1914579 (Refugee)

1914579 (Refugee) [2024] AATA 4454 (10 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Alireza Majazi Amiri (MARN: 1801203)
CASE NUMBER:  1914579
COUNTRY OF REFERENCE:                   Iran
MEMBER:Adrienne Anderson
DATE:10 October 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 10 October 2024 at 3:24pm
CATCHWORDS
REFUGEE – protection visa – Iran – religion – non-practising and questioning Muslims converted to Christianity in Australia – wife’s parents questioned by intelligence agents after return visit – baptism and regular church and social media activities – supporting documentation and statements – membership of particular social group – husband a conscientious objector who will be forced to complete military service or punished for evading – exemption while studying in another country – delays in departing and applying for protection visa – coherent, consistent and credible claims and evidence – laws restricting converts from attending registered churches – monitoring, raids, arrests and prosecutions – modification of behaviour impermissible – no assessment of husband’s claim on military service grounds – young Australian-born child not an applicant – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (3)(c)(i), (5), (6), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
Wang v MIMA (2000) 105 FCR 548
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 31 May 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Iran, applied for the visas on 18 April 2016. The delegate refused to grant the visas on the basis that the applicants did not meet the criteria for the grant of a protection visa.
The applicants appeared before the Tribunal on 22 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], [Ms B] and [Mr C], who are members of [Church 1]. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, they are either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or 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), they may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds or are members of the same family unit as such a person and that person holds a protection visa of the same class. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicants’ personal backgrounds
The applicants are a married couple. They have a [Age]-year-old son, who resides with them in Australia. He is not included in the present proceedings.
The first-named applicant (the first applicant) is a [Age]-year-old woman from Tehran, Iran. She has a brother, who resides in Tehran, as do the first applicant’s parents.
The first applicant has a Masters degree in [Subject 1]. Prior to leaving Iran she worked as [an occupation 1].
The first applicant arrived in Australia [in] February 2015 on a subclass 476 (temporary skilled) visa. She travelled to Iran [in] July 2015 to visit family, returning to Australia [in] September 2015.
The second-named applicant (the second applicant) is a [Age]-year-old man. He is also from Tehran, where his parents still reside. He has a brother who resides in [Country 1].
The second applicant has a Masters degree in [Subject 2] which he obtained from [University 1, Country 2]. Prior to coming to Australia, the second applicant worked as [an occupation 2] for a [company] in Tehran. The second applicant arrived in Australia on[in] December 2014.
The applicants lodged an application for a protection visa on 18 April 2016.
The applicants’ claims for protection
In essence, each applicant claims that they have a well-founded fear of persecution in Iran for the reason of their religion. The second applicant also claims that he will be forced to complete military service and/or punished for evading such service if returned to Iran.
Evidence before the Department
Material provided by the applicants to the Department in support of their visa application included:
a.Full copies of each applicant’s Iranian passports;
b.Translated and original copies of each applicant’s Iranian birth certificates;
c.Letter of support from [Mr D], [Church 1] Pastor, dated 4 March 2016;
d.Copies of the second applicant’s Iranian and Australian driving licenses;
e.Copy of the second applicant’s Diploma of Bachelor’s Degree and academic transcript;
f.Various copies of original and translated letters relating to the second applicant’s exemption from military service and extensions thereof;
g.Two photographs depicting each applicant with other congregants on their baptism day;
h.Photograph of the cover of the first applicant’s Masters Thesis in [Subject 1];
i.Video recording of a musical concert at [Church 1];
j.Letter of offer from [University 1] to the second applicant to undertake a PhD in [Country 2], dated 19 February 2014;
k.[University 1] transcript of the second applicant, 2012-2013;
l.Statements of claim in respect of the first applicant dated 15 April 2016 and 16 January 2019; and in respect of the second applicant dated 8 April 2016.
In her statutory declaration of 15 April 2016, the first applicant stated in relation to her religion that:
a.She was born and raised as a Shia Muslim but has now adopted Christianity as her religion;
b.Her parents were not strictly religious and the first applicant’s mother is a progressive woman.
c.In society and school the first applicant experienced pressure to conform to Islamic rules, particularly as a woman;
d.When she was 19 years old she was confronted by the morality police because she was wearing a mini dress. She was searched and taken with other women to a police station where her photograph was taken and she was made to participate in a guidance class. Upon signing a declaration that she would not behave that way in future she was released to her brother’s custody. She felt unsafe walking around after that;
e.Following this, the first applicant stopped practicing Islam. She stopped praying and fasting and only attended mosque in Iran for funerals.
