1917151 (Refugee) v Minister for Home Affairs

[2024] ARTA 708

1917151 (REFUGEE) [2024] ARTA 708 (19 NOVEMBER 2024)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Home Affairs

Tribunal Number:  1917151 & 1916709

Tribunal:General Member R Mikhail

Date:19 November 2024

Place:Sydney

Decision:The Tribunal affirms the decision under review.

Statement made on 19 November 2024 at 2:01pm

CATCHWORDS

REFUGEE – Protection Visa – Iran – religion – parents converted to Christianity – political activities in Australia – evidence confusing and contradictory – credibility concerns – conversion to Christianity unconvincing – decision under review affirmed

LEGISLATION

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024

Migration Act 1958, ss 5, 36, 65, 424, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. The applicants are minor brothers born in Australia to Iranian citizen parents.

2. The first-named applicant was born on [date] in Sydney and the second-named applicant was born on [date] in Sydney. 

3. The applicants’ parents and their elder brother previously applied for protection on 17 September 2014. That application was refused by the Department of Home Affairs (the Department) on 18 September 2015.  The Administrative Appeals Tribunal (AAT) affirmed that decision on 12 May 2017.

4. On 28 September 2017 the first-named applicant applied for a permanent protection visa. On 13 June 2019 a delegate of the Minister for Home Affairs refused the grant of the visa under s 65 of the Migration Act 1958 (Cth) (the Act). On 28 June 2019 the first -named applicant lodged an application for review with the AAT.

5. On 22 March 2018 the second-named applied for a permanent protection visa. On 13 June 2019 a delegate of the Minister for Home Affairs refused the grant of the visa under s 65 of the Act. On 25 June 2019 the second-named applicant lodged an application for review with the AAT.

6. The applicants consented to a joint hearing and a joint decision in respect of their applications for review.

7. On 14 October 2024, the Administrative Review Tribunal (the Tribunal) replaced the AAT. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

8. The issue in this case is whether the applicants meet the refugee criterion and, if not, whether they are entitled to complementary protection. The relevant law and mandatory considerations are set out in the attachments.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   APPLICANTS’ CLAIMS FOR PROTECTION AND EVIDENCE

   Before the Department

10. The first-named applicant’s claims, as outlined in his application for protection prepared by his father, can be summarised as follows:

    ·His parents converted to Christianity whilst living in [Country 1].

    ·His father was denounced by his former wife to the Iranian authorities.

    ·He would lose essential support and protection from his parents if the family were forced to return to Iran. He would suffer at the hands of the Iranian authorities.

11. The second-named applicant’s claims, as outlined in his application for protection prepared by his father, can be summarised as follows:

    ·He fears harm for his child as they converted their religion and will provide more details later.

12. On 30 January 2019, an undated statutory declaration (2019 statutory declaration) from the father was submitted to the Department of Home Affairs (the Department) in support of both of applicants, which claimed the following:

    ·He understands their application will be assessed on their protection claims and not those of his which have already been submitted and assessed.

    ·The applicants have not been registered with the Iranian diplomatic authorities in Canberra because they know their children will not have their parents to provide for, and support them, if they are ever forced to return to Iran. This is because he and his wife would both be arrested in the event of facing forced repatriation.

    ·They intend to provide their children with a Christian upbringing but do not wish to have them baptised into the faith until they are old enough to make their own religious choices.

    ·The applicants will not have anyone to care for them as the father has no relationship with his mother nor any of his siblings. Likewise, his wife has been ostracised by her family because of their decision and determination to pursue their chosen Christian faith.

    ·Their children will not have a roof over their head as the house that belonged to his wife was left as a security bond to bail the father out of prison. The property has since been forfeited by the authorities and is now occupied by a member of Sepah. His wife would face punishment for having breached the conditions of having bailed him out.

    ·He does not want his children to live a life without their parents to care for them. They will not be able to survive on their own in Iran and would face poverty, homelessness, fear of being kidnapped and sold and be forced to live in an orphanage. His children will be subjected to cruel, degrading, and humiliating treatment because of the fact that their parents are Christian and are not able to care for them.

    ·He and his wife do not have Iranian passports and he is fearful of applying for a passport because of the illegal way he left Iran and because of his known Christian profile and activities.

    ·He has been sentenced to two years of imprisonment in absentia for having disrespected Islam and for making threats towards some family members of his former wife.

13. In support of the applicants’ claims, provided to the Department were:

    i.Their Australian birth certificates.

    ii.Email submission dated 15 February 2019 (2019 Submission).

    iii.Support Letter from Pastor [A] of the [Church 1] dated 14 December 2014.

    iv.Support Letter from Pastor [A] of the [Church 1] dated 9 February 2019.

    v.A copy of a court verdict in respect of the father issued by the Public Criminal Court of the City of Kermanshah dated 20 January 2015 and its accredited translation.

    vi.A character reference for the applicants’ family from a volunteer of the [Organisation 1] dated 15 January 2019.

14. On 1 February 2019 the father attended one interview with a delegate of the Minister for Home Affairs in relation to both applications for protection where he provided further evidence in relation to the claims for protection raised.

15. The delegate refused the grant of the visas on the basis that he was not satisfied that the father had provided persuasive testimony or evidence to suggest that the applicants’ parents are genuine converts to Christianity, or that they would be arrested for this reason, or any of the other claimed reasons. He was not satisfied that the applicants would be without care or support if they returned to Iran, and therefore vulnerable to harm.

16. Also included in the Departmental file for the second-named applicant was a copy of the father’s 2014 statement of claims in respect of his own application for protection and the Departmental decision in respect of that application dated 18 September 2015 (2015 Department decision). The claims raised by the father in his own 2014 statement of claims (2014 statement of claims) can be summarised as follows:

    ·He is a citizen of Iran. He was born on [date] in Kermanshah City.

    ·He lived in [Country 1] and [Country 2] for nearly 12 years, and he went back to Iran in January 2013. He converted from Islam to Christianity in 2004 in [Country 1].

    ·When he arrived at Imam Khomeini airport in Tehran, he was detained for two days and sent to Kermanshah city to appear in the family court. The court told him that his ex-wife applied for a divorce because of his conversion to Christianity and his political activities. She obtained the divorce paper without his appearance, and he had to pay her mehriyeh which was 1000 gold piece (around US$350,000). He had to pay her one gold piece every month.

    ·The authorities told him that, because of his religious conversion and political activities outside Iran, he would be detained in order to appear in the Islamic Revolution Court. He was tortured to confess that he had changed his religion, but he denied it. After two days he was asked in court about his conversion to Christianity and his political activities outside Iran, but he denied everything. The judge did not believe him and sent him for more questioning in the security department of Sepah and he was there for five days. They then sent him to jail to see if they can gather more information about him.

    ·He was released on IRR 2,000,000,000 bail after a month as he did not confess, and they could not find any evidence against him. He signed a pledge that he would not leave his city and he had to appear in the security department of Sepah and report to the authorities every week.

    ·He realised he had to leave Iran. His passport had been seized when he arrived at the airport and, when he applied to get it back, he realised that the authorities had barred him from leaving Iran and he could not get his passport back. After a few weeks, with the help of his brother, he managed to get a passport using his brother’s passport with his own photo. He tried to get a visa for any country to escape from Iran.

    ·In May 2013, he went to report to Sepah and they detained him and told him that they have new evidence that shows he converted to Christianity. After two days he went to the Revolutionary Court. At this court they showed him a copy of his baptism certificate which his ex-wife provided to them as he refused to pay her one gold piece in the last four months. Again, he denied everything and told them that the baptism certificate was fake. They sent him to jail again for five months. After five months, they increased the bail to IRR 3,500,000,000 and he was released. But again, he had to report to Sepah every week.

    ·He found a people smuggler and the smuggler told his brother that he can provide a [Country 5] and Australia visa for the price of IRR 500,000,000 for each person. He paid IRR 500,000,00 and got a visa with his brother’s passport. He came to Australia for one day and then went back to Iran using his brother’s passport in March 2014. He then paid another IRR 1,000,000,000 and got visas for his wife and son and they travelled together on [date] September 2014 and applied for protection visas afterwards.

    ·He is afraid of being executed by the authorities in Iran as they have a lot of evidence that he converted from Islam to Christianity. He tried to deny everything and because of that he was released on bail, but they are still investigating his case. The authorities in Iran will find out that his baptism certificate is not fake, and he truly converted to Christianity, and he will be executed. He also fears his ex-wife can provide the authorities with more documents proving that he had changed his religion. He paid his ex-wife one gold piece every month until he came to Australia, but he cannot afford to pay all her mehriyeh and he is sure that she will provide more documents to authorities to keep him in jail.

    ·He will be at a real risk of being detained, tortured, and even executed by authorities in Iran because the authorities in Iran know that he converted from Islam to Christianity, and he had to report his situation every week and he left the country illegally using his brother’s passport. He broke the conditions of his bail, and he is sure that he will be detained in the airport as soon as he returns to Iran.

    Review application

17. The applicants were represented in relation to this review by the same migration agent.

18. On 22 July 2024, the applicants provided a statutory declaration by the father dated 20 July 2024 to the AAT (July 2024 statement) which can be summarised as follows:

    ·He and his wife are Iranian, but the applicants have no official identity documents issued by the Iranian government.

