1919599 (Refugee)

1919599 (Refugee) [2024] AATA 3969 (29 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Hassan Izadnia (MARN: 1571846)
CASE NUMBER: 1919599

COUNTRY OF REFERENCE: Iran
MEMBER:Denis Dragovic
DATE:29 August 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 29 August 2024 at 1:04pm
CATCHWORDS
REFUGEE – protection visa – Iran – religion – conversion to Christianity – imputed political opinion – resisting corruption in Iran – kidnapping of family – detention – anti-government social media activity – participation in protests – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Applicant S v MIMA (2004) 217 CLR 387
Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 July 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are citizens of Iran. They applied for the visas on 21 August 2018. The delegate refused to grant the visas on the basis of credibility concerns.
The applicants appeared before the Tribunal on 6 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the second named applicant. The third, fourth and fifth named applicants did not attend the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The first named applicant’s (‘the applicant’) father and [specified relative] have separate protection visa applications. The same representative who represented the applicants in this matter represented [those relatives]. In each matter the representative requested that relevant evidence introduced into any of the other matters be introduced into the remaining cases.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is [an age]-year-old Iranian man. He is the son of another Iranian whose case was heard by the same Tribunal member.
The applicant travelled to Australia based on fearing harm from a corrupt group of Iranian officials who had threated his father. The basis of the threats are outlined in the decision of the father (case number 1919597) and reproduced here in an abridged version:
The applicant is [an age]-year-old Iranian man. He was a senior official in [Agency 1] who, according to the applicant, became involved, due to his role and responsibility, in a confrontation with corrupt officials who in turn threatened him unless he acquiesced to their demands.
The applicant was a [senior manager] in [Agency 1] with the role of [registering] newly imported [product 1]. At one point [several high quality product 1s] were being brought in and he was approached by a [Manager 1] in the Sepah (known in English as the Iranian Revolutionary Guard Corps) to facilitate the process. The applicant identified problems with the paperwork that had been submitted, purportedly from the port authorities. Despite a long-term relationship with the [Manager 1], the applicant refused his entreaties to expedite the paperwork and approve the registration. Instead, the applicant entered the details into the networked computer system which recorded the [product 1s] throughout Iran as such not allowing any other office to register them and then he added a note regarding the concerns and a request for the original paperwork from the port authorities.
Encountering this roadblock from the applicant, the Sepah [Manager 1] went to see the applicant’s son [the applicant] who had also previously had dealings with the [Manager 1] as he ran a franchise of [a service 1] company. The [Manager 1] allegedly told the son to tell his father that if he did the job that same day, he’ll be gifted [amount] touman per [product] which was suggested to have been at the time about US$[amount].
The applicant said that by entering the [product] into the system in the manner he did it prevented anyone from selling the [product] unless the paperwork was cleared.
…
These arrangements were being sought just prior to the end of the Iranian calendar year when people went on holidays. As such after a few weeks when the applicant returned to work the [Manager 1] came to see him and again pressured him to get things done. On the [specified] day of the new year his granddaughter, [named], was to be taken home from school in a taxi that her father had arranged but instead two people in a [vehicle] came and asked her to get out of the taxi and said that they will take her home. They took her and dropped her at home.
Two hours later the Sepah [Manager 1] called the applicant’s son [the applicant] and asked whether his daughter had made it home and if she is okay. The son asked the [Manager 1] what game he was playing, to which the [Manager 1] is said to have responded that he was not aware of what happened and that the order may have come from higher authorities. Then the [Manager 1] warned the son that this time his daughter was taken home but next time he may not see her again.
Despite this event the applicant continued to refuse to process the [products]. [Days later] his daughter [named] went to [a city location] to buy some books. She parked in a multistorey parking lot. When she returned to the car two people in Sepah uniforms told her to get into the car, then one of them opened his jacket showing a gun and asked for the keys to the car and they drove her to a house. They talked to the daughter and then gave her back the car keys. The message they conveyed to the daughter was to tell her father to do what they want him to do.
The next day the Sepah [Manager 1] came to him again. This time the applicant decided to agree to begin the process so as to buy himself time. He said that in two months his boss would be on leave, and at that time he would then be able to rectify the records.
As two months came around the applicant instead announced that he was retiring. He suggested that a new person be hired and that he could remain to train them.
