1925689 (Refugee) - [2024] ARTA 619

1925689 (REFUGEE) [2024] ARTA 619 (1 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 1925689
Tribunal:General Member J McLeod
Date:1 November 2024

Place:Melbourne
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that:
each of the applicants meets s 36(2)(a) of the Migration Act. ·

Statement made on 1 November 2024 at 10.48am
CATCHWORDS
REFUGEE – Protection Visa – Iran – religion – converted from Islam to Christianity – political activism – in support of women’s rights in Iran – gender – gender combined non-adherence to Islam and/or their faith – actual political opinion – westernised mannerisms race – applicant’s fear of persecution is well-founded – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 August 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants claim to be nationals of Iran. They are part of a family group comprised of Applicant 1 (the applicant husband), Applicant 2 (the applicant wife), Applicant 3 (their [age] year old daughter) and Applicant 4 (their young son).
Applicants 1, 2 and 3 first visited Australia, on visitor visas, for around six weeks in September-October 2015. They returned to Iran and in August 2017 were granted visitor visas to return to Australia. They re-entered Australia on[date] September 2017 and have not departed. They applied for the protection visas on 3 October 2017. Applicant 4 was born in Australia in 2019 and was validly added to his family’s application.
The applicants’ have consistently claimed that they have converted from Islam to Christianity and will be harmed for this reason if they are returned to Iran. At the Department stage, only Applicant 1 was invited to participate in an interview, but the family provided other written statements and documentary evidence relevant to all family members. The delegate who considered the family’s application refused the grant of visa on the basis of credibility concerns, as outlined in the decision of 23 August 2019.
The family lodged an application for the Tribunal’s review of the delegate’s decision on 12 September 2019, and in July 2024, their case was constituted to me, the presiding Member, for consideration and review.
In August 2024, the Tribunal received updated information and evidence from the applicants including written statements from themselves and several witnesses, legal submissions and country information and other documentary evidence. Then, on 4 September 2024, Applicants 1 and 2 appeared in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1925689 (Refugee)

Details

AGLC: 1925689 (Refugee) [2024] ARTA 619
Case: [2024] ARTA 619
Decision Date: 1 November 2024

CaseChat Overview and Summary

The applicants, a family of Iranian origin, have sought a protection visa from the Australian government, claiming persecution due to their religious conversion from Islam to Christianity, their support for women’s rights, and other personal characteristics. The case was heard before the Tribunal, which was required to determine whether the applicants met the criteria for refugee status under the Migration Act. The legal issues involved interpreting the definition of a refugee, assessing the credibility of the applicants’ claims, and determining whether their fears of persecution in Iran were well-founded.

The Tribunal found that the applicants were Iranian citizens with no right to enter or reside in any other country. It accepted the applicants' claims regarding their Iranian nationality and identified Iran as their receiving country for the purposes of the assessment. The Tribunal dismissed an allegation against Applicant 1, finding it unsubstantiated. The primary issue was whether the applicants had a well-founded fear of persecution in Iran based on their religious conversion, support for women’s rights, and other personal characteristics.

The Tribunal concluded that Applicants 2 and 3, in particular, faced a real chance of persecution in Iran due to their gender, non-adherence to Islamic practices, and political opinions. The Tribunal found their fear of persecution to be well-founded, as they would likely be targeted by Iranian authorities for their characteristics and actions. It also found Applicant 1 to be a refugee on religious grounds. The Tribunal determined that the applicants met the criteria for a protection visa under the Migration Act, as they were refugees owing to a well-founded fear of persecution.