    ·He is the only breadwinner in the family and his children depend on him to meet their needs. If they are forced to return to Iran, he will also have to follow them where his safety and liberty will be in danger.

    ·In addition to the claims he raised in his own application for protection, he has received a court order in 2017 where has been convicted of identity fraud crimes for having departed Iran on his brother’s passport and sentenced to 12 months imprisonment.

    ·He had to leave Iran to avoid persecution for his Christian activities in [Country 2] and [Country 1] between 2000 and 2012.

    ·His imprisonment will have a devastating consequence on the lives of his children and wife and they will face poverty and homelessness.

    ·He has not communicated with his mother, two brothers and two sisters in Iran for ten years or so.  The relationship broke down over his late father’s inheritance as his family took his share. His wife has also been ostracised by her family because she married him in spite of her family’s opposition to the marriage.

    ·All five of the family members are baptised Christians.

19. Also provided to the AAT was a copy of a court judgement in respect of the father by a Criminal Court in Tehran dated [date] 2017 and its accredited translation.

20. On 23 July 2024 the AAT requested from the applicants, supporting evidence of the family’s (parents and siblings) Christian activities overseas and in Australia, including evidence of their baptism and the baptism of their parents and siblings. This information was to be provided by 30 July 2024. In response the applicants provided baptism certificates for the applicants, their elder brother and mother, all dated 29 November 2020 and issued by [a] Church. They also provided a letter in [Country 1 lauguage] dated 29 April 2004 which confirms the father’s baptism on 1 April 2004 at a church in [Country 1] and its accredited translation.

21. The applicants also provided to the AAT a copy and accredited translation of their parents’ Iranian birth certificates and a copy and accredited translation of the parents’ Iranian marriage certificate. 

22. On 2 August 2024, 5 September 2024, and 1 October 2024 the father appeared before the AAT to give evidence on behalf of the applicants. The hearings were conducted with the assistance of an interpreter in the Farsi and English languages. During the hearings the father provided oral evidence in relation to the applicants’ background and the claims for protection he has raised on behalf of the applicants.

23. At the conclusion of the last hearing, I provided the applicants further time to provide written submissions which were due on 8 October 2024. On 8 October 2024 the representative requested an extension of time to provide submissions and an extension was granted until close of business on 11 October 2024.

24. On 11 October 2024 the representative provided further written submissions to the Tribunal. These submissions included country information about the treatment of Christians and political dissidents in Iran. The submission also noted that the father had advised his representative, post-hearing, that he had attended some street protests in Sydney in opposition to the Iranian regime.

25. I have also obtained the AAT’s decision in respect of the father’s review application in respect of his previous application for protection dated 12 May 2017 (2017 AAT decision).

    REFUGEE ASSESSMENT

    Nationality

26. For the purpose of the definition of ‘receiving country’ under s 5(1) of the Act, a finding of nationality must be determined solely by reference to the laws of the country.

27. Country information notes the Iranian citizenship law confers Iranian nationality to every child born to an Iranian father in Iran, or outside of the country, within the context of a valid and legitimate marriage.[1]

    [1] 'Report on Citizenship Law: Iran', European University Institute, Robert Schuman Centre for Advanced Studies, 1 September 2020, 20201123123826

28. In the first-named applicant’s application for protection, it noted his nationality as Iranian at birth and that both his parents were Iranian citizens. The second-named applicant’s application indicated he did not have any citizenship but noted his parents were Iranian citizens. Despite this discrepancy, all the claims raised on behalf of the applicants have been in respect of Iran. Further, in his decision, the delegate found the second-named applicant to be citizen of Iran and in his submissions to the AAT the father has not disputed that. Although the father has claimed before the AAT that they do not currently have Iranian identity documents, he has not claimed they are unable to obtain them nor that they will not be considered Iranian nationals because they do not have such documents.

29. As noted, the applicants have provided a copy of their parents’ Iranian birth certificates and Iranian marriage certificate. I have no concerns with the genuineness of these documents. On the basis of the documentary evidence provided, I am satisfied the applicants’ parents are Iranian citizens and were legitimately married in Iran.

30. As I accept the father is an Iranian citizen and the children were born to parents in a legitimate and valid marriage in Iran, I am satisfied the applicants are nationals of Iran and that Iran is the receiving country for the purpose of this assessment.

    Background

31. During the hearing the father said he has a degree [and] worked in a [company] from 1996 until 1998 in Ahwaz and then had a business with his brother in Kermanshah until 1999/2000 after which he moved to [Country 1]. He said he was previously married and had married his first wife in Kermanshah in approximately 1996. His Iranian birth certificate confirms that he married this woman on 7 November 1996. He then said he travelled to [Country 1] at the end of 1999/2000 by himself as he wanted to continue his studies there. His first wife then joined him in [Country 1] later. I accept these claims.

32. The father said he entered [Country 1] on a visa [which] was valid for two weeks but was subsequently granted a study visa which he remained on during his residence in [Country 1] and did not apply for any other visa. He said he resided in [Town 1]. The father also claimed during the hearing that he had a daughter during this marriage who was born in [year] in [Country 1]. His birth certificate confirms the birth of his daughter in [year]. I accept this. He said that due to marital issues, his first wife disappeared whilst they were in [Country 1]. He said he decided to return to Iran. He initially said he returned to Iran at the end of 2003. He said he returned to Kermanshah with his daughter and resided with his family there.

33. The 2017 AAT decision noted that the father provided to the Department a Laissez Passer in his name issued by the Republic of Iran on [date] 2004 for the purpose of returning to Iran accompanied by his daughter. This corroborates the father’s claims in respect of his return from [Country 1] to Iran with his daughter. I accept he returned to Iran with his daughter from [Country 1] although the date on the above document suggests it was after May 2004. I have not placed weight on this discrepancy as the father appeared to struggle to recall the dates of certain past events which I consider reasonable given they occurred many years ago.

1. During the hearing the father said his daughter lives in Iran with her maternal grandmother and he does not have any connection with her, and I am prepared to accept that.

2. At hearing, the father said he met his current wife through a friend in 2004 and they knew each other a short time before they married. He said he married his current wife on 21 May 2004. I noted to him that the date of this marriage on the applicants’ Australian birth certificates were different. The first-named applicant’s birth certificate notes that his parents were married on 12 January 2005. The second-named applicant’s birth certificate states they were married on 23 December 2003. The father said perhaps there was a mistake in the registry, and he will have to fix it. As noted, the father subsequently provided a copy of his Iranian marriage certificate to the Tribunal which indicates he married his current wife on 3 June 2004, and I accept he did. He said he moved to Tehran in 2004 and stayed with his current wife’s relatives in different homes because their situation was not stable, and he could not provide financially for accommodation.

3. At the hearing the father claimed that he travelled to [Country 2] with his current wife in 2004 as he did not have any accommodation in Iran as his family took control of his father’s assets after his father died and he did not have financial support. He also initially claimed he left Iran at this time because his ex-wife sent information to the Iranian Revolutionary Court, informing them he had converted to Christianity. He said he entered [Country 2] on a [visa] with his current wife and remained in [Country 2] for eight years. He said he entered [Country 2] on a false passport because he had a case in the Iranian court in respect of the information his ex-wife had provided to the court. This is consistent with information he provided to the Department in respect of his own protection visa application, according to the delegate’s decision in that matter. He then said he subsequently applied for a working visa and then applied for a protection visa on the basis of his Christian conversion as he wanted permanent residency, his working visa was not long term and he realised he could not return to Iran after his ex-wife sent the above information to the court in Iran. This is consistent with his claim before the AAT in respect of his own application for protection, that is, that he applied for protection in [Country 2]. It is also submitted his first son was born in [Country 2] on [date] which is noted in the parent’s Iranian birth certificates and which I accept. He then claimed his application for protection in [Country 2] was unsuccessful and he returned to Iran because his wife was depressed. He said they left [Country 2] in approximately mid-2012 and returned to Iran. He said he was able to obtain a genuine Iranian passport in [Country 2] in order to return to Iran. He then claimed he was arrested at the airport when he returned to Iran because of his ex-wife’s allegations. His Iranian passport was taken by the Iranian authorities.

4. The 2015 Department decision states that the father claimed he resided and worked in [Country 2] from April 2005 until [date] January 2013, the dates of which are somewhat different to what he said above. As previously noted, I have not given weight to these discrepancies. Further, it notes that a Departmental check indicated that the father and his wife registered as asylum seekers in [Country 2] on 30 April 2005 which is consistent with the father’s claim before this Tribunal. Further that, after several commutation petitions and a new refusal, the father was deported with escorts to Tehran on [date] January 2013 and his wife and son travelled with the assistance of the International Organization for Migration to Tehran on [date] February 2013.

