1915164 (Refugee)

[2024] AATA 4141

1915164 (Refugee) [2024] AATA 4141 (2 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Navid Koushke Baghi (MARN: 1681603)

CASE NUMBER:  1915164

COUNTRY OF REFERENCE:                   Iran

MEMBER:Troy Barty

DATE:2 October 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 02 October 2024 at 2:35pm

CATCHWORDS
REFUGEE – protection visa – Iran – arrival by sea – ethnicity and religion – Kurdish Shia – dispute between applicant’s and wife’s families – non-devout/questioning/hostile Muslim converted to Christianity in Australia – baptism, church and social media activities, and supporting statements from partner and church minister – not for purpose of strengthening claim – mental health and addiction treatment – returnee on temporary travel document – spontaneous, open and expressive evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (6), 36(2)(a), 46A, 65
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.      This is an application for review of a decision to refuse to grant the applicant a protection visa.

2. The applicant applied for the visa on 18 September 2018. In his application he said that he was a citizen of Iran. The delegate of the Minister for Home Affairs made their decision under s 65 of the Migration Act 1958 (Cth) (the Act) on 24 May 2019. The delegate refused to grant the visa and the applicant applied to the Tribunal for review of that decision.

3.      The applicant appeared before the Tribunal on 13 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from his partner [Ms A] and [Reverend B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.

4.      The applicant was represented by Mr Navid K Baghi of Amity Lawyers.  

CRITERIA FOR A PROTECTION VISA

5.      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).

6. 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.

7. 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.

8.      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).

9.      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.

10.      Subject to s 5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. Section 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.

11. 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

12.      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

Background and visa history

13.      The applicant arrived in Australia [in] March 2011. He arrived by boat and is therefore considered an ‘unauthorised maritime arrival’. After arrival in Australia, he lodged an application for protection which was rejected. His application was referred for an Independent Protection Assessment (IPA). The assessor concluded that the applicant did not meet the criteria for a protection visa and the applicant lodged an appeal with the Federal Circuit Court. According to the information in the delegate’s decision record, the ‘Minister withdrew’. In 2015, the applicant was on a bridging visa and lodged additional claims for protection. Exercising the discretion in s 46A, the Minister decided to allow the applicant to make an application for a Safe Haven Enterprise Visa (SHEV). The applicant lodged an application for a SHEV in September 2018.  

Claims and evidence

14.      The applicant’s initial interviews after arrival in Australia were conducted on 29 March 2011 and 1 April 2011. In his biographical details he stated that he was a Shia Muslim. The interview record indicated the applicant said that the reason he left Iran was because there was racism between Kurds and Iranians, and he is a musician and got arrested. In addition, there were differences between his family and his wife’s family, and he and his wife decided to get divorced because the dispute was escalating. One day after he divorced his wife, he left. He flew to [Country 1] and then to [Country 2] where he stayed for about 34 days before getting on a boat to Australia. He also said that his wife’s cousin wanted to marry her, was high-ranking and worked for Etelaat. He said he could not return to Iran because as a Kurd he would be discriminated against, and he cannot live peacefully. If he listened to Kurdish music the regime would capture and handcuff him. They send people to stop people promoting their music. If he went back, he would be killed by his own tribe because he did not have the courage to kill his own wife. He escaped for his mother and brother. Included in other parts of the interview record was information that the applicant was arrested and detained, and he was released from detention after his family paid money.

15.      Prior to the Tribunal hearing the applicant’s legal representative provided written submissions and statutory declarations by the applicant, the applicant’s partner ([Ms A]), [Reverend B] and from [Dr C]:

·The written submissions outlined the applicant’s claims and provided information from a range of sources in support of those claims. It said the applicant has a well-founded fear of persecution for the following refugee grounds: religion, political opinion and membership of a particular social group (being a person who had converted from Islam, a person with pending legal proceedings, failed asylum seeker/returnee and a person with severe mental health issues). The submission also referred to family conflict and the applicant’s Kurdish ethnicity.  

