1916742 (Refugee)

[2023] AATA 4497

1916742 (Refugee) [2023] AATA 4497 (17 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Dr Sirous Ahmadi (MARN: 0854826)

CASE NUMBER:  1916742

COUNTRY OF REFERENCE:                   Iran

MEMBER:Meena Sripathy

DATE:17 October 2023

PLACE OF DECISION:  Sydney

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

Statement made on 17 October 2023 at 11:04am

CATCHWORDS
REFUGEE – protection visa – Iran – Christian convert – hostile ex-husband in Iran – recent history of anti-government political protest – social media posts about activities – photo of applicant without hijab – cumulative profile – higher risk of serious mistreatment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
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 made by a delegate of the Minister for Home Affairs on 13 June 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Iran applied for the visa on 22 February 2019. The delegate refused to grant the visa on the basis that the delegate did not accept the applicant was a genuine Christian convert as claimed, and although it was accepted that she was in an abusive marriage and separated form her husband in 2018, the delegate was not satisfied that she faced a well founded fear of persecution  at the hands of her former husband or for reasons of religion if returned to Iran. The delegate was also not satisfied she face a real risk of significant harm for the purposes of the complementary protection criteria.

3. The applicant appeared before the Tribunal on 18 August 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

4. The applicant was represented in relation to the review.

5. The issue in this case is whether there is a real chance, if the applicant returns to Iran, that she would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Iran, there is a real risk that she will suffer significant harm.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CRITERIA FOR A PROTECTION VISA

7. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

8. 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.

9. 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).

10. 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.

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. The most recent DFAT’s Country Report on Iran was issued on 24 July 2023 and the Tribunal has considered this document together with other material.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. Information contained in the visa application indicates the applicant is female, born in [Iran] in [year].  She states her relationship status as separated. She has one daughter and two sons (born in [years] respectively) and [sisters] residing in Iran, a sister and brother in [Country 1], and a sister and brother in Australia.

14. The applicant made the following claims for protection in her application and a Statutory Declaration dated 10 My 2019:

    ·    She left Iran for two reasons – because she is a Christian and will not able to practice her religion in Iran due to fear of persecution from authorities; and because she was threatened by her husband for not being a loyal wife and because he found out she attended bible studies in the house churches by following her.

    ·    Her marriage at age [age] was forced on her by her parents.  The relationship was abusive from the beginning but she stayed with her husband for almost [number] years for the sake of her children.

    ·    She was often threatened by her husband that she was not a true Muslim and loyal wife. He threatened to throw acid on her face if he came to know she had been outside home without his consent. He tried to control her movements outside home and at her workplace.

    ·    Her relationship with her husband led her to broaden her views and to explore other religions. She attended a house church with a work colleague as a way to help her with her problems, but had to stop when her husband found out about it.

    ·   She was unable to seek help from the authorities because refusing Islam is a sin and a crime punishable under Sharia law.

    ·    She asked her family members to help her to separate from her husband, and her brother and parents helped on different occasions but he continued to insult her at home, in the workplace and in front of her youngest child.

    ·   She could not move to another place in Iran because as a woman she can only go to particular places close to her work or where she has family in Tehran or Aligodarz.  She cannot relocate because the authorities will persecute her for her religion wherever she goes.

    ·    She fears the authorities in Iran because she will be considered an infidel and mohareb, a person who is against God.  As an apostate or infidel she will face prolonged imprisonment only if the judge is lenient. Most women become subjects to torture and rape during their time in detention or prison. There is no protection form any government or non government agencies available to the victims of Islamic rules.

15. Various supporting documents were submitted with the application. Including:

    ·    Letters of support from her son, daughter, brother in [Country 1], and brother in law;

    ·    Certificate of Baptism [in] March 2019 at [Church 1] [Suburb 1]

    ·    Letter from [Pastor A], [Church 1] dated [May] 2019 confirming he knows the applicant since February 2019 and listing her attendance at church and church related activities, and various documents issued by the church

    ·    Receipt for joining “Ex-Muslim Council of Australia” dated [May] 2019 signed by [Pastor A]

    ·    Letter dated 23 May 2109 from [named] Caseworker, [Organisation 1] confirming that the applicant is a client of [Organisation 1] and has been actively involved as a volunteer at their [Community] Centre, attending weekly.

16. The applicant was interviewed by an officer of the Department on 27 May 2019 and the Tribunal has listened to an audio recording of the interview.

17. The delegate refused the application on 13 June 2019.  In the decision, the delegate accepted the applicant may have attended some meetings of women in Karaj  but did not accept that she converted to Christianity in Iran; accepted that she had attended services and activities associated with the [Church 1] in Australia and was baptised [in] March 2019 but did not accept she was a genuine Christian or would seek to continue her Christian activities in Iran.  The delegate accepted she was in an abusive relationship with her husband and separated from him around the middle of 2018.  Having made these findings, the delegate was not satisfied that she faced a well founded fear of persecution for reasons of her actual or imputed religion or from her husband on return to Iran , and was also not satisfied that she faced a real risk of significant harm upon return.

    Evidence before the Tribunal

18. The applicant applied for review of the delegate’s decision to the Tribunal on 25 June 2019.

19. On 2 November 2022 she requested priority of her application for reasons of mental health concerns.  A psychological report from [a] Counsellor, [Organisation 2] dated 31 October 2022 was provided in support.  The report indicated the applicant had attended 21 sessions for counselling with health professionals at [Organisation 2] and referred to observations of her suffering symptoms of PTSD, anxiety and depression.   The application for priority processing was refused on 23 November 2022.

