Zoroastrians, Jews and Sabean-Mandaeans, make up the remainder. Of Iran’s religious minorities, only Christians, Zoroastrians and Jews (excluding converts) enjoy legal recognition and, in turn, the ability to worship openly. The DFAT Report states Iran is a theocracy with Islamic beliefs and customs enshrined in law. Shi’a Islam is the official state religion and Article 4 of the constitution requires that all laws and regulations be based on (Shi’a) Islamic criteria. Legislation and government policy heavily favour the majority Shi’a population, leading to pervasive structural discrimination against non-Shi’a Muslims and recognised religious minorities. According to a July 2019 survey on religious restrictions conducted by the Pew Research Centre, Iran ranks among the top 10 countries in the world for laws and policies restricting religious freedom.[4]
[4] DFAT Country Information Report Iran (14 April 2020) at 3.27 and 3.28.
106. The DFAT Report indicates that there are 130,000 registered Christians in Iran. Ethnic Armenians concentrated in Tehran and Isfahan are the largest group of recognised Christians. Other recognised Christians include Assyrians and Chaldeans. Citizens who can prove that they (or their families) were Christian prior to 1979 are also recognised. Conversions after 1979 are not recognised. The government only recognises these groups because their presence in Iran pre-dates Islam. The law prohibits citizens from converting from Islam to another religion. Recognised churches are required to deliver sermons in their traditional language. Farsi-language services are not permitted, as they could promote proselytisation.[5]
[5] DFAT Country Information Report Iran (14 April 2020) at 3.37.
107. The DFAT Report states that the activities of recognised Christian communities are closely regulated to guard against proselytisation. All Christians and Christian churches must be registered with the authorities, and only recognised Christians can attend church. It notes that security officials closely monitor registered churches to verify that services are not conducted in Farsi and perform regular identity checks on worshippers to confirm that non-Christians or converts do not participate in services. It reports that authorities have closed several churches in recent years for failing to comply with these restrictions, including churches that had existed prior to 1979.
108. In relation to the situation of unrecognised Christian groups and those who attend ‘house’ churches, the DFAT report states the following:
The Penal Code strictly prohibits proselytisation by religious minority groups — it is a capital crime for non-Muslims to convert Muslims. Against this background, the three recognised minority religions do not proselytise or accept converts. Strict instructions not to minister to Iranians apply to all recognised churches, including the small number of Latin Catholic and Protestant churches in Tehran and elsewhere that cater to expatriates. To enforce this prohibition, authorities closely monitor recognised churches (see Christians). DFAT understands that recognised churches regularly receive telephone enquiries from individuals falsely claiming to be interested in converting, as a way of testing their adherence to the prohibition on converts.
Iranian Christians who are not members of recognised churches generally practise in underground ‘house churches’. The secrecy surrounding house churches makes it impossible to provide an exact number of house churches or unrecognised Christians in Iran. The Special Rapporteur on the situation of human rights in Iran estimates there are between 300,000 and 350,000 Muslim converts to Christianity, with international Christian advocacy groups citing significantly higher numbers. While precise figures are elusive, Iran has a growing unrecognised Christian population. DFAT understands a high percentage of unrecognised Christians are Farsi-speaking converts from Islam, or the children of converts. Some converts reportedly travel to Turkey (with which Iran has visa-free travel arrangements) to be baptised, then return to Iran and practise in private. Local sources claim many converts are unhappy with being designated Muslim at birth and wish to explore their religious identity. Others see adopting Christianity (albeit surreptitiously) as a form of protest against the government.
According to international observers, house churches exist across Iran, particularly in major cities. DFAT understands that most house churches follow evangelical Protestant teachings and tend to be situated in more affluent and liberal parts of major cities (including north Tehran). 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 Christian television programs broadcast via satellite or discs smuggled from abroad (including in Farsi). Other house churches may be larger, and may grow organically as members share their faith with family and friends. While some groups do not have any formal links with other Christian groups, others are part of house church networks within a particular city or area. Some house church leaders are trained in Christian theology (either online, via Christian satellite television or through residential courses completed outside Iran). A growing number of house churches have ‘Internet pastors’, where a foreign-based preacher leads the church and provides instruction remotely via the Internet. DFAT understands that house church congregants regularly change houses to avoid detection.
Authorities interpret the growth in house churches as a threat to national security and periodically carry out raids against them. Raids focus particularly on house churches that actively proselytise or seek out new members. DFAT is unable to verify if the frequency of raids of house churches is increasing or whether a warrant is required to execute a raid. Local sources were unaware of any raids in the first half of 2019, although raids may not necessarily be publicised. According to the UK Home Office, the authorities use informants posing as converts to infiltrate house churches. Where the authorities receive a report of a house church, they may initiate a monitoring process to survey and collect information about its members. Local sources told DFAT that the authorities do not actively look for house churches. Rather, raids – where they occur – are usually the result of tip-offs by Muslim neighbours.
The judiciary has handed down long sentences in relation to house church activities. In July 2017, the Revolutionary Court convicted eight Christians of ‘acting against national security through the establishment of a house church’, ‘conducting evangelism’ and ‘insulting Islamic sanctities’, and sentenced the group to between 10 and 15 years’ imprisonment. Among those sentenced were Victor Bet-Tamraz, an Assyrian Christian pastor and former head of the Assyrian Pentecostal Church in Iran, and a Christian convert arrested during a private Christmas gathering in Bet-Tamraz’s Tehran home. In January 2018, Bet-Tamraz’s wife was sentenced to five years in prison for ‘acting against national security by organising house churches, attending Christian seminars abroad and training Christian leaders in Iran for the purpose of espionage’. Bet-Tamraz and his wife have been released on bail, but reportedly remain the subject of close surveillance. A priest, Ebrahim Firouzi, was arrested in 2013 on allegations of ‘promoting Christian Zionism’ and handed a five-year prison sentence on charges of acting against national security.