The applicant claims that prior to his retirement the [Manager 1] admitted that the documents from the port were fraudulent.
…
He said that he was able to access a passport and exit the country as he had lured them into believing that he was helping them.
A few days after handing over the role to the new person he left the country.
…
I noted that the applicant’s visitor visa was granted on [a day in] 2018, and they arrived on [a day in] July 2018 and asked what they were doing during those intervening weeks. He said that he had some properties that he had to organise, and some [services 1] had to be handed over to others. I put to him that it didn’t sound as if he was acting in a manner that suggested there was an imminent threat to him. He said that they were trying to organise everything to leave the country. He claimed that they moved to a rental so that he couldn’t be found. But I asked how it would help moving house if he was still going to work to do a handover through to [several] days before he left. He said that he would turn up to work to show that he was there so that they would believe that he would complete the work for them.
The applicant claims that his son who had remained in Iran was shortly thereafter arrested and detained for [number] days. The applicant said that he was told that unless his father returned to Iran that they would open a prosecution case against the son. The applicant confirmed that in the several years since then no case has been opened and no harm has befallen his son.
The applicant also had [another family member] who also remained in Iran. He confirmed that [they] had not been harmed in anyway.
…
In response to the question of why the [Manager 1] and his group would be motivated to harm the applicant now after so many years the applicant noted that his son was under surveillance by security agencies. He said that if he goes to Iran they will learn of his presence as he would live with his son who had previously been detained and would be on their radar. He believes that if they became aware of his presence, they would harm him because of the heavy financial blow that his actions caused them. He believes that they would want retribution. The applicant said that he doesn’t know what happened after he left, and specifically whether someone processed the paperwork.
The applicant has a profile with senior officials with the Sepah. Whether this interest is registered in some database is unknown but that would be plausible, for the reason that by doing so his return to Iran by official means would be flagged. It may also be that there are informal ‘person of interest’ tags on the applicant. While there is no evidence of this being the case, having accepted the applicant’s narration of events, I find that it is plausible but remote.
Based on the applicant’s consistent and detailed recollection of the events that led to his departure from Iran, I accept the details he provided of how events transpired.
The applicant owned a franchise of [a service 1] business with him being a [specified role].
The applicant said that what happened to his father had a big impact on his family. He said that he was of interest to the group because there was knowledge of a close relationship between father and son. He believes that he was a victim because they wanted to pressure his father.
The applicant said that the corrupt group had lost four months, their interests might have been put at risk, and they would want to retaliate. He acknowledged that the retaliation wouldn’t help their situation as his father having left the role couldn’t fix the situation. I noted that his [specified family members] remained in Iran, and they haven’t been harmed other than his brother being detained for [number] days 7 years ago, and according to his [relative’s] evidence was subsequently summonsed but without any further follow up. The applicant said that his brother explained to the authorities that he had no relationship with their father.
The applicant had applied for a visitor visa [in] June 2018. The visa was granted on [a date in] 2018. He arrived in Australia [in] July 2018. When I put this to him and asked why they hadn’t departed earlier, he said that they hadn’t handed over the final payment to the agent for the visa as at the time the Iranian currency had dropped precipitously, and they had to scramble to find the additional funds and also because they didn’t believe that the visas were real as there was no stamp in their passport. They wanted to check to make sure that it was not fake, so they contacted a migration lawyer in Australia. These claims align with country information on the circumstances of both the Iranian currency[1] at the time and the nature of Australian visas.[2]
[1] >
The applicant claimed that his bank accounts were closed about 2-3 weeks after arriving to Australia. He found out when they were arranging to transfer money. He said that the account was blocked under judicial order. He said that his [relative] and brother were not hit by the same order because, he believes, they were not in their father’s business circle. He believes that it was for the reason of putting pressure on his father. He didn’t believe that there could have been another reason. He did not see the judicial order and said that it doesn’t work that way. Instead, it requires a person to attend a court at a particular time and until then the account remains closed.
Conversion to Christianity
When the applicants arrived in Australia, they met a Christian friend who told them that if something was very important to them then they should ask Jesus and he will help. At that time there was nothing more important than help with their [daughter’s] health. The applicant claimed that she was sick for seven years. He said that he didn’t ask Jesus for a visa or money, but just for her health.
