1910171 (Refugee)

[2024] ARTA 610

1910171 (REFUGEE) [2024] ARTA 610 (30 OCTOBER 2024)

DECISION AND  

REASONS FOR DECISION

Representative:  Mr Sirous Ahmadi (MARN: 0854826)

Respondent:Minister for Home Affairs

Tribunal Number:  1910171

Tribunal:General Member A Anderson

Date:30 October 2024

Place:Melbourne

Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that the applicants meet s 36(2)(a) of the Migration Act.

Statement made on 30 October 2024 at 4:28pm

CATCHWORDS

REFUGEE – Protection Visa – Iran – religion – converted to Christianity – an apostate – political activities in Iran and Australia – religious conversion has become known to the authorities – applicant faces a real chance of serious harm – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024

Migration Act 1958, ss 5, 36, 65, 423, 499

Migration Regulations 1994, Schedule 2

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

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 March 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants, who claim to be nationals of Iran, applied for the visas on 17 June 2016. The delegate refused to grant the visas on the basis they did not meet the criteria for the grant of a protection visa.  

3. The first and second named applicants appeared before the Administrative Appeals Tribunal (the AAT) on 19 August 2024 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Persian and English languages.

4. The applicants were represented in relation to the review. The representative attended the hearing.

5. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

   BACKGROUND

6. The first named applicant (the first applicant) and the second named applicant (the second applicant) are a married couple. They married on 20 April 2004 in Iran. The third named applicant (the third applicant) is their [age]-year-old daughter.

7. The first applicant is a [age]-year-old man born in [Mazandaran], Iran. He was raised in Mashhad, where his two siblings and parents still reside. The first applicant has a bachelor’s [degree]. Prior to leaving Iran, he had roles as a [manager] at several [companies] and at [a workplace]. He then founded his own [company] with his brother.

8. The second applicant is a [age]-year-old woman from [a city], Iran. She has a [degree] and worked at a [workplace] in Iran. She and the other applicants left Iran so that the second applicant could undertake her [study] in Australia.

9. The applicants first arrived in Australia on [date] April 2015 on [temporary] visas. The second and third applicants have returned to Iran four times since the date of their first arrival in Australia, on the following dates:

   a.[date] September 2015 – [date]  October 2015 (visit 1);

   b.[date]  February 2016 – [date]  March 2016 (visit 2);

   c.[date]  August 2017 –[date] September 2017 (visit 3); and

   d.[date]  September 2018 – [date] October 2018 (visit 4).

10. The applicants lodged an application for a protection visa on 17 June 2016. 

    Evidence before the Department

11. Material provided by the applicants to the Department in support of their visa application includes as follows:

    a.Identity documents including current and previous passports and birth certificates (and translations);

    b.Marriage certificate between the first and second applicant and translation;

    c.Baptism and Confirmation certificates of the first and second applicant;

    d.Resumés, work insurance records and University degree certificates in relation to the first and second applicants;

    e.[A] business license in respect of the first applicant;

    f.Photograph depicting the applicants with other church congregants at the baptism ceremonies of the first and second applicants;

    g.Flight itinerary in respect of visit 2 to Iran in February-March 2016; and

    h.Letter from Bishop [A] of [a] Ward (undated), stating that the first and second applicant had been baptised as members of the church;

12. In a statement accompanying their protection visa application, the first applicant stated that approximately six months after he and the other applicants arrived in Australia, they were invited by two missionaries to attend ([Church 1]). Several weeks later they went to the [Church 1], where they were warmly welcomed. Since that time the applicants have regularly attended the church as well as educational classes and meetings through the church. He stated that they have experienced a sense of peace and tranquillity there and after a few weeks realised that they wanted to be Christian. This was because Islam was associated with violence and fighting whereas Christianity is the religion of peace and happiness.

13. The first applicant claimed that after they decided to be baptized, they continued attending educational classes to be prepared for the baptism. During that time he spread Gospel principles to family and friends via social media and telephone conversations, trying to persuade them to convert to Christianity for their salvation.

14. In February 2016, following the death of the second applicant’s father, she and the third applicant returned to Iran for the funeral. The second applicant brought the Book of Mormon and other educational pamphlets and books with her in her bag which were discovered by the authorities when she arrived at the airport. The second applicant denied that they were hers, telling the authorities that they belonged to her husband, the first applicant. She stated that he had packed his belongings in her luggage but that when he decided not to go, he had forgotten to remove them. This was plausible because the second applicant had male clothing in her bag which were intended as gifts for relatives. 

15. According to their statement, the second applicant was made to sign a declaration letter and to give contact details in Iran. Subsequently a man named [Mr B] visited her family home and told the second applicant to attend an appointment at the Ettala’at offices in Mashhad to answer questions. The second applicant went to the appointment with her uncle, as she thought he could help her because he had government connections. At the appointment, the second applicant was questioned and continued to explain that it was her husband, the first applicant, who had converted to Christianity and who was a member of the [Church 1] and that the books and other materials had nothing to do with her. She stated that she was a Muslim and denied that she had converted.

16. The applicants claimed that [Mr B] told the second applicant that the first applicant was mortad, or an apostate, and that he would be prosecuted and sentenced to death. He stated that Mormons, who originally come from the US, are religious spies. They also knew that the first applicant had tried to convert others, including family members. [Mr B] warned the second applicant that she was forbidden from living with the first applicant and that she should separate from him. The second applicant signed a declaration that she would do so. A few days later her uncle told her that as far as he knew she was believed and was considered innocent. They had believed that the first applicant was the one who had converted because he was once suspended from university for raising questions about Islam and because he had spoken to other people about his religion. 

17. The applicants also claimed that an uncle of the first and second applicant was a religious leader in Mashhad and that he had issued a fatwa on the first applicant which said that he should be killed.

18. After this incident, the second and third applicant returned to Australia and the first and second applicants were subsequently baptised into the [Church 1] in May 2016.

19. In April 2016, the first applicant’s brother, who has power of attorney over the first applicant’s business dealings, went to the bank to transfer money to the applicants in Australia. He discovered there that the bank accounts had been frozen. When he investigated this further at the courts, he was told that a warrant of distress (to seize properties) had been issued against the first applicant at the request of Ettala’at because he was an apostate.

