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

1. 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).

2. 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).

3. 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.

4. 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.

5. 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.

6. 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 a hearing before the Tribunal, accompanied by their representative and four senior members of their church who appeared as witnesses and gave oral evidence. The hearing was conducted with the assistance of an interpreter in the Persian and English languages.

   Transition to the Administrative Review Tribunal

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

   RELEVANT CRITERIA AND MANDATORY CONSIDERATIONS

   Criteria for protection visa

8. 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.

9. 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).

10. 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

11. 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

12. The applicants claim to be Iranian citizens with no right to enter or reside elsewhere.

13. 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.

14. 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.

15. 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

16. 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)

17. 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.

18. 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

19. 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.

20. There is also a separate allegation from an identified source in 2017 who claims to have known Applicants 1 and 2 for several years. The allegation claims that the applicants are wealthy and very religiously Islamic and have no religious or political issues with the Iranian government. It alleges they are only pretending to have converted to Christianity and that their claims for protection are false. The Tribunal notes that false conversion claims do arise in Australia’s asylum caseload but having reviewed all the applicants’ material and personally met and talked with them and members of their church, the Tribunal has formed the view that the author does not know the applicants’ genuine circumstances. As with the allegation above, the Tribunal disregards this allegation and gives it no weight.

    Protection claims and evidence

21. The applicants claim to fear harm from the Iranian authorities, certain members of their extended family, religious groups and supporters of the current regime, who they believe will target them because of their religious conversion and commitment to Christianity, their protest activity against the Iranian regime while in Australia, Applicant 2 and Applicant 3’s statuses as Iranian women/girls who reject Islamic dress codes, and as returnees from a western country who sought asylum.

    Religious claims – Applicants’ conversions from Islam to Christianity

22. The applicants claim they have converted from Islam to Christianity and believe they would be arrested and harmed if they tried to practise their religious beliefs in Iran.

23. Applicants 1 and 2 claim they were both born into Muslim families and had an Islamic upbringing, but that they both became disillusioned with Islam and the Islamic regime - for separate as well as shared reasons.

    -For Applicant 1, these included experiences relating to Applicant 1’s religiously conservative father’s side of the family and restrictions on his mother’s freedoms, being reprimanded at school for not praying, the politically motivated execution of his mother’s cousin in the 1980s, a Basij raid on his mixed-gender farewell gathering before going to [Country 2], his paternal relatives’ disapproval and interference with his engagement to his ex-fiancé and being interrogated and detained by Basij who accosted him with his ex-fiancé in 2001.

    -Applicant 2’s reasons included her exposure from a young age to the oppressive nature of life for women in Iran. Her family (particularly her paternal uncles) were conversative Muslims and influenced her parents’ raising of her and her sister, including forcing her to wear the hijab from the age of [age], making her always wear loose fitting clothing in full hijab and staying silent at any mixed-gender gatherings. She resented the religious practises such as daily prayer and fasting. She developed a deep hatred for Islamic rules and beliefs at age [age] when her school friend was gruesomely murdered by her husband for not wearing hijab correctly, and he went uncharged with any crime. At university she was reprimanded by the school’s morality department for wearing make-up and was forced to present in front of a Mullah. While out with her husband in 2004, the morality police accosted her for having her overcoat open.  

    -Applicants 1 and 2 also both referred to being denied entry to a medical clinic when Applicant 3 was very young and ill, due to her not wearing hijab, even though she was not yet of age. This, they said made them worry about their daughter’s future growing up in Iran.

24. Both were also influenced by key people in their lives who were Christians. For Applicant 1, this included ‘V’, a fatherly figure and [Country 3] Christian whose [shop] he worked in after leaving school in [a year], and his ex-fiancé ‘P’ a [Christian] woman he met during his decade living in [Country 2]. Applicant 2 was exposed to Christianity through an [Country 3] Christian friend at university. These people influenced their thinking through their behaviours and attitudes and Applicant 1 attended church with P a few times in [Country 2].

25. However, it was a Christian convert couple they met in Iran, ‘IM’ and his wife, in 2015 that properly taught them about Christianity and introduced them to the house church scene. IM had helped Applicant 2 [and] the couples became friends. When Applicant 2’s sister was in hospital, believed to be dying in March 2015, IM and his wife visited the hospital and prayed for Jesus to save her. The applicants felt calmed by this and in desperation to save her sister, Applicant 2 joined with them in prayer. Their prayers were answered; Applicant 2’s sister recovered, and the applicants were deeply moved by this experience, which they believe to be a miracle. Following this, IM and his wife gave the applicants Christian books and CDs and continued to support their exploration of Christianity. In June 2015, they introduced the applicants to a house church in Tehran, where they were warmly welcomed and supported to deepen their engagement with Christianity. Understanding the risks, the applicants continued to attend and on 15 June 2015, they announced their inner conversion at one of these gatherings.