The Tribunal set aside the decisions under review and remitted the applicants' protection visa applications for reconsideration. It found that each applicant satisfied the criterion of being a person in respect of whom Australia has protection obligations. The Tribunal’s decision was based on the credible evidence provided by the applicants and the country information regarding the situation in Iran.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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 about Iran 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.CLAIMS, EVIDENCE AND FINDINGS Iranian nationality The applicants claim to be Iranian citizens with no right to enter or reside elsewhere. They claim that Applicants 1 and 2 were born and lived in Tehran, Iran while Applicant 3 was born in [COUNTRY 1] and Applicant 4 was born in Australia. Applicant 4 has never lived in, or even been to, Iran. The Tribunal places weight on the documentary evidence which has been provided, as well as the biographical narratives and backgrounds in Iran as told by Applicants 1 and 2 which the Tribunal finds convincing, and their Farsi language skills which were apparent in the Applicant 1’s Departmental interview and their Tribunal hearing. While Applicants 3 and 4 were born outside Iran, the Tribunal notes that Iranian citizenship laws provide that children born to Iranian fathers generally acquire citizenship at birth regardless of where they were born[1] and there is no information suggesting the case would be otherwise for these applicants. The Tribunal accepts that Applicants 3 and 4 are Iranian citizens and so are their parents. [1] Australian Department of Foreign Affairs and Trade (DFAT), ‘DFAT Thematic Information Report - Faili Kurds in Iraq and Iran', Department of Foreign Affairs and Trade, 3 December 2014, CIS2F827D91722 The Tribunal accepts that the applicants’ identities and nationalities are as claimed. The Tribunal finds that Iran is their receiving country for the purpose of this assessment. No right to enter and reside in any other country: s 36(3) The Tribunal has considered whether any of the applicants have a right to enter and reside in any other countries. Applicant 1 previously lived in [Country 2] for 10 years from 1991 – 2001, but the evidence does not point to him having a permanent visa for [Country 2], or to having a current and existing right to re-enter and reside there. Nor does the evidence point to any of the applicants having a current and existing right to enter and reside in the [COUNTRY 1] (not even Applicant 3 who was born there), or any other countries. On the evidence, the Tribunal finds that the applicants do not have a right to enter and reside in any country apart from Iran. The Tribunal finds that s 36(3) does not apply in the circumstances of this case. Allegations There is an allegation on file about Applicant 1 having committed a crime in [Country 2], but the applicant has consistently denied it to the Department and the Tribunal. There is no evidence substantiating the allegation and in fact Applicant 1 provided the Department with a police clearance from [Country 2] which was current at the time of decision. In the circumstances, the Tribunal does not give this allegation any weight whatsoever. It disregards it completely.