f.The first applicant was interested in exploring other types of spirituality. Her Masters degree involved learning about Iranian mysticism and Christianity in a limited way. She also attended a mysticism class run by the second applicant’s mother. She would have liked to explore Christianity further but could not do so in Iran due to the restrictions in place;
g.The first applicant married her husband, the second applicant in July 2013. He also has progressive parents and his mother was involved in mysticism and healing which are forbidden;
h.The first applicant joined the second applicant in Australia after he had already been here for a couple of months. The first applicant was introduced to the Persian community in Melbourne by a friend and former neighbour of the second applicant. This neighbour is Christian and invited the applicants to a birthday party in March 2015. There was a Christian group meeting before the party which the applicants observed. The first applicant was interested and spoke further with the group facilitator named [Ms E];
i.After this the applicants started to join some of these meetings at people’s homes to explore the Christian religion and a relationship with God which was different to that experienced under Islam in Iran;
j.At the meetings the applicants would listen to bible readings, have a discussion of the reading, and participate in collective prayer. [Ms E] also visited the applicants at their home for further discussions of Christianity;
k.After attending a number of these meetings (known as [Meeting name] meetings), in July 2015 the applicants decided to attend the [Church 1] Sunday service. The first applicant enjoyed it because it was so different to being in a mosque. It was a happy experience;
l.The applicants were given bibles in Farsi to read at home;
m.On the second occasion the applicants attended the Sunday service, the first applicant was feeling upset so went to the front to be prayed for by the others. This was comforting to the first applicant;
n.The first applicant attends the church most Sundays and goes to fortnightly [Meeting name] meetings on Wednesdays. She also continues to pray and read the bible in private as it gives her serenity and helps her when she is stressed; and
o.The first applicant is growing her understanding of Christianity and she and the second applicant intend to be baptised the following month. She wishes to live freely and openly as a Christian which is not possible in Iran.
In relation to her experience on return to Iran in July 2015, the first applicant stated:
a.She returned home because she was homesick. Towards the end of the stay her parents organised a farewell gathering at their home of the first applicant’s closest friends. This group included a female neighbour with whom she was close;
b.At the gathering, the first applicant was showing photographs from Australia on a large screen. Some people were recording the screen. A videoclip from a [Church 1] service came on and started playing automatically. She told everyone that she and the second applicant wanted to be Christians and that the Christian mentality was superior to that of Islam in Iran;
c.She did not think this would cause any problems because she had already told her parents about her exploration of Christianity, who did not mind, and because the people at the gathering were close to her;
d.After the first applicant returned to Australia she heard, via her mother, that a neighbour, who is an Ettela’at officer, had talked to the first applicant’s father and said that if she returned she would face legal consequences for converting;
e.The first applicant’s mother told her that she suspected that the husband of the neighbour who had attended the party had discovered the video and shown it to the other neighbour who worked for Ettela’at;
f.The first applicant fears that she will be interrogated and severely punished on return to Iran because of her Christian conversion and for seeking asylum in Australia. She would not be able to live openly as a Christian there.
The second applicant’s statement of 8 April 2016 can be summarised as follows:
a.He was not raised in a strictly religious home. He was not raised to practice Islam and did not go to mosque or fast. His father travelled widely for work and was an open-minded person. His mother is [an occupation 3] and did not practice Islam at all. She attended mystical classes for many years and ran classes at their home in secret;
b.The second applicant’s mother participated in a protest at [Venue] about the jailing of a mystic leader, [Mr F], which was violently dispersed by the authorities. The second applicant’s mother had to go to court as a result but the second applicant does not know many details because it is not safe to talk about over the telephone;
c.When the second applicant was at university, he was sprayed with gas by the Basij for walking with a girl to whom he was not related. About six months later, the second applicant and his brother were detained overnight because his brother’s girlfriend attended a party with them. He was beaten while detained. After his release, he had to go to court where he was sentenced to 80 lashes, but this sentence was not carried out because it was his first offence;
d.The second applicant already believed Islam was cruel and these events confirmed this belief;
e.When the second applicant left Iran to study his Masters degree in [Country 2] he arranged an exemption from compulsory military service. He was granted a further exemption based on an intention to undertake a PhD, which he did not do. He fears being punished for this and as a pacifist does not want to fight and does not agree with compulsory military service;
The second applicant’s statutory declaration also provided details consistent with those in the first applicant’s statement as to how they were introduced to [Church 1] in Australia. The second applicant’s statement also read:
a.He enjoyed the [Meeting name] meetings he went to because they made him feel calm and helped to reduce the nightmares he had been suffering for a number of years before coming to Australia;
b.He liked the culture of praying together and that the teachings were about love and forgiveness rather than the warnings of Islam;
c.The second applicant does [volunteer work] at [Organisation] in [Suburb 1];
d.The second applicant also provides language aid to Iranian members of [Church 1];
e.He has accepted Jesus into his life and wants to continue to worship with the Church and encourage others to take the same path as he has with Christianity. He will be baptised soon;
f.The second applicant fears returning to Iran because the first applicant’s neighbour is aware of their conversion to Christianity. When the first applicant had heard from her mother that their conversion was known, she was very upset. The second applicant knew that they could not return to Iran and hoped to stay through qualifying for a visa through a skilled pathway;
g.The second applicant also fears that he will be suspected of having anti-regime political views because he did not report that he had abandoned his studies despite gaining military exemption on that basis, and because he has sought asylum in Australia. He fears that his mother’s background will cause him further problems when he is investigated. He also fears for the second applicant’s treatment from the authorities as a woman.
