1912695 (Refugee)

1912695 (Refugee) [2024] AATA 4270 (10 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Hayley Mitchell (MARN: 1568683)
CASE NUMBER:  1912695
COUNTRY OF REFERENCE:                   Iran
MEMBER:Andrew Verduci
DATE:10 October 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s36(2)(a) of the Migration Act.

Statement made on 10 October 2024 at 11:27am
CATCHWORDS
REFUGEE – protection visa – Iran – unauthorised maritime arrival – s 46A bar lifted – original claim as stateless Faili Kurd acknowledged as false – questioning then renunciation of Islam – employment terminated, arrested and detained – strained relationship with family – long residence and Westernised lifestyle and values – atheist regarded as apostate – Australian citizen partner and children – country information – renunciation of Islam prohibited – arrests, indefinite detention, torture and executions, and social stigma, harassment and violence – constitutional rights limited in practice – questioning of returnees – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 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
Background

The applicant is a [Age]-year-old male citizen of Iran. He applied for a Safe Haven Enterprise Visa (SHEV) which was refused by a delegate of the Minister for Home Affairs in a decision dated 17 May 2019. This is a review in relation to that decision.
He arrived at Christmas Island as an Unathorised Maritime Arrival in August 2008 claiming to be a stateless Fali Kurd. His pathway through Australia’s visa system and protection obligation assessments has been lengthy. The following is intended as a concise summary only:

[August] 2010

Arrived at Christmas Island as an Unathorised Maritime Arrival.

19 September 2010

Refugee Status Assessment (RSA) application lodged

24 December 2010

RSA outcome – negative

20 April 2012

Post Review Protection Check (PRPC) initiated

11 July 2012

Bridging visa granted

23 October 2012

PRPC initiated

21 February 2013

PRPC outcome – no protection obligations

8 August 2013

Bridging visa expired; became an unlawful non-citizen

15 June 2015

International Treaties Obligations Assessment (ITOA) commenced but not finalised

12 November 2015

Bridging visa granted

23 May 2018

Minister lifted the bar in s 46A of the Migration Act 1958 (Cth) (the Act)