5. During the first hearing, when I asked the father if he travelled to any other country after returning to Iran from [Country 2], he said he thought of going to [Country 3] but realised he could not do that as the Iranian authorities had taken his passport and any European country would match his fingerprints with the false passport he previously used in Europe. However, at the beginning of the second hearing the father said he mistakenly previously said in the first hearing that he did not travel to any other country due to fatigue and stress. He said he thought my question was whether he had entered [specified] countries, but [Country 3] is not a [specified] country. He then claimed he did travel to [Country 3] with his wife and son on a false passport under his brother’s name. He could not recall when he went to [Country 3] but said it was possibly four to five months before coming to Australia. He said he went to [Country 3] as [reasons deleted] and through its border he could travel to [Country 1]. He said he soon realised that going through the border was dangerous and the borders were closed so they returned to Iran after four to five months and stayed with his wife’s relatives in Tehran in hiding from the Iranian authorities.

6. The 2017 AAT decision noted that that Tribunal had before it the wife and son’s Applications for Transit visas for Australia as well as copies of their passports. In their Applications for Transit visas, they both indicate that they travelled to [Country 3] in 2013 for fourteen days. It noted both of their passports indicated that they arrived in [Country 3] on [date] August 2013 and were in [another country] on [date]29 December 2013. Other than the discrepancy in dates, this is mostly consistent with the father’s evidence in this matter, and I accept he travelled to [Country 3] in 2013 with his family and returned to Iran after four to five months.

7. I am, nonetheless, concerned that the father initially denied travelling to [Country 3] when I first asked him if he had travelled elsewhere. I am not convinced that this omission was due to fatigue or stress as he specifically referred to having considered travelling to [Country 3] and denied that he went. When I noted this concern to him, he said that the interpreter during the first hearing did not know much English and he did say it then. However, this is in contradiction to his explanation during the second hearing for why he did not mention it in the first hearing. He has also not provided any objective evidence to support his claim that his oral evidence in the first hearing was misinterpreted.

   Christian conversion

8. As noted, it is submitted the applicants will be subjected to cruel, degrading, and humiliating treatment because of the fact that their parents are Christian and are not able to care for them. It is now submitted that the applicants have been baptised as Christians since the delegate’s decision. During the third hearing the father also declared he was Christian, and it was his intention to proselytise to others.

9. For reasons I have outlined below, I am not satisfied the father, mother and their eldest son are genuine Christian converts and that the applicants have been taken to church in Australia and baptised for genuine reasons.

10. At the hearing the father claimed he was raised as a Muslim and his family were practising Muslims. He said as he grew older, he realised it was all nonsense and baseless. He said, when he went to [Country 1], he did an interpreting certificate and was introduced to Christianity through a neighbour and his landlord, who invited him to church. He said after he received his interpreting certificate in early 2004 the pastor of the church asked him to assist in baptisms. He said he got to know the Pastor as his house was near the Pastor’s Martin Luther Church and they met in the area. He then said he was part of a Persian cultural group and met the Pastor through this group. I noted to him that he earlier said he was introduced to Christianity through his neighbours and landlord, and he said it was a mutual situation where his neighbour and landlord would invite him to the church and sometimes the Persian group would invite his neighbour and landlord to their functions where he would meet the Pastor. This closely resembled the oral evidence the father provided to the Department in respect of his own application for protection, according to the delegate’s decision in that matter.

11. At the hearing the father claimed he got to know Christianity and its differences with Islam and that terrorism and wars start with Islam. He said he was attracted to Christianity due to the honesty of the people and that it was a religion of love and peace whilst Islam is a religion of war and hatred. He said he decided to be baptised because he wanted to be part of that family due to the feeling of peace and tranquillity and he said it helped him to feel better internally. He said he had to attend some services and classes before his baptism. He said it was 15 to 16 months between when he started going to a church in [Country 1] and when he was baptised. As noted, the father provided a copy of a letter written [Country 1 language]and its accredited translation which indicates it is from the Martin Luther Lutheran Parish in [Town 1] and dated 29 April 2004. It confirms the father’s baptism at this church on 1 April 2004. I accept he was baptised in this church on this date.

12. I noted to the father that there were discrepancies in his evidence. For example, during the first hearing he said he left [Country 1] at the end of 2003 but his baptism certificate from the church in [Country 1] is dated in 2004. I noted he then claimed that he started going to church in [Country 1] in 2004 and was baptised in April 2004 but then claimed he was baptised 15 to 16 months after attending that church. I noted he then said he connected to this church in 2003 and, only after I told him he had earlier said he left [Country 1] in 2003, did he say that he left [Country 1] at the end of 2004.  I also noted to him that this also does not correspond with date of his second marriage which occurred in June 2004 in Iran.

13. In response the father said all of these issues happened about 20 years ago and considering all the psychological and other issues and problems he experienced and that this would drive someone mad, it was not surprising he did not know the dates or confused them. As already noted, I have considered that these events happened many years and accept this may have impacted the father’s memory of the dates of these events and have not placed weight on this.

14. I also noted to the father that the letter from the church in [Country 1] merely states when he was baptised but does not provide any corroborative evidence in relation to when he started attending this church and how often. In response he said there was no request for further explanation and that was what they gave him. Given the limited information in this letter I find it of little assistance in assessing the genuineness of his engagement with this church.

15. During the hearing I asked the father what baptism means to him and he said it demonstrated belief and commitment in Christianity. I asked him what Christians believe about Jesus and he said that he can forgive sins and that Christianity is a religion of peace, love, and harmony in contrast to Islam which is a religion of war. I asked him if he had any other comment and he said Jesus teaches you how to deal with your fellow man and your family and community and if you have trouble in life, you can trust God will assist you. I asked what the purpose of Jesus’ life on earth, he said it was to guide and teach humanity and to forgive their sins. When asked about the significance of Easter, he said it was for Jesus to ascend to heaven and that he will return and bring his kingdom to earth. When I asked him about the difference between the Old and New Testament, he said there was some difference in the teachings and to be deep you have to learn the Bible to pass this level. I asked him if he knew anything else and he said no. I asked him if he had any favourite stories about Jesus from the Bible and he referred to the story of the last supper and the fact that one of the members betrayed Jesus. I asked him for the name of the person who betrayed Jesus and he could not remember. Later in the hearing he was able to recall his name. I asked him how Christianity had changed his life and he said it gives you calm and peace and a belief that Jesus will guide you towards peace and harmony. I asked for any other comment, and he said it was a religion of peace and harmony and betraying and cheating was the lowest level and that was it.

16. Whilst I have considered that religion and religious practice is personal to each individual, given the father’s claim to have been a Christian for 20 years, I remain concerned with the nature of his oral evidence above.

17. The father’s oral evidence above demonstrated a general knowledge of Christianity but for someone who claimed to have been a converted Christian for the last 20 years his reasons for converting and his oral evidence about his beliefs and knowledge of Christianity and how it changed his life were generic and superficial and did not reflect real depth. When I raised this concern with the father he said, once you are in Australia, you have to tackle a lot of issues to survive including finding a job when you do not have permission to work, renting a place, dealing with landlords and applying for the permission to stay in Australia. He had no other comment. I am not satisfied his response overcomes my concerns as he has merely reflected on the challenges of his life in Australia although he has claimed to be a Christian for 10 years prior to coming to Australia. I am also not convinced those challenges are sufficient explanation for my concern.

18. I noted to the father that he had claimed that he liked the story of the last supper in the Bible, but he could not initially remember the name of the man who betrayed Jesus who is a fairly important figure in that story[2] and I noted to him that this does not reflect someone who is claiming to have been a Christian for 20 years. I also noted to him that he could not tell me much about the difference between Old and New Testament in the Bible. In response he said he believes he mentioned the name of the man who betrayed Jesus and said he betrayed Jesus for 30 coins and that he kissed Jesus which shows you cannot trust someone who does this. I accept that the father was able to later recall the name of the man who betrayed Jesus, but I remain concerned that he claimed this was one of his favourite stories from the Bible but could not initially remember one of the main characters in this story.

    [2] ‘The Last Supper’, New International Version of the Bible, available at

19. Pursuant to the previous s 424AA of the Act, I put to the father that in the 2017 AAT decision it stated that he gave evidence that he went to [Country 1] on a student visa and then applied for asylum on the basis that he had converted to Christianity. That decision also noted he provided the Department with a letter dated 18 April 2004 from the Lutheran Parish of Martin Luther at [Town 1] in [Country 1] addressed to the Bishop of the Lutheran Church in [Country 4] which stated that he was seeking assistance on behalf of the father and his now ex-wife and daughter to settle in [Country 4], as his application for asylum in [Country 1] had been denied and he was facing deportation. I noted to the father that this information is relevant because he did not disclose this to me when I asked him about what visas he applied for in [Country 1], and it may add to my concerns about the credibility of his claim to have genuinely converted to Christianity whilst in [Country 1] and it may lead me to find he was baptised in [Country 1] for the purpose of his application for protection there and not for genuine reasons. He replied that he did not apply for protection in [Country 1] on the basis of his Christian conversion. He said he provided the above document when he had a problem with his first wife, and he got the above letter from this church as they have a connection with a church in [Country 4] to assist him in travelling there. He said a Departmental officer did not accept his story and that he arrived here on a false passport but after he provided this officer with the evidence of his identity, she told him the decision had been made and he had to apply to the Tribunal for a review of that decision. He said he went to the AAT but was refused again. The father’s denial of having applied for protection in [Country 1] is countered by his previous evidence to the AAT in respect of his own application for protection and the above documentary evidence he provided which confirms he did apply for asylum in [Country 1]. The father’s response adds to my concern about his credibility and the motivation for his baptism in [Country 1].