The departmental file indicates that the applicants were interviewed by the delegate on 7 January 2019. Following that interview the applicants provided further documents to the delegate, including a statutory declaration dated 16 January 2019.
In this document the first applicant provided further details about the interest shown in her father by their neighbour who was affiliated with Ettala’aat ([Mr G]). The statement provided as follows:
a.The first applicant’s father was questioned on two occasions. On the first occasion, [Mr G] came to the door of her parents’ apartment and questioned him about the first applicant and the gathering they held;
b.The second time, [Mr G] and two other men arrested the first applicant’s father and questioned him in an unknown location for approximately 4-5 hours about the first applicant and why she converted. The first applicant’s father was accused of converting and threatened. He was told that if the first applicant returned to Iran she would be prosecuted.
c.Since returning to Australia the first applicant has uploaded videos of church services to her [Social media 1]. She has done this because the Iranian authorities already know of her conversion.
I n the decision record of 31 May 2019, the delegate accepted that the applicants attend church in Australia but did not accept that they had genuinely converted to Christianity at the time they were baptised or subsequently over the passage of time. Nor did the delegate accept that they would continue to practice Christianity or proselytise on return to Iran. The delegate found that they would continue to not practice any religion in Iran as they had in the past and that accordingly they would not face a real chance or real risk of serious or significant harm in Iran.
In assessing the applicants’ credibility, the delegate found it significant that the applicants had not departed Iran earlier given their claims to have been harmed by the regime for failing to conform to Islamic rules. The delegate also found the first applicant’s claims to have spoken favourably of Christianity and against Islam at the gathering of her friends at home in Tehran to be implausible given that she had not long been attending church in Australia at that point. The delegate also found that the applicants’ delay in applying for a protection visa was inconsistent with their claims to have been identified as an apostate by the Iranian authorities and to fear completing military service.

In relation to the second applicant’s military service claims, the delegate accepted that he was a conscientious objector but that the requirement for him to complete his service obligation did not amount to serious or significant harm.
Evidence before the Tribunal
The Tribunal has listened to the audio recording of the departmental interview and has had regard to the material on the departmental file relating to the protection visa application, including the material listed above at paragraph [20]. The applicants also provided the Tribunal the following:
a.Witness statements in relation to the applicants’ membership and attendance of [Church 1] as well as their commitment to Christianity, from:
i.[Pastor H], [Church 1] Campus Pastor (dated 17 June 2024);
ii.[Mr I], [Church 1] congregant and [occupation 4] (dated 6 August 2024);
iii.[Ms B and Mr C], [Church 1] congregants (dated 7 August 2024);
iv.[Mr A], [Church 1] congregant and [occupation 5] (undated).
b.Support letter from [Ms J], Family Social Worker – Enhanced Maternal and Child Health, [City] (dated 23 July 2024);
c.Certificates of Baptism in respect of both applicants, indicating the baptisms took place on 1 May 2016;
d.A photograph of the second applicant during the baptism ceremony; and
e.Copies of the original and translated marriage certificate between the applicants.
The witness statement from [Pastor H] states that the applicants are regular and committed members of [Church 1] campus in [Suburb 2] and have been since 2015. It also states that they are an active and integral part of Sunday gatherings and small-group community and that their son is also a committed member of the [Children’s] ministry.
The statement of [Mr I] states that he is a leader of the small home-based gatherings that the applicants attend. [Mr I] states that he has known the applicants since 2016 when they started attending the same church campus and that they have regularly attended church services and smaller home gatherings as well as other social gatherings. [Mr I] has often had conversations with them about their Christian faith and bible teachings and he has observed them seeking spiritual advice and prayer from himself and others during hard times. He states that he knows multiple people who have attended and become part of the church community after being invited by the applicants. The Tribunal took oral evidence from the remaining three witnesses listed above, which is discussed further below.
At hearing, the applicants elaborated on their claims before the Department. The first applicant told the Tribunal that when she was growing up she saw her mother did not wear hijab around relatives and in gatherings at home. She herself questioned why she had to be a Muslim and why she could not choose her own religion from a young age. This was because from the beginning she did not like some of the rules about women having to cover and having decisions made for them. She never had any interest towards Islam and now that she is Christian she sees the difference in the way she feels about it compared to Islam.
The first applicant recounted discovering the [Church 1] through the second applicant’s old neighbour from Iran. When she observed the group meeting she was given a stone by [Ms E] who told her that whenever she lost hope she could look at the stone and think about how God was going to help her. The first applicant explained that because she had migrated to Australia she felt estranged and stressed and meeting this group and going to their church gave her a sense of family and warmth. When she started learning more about Christianity she noticed that it was about forgiveness and that the relationship with Jesus was like that of a father and child. Under Islam by contrast, when she was a child she was very scared of God because if you did something wrong you would be punished. The relationship was more like between a god and a slave.