According to media reports, nine Christian converts received five-year prison sentences in December 2019. At least three of those sentenced had reportedly been arrested in a house church in Rasht (Gilan Province). In June 2018, four Christian converts were sentenced to 10 years’ prison each, and another 114 were reportedly arrested on charges of proselytising in December 2018. In March 2018, 20 Christian converts allegedly participating in a workshop were arrested near Karaj (most of whom were subsequently released). Christian advocacy groups claim that authorities pressure some church leaders to emigrate, either through direct threats or through intentional harassment (including daily summons to security offices for questioning, confiscation of identity documents or forcing them out of their jobs).
DFAT assesses that small, self-contained house church congregations that maintain a low profile and do not seek to recruit new members are unlikely to attract adverse attention from authorities beyond monitoring and, possibly, low-level harassment. Members of larger congregations that engage in proselytisation activities and have connections to broader house church networks are more likely to face official repercussions, which may include arrest and prosecution. Of particular interest to the authorities are the leaders of house church congregations, who, according to local sources, face a higher risk of arrest and prosecution than ordinary congregants. According to these sources, while there have been instances of ordinary congregants being prosecuted, this is not common — most are released.
Despite occasional arrests and prosecutions, the authorities do not actively search for Christian converts and, as far as DFAT is aware, do not employ people exclusively for this purpose. DFAT assesses that a Christian convert would not face harm if they maintain a low profile, do not openly proselytise and are not of interest to the authorities for other reasons (e.g. political activism). Official sources told DFAT that converts who keep their beliefs private are not of interest to the authorities. Those who openly propagate Christianity and seek to convert others, in contrast, would draw the attention of the authorities, and face a high risk of official discrimination, including harassment, arrest and prosecution, and some societal discrimination. Local sources were not aware of Christian converts being executed for apostasy in recent times. DFAT assesses the risk of execution for conversion/apostasy to be low (see Religiously-Based Charges).
International observers report that Iranians who convert to Christianity abroad are unlikely to face adverse official attention upon their return, provided they have not previously come to the attention of the authorities for political activities, maintain a low profile and do not engage in proselytisation activities. 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 (see Conditions for Returnees).
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 that 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.

