1922737 (Refugee)

1922737 (Refugee) [2024] AATA 1525 (5 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Kourosh Momeni (MARN: 0955242)
CASE NUMBERS:  1922737
2109874
COUNTRY OF REFERENCE:                   Iran
MEMBER:Rachel Da Costa
DATE:5 February 2024
PLACE OF DECISION:  Sydney
DECISION:In respect of matter 1922737, the Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
DECISION:The Tribunal sets aside the decision made on 9 July 2021 in matter 2109874 to refuse the applicant a Safe Haven Enterprise Visa and substitutes it with a decision that the visa application was not valid.

Statement made on 05 February 2024 at 12:57pm
CATCHWORDS
REFUGEE – protection visa – Iran – arrival by sea – not unauthorised maritime arrival or fast-track applicant as defined – statutory bar did not apply, so first application valid and second application invalid, with no jurisdiction to review – claims raised in second application considered – political opinion – anti-government statements and participation in demonstrations – religion – scepticism of Islam and conversion to Christianity in Australia – baptism and activities – wife instigated divorce after applicant told her of his conversion – clear and quietly confident evidence and supporting statements – country information – real chance of persecution – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 36(2)(a), (2A), 48A, 48B, 65, 91K
Migration Regulations 1994 (Cth), Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
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
APPLICATIONS FOR REVIEW

This is a combined decision record in respect of two related applications for review. On 16 January 2024, the applicant consented to the Tribunal producing a combined decision record.
Case number 1922737: this is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 August 2016 to refuse to grant the applicant a Temporary Protection Visa (class XD) (TPV) under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 18 December 2015.
Case number 2109874: this is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 July 2021 to refuse to grant the applicant a Safe Haven Enterprise Visa (class XE) (SHEV) under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 4 November 2020.
The applicant is a citizen of Iran. In both cases, the delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 5 December 2023 and 16 January 2024 to give evidence and present arguments. On 16 January 2024, the Tribunal also received oral evidence from [Mr A] who is an elder at the applicant's church. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the reviews. The representative attended the Tribunal hearing.
CASE NUMBER 2109874
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] April 2013. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a SHEV is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.
The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 4 June 2013. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.
The applicant applied for a TPV on 18 December 2015 (the first visa application). A delegate of the Minister decided to refuse to grant this visa. The then Minister purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further Protection visa application in Australia. The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on subsections 5H(2), 36(1B), or (1C) or paragraphs 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act. Following this, the applicant purported to make a second application for a SHEV on 4 November 2020 (the second visa application). However, the applicant’s first visa application was not invalid due to the operation of s 91K (see CBW20). This means that the s 48A bar was not lifted for the applicant because they were not within the class of persons specified in the then Minister’s s 48B determination.
The first application for a TPV on 18 December 2015 was refused by the delegate on 15 August 2016. The delegate refused to grant this visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations. An application for review of that decision was made on 15 August 2019.
The second visa application was refused by a delegate on 9 July 2021. An application for review of that decision was made on 3 August 2021. However, the second visa application is, and always was, barred under s 48A. Accordingly, the second visa application is invalid. The Tribunal has no option other than to set aside the delegate’s refusal of the second visa application and substitute it with a decision that the second visa application is invalid.
The Tribunal invited the applicant and his representative to the hearing 5 December 2023 to discuss this matter. The Tribunal explained the procedural background to the applicant’s cases, as described above, and expressed the view that the second visa application was invalid and there was only one option available to the Tribunal in terms of its decision in relation to that application for review. The Tribunal explained that despite this, it could still consider the applicant’s claims for protection in the context of his valid TPV application. The Tribunal adjourned the hearing for a short break to give the applicant and his representative the opportunity to discuss the situation and make any submissions about the validity of the applications. When the hearing resumed, the applicant’s representative confirmed that he agreed with the Tribunal’s view and confirmed that the applicant did not wish to make any submissions about validity. The applicant also confirmed that he wanted the Tribunal to rely on the claims and evidence put forward in his second visa application in the context of considering his first visa application, which is the valid application, and his representative confirmed this in writing after the hearing. The Tribunal noted this.