20. The father claimed at hearing that, after returning from [Country 1], he practised Christianity at home but not in public as it was too dangerous. This is consistent with previous evidence he provided to the AAT in respect of his own application for protection. He further said, whilst in [Country 2], he was practising his Christian faith and was engaged with an evangelical church there. This is also consistent with evidence he provided to the AAT in respect of his own application for protection. When I asked him for the name of the church he attended in [Country 2], he said they did not use specific names and are focused on the Bible. He said they did not pay too much attention to names as what was important was humanity and the Bible. He said he attended church in [Country 2] most weekends and said the Christian denomination was a Martin Luther church. I noted to the father that I had concerns he could not remember the names of any churches he attended in [Country 2] despite living there for eight years. He said it was ‘Evangelical’, but they follow the Martin Luther Church.

21. When I asked the father if he had any supporting evidence of his church attendance in [Country 2], he said he did not, as it would have been too dangerous to carry it when he returned to Iran. When I asked if he could approach someone he knew in [Country 2] for such evidence, he said he could try but people may have moved and retired but then said he will try to contact someone he has remained in contact with online. He subsequently did not provide any supporting evidence to the Tribunal in relation to his church involvement in [Country 2]. When I noted my concern to the father in this regard, he said it was 17 to 18 years ago and most of those people that he had been in touch with, had retired and the person he was trying to get in touch with, had passed away. I acknowledge he lived in [Country 2] a number of years ago and may have lost contact with people there but given he lived there for a substantial period of time and his vague evidence about the church he attended there, his lack of any supporting evidence adds to my concern, particularly as he was able to provide some evidence from the church he claimed to have attended even earlier in [Country 1].

22. When I asked the father if his current wife and son converted to Christianity prior to coming to Australia, he said that they believed in it, but they were not baptised before coming to Australia as there was no opportunity. When I asked him when they started to believe in Christianity, he said they had been learning and had been involved, but he had not been forcing it on them. He said he could not tell when they started to believe in it but, at some point prior to coming to Australia, they realised it was different to Islam. I noted to the father that I may find it hard to believe he did not know when his wife and eldest son began believing in Christianity. In response he said, given the situation he was in, and living with all these immigration issues and finding a job and surviving here financially, he cannot even recall his wife’s phone number, let alone dates as such. I have considered that the father has had challenging years trying to emigrate to other countries unsuccessfully and trying to settle in Australia and his memory may have been impacted by this pressure, however, given the significance of his claim that his family have converted from Islam to Christianity and his fear for the applicants in Iran in respect of this issue, I think it reasonable to expect that he could provide more detail in regard to when his wife and son began to believe in Christianity.

1. At the hearing the father claimed that, after settling in Australia he found a church in [suburb] (Sydney) called [Church 1]. This is consistent with evidence be provided to the Department and AAT in respect of his own application for protection. At hearing he could not recall when he first attended this church but said he had attended this church because his English was poor and most of the church members were Persian and one of the church Ministers could speak Persian. He said he attended this church with his wife and son most weekends. When I asked him what type of Christian church it was, he said it was the same as the church he attended in [Country 1] and [Country 2], that is, ‘Martin Luther’.

2. The letter from Pastor [A] of [Church 1], dated on 14 December 2014, stated that he had known the parents since 30 November 2014, when they visited their church. It also noted the father had attended their Sunday afternoon basic Bible certificate course during the last three Sundays and their Tuesday Bible college class during the last two Tuesdays and Thursday Bible study class on the last two Thursdays. It also noted the wife attended their Bible study on Sunday afternoon. It further stated that the father had informed the Pastor that he had requested baptism in the Lutheran church in 2004 which was in the form of ‘sprinkling’ which the Pastor informed him is not Biblical and that the father then told him he was happy to be baptised by immersion.

3. The father provided an updated letter from Pastor [A] to the Department in respect of his sons’ applications for protection, dated 9 February 2019. It stated that he had known the parents since 30 November 2014, and he had been informed that their claim for protection was rejected. It also stated he was aware of the birth of the applicants and that if the family were forced to return to Iran there was a strong chance the government of Iran would take these children off their parents for converting to Christianity and would give them to some Muslims parents to raise them as strict Muslims. He also noted it is still his belief that the parents are true Christians especially because they listen to Bible teachings on a website and because they still attend their church.

4. During the hearing the father could not recall how long he attended this church due to issues he was having in his life at the time. I noted to him that he provided the Department with a letter from this church dated in 2019 indicating he was still attending that church at that time. He said due to the stress he was under at the time he could not remember. When I noted to the father that I had concerns he could not remember, he said he could not remember the exact times because of the problems he had experienced in Australia. Although it is reasonable that the father could not recall exact dates he attended this church I remain concerned that he could not recall at all when he attended this church despite providing documentary evidence that reflected this period.

5. I noted to the father that I had concerns with aspects of the 2014 letter from Pastor [A], including that the father attended a basic Bible course when he has claimed to have become a Christian ten years prior. He said that that was their custom or order and everyone who joins their church starts from zero. I am prepared to accept this as plausible.

6. I also noted to the father that I may give little weight to the Pastor’s assessment in his 2014 letter of the parents’ interest and devotion to the Christian faith, given he wrote this letter after only knowing them for two weeks. He said he believed the Pastor was qualified to know how sincere they were and their knowledge. However, this seems at odds with the Pastor’s insistence that they attend a basic Bible course even though the father claimed to have been a Christian for ten years. The father’s response does not overcome my concern.

7. I noted to the father that the Pastor’s 2019 letter does not state how often and regularly the parents attend this church or why the Pastor would be convinced that they are true Christians for having watched a website of Bible teachings. In response the father said that they were forced to move to different suburbs and sometimes they had a car to take them to church, so they had difficulty attending but, in his opinion, this is the assessment the Pastor had done, and he is qualified. In his response the father acknowledges his family had difficulty attending this church during this period. Although he states the Pastor is qualified to make an assessment of the genuineness of their Christian faith, I do not find the basis for his assessment convincing, particularly when the father has acknowledged they had difficulty attending this church.  

8. Although the above evidence from Pastor [A] does support the father’s claim that he and his family attended this church for the first time in late 2014 and again in 2019, given my noted concerns with the remainder of these letters, overall, I have given these letters little weight as corroborative evidence of the genuineness of this family’s Christian conversion.

9. The character reference provided on behalf of the applicants’ family to the Department indicates that the author had known the family since 2015 through his voluntary work with [Organisation 1] and makes general comment about the family and that he was aware of their past history in Iran, [Country 1], and [Country 2] and how they will be self-sufficient in Australia and fit in our community. It makes no specific reference to their claims for protection. When I raised this concern with the father, he said that the author just gave their opinion he cannot force their opinion. Given the content of this letter, I give it no weight in my assessment of this claim.

10. At hearing the father said his family started attended a church in [Suburb 1] as it was close to their new house. He said they started to attend this church before the pandemic but then the church closed. He said they then attended this church after the pandemic restrictions eased. He said he could not recall the specific dates he attended this church due to his stress. He claimed they still attend this church most weekends when he does not have to work. I asked him why his wife and eldest son were baptised for the first time in November 2020, he said because he wanted them to be free in their choice, when they were ready, and that was the time. When I asked how long after they started to attend this church, were they baptised, he said he could not remember due to stress and did not think it was important. He said there was process they had to be involved in prior to baptism such as Bible study and other sessions. He said the denomination of the [Suburb 1] church was Evangelical then said ‘Martin Luther’. When I asked the father why the applicants were baptised in 2020, he said so that, as a family, they can be united in the same path and mind. I asked if he believed it was important for children to be baptised so young and he said education can take them in the right way. When I asked him if he was involved in any other church activities, he said he was, when he had time, and this included driving church members and cleaning, but he was very stressed with other problems. He said the applicants play in the church playground and go to children’s classes at this church.

11. I noted to the father that I had requested further evidence of his Christian practice in Australia, and he only provided baptism certificates from a church in [Suburb 1], and he had not provided any other supporting evidence in relation to how often he had been attending the [Suburb 1] church such as letters from the church or witnesses from this church community. In response he said even this church knows that, due to his circumstances, he had to work during weekends, so as a result he cannot go to church. He also said his family have to move to different suburbs due to financial issues. Again, the father appeared to acknowledge that he did not attend this church regularly.  Even if he could not attend regularly due to his work commitments, he has not provided any other supporting evidence in relation to how often and whether his family members still attend this church, including the applicants.

12. I noted to the father that he had claimed [Church 1] and the [Suburb 1] church are the same church denomination as the church in [Country 1], but [Church 1] is a Baptist church and the [Suburb 1] Church is an Anglican church which are two different types of Christian denominations[3] and there is no indication from the letter from the church in [Country 1] that it is either of these. In response he said when he arrived in Australia and tried to find a church and he was referred to [Church 1] as many members are Iranian but, after he moved, he went to the church in [Suburb 1] which followed the Martin Luther church which is Anglican. He then said Pastor [A] wrote books about Islam and the Pastors in these churches are different and have different opinions and different assessments. When he said they are the same church he meant that both of them are against Islam. I am not convinced that was what he meant as he did not mention that previously. I am not satisfied he is aware of the differences in denomination of these churches he attended which is at odds with his claim to have been a Christian for the last 20 years and his experience in attending several Christian churches of different denominations.