20. The departmental file indicates that the applicants were interviewed by the delegate on 16 January 2019. The delegate’s decision record indicates that at that interview the applicants provided the following documents:

    a.Letter from [a named doctor], [a] Medical Centre, dated 13 May 2017 (indicating that the second applicant had been seen for several months for generalised anxiety disorder);

    b.Referral letter from Dr [C], [a] Medical Centre, dated 13 January 2019 (seeking an opinion on and management of the second applicant in respect of depression/anxiety and Post-Traumatic Stress Disorder (PTSD));

    c.Health plan by Dr [C], dated 13 January 2019 (indicating the second applicant had disclosed experiences of trauma including ‘war in Iran’ and ‘capture by government after changing religions’);

    d.Copy of document and translation, dated 21 October 2018, indicating the second applicant had sought to divorce the first applicant in an Iranian court;

    e.Letter of support from [Ms D], congregant of the [Church 1].

    f.Copy of court document and translation, dated 7 April 2016, in relation to the freezing of the first applicant’s assets.

21. Following the interview, on 22 January 2019, the applicants provided further information to the delegate, key points of which are summarised as follows:

    a.The first and second applicants did not have faith in Islam when they were in Iran. They did not go to the mosque or pray at home;

    b.They were both interested in finding out more about Christianity when they were in Iran. The first applicant visited a church on one occasion pretending that he just wanted to see the building structure. They could not decide to convert in Iran because it would be very dangerous;

    c.The second applicant’s experience in Iran was terrifying and that experience combined with her stress and anxiety over her [study] and parenting responsibilities have caused her to suffer poor mental health. She is taking anti-depressants and seeing a psychologist;

    d.After the second and third applicants returned from Iran, the applicants discussed the experience with church members, one of whom is a lawyer who told them about protection visas and helped them to fill out the forms; 

    e.The applicants did not apply for protection when they first arrived in Australia because they did not face any problems at the time. Once they had the problem, they realised they could not return to Iran because there are restrictions on Christians and because the first applicant could be executed for his membership of a heretical sect, the Mormons, which the Iranian government already knows about;

    f.The first applicant has already been charged with apostasy. They know this based on the evidence they provided that his assets had been confiscated in accordance with Article 108 of the Revolutionary Court Procedure Code;

    g.The second applicant returned to Iran after this time because her mother was depressed and had undergone heart surgery. Her brother was away and her mother needed her. She was able to return because it is the first applicant’s life which is in danger, not hers. The second applicant would be in danger if she wanted to live with the first applicant in Iran. On her last visit she lodged a file to legally separate from the first applicant;

    h.The second applicant cannot return to live in Iran because she would not be free to pray or worship in Iran and because if someone realises that she has converted she will be sentenced to prison. If that happened, the government could take their daughter and send her to an orphanage or give her to a religious family;

    i.The applicant’s daughter is preparing to be baptised soon. The first and second applicants did not want to tell her which religion to follow given their backgrounds of being forced to be Shi’a. The third applicant has decided on her own that she wants to be baptised. She would not be able to return to school in Iran because she would have to hide her true beliefs and follow Islamic worships at school;

    j.The applicants do not know who told [Mr B] that the first applicant had been trying to convert family members but they suspect it was their relative [name], who is a religious leader in Mashhad.

22. The applicants referenced and provided various country information reports in support of their claims to face serious harm in Iran as Christian converts.[1]

    [1] Extracts from the following were provided: United States Commission on International Religious Freedom, 2016 Annual Report – Iran (2 May 2016); The Christians in Parliament All Party Parliamentary Group and the All Party Parliamentary Group for International Freedom of Religion or Belief Joint Report, The Persecution of Christians in Iran (March 2015); Press Release: Court of Justice of the European Union, ‘Judgment in Joined Cases C-71/11 and C-99/11 Bundesrepublik Deutschland v Y and Z’ (5 September 2012).

23. In the decision record of 27 March 2019, the delegate accepted that the first and second applicants had been non-practicing Muslims in Iran and that they had attended a Mormon baptism ceremony in 2016 and an [Church 1] for six months.

24. The delegate did not accept any of the applicants’ other claims to be true. She did not accept that the first and second applicants had been interested in Christianity before leaving Iran; that the applicants had genuinely converted to Christianity or that they had attended church after the initial six-month period which had solely been to secure their baptism; or that the first applicant had been proselytising since becoming a Mormon.

25. Nor did the delegate accept that the first applicant was considered an apostate in Iran. The delegate considered that it was implausible that the second applicant, a highly educated person, would take Christian materials with her on a trip to Iran and that she would be prepared to repeatedly return, particularly with her child in tow, once she had been caught with these materials. The delegate considered it significant that the Iranian authorities had not imposed a travel ban on the second and third applicants preventing their return to Australia.

26. The delegate found that they would not continue any practice of Christianity on return to Iran and that accordingly they would not face a real chance or real risk of serious or significant harm in Iran on this basis.

    Evidence before the Tribunal

    Pre-hearing submissions

27. The Tribunal has listened to the audio recording of the departmental interview and has had regard to the material on the departmental file relating to the protection visa application, including the material listed above at paragraph [11], [20] and [21].

28. On 24 April 2019, when the applicants lodged their review application with the Tribunal, they provided a number of documents, including the following documents which had not already been provided to the Department:

    a.Submission in response to the decision letter, addressing the delegate’s credibility concerns;

    b.Various articles on apostasy in Iran and political protests;[2] and

    c.Letter from [name], Bishop of [a] Ward (dated 30 March 2019), stating that the applicants have regularly attended church services and participated in social activities since moving from [a city] to Victoria.

    [2] Unattributed and undated Word document on apostasy in Iran; United States Department of State (USDOS), Iran 2017 Report on International Religious Freedom; Wikipedia, 2017-19 Iranian Protests against compulsory hijab; ‘Christian Convert Arrested in Esfahan, Iran Released on Bail’ Mohabat News (7 February 2019); ‘Christian Sisters Arrested in Iran Released on Bail’ Mohabat News (6 January 2019); Iranian Christian Convert Charged with Unfounded Allegations Temporarily Released’ Mohabat News (2 January 2019); ‘Over 11 Iranian Christians Arrested by Intelligence Officials’ Mohabat News (13 December 2018); ‘The mother of Ebrahim Firouzi, a Christian convert, dued due to being away from her child’ Mohabat News (4 December 2018); ‘Two Christian converts, Behnam Ersali and Dawood Rasooli, were arrested in Mashhad and Karaj’ Mohabat News (19 November 2018); ‘Two other Christian Converts Arrested in Ahvaz’ Mohabat News (19 December 2018); ‘Iran – Jamshid Derakhshan, a Christian convert, was arrested’ Mohabat News (14 December 2018); Unattributed and undated PDF document about Youcef Nadarkhani; The Christians in Parliament All Party Parliamentary Group and the All Party Parliamentary Group for International Freedom of Religion or Belief Joint Report, The Persecution of Christians in Iran (March 2015); Christians in Parliament All Party Parliamentary Group Report on the Persecution of Christians in Iran (October 2012).