26. Later that year, the applicants travelled to Australia to visit Applicant 2’s brother and sister-in-law ‘M’ here. They visited two churches on their visit, one in Melbourne and one in Sydney. They continued attending their house church gatherings after returning to Iran. At this time Applicant 3 was still young and fearing she might disclose something about it at school or elsewhere, they did not take her along. They also exercised other precautions such as turning off the mobile phones and being careful in their travels and following rules expected of everyone in the group including ensuring no one recorded the sessions, and not referring to certain things when communicating with others via phone/web.

27. They were encouraged to evangelise online through social media. Applicant 1 also started a web blog [with] the help of another person in the group ‘B’. The applicants created a weblog called ‘[name]’ and worked to collect useful, educational information to attract people to Christianity. After several months, they expanded to social media [and] email. At times, they would speak to people in-person about Christianity when they felt safe, but they felt safer, and like they were able to reach more people online. Around this time, Applicant 2’s sister-in-law M (who had been in Australia) came to Iran and as she was also exploring Christianity and attending church in Australia, the applicants introduced her to their house church.  

28. In July 2017, they learned through their group that 13 members of the group including IM and three others they knew closely, had been arrested. They suspended their religious sessions and avoided their blog site after this and heard no more about their friends. The applicants tried to busy themselves with life, though they were worried as they heard from a friend that their weblog had been filtered. The applicants were worried and stressed. They fled to Applicant 1’s mother’s house in Karaj and then decided to leave Iran for a while. They came to Australia, along with M.

29. After arriving in Australia, Applicant 1’s mother advised them that on 16 September 2017, their home in Tehran was raided and searched by the police guards. Their landlord (who lived in the same building) was present and he witnessed them taking a laptop, some handouts about Christianity, some CDs and a bible. The applicants had had these things at home to distribute at meetings and they had left them hidden at home as they had rushed to leave the house. The police also called and threatened Applicant 1’s mother, who denied to them knowing anything about his whereabouts.

30. The applicants started attending the [Church 1] in early September 2017. It was close to where they moved in Australia and was a church they already knew through M who had attended the church during her previous stay in Australia. They requested that they finally be baptised, and this was carried out for Applicants 1 and 2 on 24 September 2017, for Applicant 3 in April 2018 and for Applicant 4 in 2020.

31. They have been active members of the church for the past seven years, attending weekly Sunday services and participating in weekly bible classes, and willingly volunteering for church activities and roles. Their commitment and understanding has especially deepened since 2022 when two Persian speaking Reverends joined the Church Ministry. The applicants are currently completing a 12 week course ahead of their confirmations in November 2024. They have hosted bible studies and church gatherings at their home. Applicant 1 painted sections of the church in 2018-19 and 2021 and serves with Applicant 2 on the refreshments committee for Sunday morning teas. Applicant 2 also leads the church playgroup and Applicant 3 is an assistant leader.

32. The applicants also embrace Christian practices in their daily lives. They pray and read the bible together as a family. The applicants are deeply committed to their faith and they promote the church and faith to others in the community.

33. With regard to what they would do on return, the applicants claim they would also promote Christianity to others in Iran, through continuing the web blog and talking directly to people despite the risks. In support of this, they have pointed to their similar activities in Australia. Applicant 1 has twice introduced friends to the church and invited several others. He also continues to run his web blog, which has attracted over 20,000 views. He also posts Christian material on his [social media] page and has had people reach out to him to learn about Christianity this way. Applicant 2 lead a Bible passage reading in Farsi at [a church], for the celebration of Persian New Year and the launch of the Church’s new Persian Ministry within her church, with the hope that it would attract more Farsi speakers to the faith. Some audience members recorded her passage.

34. The applicants state that they don’t have much information about their arrested group members, but they have seen and provided a screenshot of IM’s photo circulated on an Iranian Christian [social media] group identifying him as someone imprisoned. They have not been able to find out any further updates.