·The applicant’s statutory declaration dated 6 August 2024 addressed aspects of the delegate’s decision and about his conversion to Christianity and other information relevant to the legal criteria.

·[Ms A]’s statutory declaration dated 5 August 2024 included information about her knowledge of the applicant’s conversion to Christianity. She said he wanted to convert to Christianity within 2 years of meeting her. He found Christianity around 2016-2017. She described the applicant as anti-Muslim and that she had never known him to be a Muslim. He had always questioned Islam and its impractical teachings.  She said he helps her children with their doubts about Christianity, he preaches, and he is active in his faith. All of her friends are aware of his conversion to Christianity, and he announces it to everyone in his life with great pride and joy. His community in Iran are aware of his conversion and as a result, he is concerned about people – even members of his own family. She states that if he returns to Iran he will be arrested, subjected to serious harm, torture or death.

·[Reverend B]’s letter was dated 23 June 2024. He said he had known the applicant since May 2022. He had at least 15 formal meetings with the applicant between then and when the applicant was received in the Catholic church in April 2023. He said each of the formal meetings lasted 45 minutes and he took the applicant through the Gospels and the message of Jesus. The applicant was required to do homework and contributed to the discussion. There were also prayers and an understanding of the sacraments. [Reverend B] said he remains in regular contact with the applicant by email and the applicant is enthusiastic about a further faith program. [Reverend B] noted that the applicant was not a local parishioner, and the connection was made through a close relationship with a parishioner and her family, and that he does not see the applicant (and did not expect to see him) regularly at the parish but has seen him with family at major feasts. He describes the applicant as a deeply spiritual and reflective individual, and they have had many discussions on matters of faith and Christianity. He also describes being responsible for preparing adults for reception into the church. He said that after their 11-month program he was satisfied that the applicant not only understood the central message of Christianity but was committed to it. He was baptised at Easter 2023 in front of the whole congregation. He said that faith is central to the applicant’s strength in coping with the challenges of being a refugee and the impact of government regulations. He believes that the applicant’s Catholic faith and trust in God is part of his self-identity, and that his conversion is real and fundamental to him.  A copy of a baptism certificate dated 8 April 2023 was provided.

·[Dr C] is an Addiction Medicine Specialist with [Health service]. His letter dated 15 June 2019 said that the applicant self-referred himself in March 2017 for assistance with his opium and oxycodone dependence. He said the applicant had been assessed for depression and suicidality and diagnosed with depression and PTSD from his treatment in Iran and the journey to Australia. Suboxone treatment was commenced, and his mood, concentration and functionality substantially improved. He noted that suboxone is not available in Iran and this means the  applicant is anxious about returning there where his abandonment of his religion is a crime and opium is readily available. [Dr C] said that the efficacy of suboxone treatment for heroin dependence is not equalled by any alternative treatment and the applicant was likely to relapse into depression and drug use if he were returned to Iran. [Dr C] said that remaining in Australia to update his education, to spend more time in trauma therapy, on antidepressant medication and remaining stable on Suboxone all allow the applicant to re-construct basic supports and allow functional recovery. Without those things his prognosis is grave.

16.      At the hearing the applicant confirmed much of the biographical detail provided previously. At the time of the hearing he was a [Age]-year-old man. He said he grew up in Ilam, Iran. His parents are deceased. He has one brother and one half-brother living in Iran along with his grandmother and aunt. They all live outside of Ilam. The applicant’s evidence was presented in an open and unaffected way. He was at times somewhat pressured in his speech. His evidence (including his evidence about the examples of his [Social media] posts) was expressive, it did not appear to be contrived and he impressed the Tribunal as a person without artifice.