The applicant detailed how after arriving in July 2018 his daughter would be hospitalised twice a year, and whenever she would get a cold. His wife was worried that the tablets they had been prescribed in Iran would be depleted. At the time they didn’t have access to a specialised doctor who would diagnose and prescribe the required medication. And so he left his daughter to Jesus. He said that his daughter caught a cold in winter but didn’t need medication or medicalisation. Because of that, he came to believe in Jesus.
When he chose to convert his family didn’t have any problems, though the second named applicant’s parents continue not to know of their daughter’s conversion. She described her parents as religious people, and she fears that their relationship would break down were they to know. She said that her parents wouldn’t harm her, but her relatives might.
The applicant was baptised in December 2021. A letter dated [in] July 2024 from [Leader A] of [Church 1] states that the applicant attends [their] evening services on Saturday along with his family. The [Leader] writes, ‘I met [Applicant 1] on September 2018 while he was searching about Christianity. He attends to our Persian [Church] gathering and according to him, God is working on their life and Jesus Christ had marvelous (sic) influence on them by healing his daughter.’
The applicant had provided two earlier letters through the Departmental process that attest to his conversion. These were a letter dated [in] May 2019 from [Leader B] of [Church 2] in which he writes, ‘[Applicant 1] participates in our recent baptismal course (in Farsi) which has been commenced since the beginning of May. The baptismal classes will continue for few months. During our worship services, I have observed [Applicant 1’s] attentive presence and his desire in participating in our prayer groups to pray for others.’ The other being from [Leader C] of the [Church 3] dated 19 May 2019. In this letter he writes that the applicant and his wife joined their Persian [Church] and attended Saturday sessions occasionally to help him better understand Christianity.
The applicant explained his faith journey by speaking about learning of a new god. He described Allah as a retaliator, whereas the Christian God was a god of mercy and kindness. He said that God is like a father, not seeking revenge or being strict/harsh.
The second named applicant said that when they first arrived to Australia, they were not in a good state psychologically feeling overwhelmed. She said that she similarly learned of the image of the Christian god as being kind, affectionate, and like a father. She said that it gave her a sense of peace, particularly after her daughter had been healed. She said that Christianity is about loving God and loving thy neighbour, trying to be a calmer person, a good person, not to judge, and to be peaceful. In the arms of God, she said that she feels safe and that He is looking after her.
The second named applicant attended Alpha classes for women which are Christian faith introductory classes. The applicant attended Bible study classes.
The applicant said that if you are an apostate in Iran, you can face problems. Apart from the government’s punishment, there are extremists including relatives who would take matters into their own hands without consequences. He explained they are justified under the law to act against apostates just as honour killing is justified.
The second named applicant said that she raises with other Iranians her new found faith and discusses the ‘fakeness’ of Islam. She explained that in an Iranian upbringing there is an emphasis on a connection with God, so she explains to other Iranians that Christianity is the faith they can achieve such connection as it is the religion of kindness. She discusses such matters with people she meets who ask her about her religion, her friendship groups, during children’s play dates, and then she invites people to their church. She said that their church is much better than other Farsi language churches in attracting new people.

The applicant added that the nature of Christianity is not to practice privately, it is about coming together. He referenced the Bible by quoting ‘if two or three people come together to pray the spirit of god is there.’
The applicants’ child goes to a Christian college.
Social Media and Political Activity in Australia
The adult applicants have attended numerous protests in Australia following Mahsa Amini’s death in 2022. He estimated that he had attended ten protests and she about five. Neither claimed to have had any role in organising them.
They would carry a banner ‘[specified wording]’ as well as a photo of Mahsa Amini.
The first named applicant has an [social media 1] page that has [number] followers according to a submission but over [number] when checked independently at the time of this decision. He uses it for both personal and political posts. The [social media 1] username is ‘[name 1]’. He said that this was relevant as it is the date when destiny changed Iran. He said that it is when the nation collapsed from its pinnacle to the lowest point. But he said that the name is less important than the content of his posts.
The applicant explained that he places content that criticizes the regime, the politicians, and the president. He claims that his posts criticize anyone who is against the people. He attacks the new president (Masoud Pezeshkian, inaugurated July 2024) who has been described as a ‘moderate’ also because of a perception that he is a ‘terrorist’ and a member of the IRGC.
Explaining this, the applicant recalled that in 1979 Mr Pezeshkian forced female students to come to university with the hijab even though at that time there was no law forcing women to wear the hijab. The applicant said that despite commentary that the new President is a moderate, it doesn’t make any difference.