20. The matter was constituted to the current Tribunal on 28 June 2023 and on 5 July 2023 the applicant was invited to attend a hearing before the Tribunal on 18 August 2023.

21. On 7 August 2023 the Tribunal received the following documents in support of the application for review:

    ·    Submission from the representative dated 7 August 2023

    ·    Statement by applicant confirming that she has read and supports the submissions made on her behalf by her representative.

    ·    Copies of documents previously provided to the Department including Certificate of Baptism, support letter by [Pastor A] and other church documents

    ·    Updated letter from [Pastor A] dated [July] 2023

    ·    Translation of applicant’s Civil Status registration indicating details of divorce registered [May] 2019

    ·    Screenshots of photos of applicant’s participation in protests against Iranian government in October 2022 and posts relating to protest activities

    ·    Personal references and Statutory Declarations attesting to the applicant’s good character and value to the community from various individuals including [name deleted], her current manager at her place of employment; [name deleted], former employer of applicant;[name deleted], close family friend of the applicant; [Ms B], church friend at [Church 1]; [name deleted], applicant’s accountant

    ·    Statutory Declaration dated 31 July 2023 by [her] brother in law of the applicant

    ·    Updated statement by applicant’s daughter, now residing in [Country 1] as a Masters student, referring to her knowledge of her mother’s conversion to Christianity for the last 4.5 years and the danger this exposes her to if returned to Iran

    ·    Updated statement of applicant’s sister, residing in [Country 1], referring to her knowledge that she has become Christian since the last 4 years

    ·    Certificate of appreciation awarded to applicant at her workplace

    ·    Updated support letter from [named] Director, [Organisation 1]

    ·    Certificate and transcript relating to Certificate III [course] obtained by applicant in November 2022

22. The submission addressed the applicant’s previous claims, including her conversion to Christianity and fears of harm on this basis if returned to Iran and the delegate’s findings and reasons. The submission also referred to new claims relating to her political activities and active participation in recent anti- regime protests in Sydney which aggravate the risk of harm, persecution, apprehension and imprisonment if returned to Iran. Finally, the submission referred to evidence provided regarding the character and standing of the applicant in the community. 

    Tribunal hearing 18 August 2023

23. The applicant confirmed her address.  She is living alone and has been living alone at this and various other addresses since around 3 months after her arrival in Australia in December 2018.  She stayed with her sister for the first three months. She currently works at a [workplace], and previously had other [employment]. 

24. She has a sister and brother, and a niece (daughter of another sister who resides in Iran) in Australia, all of whom resided in Australia for many years prior to her arrival. In Iran she has [more] sisters, and her two sons. She has a brother and sister, and more recently, her daughter in [Country 1].  Her daughter, who is now separated, has been in [Country 1] for the last one and half years for study.  Her sons, aged [deleted] years, live in Tehran with their father.  She is in regular contact with her sons by telephone.  Their father is aware of their contact with her, but her younger son often speaks with her when he is not present.  She does not know if he has issues with them being in contact with her, but the fact that her sons’ don’t say much about him and/or speak to her when he is not present suggests that there may be some issues.

25. The applicant confirmed that she divorced her husband in May 2019.  She engaged a lawyer in Iran from here and she initiated the divorce process. He agreed to it on the condition that she forgo her dowry and donate her inheritance from her father to him. There is a document that sets out this agreement, but she does not have it with her in Australia.  If necessary she can obtain it from her lawyer in Iran. As far as she is aware, her ex husband has not remarried.  He is addicted (to opium) and does not work.  The applicant said her sons live with him because they have no where else to live.  Her eldest son supports the family.  She sends money to contribute to her younger son’s education and other needs.  She sends money to her daughter’s bank account, which her younger son has access to.

26. The applicant confirmed the address history she provided in the application form. She lived in two separate addresses in Tehran, with her husband and children between 2009-2013 and at two addresses in Karaj from 2013 to 2018. The last address she lived in is an apartment belonging to her brother who lives in [Country 1]. She separated from her ex husband around 5 months prior to coming to Australia, first staying with a sister in Tehran for 1-2 months, and then at her brother’s apartment for around 3 months. She worked [in] Tehran and Karaj for some 10-11 years prior to coming to Australia.  She travelled to [Country 2] twice, in 2017 and 2018, for 1-2 days only and has travelled to Australia in 2011 with her husband and son. Her husband gave permission for her to obtain a passport in 2017.  He travelled with her to [Country 2] the first time. The second trip was with her daughter and daughter’s mother in law, with her husband’s knowledge.  Her ex husband did not know or give permission for her travel to Australia in December 2018.

27. She came to Australia in December 2018 at the invitation of her sister here.  She had by this time left the family home and he was causing her problems and her sister offered for her to come here for a break from this situation.

28. The Tribunal discussed her claims for protection.  Regarding the history of domestic violence she said her ex husband was an addict, unemployed and very suspicious. He always accused her of having affairs and made accusations in front of her children which was humiliating and embarrassing. He said to her children, let her go to Australia and have a good time and when she returns he will throw acid on to her face. He told her son this when he was [age] years old and it frightened him.

29. The Tribunal noted in her statement she mentioned she was [age] years old when she married and it was forced on her by her parents. She confirmed this and said she was the youngest child and he was the second cousin of her father who was [age] years older than her.  Her father insisted on the marriage, telling her he is family and he trusts him. She was given no choice in the matter. Her other sisters were not married so young. There is a large age gap between her and her other sisters so she does not know many details about their situation.