35. In advancing these claims and in support of them, the applicants have provided large amounts of information to the Department and the Tribunal including:

    -written statements from Applicants 1, 2, and 3 (in 2017, 2018 and 2024) as well as oral evidence from Applicants 1 and 2 detailing their histories and experiences;

    -certificates of baptism from [Church 1] showing Applicants 1 and 2 were baptised just after their arrival, in September 2017, and that Applicant 3 was baptised in 2018 and Applicant 4 in 2020.

    -written witness statements including numerous letters written in 2018 and 2024 from members of the congregation and senior leadership of the [Church 1] in Australia.

    -oral witness evidence from four leaders of the Church.

    -evidence of Applicant 1’s web blog being in operation since 2017, and threatening comments posted to his blog site.

    -photographs and evidence of their social media and other activities in Australia related to their faith, promoting Christianity;

    -legal submissions; and

    -country information (both general and specific including reports regarding arrested members of the applicant’s house church group in Iran, as well as information about the treatment of Christian converts).

1. Of its own accord the Tribunal has also viewed videos of services and other videos featuring members of the congregation (including the applicants) on the Church’s YouTube channel.

   Consideration and findings

2. At the primary stage, only Applicant 1 was invited to participate in an interview, and a finding was only made in relation to his claims. In their decision, the delegate remarked of Applicant 1 that his oral evidence was consistent with his written claims and acknowledged his extensive engagement with the church in Australia and the support letters from members of the congregation. Nevertheless, the delegate had concerns. Chief among them was that the delegate considered it implausible that Applicant 1 returned to Iran from Australia in2015 when he had already converted to Christianity, and that he was able to hide from the authorities for a month  and depart through Tehran airport undetected in 2017. The delegate ultimately did not accept Applicant 1’s convictions for Christianity was genuine. They disregarded Applicant 1’s conduct in Australia pursuant to s 5J(6) and found that he would not seek to practise Christianity in Iran or be of interest to the authorities for any reason.

3. The Tribunal has considered all the information carefully. The applicants’ claims and evidence regarding their Christian conversions have remained consistent throughout the primary process and review. While the delegate had several other concerns about Applicant 1’s evidence the Tribunal is mindful that applicants had only been in Australia for around a year when Applicant 1 was interviewed by the delegate and the supporting information was provided, and the personal perspectives of Applicants 2 and 3 were not invited or advanced at that time and nor was any oral evidence taken by any witnesses. 

4. The Tribunal however has the benefit of considering a further five years of evidence than was given to the delegate and all the material that and oral evidence that has been advanced as part of the review. This includes multiple further statutory declarations from Applicant 1 as well as written statements from Applicants 2 and 3. It includes quality submissions from their representative and evidence taken in a hearing in which the Tribunal questioned and spoke for a considerable time with Applicants 1 and 2. It also includes the evidence of Applicant 2’s sister-in-law M in Australia whose case was remitted by a differently constituted Tribunal on the basis of her own Christian conversion and engagement with this church. Notably too, the sister-in-law’s evidence corroborates the applicants’ claims about their introducing her to the house church scene in Tehran, the arrests of their fellow house church members, and their departures from Iran.

5. The Tribunal has also considered the written witness statements spanning from 2018 to 2024 attesting to the family’s baptisms, their active participation in church services including the children’s services and activities, their completion of relevant courses within the Church, their volunteerism within the church and their active roles in supporting the expansion of Farsi resources and outreach to other Iranian Christians. The Tribunal also heard direct evidence and had the benefit of questioning four witnesses including a long serving member of their church and three of the Reverends from their church including the Senior Minister, and the two Assistant Curates of Persian background one of whom came from a house church background in Iran. In summary, the witnesses all attest to knowing the applicants for between two and a half and seven years and their evidence supports that the applicants are committed members of the [Church 1] who lead open, honest and authentic Christian lives.

6. The witness evidence and the other documentary evidence supports that the applicants have welcomed the Church leadership and other congregation members into their home, hosting bible studies and other events and been frequent guests at each other’s as well. The Reverends all spoke of the applicants’ influence on the church and their openness sharing their beliefs and engaging in meaningful spiritual discourse together. They said the family follow on their own accord, the church’s bible reading program more closely any anyone else and engage in discussions with the leadership and others about it – both in-person and in their message chat groups. They are preparing for their confirmation in November along with many other members of the church. They have been instrumental in the Church’s expansion of their Iranian Ministry and their outreach to other Iranians. They have introduced new people to the church. They volunteer in various capacities including with the morning tea roster, holiday program, and Applicants 2 and 3 are leader and assistant leader in the Church’s playgroup. Applicant 2 led prayers at the Persian New Year service in the city and the applicants have also led various other prayers at times in the usual services.