15 September 2018

Applied for XE-790 Safe Haven Enterprise Visa; associated Bridging visa granted

The applicant was born in the town of [Town] in Lorestan province, Iran. His mother still lives in this town with one of the applicant’s sisters. He has [other] sisters and a brother who also live in [Town].
The applicant is now in a long-term defacto relationship with his Australian citizen spouse. They have two children together; their youngest is aged [Age] and their oldest is aged [Age]. Both children are Australian citizens.
Protection assessments and SHEV application
Earlier on his refugee assessment(s) and visa application process, the applicant has claimed to have:
·Left Iran on a fraudulent passport.
·Been targeted and discriminated against in Iran because he is a stateless Fali Kurd.
·Have renounced Islam and became an apostate.
Other aspects of his claim, such as to be accused of people smuggling, have arisen later in his migration pathway.
His claims were most recently considered by a delegate of the Minister. The applicant attended an interview with the delegate in April 2019 and delegate and a decision refusing to grant the visa was made the following month. Whilst the delegate accepted the applicant’s claimed identity, they found him to be a citizen of Iran and not a stateless Fali Kurd. The delegate accepted that he is an atheist with a very limited public profile and found that he would not come to the attention of Iranian authorities because of his religious beliefs. The delegate found that the applicant did not face a real chance of serious harm or a real risk of significant harm if he returned to Iran, now or in the reasonably foreseeable future.
Application for review
The applicant applied for a review of the delegate’s decision with this Tribunal. His application for review was lodged in May 2019 and it is regrettable that it has taken so long for his application to be considered.
In a written submission dated 16 October 2024, the applicant acknowledged that he is not an undocumented stateless Fali Kurd. He says that the is a citizen of Iran and provided copies of his Iranian national identity car, birth certificate and Iranian driver’s licence. I am grateful to have received this in writing from the applicant prior to him appearing before me to give evidence and present arguments about the issues arising in this review. It has saved considerable time and allowed for a more efficient review.
I also acknowledge and accept the applicant’s evidence that maintaining a false narrative for so long has been difficult for him and his family. I accept that other people led him to believe that he shared enough similarities with Fali Kurds to pass himself of as one, and that the people who facilitated his travel to Australia convinced him this was the strongest grounds for claiming to be owed protection obligations in Australia. I accept the sincerity of his regret to have not r
Other documents given to me before the hearing include copies of birth certificates for his two Australian born children.
The applicant appeared before me in person on 25 September 2024 to give evidence and present arguments. We were assisted by an interpreter in the Persian and English languages and his representative also attended the hearing with him.
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
Identify and receiving country
I am satisfied about the applicant’s identity and I have no reason to doubt the supporting evidence given to me about this. I find that he is a citizen of Iran, and that Iran is his receiving country for the purposes of the Act.
There is also no evidence before me to suggest that he has a right to enter and reside in, whether temporarily or permanently, any other country. I am satisfied that s 36(3) of the Act is not engaged.
Stateless Fali Kurd
The applicant is not a stateless or undocumented Fali Kurd. He was born in [Town] in the Lorestan province of Iran to Iranian parents. I accept his evidence to be an Iranian citizen of Lors ethnicity. Accordingly, I do not accept he has been harassed or harmed in Iran for any reason relating to being a stateless or undocumented Fali Kurd.
Atheist and / or apostate
I accept that the applicant was born and raised as a Muslim in Iran. He was born to Iranian Muslim parents and is therefore considered to be Muslim himself. His parents are practicing Muslims and he would attend mosque with his family at a young age.
I accept that he started to question his Islamic faith from around the age of [age range] years, and that by [age range] years of age he was actively distancing himself from it. His evidence about the questioning of his religious beliefs and progressive loss of faith over an extended period of time was considered, nuanced and personal.
He was married in Iran in an Islamic marriage at [age] years of age, however this does not detract from my view that he was already moving away from Islam by that time. His marriage was arranged by his parents and he divorced about 2 and half years later. He has no children from this marriage and has had no contact with his ex-wife since their divorce.
I also accept that he has told his mother, his late father and his broader family about his lack of Islamic faith and that this has caused tension and hostility between them. Despite arguments about this, he maintains in regular contact with his mother and siblings in Iran and speaks with them once a week or so by Skype or WhatsApp. I accept that his mother has an ongoing desire to engage with her grandchildren in Australia even though she does not agree with, or approve of, the applicant’s loss of his Islamic faith. Having regard to the country information discussed further below, I also accept that his family are fearful of government attention being placed on them because of the applicant’s religious beliefs, or lack thereof.