    [3] ‘What Is The Difference Between Anglican And Baptist’, Christian.net, 22 February 2024 available at

13. I am also concerned with the timing of the applicants’ baptism given the father had them baptised in 2020 after their PV application was refused. In response to this concern, he said the applicants were previously too young to be baptised and they postponed their baptism because of all the issues they were going through, and it had nothing to do with the rejection of their applications for protection.

14. However, I noted to the father that his decision to baptise the applicants when they were [age] and [age] years old is at odds with his previous claim in his 2019 statement that he did not wish to have them baptised into the faith until they are old enough to make their own religious choices. In response, he said he believes they cannot decide for children because they should be 18 to be able to distinguish and decide for themselves but it was a suggestion from their Pastor for them to be baptised then. I find it difficult to believe that, if the father held the belief they should be old enough to make this decision for themselves, which appears important to him, that he would then go against this belief just as a result of the suggestion from a Pastor. Further, no evidence has been provided from this church that it required the children to be baptised so young as part of their belief and practice. 

15. I noted to the father that, given my concerns with his evidence, I may find he engaged with [Church 1] for the sole purpose of enhancing his own application for protection and the application for protections of the current applicants. In response he said this was not true because religion is a personal belief and most importantly all those orders and summonses and documents, he submitted from the Iranian courts, indicate his life will be in danger if he returns to Iran and, considering the Iranian government, no wise person would take the chance to use false documents to exit Iran. I agree that one’s religious belief is personal, and I have taken that into consideration, but I am not satisfied this is reasonable explanation for the totality of my concerns with respect to the evidence presented in relation to his engagement with this church and the other concerns I have noted about his conversion to Christianity in [Country 1] and his Christian practice in [Country 2]. Further, for reasons I have outlined in this decision below, I also not accept the credibility of his claim to be of adverse interest to the Iranian authorities.

16. Having considered the evidence before me I am not satisfied the father, or his family members are genuine Christians. I am satisfied he was baptised in [Country 1] for the purpose of his application for protection there and not for genuine reasons. I am also satisfied the father and his family started attending [Church 1] for the sole purpose of their previous application for protection lodged in the same year in 2014 and not due to a genuine interest in Christianity. I am also satisfied that the father chose to baptise the applicants only after the applicants’ applications for protection were refused by the Department in June 2019 and for the sole purpose of their applications for review. I am not satisfied there is a real chance the applicants and their family will practise Christianity, attend church, or identify as a Christians if they were to return to Iran.

17. In a 2023 report on Iran by the Australian Department of Foreign Affairs and Trade (DFAT 2023 report), DFAT noted that it understood that actions by failed asylum seekers are not routinely investigated by the Iranian authorities. Further in its 2020 report on Iran, DFAT also noted a source which noted it was not aware of returnees being prosecuted for converting to Christianity whilst abroad and that international observers noted the Iranian authorities have little interest in prosecuting failed asylum seekers converting to Christianity. I noted this information to the father and further noted to him that, given this, I may find the applicants will not face a real chance of harm in Iran on basis of his and their Christian activities overseas and I may not be satisfied the Iranian authorities are aware or will become aware of these activities. In response he said the Iranian parliament has said apostates from Islam are degenerates and are punished for converting.

18. As noted, on 11 October 2024 the applicants’ representative provided extracts from the DFAT 2023 report on Iran with respect to the treatment of Christians in Iran. This information noted that Christian conversions that take place outside Iran are not recognised by the Iranian government and would be subject to apostasy laws. It also noted 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. DFAT assessed that Muslim converts to Christianity risk arrest and detention if their conversion is revealed. It stated Christians found to be proselytising face a high risk of arrest, prosecution, and imprisonment. DFAT assessed Christian converts face a high risk of societal discrimination in the event their conversion becomes widely known. DFAT assessed 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.[4] The submissions also cited other country information sources about the treatment of Christian converts in Iran.

    [4] 'DFAT Country Information Report - Iran', Department of Foreign Affairs and Trade (DFAT), 24 July 2023, 20230724110043 (DFAT 2023 report)

19. I have considered the above country information but for reasons I have outlined below, I do not accept the credibility of the father’s claim that his ex-wife informed the Iranian authorities about his Christian conversion, and he was arrested in Iran for these reasons. I am not satisfied that the Iranian authorities or community, or the parents’ families in Iran are aware of the family’s conversion or their other Christian activities overseas. I am not satisfied there is a real chance the above groups or persons will become aware of this in the reasonably foreseeable future. Further I have not accepted that the applicants and their family are genuine Christian converts, and I am not satisfied there is a real chance they will identify and practise or proselytise Christianity if they were to return to Iran.

20. I am not satisfied the applicants face a real chance of harm in Iran from the Iranian authorities, the community, or their family as a result of their overseas Christian activities and baptism, and that of their parents and brother, nor that they or their family will be accused or viewed as apostates.

    Father’s arrest on the basis of Christian conversion

21. During the hearing the father claimed that, when he returned to Iran from [Country 2] he was arrested at the airport in Tehran and was separated from his family at customs and taken to the Kermanshah family court. He claimed this was because his ex-wife had provided information to the court that he had converted to Christianity as she was able to seek a divorce on the basis of his conversion from Islam as their marriage is no longer considered halal. He said that, at the family court, they told him they had proof he had converted to Christianity and, according to their rules, his wife can divorce him. He later said the court also ordered him to pay the marriage portion (mehriyeh) to his ex-wife, but he could not remember the details or whether he paid anything as he was dealing with other issues at the time. He said he was detained and taken to the Revolutionary Court.

22. The father further claimed that, after attending the Revolutionary Court, he was detained for several days and had to attend the court a few times and was threatened and beaten to confess. He claims that, after that, he was sent to prison in Kermanshah in order to pressure him to confess and held for six months from approximately mid-2012. He said he was released after six months after providing the title deed to his house in Tehran which he said he purchased before going to [Country 1]. He said he lived in this house but rented it out before going to [Country 1] and then lived in it for a short time after he returned from [Country 1] and then rented it out. I note that this is at odds with his earlier evidence that, after he married his current wife, he stayed with her relatives in different homes because their situation was not stable, and he could not provide financially for accommodation. He said that, after his release from detention he had to report weekly to the authorities. He said his case was left open to observe his activities. He said he went to [Country 3] so he did not report to the authorities in Iran and consequently the Iranian authorities confiscated his property. He said he remained in hiding after he returned from [Country 3]. Although the father could not recall some details, these claims generally reflect the information he provided in his own application for protection.

23. However, I noted to the father that aspects of his oral evidence were confusing and contradictory in relation to these claims. For example, he first said he found out his ex-wife had provided evidence to the Iranian court after he returned from [Country 2] but then said he went to [Country 2] because his wife had sent this evidence to people in Iran and travelled on a false passport to [Country 2] because he already had a case in the court and was on a blacklist. Further he then said he applied for protection in [Country 2] because his ex-wife had provided the paperwork to the Revolutionary Court but then said he was not that concerned about returning to Iran from [Country 2] as he did not think it was that serious as he did not know she had done that and only came to know when he was arrested at the airport in Iran on return. In response, he said when he returned to Iran from [Country 1], he did not stay for a long time in Iran and only heard she was thinking of doing this and, when he returned from [Country 2], he was arrested. I do not find his response resolves the issues in his evidence.

1. During the hearing the father said it was laughable what his ex-wife did to him as his ex-wife had also converted to Christianity in [Country 1] after he left [Country 1] for the purpose of migrating there and referred to a [social media] link[5] in which he claims his wife was interviewed on [television] in relation to her conversion and application for asylum in [Country 1]. I note the [social media] English subtitles on the video does reflect a woman with the same name of the father’s ex-wife, being interviewed on [television] in 2005 about her attempt to stay in [Country 1] and her Christian conversion and being supported her partner.

   [5] ‘[deleted] 

2. The father said at hearing he did not know why his ex-wife did this, but she had found a new partner and wanted a different life. When I asked him why she had to go to such lengths to get a divorce from him, he said because she could not otherwise marry someone else. I noted to him she would have known the consequences for the father by the nature of her accusation. He said some people are engaged in evil acts and they do not care what happens in between as they are only concerned with the end result.

3. I noted to the father that I may find it hard to believe his ex-wife sent such allegations to the Iranian authorities of his purported Christian conversion when she herself was willing to be interviewed on [Country 1] television in 2005, which was published on [social media], about her own Christian conversion. He said this is true and even if you are not in Iran, you can go ahead and submit such information to the Iranian court and at the same time show off a different face to claim to stay in [Country 1]. He said there are a lot of people who claim to be different people although they have documents in Iran with different names and this has nothing to do with the Iranian authorities.  Although that is possible, I note his ex-wife used her real name when she interviewed by the [Country 1] media, and I consider her appearance on [social media] about her own Christian conversion would have undermined her own allegations against the father before the Iranian authorities.

