1911022 (Refugee)

1911022 (Refugee) [2022] AATA 2267 (14 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Behrooz Ehsani (MARN: 1576790)
CASE NUMBER:  1911022
COUNTRY OF REFERENCE:                   Iran
MEMBER:R. Skaros
DATE:14 June 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 14 June 2022 at 10:47am
CATCHWORDS
REFUGEE – protection visa – Iran – religion and political opinion – conversion from Islam to Christianity in Australia – anti-government protests and social media activity – consistent and credible claims and supporting evidence accepted despite some concerns – family members’ and husband’s protection visas or applications – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 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 17 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 visa on 1 September 2017 based on claims that she will be seriously harmed if she returns to Iran because of her claimed religious conversion from Islam to Christianity and her claimed political opinion (against the Iranian regime).
On 30 January 2019, the applicant was interviewed by an officer of the Department. The applicant’s evidence was recorded (in part) 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 was not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 13 April 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review. The representative attended the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Based on information provided in the visa application, including details of the applicant’s place of birth, education, family composition, passport details and supporting identity documents, the Tribunal is satisfied that the applicant is a [Age]-year-old citizen of Iran. The Tribunal has accordingly assessed the applicant’s claims for protection against Iran as her country of nationality.
The Tribunal is also satisfied, as indicated in the application, that the applicant is not a citizen of any other country and that she does not have a right to enter and reside in any other country.
It was indicated on the application that the applicant departed Iran (Tehran) on [Date 1] February 2017 on an Iranian passport in her own name. The applicant entered Australia (via Sydney airport) on [Date 2] February 2017 as the holder of a student visa. She commenced an English course, which was a precondition of her study in the master’s degree course. In May 2017, the applicant informed the Department that she had failed the English language course and needed to retake the course in July 2017. The applicant attempted to lodge a protection visa application on 25 August 2017, but the application was deemed invalid. On 1 September 2017, the applicant lodged another protection visa application which is the subject of this review. The applicant’s student visa was eventually cancelled as the applicant had not complied with the conditions of her visa.
In the application the applicant stated that she has been studying in Australia and was introduced to the Christian community who assisted her to integrate into Australian society. She became interested in Christianity and its teachings as it was different from the restrictive teachings and codes that she had experienced in Iran. She decided to ultimately convert to Christianity and became devoted to the religion. The applicant claimed that she met people like herself that were opposed to the Islamic Republic, so she joined them in their activism against the Islamic Republic and has been able to freely express her views without fear of being targeted by the authorities. She claimed that due to her conversion and activism her father stopped financially supporting her and told her that she was not welcome back home. She claimed that due to her activism she will also be targeted by the authorities in Iran. She fears harm from her father and from the authorities in Iran.
On 29 January 2019, the applicant’s representative provided an unsigned and undated statement of claims. The applicant claimed that she entered Australia legally as the holder of a student visa and joined her sister in Sydney. She was born into a Shia Muslim family but while she was in Australia she was introduced to Christianity and attended church in Sydney for a short period. She studied in Sydney for three months, commencing in February 2017, after which she travelled to Melbourne (on 5 May 2017) to live with her aunt. The applicant claimed that while in Melbourne her aunt introduced her to [Church 1]., and that members of the church had assisted her with settling into Australia.
The applicant claimed that she learnt about the teachings of Christianity and Jesus Christ and found the teachings very different to those of Islam. She stated that in Iran, Islam was very restrictive and caused a lot of hardship for her. She loved learning about Christianity and regularly attended Bible study and church services. She claimed that she became faithful to Christianity and truly believes in its teachings and decided to convert.