He said that he has received direct message threats in response to his posts. They included comments such as, ‘We will find you’, and ‘We know your followers, when we find them we will find you.’
In response, I noted that the display name on his [name 1] account used a part of his name and so I suggested the authorities would know that he had left Iran as he left on his own name. He said that the authorities may recognise him but those threatening him aren’t necessarily in the cyber police or passport office where they have such information.
I asked why he used his own name at all. He believes that by putting your own name you show courage. I put to him that he could have used another name with a slight variation. He said it is a symbol of his courage. I suggested that it could also indicate that there may not be a risk. He said while he is in Australia there is less of a risk but ultimately it was his choice. He said that his friends were doing the same in Iran. He gave an example of someone else who is a notary public and posts such things, he acknowledged that nothing happened to him. The reason that nothing happened to his friend, he believes, is that the government has more challenges on its hands but when the situation quietens down they will start to pursue such individuals.
The applicant has made over [number] posts since opening his account in 2019 as is evident from the screen shots provided. He said his frequency of posting depends upon his work situation and on what is in the news.
The applicant said that anyone who has the possibility to raise awareness to the people, even those abroad, should do it. He sees himself as a people’s voice. He hopes to bring awareness such that other people are encouraged to do more.
The applicant said that if he had to return to Iran, he would continue with his social media activities.
The applicant provided screen shots of his social media posts which I have reviewed and provide summaries of a select few here:
a.A stylised computer-generated picture of the former President of Iran, Ebrahim Raisi, known by his opponents as the ‘Butcher of Tehran’, surrounded by women in abayas depicted as wraiths clawing at Raisi with the words ‘[title]’ written over the picture. The applicant’s comment is, ‘[Comment]’ This post has [number] likes.
b.A picture of the back of a turbaned man in front of the Iranian flag with a noose alongside and the comment, ‘[Comment]’ This post has 5 likes.
c.A cartoon depiction of [a leader] of the IRGC speaking to a chamber resembling the Iranian parliament with members [depicted]. This post has 5 likes.
d.A picture of [a] former head of the IRGC, with the comment ‘[Comment]. Post has 3 likes.
In other posts he acknowledges those who have been sentenced to death by the Iranian regime and posts reminders of the Shah’s era. Some of the applicant’s posts have over 400 likes, others only a handful.
Considerations
The applicant said that his life in Iran was ‘excellent’, and that his daughter excelled at school. His wife was an [occupation 1], and they owned [a service 1] company. He said that she was a published author. He spoke of not having a reason to leave Iran. But due to the circumstances facing his father and by association himself and his family, the applicant fears returning to Iran.
The applicant fears returning to Iran for the reason of being harmed by the corrupt group, for having converted to Christianity, for posting on social media anti-regime material and for participating in protests. Other peripheral claims include that he has sought asylum and that he paid a bribe to an Iranian working in the Australian embassy to fast track their visa.
Fear of the corrupt group
With regards to the circumstances relating to his father, as noted in that decision (Case number 1919597), I find that the applicant has a profile among a group of senior officials within the Sepah. Whether this interest is registered in some database is unknown. It would be plausible, because by doing so his and his father’s return to Iran by official means would be flagged. It may also be that there are informal ‘person of interest’ tags on the applicant.
While there is no evidence of this being the case, having accepted the applicant’s narration of events, I find that it is plausible but remote. Seven years on from the incident, I find that the corrupt group would have a very low level of motivation to seek to harm the applicant into the reasonably foreseeable future because the applicant was peripherally involved as leverage to force his father to act and had no other role.
I make this finding because while its unknown what happened after the applicant departed Iran, it is reasonable to conclude that they succeeded to influence the father’s replacement or found alternative means to import the [products] based on widespread reporting of Iran being a highly corrupt country[3] and the involvement of the Sepah, a powerful body within Iran, in this scheme.
[3] >
While I found that there is a remote chance of being on some official watch list and that the corrupt group would have very low motivation to harm him, I accept that his presence would become known to them over time. This would occur through the applicant’s familial or social engagements. In of itself, I find that the corrupt group will not present a real chance of serious harm or a real risk of significant harm to the applicants.