He has been in a de-facto spousal relationship with an Australian citizen since 2012, and I accept that his spouse is also an atheist.
I am prepared to accept that the applicant has had some level of interaction with Iranian authorities in the past.
The applicant was employed in a role [doing a job task]. This is described as a government job. He lost this role after four years of employment because he tore up a bank note containing the Ayatollah’s picture on it. The money was ripped because of a disagreement over a tip which the applicant considered to be too low, but it was interpreted as being disrespectful to Islam by his employer. His employment was terminated as a result and he was excluded from government jobs.
He has also come to the attention of the authorities for eating during Ramadan, having an unaccompanied woman in his [vehicle] and for talking to woman in public who was not his wife or a relative. The punishments he described, such as being arrested and held in jail or in detention for periods ranging between two days to a week, are generally consistent with the country information set out below. It is plausible that these experiences occurred even if he was still on a journey of considering his Islamic faith and/or was taking steps to hide his lack of faith such as living discreetly.
Whilst in Australia, he posted a picture on [Social media] that included a person urinating on the Koran but deleted it after two weeks because his family and other relatives in Iran contacted him and complained. He has family and friends in Iran but does not discuss religion with them.
He has been consistent in his claim to be an atheist and apostate over an extended period of time, and I note that the delegate also accepted that the applicant is an atheist and apostate.
These matters lead me to conclude that that the applicant has renounced his Islamic faith. He will be viewed as an apostate and /or an atheist. I accept that he would return to Iran with these characteristics. I
Failed asylum seeker, person with western values, person living in Western country
The applicant left Iran in 2010 and has been living in a Western country since then. He has adopted certain lifestyles choices, such as owning a pet dog and drinking alcohol. I accept that he would return to Iran with these same characteristics as well as being a person who applied for, and was refused, a protection visa in Australia.
Accused people smuggler
I accept that the applicant was told in 2015 that a complaint was made against him to the Australian embassy in Tehran. The complaint relates to the disappearance of four Iranian men who are presumed to have drowned at sea. I accept that one of the missing men had telephone the applicant a few years earlier asking for his advice on how to travel to Australia. The applicant advised them not to travel by boat and had no other contact with them. Family members of the missing men have blamed the applicant for their sons disappearance and complained to the Australian Embassy about him.
The applicant’s mother has been visited by family members of the missing men asking about their whereabouts, and the applicant has received some threatening text messages as well. I have been given copies of certified statements and text messages in English which I place some weight upon.
I do not accept that the family members of the missing men have reported the applicant to Iranian authorities, even though I accept that a complaint was made to the Australian Embassy. There is no evidence to suggest that Iranian authorities are aware of the applicant’s limited contact with the missing men, or that his limited contact with them, being in one or two telephone calls, would be any interest. There is no suggestion that authorities have visited the applicant’s family looking for the applicant or to question his mother about his whereabouts.
Family / children born out of wedlock
The applicant is in a de-facto spousal relationship with an Australian citizen and has two Australian citizen children. I accept the evidence given to me that the applicant’s spouse and children would not return to Iran with him.
Generalised violence
I accept that there is a high degree of regional tension in Iran and surrounding areas. It includes ongoing hostilities between Iran and Israel with the possibility of escalating. However, there is no claim or evidence to suggest that the applicant will be personally targeted for harm.
Country information
I have reviewed and reflected on a range of sources regarding conditions in Iran, particularly for non-practising Muslims, atheist and apostates. There is a general consensus amongst all the material I have reviewed that suggests Iran is an Islamic country that demonstrates little tolerance for views and behaviours that do not conform to, or that are considered inconsistent with, certain Islamic teachings. The penalties for breaching social and religious norms in Iran are severe and include the death penalty.
According to one recent and credible source:[1]
[1] 2023 Report on International Religious Freedoms: Iran; US Department of State ( is an Islamic republic. Laws and regulations are based on Islamic criteria and an official interpretation of Sharia. Twelver Ja’afari Shia Islam (Sharia) is the official state religion. Rights under Iran’s constitution are enjoyed in conformity with Islamic criteria.