29. Additionally, prior to the case being constituted to the Presiding Member, on 26 June 2022 the applicants provided a baptism and confirmation certificate in relation to the third applicant, recording that she was baptised on 24 August 2019. On 28 November 2022, the applicants provided an updated letter from their Church Bishop, Mr  [E], dated 27 November 2022.

30. In his letter, Mr [E] states that he has known the applicants since 2018 when they moved from [a city] and that they attend church services regularly. Additionally, Mr [E] states that the first applicant voluntarily serves as [a] rep and that the second applicant volunteers as [a] leader, teaching toddlers on Sundays about Jesus Christ, and caring for the children while their parents are in Sunday school classes.

31. On 1 August 2024, the Tribunal received from the applicants’ representative:

    a.Legal submissions;

    b.Updated letter from Bishop  [E], dated 5 July 2024;

    c.Photographs of the first applicant attending political protests in Melbourne;

    d.Screenshots and translations of political and religious social media posts of the first applicant;

    e.Statutory declarations by [name] (6 July 2024); [name] (18 July 2024); [Ms D] (5 July 2024); [name] (24 July 2024), friends and congregants of the [Church 1].

32. Subsequently, on 15 August 2024, the Tribunal received a medical certificate from [a named doctor], dated 15 August 2024, stating that the second applicant has been suffering from Post-Traumatic Stress Disorder for many years and is on antidepressant medication.

33. The submissions from the representative referred to the applicants’ previous claims relating to their conversion to Mormonism and ongoing participation in the [Church 1]. It also raised new claims relating to the first applicant’s social media and political activities as well as his attendance at anti-regime protests in Melbourne in 2017, 2019 and 2022 which, it was submitted, heighten his risk of harm if returned to Iran. The submission also addressed the delegate’s concerns outlined in the decision record and referred to character evidence relating to the applicants. 

    The first applicant’s evidence at hearing

1. The first applicant told the Tribunal that he had grown up in a family where Islam was practiced, and that he himself had been faithful until about the age of [age] or [age] years old when he began to question Islam. This was because they were taught in school that if they did not follow God that they would be punished and they were physically punished at school. The first applicant stated that he began to question what kind of god was watching and waiting for him to do something wrong rather than guiding him. Instead of taking his hand as a helper, God took his wrist like a wrong-doer. Gradually, the first applicant moved away from Islam as he realised that he wanted a God that he could hold inside his heart rather than following a God out of fear or force.

2. The first applicant stated that he had to keep pretending to follow Islam for his last two years of school or he would be punished. Once he went to university, he had more free time and spent this independently learning about Islam. He stated that the more he studied, the more he found God to be a blood shedding and vengeful entity and the more he found problems in the Qu’ran. The first applicant gave several examples to the Tribunal of passages and parts of the Qu’ran that made him realise that this text could not be the word of God. For example, in one section of the Qu’ran, God says that his words are fixed and unchanging. In another, he says that if he changes his words, it is because he wants to use better words. The first applicant stated that this could not be from God, as he who is aware of everything does not need to change his words. He stated that it is clear that the Qu’ran came from man and that in Iran the government has made the people pay because of the way it rules according to these words.

3. The first applicant stated that he raised questions like the above in his religious classes at university because he was curious. He tried to be cautious so that he was not outing himself as a non-believer but rather someone who had heard others raise these questions. At university the first applicant also established a student political group with a few likeminded friends. They discussed civil freedom and democracy in this group. While the group was permitted under university rules, the first applicant’s questions in class and membership of this committee led to him being suspended from university for a time. This made his degree take five years rather than four years. During his suspension the applicant studied more about religion at home, including learning about Christianity. He studied the story of Jesus Christ.

4. The first applicant told the Tribunal that after university, in his working life, he continued to talk to family members, friends and colleagues he trusted about some of the problems he saw with Islam and some of what he had learned about Christianity. Some people were indifferent; some people listened to him. Others would tease him. The first applicant stated that he saw this as something he had to do. He felt he had to make people aware of what he knew because he believes that human beings should be responsible to those around them and to their country. He stated that he believed that if he can get people to distance themselves from the Iranian government’s interpretation of Islam then it would be possible to get rid of the government. The first applicant stated that despite trying to talk to trusted colleagues cautiously about his religious ideas, he became known for doing this and this led to his contract at [a workplace] not being renewed.

5. In relation to joining the [Church 1] in Australia, the first applicant elaborated on the statement he had made in his protection visa application. He stated that he was open to attending the [Church 1] once they had been invited because he had always had the feeling of a void inside him, particularly since renouncing Islam, and he wanted to be connected to a god. He stated that he had been asking God to show him the right path and a way to reach peace and therefore when the missionaries came to their house, he felt that they were from God and Jesus. He stated that in Matthew’s book it says that God’s abundance comes in its own time. When they first went to the [Church 1], the first applicant felt peace and belonging. He felt like he and the other church members all knew each other from before even though they had never met.

6. The first applicant told the Tribunal that once he started attending services regularly and socialising with other families, he saw the other church members had serenity, peace and love in their families. The first applicant displayed visible emotion when recounting this experience, and when asked the reason for his emotion, he stated that it was because his people need this love immensely and do not have it.

7. In relation to his ongoing religious activities in Melbourne, the first applicant stated that he and the other applicants go to church services on Sundays. He described those services and the times that he has spoken or done readings during services. The first applicant also described attending classes to talk further about the church teachings. He also attends meetings at times to discuss how they can help people in need. Sometimes he arranges to go to visit elderly people and do prayers with them. The first applicant also stated that he is responsible for arranging the roster for church cleaning and being there to let in the volunteers to do their cleaning.

8. The first applicant told the Tribunal that since he has started exploring Mormonism in Australia that he has continued to call friends and relatives in Iran and tell them about his faith and to explain what they will get from bringing Jesus Christ into their lives. Some people have cut contact with him as a result and he does not speak to his extended family members, including [name]. The first applicant stated that he does this because he wants people to reach the same peace as he has, and he is motivated to keep doing it because if he can attract one person out of 100 to Mormonism that would make him happy.

9. The Tribunal queried why the first applicant has made social media posts about his religion and against the Iranian government under his own name, with a publicly visible profile. The first applicant responded that he did not see why he should hide himself. He stated that his people can only reach victory when they cast away their fears and that the regime will only end when it knows people are willing to die.