Conversion to Christianity
The applicant fears harm arising from his conversion to Christianity. I note that DFAT in its latest report assesses:
Authorities interpret the growth in house churches as a threat to national security and periodically carry out raids against them. Congregants regularly change houses to avoid detection. Raids focus particularly on house churches that actively proselytise or seek out new members. Sources told DFAT authorities do not actively look for house churches. Rather, raids – where they occur – are usually the result of tip-offs by Muslim neighbours. Other sources say the government sends people posing as converts to infiltrate house churches.[4]
[4] DFAT [2.85]
This view is reflected in other country information which indicates that Christian conversion is seen more as a national security threat than a genuine effort to maintain Iran as an Islamic nation.[5] Considering the current crisis in the Middle East and the escalating confrontation between Iran and Israel and in turn, the West, I find that the risk for the applicant is heightened for the reason that his Christian conversion would be perceived as a national security threat. I find that the bellicose rhetoric that the Iranian regime uses against the West would translate into heightened risk of official action being taken against those who are seen as proxies of Western countries or sympathisers of Western beliefs.
[5] Example of a Christian convert being convicted under national security crimes. >
DFAT also notes the possible repercussions of conversion:
Prison or the death penalty are possible outcomes for Christians meeting in house churches, both leaders and everyday adherents. DFAT understands that while not a common punishment, prison or the death penalty for apostasy is possible. Years or even decades-long prison sentences are also possible. Changes were made to the Islamic Penal Code in February 2021 that mean that those guilty of ‘deviant psychological manipulation’ or ‘propaganda contrary to Islam’ could be found to be members of a ‘sect’, which can lead to imprisonment, fines, flogging or the death penalty.[6]
[6] DFAT [2.86]
Based on the type of harm identified by DFAT I accept that the harm amounts to serious harm.
Initially the applicant will be required to pass through immigration checks in Imam Khomeini International Airport. Having found above that the applicant’s name may be on a government watch list but that the possibility of this being the case is remote and noting that DFAT states that ‘in general, authorities pay little attention to failed asylum seekers on their return to Iran,’[7] and the Netherlands Ministry of foreign Affairs assesses a similar sentiment[8], I find that the applicant will not be stopped at the airport other than for a routine check.
[7] DFAT [2.203]
[8] Netherlands, Ministry of Foreign Affairs: General Country of Origin Information Report on Iran, September 2023, p. 110
Once reintegrated into his community the applicant will engage with his [relative] who lives in Iran and seek out a house church. DFAT notes that, ‘In-country sources told DFAT that returnees [who are Christian converts] who have not had a profile previously (for example through political activism in country) are unlikely to come to attention of authorities if they keep a low profile.’[9]
[9] DFAT [2.87]
As a Christian believer the applicant’s profile would not lead him to face a real chance of serious harm or a real risk of significant harm, but his profile extends beyond a Christian convert.
The applicant is a part of a family of Christian converts including a [relative] who remains in Iran and his father who is in Australia.
Regarding the [relative] who lives in Iran, evidence provided in the father’s matter (Case number 1919597) relating to her circumstances is introduced into this matter:
The applicant said that his [relative] who continues to live in Iran was baptised into Christianity while in Iran. He described the circumstances of the baptism being in [a location] on the outskirts of Tehran and that she had to be cautious as the taxi driver who took her asked questions about what was happening.
I asked the applicant if his [relative] in Iran faces a risk of harm. He said that because she is hiding her beliefs, and practicing her faith in secret, she has not to date. He noted, though, that some Christians have been jailed.
That the applicant forthrightly explained the situation of his [relative] even thought it could be perceived to strongly weaken his claims as [this relative] has not been harmed while practicing her newfound faith, strengthens the applicant’s credibility.
Her circumstances would add to the level of risk the applicant faces because were one of them found to have converted while in Iran, it is likely that the risk of other members of the family being investigated would increase.
In addition, the applicant has young children ranging from [age range]. It is possible that the younger children may say something about their Christianity at their Iranian school or to their friends without realising the repercussions.
The applicant noted how his spoken and written Persian has changed. Now when writing something with Muslim correspondents they tell him that his tone and style has changed and being dependent on the government they ask him not to write using such language. He gave the example of how Muslims say, inshallah whereas he will say ‘leave you in the hands of god’ which is understood as Biblical literature. Another example is the Arabic term, alhamdulillah whereas Christian based language may refer to the Heavenly Father.