30. After marriage things were not so bad in the beginning but gradually he started showing his true self. He had trouble securing employment after he sold his share in the family[business]. She sought support from her parents in the beginning once or twice but her father told her to return to her husband because of the shame it would cause in the small town they lived in. Then after she had children, she felt compelled to stay with him because she would lose her children.  The Tribunal asked if he physically harmed her and she said he did, but she did not go to the police or seek medical treatment but rather she put up with it. His words bothered her more than his actions.

31. The Tribunal noted she referred to leaving him several times and staying with her sisters.  She confirmed that on one or two occasions after her parents died she left him and stayed with her sisters. She returned to her husband both times because her children were still young and her daughter was not married.

32. She had employment throughout her marriage. First she worked as a tailor at home and later in [another industry]. Her husband did not prevent her from working, because he had no income himself. She confirmed she had her own bank account and he did not prevent her from having that either. She had to spend her money to support the family and her siblings also gave her money to assist them.

33. The Tribunal asked what led her to leave him the last time. She said it was after she started attending some Christian classes and also he sold the family apartment in Karaj without her knowledge. Following this he moved back into Karaj and was living on the same street she stayed in her brother’s apartment.

34. The applicant described the circumstances that led to her attending the Christian group.  She became friendly with a woman named [Ms C] from the [workplace] whose baby she cared for. The woman would give her lifts home sometimes.  Her husband was suspicious and came down to see who was giving her lifts.  She described a particular incident which triggered her to confide in [Ms C] about her home life situation and her jealous accusatory husband.  [Ms C] invited her to join their group to seek peace of mind.  It took some time before she was able to attend the group.  [Ms C] explained, many times to her, the dangers and risks involved in attending this group because they were preaching Christian beliefs to mainly Muslim people. She found a way to attend on the pretext of attending a shop to take measurements for her uniform. She attended the group, in a person’s house. There were some 10-11 people present. She did not know anyone.  The group was led by a man, but the rest were mainly women. The Tribunal asked why she attended this given the suspicious nature of her husband and the risks involved.  She said she was in a very bad state at this time. She had already attempted to end her life by overdosing on pills and her husband had taken the pills away from her. 

1. The Tribunal asked the applicant to describe the activities of this group. She said they said prayers and talked about Christ.  They preached about loving women like children are loved and she was deeply affected by this.

2. The Tribunal explored with the applicant her Islamic religious background. She said her husband’s  family was more religious than hers. They were more followers of the obligations.  She did her fasting and prayers because she was afraid of not doing it. Before this she had no particular interest in exploring any religion.  If it were not for the suggestion from [Ms C] she would not have pursued it.

3. When asked again to explain the reason she attended this group she said she knew and trusted her friend [Ms C] and she was in a vulnerable state at that time, not liking her life and wanting to end it.

4. She attended a few more times (5 or 6 in total), until one day her husband followed her.  He saw her go into a private house and accused her of having an affair.  This is a very serious offence in Iran and can be punished by stoning.  She told her husband she was attending a Christian group to counter his accusation. His response was to hit her.  From this time he threatened to tell the authorities about it.  She told [Ms C] who asked her to stop coming to the group because it was too dangerous for them. After this she ceased attending the group.

5. Following this incident the applicant left her husband and went to stay with her sister in Tehran at first, commuting to Karaj for work and then she came to live in her brother’s apartment in Karaj before coming to Australia. Her husband was aware of her location throughout this period. The Tribunal asked if he did anything to her. She said on one occasion he put his hands on her neck and pressed her against the wall, demanding to come into her apartment to see who she was living with. She called her elder son and he left.  Another time he came to her work and forced her into his car. He demanded she come back home. When she refused he threw her out of the car. He did not report her to the authorities. She never went to the police about his threats or actions against her.

6. After this her sister sent the invitation to come to Australia and she applied for the visa. She only saw [Ms C] at work after this and they did not discuss the group any more because she sensed it was dangerous. The applicant has no knowledge about [Ms C] or the group since then. She has not been in contact with her since coming to Australia.

7. Since coming to Australia, the applicant has been involved in Christian activities. She started to explore attending church as soon as she arrived in December 2018. The first few she went to were services in English and she could not understand.  Eventually she met an elderly woman at [a] Shopping Centre and befriended her. After a few teas, she opened up and the woman told her about her church that has a Persian interpreter. She started attending the [Church 1] from February 2018.

8. The Tribunal noted the letter from [Pastor A] mentioned he met her on 17 February and this application was lodged on 22 February and this timing may lead it to have concerns about the motivation for her involvement in the Church.  In response she said she was already interested in Christianity before she came to Australia.  Islam was never her religion of choice she was born into it and it was always a source of fear for her with all its talk of punishments. She started attending [Church 1] because there was an interpreter, there were other Persian people there and it was close to her sister’s place. She has been attending regularly since that time, to date.  She attends every Sunday and she also used to attend Bible Study classes on Tuesday and Thursdays. She no longer attends these since the coronavirus pandemic because they don’t always have an interpreter for these sessions now. She last attended church last Sunday. She described the service.  The Tribunal asked if she has any particular stories from the Bible she likes. She recounted one about the woman who had sinned, and Christ saying that whoever had never sinned should throw the first stone. Also a story about Good Samaritans she likes. Her sister and her husband sometimes come to her church, he goes more often than her, but neither of them are baptised.