10. At hearing, the first applicant elaborated on new claims relating to past political activities in Iran and attendance at protests in Australia, which as noted above, were first raised in the pre-hearing submission to the Tribunal of 1 August 2024. The first applicant stated, in relation to his activities in Iran, that when he was a student at university, he and many other students rushed to Tehran to protest when students were killed by security guards and police at Tehran university. At the protest, the first applicant was beaten on his back and he was then arrested the following day and held in detention for three days. While in detention he was interrogated and insulted. He signed an undertaking and was released.

11. The first applicant also stated that he had attended Green Movement protests in 2009 in Mashhad, though he did not come to the attention of the authorities for this participation. When asked, he stated that his political activities had continued in Australia because he felt that it was his duty to be involved and to be active and because he wanted to express his opinions about the brutality of the cruel regime in Iran because it upsets him so much. He stated that he was involved in the rallies in 2019 over petrol costs and in the woman life freedom protests from 2022. He became visibly distressed discussing these events because of the hundreds of people killed in Iran for attending these protests.

12. The Tribunal raised with the first applicant that he had not made these claims about his political activities in Iran and Australia at the primary stage. The first applicant told the Tribunal that he did not have a lawyer until after he lodged his application to the Tribunal and that he was not aware that these events were important. He was focused on talking about his religion. He stated that his lawyer had told him that he had to explain everything.

13. The first applicant stated that he was not aware if he had been charged or tried in absentia for apostasy or another offence. He only has a photo of a court document taken by his brother which shows that the intelligence department in Mashhad had sent an order to the courts to have his assets, including his  [license], confiscated. The first applicant stated that his brother had gone to the courts to enquire into why the company that the first applicant and his brother had founded had been stopped from operating. On the basis of this document, the first applicant stated that he fears being arrested by the authorities because they know about his religion. The first applicant stated that now that his religious conversion had been identified by the government, that his past political activities, including his involvement in protests, conduct at [a workplace], and his suspension from university would be discoverable and make matters worse.

14. He also stated that he fears being harmed by his relatives or other members of the community because his cousin, [had] said during a sermon that the first applicant was an apostate and should be killed.

    The second applicant’s evidence at hearing

15. The second applicant provided updated information to the Tribunal at hearing on her mental health condition and current treatment, stating that she continues to take anti-depressants. She also stated that she gets twice yearly injections of botox in her neck to loosen the muscles, which are otherwise very tight and sore as a result of her stress. While the second applicant stated that she attends counselling sometimes, she otherwise tries to use her faith to help her accept that she has mental health problems and to learn how to manage them. She confirmed to the Tribunal at the outset of her evidence that she felt comfortable to give evidence in the hearing setting.  

16. The second applicant stated that she and the first applicant were first cousins and so they shared the same extended family members, including [name]. She told the Tribunal that while members of her extended family were extremists, her own family was not. Her father was an intellectual and had travelled widely as an international merchant, meaning he had an understanding of the world outside Iran. Her father’s way of thinking was transferred to her and within her immediate family they had many discussions exchanging ideas which were very different to the way other people thought outside of their circle.

17. Despite this, the second applicant stated that she had always felt the need to have a religion and a relationship with a god and to do the right things. In Iran she had practiced Islamic rituals but she stated that she was not satisfied with Islam. Prior to leaving Iran however, she had not thought to convert to Christianity because she had been taught in Iran that changing your religion is not possible and could lead to being killed. She had, however, gained basic knowledge about Christianity at school and through reading some books outside of school. She had liked to do this because she found the religion more peaceful than Islam. By university, the second applicant was feeling more and more dissatisfaction with the state and blamed religion for these issues. She stated that while she respects all religions, the way the people governing the country are using Islam, as well as some of the issues within the religion itself, has led to the bad situation Iran is in now.

18. The second applicant provided evidence consistent with that of the first applicant on how the applicants joined the [Church 1] in Australia. In relation to why she joined and how it made her feel, the second applicant told the Tribunal that after she arrived in Australia she had been struggling emotionally because she was missing her family, her [study] course was difficult, and Australia was unfamiliar. She had also found out that her father had advanced cancer, her daughter was missing her grandmother, and the first applicant who had had a high income in Iran was not able to find a job. After she attended the [Church 1] for the first time, even though she did not understand at that stage all the details of what was discussed, she left feeling lighter and with a sense of belonging and peace. She had been feeling so bad and after attending she felt like God had not forgotten her.

19. The second applicant stated that she currently attends church services every Sunday and after the service voluntarily looks after the young children of other congregants so that they can attend the adult Sunday classes. Every so often she is relieved of these duties so that she can attend the adult classes. The second applicant also attends biannual church conferences. Additionally, she studies the book and prays at home regularly. The second applicant stated that outside of the church, she uses her faith to guide her decision-making. With all decisions, she considers carefully whether it will serve for her betterment as well as not being harmful to other people. For example, she does volunteer [work] and visits elderly people because it makes her happy to help others.

20. In discussing the second applicant’s experiences in Iran, the Tribunal raised the delegate’s concerns with the applicant as to why she took religious materials with her to Iran. The second applicant responded that she had taken the materials because she needed to study for her upcoming baptism, but that more importantly, that having the books physically on her gave her the feelings of peace that she experienced at the church, which she felt she needed on that trip because she was returning to Iran after the death of her father, having missed his funeral. Additionally, she stated that she was not expecting to have her bags searched as this was not ordinary procedure. It had never happened before. She thought her bags may have been searched because at the time a lot of Iranians were bringing Apple iPhones into the country to sell which the authorities wanted to stop.

21. The Tribunal also raised the delegate’s concern with how she was able to enter and leave from Iran on subsequent visits without issue from the authorities. The second applicant stated that she had distanced herself from being Christian in their eyes, by pretending that the religious materials were her husband’s, by subsequently presenting to the authorities and signing a declaration to that effect, and, on the fourth visit, by lodging an application to divorce her husband. The second applicant stated that while her husband was in trouble, she was perhaps under suspicion but not directly accused of being an apostate.

22. In relation to the divorce, the second applicant stated that as a woman, she was subject to a long divorce process with many steps. She had completed only the initial steps on the advice of her uncle to avoid more suspicion about her own religious status. She submitted a form and had a preliminary session with counsellors. The application did not proceed further because ordinarily couples would need to attend further counselling sessions together and present at a court more than once to settle the terms of the divorce. The second applicant stated that as a woman, she would have needed to follow up this application to make it proceed further, which she did not do because she did not want to divorce her husband. The application has remained pending because she has not taken further action on it.