109. While the applicant is not from a religiously minded Muslim family, the Tribunal accepts that members of her extended family, including her cousins and her father’s cousin (who is a judge in Iran) have not reacted well to her conversion. The country information suggests that the applicant is likely to experience ostracism and discrimination from family members who know about her conversion, however, the evidence before the Tribunal does not suggest that this would rise to the level of serious harm as defined in s 5(J). Accordingly, the Tribunal does not accept that there is a real chance that the applicant will be seriously harmed by members of her extended family because of her conversion if she returns to Iran.
110. While country information suggests that applicant may be able to continue to practise her faith in Iran, including attending a house church to meet and pray with other Christians, it is likely that she would have to do so discreetly so as not to attract the attention of the authorities in Iran. The applicant will also not be able to share her faith with others or speak to people about Christianity as this may bring her to the attention of the Iranian authorities.
111. Having considered how the applicant has been practising her faith in Australia, as detailed above, and how she would practise her faith if she had to return to Iran, the Tribunal does not consider it reasonable to expect the applicant to modify her behaviour (by practising Christianity discreetly and not sharing her faith) so as to avoid harm from the authorities in Iran: s 5J(3).
112. Having carefully considered the evidence before it, including the country information about converts to Christianity in Iran, the Tribunal finds that if the applicant returns to Iran now or in the foreseeable future, there is a real chance she will face serious harm from the authorities, including a threat to her life or liberty, significant physical harassment or ill-treatment: ss 5J(4)(b) and (5).

The Tribunal further finds that the applicant’s religion, being her conversion from Islam to Christianity, is the essential and significant reason for the persecution that the applicant fears if she returns to Iran: s 5J(4)(a). It also finds that the persecution that the applicant fears, involves systematic and discriminatory conduct, in that it is deliberate or intentional and involves the selective harassment of the applicant for reason of her religion: s 5J(4)(c).
The Tribunal has also considered whether any of the exceptions or qualifications apply in the circumstances of this case. In relation to whether the applicant can access effective protection in Iran, the Tribunal is not satisfied that such protection is available because the country information indicates that it is the Iranian government that would be responsible for the persecution: s 5J(2) and s 5LA. Country information indicates that persecution of Christian converts from Islam can occur in any part of Iran; accordingly, the Tribunal is not satisfied that the applicant can relocate to another province or city in Iran to avoid persecution: s 5J(1)(c).
In relation to the qualification in s 5J(3), as found above, the Tribunal does not consider it reasonable to expect the applicant to modify her conduct by discreetly practising her Christian faith and not sharing her faith with others, as this, in the Tribunal view, would require the applicant to conceal her true religious beliefs, including ceasing to be involved in the practise of her faith. Accordingly, s 5J(3) does not apply in this case.

116. The Tribunal has also considered the effect of s 5J(6), which provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.
117. As noted above, while the Tribunal was concerned about the applicant’s initial conduct and her motivation for converting to Christianity, the Tribunal is satisfied on the strength of the evidence before it that the applicant has, since lodgement of the application, become a genuine convert to Christianity and that her conduct, including regular church and bible study attendance, involvement in her church’s activities, sharing her faith with others and taking her stepdaughter to church, was undertaken for reasons other than to strengthen her claims for protection. Accordingly, s 5J(6) does not apply in this case.
118. Given the above, the Tribunal finds that the applicant has a well-found fear of persecution. The applicant is outside her country of nationality (Iran) and, due to her well-founded fear of persecution, is unable or unwilling to return to avail herself to the protection of that country.
119. 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
120. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
R. Skaros
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.
…

[2022] AATA 466

7 February 2022

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