In relation to her political opinion claims, the applicant claimed that she has also been active in showing her opposition to the Islamic regime by attending protests in Melbourne as part of [Organisation]. She claimed to have also used her social media accounts (such as [Social media 1]) to share her opinions and activities in the protests and has also publicly shared her experiences and conversion to Christianity. The applicant claimed that her friends and family are aware of her conversion and participation in anti-regime activities in Australia. The applicant claimed that her father has become very angry at her for participating in such activities and that he is not supportive of her conversion to Christianity and had stopped financially supporting her. The applicant claimed that she will be targeted by the authorities in Iran. She stated that apostasy and having an anti-regime political opinion are punishable crimes, and that due to her activities in Australia she fears facing significant physical and mental harm if she returns to Iran. The applicant stated that Iran is ruled by one system and that the authorities in Iran will not protect her. She claimed that she will not be able to live safely anywhere in Iran due to fear from her father, family and the authorities in Iran.
The Tribunal notes that there was a reference to the applicant having a child, however, at the departmental interview and at the hearing, the applicant confirmed that she does not have a child. After checking his records, the representative indicated at the hearing that this was an error by someone in his office.
At the departmental interview, the applicant indicated that, other than the reference to her having a child, the claims in the statement were correct. She was unable to explain why the statement was not signed and dated and indicated that she had relied on her lawyer. When asked when she was introduced to Christianity, the applicant said that at the end of February or early March 2017, she started attending church.
When asked why she did not remain in Sydney to complete her studies, the applicant said that she had to pay fees. She claimed that her father was angry with her because she had been involved in Christian activities and refused to pay her fees.
The delegate put to the applicant that according to her student visa application, it was her mother that had funded her studies in Australia and not her father as she had claimed. In response, the applicant said that her father works away from home 21 days each month, and her mother had to manage all the financial matters. The delegate noted that the financial documents provided in support of the student visa application, including evidence of assets, were in her mother’s name, and funds were paid from her mother’s bank account. The applicant said that her father had put everything in her mother’s name in case anything happened to him. The delegate expressed the concern that there appears to be no reference to the applicant’s father in the student visa application and that the applicant’s claim does not appear consistent with information provided in the student visa application. The applicant said that her father used to work as [an Occupation 1] with a [company].
The applicant gave evidence that she moved to Melbourne and lives with her husband, [Mr A], who is citizen of Iran. They married [in] January 2019. The applicant was unsure of the type of visa held by her husband but noted that his application for protection was under review.
When asked why she came to Australia, the applicant said she applied to a few countries to study and Australia accepted her. When asked when she informed her father about her Christian religion, the applicant said at the end of February or beginning of March when she started going to church. She said her father was a religious person and did not agree. When asked why she told her father about her religious activity, the applicant said she did not tell him directly, and that he found out from people who saw her [Social media 1] posts.
When asked why she would post on [Social media 1], the applicant said at the beginning she was very excited, that there was singing and kindness, and she started to film the sermons and post them on [Social media 1] to share it with others. The applicant then gave evidence that she started posting on [Social media 2] which was more popular in Iran than [Social media 1]. When asked why she would do that if her father did not approve, the applicant said that her father has his own views, but she has believed in Christianity and has chosen to follow the religion.
When asked why she left the church in Sydney and moved to Melbourne, the applicant said that she moved to Melbourne to live with her aunt because of her poor financial situation. When asked if anyone else in her family had converted to Christianity, the applicant said her sister and her [aunt] had also converted. When asked if she and her sister had converted to Christianity together, the applicant said her sister had entered Christianity first and then encouraged her to go to church.
When asked how she practises Christianity, the applicant said she goes to church, attends Bible study and is involved in volunteer work. When asked about the practice of her religion in Iran, the applicant said that as a child she was encouraged to pray, recite the Koran and go to the mosque. At high school, a lot of beliefs were imposed on her, but she did not wish to follow them. When asked why she decided to leave Islam, the applicant said she was forced to follow the Islamic religion, wear the hijab, and noted the inequality between men and women, including in marriage, employment and other aspects of life. She said that in Iran, the law is Islam and it is imposed by the Islamic regime.