23. When asked about her fears on return, the second applicant stated that she would be at risk because her husband is bold and speaks the truth and because it would also be obvious that they had not divorced. She also feared that she would lose herself. She stated that she was now a different person as a result of her religious conversion and that she could not accept living the way she had in the past. Her religion had changed the way that she was and she would not be able to stay silent as she had in the past. She stated that she no longer covers herself and is able to be more free as a woman here. In Iran, she would have no choice but to cover and would have no rights as a woman. 

24. She stated that it was now a part of her to express her beliefs freely so that when asked she would say that she was a Mormon. She would also speak more widely to other people about it so that her people, whom she loves, can also find a better life. If there were more anti-regime protests, she would go. When asked if she had ever attended any before, she said she had not but that because she has a daughter and loves her people, she would not stay silent in the future. Because of her religion and time in Australia, how she lives and expresses herself has changed.

25. The second applicant stated that she would not be able to practice her religion on return to Iran. While she might be able to pray privately for a while at her mother’s house, or go online, she would not be able to pray or do anything in public or with other people, which she stated is an important part of her life now. She feared for her and her daughters’ safety because it would be obvious that they were still family members of the first applicant.

    Independent country information

    Christian converts

26. Article 13 of the Constitution of the Islamic Republic of Iran states that the only recognised non-Muslim religious minorities in Iran are ‘Zoroastrian, Jewish, and Christian Iranians’.[3] Reports indicate that, in practice, the only Christian groups that are officially recognised by the Iranian government are Armenian, Assyrian and Chaldean Christians, as well as Sabean-Mandaeans. Iranian citizens who are able to prove they or their families were Christian prior to 1979 are also recognised.[4] Conversions to Christianity that took place after 1979 or that take place outside of Iran are not recognised by the government and a person claiming to be Christian who cannot prove their family was Christian prior to 1979 would be considered Muslim by the authorities and potentially subject to apostasy laws.[5] 

    [3] 'Constitution of the Islamic Republic of Iran', Alavi and Associates, 11.

    [4] 'International Religious Freedom Report for 2019 - Iran', US Department of State, 10 June 2020, Section II; Department of Foreign Affairs and Trade (DFAT), Country Information Report Iran (24 July 2023) [2.79].

    [5] DFAT, Country Information Report Iran (24 July 2023) [2.79]-[2.80].

27. Although the LDS Church was given official recognition by the Iranian government in 1977,[6] the Iranian Revolution of 1979 led to the closure of all LDS units in Iran and removal of its missionaries. Since then, conversion efforts have been concentrated on Iranians living overseas and there is currently no formal missionary activity in Iran.[7] Official LDS Church policy warns against teaching in countries where Christian proselytising is banned, such as Iran.[8]

    [6] Mormon Church in Iran – A brief history and Iranian Mormon converts‟ 2009, Mormon World website, 21 June ‘International Latter Day Saints Database: Iran’ (undated), Cumorah: International Resources for Latter Day Saints ‘The Church in the Middle East and Muslim Nations’ 2009, LDS Church Growth website, 1 February Yildiz, I. 2003, ‘The Missionary Works of the Church of Jesus Christ of Latter-day Saints in the Middle East’, paper presented at 18th Annual Middle East History and Theory Conference, Center for Middle Eastern Studies: University of Chicago, 9-10 May ilhan.doc.

    [7] Mormon Church in Iran – A brief history and Iranian Mormon converts‟ 2009, Mormon World website, 21 June Ibid.

1. The DFAT report on Iran indicates that there are a small number of recognised Christians (from the abovementioned denominations) in Iran who are permitted to attend services at authorised churches.[9] The activities of recognised Christian communities are closely regulated, to guard against proselytization.[10] Since 2012, the government has banned converts from attending services in registered churches.[11] Reports indicate that the regime has increased surveillance and monitoring of authorised churches in recent years, as part of an expansion associated with a crackdown on unauthorised house churches.[12] For instance, most (if not all) registered churches are monitored with government security cameras.[13] Security officials have also monitored congregations to perform identity checks on attendees to ensure that they are not converts.[14]

   [9] DFAT, Country Information Report Iran (24 July 2023) [2.81].

   [10] Ibid.

   [11] Austrian Centre for Country of Origin Information and Asylum Research and Documentation (ACCORD), ‘Iran: House Churches; Situation of Practising Christians; Treatment by Authorities of Christian Converts'  Family Members’ (14 June 2017) 8.

   [12] United States Commission on International Religious Freedom (USCIRF), 'United States Commission on International Religious Freedom Annual Report 2019' (29 April 2019) 54; Landinfo - Norwegian Country of Origin Information Centre, 'Iran: Christian converts and house churches (2) - arrests and prosecutions' (29 November 2017) 3; Danish Immigration Service and the Danish Refugee Council, ‘Iran: House churches and converts’ (February 2018) 15.

   [13] Open Doors, 'Iran: Full Country Dossier' (1 December 2023) 46; The Christians in Parliament All Party Parliamentary Group and the All Party Parliamentary Group for International Freedom of Religion or Belief, 'The Persecution of Christians in Iran' (1 March 2015) 6.

   [14] DFAT, Country Information Report Iran (24 July 2023) [2.81].

2. On the phenomenon of house churches, the DFAT report on Iran states that:

   House churches vary in size, style and structure. Most are small and informal, and consist of close family and friends gathering on a regular or semi-regular basis to pray, worship, read the Bible and/or watch Farsi Christian television programs broadcast via satellite or discs smuggled from abroad. Foreign Christian missionaries, to which asylum seekers may have links, may participate in Iranian Christianity through house ‘internet pastors’ who preach and conduct services remotely via the internet. Local Christian leaders and adherents may be foreign trained while overseas.[15]

   [15] DFAT, Country Information Report Iran (24 July 2023) [2.84].

3. DFAT advises that Iranian authorities interpret the growth in house churches as a threat to national security and periodically carry out raids against them.[16] Raids reportedly focus on house churches that actively proselytise or seek out new members.[17] Such raids usually occur as a result of Muslim neighbours informing on congregations, though DFAT notes information from some sources that the government sends people posing as converts to infiltrate house churches.[18]

   [16] Ibid [2.85].

   [17] Ibid.

   [18] Ibid.

4. In relation to the consequences for people discovered participating in house churches, DFAT notes that while not a common outcome, prison or the death penalty for apostasy is possible.[19] Years or even decades-long prison sentences are also possible.[20] DFAT reports for example that three Christians in the city of Karaj, near Tehran, were sentenced to nine years in prison in August 2021 under recently implemented changes to the Islamic Penal Code targeting ‘propaganda contrary to Islam’.[21] 

   [19] Ibid [2.86].

   [20] Ibid.

   [21] Ibid.