The first applicant stated that since the beginning of exploring Christianity in Australia she has prayed a lot at home. She would sit and think about all of the gifts she had been given and show gratitude. Her religion has shown miracles to her. For example, the applicants were struggling with infertility and managed to conceive with IVF treatment. When she became pregnant, she had an ultrasound which showed that the foetus had no heartbeat. She was told that she was going to miscarry. For a week they waited to see whether they would need medical intervention, during which time her Christian friends prayed for her. A group of [congregants] put their hands on her stomach and told her that the baby now had a heartbeat. When the applicants went for another ultrasound, the pregnancy was viable and their son was later born.
The first applicant stated that through her church she has hope to believe in miracles and that she has learnt to forgive people and have peace. This helps her in her work as [an occupation 6] at a [workplace] where people are often aggressive towards her. She is able to stay calm through the holy spirit and forgive others. The first applicant stated that she continues to go to fortnightly [Meeting name] meetings and church every Sunday. She told the Tribunal that she experiences a high level of energy at church when they all pray together. It is modern and vibrant and happy. For example, when they all pray together people start shaking because there is so much energy. When the pastor’s wife puts her hand on her shoulder she feels such incredible energy that she cannot resist it;
The first applicant also socialises with other congregants. They go out to eat and if anyone has any problems they pray together.
She is still learning about Christianity and if she has questions she asks them in the meetings. Every week at church she learns new things.
The first applicant told the Tribunal that it was important to her to invite other people to the church because it helps people and because one of the principles of Christianity is to invite people in. For example, she encouraged her friend [Ms B] to go to church with them and they prayed and helped her dog recover from illness. [Ms B]’s husband [Mr C] struggled with feelings of depression and hopelessness and through going to [Church 1] he has made progress towards feeling better and having a better life.
In relation to her trip home, the first applicant told the Tribunal that it was not unusual for her to discuss religion with the close friends who were at the gathering. None of her friends had any interest in Islam and had moved away from it because they do not like how women are treated. She wanted to share with them that it was possible to worship God in other ways so she explained about the experience of music and dancing at church.
She stated that one of her friends, a neighbour, had a controlling husband that she had issues with. The first applicant was not sure but believed that her husband had given the video of the gathering to an upstairs neighbour, [Mr G]. While they did not know for sure that [Mr G] was a member of Ettala’at they knew he was a strict proponent of the regime and had connections to Ettala’at because of the people he socialised with and the way he acted. The first applicant stated that she did not know a lot of details about how her father was treated because he was trying to protect her from it but that she knew he had been questioned over the phone and that he had been taken away from home and questioned on one occasion.
Since that time, the first applicant has posted about Christianity and her church experiences on her social media because the Iranian regime already knows about her conversion and because she wants to practice her religion the way she wants to. This includes sharing photos of bible verses or sentiments that are shown on screens at [Church 1]. For example, a few weeks ago she had posted on [Social media 2] about always remembering the good things that the Lord had given to you because by doing so you will remember the hope of God and he will help you again. She shared this because it gives her a good feeling which she wants to transfer to other people and invite them into the religion.
The first applicant stated that she would be arrested if she returned to Iran because she has confessed her conversion to friends and encouraged others to join the religion. She feared she would be killed under Islamic law. She would not be able to practice her religion at all in Iran.
The second applicant told the Tribunal about his upbringing with his mother, who believed in energy as God and who spoke about the presence of a unique god with the second applicant. While he did not follow mysticism like her, he appreciated his mother’s enthusiasm for finding her own faith and religion and he wanted to do the same. It was beautiful to him that she stepped outside of the framework of Allah and was making her own discovery.
When growing up the second applicant also started to see the contradictions in Iranian society and seeing the oppression and force that is promoted. With Christianity he has finally found the path to peace that he was searching for. He has told his parents about his church and experiences and they are happy for him. He has also talked to close friends and the first applicant’s family about these experiences. They have the same mentality as him about Iran and welcome hearing about it. The second applicant stated that he felt it was important to be a symbol and a role model for others. He believes he has to show his commitment to the principles of Christianity through his demeanour and behaviour. He also wants to keep studying and learning about the bible and believing in and accepting Jesus as the son of God because this is watering the tree of abundance.
The second applicant tries to get others to join his church. He stated that he feels like Christianity is a torch in his hand and that in the heart of darkness it gives him light. The more he explores it, the brighter the light becomes and shows him more of the way. The brighter it gets, the more responsibility he feels to tell other people. He quoted Matthew 28:19 that God says to go and evangelise, go and give them the message. For example, the second applicant has spoken to a cousin in [Country 3] about [Church 1] and encouraged him to look at the church’s official YouTube channel which has their teachings on it.
He stated that as a Christian it is his duty to evangelise and that in Iran he would not have the freedom to provide his truth but that he would still try to promote Christianity to others. His main goal is to evangelise because this is the truth for which he has been searching for years, since observing his mother as a child. He cannot accept not being able to provide other people with the same thing.