17.      He said that he practised Islam in Iran, mostly because he was forced, such as during lunch breaks at work. When he was not working before coming to Australia, he did not attend mosque, he did not care and did not feel obliged. His mother and her family however, were deeply religious. Before coming to Australia he studied for two years at university but did not complete his course because of the conflict with his wife’s family. He and his wife got married in secret in a notary office and then had lots of problems with her family. Since coming to Australia he has worked in a variety of roles and is now operating a [franchise].

18.      Thirty-nine photos or screen shots of [Social media] posts were provided with the submissions and a number of them were discussed in some detail during the hearing. Several of them were photos of the applicant and [Ms A] in church. One of them was of Israel’s Prime Minster, Benjamin Netanyahu and US President Joe Biden – unprompted, the applicant expressed support for Netanyahu and a dislike of Biden. He said that he loves Netanyahu because he is doing a great job ‘killing them one by one’. Another included a photo of the Koran with script written over it. The applicant said it stated that the only way to save Iran is to return this book to its origin in Saudi Arabia. Another example (a photo of an Islamic cleric and a person in military uniform with untranslated Farsi script) was described by the applicant as demonstrating a Mullah and a NASA employee – one of whom is worried about what people wear, what they do and religious rituals, and the other thinking about NASA and space. Many of the posts related to the protests which occurred after the death in custody of Mahsa Amini and the ‘Women Life Freedom’ movement, including one of the applicant holding a Persian flag in Canberra at a rally (posted [in] January 2023), a photo of a woman who has removed her head covering and showing her hair, and of a man talking about the abuses perpetrated on the protestors in prison. Of the photo of him at the protest in Canberra, the applicant said that he received many responses and reactions including from his cousins in Iran. When asked about his social media activity, he said that he is on social media and posts something every day.

19.      In relation to his Christianity, he said he does not attend church every weekend but attended the weekend before the hearing. [Ms A] does not attend church with him other than on feast days such as Easter. Since Easter 2024 he would have been to mass about 4 or 5 times. When he attends mass, he receives Holy Communion. He said he prays when he wakes up and when he goes to bed. He said he taught [Ms A]’s children to pray before meals. He also has downloaded an app with a Farsi bible and reads it every day.

20.      When asked about his 2015 statement in which he described himself as having ‘no faith’ he said that when he arrived in Australia, he was full of hate for Islam and considered himself of no religion. Then from 2015 to 2017 his life changed – he suffered an injury, his mother died and he was not with [Ms A]. He was confused and lost. He had been told in Iran that when you are in trouble, go to a mosque. When he went to the mosque he was sent away, and they closed the gate. He went to a church, and he sat on the stairs and cried and said that he needed help. He was taken inside by a man who said, ‘you are my son’. His feelings changed from then. The applicant said it is hard for someone born Muslim and he did not tell his family about this change.

21.      When asked if he could practice his religion in Iran in a way that he could avoid coming to the attention of the authorities, he said that would be in a cave, and that many churches are getting closed down. When it was pointed out that many people are converting to Christianity, he said that many are leaving and that if it is known that they had been practising Islam previously, that would be a different story. If a person converts, the punishment is death. When asked if he could read his bible and pray by himself, he said he did not believe he would get through the airport.

22.      In relation to other issues raised by him in previous statements (such as his music, relationship and wife’s family) the Tribunal asked whether there would still be any issues given that it was more than 12 years ago, he said those issues are still there and [Mr D] is still there. The applicant said that he is on social media and the state has lots of agents.

23.      When the Tribunal indicated that it must disregard conduct in Australia unless it was satisfied that the conduct was engaged in other than for the purpose of strengthening the person’s claim to be a refugee, the applicant said that he told his lawyer and the priest that he wanted to wait to get baptised as he did not want anyone to say he was doing it to get a visa, but the priest said to him ‘this is what you are’. 

24.      When asked about evangelising, the applicant said that when he talks to his brothers or cousins he talks about Christianity and how good it is. He tells them he is peaceful now and that God will return.