9. The Tribunal asked if apart from attending church she does any other activity. She said she helps with the church lunch and food preparation after the services.  She is also involved with activities arranged by the [Organisation 1].  She attends with [Pastor A] to hand out flyers encouraging people to attend church. She does this because it is an important role of her practice of faith to share it and encourage others. She was rescued and so she wants to rescue others.

10. The Tribunal explained the effect of s5J(6) of the Migration Act which requires the Tribunal to disregard conduct solely engaged in to strengthen a refugee claim and invited her to explain how her involvement in the church has not been solely for this reason. She said she has observed miracles in her life since embracing Christianity, for example her son was 110 kg and now he is 80 kg. Her daughter was separated and was sad and depressed, she talked and talked to her and after that she learned [the Country 1 language] and is now studying. These are miracles in her life she attributes to her faith.

11. The Tribunal asked about her new claims of involvement in political protests. She referred to the incident involving Mahsa Amini who is the same age as her own daughter.  Since then many of those who attended demonstrations were killed.  Her son was attending demonstrations every day also. She was getting stressed and worried about him and all the other young people, including a young child who was killed. She participated in protests here in support. She has been to almost all of them in Sydney.  Initially there were not that many people, later many joined.  She is certain there were spies who could identity her in these crowds.

12. The Tribunal asked what she is afraid of if she returns.  She said she is sure she is known for her activities in recent months. She has also been sharing many posts on [social media] and her page is public. 

13. The Tribunal asked if she attended any protests in Iran prior to coming here. She said she did not.  Many years ago she attended election protests.  More recently she has not attended demonstrations but she engaged in activities, for example if told not to buy things she would not.

14. She said she is also afraid of her ex husband throwing acid on her face and informing on her because of her Christianity.  She does not want to stop being a Christian. She wants to continue practising her faith and also encouraging others to become Christian.

15. The Tribunal noted that in Iran she wore her hair covered and here she does not.  It asked whether she would cover her hair upon return. She said she would because it is required there.  She would do it because she is forced to.

16. The Tribunal discussed with the applicant country information in the most recent DFAT report indicates that authorities generally do not seek out Christian house churches but find them when tipped off.  She said that she is afraid her husband would tip her off to the authorities. The Tribunal put to her, given the passage of time since she separated from him, that he did not throw acid on her in the time she was in Iran and he has since granted her a divorce, it may find there is not a real chance he would harm her upon return.  She said he has threatened to harm her to her children many times.  He has many contacts in the security services and she believes he will inform on her to them. He only granted her a divorce because she gave up her dowry and gave him her inheritance.

17. The representative made the following closing submissions.  He relies on his written submissions. He pointed out that the early protests she attended were not widely attended and she would likely be identified. Later they became much bigger.  While her son has been attending demonstrations and has not been harmed, many others have been arrested and killed.  The applicant’s situation is different because she has a hostile ex husband, has expressed anti regime views and she is a Christian convert and all of these things place her at a higher risk for harm.  There are many tip offs to the authorities about Christians these days, as reported in local Persian news.  People are often framed for other things.  Even the Australian Foreign Minister has spoken of the increasing threat of spies in the community here.  It is a very real risk. 

18. On 11 September 2023 the Tribunal received the following further supporting documents:

    ·    Letter dated [September] 2023 from [a] Farsi preacher at [Church 1] [Suburb 1], confirming the applicant has been ‘faithfully and regularly” attending Sunday morning church service and Farsi service and “is a dedicated Christian”. She has joined the writer’s online Bible study and pray time on Wednesday night a few times and tried to invite some friends to join.

    ·    Letter dated [September] 2023 listing Bible doctrines believed as a member of the [Church 1], signed by the applicant and [Pastor A]

    ·    Support letter dated [September] 2023 by [name deleted], Christian and volunteer in Farsi language at [Church 1], confirming knowledge of applicant’s involvement with the church since March 2019. 

    Country information

    Christians

19. The latest DFAT Country Information Report on Iran[1] provides the following information about Christians:

    2.80 Protestant (including Evangelical) and Pentecostal churches, which some asylum seekers join while they are in Western countries like Australia, are not legal. Conversions that took place after 1979 or conversions that take place outside Iran are not recognised by the government. A person who claims to be Christian, however cannot prove that their family was Christian before 1979, would be considered Muslim by the government and thus subject to apostasy laws.

    ….

    2.83 Iranian Christians who are not members of recognised churches generally practise in underground ‘house churches’. House churches are usually Evangelical Protestant and are found throughout the country, but especially in more affluent and cosmopolitan areas. Numbers of house church adherents are not known because these churches are secret and illegal. The Joshua Project, an Evangelical ministry from the United States that publishes information for missionaries, estimates 0.52 per cent of the population is Evangelical Christian. In 2019, UN Special Rapporteur Rehman estimated that there were between 300,000 and 350,000 Muslim converts to Christianity. In-country sources told DFAT in 2019 that the number of underground Christians was growing, and Christians may travel to Turkey (with which Iran has visa-free arrangements) to be baptised then continue to practise their religion in secret. Reasons for conversion vary, but local sources told DFAT that it may be an earnest desire to explore their own spirituality, or it may be a subtle form of protest against the government. DFAT has been unable to source more recent figures on Christian conversions.

    2.84 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.

    2.85 Authorities interpret the growth in house churches as a threat to national security and periodically carry out raids against them. Congregants regularly change houses to avoid detection. Raids focus particularly on house churches that actively proselytise or seek out new members. Sources told DFAT authorities do not actively look for house churches. Rather, raids – where they occur – are usually the result of tip-offs by Muslim neighbours. Other sources say the government sends people posing as converts to infiltrate house churches.