When asked why she needed to join another religion to believe in Jesus, the applicant said she was given the name ‘[Given name]’ at birth, which is the name of a descendant of the prophet Mohammed, and since birth the Islamic religion has been imposed on her, she was fed up, and had enough of the oppression and lack of freedom in Iran. She was attracted to the humanity side of Christianity which is a central part of the religion. The applicant recited a verse in the Bible, which refers to ‘faith, hope and love’, and says that for Christians the most important of these is love. The applicant said that the focus on love in Christianity made her feel like a part of the Christian family and she felt like a complete Christian in 2017.
When asked why she could not return to Iran and explore Christianity, the applicant said under Islam if you leave the religion you are an apostate and there is a heavy penalty to pay.
When asked about the name of the Church she attended in Sydney, the applicant could not recall the exact name, but said the pastor of the church, whose name is [Mr B], spoke to her and gave her a book that he had authored.
In relation to her church attendance in Melbourne, the applicant said she was introduced to [Church 1] in Melbourne by her aunt. She attended [Branch 1] and provided the names of the pastors of the church.
When asked about the protests she attended in Melbourne, the applicant said she is against the Iranian government and she is a member of [Organisation], whose aim and objective is to highlight and protest about what is happening in Iran, the executions, imprisonment of political activists, and the inequality of men and women. When asked why she would take photographs of herself at the protests, the applicant said that Australia was a free country and she wanted to express her voice, her opinion and her ideology.
The applicant said she had attended a demonstration in Iran in 2009 (which was during the presidential election), she was a student at the time and wanted to express her political views. She was in the middle of the demonstrations, there were a few people with her and when police interfered, they all dispersed. She said between 2009 and when she left for Australia, nothing further happened.
The delegate put to the applicant the concern that she may have converted to Christianity to support her protection claims, to which she responded by saying that she had faithfully converted to Christianity because of the love and compassion, which she has not experienced in Iran.
In refusing to grant the protection visa, the delegate was not satisfied that the applicant was a genuine convert to Christianity or that she was a member of [Organisation]. The delegate considered that the applicant had engaged in religious and political activities in Australia for the sole purpose of strengthening her claims for protection and gave no weight to any of the supporting documents provided by the applicant.
Evidence before the Tribunal
The Tribunal has before it a copy of the Department’s file which includes various supporting documents, including a copy of the applicant’s baptism certificate, photographs of her attendance at church and social medial posts. Also on the Department’s file is a letter of support from [Ms C], [Ministry Assistant] and Pastoral Care Co‑ordinator at [Church 1], [Branch 1], dated 29 January 2019. The Tribunal notes that it has received a more current letter from [Ms C] in support of the applicant, details of which are discussed below.
Prior to the hearing, the Tribunal received a detailed submission from the representative addressing the concerns noted by the delegate in the decision record. The Tribunal also received photographs of the applicant attending [Church 1] services and other church events, photographs of the applicant’s attendance at protests in Melbourne, an updated letter of support from [Ms C] dated 5 April 2022 and a letter from[Mr D], Pastor of [Church 1] [Branch 2], dated 9 March 2022.
At the hearing, the applicant said that the information in the statement, other than the reference to her having a child, was correct. The applicant said she had fallen pregnant but had a miscarriage two weeks prior to the hearing.
The applicant gave evidence that she completed high school in Iran, after which she went on to complete a bachelor’s degree in [Subject]. She worked as [an Occupation 2] in Iran. Her parents currently reside in Iran, as does her youngest sister. She has [sisters], [some] of whom reside in [Country 1], where they were granted asylum on the basis of their religious conversion and political opinion. She has one sister in Australia (Sydney) who is also a convert to Christianity and attends [Church 2]. She gave evidence that her sister was granted protection in Australia on the basis of religion and political opinion.

The applicant married [Mr A] in January 2019. When asked if she had a religious (Christian) wedding ceremony, the applicant said they had not because [Mr A] was not a Christian at the time. When asked why, if she had genuinely converted to Christianity, she would marry someone who was not a Christian, the applicant said that the marriage was based on attraction and love, and she had spoken to him about converting to Christianity but at the time he was not ready. She believed she could influence him to accept the Christian religion, he attended church with her and has since become a Christian.