Decision

Reasons for decision

Before the bill was passed into law, officials instructed the police not to wait for its approval, and to implement it immediately.[32] As a result, the authorities have imposed fines and closed numerous businesses, including cafes, restaurants, pharmacies, private doctors’ offices, travel agencies and private companies for not adhering to the mandatory hijab laws. Thousands of individual women also have been penalised for not wearing the hijab appropriately while travelling in a car with the penalties including among other things, the confiscation of cars and referral to the judiciary.[33] instances of attempted and violent arrests continued to be reported, against women and girls who have defied the mandatory hijab laws in public. In October 2023, a 16 year old girl died following an allegedly following an altercation for her failure to wear a hijab in a Tehran metro carriage.[34] Physical mistreatments and other harsh punishments such as being made to wash dead bodies and referral to psychiatric treatment have recently been imposed for non-compliance.[35]The State authorities have also publicly warned women and girls that they would be deprived of education and health if they were found in violation of the mandatory hijab laws and regulations.[36][32] UNHRC, ‘UNHRC Report of the Independent International Fact-finding Mission on the Islamic Republic of Iran - A/HRC/55/67 (2 February 2024)’, 2 February 2024[33]UNHRC, ‘UNHRC Report of the Independent International Fact-finding Mission on the Islamic Republic of Iran - A/HRC/55/67 (2 February 2024)’, 2 February 2024; DFAT Country Information Report: Iran’, Department of Foreign Affairs and Trade, 24 July 2023, 20230724110043; UNHRC, ‘UNHRC Report of the Special Rapporteur on the Situation of Human Rights in the Islamic Republic of Iran - A/HRC/55/62’ 9 February 2024[34] UNHRC, ‘UNHRC Report of the Special Rapporteur on the Situation of Human Rights in the Islamic Republic of Iran - A/HRC/55/62’ 9 February 2024[35] DFAT Country Information Report: Iran’, Department of Foreign Affairs and Trade, 24 July 2023, 20230724110043 [36]See (in Persian): >DFAT assesses that women perceived by the authorities to be pushing Iran’s moral boundaries face a high risk of official discrimination in the form of arrest, punishment and violence.[37] The Tribunal accepts given the accumulation of factors noted above specific to this family, that Applicants 2 and 3 would struggle to conform and either deliberately or inadvertently, push these moral boundaries. [37] DFAT Country Information Report: Iran’, Department of Foreign Affairs and Trade, 24 July 2023, 20230724110043 Having regard to the family’s social media posting as well, country information suggests that individuals who repeatedly post content critical of the regime, its institutions or policies or who are deemed to be pushing moral boundaries may attract adverse attention from the authorities, including individuals based abroad.[38] In recent years, people have been arrested and detained and many have been harmed in custody for online activities and postings on Instagram, Telegram and other social media platforms for ‘insulting the Prophet’, ‘connection with opposition groups’ and ‘insulting the police.’[39] UNHRC has also reported that Iranian authorities have recently threatened, intimidated, summoned and arrested persons in connection with protest-related content posted on social media platforms. Such content included messages of solidarity with protesters, reports of violations committed by the State, pictures posted by injured protesters and offers of legal and medical assistance for protesters and their families. The authorities have used social media content as evidence for criminal charges on various grounds, such as “propaganda against the system”, “spreading lies” and “insulting the Supreme Leader” and in such cases, the content of personal Instagram accounts has been used as evidence during criminal proceedings for charges that carried heavy punishments, including the death penalty.[40] [38] DFAT, ‘DFAT Country Information Report: Iran’, Department of Foreign Affairs and Trade, 24 July 2023, 20230724110043; Immigration and Refugee Board of Canada, 'IRN201321.E - Iran: Monitoring of Iranian citizens outside of Iran, including political opponents and Christians, by Iranian authorities; monitoring of Iranian citizens in Canada; consequences upon return to Iran (2021–March 2023)', 20230414091421 [39] United Nations General Assembly, 'Situation of human rights in the Islamic Republic of Iran (14 May 2021)', 14 May 2021, 20210624120211; Freedom House, 'Freedom on the Net 2023 - Iran', 4 October 2023, 20231005083514; Freedom House, ‘Freedom on the Net 2020 - Iran', Freedom House, 14 October 2020, 20201016084814 Huffington Post (US) ‘Iran Tightens Its Grasp on Telegram Use’, Huffington Post (United States), 6 June 2017, CXC9040669094; Center for Human Rights in Iran (United States), ‘Three Young Iranian Men to Serve 12 Years in Prison For 'Insulting' Social Media Posts’, 28 April 2017, CXC9040666693; International Campaign for Human Rights in Iran (United States), ‘Security Agencies and the Prosecution of Online Activists’, 11 November 2014, CX1B9ECAB9307; [40] UNHRC, ‘UNHRC Report of the Special Rapporteur on the Situation of Human Rights in the Islamic Republic of Iran - A/HRC/55/62’ 9 February 2024; UNHRC, ‘UNHRC Report of the Independent International Fact-finding Mission on the Islamic Republic of Iran - A/HRC/55/67 (2 February 2024)’, 2 February 2024The Tribunal notes Applicant 1’s participation in the Women, Life, Freedom movement and other demonstrations, and his opinions as to the treatment of women and girls in Iran and his support and fears for his wife and daughter. However, the Tribunal is of the view that he himself would be of lesser interest to the authorities for these reasons and it is questionable whether he would be targeted in Iran for such things. The Tribunal has doubts about whether he would face a real chance of persecution for these reasons. However, as above, the Tribunal has found him to be a refugee on religious grounds. Similarly, while the Tribunal does not consider Applicant 4 would face risks arising from gendered or politically related claims, he has also been found above to be a refugee as a member of a Christian convert family. As for Applicants 2 and 3, the Tribunal accepts they would struggle to conform to the legal expectations and social and religious norms and that they would either deliberately or inadvertently, push the moral boundaries to which DFAT and the other country information refer. The Tribunal accepts that in doing so, and noting their evidenced feelings against the regime, their seven year stay in Australia where they have grown accustomed to free expression and association and non-conservative dress and particularly Applicant 3’s Persian language skills have waned, along with her memories of Islamic culture and rules, the Tribunal considers there may be more than a remote chance that Applicants 2 and 3 will come to the adverse attention of the Iranian authorities for one or a combination of these reasons. Should that happen, the Tribunal accepts they would face a real chance of being harassed and arrested or otherwise detained and deprived of their liberty. During such detention too, the Tribunal accepts there would be a real chance of them being subjected to significant physical harassment or ill-treatment or other harms that would amount to serious harm. The Tribunal is satisfied this real chance would arise because of their gender and/or their gender combined their non-adherence to Islam and/or their faith and their actual political opinion, all of which is exacerbated by their westernised mannerisms. The Tribunal is satisfied that various iterations of these such profiles satisfy the definition in s 5L(a), (b) and (c) and that s 5L(d) does not apply. The Tribunal finds that their gender and/or their gender combined with these other reasons are equally the essential and significant reasons for the persecution, as required by s 5J(4)(a) and that the persecution involves serious harm, as required by.s5J(4)(b) and systematic and discriminatory conduct, as required by s5J(4)(c), as it is targeted toward members of the group or persons with the applicants’ profiles and is non-random. As above, the Tribunal is satisfied that the Iranian regime and authorities exercise effective control over almost all areas of the country, and as the harm feared by the applicants would be inflicted by the authorities or condoned by them, the Tribunal finds that effective protection measures are not available to the applicants and that the real chance of harm relates to all areas of Iran. Given the real chance of harm arises as a consequence of Applicant 2 and 3’s gender and characteristics or convictions that the Tribunal considers are now fundamental to their identity, and out of their true political beliefs and past actions, the Tribunal does not consider there are any reasonable steps the applicants could take to modify their behaviour so as to avoid a real chance of harm. The Tribunal is satisfied that Applicant 2’s and Applicant 3’s fear of persecution on these bases is well-founded. On this basis as well as their religious grounds, they are refugees within the meaning of s 5H(1) of the Act. CONCLUSIONSFor the reasons given above, the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s 36(2)(a).For the reasons given above, the Tribunal finds that s 36(3) does not apply in the circumstances of this case.DECISIONThe Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that· each of the applicants meets s 36(2)(a) of the Migration Act.General Member J McLeodDate(s) of hearing: 4 September 2024Representative for the Applicant: Ms Eliza ConsidineATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…Article 18, ‘Three Christian women held incommunicado for 40 days face court hearing on unknown charges’, 30 June 2023, 20230707110316; Asia News IT, ‘Three Christian women arrested without charges to go on trial in Iran’, 1 July 2023, 20230707110732; Article 18, Open Doors, Middle East Concern, Christian Solidarity Worldwide, ‘Faceless Victims: Rights Violations Against Christians in Iran 2024 Annual Report', 19 February 2024, 20240220112824; , Article 18, ‘Christian convert baptised in Malaysia given prison sentence on return to Iran’, 26 March 2024,20240328150945; Article 18, ‘Christian convert released on bail of nearly $40,000’, 27 February 2024, 20240806115639; Article 18, ‘House-church member charged with ‘making false religious claims’’, Article 18, 4 March 2024,20240806123017 Iran Wire, ‘Iran’s Guardian Council approves ‘Hijab-Chastity’ bill’, 18 September 2024, 19 (United Kingdom), ‘Tightening the Net: Online freedoms in Iran following Rouhani’s reelection’, 17 July 2017, CISEDB50AD4882; Agence France Presse (France), ‘Iran rounds up 450 social media users for 'immoral activities'’, 23 August 2016, CX6A26A6E8281