The applicants argued that they face a greater risk than other Christian converts as they would be returning from an extended period while living abroad. This, they claimed, would bring further attention to them including being asked why they have been away for so long and what they have been doing.
I discussed with the applicant their chances of being caught attending house churches considering there are reported to be hundreds of thousands of converts[10] but only a few hundred caught each year.[11] He said that if they stayed, they would be amongst those who are caught. The second named applicant said the arrests are classified differently and not necessarily for apostasy and such the figures under-represent the situation. She added that currently there may be a loosening of attention but once the external threat is settled then the authorities will come back again to check.
[10] DFAT [2.79]
[11] >
In considering the country information on Christians in Iran, I note that there appear to be conflicting views. On the one hand hundreds have been arrested each year and the authorities have handed down severe punishment. But information submitted by the representative indicates that a group of seven people who were Christian converts were cleared by the state prosecutor with the explanation that ‘their change of religion was not a crime under Iranian law.’[12] When this was put to the representative who had provided the information to ask whether he could shed any light, he was unable to offer further country information to clarify the situation. Country information at [86] goes someway to potentially explaining this situation and lends weight to a view that the government is not reducing pressure on apostates but simply that rather than being breach of the criminal code is a breach of Sharia law.
[12] this was also reported elsewhere:
The number of converts is estimated to be in the hundreds of thousands, which would indicate that statistically only a small minority are detained by authorities and some sources reporting to DFAT suggest that action is only taken when Muslim neighbours complain to authorities.[13] Other sources, though, told DFAT that the ’government sends people posing as converts to infiltrate house churches.’[14]
[13] DFAT [2.38] and [2.85]
[14] ibid
Open Doors, a Christian NGO that monitors Christian persecution globally notes, ‘Informers in Western countries report back to Iranian intelligence on the activities of Iranian Christians abroad.’[15] Whereas, DFAT states:
In-country sources told DFAT that returnees who have not had a profile previously (for example through political activism in country) are unlikely to come to attention of authorities if they keep a low profile, and that this is not affected by social media posts about their conversion that they may have made while they were in a Western country like Australia. (Italics added)[16]
The two views are somewhat in contradiction as DFAT assesses that those who made known their conversion while abroad through social media, which would be known to informants, are unlikely to come to the attention of authorities whereas Open Doors implies otherwise.
[15] Open Doors, ‘World Watch List 2024: Situation of Religious Freedom for Christians: Iran’ DFAT [2.87]
This mixed bag of insights is not unexpected considering the closed nature of the regime and the size of the country where approaches to policing would vary across regions and by jurisdictions.
More recently, though, there has been consistency in reporting an increasing crackdown on Christian converts by the regime. Reporting from 2023 suggests ‘the regime has recently increased its abuses, including surveillance, arrests, and imprisonment of house church leaders and those who worship in their homes.’[17] The BBC reported the same in 2024: ‘Authorities have been intensifying raids against these groups, arresting more people and handing over longer prison sentences, so church members are having to take extra precautions.’ The same BBC article notes that, ‘Bails have become more expensive, and often are unaffordable. And prison sentences have become longer.’
[17] >
The increased intensity of morality laws in other spheres in recent weeks represents a shift by the authorities to clamp down on what are perceived to be anti-Islamic behaviours. In August 2024 the BBC reported the Iranian police announcing a clampdown on women defying the national compulsory dress code including identifying women who don’t wear the hijab in their cars.[18]
[18] >
These recent shifts are relevant as the DFAT report is from July 2023 and based on discussions with experts that would have taken place in late 2022. This apparent increase in agitation aligns with the view that the regime sees Christian converts as national security threats and the increase in hostilities in the Middle East following the Hamas atrocities in Israel in October 2023 have inflamed geopolitical tensions with the West.
Considering these circumstances, I find that were the applicants to return to Iran, into the reasonably foreseeable future they would be identified as having left Islam and embraced Christianity. I find that this would lead to some actions against the applicants by various elements of the regime.