Accordingly, the Tribunal has proceeded to consider and make findings on the applicant’s claims for protection in the context of his valid TPV application which was made on 18 December 2015 (case number 1922737). This is set out below.
CASE NUMBER 1922737
CLAIMS AND EVIDENCE
Background
In his protection visa application form, the applicant provides the following information about himself. He was born in [Town] town, Isfahan province, Iran in [Year] and is an Iranian citizen. He married in 2007 and his wife is in Iran. His father is deceased but his mother is still alive. In Iran, he has [brothers and sisters] (one deceased). He is in regular contact with his relatives by phone. He speaks, reads and writes Farsi (Persian) and English.
In Iran, from [Birth] to 2001, he lived in [Town]. From 2001 to 20012, he lived at various addresses in Tehran. From October 2012 until March 2013, he lived in [Town] again. In the past, he has travelled to [two named countries] for a holiday and to [another country] for a holiday.
In Iran, he worked as [Occupations 1-3]. From [Year] to [Year], he did his military service. He holds a Bachelor’s Degree in [Subject] from [University].
The applicant departed Iran [in] March 2013 by air and arrived in Australia by boat [in] April 2013 as an unauthorised maritime arrival. He had an Iranian passport but it was taken from him by people smugglers.
Evidence before the Department and the Tribunal
Claims for protection
At the hearing on 5 December 2023, the applicant confirmed that he continues to rely on his claims for protection made in his first visa application, but his main claim is the claim made in the context of his second visa application which is based on his conversion to Christianity since coming to Australia.
In summary, the applicant’s original claims for protection relate to him having an adverse political profile in Iran due to him being openly critical of the government while at university and during his military service, being reprimanded for not carrying out his duties as [an Occupation 3] strictly enough, participating in Green Movement demonstrations and being caught speaking critically of the government while working as [an Occupation 2].
The applicant’s claims relating to his conversion to Christianity were first raised in a letter dated 8 March 2020 from the applicant’s representative to the Department after the applicant lodged his second visa application but before his interview with the delegate. The applicant’s claims, as expressed to the delegate, are essentially that since coming to Australia he met Christians, became interested in the Christian faith, started attending church and bible study classes, adopted the Christian faith and was baptised in June 2018, and he has continued to pursue his faith since that time. His family was not happy about his conversion and he has not spoken to his wife since he told her about his conversion because she was upset. They are now separated. If he has to return to Iran, he would continue to follow his Christian faith and attempt to evangelise.
Documents provided in support of the applicant’s religious claim
The applicant has provided a range of documents to the Department and the Tribunal in support of his claim to be a Christian. These documents include, relevantly:
·     Baptism certificate issued by [Church 1], [Suburb 1], NSW on [June] 2018;
·     Letter dated 7 March 2021 from [Pastor B] of [Church 1] setting out the details of the events leading up to the applicant’s baptism, his attendance at church services and bible study classes, the bible study subjects the applicant has completed, and his good character at the church;
·     NSW Change of Name Certificate dated [October] 2021 in respect of the applicant, who has changed his name from [Birth name] to [applicant name];
·     Letters of support dated October and November 2023 from parishioners at [Church 2] who attest to knowing the applicant since he joined the church around two years ago and attesting to the genuineness of his faith, his regular church attendance, his participation in various church activities including bible study and social activities, his involvement in the church community, his kindness towards others and his general good character;
·     Letter of support dated 9 November 2023 from [Reverend C], Senior Pastor/Team Leader, [Church 2], in which [Rev C] states that he has known the applicant since 2021, the applicant regularly attends church services and [Rev C] meets with the applicant and another person weekly for bible study classes. He says the applicant has a good grasp of biblical teaching and endeavours to live out its implications. The applicant’s faith in Jesus is genuine. He is a generous contributor to the church community and helps others. [Rev C] says he can vouch for the applicant’s genuine Christian faith;
·     Photos of the applicant attending church and church activities;
·     Copy of the applicant’s Iranian divorce certificate with English translation, dated [April] 2019.