Ratio Decidendi

Legal Principle Established

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.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 about Iran 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.CLAIMS, EVIDENCE AND FINDINGS Iranian nationality The applicants claim to be Iranian citizens with no right to enter or reside elsewhere. They claim that Applicants 1 and 2 were born and lived in Tehran, Iran while Applicant 3 was born in [COUNTRY 1] and Applicant 4 was born in Australia. Applicant 4 has never lived in, or even been to, Iran. The Tribunal places weight on the documentary evidence which has been provided, as well as the biographical narratives and backgrounds in Iran as told by Applicants 1 and 2 which the Tribunal finds convincing, and their Farsi language skills which were apparent in the Applicant 1’s Departmental interview and their Tribunal hearing. While Applicants 3 and 4 were born outside Iran, the Tribunal notes that Iranian citizenship laws provide that children born to Iranian fathers generally acquire citizenship at birth regardless of where they were born[1] and there is no information suggesting the case would be otherwise for these applicants. The Tribunal accepts that Applicants 3 and 4 are Iranian citizens and so are their parents. [1] Australian Department of Foreign Affairs and Trade (DFAT), ‘DFAT Thematic Information Report - Faili Kurds in Iraq and Iran', Department of Foreign Affairs and Trade, 3 December 2014, CIS2F827D91722 The Tribunal accepts that the applicants’ identities and nationalities are as claimed. The Tribunal finds that Iran is their receiving country for the purpose of this assessment. No right to enter and reside in any other country: s 36(3) The Tribunal has considered whether any of the applicants have a right to enter and reside in any other countries. Applicant 1 previously lived in [Country 2] for 10 years from 1991 – 2001, but the evidence does not point to him having a permanent visa for [Country 2], or to having a current and existing right to re-enter and reside there. Nor does the evidence point to any of the applicants having a current and existing right to enter and reside in the [COUNTRY 1] (not even Applicant 3 who was born there), or any other countries.