When asked about her experience with religion in Iran, the applicant gave evidence that her father’s family was a very religious family. They (she and her siblings) were encouraged to learn the Koran by heart, and when they recited it correctly, they were given gifts and prizes. When she got older (in middle school) and was able to be with her friends, they could only go to mosque together and they had to attend religious classes. She had to go to Friday prayers and attend demonstrations, such as the day of the Islamic revolution. As she grew up, she started to realise that Islam was harming people. Her enthusiasm for the religion decreased and when she was in high school, and she became more aware of what was happening and stopped adhering to the rules. She stopped all forms of religious (Islamic) practice after going to university. When asked if she at least fasted during the month of Ramadan, she stated that she just pretended.
The Tribunal asked the applicant a series of questions about when she first heard of the Christian religion, what she understood about the religion, whether she thought it was the different or the same as Islam, and what attracted her to the religion. The applicant gave evidence that she travelled to Australia to study and was enrolled in a course at university in Sydney. As a newcomer, she was under a lot of anxiety and stress. She studied hard for long hours and was trying to adjust to life in Australia. When she was at university, she was given a small book about Christianity by a person who was handing out religious material on campus. This sparked her interest in the religion. At the same time, her brother-in-law and her sister encouraged her to go with them to church and find out about the religion, which they hoped would help her overcome her anxiety. She said that her sister and brother‑in‑law attended [Church 2], and she was unable to recall the name of the church at the Departmental interview, as she had only attended there about three times. She indicated that her sister and brother-in-law live in Sydney and still attend [Church 2].
When asked about her studies in Australia, the applicant said when she failed her English course, she could not enrol in the degree straightaway and had to wait for three months to re‑enrol. The other option was for her to pass the IELTS exam and if she was successful then she could commence her university course. She sat for the IELTS but failed. She decided to go to Melbourne to be with her aunts, so she could get their support and focus on study.
When asked about her aunts, the applicant said she has two aunts in Melbourne. She gave evidence that her aunts initially travelled to Australia by boat, applied for asylum and were granted temporary protection visas because of their religion (converts to Christianity) and political views. One of her aunts is married with no children and the other is married with two [children]. They all go to [Church 1] in Melbourne. While living in Melbourne, she also attended [Church 1] and was baptised.
When asked about what attracted her to the Christian religion, she said that it showed her how to be a good human being and have a meaningful life. When she entered [Church 1], she could feel the kindness and love shown between members of the church and this attracted her to the religion. She could see it was a religion based on love. She attended church regularly before the lockdown. She and her husband currently attend a few times a month. She attends on the Sundays when they have communion.
When asked about the ritual of communion at [Church 1], the applicant said that it was one of the main ceremonies of the church to remember when Jesus Christ (during the Last Supper) broke the bread and thanked God and divided it between the disciples. He also took the glass of wine, which is his blood. She said the bread and wine symbolise the flesh and blood of Jesus. She said by partaking in the communion, she was part of the ‘body of Christ’ and would be filled with his love and kindness. She last participated in the communion ceremony two weeks ago.
When asked how she practises Christianity, the applicant said that as the Christian religion is based on love, she tries to show love for others by being a kind and positive human being. She works as a volunteer at the church, she helps serve at the coffee shop and distributes material and tells people about the religion. When asked how she evangelises, she said she talks to others about her own experiences and how much love and kindness she felt when she attended the church. She said that when she joined the church, she was assisted in many ways, and one of the church members even assisted her with applying for jobs. In the same way, she tells others about the church and assists others to attend and be part of a kind and supportive community.
The applicant gave evidence that she attends regular Bible study (on Wednesday) which is held at different people’s homes. She said it used to be online during the lockdown but now they can have the Bible study at people’s homes. She prays when she needs to. At church they pray together and sometimes she goes to the front of the church at the end of the session where they pray in a group. She said on Sundays they also look at passages in the Bible as part of the sermon. At the Bible studies they sing a few hymns, look at the passages in the Bible and discuss them, and then they pray together. She said the passages are on different topics. When asked to provide details of some of the passages studied and what they meant to her and how she applied the teachings in her own life, the applicant referred to a passage in the Bible, in the Book of Matthew, about the parable of the farmer and the sowing of seeds and said that it was about faith in Christ and the different ways people can come to believe.