25.      [Ms A]’s evidence was that she had known the applicant before his conversion, and he was anti-Islam and vocal about that. She said he has read a lot and he knows more about Christianity than she does. He ends every phone call with “God bless you” and thanks God before he eats – he is a very thankful person. She said that initially he would not use his conversion to Christianity as part of his claim for immigration. He was already living the life of a Catholic however, and a friend spoke to him, and he made the decision to include it as part of his claim. When asked if she believed he could modify his behaviour to avoid coming to the attention of the authorities, she said that he would not be true to himself, and he could not hide it. It is part of him.

26.      [Reverend B] provided his evidence by telephone. He referred to his written notes of meetings with the applicant and what was discussed. He said that until he retired very recently, he emailed the applicant regularly providing him with his sermon each week, along with scripture readings and reflections. He confirmed that prior to the applicant’s baptism, he met with the applicant and that the applicant told him about his initial interactions with Christian churches when he was at low points in his life. He said the applicant is very genuine and the principle of love gives him strength.

27.      In addition to his written submissions, at the hearing Mr Baghi submitted that country information indicates that apostasy laws provide that any person who converts could face the death penalty. In relation to whether the applicant could modify his behaviour or practise his faith in a way that would not bring him to the attention of authorities, Mr Baghi submitted that the applicant’s evidence at the hearing indicated how outspoken he is, and that the applicant could not hide his true beliefs. Evangelising is part of his beliefs. The applicant publicly announces his faith and that is publicly available for anyone to see. He could not quietly return to Iran as he does not have a passport and would have to travel on other travel documents and would be stopped at the airport. There are genuine concerns about the interactions he would then have. Mr Baghi submitted that the applicant is known in his small community and could not disappear into society. In relation to s 5J(6) he submitted that the applicant was of the view not to raise his conversion and did not raise it in his 2019 interview with the delegate. Given where he would have been in his spiritual journey in 2019 it goes to the applicant’s credibility that he did not raise it then.

Country information

28.         The Iranian constitution defines the country as an Islamic republic and Twelver Ja’afari Shia Islam is the official state religion. All laws and regulations must be based on “Islamic criteria” and an official interpretation of sharia.[1] According to Iranian government estimates, Muslims make up about 99.4 per cent of the population. 90 – 95 percent are Shia and 5 to 10 percent are Sunni (mostly Turkmen, Arabs, Baluch and Kurds).[2]

[1] US Department of State, 2023 Report on International Religious Freedom: Iran, Executive Summary, Iran - United States Department of State

[2] Ibid, section 1.

29.         The penal code provides for hudud punishments (those mandated by sharia) and prescribes the death penalty for moharebeh (enmity against God) and insulting the Prophet. A fatwa provides the death penalty for apostasy. [3]

[3] Ibid, Executive Summary

30.         The penal code criminalises insulting Islamic schools of thought and ‘deviant educational or proselytising activity that contradicts or interferes with the scared law of Islam’. Proselytising of religions other than Islam can be punished by up to 10 years in prison.[4]

[4] Ibid

31.         Government figures state that there are over 117,000 Christians in Iran (2016 census). Other estimates range from 579,000 to 1.24 million.[5] The activities of recognised Christian communities are closely regulated, and only recognised Christians can attend church. Regular identity checks on worshippers are conducted.[6]  Christians who do not engage in proselytisation activities face a low risk of official discrimination.[7]

[5] Ibid

[6] Department of Foreign Affairs and Trade, DFAT Country Information Report Iran, 24 July 2023 (version 2) at 2.81

[7] DFAT at 2.88

32.         Christian conversions that took place after 1979 or outside Iran are not recognised by the government, and accordingly people in that situation are considered Muslim and subject to apostasy laws.[8] DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed. Christians found to be proselytising face a high risk of arrest, prosecution and imprisonment. Christian converts face a high risk of societal discrimination if their conversion becomes widely known particularly if they are from religiously minded Muslim families.