Social Media and Protesting
The applicant has a moderate number of followers on [social media 1]. With at the time of this decision the number being over [amount] the applicant’s posts are likely to be known to authorities. But DFAT notes that, ‘In general, authorities pay little attention to failed asylum seekers on their return to Iran. DFAT understands their actions (including social media posts about sur place activities) are not routinely investigated by authorities.’[19]
[19] DFAT [2.203]
On the other hand there has been widespread reporting in 2024 of ASIO warnings over foreign powers monitoring the activities of the diaspora with Iran being one of the most egregious foreign powers.[20] There are claims of the Iranian government’s spy networks in Australia participating in protests and taking photos of people. Protestors have claimed that they have been followed while in Australia and their cars vandalised. Families of protesters in Iran are also threatened.[21]
[20] ibid
I note that none of these forms of coercion have been claimed to have occurred to the applicants directly or their families in Iran. While this does not negate the possibility that they are known to the authorities, it does emphasise that there isn’t positive evidence of this being the case.

The applicants said that their participation in the protests would lead them to face harm as photographs are taken, people are identified, and then upon return arrested. The second named applicant said that in the past the regime would even resort to publishing the pictures of individuals to help in their identification. She said that one friend was told by a friend of theirs that a man who attended a protest wearing glasses and mask wasn’t allowed to return to Iran. She claimed that there are people in Melbourne who have positions of authority such as commanders in the Sepah.
The applicant said that he receives threats by government proponents when he writes on the pages of recognised political figures. But he said that this would not occur on his own page. I put to him that this suggests his own posts aren’t generating concern. He said that his followers all agree with him and as such he wouldn’t be threatened by them.
Noting that the applicants have attended between them fifteen protests and the applicant has over [amount] followers on [social media 1] which includes strongly worded and framed criticism of the regime under a display name that is partially his own name, and which sometimes include personal posts that would help in identifying him, I find that he would be known to the authorities. That none of his siblings in Iran have been approached indicates that he is not at the top of the regime’s list of persons of interest, possibly because he is not involved in organising the protests, possibly because there are other more direct threats facing the regime that are drawing upon the limited resources of the authorities.
Cumulative considerations
Each of the applicants have their own combination of risks. The applicant fears harm for reasons of his father’s stand against the corrupt group, his conversion to Christianity, his social media and protest activity and peripherally having sought asylum and having bribed an Iranian. His wife fears harm for converting to Christianity and participating in protests. She does not have a political social media account. The children are at various ages and face risks of their own ranging from being Christians to [their] daughter having her liberty constrained into the reasonably foreseeable future for reasons of being a young woman. I have not engaged with all of these combinations for each of the applicants as it is unnecessary for the purposes of considering whether they are owed protection. This is because the most likely scenario by which they will be owed protection is by way of the applicant’s profile.
I have found that the corrupt group would over time find out about the applicant’s return. While not sufficiently motivated to risk exposing themselves by harming him directly as retribution, they would use their resources and connections within the system to uncover more about the applicant. Through this process his social media posts would become known. It is possible that his conversion would also be known whether directly through knowledge of his participation in Christian activities in Australia or by identifying him at a house church in Iran (DFAT assess that some are monitored)[22].
[22] DFAT [2.88]
Alternatively, upon return to Iran, he may be identified as a person of interest at immigration for reasons of having been absent for several years or because of being identified for reasons of his social media posts and protests. At such stage, while being interviewed the applicant would be asked about his activities in Australia and it would become known that he had sought asylum in part because of his conversion to Christianity or that he had been active in the Christian community.
By whichever pathway the applicant is identified, he faces harm at the hands of the authorities. The harm that he faces is serious harm as his actions would be seen as threats to national security. DFAT notes that those who, ‘cross “red lines” as defined by the authorities, are critical of the Islamic Republic, its institutions and policies, and who publicise human rights violations, including against ethnic and religious minorities, face a high risk of arrest, prosecution and imprisonment, including on national security grounds.’[23] The applicant’s social media posts meet this description. I find that the type of action the applicant faces, namely prosecution and imprisonment, amount to serious harm.
[23] DFAT [2.118]
Considering the multiple and varied ways in which the applicant could come to the attention of the authorities, I find that the applicant faces a real chance of serious harm for reasons of his Christian faith and his political activities.
For the purposes of the remainder of the reasoning, I find that the harm he faces arises from apostasy laws and his Christian faith.
As such, I find that his religion are the essential and significant reasons for the harm (s 5J(4)(a)).
In considering whether the harm he faces would be systematic and discriminatory (s 5J(4)(c)) I note that the country information discussed above describes a concerted effort by the Iranian government to target those of the applicant’s profile. This effort is not ad hoc or random but based in law.