The applicant also referred to other passages in the Bible, including the story of Jesus and Judas Iscariot, which she found interesting. She said Jesus was a unique personality and changed the history of mankind. He showed people there was a better way to live and be better human beings. When asked why she thought Jesus was an important figure in Christianity and how that was different from Islam, the applicant said that in Christianity Jesus is referred to as the Son of God, there is also the Trinity, which is like a triangle; there is the father God, the Son and the Holy Spirit. She stated that this was all denied in Islam. She said that Islam, Jehovah’s Witnesses and other religions say that Jesus was a prophet, whereas Christianity recognises him as the Son of God. The applicant referred to a passage in the Bible in the Book of John 1 which she said refers to Jesus existing from the beginning and being with God.
The Tribunal asked the applicant why she could not return to Iran to practise as a Christian by reading the Bible and praying whenever she wanted to. The applicant said that if she returns to Iran, she would want to be with other Christians and worship together. She would also want to tell others about the Christian faith and practise what Christ has said, ‘freely it has been given to you and you must pass it on’, so she should share the message of Christ to others.
The applicant gave evidence that her family in Iran, including her parents, youngest sister and extended family, know that she is now a Christian. The Tribunal expressed doubt that she would be harmed by her father as claimed, given she and three of her sisters had all converted to Christianity and were all still in contact. The applicant stated that her father is actually a very kind man. In the beginning, he was strongly opposed to their conversion, largely because of Iranian society as they consider conversion to Christianity to be apostacy and an insult to Islam and aligned with the West against Iran. She said her father was concerned about the impact their conversions would have on the family, and he feared that they would be seriously harmed if anyone found out they had converted. She said that her father’s initial anger was out of fear and love for them as he did not want them to be harmed in any way.
When asked if there was any other reason she feared returning to Iran, the applicant stated that over the last five years she has been in Australia she has openly practised as a Christian and that everyone knows she has converted. She said she has also expressed her political opinion against the Iranian regime and has participated in demonstrations in Australia against the Islamic Republic of Iran. She believes her conversion and demonstration against the regime will put her at risk if she returns to Iran.
The Tribunal discussed with the applicant country information[1] which suggests that authorities have little interest in prosecuting failed asylum seekers (who do not have an existing high profile or have not previously come to the attention of the authorities) for activities conducted outside Iran, including posting social media comments critical of the government, given heavy internet filtering means most Iranians will never see them, protesting outside an Iranian diplomatic mission or converting to Christianity. The applicant said that she was not claiming that she would be put in prison upon arrival in Iran, however, she will likely be questioned about her travel, what she has been doing overseas, and given she has converted to Christianity and publicly posted information about her conversion and she has also protested against the Iranian regime and posted photos of this to express her views against the regime, this may become known during the questioning and she will be regarded as an enemy of Islamic Republic and they may seek to prosecute her.
[1] DFAT Country Information Report Iran, April 2020 at 5.30.
In his evidence to the Tribunal, the applicant’s husband confirmed that he and the applicant married in January 2019. He said that at the time he was not a Christian, but the applicant was a practising Christian. He said that she spoke to him about Christianity, and he went with her to church several times. She also took him to Bible study. He said after gaining more knowledge he decided to become a Christian and was baptised last year on 5 December 2021. He said they attend church together on Sunday. He said the applicant also sometimes goes with her aunt to church gatherings. He said that they are known to members of their church and know [Pastor D], from [Branch 2], well. He said if he and the applicant had to return to Iran, they would continue to practise the Christian faith, though out of fear for their safety they would have to do so in secret as it would not be safe for them to speak about it.
Consideration
The Tribunal is satisfied that the applicant has given a credible account of her involvement with the Christian faith in Australia. The applicant’s claims regarding her involvement with the Christian faith are supported by documentary evidence, including letters of support from leaders of her church, her baptism certificate, photographs, and extracts from her social medial accounts.[2]
[2] [Social media 1] and [Social media 2].