7. Of its own accord in the lead up to the hearing, the Tribunal also familiarised itself with the church’s online materials and viewed a recent sermon. In that sermon, a member of the congregation asked the attendees to pray for and wish the applicants (whom they mentioned by name) well in their upcoming Tribunal hearing. The Tribunal also viewed other videos on the Church’s [Channel] which feature Applicants 1 and 2 speaking openly about their experiences within the church.

8. All this additional information and evidence serves to provide additional and updated information and context to the information that was provided to the delegate, and it also all goes a large way to addressing the delegate’s stated concerns adding weight to the applicants’ credibility as to their religious conversion claims. Additionally, there are new claims before the Tribunal arising out of the applicants’ protest participation in Australia following a change in the situation in Iran from 2022 onwards and their related claims about women’s treatment and freedoms. That Applicant 3 is now a [age] year old adolescent or young woman who has spent her formative years in Australia with the freedom of clothing choice and engagement with the Women Life Freedom movement, and that Applicant 4 is a [age] year old who has only been exposed to Christianity and an Australia (and therefore Western) community also sets the applicants’ circumstances apart from the circumstances considered by the delegate in 2018-19.

9. There are some aspects of the applicants’ evidence related to their claimed experiences in Iran which cause the Tribunal concern.

   -The Tribunal has some concerns with the plausibility of the applicants leaving their laptop and incriminating Christian materials behind in their house regardless of the hurry they were in to leave. The applicants said at hearing that they fled from their house in the early morning after hearing about the other arrests and the materials were scattered in different places around the house. They were rushed and stressed, and they left things behind. The Tribunal has considered this, but the applicants otherwise referred to the precautions they took to avoid detection by the authorities (including with regard to attending the house church gatherings and with regard to only evangelising online) and it is difficult to believe they had physical Christian materials and that they were not careful with a plan to ensure they took any incriminating materials with them. 

   -The Tribunal also has some concerns about the plausibility of the authorities not appearing to investigate the applicants until after they left the country in September 2017 when 13 members of their house church group had been arrested in July 2017. The applicants have not explained the time gap between the authorities arresting their fellow house church goers in July but not raiding their house until September, although they referred to their efforts to busy themselves, and stay at Applicant 1’s mother’s house in Karaj. The Tribunal also notes the applicants have not provided any official or independent documentation evidencing the authorities’ raid on their home or the harassment of Applicant 1’s mother.

10. However, the Tribunal does not share the delegate’s other concerns. It accepts the applicants’ evidence about their exploration of faith and their journey towards Christianity, that they attended house church gatherings in Iran and introduced Applicant 2’s sister-in-law to the scene, and that the sister-in-law in turn introduced them to the [Church 1] in Australia. The applicants’ evidence about such matters has been consistent, detailed, plausible and compelling and to the extent that the sister-in-law’s evidence is relevant, it also corroborates their claims. The applicants’ evidence about their long-term commitment and engagement with the Church has also been compelling and is supported by material the Tribunal has viewed relating to the Church online, and the evidence of many witnesses. 

11. The Tribunal accepts that Applicants 1, 2 and 3 have converted to Christianity and that Applicant 4 was born into a family of Christian converts. The Tribunal accepts that Applicants 1 and 2 started practising Christianity in Iran in 2015 and were engaged in a house church group in Tehran. It accepts they personally know people who were arrested in July 2017, placing weight on their evidence as told, news articles naming the people and photographs of Applicant 1 with one of them. It accepts too that the applicants have been active, committed members of the [Church 1] since their arrival in 2017.

12. Given Applicant 1 and Applicant 2’s influences and their past activities in Iran which are accepted by the Tribunal, that their sister-in-law had already previously lived in the area where they settled and had been a member of this Church, and that they have shown themselves to have been committed, long term and active members of the Church who practise their faith at home and in the raising of their children, the Tribunal does not share the delegate’s concern about their swift joining of the church and being baptised for the purpose of their visa application, and nor does it have concerns that any of the religious or church related activities in their subsequent seven years in Australia have been undertaken for the purpose of strengthening their refugee claims.