5. While some sources note that the majority of arrests of Christians in recent years have been the result of raids on house churches[22] and that most are released after a short time in exchange for signing a declaration that they will cease their activity,[23] other sources observe that an increasing number of non-leaders have faced national security charges in recent years.[24]

   [22] Landinfo -Norwegian Country of Origin Information Centre, 'Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise' (27 November 2017) 24.

   [23] Ibid; Article 18, Open Doors, Middle East Concern, Christian Solidarity Worldwide, 'Faceless Victims: Rights Violations Against Christians in Iran 2024 Annual Report' (19 February 2024) 21.

   [24] Open Doors, ‘Iran: Full Country Dossier’ (January 2022) 30.

6. While the exact number of arrests and convictions is unknown due to many cases going unreported,[25] arrests and prosecution of Christian converts continued in 2023 and 2024. According to a joint report by four Christian advocacy groups, 166 Christians were arrested in 2023, the majority of which were converts.[26] Comparatively, 134 Christians were arrested in 2022[27] and 59 were arrested in 2021.[28]

   [25] Article 18, Open Doors, Middle East Concern, Christian Solidarity Worldwide, 'Faceless Victims: Rights Violations Against Christians in Iran 2024 Annual Report' (19 February 2024) 18, 28.

   [26] Ibid 18.

   [27] Article 18, Middle East Concern, Open Doors, Christian Solidarity Worldwide, '2023 Annual Report: Rights Violations Against Christians in Iran' (19 February 2023) 11.

   [28] Ibid; Article 18, Open Doors, Middle East Concern, Christian Solidarity Worldwide, 'Rights Violations Against Christians in Iran - Annual Report 2021' (25 January 2022) 10.

7. Reports indicate that after they are detained, converts are sometimes interrogated and released within days, sometimes charged, or sometimes held (in some cases without charge) for months.[29] If released without charge after a raid, an ordinary convert will likely continue to be monitored and might be detained for periodic interrogation as a means of intimidation.[30]

   [29] Finnish Immigration Service, ‘Christian Converts in Iran’ (21 August 2015) 11; Open Doors, Article 18, Middle East Concern,  Christian Solidarity Worldwide, 'Annual  Report 2020 - Rights violations against Christians in Iran' (2 February 2021) 11. Recent examples include: ‘Two Christians

   [30] Danish Immigration Service and the Danish Refugee Council, ‘Iran: House churches and converts’ (February 2018) 7.

8. Independent reports also indicate that those most likely to be prosecuted are church leaders or those engaged in proselytising activity.[31] Most of those who are convicted have usually been arrested or convicted previously, had contact with foreign organisations, or published online about their faith.[32] There are reports of beatings, solitary confinement and sexual and psychological abuse of converts in detention.[33]

   Political opinion and protests

   [31] UK Home Office, ‘Country Policy and Information Note - Iran: Christians and Christian converts' (27 February 2020) 7-8; Landinfo -Norwegian Country of Origin Information Centre, 'Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise' (27 November 2017) 25; Danish Immigration Service and the Danish Refugee Council, ‘Iran: House churches and converts’ (February 2018) 7; UK Home Office, ‘Country and Policy Information Note: Iran: Christians and Christian Converts’, (May 2019), paras 2.4.7, 8.2.7, 8.2.10, 8.2.11 & 8.5.1.

   [32] UK Home Office, ‘Country Policy and Information Note - Iran: Christians and Christian converts' (27 February 2020) 8; Landinfo - Norwegian Country of Origin Information Centre, 'Iran: Christian converts and house churches (2) - arrests and prosecutions' (29 November 2017) 20.

   [33] Immigration and Refugee Board of Canada, 'IRN200458.E - Iran: Situation and treatment of Christians by society and the authorities (2017-February 2021)' (09 March 2021); Landinfo - Norwegian Country of Origin Information Centre, 'Iran: Christian converts and house churches (2) - arrests and prosecutions' (29 November 2017) 23.

9. DFAT reports that the constitution protects freedom of belief, association and assembly. However, these freedoms apply only to the extent that they are not ‘detrimental to the principles of Islam’.[34] Topics deemed sensitive by the government include women’s rights, LGBTI rights, criticism of the regime, and relations with the United States and Israel.[35] DFAT also reports that protests can be met with lethal force.

   [34] DFAT, Country Information Report Iran (24 July 2023) [2.103].

   [35] Ibid.

10. In relation to the response by the authorities to the anti-regime 2022 protests sparked by the death of Mahsa Amini, the DFAT report states:

    The government response to protest action has been harsh. Iran Human Rights Group estimated that, as at 3 April 2023, at least 537 people including 68 children and 48 women, died during the protests. While the death toll and the causes of death cannot be verified, reports indicate that the vast majority of deaths have been at the hands of security forces either by firearms or beatings. The government has imposed severe sentences on those arrested, including significant jail time, and in some instances, the death penalty.
    
    

    While the exact number of death sentences imposed on protesters is difficult to determine, as at 13 January 2023, Iran Human Rights Group estimated at least 109 protesters were at risk of execution. DFAT understands at least 15 death sentences have been confirmed – two of which were carried out in early December 2022, with a further two in early January 2023 and three in May 2023.
    
    
    

    [36] Ibid [2.107]-[2.109].

    While there are no official figures, as at 10 January 2023, reliable sources indicated around 20,000 people had been arrested since the protests began. Many have been released either without charge, or pending court hearings. DFAT is aware of harsh sentences being handed to many protesters, including long jail sentences. As at 19 December 2022, DFAT understood 400 protesters had been sentenced to jail, 160 of whom were sentenced to between five and 10 years in prison, 80 sentenced to two to five years, and 160 people to up to two years. Trials have occurred quickly without due process and in secret.[36]

11. Other sources indicate that the Iranian authorities were aware of the activities of some Iranian nationals who participated in anti-government protests in Australia, resulting in harassment and intimidation of family members in Iran.[37]

    Women

    [37] '‘Silencing dissent by threatening family’: Iran cracks down on family of Australian protester', The

12. The DFAT report provides as follows:

    Wearing the hijab is compulsory. By law, women must have their entire body covered except for face, hands and feet. Some women wear the scarf around their neck or use another form of head covering (for example, a hat). Such women risk arrest, particularly during periodic crackdowns. Younger women are more likely to wear their headscarves in this way. Morality police patrols in public places increased in 2022. Following the protests and outcry sparked by the death of Mahsa Amini at the hands of the morality police, they withdrew from the streets. The morality police have been disbanded but there is little sign that enforcement of hijab laws has ceased, with authorities using denial of services in banks and shops and airports as one way to ensure compliance.[38]

    Sources told DFAT in 2019 that enforcement of Islamic dress codes fluctuates, with checks on dress code violations increasing during holy periods (such as Muharram and Ramadan) and the summer season (when many women tend to adhere to dress codes more loosely due to the heat)…[39]

    …

    The UN reported in 2019 that three women were arrested after appearing in an online video protesting against the compulsory hijab law on International Women’s Day, including by removing their headscarves. They were subsequently convicted of assembly and collusion in acts against national security, propaganda against the state, and encouraging moral corruption and prostitution. Two of the women received sentences of 16 years’ imprisonment. The third woman was additionally convicted of ‘insulting the sacred’, and received a prison sentence of 23 years and six months.[40]

    [38] DFAT, Country Information Report Iran (24 July 2023) [2.129].