·The penal code provides for hudud punishments (those mandated by sharia), including amputation, flogging, and stoning. It specifies the death penalty for moharebeh (“enmity against God”) and sabb al-nabi (“insulting the Prophet”). Prevailing fatwas prescribe the death penalty for apostasy. According to the penal code, the application of the death penalty varies depending on the religion of both the perpetrator and the victim. The penal code criminalizes insulting “divine religions or Islamic schools of thought” and committing “any deviant educational or proselytizing activity that contradicts or interferes with the sacred law of Islam.” Proselytization of religions other than Islam carries a punishment of up to 10 years in prison. The law, as typically interpreted, prohibits Muslim citizens from changing or renouncing their religious beliefs. The constitution states that Zoroastrians, Jews, and Christians are the only recognized religious minorities permitted to worship and form religious societies “within the limits of the law.”
·The constitution prohibits the investigation of an individual’s ideas and states no one may be “subjected to questioning and aggression for merely holding an opinion.” The law prohibits Muslims from changing or renouncing their religious beliefs. The only recognized conversions are from other religions to Islam. Under the law, a child born to a Muslim father is Muslim. According to Iranian government estimates, Muslims constitute 99.4 percent of the population, of whom 90 to 95 percent are Shia, and 5 to 10 percent are Sunni.
·According to the Human Rights Activists News Agency (HRANA), the government executed at least 746 individuals during the year, including for offenses classified as “corruption on earth” or “ideological-political-religious reasons,” and arrested 142 citizens for religious reasons. HRANA said the majority of human rights violations against religious minorities involved Baha’is (85 percent), but also impacted Sunnis (11 percent), Yarsans (2 percent), Gonabadi Dervishes, Christians, and other religious minorities.
·The penal code specifies the death sentence for moharebeh (“enmity against God,” which, according to the Oxford Dictionary of Islam, means in Quranic usage “corrupt conditions caused by unbelievers or unjust people that threaten social and political wellbeing”), fisad fil-arz (“corruption on earth,” which includes apostasy or heresy), and sabb al-nabi (“insulting the Prophet”). According to the penal code, the application of the death penalty varies depending on the religion of both the perpetrator and the victim. Those accused of blasphemy are often charged with “spreading corruption on earth” and other crimes. The penal code criminalizes insulting the values of Islam, Iranian “divine religions,” Islamic schools of thought recognized under the constitution, the Prophet Muhammad or any of the “Great Prophets”, twelve Shia Imams, or the Prophet’s mother. Punishments range from imprisonment to 74 lashes to the death penalty. In 2021, the government amended the penal code, adding provisions criminalizing “insulting legally recognized religions and Iranian ethnicities.” The amendments allow authorities to impose a sentence of two to five years in prison and a monetary fine where violence is involved, and between six months and two years and a monetary fine where violence is not involved, on anyone who “insults Iranian ethnicities or divine religions or Islamic schools of thought recognized under the constitution.”
·Additionally, the penal code outlines several “offenses that violate religious sensibilities,” which include attacking the creed of a recognized religious minority or “pouring scorn on its religious practices;” making light of a recognized religious minority’s tenets or teachings; publicly insulting a symbol or person constituting an object of sanctification, worship, or reverence to a recognized religious minority; and publicly imitating a religious ceremony or celebration with intent to deceive. Such offenses are punishable with a fine or up to three years in prison.
·The 2020 World Religion Database estimates there are 9,000 atheists and 239,000 agnostics in the country.
·In its report Freedom of Thought 2023, the NGO Humanists International stated, “Expression of nonreligious views is severely persecuted, or is rendered almost impossible by severe social stigma, or is highly likely to be met with hatred or violence. Government figures or state agencies openly marginalize, harass, or incite hatred or violence against the nonreligious. It is illegal to register an explicitly Humanist, atheist, secularist or other nonreligious NGO or other human rights organization, or such groups are persecuted by authorities.”
·According to Amnesty International, atheists and agnostics often did not publicly identify because those who professed atheism were at risk of arbitrary detention, torture, and the death penalty for apostasy.
·The state-issued national identity card, required for almost all government and other transactions, allowed citizens to register as belonging to one of the country’s recognized religions or leave the religious affiliation blank. According to the Atlantic Council, religious minorities or atheists needed to lie to receive a national identification card or face denial of access to services, such as insurance, education, banking, and public transportation.
·In an interview published on his personal website and in Jamaran News, Grand Ayatollah Javad Alavi-Boroujerdi said all individuals must be respected and granted citizens’ rights, whether they are Zoroastrians, Jews, Baha’is, Christians, or atheists. Alavi-Boroujerdi praised Iraq’s treatment of the Yazidi religious minority as an example for Iran to follow and said, “We do not have the right to kill or chase out of the country those who were born here, even if they do not believe in God. They have rights too. Even the constitution of the Islamic Republic recognizes these civil rights.”

Another recent and credible report says:[2]
[2] 2023 Country Report on Human Rights Practices: Iran; US Department of State ( many individuals were executed during the year reportedly for homicide, the law also provided for the death penalty in cases of conviction for attempts against the security of the state, outrage against high-ranking officials, moharebeh (which had a variety of broad interpretations, including waging war against God), fisad fil-arz (corruption on earth, including apostasy or heresy, rape, adultery, recidivist alcohol use, consensual same-sex sexual conduct, working to undermine the Islamic establishment, cooperating with foreign agents or entities, and insults against the memory of Imam Khomeini and against the supreme leader of the Islamic Republic.
·Although the constitution prohibited all forms of torture “for the purpose of extracting confession or acquiring information,” use of physical and mental torture to coerce confessions was prevalent, especially during pretrial detention, including in cases of detained protesters, and there were reports that security forces and prison personnel tortured and abused detainees and prisoners throughout the year.
·Commonly reported methods of torture and abuse in prisons included threats of execution, rape, and sexual assault; threats of rape of prisoners or their family members; forced vaginal and anal examinations; sleep deprivation; waterboarding; suspension; forced ingestion of chemical substances; deliberate deprivation of medical care; electroshock, including the shocking of genitals; burnings; the use of pressure positions; and severe and repeated beatings.
·Authorities commonly used arbitrary arrests to impede alleged antiregime activities. Plainclothes officers arrived unannounced at homes or offices, conducted raids, arrested persons, and confiscated private documents, passports, computers, electronic media, and other personal items without warrants or assurances of due process.
·Individuals often remained in detention facilities for long periods without charges or trials, and authorities sometimes prevented them from informing others of their whereabouts for several days or longer. Authorities often denied detainees access to legal counsel during this period.
·The constitution provided for freedom of expression, including for members of the press and other media, except when deemed “detrimental to the fundamental principles of Islam or the rights of the public.”
·The law provided for prosecution of persons accused of instigating crimes against the state, crimes against national security, or “insulting” Islam. The government severely restricted freedom of speech and of the press and used the law to intimidate or prosecute persons who directly criticized the government or raised human rights concerns or questioned the government’s morality code enforcement.
·Authorities did not permit individuals to publicly criticize the country’s system of government, supreme leader, or official religion. Security forces and the judiciary punished those who violated these restrictions, as well as those who publicly criticized the president, supreme leader, cabinet, and parliament.
I have also had regard to the current DFAT country information assessment in relation to Iran.[3] It shares some similarities with the information set out above, such as:
[3] DFAT Country Information Report, Iran (24 July 2023 (Version 2)) ( constitution provides for freedom of expression, association, opinion, assembly and religion, if those rights do not violate certain principles, including Islam. In practice, these rights are not typically upheld by authorities.
·Iran is a theocracy with little tolerance for non-Shi’a Islamic confessions. The extent of religious faith and secularism and other matters of religious demography are disputed. Attempts by non-Muslims to convert others attract the death penalty and apostasy is illegal. Christians, Zoroastrians and Jews may practise their faith, unless they are converts from Islam.
·Apostasy is not specifically codified as a crime in Iran, however, is nonetheless a crime under Sharia law, which is enforceable under the constitution. Both moharebeh or ‘enmity against God’ and fisad fil-arz (corruption on earth) are codified in law and can include apostasy, according to the 2021 US Department of State Human Rights Report. According to the Iran Human Rights Documentation Centre, person can be found guilty of the crime of apostasy based on the testimony of two male witnesses, the knowledge of a judge or a confession. The death penalty is a potential punishment but very rare in practice.
·Blasphemy or ‘swearing at the Prophet’ is similarly an offence that attracts the death penalty. Blasphemy can be against the Prophet Mohammad, Islam’s founding prophet, or his successors or daughter, Fatima. The death penalty is a potential outcome, although can be reduced to whipping if the defendant admits the blasphemy and says that it was a result of drunkenness, anger or quoting someone else.
·Iran does not publish official statistics on executions, and accurate figures are difficult to obtain. However, international sources estimate that Iran implements the death penalty at one of the highest rates in the world, both in actual numbers and per capita. DFAT understands that more than 200 people were executed in 2020, as an example, and that number included juveniles who were executed when they reached the age of majority (18). According to a joint report by Norway-based Iran Human Rights (IHR) and France's Together Against the Death Penalty (ECPM), at least 333 people were executed in 2021, a 25 per cent increase from 267 in 2020. IHR indicated that Iran executed more than 500 people in 2022, and 317 in 2023 as at 9 June 2023. Women and juveniles were among those executed.
·DFAT assesses that the authorities use violence or other pressure tactics to extract confessions from defendants, including those charged with security-related offences.
·Article 39 of the constitution prohibits all affronts to the dignity and repute of detained persons. The law allows for Sharia law punishments that include amputation, flogging, blinding and stoning and the Government does not consider these to breach constitutional provisions.
·More than 100 offences attract the punishment of flogging, including dress code violations, same-sex sexual activity and alcohol consumption. Flogging has been used in political cases where offences are often vaguely worded, such as ‘propaganda’, ‘defamation’ or ‘rebellion’.
·The countrywide capacity of the centrally-organised state security forces means an individual facing adverse official attention is unlikely to escape attention by internal relocation.
The DFAT country information assessment also appears to have some differences, adopting a more optimistic outlook in relation to atheists, secular and non-practising Muslims in particular. It says, for example
·In-country sources told DFAT many younger and wealthier Iranians, particularly in the major cities, are secular; a majority of the population does not attend mosque. Alcohol consumption is common among the youth. Official sources told DFAT that, despite government laws, religion was a private matter —beyond the expectation that people do not eat in public during the Muslim holy month of Ramadan or hold parties during the mourning months of Muharram and Safar - how one wished to observe Islam was an individual choice and was not a matter for the state. DFAT understands many Iranians do not observe Ramadan strictly, including by eating, drinking liquids and smoking at home. Most restaurants are closed during the day in Ramadan, although many (especially in Tehran) reportedly serve food discreetly. Those caught eating in public during Ramadan run the risk of arrest and prosecution.
·A 2020 study from Utrecht and Tilburg Universities found that atheism was quite common; about 20 per cent of people do not believe in God. The study itself points to Iranians being uncomfortable speaking about religion; discussions about it are not tolerated in Iranian society. Figures about the number of atheists in Iran are, therefore, difficult to verify.
·Those who publicly renounce Islam face apostasy charges. According to local sources, atheists are discreet about their non-belief beyond their close family and friends. Unless they widely publicise their non-belief, atheists are unlikely to come to the attention of the authorities. Atheists from conservative families might face familial pressure and potential ostracism if their atheism were revealed, however would generally not be subjected to physical harm. Sources told DFAT that atheists from more liberal families and parts of the country, like north Tehran, would face no such pressure.
·DFAT assesses that non-practising Iranian Muslims face a low risk of official and societal discrimination, particularly in the major cities. DFAT assesses that atheists who are open about their non-belief face a moderate level of official and societal discrimination.
In relation to other matters, it also says:
·Having tattoos (including large tattoos that cover the entire arm (‘sleeves’)), ripped jeans, plucked eyebrows, jewellery (for example ear piercings), and Western-styled hair is common among young men in Tehran and other large cities. Women are subject to much stricter dress codes and are required to have most of their bodies covered (though may still wear western fashions). Tattoos are popular with young women.
·DFAT is not aware of men who have Western style appearance being targeted by authorities. DFAT is similarly not aware of tattooists being targeted. Some people in conversative communities or who have conservative parents may experience low-level discrimination, but this depends on the family.
·In general, authorities pay little attention to failed asylum seekers on their return to Iran. 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. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept many will seek to live and work overseas for economic reasons. Those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are traveling on a laissez-passer. Questioning usually takes between 30 minutes and one hour, however may take longer if the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history on the part of the returnee. Arrest and mistreatment are not common during this process.
·DFAT assesses that, unless they 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. Local sources told DFAT the greater challenges for returnees are finding work and economic considerations, which will differ from person to person depending on the location of return, family support and skills and experience.
Unlike apostacy, the crime of Sabb-e Nabi, or swearing at the Prophet, is codified in the Iran’s Penal Code and is addressed in articles 262 and 263. The articles are vaguely worded, however, and it is not clear what constitutes ‘insulting the Prophet’. Despite this lack of clarity, the death penalty can be imposed for the most severe cases.[4]
[4] Apostacy in the Islamic Republic of Iran, Iran Human Rights Documentation Centre, 25 September 2014 (>
Article 160 of Iran’s Penal Code mentions the different methods by which the commission of a crime may be proven. Confessions, the testimony of two male witnesses or the “knowledge of the judge” can each be the basis for a conviction. Article 211 defines the concept of the knowledge of the judge as a certainty resulting from manifest evidence in a matter brought before him.[5]
[5] Apostacy in the Islamic Republic of Iran, Iran Human Rights Documentation Centre, 25 September 2014 (>
The extra-judicial killing of apostates or individuals who have been shown to have sworn at the Prophet—or are simply alleged to have done so—is considered acceptable by many Islamic jurists. Ayatollah Khomeini has previously stated that a person who hears another person swear at the Prophet has a duty to kill him. Ayatollah Mohammad Sadeq Rohani has stated that anyone has the right to kill an apostate, and that the permission of a religious judge is not required. Iranian law does not allow extra-judicial killing of an apostate or a person swearing at the Prophet. Nevertheless, Iranian law protects the person who kills an apostate or who kills a person who has sworn at the Prophet from capital punishment. Article 302(a) of Iran’s Penal Code states that if the murdered person has committed a capital offense, the perpetrator is not eligible for qisas, or the death penalty. Instead, the perpetrator will be sentenced under the ta’zir category, meaning that they may receive between three to ten years imprisonment.[6]