I have also considered whether the laws that will be used against the applicant are laws of general application. First and foremost, I have found that there is a real chance the applicant would face harm from the government’s application of laws against apostacy or potentially blasphemy or alternatively the use of national security laws for reasons of his conversion. Country information on apostasy in Iran notes:
Although apostasy is punishable by death in Iran, the Islamic Republic has never codified the crime of apostasy. Instead, relying on the Iranian Constitution, the Islamic Penal Code authorizes the enforcement of certain Islamic laws known as hodud crimes even when the crime is not specifically mentioned in the criminal code. The fact that apostasy is not explicitly proscribed by the Iranian legal framework, and the differences in interpretations of Islamic law regarding apostasy, contribute to a lack of legal certainty for those living under Iranian laws…provisions in the Islamic Penal Code and the Iranian Constitution state that Shari’a, or Islamic religious law, applies to situations in which the law is silent. As a result, the Iranian judiciary is empowered to bring apostasy charges based on its interpretation of Shari’a law.
I find that the application of punishment for apostasy within Sharia Law is not a law of general application, but rather discriminatory. It targets those who are no longer practicing Muslims on the basis of religion. It is the applicant’s faith that would lead to him being persecuted by the state.
I now turn to consider whether the law is appropriate and adapted to achieving some legitimate object of the country. In Chen Shi Hai v Minister for Immigration and Multicultural Affairs[24] at [29] the majority of the High Court said,
Whether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity. Ordinarily, denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education involve such a significant departure from the standards of the civilised world as to constitute persecution. And that is so even if the different treatment involved is undertaken for the purpose of achieving some legitimate national objective.
[24] Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293
The limitation upon people in changing their religion has a government object, namely, to maintain the Islamic Revolution but whether this is appropriate and adapted to achieving a legitimate government object requires further consideration, in particular engaging with the question of what is legitimate. The courts have responded by finding that a legitimate object protects or promotes the general welfare of the state and its citizens but when its enforcement places additional burdens on members of a particular race, religion, nationality, or social group then the proportionality of the means employed to achieve those objects should be considered.[25]
[25] Applicant S v MIMA (2004) 217 CLR 387 at [44], [48]
In this case I will not engage with the broader question of whether Sharia law is appropriate and adapted for the wider community but rather if the application of Sharia law to apostasy serves an object that can contribute to the welfare of the population. In this regard it is difficult to conceptualise what societal benefit is gained by persecuting individuals who choose to pursue another religion, a right agreed to by the international community in various covenants, treaties and declarations. The only possible reasoning emerges from the Iranian government view of being a temporary guardian of the Muslim community until the return of the Mahdi who will establish peace and justice. In this formulation, known as vilayet-e-faqih, the religious leaders are tasked with ensuring a religious state as demanded by the teachings of Ayatollah Khomeini:
The ayatollah claimed that God had made Islam for it to be implemented as shown by the creation of divine law (sharia). Given that no one knew Islam better than the clergy, Khomeini argued, it was natural that they should rule as guardians of the state until the return of the 12th divinely ordained Shia imam (Imam al-Mahdi or the Hidden Imam)[26]
[26] >
But in a rational application of the concept of welfare and societal benefit that does not extend into the metaphysical, I find that persecuting converts is not appropriate and adapted to a legitimate government object. As such I find that the laws that would be used against the applicant are not laws of general application.
For the same reasons the applicant cannot seek protection from the state as the state is the persecutor (5J(2)).
I also find that the applicant cannot modify his behaviour as it is the actions that he has already undertaken including converting to Christianity, making posts on social media and participating in protests that are known to the authorities that will lead him to face serious harm (s 5J(3)).
I find that the applicant cannot relocate as the entire state of Iran is controlled by the authorities (s 5J(1)(c)).
I have also considered whether according to s 36(3) the applicants have a ‘a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.’ There is no evidence before me that citizens of Iraq such as the applicants have a right to enter and reside in another country apart from Australia. As such I find that the exception to Australia’s protection obligations under s 36(3) is not met.
For the reasons given above I am satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
I am satisfied that second named applicant being the wife of the first named applicant and the third, fourth and fifth named applicants being his children are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii) that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Denis Dragovic
Deputy President

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 3969

29 August 2024

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