    [39] Ibid [2.130].

    [40] Ibid [2.131].

13. Overall, DFAT assesses that ‘women perceived by the authorities to be pushing Iran’s moral and religious boundaries face a high risk of official discrimination in the form of arrest, punishment and violence.’[41]

    CONSIDERATION OF CLAIMS AND EVIDENCE

    [41] Ibid [2.144].

    Criteria for protection visa

14. 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.

15. 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.

16. 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).

17. 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.

18. 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

19. 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.

    REASONS AND FINDINGS

20. The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds or are members of the same family unit as such a person and that person holds a protection visa of the same class. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.

    Country of nationality

21. The departmental file contains copies of the biodata pages of the applicants’ Iranian passports. There is no dispute as to their Iranian nationalities and they were assessed on that basis by the Department. The Tribunal finds that the applicants are citizens of Iran and has assessed their claims against Iran as the country of nationality and the receiving country.

    Findings of fact

22. As outlined above, the delegate did not accept that the applicants had genuinely converted to Mormonism. The Tribunal does not share the delegate’s credibility concerns and for the reasons discussed below found the applicants to be witnesses of credit. In this regard, the Tribunal has benefitted from further oral evidence from the applicants and updated witness statements documenting ongoing attendance at and engagement with the [Church 1] in [a suburb] over the past five years since the refusal decision.

23. The Tribunal found that the applicants gave consistent, coherent and logical evidence in relation to their claims and the concerns of the delegate. Specifically, the first and second applicants’ evidence in relation to their reasons for renouncing Islam and becoming Mormons was given in a consistent and credible manner with spontaneous detail indicative of personal experience. In relation to his exploration of the Mormon faith in Australia, the first applicant was able to demonstrate a good level of knowledge of Mormon principles and teachings. The second applicant provided detailed and credible evidence in relation to the significance of her faith to her daily life and her sense of self and the way that her faith has changed her. 

24. The Tribunal notes that the second and third applicants have returned on four occasions to Iran since the date of their first arrival to Australia. Two of these visits have taken place since the Christian materials were discovered by Iranian authorities (during visit 2) and the protection visa application was lodged. While the delegate accepted that these visits occurred because the second applicant’s parents had serious health issues, the visits raised doubts, as described above, about the second applicant’s account of the events which occurred on visit 2.

25. However, in these circumstances, the Tribunal does not consider that return visits 3 and 4 and their ability to exit Iran on both occasions undermine the applicants’ claims to fear harm. In this regard, the Tribunal accepts the second applicant’s evidence that it was her husband who was known to have converted and that by attributing the religious materials to him and filing a divorce application she was able to avoid being punished herself. The second and third applicants’ claimed fears of harm on return relate to their inability to practice their religion safely in Iran in the future and to the consequences of continued association with the first applicant. In the Tribunal’s view the ability of the second and third applicants to return to Iran without the first applicant for relatively short periods is not illustrative of their risk into the reasonably foreseeable future in this regard and the Tribunal does not consider that these visits undermine the genuineness of their claims to fear harm. The well-foundedness of these fears are further discussed in the section below.

26. The Tribunal also notes that the first applicant raised new claims at the Tribunal stage in relation to his past participation in political protests in Iran and Australia as well as a past instance of detention in Iran for involvement in such a protest.

27. Section 423A of the Act sets out the circumstances in which the Tribunal is required to draw
    an adverse inference about new claims or evidence. If an applicant raises a claim or
    presents evidence that was not raised or presented before the primary decision was made,
    then the Tribunal is to draw an inference that is unfavourable to the credibility of that claim or
    evidence if it is satisfied that the applicant does not have a reasonable explanation why the
    claim was not made or evidence was not presented before the primary decision was made.

1. When questioned about why these claims were not included in his protection visa application or raised with the delegate at interview, the first applicant stated that he was not represented until he came to the Tribunal and that he did not realise, until his lawyer told him, that he should mention everything. He stated that he thought that his religious claims were enough on their own. The Tribunal accepts that in some circumstances unrepresented applicants may find it challenging to put their case, and in the circumstances of this case, where the first applicant gave evidence that his past political activities were additive to his profile as an apostate rather than a known profile giving rise to harm on its own, the Tribunal draws no adverse inference about the credibility of those claims merely because they were not presented to the delegate. The Tribunal accepts that the first applicant participated in two separate political protests in Iran, and that he was detained by the Iranian authorities along with many other people because he attended the first protest. The Tribunal also accepts, on the basis of photographic and oral evidence, that the applicant has participated in a number of rallies in Australia since 2017.

2. On the basis of the documentary and oral evidence provided, the Tribunal accepts that the applicants began attending an [Church 1] in 2015 and that the first and second applicants were baptised in 2016, while the third applicant was baptised in 2019. It accepts their evidence about their participation in church services and classes, and that they are actively involved in volunteer service and social events at the [Church 1] [as] well as socialising externally with church congregants. The Tribunal accepts that the first applicant has spoken to friends and family in Iran about his faith both directly and through social media posts. The Tribunal accepts on the evidence provided that the first applicant has also made publicly accessible social media posts supporting Christian principles and denouncing the Iranian regime while in Australia.

3. In relation to the applicants’ religious – and in the case of the first applicant, his political – activities in Australia, the Tribunal has considered the application of s 5J(6) of the Act. Section 5J(6) 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.

4. Having regard to the applicants’ ongoing commitment and engagement with the Church and their explanations for their Mormon faith, the Tribunal accepts that the applicants are genuine about their faith and that their involvement with the [Church 1] in Australia has not been solely for the purpose of strengthening their refugee claims. The Tribunal also finds that the first applicant’s social media posts and participation in political demonstrations in Australia are consistent with a history of behaviour which it accepts began in Iran. The first applicant gave evidence at hearing of his reasons for participating in rallies in Australia, including his strong feelings for the Iranian people and against the ruling regime. The Tribunal therefore accepts that the first applicant engaged in this conduct for reasons other than bolstering his claims and has not disregarded this conduct in its assessment of the risk on return, discussed below.