Pre-hearing submissions
On 30 November 2023, the applicant’s representative provided extensive pre-hearing submissions in support of the applicant’s claims. Those submissions reiterate the applicant’s background and his claims for protection. It is submitted that if the applicant returns to Iran, he intends to remain true to his Christian faith and in doing so, he would be exposed to danger. It is submitted that the applicant meets the refugee criterion under the Act on the basis of his religion. The submissions refer to country information about the dangers faced in Iran by apostates, the monitoring of Christian congregations by the authorities in Iran and the restrictions placed on them, and the lack of religious freedom in Iran.
The Tribunal notes that a great deal of the content of the pre-hearing submissions is evidence about the applicant, his background and his conduct which would more appropriately be contained in a written statement or statutory declaration made by the applicant rather than being contained in written submissions from the applicant’s representative.
The hearing
The hearing to consider the applicant’s substantive claims for protection was held on 16 January 2024. As noted above, in this hearing the Tribunal also received oral evidence from [Mr A] who is an elder at the applicant's church. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
In the Tribunal hearing the Tribunal discussed with the applicant his background, family, employment, religious beliefs and practices and why he fears returning Iran. The applicant gave oral evidence in a clear and quietly confident manner. The Tribunal did not have the sense that he was trying to embellish his claims about his religious conversion or the situation in Iran. The applicant responded to the Tribunal’s questions and concerns with plausible explanations and in a way which suggested to the Tribunal that he was telling the truth about his situation. In so far as the Tribunal covered matters that were covered in the applicant’s pre-hearing submissions, his oral evidence was consistent with this.
The applicant gave evidence that his parents, who lived in Iran, have both passed away. He has [brothers and sisters] in Iran. Since the Covid-19 pandemic and the applicant’s conversion to Christianity they are not in regular contact, but he is in more frequent contact with one brother and one sister than the others. The applicant was married to a woman who was a relative on his father’s side of the family. He explained that her part of the family were more devout Muslims that his part of the family and when he told her about his conversion to Christianity she was not happy. That is the last time they had direct contact and later, in 2019, she obtained a divorce from him in Iran. [Details deleted]. He said they were never really compatible in their relationship and had differences even before they were married. The applicant’s family were not happy when he told them about his conversion. His mother was worried for him, but he continued to speak to her about his faith until she passed away.
The applicant gave evidence that before leaving Iran, he worked as [an Occupation 2]. He had previously worked as [an Occupation 3] and done his military service. His professional training is as [an Occupation 1]. The applicant’s family were practising Muslims but not very devout. One year, his mother visited Mecca and the applicant accompanied her because women must be accompanied by a male. They went outside the time the Haj takes place so it was more of a cultural visit than a purely religious visit. The applicant did not have a religious or spiritual feeling when he was there. The applicant was always a bit sceptical of Islam in Iran and found many of the senior people he encountered, such as police and clergy, to be very hypocritical in their practice of religion compared to what they said. He did not like this and over time his sense of religion became very weak.

The applicant did not know much at all about Christianity in Iran before he came to Australia and what he did know was fairly unclear. He thought Christians were honest because he had a Christian mechanic who used to repair his car.
After arriving in Australia, the applicant did not have the right to work so he studied English at classes offered at [Church 3] in Brisbane. He also began doing volunteer work at the church and participated in classes run by the church to help people like him become more familiar with the Australian community. This was the first time he actually attended a church and saw a church service. He was impressed by the way people connected to the church were kind to him and helped him without expecting anything in return. At this stage, he could not speak much English and so while he had questions about Christianity many of his questions remained unanswered. In time, he got permission to work and worked in [work sector].