[8] DFAT at 2.80

33.         The UK Country policy and information note on Christians and Christian converts in Iran[9] says that in general, a person who is found to have converted to Christianity and who seeks to openly practice their faith in Iran, are likely to be subject to treatment or discrimination by the state that is sufficiently serious in its nature or repetition to amount to persecution. It refers to a country guidance case PS (Christianity – risk) Iran CG [2020] UKUT 00046 (IAC), in which the Upper Tribunal agreed with previous authority that ‘those who are perceived to be church leaders or activists face a real risk of harm’. However in contrast to those previous authorities, in PS Iran, the Upper Tribunal held:

‘We do not however find it safe to assume that “ordinary” Christians, that is to say individuals with no role beyond attending collective worship at house churches, escape the attention of the authorities. On a general level the language used by the sources indicates that to the contrary, simply being a Christian is enough to get you arrested: “authorities continued to arrest members of unrecognized churches”, “many arrests reportedly took place during police raids on religious gatherings”, “Christians, particularly evangelicals and converts from Islam, continued to experience disproportionate levels of arrests and detention”.

[9] Country policy and information note: Christians and Christian converts, Iran, September 2022, Country policy and information note: Christians and Christian converts, Iran, September 2022 (accessible) - GOV.UK (

34.         The UK policy and information note referred to multiple sources which report the arrest and detention of Christian converts including leaders and ‘ordinary’ Christians. These arrests often, though not always, occur after house-church raids by the security forces.

35.         It notes the Upper Tribunal in PS Iran also said that decision-makers should consider the risks at the ‘pinch point’ of arrival. Noting that all returning asylum seekers are subject to questioning on arrival, a returnee who divulges that he claims to be a Christian is reasonably likely to be transferred for further questioning. If the detention become prolonged the risk of ill treatment will increase and factors that could lead to prolonged detention could include:

i.Previous adverse contact with the Iranian security services;

ii.‘Connection to persons of interest to the Iranian authorities;

iii.Attendance at a church with perceived connection to Iranian house churches;

iv.Overt social media content indicating that the individual concerned has actively promoted Christianity’.[10]

The Tribunal’s assessment of the evidence and conclusions

[10] Ibid at 2.4.6 to 2.4.14

36.         The applicant has consistently claimed to be a citizen of Iran. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Iran, and that Iran is his country of nationality.

37.         The applicant’s evidence about his conversion to Christianity provided at the hearing was consistent with his statutory declaration. [Ms A]’s evidence about the circumstances of his conversion and the nature of his religious practice was also consistent with the applicant’s. [Rev B] was not intended to be a witness at the hearing, however at the Tribunal’s request he was contacted and made himself available. His evidence was also consistent with the applicant’s evidence about his religious education and eventual baptism. The applicant’s description of being refused assistance at a mosque and being welcomed and helped at a church was an important part of the applicant’s reasons for and explanation of his conversion, and that narrative had clearly been discussed with [Rev B] as he described it in his evidence to the Tribunal also.

38.         [Rev B]’s evidence at the hearing confirmed that he worked closely with the applicant and eventually he considered the applicant was ready for baptism. In providing his evidence to the Tribunal, [Reverend B] was able to provide evidence of the detail and level of commitment required for the applicant’s conversion to Christianity and provided weight to the other evidence about the genuineness of the applicant’s conversion and motivation behind his conversion.

39.         The evidence about the applicant’s initial interest in Christianity, education, baptism and commitment to his new faith is consistent and provides a comprehensive picture of his conversion and commitment to Christianity. The Tribunal accepts the evidence that the applicant was baptised as a Christian in April 2023 and that he continues to practise his religion. His religious practice involves attendance at church, prayer, regular engagements with religious texts and resources, and ongoing education. The evidence is that his faith is part of his daily life and routine. Not only is he open about his religion, and moved by its teachings, he speaks openly about it and frequently uses religious phrases such as blessings and giving thanks.