    2.86 Prison or the death penalty are possible outcomes for Christians meeting in house churches, both leaders and everyday adherents. DFAT understands that while not a common punishment, prison or the death penalty for apostasy is possible. Years or even decades-long prison sentences are also possible. Changes were made to the Islamic Penal Code in February 2021 that mean that those guilty of ‘deviant psychological manipulation’ or ‘propaganda contrary to Islam’ could be found to be members of a ‘sect’, which can lead to imprisonment, fines, flogging or the death penalty. According to international or media reports, three Christians in the city of Karaj, near Tehran, were sentenced to total of nine years in prison under the new offences in August 2021.

    2.87 In-country sources told DFAT that returnees who have not had a profile previously (for example through political activism in country) are unlikely to come to attention of authorities if they keep a low profile, and that this is not affected by social media posts about their conversion that they may have made while they were in a Western country like Australia.

    2.88 DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed. Christians found to be proselytising face a high risk of arrest, prosecution and imprisonment. DFAT assesses Christian converts face a high risk of societal discrimination in the event their conversion becomes widely known, particularly if they are from more religiously-minded Muslim family backgrounds. This may involve ostracism from one’s family and discrimination in employment. DFAT further assesses that, while their congregations are monitored and they are subject to restrictions, Christians from recognised churches are permitted to practise their faith. DFAT assesses that, except for their exclusion from senior government, military, intelligence and judicial positions, recognised Christians who do not engage in proselytisation activities face a low risk of official discrimination. DFAT assesses 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. [2]

    [1] DFAT Country Information Report - Iran', Department of Foreign Affairs and Trade, 24 July 2023

    [2] Ibid, p20-21

20. The Tribunal has also considered information from other sources regarding the treatment of Christian converts in Iran including Landinfo - Norwegian Country of Origin Information Centre , UK Home Office, US Department of State and the Danish Immigration Service and the Danish Refugee Council, and others, as cited below. 

21. Conversion from Islam to Christianity is prohibited in Iran,[3] and converts are perceived as a threat to the legitimacy and stability of the regime.[4] Various sources of information indicate that Christian converts face risk of arrest, detention and prosecution.[5] 

    [3] 2021 Report on International Religious Freedom: Iran’, US Department of State, 2 June 2022, Sec.2

    [4] Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise', Landinfo - Norwegian Country of Origin Information Centre, 27 November 2017, p.21,

    [5] DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, pp.33-34; 'Country Policy and Information Note - Iran: Christians and Christian converts', UK Home Office, 27 February 2020, p.7; 'Christian Converts in Iran', Finnish Immigration Service, 21 August 2015, p.9.

22. Since 2012 the government has banned converts from attending services in registered churches.[6] Converts are perceived as a threat to the legitimacy and stability of the regime[7] and face the risk of arrest, detention and prosecution.[8]  The regime has publicly declared its intent to prevent the growth of house churches, which it characterises as ‘illegal networks’ and ‘Zionist propaganda institutions’.[9]

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

    [7] Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise', Landinfo - Norwegian Country of Origin Information Centre, 27 November 2017, p.21

    [8] Country Policy and Information Note - Iran: Christians and Christian converts', UK Home Office, 27 February 2020, p.7; 'Christian Converts in Iran', Finnish Immigration Service, 21 August 2015, p.9

    [9] 'Iran: Christian converts and house churches (2) - arrests and prosecutions', Landinfo - Norwegian Country of Origin Information Centre, 29 November 2017, p.21 'Religious Propaganda in Iran', United States Commission on International Religious Freedom (USCIRF), July 2022, p.8, ‘2022 Report on International Religious Freedom: Iran’, US Department of State, 15 May 2023, Sec.2, Government Practices; ‘Country Policy and Information Note - Iran: Christians and Christian converts’, UK Home Office, September 2022

23. Authorities use informers to infiltrate house churches; although house churches restrict numbers and change locations in order to prevent infiltration; [10] potential new members are typically monitored by the house church for months.[11]

    [10] ‘Iran: House churches and converts’, Danish Immigration Service and the Danish Refugee Council, February 2018, p. 5; ‘Over 450,000 Join Iranian House Church Movement, 'Great Number of Muslims Turning to Christ'’, Christian Post (United States), 3 March 2016, CX6A26A6E1858; ‘Update on the Situation for Christian Converts in Iran: Report from the Danish Immigration Service’s fact-finding mission to Istanbul and Ankara, Turkey and London, United Kingdom’, Danish Immigration Service, 23 June 2014, p. 21

    [11] ‘Update on the Situation for Christian Converts in Iran: Report from the Danish Immigration Service’s fact-finding mission to Istanbul and Ankara, Turkey and London, United Kingdom’, Danish Immigration Service, 23 June 2014, p. 24,

24. Regarding arrest and prospection of Christians, most of the Christians arrested in recent years have been converts affiliated with house churches and have been arrested during raids.[12]  Sources indicated most have been released after a short time in exchange for signing a declaration and promising to cease activity.[13] However, other sources state that Christians have been handed punishments in addition to custody, including a period of internal exile or being banned from leaving Iran for a period of time.[14]

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

    [13] 2023 Annual Report: Rights Violations Against Christians in Iran', Article 18, Middle East Concern, Open Doors, Christian Solidarity Worldwide, 19 February 2023, p.3,  'Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise', Landinfo - Norwegian Country of Origin Information Centre, 27 November 2017, p. 24; 'Iran: Christian converts and house churches (2) - arrests and prosecutions', Landinfo - Norwegian Country of Origin Information Centre, 29 November 2017, p. 22,