Some Iranian people he had met on his boat journey to Australia suggested he relocate to Sydney where there were more opportunities and the Iranian community is larger, so that is what he did. Through these people, he met other Iranian people and his is how he met [Mr D], an Iranian who was an assistant to a pastor. The applicant started talking to [Mr D] out of interest and [Mr D] suggested the applicant come to church where there might be some other Iranian people who could help him find work and to understand Christianity a bit more. This was in April 2018. The applicant started attending regular bible study classes in Persian three times a week at [Church 1]. He had a lot of questions and was provided with answers during these classes. He liked the people he met, who welcomed him and were peaceful. The classes were about 14 hours per week and after seven weeks, the applicant felt his belief was firm. He learned more about Christianity and it brought him to a point where he was ready to accept Jesus and to be baptised. He said that initially, he was not looking for a religion or conversion and he did not intend to use such a thing to help him with his visa status. Looking back now, he feels it was God’s plan and due to the applicant’s curiosity, he was attracted and the spirit grew in him and made him strong. Christianity gives him the feeling that he has been saved. He said the feeling is different from Islam where you can’t feel God or know if you are going to heaven, but Christianity has shown him a way towards salvation.
During the Covid-19 pandemic, the applicant could not continue to attend [Church 1] because it was too far away with the travel restrictions, so be began attending his local [church] in [Suburb 2]. He still goes to [Church 1] sometimes for bible study, but not so often. He attends the [Suburb 2] church regularly, including Sunday worship and Tuesday bible study class. The pastor got to know him and was very welcoming. The applicant also likes that there aren’t Persian speakers at the [Suburb 2] church so it helps him improve his English. He helps out as part of the welcome team, welcoming new members and providing refreshments, and helps people in the congregation if they need it.
In speaking about his Christian religion, how it makes him feel and how he lives a life of faith, the applicant spoke very eloquently and made numerous references to specific verses and stories in the bible to support what he was saying and how his religion informs his life. The Tribunal had a clear sense that the applicant has learned a great deal in his bible study classes and thinks deeply about his faith and what it means for him. In terms of changes in himself since becoming a Christian, the applicant said he said he has become kind, patient, less worried about life and feels more secure knowing he is going through the path of salvation despite the uncertainty of his visa situation. It has helped his mental health which has been poor at times.
[Mr A] gave evidence in support of the applicant. He is a member of the leadership team at the [Suburb 2] church and has been a Christian for 45 years. He has known the applicant since around the time the applicant began attending the [Church 2] church. [Mr A] spoke positively about the applicant’s commitment to the church, his regular attendance, his commitment to bible study and growing his faith, his involvement with the church community and willingness to help others, the respect he has gained within the church community and how he is valued by the church leadership.
Based on all the oral and documentary evidence before it, the Tribunal is satisfied that the applicant’s Christian faith is genuine and a very important part of his life.
Does the applicant meet the refugee criterion?
In the hearing, the applicant gave evidence that he fears returning to Iran on the basis of his conversion to Christianity and the way he practices his faith. He fears being arrested, imprisoned and possibly killed by the Iranian authorities as a result of his religious faith.
The applicant gave evidence that he would continue to practice his faith in Iran even though he would be afraid and he would spread the word of God because that is part of his belief. Even though he could read the bible on his own, he would seek out a group or a church to worship with because that is part of how he practices his religion. Because of the way things work in Iran, he would not be permitted to attend a recognised church and so he would worship with people who would eventually be found out and punished by the authorities. He could not, and would not, conceal his Christian faith in Iran.
The applicant’s evidence about how he would practice his Christianity in Iran as a Christian convert, which the Tribunal accepts, and the consequences he fears as a result is consistent with country information available to the Tribunal. The DFAT Report states about Christians in Iran:
Christians
2.79 There are a small number of recognised Christians in Iran: 117,700 according to government figures quoted in the US Department of State’s 2021 Religious Freedom Report, and up to a million according to Christian groups. The majority of Christians are ethnic Armenian and Assyrian. Chaldean and Roman Catholic communities also exist in small numbers.