4. During the hearing the father confirmed that Iranian birth certificates record one’s divorce but said his divorce was not recorded on his birth certificate as he was not present for the divorce when it was granted by the court. I asked at him at what point would a divorce be recorded in someone’s birth certificate and who would do that. In response he said there are notary offices, and they go back to the same notary offices where they registered their marriage to complete their divorce and they can obtain a letter from the registry for marriages and with that letter they can apply to have their previous marriage removed from their birth certificate. He said they can remove the name or record the divorce or request new a birth certificate but confirmed he did not obtain a new birth certificate. I asked if he could get it noted on his birth certificate and he said he could, but he had a problem. I asked if someone applied for the divorce, and it was granted, can the other partner not have it noted in their birth certificate and he said it depends on the case. I asked him if he tried, and he said no and when I asked why he said he did not know and, because of what his ex-wife did, it created another problem for him in the Revolutionary Court. I noted to the father that I may not find his explanation for why his divorce was not recorded on his Iranian birth certificate to be convincing, particularly when country information before me confirms that divorces are recorded on one’s birth certificate in Iran[6] and he had his birth certificate updated with his second marriage and birth of his son. In response he said his ex-wife sent all the documents from the church in [Country 1] to her mother and her mother gave it to her lawyer which was then submitted to the court as evidence that he had changed his religion and, as a result, the court can issue a divorce, but they did not write it in his birth certificate, and he was arrested. However, I note he had been subsequently released on bail so there would have been opportunity for his birth certificate to have been updated.

   [6] DFAT 2023 report

5. In the father’s 2019 statutory declaration it states that the father had been sentenced to two years of imprisonment in absentia for having disrespected Islam and a fabricated charge of making threats towards some family members of his former wife. Provided to the Department was a purported copy of the verdict against the father by a criminal court on Kermanshah dated 20 January 2015. It noted two plaintiffs and the father as the accused. It noted he was accused of insulting and threatening to murder the two plaintiffs. It found him guilty and sentenced him to a fine of one million rials for slander and insult and two years’ imprisonment for threatening to murder. The 2019 submission states that the court order was fabricated against the father by his ex-wife’s father through his influence within the high ranks of the government in order to lay fabricated charges and secure a criminal conviction against him. It further stated that the main indicator in the court order that confirms this claim is the name of the defence lawyer who the father has never heard of or known.

6. When I asked the father at hearing what this court order was about, he referred to the 2017 court judgement in respect of his illegal departure. When I noted that was not the court judgment I was referring to, he said he could not remember the contents of it but said it had shown that he had disrespected Islam and his ex-wife’s father had influence with Sepah. He said he obtained the court document from a connection in Iran who emailed it to him but could not recall when he received it. When I asked why his ex-wife would initiate these proceedings many years later, he said her family did it, not his ex-wife, and they did it to destroy him. I noted that his ex-wife already purportedly obtained the divorce, and he said her family wanted to get the dowry and see what he was doing in [Country 1] and get revenge. I noted the allegation did not mention the dowry. He responded that if people wanted to destroy you, they will do anything to put you down. I asked him who were the plaintiffs noted in the document and he said her uncles who are members of the Revolutionary Guards. I noted to him that the allegation in the document says nothing about insulting Islam. He said that they have taken an order that he is trying to act against the family and there is an order for one year of imprisonment and a fine for contempt of court. I noted to him that it states the charges relate to insult and threatening to murder the plaintiffs. He said they manufactured that.

7. In addition to the above concerns, the father has not provided the original of this court order. Further, the mention of a defence lawyer in the order purportedly unknown to the father, is not evidence that these are fabricated charges by the wife’s family. There is no other objective evidence to support his claim that the named plaintiffs are related to his former wife. When I noted these concerns to the father, he said it is clear they intended to put him in jail and her father’s family belong to Pasdaran (Islamic Revolutionary Guards). He said, in Kurdish areas, if something like this happens, the whole family get together and make trouble, and they have filed a separate file to court with those accusations. He further said it is a conspiracy and a separate case by his ex-wife to create a trap. He also said it was made anonymously under different names and is a conspiracy. If that were the case, it is unclear how the father could be certain it was fabricated by his ex-wife’s family. His response generally does not resolve the above concerns.

8. I also find it difficult to believe his ex-wife’s family has continued to seek the father out and destroy his life for reasons he has claimed, particularly given she had purportedly been granted the divorce she wanted several years prior. In response to this concern, he said in Kurdish culture there are murders such as honour killings due to family feuds which can last a long time. I note the father previously did not claim his ex-wife was Kurdish. Even if she were, this is not a case of honour killing.

9. I also noted to the father a 2020 DFAT report on Iran noted that paper-based documents including court documents are relatively easier to obtain through fraudulent means[7] and given my concerns above, I may have concerns about the genuineness of this document. He said I could cross check it with the Iranian consulate and the embassy in Tehran to verify it. I note that it would not be appropriate for the Tribunal to verify such documents with the Iranian authorities in circumstances where the father claims to fear the Iranian authorities and it is for applicants generally to establish their claims. On the evidence before me I am not satisfied of the genuineness of the 2015 court order and have not given it any weight.

   [7] 'DFAT Country Information Report - Iran', DFAT, 14 April 2020, 20200414083132 (DFAT 2020 report)

10. I also put to the father that he had claimed he was in hiding on return from [Country 3] but that he stayed at his in- laws place which seems to be an obvious place to find him if the authorities were looking for him. In response he said he meant his wife’s extended family. This does not overcome my concern as would still appear to be an obvious place to find the father if the Iranian authorities were searching for him for not having reported to them as required.

11. The father also travelled to Australia by himself in 2014 but did not seek asylum at that time. He then voluntarily returned to Iran which suggests he did not have any fear in respect of returning in relation to his claims. When I noted this concern to the father, he said the most important thing is his family. He said he had to cross check that his visa was genuine and then afterwards, he was meant to pay for his wife and son to travel. He said he left the title deed of his property at the court so he could not leave his family in a dangerous situation and had to run away.   However, he has claimed that the title deed was confiscated when he travelled to [Country 3], and they did not find him. He then remained in Iran for a period of time after returning from [Country 3] and then again for several months after he returned from Australia the first time in 2014 which does not suggest someone in a hurry to leave for the reasons he has claimed.

12. Having considered the evidence before me, I do not accept that the father’s ex-wife reported his Christian conversion, or any other of the father’s activities, to the Iranian authorities for the purpose of obtaining a divorce and that he was subsequently detained and then bailed after providing the title deed to his property and required to report regularly. I do not accept the father’s property has been confiscated by the Iranian authorities. I do not accept that his ex-wife’s family subsequently manufactured charges against him for which he was convicted in 2015. I do not accept the father has an adverse profile with the Iranian authorities for these reasons. I am not satisfied the father will face a real chance of arrest in respect of these claims or due to any ongoing dispute with his ex-wife if he were to return to Iran. I am not satisfied there is a real chance the applicants will not have the support of their father for this reason if they return to Iran. I am not satisfied they have a well-founded fear of persecution in Iran in relation to this claim.

    Lack of extended family support

13. In the father’s 2019 statutory declaration he claimed that the applicants will not have anyone to care for them as the father has no relationship with his mother nor any of his siblings. Likewise, his wife has been ostracised by her family because of their decision and determination to pursue their chosen Christian faith. In his recent statutory declaration to the Tribunal the father said he has not communicated with his mother, two brothers and two sisters for ten years because they took his share of his father’s inheritance. His wife has also been ostracised by her family because she married him in spite of her family’s opposition.

14. Given I do not accept the father, his wife, their son, and the applicants have genuinely converted to Christianity, I also have concerns with the credibility of the father’s claim that that he does not have a relationship with his family and that he does not have family support in Iran due to his Christian conversion.

15. In the father’s July 2024 statement to this Tribunal, he said he had not spoken to his own family over a dispute over inheritance, however, at the hearing he said he had not spoken to them because of what happened in his first marriage. This latter claim seems also at odds with his claim at hearing that he lived with his family after returning from [Country 1]. In response to these concerns, he said he was not even married again in 2004 and he had to go to his father’s house, and this was 20 years ago. Even if it was a long time ago and he felt he had to return to his family home after returning from [Country 1], the fact that he did, and that his family allowed him to live with them does not suggest a significant disagreement between them such that he no longer talks to them. I also noted to the father that, at the hearing, he said he did not speak to any of his family since 2004 yet his brother assisted him to depart Iran in 2014 by giving him his passport. In response he said his father had passed away by then, but when he got into trouble, his family had to assist him to run away. He then said his mother took all his father’s inheritance. The father’s acknowledgement that his brother assisted him to depart despite their supposed conflict confirms my concern in relation to this claim and his brother’s very generous assistance to the father in this regard is not reflective of someone the father is in conflict with.

16. There were further discrepancies in the father’s evidence in regard to his claim that he and wife do not speak to their families. In his July 2024 statement the father provided to the Tribunal, he said that his wife had been ostracised by her family because she married him in spite of their opposition but, at the first hearing, he said his wife’s family did not have any objection to his marriage and were present at their wedding. When I noted this discrepancy to the father, he said her family had not investigated whether he converted to Christianity and his birth certificate says he is Muslim. He said he has difficulty putting evidence in front of the Tribunal. I am not satisfied his response resolves this discrepancy and he has been given ample opportunity to provide evidence to the Tribunal.