    [14] People convicted with religious offences, European Union Agency for Asylum (EUAA), 8 February 2023; 'Amnesty International Report 2022/23: The state of the world’s human rights', Amnesty International, 27 March 2023, p.199

25. Those prosecuted and convicted have usually been arrested or convicted previously, had contact with foreign organisations or published online about their faith. However, an increasing number of non-leaders have also faced national security charges in recent years. The law distinguishes between members and leaders of illegal organisations and has heftier prison sentences for those convicted of establishing or leading an organisation. Ordinary members risk arrest, but will generally be released if they cease proselytising. That said, members may still be at risk as the Iranian regime acts in highly unpredictable ways, which is part of their logic of oppression.[15]

    [15] 'Country Policy and Information Note - Iran: Christians and Christian converts', UK Home Office, 27 February 2020, p.8; 'Iran: Christian converts and house churches (2) - arrests and prosecutions', Landinfo - Norwegian Country of Origin Information Centre, 29 November 2017, p.20, ‘Iran: Full Country Dossier’, Open Doors, January 2022, p.30; 'Iran: Christian converts and house churches (2) - arrests and prosecutions', Landinfo - Norwegian Country of Origin Information Centre, 29 November 2017, pp. 10 – 11;  ‘Iran: House churches and converts’, Danish Immigration Service and the Danish Refugee Council, February 2018, p. 7;  'Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise', Landinfo - Norwegian Country of Origin Information Centre, 27 November 2017, p.25

1. There is evidence that arrests and prosecutions of Christians converts continued in 2022 and 2023, with one joint report indicating that 134 Christians were arrested in 2022 and 30 others were serving prison sentences. Comparatively, in 2021 there were 59 arrests of Christians.[16] According to the UN Special Rapporteur on Human Rights in Iran, the number of converts imprisoned at any time in recent years has varied from between a few dozen to around 100.[17]

   [16] 2023 Annual Report: Rights Violations Against Christians in Iran', Article 18, Middle East Concern, Open Doors, Christian Solidarity Worldwide, 19 February 2023, p.11; 'Rights Violations Against Christians in Iran - Annual Report 2021', Article 18, Open Doors, Middle East Concern, Christian Solidarity Worldwide, 25 January 2022, p.10

   [17] 'Iran: Christian converts and house churches (2) - arrests and prosecutions', Landinfo - Norwegian Country of Origin Information Centre, 29 November 2017, p.13

2. On prison and detention conditions for Christians, there are reports indicate that after being detained, converts are sometimes interrogated and released within days, sometimes charged (occasionally requiring a large bail amount to be released), or else held (sometimes without charge) for months.

   Political opinion and protests

3. The DFAT report refers to protections in the constitution of freedom of belief for all Iranians in  article 23, freedom for the media at article 24, freedom of association at Article 26 and freedom of assembly at Article 27.  However, it also notes that such freedoms are conditional on not being ‘detrimental to the principles of Islam’. Topics deemed sensitive by the government include women’s rights, LGBTI rights, criticism of the regime, relations with the United States and Israel.[18]

   [18] DFAT Country Information Report - Iran', Department of Foreign Affairs and Trade, 24 July 2023, p24

4. In relation to the response of authorities to the Mahsa Amini protests, the DFAT Report states:

   2.106 On 16 September 2022, a significant protest movement began following the death of 22-year-old Kurdish-Iranian woman, Mahsa Amini, while in the custody of Iran’s morality police. Amini was arrested in Tehran for breaching the strict Islamic dress code by allegedly not wearing the hijab appropriately. The protests, initially led by women and girls, took place across the country. Over the succeeding weeks, the protests garnered broad support, particularly among young people and students, and a range of celebrities and public figures. They have evolved into broader protests against the regime.

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

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

   2.109 While there are no official figures, as at 10 January 2023, reliable sources indicated around 20,000 people had been arrested since the protests began. Many have been released either without charge, or pending court hearings. DFAT is aware of harsh sentences being handed to many protesters, including long jail sentences. As at 19 December 2022, DFAT understood 400 protesters had been sentenced to jail, 160 of whom were sentenced to between five and 10 years in prison, 80 sentenced to two to five years, and 160 people to up to two years. Trials have occurred quickly without due process and in secret. DFAT has been told that many of those prosecuted have either had no legal representation or ineffective court-appointed lawyers. As at the time of publication, the government’s harsh response had significantly curtailed, but not stopped, protest activity. Social media activity reflects ongoing anger against the regime. These are the biggest and longest-running protests in the history of the Islamic Republic. They differ from previous protests in their overt call for social change and the overthrow of the regime.[19]

   [19] Ibid.