40.         The applicant’s explanations of the [Social media] posts discussed at the hearing were spontaneous, and he often laughed about some of the more provocative posts and was notably more serious and sombre when discussing the photos of the churches. In general, the tenor of his evidence about the [Social media] posts was that he made these posts because they demonstrated the hypocrisy and shallowness of Islamic leaders, and about the values of Christianity and prayer.

41.         His discussion of religion at the hearing demonstrated that he was an earnest person, but in addition he had an enthusiastic and passionate style of speech when discussing religion – both his rejection and cynicism in relation to Islam and his embrace of Christianity. His level of enthusiasm appears part of his personality, and his expressive style appeared spontaneous. Based on his evidence and presentation at the hearing the Tribunal concluded that it would be very difficult for the applicant to contain both his criticism of Islam and his enthusiasm for Christianity in any discussion or engagement.  

42.         [Ms A]’s evidence was consistent and delivered in an open manner. She had known the applicant for many years. She said that for as long as she had known him the applicant had always been vocal in his criticism of Islam and that he had been a practising Christian since 2016-2017. The Tribunal accepts her evidence.

43.         The applicant has been seeking asylum in Australia since his arrival in 2011. Despite his attraction to and practice of Christianity he has only raised it as part of his claims more recently. The applicant engaged with [Reverend B] in May 2022. His commitment to Christianity since then has been considerable and not wavered.

44.         Based on the evidence of the applicant, [Ms A] and [Reverend B], the Tribunal accepts firstly, that the applicant has converted from Islam to Christianity, and secondly, that his conversion is genuine and was not done for the purpose of strengthening his claim to be a refugee. 

45.         The evidence before the Tribunal demonstrates that the applicant is very open about his faith and speaks about it with enthusiasm. He is active on social media including promoting Christianity, but also demonstrating contempt for Islam.

46.         The Tribunal accepts that the applicant fears persecution in Iran for reasons of his religion. In his case it is his conversion to Christianity. Country information confirms that Christian converts are at risk of sustained and widespread discrimination, arrest and detention, with a particular and higher risk at the point of entry. The applicant’s conversion, his expressive style and enthusiasm along with his social media posts increase the risks or persecution if he were to return to Iran.

47.         On the basis of the evidence before it and its assessment of the evidence, the Tribunal finds that if the applicant were to return to Iran now or in the reasonably foreseeable future there is a real chance that he would be subjected to sustained discrimination, arrest and detention by the Iranian authorities. The Tribunal is satisfied that treatment amounts to serious harm and it involves systematic and discriminatory conduct. The Tribunal is also satisfied that his religion is the essential and significant reason he fears persecution.  The Tribunal finds that while the risk of harm would be more acute at the point of entry, the real chance of persecution related to all areas of Iran. The applicant satisfies s 5J(1).

48.         As the harm feared by the applicant is from the Iranian authorities, the Tribunal finds that effective protection measures are not available.

49.         The Tribunal finds that any modification of his behaviour to avoid persecution would involve altering his religious beliefs by renouncing his conversion or concealing his true religious beliefs. He cannot be required to take steps to modify his behaviour in this way: s 5J(3).

50.         The exclusion in s 5J(6) does not apply as the applicant has satisfied the Tribunal that that he engaged in the conduct (converting to Christianity) other than for the purpose of strengthening his claims to be a refugee.

51.         For these reasons, the Tribunal concludes that the applicant satisfies 5J and has well-founded fear of persecution.

52.         On the basis of these conclusions, the Tribunal does not consider it necessary to assess other claims or evidence.

53. The Tribunal has concluded that the applicant is a national of Iran, he is outside Iran and owing to his well-founded fear of persecution is unable or unwilling to avail himself of the protection of Iran. The Tribunal is satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

DECISION

54. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Troy Barty
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.

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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.

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36     Protection visas – criteria provided for by this Act

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(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.

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