The Tribunal accepts that she attended church in Sydney ([Church 2) on a few occasions in February/March 2017 with her sister and brother-in-law. It also accepts that in May 2017 she commenced attending [Church 1] in Melbourne with her aunts and that she was baptised on 9 July 2017. The Tribunal accepts that the applicant has continued to attend [Church 1], including online services during the pandemic, and that she participated in Bible studies, has been a volunteer at the church and has shared her faith with others, including her husband.
The Tribunal also accepts that the applicant attended anti-regime protests in Melbourne with an organisation named [Organisation]. The applicant has not provided much information about the organisation or its activities in Australia, however, the photographs and social media posts appear to show the applicant at a protest with her aunts holding signs and the Iranian flag.
The Tribunal had some concerns as to the reasons the applicant converted to Christianity and/or had participated in anti-regime protests in Australia. The applicant did not commence attending church regularly until after she travelled to Melbourne in May 2017, by which time she had already failed her English course, which she was required to pass before commencing her master’s degree course at university. Despite informing the Department in May 2017 that she had failed her English course and needed to undertake further studies in English, the applicant did not undertake any further studies and, three months later, lodged a protection visa application. The applicant’s circumstances at the time of the protection visa application raised concerns about whether the applicant became involved with the Christian faith and attended anti-regime protests in Australia for the purpose of strengthening her claims for protection. If the Tribunal finds that the applicant has engaged in this conduct for the purpose of strengthening her claims for protection, then it is required to disregard the conduct: s.5J(6) of the Act.
The Tribunal has first considered whether the applicant has a well-founded fear of persecution for reason of her political opinion. The applicant claimed that in Australia she has been able to freely express her views against the Islamic Republic of Iran and that she joined a group of people who were opposed to the Iranian regime. The evidence before the Tribunal, including photographs and social medical posts, confirms that the applicant attended protests in Melbourne. In the Departmental interview the applicant explained, and the Tribunal accepts, that the protests were organised by [Organisation], whose objective is to highlight what was happening in Iran, including imprisonment of political activists, executions, and inequality between men and women.
The Tribunal is prepared to accept that the applicant genuinely holds an opinion that is critical of the Iranian government’s policies and methods, and that she has participated in protests to express that opinion. However, the Tribunal is not satisfied, based on country information, that the applicant has a well-founded fear of persecution upon return to Iran because of her political opinion, including her involvement in protests in Australia. As discussed with the applicant at the hearing, country information indicates that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including posting social media comments critical of the government, given heavy internet filtering means most Iranians will never see them, and protesting outside an Iranian diplomatic mission. It indicates that those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists, and that the treatment of returnees, including failed asylum seekers, depends on the returnees’ profile before departing Iran and their actions on return.[3]
[3] DFAT Country Information Report Iran, April 2020 at 5.30.
The Tribunal acknowledges the applicant’s concern that she will be questioned upon return to Iran and the authorities may find out about her involvement in anti-government protests in Australia. The evidence before the Tribunal, however, does not indicate that the applicant has an adverse profile in Iran, such that she would attract the attention of the Iranian authorities upon her return. At the Departmental interview, the applicant gave evidence that she participated in a protest in Iran in 2009 during the presidential election and that following police intervention the crowd dispersed and nothing happened to her. Furthermore, the applicant was able to depart Iran legally on a passport in her own name without incident. As the applicant has not been the subject of any adverse official attention prior to departing Iran, the Tribunal finds, based on country information, that there is a very low risk of the applicant facing serious harm because of her political opinion upon return to Iran. The Tribunal is therefore not satisfied that there is a real chance of the applicant being persecuted upon return to Iran for reason of her political opinion.