2.80 Protestant (including Evangelical) and Pentecostal churches, which some asylum seekers join while they are in Western countries like Australia, are not legal. Conversions that took place after 1979 or conversions that take place outside Iran are not recognised by the government. A person who claims to be Christian, however cannot prove that their family was Christian before 1979, would be considered Muslim by the government and thus subject to apostasy laws.
2.81 The activities of recognised Christian communities are closely regulated, to guard against proselytisation. Recognised Christian groups refuse to proselytise as a result, and in-country sources told DFAT this resolve is tested regularly by authorities. All Christians and Christian churches must be registered with the authorities, and only recognised Christians can attend church. Security officials closely monitor registered churches to verify that services are not conducted in Farsi (they must be performed in the traditional language of the Church and not the vernacular) and perform regular identity checks on worshippers to confirm that non‑Christians or converts do not participate in services. Churches that do not comply face closure.
2.82 Community leaders associated with registered churches report authorities respect their religious rights, and their communities can act freely in their own spaces without government interference (including holding mixed-gender gatherings, using alcohol for ceremonial purposes and allowing women to uncover their heads). However, in-country sources report that the government restricts their community members from senior management roles in public and private organisations due to an Iranian law that prohibits non-Muslims from holding positions of authority over Muslims. This means that the heads of Christian schools Shi'a Muslims appointed by the government.
2.83 Iranian Christians who are not members of recognised churches generally practise in underground ‘house churches’. House churches are usually Evangelical Protestant and are found throughout the country, but especially in more affluent and cosmopolitan areas. Numbers of house church adherents are not known because these churches are secret and illegal. The Joshua Project, an Evangelical ministry from the United States that publishes information for missionaries, estimates 0.52 per cent of the population is Evangelical Christian. In 2019, UN Special Rapporteur Rehman estimated that there were between 300,000 and 350,000 Muslim converts to Christianity. In-country sources told DFAT in 2019 that the number of underground Christians was growing, and Christians may travel to Turkey (with which Iran has visa-free arrangements) to be baptised then continue to practise their religion in secret. Reasons for conversion vary, but local sources told DFAT that it may be an earnest desire to explore their own spirituality, or it may be a subtle form of protest against the government. DFAT has been unable to source more recent figures on Christian conversions.
2.84 House churches vary in size, style and structure. Most are small and informal, and consist of close family and friends gathering on a regular or semi‑regular basis to pray, worship, read the Bible and/or watch Farsi Christian television programs broadcast via satellite or discs smuggled from abroad. Foreign Christian missionaries, to which asylum seekers may have links, may participate in Iranian Christianity through house ‘internet pastors’ who preach and conduct services remotely via the internet. Local Christian leaders and adherents may be foreign trained while overseas.
2.85 Authorities interpret the growth in house churches as a threat to national security and periodically carry out raids against them. Congregants regularly change houses to avoid detection. Raids focus particularly on house churches that actively proselytise or seek out new members. Sources told DFAT authorities do not actively look for house churches. Rather, raids – where they occur – are usually the result of tip-offs by Muslim neighbours. Other sources say the government sends people posing as converts to infiltrate house churches.
2.86 Prison or the death penalty are possible outcomes for Christians meeting in house churches, both leaders and everyday adherents. DFAT understands that while not a common punishment, prison or the death penalty for apostasy is possible. Years or even decades-long prison sentences are also possible. Changes were made to the Islamic Penal Code in February 2021 that mean that those guilty of ‘deviant psychological manipulation’ or ‘propaganda contrary to Islam’ could be found to be members of a ‘sect’, which can lead to imprisonment, fines, flogging or the death penalty. According to international or media reports, three Christians in the city of Karaj, near Tehran, were sentenced to total of nine years in prison under the new offences in August 2021.
2.87 In-country sources told DFAT that returnees who have not had a profile previously (for example through political activism in country) are unlikely to come to attention of authorities if they keep a low profile, and that this is not affected by social media posts about their conversion that they may have made while they were in a Western country like Australia.
2.88 DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed. Christians found to be proselytising face a high risk of arrest, prosecution and imprisonment. DFAT assesses Christian converts face a high risk of societal discrimination in the event their conversion becomes widely known, particularly if they are from more religiously-minded Muslim family backgrounds. This may involve ostracism from one’s family and discrimination in employment. DFAT further assesses that, while their congregations are monitored and they are subject to restrictions, Christians from recognised churches are permitted to practise their faith. DFAT assesses that, except for their exclusion from senior government, military, intelligence and judicial positions, recognised Christians who do not engage in proselytisation activities face a low risk of official discrimination. DFAT assesses that those who convert while outside of Iran and who intend to continue to practise their Christian religion would face a high level of official discrimination and could be subject to the death penalty.
This country information about the treatment of Christians generally and Christian converts more specifically is also supported by information from other credible sources such as the Canadian Immigration and Refugee Board,[1] the UK Home Office Country Policy and Information Note Iran: Christians and Christian converts (UK Home Office Report),[2] and the US Department of State 2022 Report on International Religious Freedom: Iran.[3]
[1] Iran: Situation and treatment of Christians by society and the authorities, 9 March 2021, IRN200458.E, Research Directorate, Immigration and Refugee Board of Canada
[2] September 2022
[3]
The UK Home Office Report states at 2.4.6 that:
In general, a person who is found to have converted to Christianity and who seeks to openly practice their faith in Iran, are likely to be subject to treatment or discrimination by the state that is sufficiently serious, by its nature or repetition, to amount to persecution.
It goes on to state that this is particularly the case if a person is a church leader or evangelises. In the Tribunal’s view, as a Christian convert who would seek to openly practice his faith in Iran, including by evangelising, this would be the situation for the applicant.
In the Tribunal’s view, based on its findings above and the country information referred to, the Tribunal is satisfied that the applicant fears being persecuted for reason of his religion and there is a real chance that he would be persecuted for reason of his religion if he returned to Iran in the reasonably foreseeable future. The Tribunal finds that the real chance of persecution relates to all areas of Iran.
The Tribunal is satisfied that the persecution will be directed at the applicant for the essential and significant reason of his religion, it involves serious harm to him and that it involves systematic and discriminatory conduct in that it is deliberate or intentional and involves significant physical harassment and/or ill-treatment of the applicant and a threat to his liberty.
Given it is the Iranian State that is the agent of persecution in this case, the Tribunal is satisfied that protection against persecution would not be provided to the applicant by the Iranian State and that the Iranian State is not willing and able to offer such protection. On this basis, the Tribunal finds that effective protection measures are not available to the applicant in Iran.
The Tribunal is satisfied that the applicant cannot take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in Iran because a modification would require him to alter his religious beliefs or conceal his true religious beliefs or cease to be involved in the practice of his faith. Accordingly, the Tribunal finds that the applicant has a well-founded fear of persecution for reason of his religion in Iran.
The Tribunal finds that the applicant is outside the country of his nationality and, owing to a well-founded fear of persecution, he is unable or unwilling to avail himself of the protection of that country. Therefore, the Tribunal finds that he meets the definition of refugee in s 5(H)1 of the Act.
As the applicant meets the definition in s 5H(1), the Tribunal is satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
As the Tribunal has found that the applicant meets the refugee criterion in s 36(2)(a) of the Act, it is not necessary to consider whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Rachel Da Costa
Member

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

[2024] AATA 1525

5 February 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Natural Justice

Procedural Fairness

Remedies