5. The Tribunal accepts the first and second applicants’ evidence that their faith is part of their lives and that they would seek to continue their practice in Iran were those opportunities available to them. The Tribunal also accepts that the third applicant is a baptised and practicing Mormon. Separate to the applicants’ ability to worship in practice, in relation to the first applicant, the Tribunal accepts that he would continue to be outspoken about his religion and political views, including by participating in political protests in future, and that the second and third applicants would seek to stay together as a family unit and would thus continue to be associated with him. The Tribunal accepts that the applicants, who were born Muslim, would be considered Christian converts in Iran and that the first applicant is already known as such to the Iranian authorities.

   The applicants’ risk of harm on return

6. In view of the applicants’ circumstances and the available country information set out above, the Tribunal is satisfied there is a real chance that the applicants will face harm on return to Iran.

7. In respect of the first applicant, the Tribunal has considered information contained in the DFAT report about the situation for returnees to Iran, as follows:

   DFAT understands their actions (including social media posts about sur place activities) are not routinely investigated by authorities. Iranians with a public profile in Australia (or elsewhere) may have activities visible on social media tracked by the Iranian government.’[42]

   [42] DFAT, Country Information Report Iran (24 July 2023) [2.203].

8. DFAT concludes that unless returnees were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination.[43]

   [43] Ibid [2.204].

9. While the first applicant was not the subject of adverse attention prior to his departure from Iran, the Tribunal accepts that since he has been in Australia his religious conversion has become known to the authorities. It is not known whether the authorities are already aware of his social media activities, but the Tribunal accepts that in the first applicant’s circumstances, with his known profile, that if he is questioned or arrested upon arrival in Iran that his social media activities and past political activities may also be discovered as a result and that this would compound the Iranian authorities’ suspicions that he is a convert with oppositional political views. This is consistent with country information indicating that an individual’s activities from years or even decades earlier can be brought forward upon their arrest.[44]

   [44] Danish Immigration Service (DIS), Iranian Kurds: Consequences of political activities in Iran and KRI (February 2020) 22.

10. Even if the first applicant is not arrested immediately on return to Iran, the Tribunal finds that there is a real chance that he will subsequently come to their attention, including because the Tribunal accepts that he will continue to be open about his religious conversion and political views. Given the recent documented harsh treatment of Christian converts and political dissidents by the Iranian authorities, the Tribunal finds there to be a real chance that the first applicant will be detained, prosecuted and/or subject to the death penalty or prolonged detention, whether this occurs immediately on arrival or subsequently. The Tribunal is satisfied that this amounts to ‘serious harm’ as contemplated by s 5J(5) because it involves threats to life or liberty as well as significant physical harassment and harm.

11. In relation to the second and third applicants, as indicated above, while they have returned to Iran since the discovery of the first applicant’s conversion to Mormonism, the Tribunal does not consider this to be indicative of their risk on return to Iran. The Tribunal’s enquiry is a forward-looking one encompassing the reasonably foreseeable future.

12. The Tribunal has accepted that the applicants will maintain their family unit on return to Iran, that they cannot be reasonably expected to conceal this relationship, and thus that they would continue to be associated with the first applicant, a known apostate. Country information above indicates that family members of political dissidents in Iran have been placed under suspicion and/or subject to intimidatory treatment. Other sources set out above indicate that previously identified suspected Christian converts are subject to monitoring and/or repeatedly subjected to questioning as a form of intimidation. The Tribunal accepts there to be a real chance that the second and third applicants will be suspected of having converted to Christianity because of their ongoing association with the first applicant in spite of the second applicant’s undertaking to divorce him.

100.   Having accepted the significance of the Mormon faith to the applicants’ identities and way of life, the Tribunal is also satisfied, on the basis of the country information set out above and their association with the first applicant, that if the second and third applicants attempted to practice their religion in Iran that this would give rise to a real chance of serious harm at the hands of the authorities, in the form of a threat to their lives and liberty and/or significant physical harm and harassment. The Tribunal is also satisfied that the only reason they would not seek to practice in this way would be to avoid the real chance of persecution.

101.   The Tribunal finds that the applicants cannot be expected to modify their behaviour to avoid a real chance of persecution in Iran, as this would require them to alter or conceal their true religious beliefs or cease to be involved in the practice of their faith, and in the case of the first applicant, to alter or conceal his political beliefs.

102.   Therefore, in view of the applicants’ circumstances and the available country information, the Tribunal is satisfied there is a real chance that each applicant will be subject to serious harm on return to Iran, either now or in the reasonably foreseeable future. The Tribunal is also satisfied that the harm feared by the applicants involves systematic and discriminatory conduct and, for the reasons discussed above, that it rises to the level of serious harm as set out in s 5J(5).

103. The Tribunal accepts that such treatment would be for the essential and significant reason of the applicants’ religion and actual or imputed political opinions. As the persecutor is the Iranian state, the Tribunal accepts that effective protection is not available and that the real chance of persecution relates to all areas of Iran. For the reasons set out above, the applicants’ conduct in Australia is not to be disregarded under s 5J(6).

104. Section 36(3) of the Act provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside in a third country. In this case, there is no evidence to suggest that the applicants have any right to enter and reside in any other country and the Tribunal finds that s 36(3) does not apply in the circumstances of this case.

105. For the reasons given above, the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s 36(2)(a).

DECISION

106. The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that the applicants meet s 36(2)(a) of the Migration Act.

Date of the hearing: 19 August 2024

Representative for the Applicant: Mr Sirous Ahmadi

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.

…

sentenced to 8-year prison in Iran’, Middle East Concern (United Kingdom) (9 January 2018);
‘Iran: Christian converts arrested in Dezful’, Iran Human Rights Monitor (United States) (16 October 2017); ‘Recently Arrested Christian Convert Couple still Held in Uncertainty’, Mohabat News (4
October 2017); ‘Iranian Christian Prisoners to Go on Hunger Strike’, Mohabat News (7 February 2017); ‘Imprisoned Iranian convert ‘seriously ill’ after hunger strike’, World Watch Monitor (14 February 2017).

Age - Australia, 16 January 2023; 'How the Iranian regime is intimidating and
surveilling its former citizens in Australia', Australian Broadcasting Corporation (ABC) (News), 05
November 2022; 'Australia says it busted Iran surveillance op targeting activist',
Agence France Presse (AFP) - France, 14 February 2023.