5. The Tribunal has also considered other sources that have reported on the Mahsa Amini protest movement, noting that women were key participants in the protests, as were students and young people; though it is also observed people of all generations classes and ethnicities were involved.[20] Authorities responded to the protests with lethal force, with non-government organisations estimating that between 488 and 529 people were killed during or as a result of the demonstrations, including 64 children,[21] an estimated 20,000 were arrested and four men were executed in connection with the protests.[22] Human rights organisations reported that protesters experienced torture and rape while they were detained[23].  There are reports that women were assaulted or killed by security forces during protests for removing their headscarves during protests.[24]

   [20] Woman, life, freedom; Comprehensive report of 20 days of protest across Iran’, Human Rights Activists News Agency, 12 October 2022,

   [21] At Least 55 People Executed in 26 Days; List of Protesters at Risk of Death Penalty', Iran Human Rights, 27 January 2023, 2023020213572; ‘Iran protests flare in several cities amid continuing unrest’, Guardian, 17 February 2023

   [22] Iran acknowledges it has detained 'tens of thousands' in recent protests’, Associated Press, 5 February 2023, 20230310103427; ‘Iran protesters released from prison wrestle with fear and trauma’, Washington Post, 6 February 2023, 20230310103559;  'Iran executes 2 more men detained amid nationwide protests', Associated Press (AP), 08 January 2023

   [23] Freedom in the World 2023 - Iran', Freedom House, 9 March 2023, 20230310090512; 'Iran: Quash death sentences of young protesters subjected to gruesome torture', Amnesty International, 27 January 2023

   [24] 'In Iran, Schoolgirls Leading Protests for Freedom', Human Rights Watch (HRW), 12 October 2022, 20221013090651; ‘Iran: Leaked official documents ordering deadly crackdown highlight need for international action’, Amnesty International, 30 September 2022, p.6,

6. Family members of Iranian nationals who participated in anti-government protests abroad (including in Australia) have reportedly been harassed and arrested in Iran in 2022 and 2023.[25]

   Women

   [25] '‘Silencing dissent by threatening family’: Iran cracks down on family of Australian protester', The Age - Australia, 16 January 2023, 20230117084032; 'How the Iranian regime is intimidating and surveilling its former citizens in Australia', Australian Broadcasting Corporation (ABC) (News), 05 November 2022, 20221129110328; 'Australia says it busted Iran surveillance op targeting activist', Agence France Presse (AFP) - France, 14 February 2023.

7. The DFAT report provides the following information:

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

   2.130 Sources told DFAT in 2019 that enforcement of Islamic dress codes fluctuates, with checks on dress code violations increasing during holy periods (such as Muharram and Ramadan) and the summer season (when many women tend to adhere to dress codes more loosely due to the heat). In 2019 and more recently, authorities closed a number of restaurants and cafes due to non-observance of the Islamic dress code since and police reportedly monitor women for wearing their hijabs inappropriately or not at all while travelling in vehicles. Where a female is detected with ‘bad hijab’ inside a vehicle, the owner of the vehicle receives an automated text message instructing them to report to a police station and sign a declaration undertaking not to wear or tolerate ‘bad hijab’ again. According to local sources, repeat offenders incur a fine and, concurrently, are requested to settle any outstanding traffic infringements. A failure to do so can result in the impounding of one’s car and potential suspension of licence until all outstanding fines are settled.

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

   2.144 Women in Iran have diverse experiences and an assessment of discrimination and violence depends on the individual circumstances of each woman. DFAT assesses most Iranian women face moderate societal discrimination and threat of gender-based violence, including ‘honour’ crimes and street violence. Women perceived by the authorities to be pushing Iran’s moral and religious boundaries face a high risk of official discrimination in the form of arrest, punishment and violence.[26]

   [26] DFAT Country Information Report - Iran', Department of Foreign Affairs and Trade, 24 July 2023, p 28-29

8. Other sources considered by the Tribunal provide information about laws restricting women’s rights to choose their clothing and punishment for breaches. When in public, women must cover their whole bodies with the exception of their face, hands and feet. Those who do not wear a proper hijab (including inside their own cars) can be punished with a fine, up to two months’ imprisonment, or 74 lashes. Posting pictures online without the hijab is considered a crime in Iran and women have been prosecuted for doing so.[27]

   FINDINGS AND REASONS

   [27] Country Reports on Human Rights Practices for 2021 - Iran, US Department of State, 12 April 2022, Sec.7D, p.60, 20220413110714; 'Freedom on the Net 2022 - Iran', Freedom House, 18 October 2022, 20221019080814; ‘Women’s removal of veil

   Nationality

9. On the basis of her Iranian passport, and absence of any information before the Tribunal to suggest any issues relating to her identity, the Tribunal accepts the applicant is a national of Iran and considers Iran is the country of nationality and the receiving country for the purpose of assessing her claims against the refugee and complementary protection criteria respectively.

   Findings on applicant’s claims for protection

10. When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims.  This usually involves an assessment of credibility of the applicant, and in making such assessments, the Tribunal is mindful of the difficulties faced by applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.  Where the Tribunal is unable to make an adverse  finding on a material claim with confidence it must proceed to assess the claim on the basis that it might possibly be true (See MIMA v Rajalingam (1993) FCR 220), although it is not required to accept uncritically any, or all, of the allegations made by an applicant.

11. Having regard to the above principles, the Tribunal finds the applicant to be generally a credible witness.  Her written and oral evidence presented to the Department and Tribunal was substantially consistent and coherent.  She was forthcoming and direct in her responses to the Tribunal’s questions and did not appear to exaggerate or embellish her claims. The Tribunal makes the following findings on the applicant’s material claims.

    Claims of domestic violence in Iran

12. The Tribunal accepts the applicant’s evidence that she experienced domestic abuse in her marriage over many years. Her claims are also corroborated by the support letters from her children, sister and brother in law submitted to the Department and Tribunal. The [Organisation 2] psychologist report dated 31 October 2022 made reference to the applicant reporting experience of past traumatic events and that her reported symptoms were clinically consistent with PTSD, anxiety and depression which also supports her claimed history of long term domestic abuse.