17. I noted to the father that he later said that his wife’s family had not spoken to him after they found out about his Christian conversion and he left country, and he did not say goodbye. He responded that given he was leaving Iran with false documents, and was chased by the authorities, under no circumstances could he goodbye to anyone. He further said he cannot prove that he does not have a connection with either family, and his family are in Kermanshah. As noted, I have not accepted the father’s Christian conversion to be genuine, so I do not accept that is the reason for their lack of communication with his wife’s family. I also have doubts about his claim in regard to not saying goodbye to his wife’s family given he travelled to Australia by himself initially, whilst his wife and child purportedly stayed with the wife’s family, and then several months later he travelled again with his wife and son, so these arrangements took some time. Even if he travelled illegally, he has given no reason why he was unable to tell his wife’s family at the time given they were residing with them.

18. On the evidence before me I do not accept the father and mother do not have contact or an ongoing relationship with their families in Iran. Given this, I do not accept the applicants will be without such family support if they were to return to Iran. I am not satisfied they have a well-founded fear of persecution in relation to this claim.

    Recent separation from wife

19. During the second hearing the father claimed his current wife had since left him two weeks prior. He said she had left him previously. He said he did not know where she was, and she has blocked him from calling her and his children have remained with him. He said, because she had left, she will not protect the applicants.

20. I noted to the father that, even if his wife had left him for the moment, he has also said she did that before and she came back and that is not necessarily evidence that she will not take care of the applicants on return to Iran. In response he said she does not have the means to take care of them and questioned how the applicants can be protected if he returns to Iran. I note he did not dispute that they may reconcile in the future. I have also not accepted the applicants will be without extended family support if they were to return to Iran such that his wife would have to care for the applicants on her own.

21. I am prepared to accept that the father’s wife had left him recently though I note there is no credible evidence to indicate their separate is permanent given as he claims she has done this before. Further, I am not satisfied on the evidence that there is a real chance his wife will not take care of the applicants if they were to return to Iran because of their recent separation and marital issues. I am not satisfied the applicants have a well-founded fear of persecution in relation to this claim.

    Father’s illegal travel to Australia

100.   During the hearing the father said that he applied to travel to [Country 5] with the assistance of a smuggler who assisted him obtain a tourist visa to [Country 5] and obtain a false passport in his brother’s name. He said his brother gave him his brother’s birth certificate, military service completion card and a new national identity card with the father’s photo. He said the smugglers had connections with the police to issue him the false passport. He said he paid the smuggler US$100,000 to assist him and his wife and son to travel to [Country 5]. He said the visa was genuine but as there is no direct flight from Iran to [Country 5], he needed a [transit] visa to Australia. He said when he arrived in Australia he exited. He said he travelled to Australia by himself in 2014 as he did not trust the people smuggler and wanted to ensure the arrangement would work. When he arrived in Australia, he then returned to Iran the same day and remained residing with his wife’s family in Tehran. He then paid the smuggler the remaining funds in order to create visas for his wife and son. He then travelled to Australia again four to six months later in 2014 with his wife and son. His wife and son entered Australia on their genuine Iranian passports. This is generally consistent the father provided in his 2014 statement of claims, where he indicated that he came to Australia for one day in March 2014 and then entered Australia with his wife and son on [date] September 2014.

101.   The 2015 Department decision noted that the family passports were obtained from the overseas post in relation to their transit visa applications. It confirmed that someone with the same name as the father’s brother was granted a Transit (TX-771) visa on 10 March 2014 and that this person and the wife and son were granted Transit (TX-771) visas for forward travel to [Country 5] on [date] September 2014.

102.   I accept that the father has the assistance of a smuggler and his brother to alter his brother’s passport to travel to Australia in March 2014 and that after realising that this method was successful, he returned to Iran after one day and several months later travelled to Australia with his wife and son in September 2014 using the same false passport. He has claimed his wife and son travelled on their genuine passports to Australia which I accept. He has claimed they no longer have their passports as they have been lost which I am prepared to accept.

103.   In the 2019 submissions it was submitted that the father departed Iran using his brother’s passport because he was wanted as a religious offender in Iran and would not have been able to leave Iran using his own identity. As I have not accepted the father’s claim that he came to the adverse attention of the Iranian authorities because of information his ex-wife gave them about his Christian conversion and activities in [Country 1], I do not accept he travelled to Australia using his brother’s passport for this reason.

104.   In his recent July 2024 written statement to the Tribunal, the father claims that he was convicted by a Tehran court on [date] 2017 for identity fraud for having used his brother’s passport to exit Iran and had been sentenced to 12 months imprisonment.

105.   In support of the above claim the father provided a court judgement from a court in Tehran dated [date] 2017 which noted the father’s brother as the defendant who was charged with using another person’s birth certificate, obtaining a national identity card and being in possession of a birth certificate. In a section in the document titled ‘Court Decision’ it then refers to charges against the father for using another person’s birth certificate and that he was sentenced to one year imprisonment in absentia.

106.   At hearing, when discussing the 2017 court document, the father could not recall when he received this document but then said he received it a few years ago from his brother. He said it relates to both him and his brother and his name is written on the judgement. He said he did not know when his brother was arrested but he said he was sentenced to one year imprisonment and was fined a certain amount. He said his brother only remained in prison for a few months and then released. He said in the same judgement the father was also sentenced to imprisonment for a year. He also said that the Iranian authorities found out about the father’s illegal departure because the Revolutionary Guard, and the uncles of his ex-wife, had an interest in finding out where he was and somehow, they found out.

107.   I have concerns with the credibility of this claim.

108.   The father departed Iran in 2014 and yet this court order was not issued until 2017. In response to this concern the father said the Iranian authorities only found out when his brother went to renew his passport. However, the father confirmed that his brother’s passport, which he used to exit Iran, was issued in 2014 and he could not recall when his brother tried to renew it. I noted to him that country information indicated Iranian passports are valid for five years, but this court order was issued only three years later.[8] In response, he said that was correct but, as he was in Australia, his brother had applied to get a new passport and was going to claim his passport had been lost. I find the suggestion that his brother attempted to renew his passport in circumstances where it was likely that the Iranian authorities were going to find out about the father’s previous use of his passport, difficult to believe. Further his claim that the Iranian authorities found out about his illegal departure is at odds with this previous evidence that the Iranian authorities found out because his ex-wife’s family were trying to locate him.

[8] 'Iran: Passports, ID and civil status documents', Landinfo, 5 January 2021, 20210128115803

109.   I asked the father why there was a complainant noted in the court order and he said that is the judicial process and they assign someone to the case as that is prosecutor. I then noted to the father that the court order only notes his brother as the defendant and not the father. He said his name should be there. I said his name is noted in the decision but not as a defendant. He said he was surprised, and he does not know how the judiciary works and he had been sentenced to one year imprisonment. I told him the court decision refers to charges against the father but not the brother, so it is confusing. He said they are not professional, and they do not know how to write these things, but it does say he was sentenced to one year imprisonment.

110.   A 2020 DFAT report on Iran noted that paper-based documents including court documents are relatively easier to obtain through fraudulent means.[9] I noted this information to the father and that, given this, and my other concerns, I may have concerns with the genuineness of this document. He suggested I send it to the Embassy in Iran. I note the Embassy would likely make enquiries with the Iranian authorities. As noted, I do not consider it appropriate to make enquiries with the Iranian authorities whom the father and applicants have claimed they fear. He also suggested that I can also check the court website. I then asked him if that was how he obtained it and he said he did not and said he can ask someone to go to the court to get a different copy with a stamp on it. I then noted to the father that the court decision was dated in 2017 and yet the date on the bottom of the document is a date in 2010. He said that does not belong to the paperwork and is different to the original and he will try to find it in his email. He then said the Iranian authorities never put an English date on a document and it was very strange. I find the inclusion of this date in 2010 adds to my concern about the genuineness of this document and the father was unable to offer a convincing explanation for it. I provided the father with further time to provide any further evidence in support of this claim, which he did not.

[9] DFAT 2020 report

111.   Having considered the country information before me and the totality of my concerns with respect to this document, I am not satisfied of the genuineness of this document and have not given it weight.

112.   On the evidence before me I do not accept the father’s brother, or the father, have been convicted in regard to the father’s use of his brother’s passport to depart Iran in 2014. I am not satisfied the father will face a real chance of arrest on return to Iran in respect of the above purported conviction. I am not satisfied the applicants have a well-founded fear of persecution in Iran in relation to this claim.

Treatment on return

113.   In DFAT’s 2023 report on Iran it noted that if one were to return to Iran on a temporary travel document they will be questioned by the authorities at the airport about the circumstances of their departure and why they are traveling on such a document. It further states that questioning usually takes between 30 minutes and one hour, however it may take longer if the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history on the part of the returnee. It also noted arrest and mistreatment are not common during this process. It also noted that the authorities pay little attention to failed asylum seekers on their return to Iran.[10] I note the father has not claimed they will not be able to obtain temporary travel documents to return to Iran.