The Tribunal discussed with the second applicant that he had not spoken about his evangelism in as much detail before the Department and asked why it had not been raised earlier. The second applicant responded that he had always felt this way but that he did not have the opportunity to discuss it in much detail in his previous interview because of the questions he was asked.
The Tribunal also took oral evidence from the applicants’ friends and [congregants] [Ms B and Mr C]. They explained that they were invited to the church by the first applicant and that they often go to church services together. They socialise together too, and see the way that the applicants’ Christian faith is part of their lives. For example when they have meals at the applicants’ house the applicants’ young son holds their hands and says ‘let’s pray’ before they eat. [Mr C] spoke of his mental health issues following bankruptcy and the solace the church has brought him.
The Tribunal also took evidence from [Mr A] who stated that he first met the applicants at [Meeting name] meetings held in [Suburb 2], run by [Mr I]. The applicants’ son was about six months old at the time and [Mr A] heard the applicants talk about the journey they went through to have him. They continue to attend meetings together fortnightly and also socialise outside of church. They go to the pool together with their children. [Mr A] stated that recently the second applicant had had health issues including a low heart rate and that he was facing surgery but that through praying he had seen an improvement to his heart rate. The applicants had also told him of friends in Iran who were infertile but had been able to have a child through the help of their prayer.
The second applicant stated that his main fear was being punished for his religion but that he was also worried about his military service obligations. He feared that because he had not completed the PhD on which the exemption was based that he would be seen to have evaded his obligations and be punished with time in custody or being sent to the border areas. He was particularly scared of this because his brother had been traumatised by his own military service when he was sent near the Afghan border. The second applicant stated that he did not have an issue with serving his country but that he does not believe in war or fighting and that this would be an inseparable part of his service.
The Tribunal discussed with the second applicant country information indicating that the period of mandatory military service had recently been reduced to an average of 14 months[1] and that while conscripts do not get a choice of the type of service they undertake or the location,[2] that men with a Masters degree are usually given office jobs.[3] The Tribunal also discussed that criminal penalties apply to those who avoided service and did not get an exemption include fines or prison time, and/or having drivers’ licenses and passports revoked.[4]
[1] Department of Foreign Affairs and Trade (DFAT), Country Information Report Iran (24 July 2023) [2.154].
[2] Ibid.
[3] Ibid [2.156].
[4] Ibid [2.157].
The second applicant stated that he feared that because he had not done his military service this would bring him into contact with the authorities who would ask him questions about why he left and what the reason was for his stay in Australia and that he could be forced to confess to his conversion to Christianity.
After the hearing, the applicants’ representative provided two sets of submissions, the first of which was dated 22 August 2024 and the second of which was received on 29 August 2024 on the issue of the second applicant’s military service obligations.
In relation to the latter issue, the representative submitted a translation of Articles 10, 23 and 58 of the Iranian Conscription Act.[5] It was submitted that the second applicant had breached Article 23 which states that conscripts who move overseas for further education must report to the Domestic Conscription Organisation immediately upon the discontinuation of their studies and at the conclusion of their authorised period abroad. It was further submitted that under Article 58 the second applicant would be classified as ‘absent’ and therefore he would be made to complete his service and potentially subjected to additional penalties including imprisonment. The submissions state that these consequences would give rise to serious or significant harm.
[5] Source given as Portal of Research Centre of Iranian Parliament (Majlis), <>
The submissions of 22 August 2024 addressed the delegate’s credibility concerns, including the perceived delay in departing from Iran and claiming protection in Australia. It was submitted that at the time the applicants were facing issues relating to their conformity with Islamic rules they did not fear persecution and that they only fear persecution now that they have converted to Christianity. On the issue of delay in claiming protection the applicants’ representative submitted that if they had been contriving a claim for protection that they would have applied earlier, upon arrival in Australia, rather than two years later after the first applicant’s conversion became known.
The representative submitted that the applicants’ involvement in [Church 1] spans more than nine years, that there is a significant amount of evidence verifying their activities, that they have genuinely accepted the tenets of Christianity and lived freely and openly as Christians here. It was submitted that if they are returned to Iran that they would wish to participate in their faith in a similar way and that they would either be persecuted if they did do so or that it would be an impermissible modification of their behaviour pursuant to s 5J(3)(c)(i) if they ceased their practice.
FINDINGS AND REASONS
Country of nationality
The departmental file contains copies of the biodata pages of the applicants’ Iranian passports. There is no dispute as to their Iranian nationalities and they were assessed on that basis by the Department. The Tribunal finds that the applicants are citizens of Iran and have assessed their claims against Iran as the country of nationality and the receiving country.
Findings of fact
As indicated above, the delegate did not accept any of the applicants’ claims to be true. Having had the benefit of further documentary and oral evidence from the applicants and their witnesses, including in relation to a further five years’ attendance at and participation in the [Church 1], the Tribunal does not share the delegate’s credibility concerns.
The Tribunal found the applicants’ evidence at hearing to be internally coherent and consistent with their previous evidence and the evidence of each other. The applicants’ evidence in relation to their religious journey away from Islam and towards Christianity was consistent and credible. In relation to their exploration of Christianity in Australia, both applicants provided spontaneous and detailed examples of bible stories or verses which are significant to them and how they implement those teachings in their daily lives. The evidence they gave on the impact of their beliefs and the church community more generally on their identities, practices and their lives was detailed, credible and convincing.
The Tribunal does not consider the first applicant’s account of sharing her beliefs at home in Iran with a close circle of family and friends to be implausible when considered in the context of the way she was raised. The Tribunal notes that it had some concern about the credibility of the first applicant’s account of the consequences for her father after this gathering because her evidence at hearing was inconsistent with her previous statement in relation to whether her father was questioned both times in person or via telephone. However, the Tribunal is mindful that the first applicant is giving information of which she does not have firsthand experience and is prepared to accept this evidence given its finding that she is overall a witness of credit. The Tribunal also notes that the first applicant’s evidence about her neighbour is consistent with country information indicating that tip-offs by Muslim neighbours about Christian gatherings and house churches to the authorities occur and that the Iranian authorities respond to this information.[6]
[6] DFAT, Country Information Report Iran (24 July 2023) [2.85].
The Tribunal accepts the applicants’ evidence that they did not lodge their protection visa application immediately after the first applicant returned from Iran because they were exploring other visa options. In these circumstances, noting the applicants were on an ongoing visa preventing an imminent risk of return to Iran, the Tribunal does not find a six month delay in applying for protection to be inconsistent with a genuine fear of harm or to otherwise undermine their credibility when their evidence is considered as a whole.
On the basis of the documentary and oral evidence provided, the Tribunal accepts that the applicants began attending the [Church 1] in 2015 and were baptised in 2016. It accepts their evidence about their participation in fortnightly [Meeting name] seminars, attendance in church and that they are actively involved in social events with the Church and/or with congregants of the Church. The Tribunal accepts that they have spoken to friends and family in Iran and overseas about Christianity, that they have made social media posts supporting Christian principles and that they have actively invited and encouraged other people in Australia to join their church.

Having regard to the applicants’ ongoing commitment and engagement with the Church and their explanations for the reasons they have their Christian faith, the Tribunal accepts that the applicants are genuine about their Christian faith and that their involvement with [Church 1] in Australia has not been solely for the purpose of strengthening their refugee claims.
The Tribunal accepts the applicants’ evidence that their faith is part of their lives and that they will seek to practice upon return to Iran. As noted above, the Tribunal raised with the second applicant that he had not previously emphasised a commitment to evangelism, though his initial statement of claims indicated that he wanted to encourage others to take the same path as he has with Christianity. The Tribunal notes that a further five years has passed since the interview with the delegate and the Tribunal accepts the applicants’ other evidence that their commitment to and practise of their Christian faith has developed over time. The Tribunal also notes that the witness evidence confirms that the applicants have invited other people to join their church and on the basis of all of the evidence before it accepts that the applicants’ expression of their faith includes worshipping with others, inviting others to join in the [Church 1] and/or to follow Christianity, as well as otherwise sharing their thoughts and sentiments with those around them, whether that is in person, over social media or other online/telecommunication means.
Risk of harm on return on the basis of the applicants’ religion
As set out above, the Tribunal has accepted that since coming to Australia, the applicants have begun exploring Christianity, have been baptised, and have been regularly attending church services and bible discussion groups for over nine years. It has accepted on the basis of their evidence, the evidence of congregants of their church, and their conduct in Australia that they are genuine about their Christian faith and will seek to practice on return to Iran.
The Tribunal accepts that the applicants, who were born Muslim, would be considered Christian converts in Iran and that the first applicant may already be known as such by the Iranian authorities if her neighbour passed on this information to the authorities.
Country information indicates that as converts the applicants would not be permitted to attend registered churches which belong to a small community of recognised Christians in Iran. Since 2012, the government has banned converts from attending services in registered churches.[7] Reports indicate that the regime has increased surveillance and monitoring of authorised churches in recent years, as part of an expansion associated with a crackdown on unauthorised house churches.[8] For instance, most (if not all) registered churches are monitored with government security cameras.[9] Security officials have also monitored congregations to perform identity checks on attendees to ensure that they are not converts.[10]
[7] Austrian Centre for Country of Origin Information and Asylum Research and Documentation (ACCORD), ‘Iran: House Churches; Situation of Practising Christians; Treatment by Authorities of Christian Converts' Family Members’ (14 June 2017) 8.
[8] United States Commission on International Religious Freedom (USCIRF), 'United States Commission on International Religious Freedom Annual Report 2019' (29 April 2019) 54; Landinfo - Norwegian Country of Origin Information Centre, 'Iran: Christian converts and house churches (2) - arrests and prosecutions' (29 November 2017) 3; Danish Immigration Service and the Danish Refugee Council, ‘Iran: House churches and converts’ (February 2018) 15.
[9] Open Doors, 'Iran: Full Country Dossier' (1 December 2023) 46; The Christians in Parliament All Party Parliamentary Group and the All Party Parliamentary Group for International Freedom of Religion or Belief, 'The Persecution of Christians in Iran' (1 March 2015) 6.
[10] DFAT, Country Information Report Iran (24 July 2023) [2.81].
The Tribunal therefore accepts that the applicants’ only option to continue to practice their religion in community with others on return to Iran is through attending or starting an unofficial house church.
On the phenomenon of house churches, the DFAT report on Iran states that:
House churches vary in size, style and structure. Most are small and informal, and consist of close family and friends gathering on a regular or semi-regular basis to pray, worship, read the Bible and/or watch Farsi Christian television programs broadcast via satellite or discs smuggled from abroad. Foreign Christian missionaries, to which asylum seekers may have links, may participate in Iranian Christianity through house ‘internet pastors’ who preach and conduct services remotely via the internet. Local Christian leaders and adherents may be foreign trained while overseas.[11]
[11] DFAT, Country Information Report Iran (24 July 2023) [2.84].
DFAT advises that Iranian authorities interpret the growth in house churches as a threat to national security and periodically carry out raids against them.[12] Raids reportedly focus on house churches that actively proselytise or seek out new members.[13] Such raids usually occur as a result of Muslim neighbours informing on congregations, though DFAT notes information from some sources that the government sends people posing as converts to infiltrate house churches.[14]
[12] Ibid [2.85].
[13] Ibid.
[14] Ibid.
In relation to the consequences for people discovered participating in house churches, DFAT notes that while not a common outcome, prison or the death penalty for apostasy is possible.[15] Years or even decades-long prison sentences are also possible.[16] DFAT reports for example that three Christians in the city of Karaj, near Tehran, were sentenced to nine years in prison in August 2021 under recently implemented changes to the Islamic Penal Code targeting ‘propaganda contrary to Islam’.[17]
[15] Ibid [2.86].
[16] Ibid.
[17] Ibid.
While some sources note that the majority of arrests of Christians in recent years have been the result of raids on house churches[18] and that most are released after a short time in exchange for signing a declaration that they will cease their activity,[19] other sources observe that an increasing number of non-leaders have faced national security charges in recent years.[20]
[18] Landinfo -Norwegian Country of Origin Information Centre, 'Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise' (27 November 2017) 24.
[19] Ibid; Article 18, Open Doors, Middle East Concern, Christian Solidarity Worldwide, 'Faceless Victims: Rights Violations Against Christians in Iran 2024 Annual Report' (19 February 2024) 21.
[20] Open Doors, ‘Iran: Full Country Dossier’ (January 2022) 30.
While the exact number of arrests and convictions is unknown due to many cases going unreported,[21] arrests and prosecution of Christian converts continued in 2023 and 2024. According to a joint report by four Christian advocacy groups, 166 Christians were arrested in 2023, the majority of which were converts.[22] Comparatively, 134 Christians were arrested in 2022[23] and 59 were arrested in 2021.[24]
[21] Article 18, Open Doors, Middle East Concern, Christian Solidarity Worldwide, 'Faceless Victims: Rights Violations Against Christians in Iran 2024 Annual Report' (19 February 2024) 18, 28.
[22] Ibid 18.
[23] Article 18, Middle East Concern, Open Doors, Christian Solidarity Worldwide, '2023 Annual Report: Rights Violations Against Christians in Iran' (19 February 2023) 11.
[24] Ibid; Article 18, Open Doors, Middle East Concern, Christian Solidarity Worldwide, 'Rights Violations Against Christians in Iran - Annual Report 2021' (25 January 2022) 10.
Reports indicate that after they are detained, converts are sometimes interrogated and released within days, sometimes charged, or sometimes held (in some cases without charge) for months.[25] If released without charge after a raid, an ordinary convert will likely continue to be monitored and might be detained for periodic interrogation as a means of intimidation.[26]
[25] Finnish Immigration Service, ‘Christian Converts in Iran’ (21 August 2015) 11; Open Doors, Article 18, Middle East Concern, Christian Solidarity Worldwide, 'Annual Report 2020 - Rights violations against Christians in Iran' (2 February 2021) 11. Recent examples include: ‘Two Christians
[26] Danish Immigration Service and the Danish Refugee Council, ‘Iran: House churches and converts’ (February 2018) 7.
Independent reports also indicate that those most likely to be prosecuted are church leaders or those engaged in proselytising activity.[27] Most of those who are convicted have usually been arrested or convicted previously, had contact with foreign organisations, or published online about their faith.[28] There are reports of beatings, solitary confinement and sexual and psychological abuse of converts in detention.[29]
[27] UK Home Office, ‘Country Policy and Information Note - Iran: Christians and Christian converts' (27 February 2020) 7-8; Landinfo -Norwegian Country of Origin Information Centre, 'Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise' (27 November 2017) 25; Danish Immigration Service and the Danish Refugee Council, ‘Iran: House churches and converts’ (February 2018) 7; UK Home Office, ‘Country and Policy Information Note: Iran: Christians and Christian Converts’, (May 2019), paras 2.4.7, 8.2.7, 8.2.10, 8.2.11 & 8.5.1.