Assessment of claims
[6] Apostacy in the Islamic Republic of Iran, Iran Human Rights Documentation Centre, 25 September 2014 (>
I have accepted that the applicant is an atheist. He has renounced Islam and will be viewed as an apostate. He has shared his atheist beliefs with his family and he has engaged in limited conduct, such as posting on social media, that is at least known to his extended family and broader social network. Consistent with my acceptance of his longstanding atheist beliefs, I am satisfied that the applicant’s conduct in Australia is, and was, otherwise than for the purpose of strengthening his claim to be a refugee. His evidence about posting an offensive picture on [Social media] was credible, and I accept that the post was deleted after only two weeks because he was contacted by family and friends living in Iran who were angered and offended by what he had done. His evidence about this was spontaneous and credible, and his decision to quickly delete it suggests to me that he was genuinely concerned about the offence he had caused to others.
I have reflected carefully on all of the country information above, the accepted facts and the particular profile of the applicant.
I accept that not all Muslims will follow the tenants of Islam to the same level or degree, and that it may not be uncommon for minor transgressions to go unnoticed or unpunished. This might include eating during the month of Ramadan, for example.
However, there is an important distinction between a moderate or non-practicing Muslim, on the one hand, and an atheist and/or apostate on the other. I am concerned by a theme in the DFAT country information assessment that suggests an atheist is required to live a discrete life in order to avoid attracting official or societal attention. If they do attract attention, DFAT assess that the risk of official and societal discrimination rises to a moderate one.
I am also concerned by the evidentiary requirements for establishing the religious charges discussed above. The testimony of two male witnesses or the arbitrary standard of the knowledge of the judge is a sufficient basis for a conviction. If convicted, the potential penalties are severe and include the death penalty.
Considering all of the circumstances of this case, I am satisfied that the applicant fears being persecuted for reason of his religion, that there is a real chance he will be persecuted for the essential and significant reason of his religion, and that the real chance of persecution relates to all areas of Iran.
I accept that he would not engage in regular religious activities such as attending mosque or prayers. By itself, this would not lead me to find that there is a real chance or real risk of harm. However, I also accept that the strength and genuineness of his atheist views. The views are already known to his family members and to his broader social network. It is reasonable to find that he will continue holding such views and that he will, at various times throughout the reasonably foreseeable future, express such views. It would be unreasonable to assume that the expression of his atheist views would always, by his own choice, be in private or within the confines of a safe space. It will only take the testimony of two people aggrieved or offended by what the applicant says or does in relation to Islam or his own lack of religious belief to support a conviction under the Iranian Penal Code or Shariya law.
It is more than a remote, hypothetical or speculative chance that the applicant’s views as an atheist and apostate views will come to the attention of Iranian authorities and members of Iranian society more broadly.
His views as an atheist, which cause him to be an apostate, are a protected characteristic under the Act. I cannot and would not expect that he modify, alter or conceal his behaviour or an innate characteristic to live a discreet lifestyle that avoids or limits the expression of his atheist views or religious beliefs.
The harm that he faces includes lashings, imprisonment and, at its most extreme, the death penalty. He faces these penalties based on a conviction that may be established on the testimony of two other males or the subjective knowledge of a judge. The penalties involve harm and are of sufficient degree to amount to serious harm within the meaning of the Act.
The persecutors include the Iranian authorities and members of society within Iran more broadly. I find that these actors are present throughout all areas of Iran which means that the real chance of persecution relates to all areas of the country. As the agents of persecution include the Iranian authorities, I find that effective protection measures cannot and would not be available or provided.
I am 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.
Andrew Verduci
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.
…

[2024] AATA 4270

10 October 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction

[August] 2010	Arrived at Christmas Island as an Unathorised Maritime Arrival.
19 September 2010	Refugee Status Assessment (RSA) application lodged
24 December 2010	RSA outcome – negative
20 April 2012	Post Review Protection Check (PRPC) initiated
11 July 2012	Bridging visa granted
23 October 2012	PRPC initiated
21 February 2013	PRPC outcome – no protection obligations
8 August 2013	Bridging visa expired; became an unlawful non-citizen
15 June 2015	International Treaties Obligations Assessment (ITOA) commenced but not finalised
12 November 2015	Bridging visa granted
23 May 2018	Minister lifted the bar in s 46A of the Migration Act 1958 (Cth) (the Act)
15 September 2018	Applied for XE-790 Safe Haven Enterprise Visa; associated Bridging visa granted