[10] DFAT 2023 report

114.   I outlined the above information to the father and noted that, given the young age of the applicants and that they will be returning with three adults I may not be satisfied there is real chance they will be subject to this questioning. I also noted that given the father left Iran on his brother’s passport, I may find there is a real chance he may be subject to lengthier questioning, but I may find that will not be the case for his wife and eldest son who left Iran legally. I noted that I may also not find that having their family members questioned in these circumstances amounts to serious or significant harm to the applicants. I also noted country information which indicates that although Illegal exit is punishable, in actual practice, people are only given a fine for an illegal exit or an inability to get a passport in the future.[11] Given this I noted to the father that I may find he will not face a real chance of being subject to imprisonment as a punishment. Further, his wife and son left Iran legally in 2014 so I may find this process will not apply to them so I may find the two applicants will be able to remain in their care. In response he said that his wife had left home and cannot protect his children and he had to be with them and cannot leave them alone and questioned how they can survive. I have not accepted that the wife will not care for the applicants in Iran if they were to return nor that they will not have the support of their extended family in Iran nor that the father’s property in Iran had been confiscated.

[11] DFAT 2023 report; 'Country Policy and Information Note - Iran: Illegal exit', UK Home Office, 9 May 2022, 20220511105024

115.   On the evidence before me I am not satisfied there is a real chance the applicants will be subject to questioning on return to Iran because they have returned on temporary travel documents or, even taking into account their young age, that the questioning of their family members amounts to serious harm to the applicants. I am not satisfied there is a real chance the father will be imprisoned as a result of his illegal exit.  I am not satisfied there is a real chance the applicants will be without the care of their family members on return for these reasons. I am not satisfied the applicants will face a real chance of serious harm as failed asylum seekers returning on temporary travel documents and/or because their father departed Iran illegally.

Fear of harm in regard to adapting to life in Iran

116.   During the hearing, when I asked the father, why his wife could not take care of the applicants in Iran, he said they do not have a place to live and there is no security and they do not speak Persian and have no education. When I asked about his comment in respect of their education, he said they need to be physically, financially, and psychologically supported and be able to speak and go to school. He said they will be placed in a community that will not accept them because the applicants cannot connect to the Iranian community because they lived in Australia and have adapted here and were born here and had friends and connections in the community.

117.   I noted to the father that I may find any struggles the applicants may face in adapting to life in Iran that he noted, may not amount to serious or significant harm. In response he said he will be arrested, and they do not have any accommodation and he acknowledged they can speak only a few words of Persian but not enough to attend school. He then referred to photos of woman who put their child in garbage bag and threw them out and said that was the situation in Iran.

118.   I note I have not accepted that the father’s property in Iran has been confiscated by the Iranian authorities nor that he and his wife have a poor relationship with their families in Iran.  I have also not accepted he, or the other family members, will be arrested in Iran for the reasons he has claimed in respect of their purported Christian conversion and his claimed adverse profile with the Iranian authorities due to his Christian conversion or conviction for illegal departure. I am not satisfied there is a real chance the applicants will be without accommodation or family support in Iran.

119.   I accept the applicants are very young and may not speak fluent Persian and it may take some time to adapt to their new life in Iran as they were born in Australia and have forged connections here, but they will be returning with their parents and older sibling and have a property to reside in and extended family in Iran. In the circumstances I am not satisfied that any struggles they may face in adapting to their life in Iran, individually or cumulatively, amounts to serious harm. I am not satisfied they will face a threat to their life or liberty, significant physical harassment, significant physical ill-treatment, significant economic hardship that threatens their capacity to subsist, that they will be denied access to basic services that threatens their capacity to subsist, or they will be denied a capacity to earn a livelihood of any kind that threatens their capacity to subsist or any other harm that could be considered to reach the level of serious harm.

Father’s political activities in Australia

120.   As noted, in submission received by the Tribunal on 11 October 2024, it noted that the father had advised his representative, post-hearing, that he had attended some street protests in Sydney in opposition to the Iranian regime because of the killing of Mahsa Amini as well as the mistreatment of other peaceful political dissidents. Country information provided by the representative in this submission noted that 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 and the government response to protest action had been harsh and hundreds of protests had been arrested and sentenced to jail. The submission also noted that family members of Iranian nationals who participated in anti-government protests abroad (including in Australia) had reportedly been harassed and arrested in Iran in 2022 and 2023. However, it is unclear from the submission what the source of this information as, although it refers to the latest DFAT report after this sentence, this was not noted in the latest DFAT report on Iran. Some of the country information in the submission were just references which appears to have been cited from another Tribunal decision.

121.   I have considered whether to invite the father to another hearing to provide a further opportunity to give evidence in relation to these claims but, due to the factors and circumstances I have outlined below, I have decided not to.

122.   No detail has been provided in respect of when and where the father attended these protests. Further, no supporting evidence has been provided in relation to his assertion that he attended such protests. No explanation has been provided for why this claim has been raised at such a late stage. The father attended three hearings in respect of this application and only chose to advise his representative of this information after the third hearing and after concerns were raised with him in respect of the claims already raised. I find the father had a meaningful opportunity to raise these claims before and during the three lengthy hearings he participated in. It is also not evident how this assertion in respect of the father’s purported political activities in Sydney relates to the applicants’ claim for protection. Given the above concerns and that I have already raised other concerns about the credibility of many of the claims raised by the father in relation to this application, I do not accept that the father attended political protests in Sydney against the Iranian regime. I am not satisfied the applicants have a well-founded fear of persecution in Iran in this regard.

123.   The applicants do not meet the requirements of the definition of refugee in s.5H(1).

124.   I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).

COMPLEMENTARY PROTECTION ASSESSMENT

125.   I do not accept the father’s ex-wife reported his Christian conversion, or any other of the father’s activities, to the Iranian authorities for the purpose of obtaining a divorce and that he was subsequently detained and then bailed after providing the title deed to his property and required to report regularly. I do not accept the father’s property has been confiscated by the Iranian authorities after he failed to report. I do not accept that his ex-wife’s family subsequently manufactured charges against him for which he was convicted in 2015. I do not accept the father has an adverse profile with the Iranian authorities for these reasons. I also do not accept the father and mother do not have contact or an ongoing relationship with their families in Iran. I also do not accept the father’s brother, or the father, have been convicted in regard to the father’s use of his brother’s passport to depart Iran in 2014. I do not accept the father attended political protests in Sydney against the Iranian regime. I am not satisfied the applicants will face a real risk of significant harm in Iran in relation to these claims.

126.   For reasons already given I do not accept there is a real risk the mother will not take care of the applicants if they were to return to Iran because of their parents’ recent separation and marital issues. I am not satisfied the applicants will face a real risk of significant harm in Iran in relation to this claim.

127.   For reasons already noted I am satisfied there is a real risk the applicant’s family members will be questioned on return because they will return on temporary travel documents, but I am not satisfied there is a real risk the applicants will be subject to this questioning. Even taking into account their young age I am not satisfied that the questioning of their family members amounts to significant harm to the applicants. For reasons already given, I am not satisfied there is a real risk the applicants will be without the care of their family members when they return. I am not satisfied the applicants will face a real risk of significant harm as failed asylum seekers returning on temporary travel documents and/or because their father departed Iran illegally.

128.   I accept the applicants are very young and may not speak fluent Persian and it may take some time to adapt to their new life in Iran but I am not satisfied that any challenges they may face in this regard, individually or cumulatively, amount to significant harm as I am not satisfied there is a real risk they will be arbitrarily deprived of their life, or the death penalty will be carried out on them, or they will subjected to torture or that it reaches the threshold of cruel or inhuman treatment or punishment or degrading treatment or punishment as defined in the Act.

129.   I have found the applicants will not face a real chance of any harm in relation to their other claims. Consequently, they will also not face a real risk of any harm in Iran in relation to those claims.[12] I am not satisfied the applicants will face a real risk of significant harm in Iran.

[12] MIAC v SZQRB (2013) 210 FCR 505.

130.   There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicants will suffer significant harm.

131.   I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).

1. There is no suggestion that the applicants satisfy s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s 36(2).

133.   The Tribunal affirms the decision under review.

Dates of hearing: 2 August 2024, 5 September 2024, and 1 October 2024

Representative for the Applicants: Farnam Razzaghipour (MARN: 9789359)

ATTACHMENT A - CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.

2. 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.

1. 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).

2. 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 Attachment B.

3. 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 Attachment B.

   Mandatory considerations

   In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   ATTACHMENT  B-  Extract from Migration Act 1958

   5 (1) Interpretation

   …

   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)     that is not inconsistent with Article 7 of the Covenant; or

   (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)     that is not inconsistent with Article 7 of the Covenant; or

   (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)     for the purpose of intimidating or coercing the person or a third person; or

   (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   receiving country,  in relation to a non-citizen, means:

   (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5H    Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

   …

   5J     Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:     For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:     For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K    Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)     disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L    Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)     a characteristic is shared by each member of the group; and

   (b)     the person shares, or is perceived as sharing, the characteristic; and

   (c)     any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)the characteristic distinguishes the group from society; and

   (d)     the characteristic is not a fear of persecution.

   5LA Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   …

   36     Protection visas – criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

   (2A)A non‑citizen will suffer significant harm if:

   (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)     the death penalty will be carried out on the non‑citizen; or

   (c)     the non‑citizen will be subjected to torture; or

   (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)     the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …