1925367 (Refugee)

[2024] AATA 3966

1925367 (Refugee) [2024] AATA 3966 (6 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Ryan Lasaki

CASE NUMBER:  1925367

COUNTRY OF REFERENCE:                   Iran

MEMBER:Sue Zelinka

DATE:6 September 2024

PLACE OF DECISION:  Sydney

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

Statement made on 06 September 2024 at 12:55pm

CATCHWORDS
REFUGEE – protection visa – Iran – religion – questioned strict Islam then converted to Christianity – arranged marriage with devout Muslim woman – remained in Australia after holiday by himself – divorced by wife with support of her family – breach with own family – church membership and activities in Australia – broadly consistent claims and evidence – country information – apostasy not a crime, but against Sharia law and sometimes subject to other criminal provisions – official knowledge of applicant’s conversion – decision under review remitted

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 September 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Iran applied for the visa on 15 February 2019. The delegate refused to grant the visa on the basis that he did not find the applicant’s protection claims to be credible.

3. The applicant appeared before the Tribunal on 6 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

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

6. 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.

7. 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).

8. 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.

9. 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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

    Background

12. The applicant in this case is a [Age]-year-old man from Ghazvin Province who arrived in Australia in January 2019. He was married in [Year] and has [children]. His wife divorced him in August 2019 after he failed to return to Iran. For three years prior to his departure for Australia, the applicant was studying for a Master’s degree in [subject speciality] and working part-time.

13. The applicant’s claims were originally set out in a statement which accompanied his protection visa application. He was interviewed by a departmental delegate and expanded on those claims.  He also attended a Tribunal hearing. His claims have remained broadly consistent throughout the refugee status determination process.

    Claims

14. The applicant claimed he was born into a strict Muslim family but over time found himself unable to adhere to the religion to the extent required. He was punished at school for his lack of rigour in religious duties. When he was 23, his family arranged his marriage to a very devout woman, the daughter of his father’s friend with whom he attended the mosque. The applicant was depressed. He began studying [subject] at university and was attracted to friends who had broader perspectives. The applicant also liked to watch foreign films and the glimpses they gave of a life outside an Islamic theocracy.

15. Through this wider circle of friends, the applicant met two men of [Country 1] heritage who belonged to the State-approved [Church]. One of them, [Mr A], played an active role in the church. The applicant and he would have conversations about religion, usually initiated by the applicant who was curious about Christianity. The applicant claimed that he actually went into the [Church] to observe a service and that eventually, on 11 December 2018, was able to be baptised at the church. He also went on a short holiday to [Country 1] so that he might observe some of the more traditional Christian practices – he had spoken to his two friends about the timing of this trip (this was in 2017).

16. The applicant said he had to be careful at university so that his growing rejection of Islam would not be noticed and reported on by the basij. Later, when he was working, he was rebuked by the Law Council for failing to attend some of the religious activities which they arranged. Life at home was becoming more fraught. The applicant said that when his daughter began school, he was concerned because she would be undergoing the same sort of indoctrination which he had gone through. He said he tried to speak to her in a way that would let her keep an open mind, so that when she was older she could make an informed choice about religion. The applicant’s wife was furious at this approach, being herself a strict adherent to Islam. 

17. The applicant said that he asked his wife to have a holiday with him in Australia (they had previously been to [Country 2] on holiday). He thought that if she relaxed in “a nice environment” like Australia, she might be more amenable to his bringing up the topic of Christianity. He had never discussed this topic at home, neither with his wife nor any family members; but he was finding it increasingly difficult to keep his interest bottled up. The wife agreed to the holiday and they obtained tickets and visas. However, she became unnerved, there was a great deal of tension, and she cancelled her holiday plans about 7-10 days before departure.

18. The applicant came to Australia alone and asked a contact here (a cousin of one of his friends) about a church. He attended, and then found out about a church which offered services in the Farsi language. He began attending that church and the pastor there, who is vigorous in attracting Iranians converts, baptised him again, saying it would create “shared memories’. The applicant has submitted photographs of himself at that church and the pastor has written a letter saying that the applicant is a regular attendee.

19. The applicant left Iran in January 2019 and in August of that year, his wife divorced him with the full support of her family. The applicant said he had contacted his wife after he had been in Australia a month or so to say he was not returning to Iran. She then sent him a message through his family saying that she was going to divorce him and also saying that she would let the government know that he had left Islam. She followed through on that point and the divorce certificate notes the divorce is granted  “on the basis of explanations and submissions regarding the spouse’s apostasy, leaving the religion of Islam, and the spouse leaving the country and not returning to the country”. Full custody of the children has gone to the mother. The applicant said that his wife had fully briefed his own family on his failings – that is, his apostasy – and this has caused a breach in his relationship with them. He now only communicates with his family through his brother with whom he remains in touch. A copy of the divorce certificate from the Family Court of the Shahid Muftah Judicial Complex, Tehran, with an accredited translation, is before the Tribunal.

    Analysis, findings and reasons

20. The Tribunal finds on the basis of his passport and other documents, his language and his testimony that the applicant is a national of Iran and that Iran is the receiving country in this case.

21. The Tribunal has noted that the applicant’s claims remained consistent throughout the refugee status determination process; the claims as set out above are as they were presented at hearing where the applicant was on oath and where the Tribunal had the opportunity to question any point or to ask the applicant to expand on it.

22. The Tribunal accepts that the applicant grew disenchanted with the enforced Islamic practices of his family, school and society in general; and by the time he entered university, he was seeking out broader horizons. He befriended those with different ideas including two members of the [Church]. These two could worship without contravening Iranian laws as they were of [Country] ancestry and belonged to the [Church] (an Orthodox Christian church). The Tribunal accepts that the applicant became interested in Christianity.

23. The Tribunal accepts that his growing distance from Islam caused tensions in his own household where his wife was a devout Shi’a. The Tribunal accepts that he tried to take his wife on a holiday to Australia in order to broaden her horizons but that she rejected this and told her own family and the applicant’s family that she feared he was becoming an apostate.

24. The Tribunal accepts that, from Australia, he told his wife he was not returning to Iran and that she initiated divorce proceedings. Clearly she told the court of his apostasy as it is recorded on the divorce certificate. This indicates the strength of her feelings on the subject as she could have simply said that he was not returning to Iran (another ground mentioned on the certificate).

25. The Tribunal finds that there is a real chance that she would tell other agencies of her ex-husband’s apostasy if he returned to Iran and, for example, tried to find work. His apostasy is known to her parents as well as to his; this means it will be known at the mosque where both fathers worship. It is also recorded on an official court document –namely, the divorce certificate.

26. The Tribunal notes the following country information:

    Apostasy is not specifically codified as a crime in Iran, however, is nonetheless a crime under Sharia law, which is enforceable under the constitution. Both moharebeh or ‘enmity against God’ and fisad fil-arz (‘corruption on earth’) are codified in law and can include apostasy, according to the 2021 US Department of State Human Rights Report. According to the Iran Human Rights Documentation Centre, a person can be found guilty of the crime of apostasy based on the testimony of two male witnesses, the knowledge of a judge or a confession. The death penalty is a potential punishment but very rare in practice. (DFAT Country Information Report: Iran, 24 July 2023 Version 2, para. 2.65).

27. According to this information, the applicant has already been found guilty of apostasy in Iran “based on the knowledge of a judge” – that is, the judge who signed the divorce certificate in which this information is recorded. Although “the death penalty is very rare in practice”, the UN Human Rights Special Rapporteur recorded that “In May 2023, the authorities executed two men for apostasy solely for the peaceful exercise of their right to freedom of religion through social media activities” (para. 11, citation below). Even a lesser punishment is still serious as the crime of fisad fil-arz (‘corruption on earth’) which can include apostasy is counted as a national security offence.  The Tribunal notes that:

    The Special Rapporteur is concerned by reports of continuing arbitrary arrests and the frequent use of torture or other cruel, inhuman or degrading treatment or punishment …  The use of torture was particularly the case for individuals who were charged with or convicted of national security offences, political crimes or drug-related offences. (Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran, A/HRC/55/62, 9 February 2024, paras 18 and 19).

28. The Tribunal finds that there is a real chance that the applicant will be identified as an apostate if he were to return to Iran. It finds that, for this reason, there is a real chance that serious harm amounting to persecution could befall the applicant in the reasonably foreseeable future if he were to return to Iran. The Tribunal is satisfied that the applicant has a well-founded fear of persecution for reason of his religion.

29. 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

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

    Sue Zelinka
    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.

    …