[28] UK Home Office, ‘Country Policy and Information Note - Iran: Christians and Christian converts' (27 February 2020) 8; Landinfo - Norwegian Country of Origin Information Centre, 'Iran: Christian converts and house churches (2) - arrests and prosecutions' (29 November 2017) 20.
[29] Immigration and Refugee Board of Canada, 'IRN200458.E - Iran: Situation and treatment of Christians by society and the authorities (2017-February 2021)' (09 March 2021); Landinfo - Norwegian Country of Origin Information Centre, 'Iran: Christian converts and house churches (2) - arrests and prosecutions' (29 November 2017) 23.
While DFAT notes that returnees without a particular profile are unlikely to come to the attention of authorities if they keep a low profile, and that this is not affected by social media posts about their conversion they may have made while in a Western country,[30] in the applicants’ particular circumstances the Tribunal cannot dismiss as remote the possibility that they will come to the authorities’ attention either at the airport on return or subsequently. The Tribunal notes that the first applicant may already be known to the Iranian authorities because of the actions of her neighbour who is Ettala’at affiliated or an informant. Country information indicates that the Ministry of Intelligence and Security is responsible for monitoring converts[31] and that it is likely that the regime knows the names of and monitors substantial numbers of converts.[32]
[30] DFAT, Country Information Report Iran (24 July 2023) [2.87].
[31] Open Doors, Article 18, Middle East Concern, Christian Solidarity Worldwide, ‘Annual Report 2020 - Rights violations against Christians in Iran' (2 February 2021) 8; The Christians in Parliament All Party Parliamentary Group and the All Party Parliamentary Group for International Freedom of Religion or Belief, 'The Persecution of Christians in Iran' (1 March 2015) 5.
[32] ACCORD, Iran: House Churches; Situation of Practising Christians; Treatment by Authorities of Christian Converts' Family Members’ (14 June 2017) 12.
Moreover, as indicated above, the Tribunal has accepted that proselytising is a significant part of the applicants’ practice of their faith and that they would seek to do this on return. The Tribunal is satisfied that if they did not continue this activity it would only be to avoid suffering serious harm.
This activity reportedly carries a higher risk of both discovery and more severe punishment. The Danish Immigration Service reports that a person who continues to engage in Christian activities on return to Iran is more likely to be of interest to the authorities on return than someone who does not.[33] DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed and that Christians found to be proselytising face a high risk of arrest, prosecution and imprisonment.[34] DFAT concludes that those who convert while outside of Iran and who intend to continue to practise their Christian religion would face a high level of official discrimination and could be subject to the death penalty.[35]
[33] Danish Immigration Service and the Danish Refugee Council, ‘Iran: House churches and converts’ (February 2018) 8.
[34] DFAT, Country Information Report Iran (24 July 2023) [2.88].
[35] Ibid.
The Tribunal finds that the applicants cannot be expected to modify their behaviour to avoid a real chance of persecution in Iran, as this would require them to alter or conceal their true religious beliefs or cease to be involved in the practice of their faith. In this regard, the Tribunal notes that Australian courts have recognised that there are two elements to the concept of religion in this context: a manifestation or practice of personal faith as well as more public forms of manifestation or practice in community with others.[36]
[36] Wang v MIMA (2000) 105 FCR 548 at [81].
In view of the applicants’ circumstances and the available country information, the Tribunal considers that there is a real chance that the applicants will be discovered, arrested and prosecuted by the Iranian authorities on return to Iran, either now or in the reasonably foreseeable future.
The Tribunal finds that the harm feared by the applicants involves systematic and discriminatory conduct and rises to the level of serious harm as set out in s 5J(5) because it involves threats to life or liberty as well as significant physical harassment and harm.
The Tribunal is satisfied that such treatment would be for the essential and significant reason of the applicants’ religion. As the persecutor is the Iranian state, the Tribunal accepts that effective protection is not available and that the real chance of persecution relates to all areas of Iran. For the reasons set out above, the applicants’ conduct in Australia is not to be disregarded under s 5J(6). Therefore the applicants meet the definition of a refugee set out in s 5J(1) and satisfy s 36(2)(a) of the Act.
Given the above findings, the Tribunal does not consider it necessary to assess the second applicant’s claims in relation to his compulsory military service. However, the Tribunal notes that the second applicant’s failure to discharge this obligation increases his chance of discovery as a Christian convert in Australia because, on the available country information, this unfulfilled obligation is likely to bring him into contact with the authorities both on return and for a prolonged period while he undertakes a period of military service.
CONCLUSIONS
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s 36(2)(a).
There is no information before the Tribunal to indicate that either applicant has a right to enter or reside in any country other than Iran and therefore s 36(3) does not apply.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.
Adrienne Anderson
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.
…

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

[2024] AATA 4454

10 October 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction

Remedies