13. The Tribunal accepts the applicant was married at a young age under pressure of her family and was subjected to various forms of abuse including verbal, psychological and physical attacks, at the hands of her husband over many years. The Tribunal accepts her evidence that he was jealous and controlling of her behaviour during the marriage. It accepts she tried to leave him several times but returned for the sake of her children. Her claims are not inconsistent with country information regarding the circumstances of women in Iran and the assertion of control by men over women in marriage.[28]

    [28] DFAT Country Information Report Iran 24 July 2023 para 2.132

14. On her own evidence, she separated from him around 5 months prior to coming to Australia and lived in an apartment owned by her brother on the same street as her former husband.

    Claims of participation in house church in Iran

15. The Tribunal is prepared to give the applicant the benefit of doubt relating to her claim that she attended 5-6 gatherings of a house church at the introduction of her work colleague in Iran between May and August 2018. 

16. Initially it had some difficulty understanding how and why she would engage in such risky conduct given that conversion from Islam to Christianity and worship in house churches are illegal activities in Iran[29] and in light of her own evidence that she had no interest in religion prior to this and had a controlling, suspicious and violent husband whom she claimed she was fearful of. However the Tribunal has considered her explanation when these concerns were put to her at hearing, that she was in a vulnerable psychological and emotional state at that time and had recently attempted to end her life, and has taken into consideration her detailed and consistent description of the group and its activities.  The description of the gatherings is consistent with independent information about the nature and features of house churches,[30]  and her account was not exaggerated or embellished.  Considering all of the evidence, on balance, the Tribunal cannot confidently conclude that her claim of attended a house church with her work colleague while in an emotionally vulnerable state, entirely lacks credibility or cannot be reasonably believable, and on this basis it accepts this claim of attending a house church in Iran. 

    [29] 2021 Report on International Religious Freedom: Iran’, US Department of State, 2 June 2022, Sec.2, 20220603091924 ; DFAT Country Information Report Iran 24 July 2023 para 2.83, p20

    [30] DFAT Country Information Report Iran 23 July 2023 paragraph 2.84

17. The Tribunal finds that she ceased attending once her former husband found out.  She has not claimed, and there is no evidence to indicate that her attendance at this house church group came to the attention of any authorities during this period or prior to her leaving Iran. 

18. The applicant has not had any contact with her work colleague Seterah since she left Iran and has no knowledge of the fate of the house church group. 

19. Although it has accepted that she attended a house church for a limited time, the Tribunal finds the applicant did not convert to Christianity in Iran, although it is willing to accept that she may have been introduced to the Christian faith through her attendance of the house church group.

    Applicant’s divorce from her husband

20. The Tribunal accepts that the applicant obtained a divorce from her husband in May 2019. A translation of the reissue of her State Civil Status Registration document indicating her divorce obtained [in] May 2019 is before the Tribunal.   It accepts her evidence that she initiated the process while in Australia and he agreed to it on the basis that she gave up her dowry and inheritance from her father.  It accepts her evidence that she has no knowledge if he has remarried. Her sons continue to live with him and she is in regular contact with her sons.

    Claims of conversion to Christianity in Australia

21. The applicant claims that since arriving in Australia in December 2018 she has renounced her Islam religion and converted to Christianity. She provided evidence that she began to attend Sunday services and bible study at [Church 1] and was baptised [in] March 2019.

22. In addition to her oral and written claims, the following evidence relating to her claims of Christian faith and activities is before the Tribunal: a letter signed by [Pastor A] which states that he has known the applicant since 17 February 2019 when she visited his church and confirms she was baptised [in] March 2019, attends and is attentive in regular bible certificate classes, and has brought numerous persons to the Church and given out gospel tracks with the pastor in [a suburb]; updated support letter from [Pastor A] dated [July] 2023 in which he confirmed the applicant’s continuing attendance and involvement in the [Church 1] between 2020 and 2022; supporting statements from a fellow church goer at [Church 1], [Ms B] and her [brother in law]; letters from her daughter and sister residing overseas who state they are aware she has been a Christian for the past 4.5 years.

23. At hearing the Tribunal explored with the applicant her Church activity and aspects of her faith. The timing of her first visit to the [Church 1] on 17 February 2019 and lodgement of this application on 22 February 2019 was noted and the Tribunal raised with her at hearing that this timing may indicate she has engaged in this conduct solely for the purposes of making a protection claim. The applicant denied this suggestion and explained to the Tribunal her faith is based on the miracles she has observed. She made reference to developments in her childrens’ lives which she attributes to her Christian faith. The Tribunal had regard to her explanation together with the evidence now before it supporting her ongoing commitment and engagement with church activities since 2019 and continuing to date, and on this basis it is satisfied her involvement with the church in Australia has not been solely for the purpose of strengthening her refugee claim and therefore her Church related conduct and baptism in Australia is not required to be disregarded, pursuant to s5J(6).

24. The Tribunal accepts that the applicant has been attending the [Church 1] since 2019 and has been baptised. It accepts her evidence about her attendance at church service and bible classes and that she helps with preparations for church meals and has handed out flyers with [Pastor A]. The Tribunal is satisfied she was able to demonstrate some knowledge of Christianity that supported her claimed faith in her oral evidence, being mindful of the difficulty of assessing genuineness of religious faith.[31]

    [31] MZZJO v MIBP (2014) 239 FCR 436 at [47], SZVTC v MIBP [2018] FCA 824 at [31] where the Federal Court cautioned that holding a religious faith is a core, and highly personal, part of an individual’s identity, and that it is a very serious finding for a decision-maker to find that an individual does not hold such a faith.

(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.

…