The Tribunal has next considered whether the applicant is a genuine convert to Christianity. The applicant gave evidence that she first attended a church in Sydney ([Church 2]) in February/March 2017 after being invited by her sister and brother-in-law, both of whom had converted to Christianity and have been granted protection in Australia. After moving to Melbourne in May 2017, the applicant was invited by her aunt to [Church 1]. The applicant felt welcomed by members of the church, and the evidence received by the [Ministry Assistant], [Ms C], and [Pastor D], confirms that the applicant has been a member of the church since 2017 and has participated in all aspects of church life since her baptism in July 2017.
In her letter of support, [Ms C] attests to the applicant’s genuine commitment to the church and the effort the applicant makes to regularly attend church services despite being, at times, 20–50 km from where she lived. [Ms C] notes that the applicant actively engages with the prayers, songs and other aspects of worship, including communion. She stated that the applicant makes regular and active contributions to the church community. In his recent letter of support, [Pastor D] stated that the applicant regularly attends fortnightly small groups, and that she and her husband have become part of the church community, have integrated well, and that the community was excited to journey with them and see them grow and flourish. The letters provided in support of the applicant from church leaders suggest that she is a genuine convert to the Christian faith.
The Tribunal has also had regard to the applicant’s social media accounts, in which she regularly posts religious comments, Bible passages, church services and Christian events she has attended. The applicant appears to have a very large number of ‘friends’ on [Social media 1] and ‘followers’ on [Social media 2], many of whom have Iranian backgrounds and/or reside in Iran. This appears to support the applicant’s claim that she has publicly declared her conversion (to Christianity) to family and friends in Iran. The delegate was concerned that the applicant had created a social media profile for the purpose of strengthening her protection claims, however, the Tribunal accepts as submitted by the representative that the applicant had used her pre-existing online profiles, which appear to have been established since 2010, to share her experiences, including her Christian faith journey. The applicant’s social media accounts indicate that she has been engaged with the Christian faith, including attending church services, Bible studies, Christian community events and gatherings, since 2017.
The Tribunal also accepts that three of the applicant’s sisters and two of her aunts have converted to Christianity (from Islam), and were found to have been owed protection obligations (by [Country 1] and Australia) based on, in part, their religious conversion. While conversion of the applicant’s family members is not of itself indicative of the applicant’s genuine conversion to the Christian faith, when considered together with other evidence before the Tribunal, it suggests that the applicant had an established family/social network which enabled her to integrate into the Christian community and to fully participate in all aspects of Christian life.

In addition to the supporting evidence received regarding the applicant’s practice of Christianity in Australia, the Tribunal also gives weight to the applicant’s oral evidence at the hearing, during which she explained some of the rituals practised by Christians, such as baptism and communion, the basis of those rituals and the meaning they had for her. She was also able to explain some of the foundational doctrines, such as the Trinity, and the significance of Jesus in the Christian faith and how that was different from Islam. The applicant’s evidence regarding her faith journey, her participation in church life, the declaration of her newfound faith and commitment to Christianity appeared sincere. The Tribunal is satisfied on the totality of the evidence before it that the applicant is a genuine (and committed) convert to the Christian faith. The Tribunal is also satisfied that if the applicant returns to Iran, she would continue to practise as a Christian, including sharing her faith with others.
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.
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.
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 predates 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.
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.
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.
While country information suggests that the 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.
Having considered how the applicant has been practising her faith in Australia, as detailed above, and how she would practise her faith if she returns 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).
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 the Iranian government 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’s view, would require the applicant to conceal her true religious beliefs, including ceasing to be involved in the practice of her faith. Accordingly, s 5J(3) does not apply in this case.
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.
While the Tribunal had some concerns about the applicant’s initial involvement with Christianity in Australia, the Tribunal is satisfied, on the totality of the evidence before it, that the applicant has (in Australia) become a genuine convert to the Christian faith and that her conduct, including regular church and Bible study attendance, involvement in her church’s activities and sharing her faith with others, was (over the passage of time) undertaken for reasons other than to strengthen her claims for protection. Accordingly, s 5J(6) does not apply in this case.
Given the above, the Tribunal finds that the applicant has a well-founded 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.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
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 2267

14 June 2022

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