13. As for Applicants 3 and 4, the Tribunal accepts that Applicant 3 was just [age] years old when she arrived in Australia and that Applicants 1 and 2 have been raising her to be Christian since their arrival (whereas they were worried that as a young child she may not act discreetly about it in Iran) and that Applicant 4 has been raised as a Christian since his birth. Applicant 3 has given her own written statement about remembering her aunty’s recovery which she regards as a miracle, how she felt growing up and fearing God and religion in Iran and the contrast with her religious experiences in Australia, where she attends church and engages in the youth bible studies and assists in the Kids’ Ministry. The Tribunal accepts that Applicants 3 and 4 would have little to no knowledge of Islam and are being raised to be Christians, practising Christian rituals at home, as well as in the Church environment. As such, the Tribunal finds that although Applicant 4 was born into the faith, he is a practising Christian and he may be perceived as a member of a convert family, along with the other applicants. The Tribunal does not have any concerns about Applicants 3 or 4 engaging in Christianity or the Church to for the purpose of strengthening their claims to be refugees. The Tribunal is satisfied that the applicants are all genuine Christian believers and practitioners engaged in Christianity otherwise than for the purpose of strengthening their claims to be refugees.

14. Applicants 1 and 2 claim that if they are forced to return to Iran, they will continue practising Christianity and raising their children to too. The Tribunal has considered that some aspects of their faith can be practised privately and discreetly, such as prayers and bible readings and discussions amongst themselves and with trusted persons. However, the Tribunal accepts the applicants’ convictions for their faith and that they have demonstrated a commitment to finding ways to share and promote it, including by talking with people and physically bringing them along to meetings (as they have done here and in Iran), through Applicant 1’s web blog and [social media] page and other social media avenues. The Tribunal accepts that communal practice and openness with others is meaningful to them. It accepts that if the applicants were to return to Iran, they would want to engage in communal worship, openly share their beliefs and to openly raise their children with Christian beliefs and practising Christianity. It accepts that they would seek out and join another house church group and that they would evangelise online, and very cautiously in person as well. The Tribunal accepts from Applicant 3’s statement that and the oral evidence given about her at the hearing that she would also want to continue to openly practise Christianity. It considers that under the influence of his family, Applicant 4 would continue to practise as well.

15. In assessing what would happen to the applicants on return, the Tribunal has considered credible country information reports from a range of sources including DFAT, the United States (US) Department of State and the United States’ International Commission for Religious Freedom, as well as reporting cited by the applicants’ representative, and many other sources. Relevantly too, the Tribunal accepts the representative’s submission that the Tribunal’s reasoning as previously applied in 2103091 (Refugee) [2024] AATA 2174 (22 March 2024) in which applicants were remitted by myself, based on similar facts and circumstances to the present applicants should be followed in the present case. As such, although it is carefully applied and adapted to the present applicants’ circumstances and updated for currency, portions of the below discussion and analysis are drawn from that previous decision.

16. While Iran is a Muslim majority country governed by an Islamic regime, communities of Christians, Zoroastrians and Jews also reside there and are recognised religious minorities under Iran’s constitution. Estimates of recognised Christians vary from around 117, 700 to up to a million.[2] The majority of Christians are ethnic Armenian and Assyrian. Chaldean and Roman Catholic communities also exist in small numbers. [3] However, DFAT notes that such recognition does not necessarily equate to tolerance. Protestant churches are not legal and only those born into, and who are members of, those recognised religious groups (not converts like the applicants) may practise their faith.[4] The applicants have come to Christianity through conversion and such religious conversion has not been recognised since the 1979 Iranian revolution, including when the conversion occurs outside of Iran. A person who claims to be Christian and who cannot prove that their family was Christian before 1979, would be considered Muslim by the government and thus subject to apostasy laws.[5] This, therefore is the case for the applicants who were Muslims until they converted in 2015 (and were baptised in 2017), 2018 and until Applicant 4’s baptism in 2020. They will not be allowed to join a recognised church and nor would they be welcome or permitted to practise with a recognised group. Security officials closely monitor registered churches and their congregations 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.[6]

    [2]Article 13, National Legislative Bodies, National Legislative Bodies, 'Constitution of the Islamic Republic of Iran', 1 October 1979, CIS19806; DFAT, ‘DFAT Country Information Report: Iran’, 24 July 2023, 20230724110043​

    [3] DFAT, ‘DFAT Country Information Report: Iran’, 24 July 2023, 20230724110043​

    [4] DFAT, ‘DFAT Country Information Report: Iran’, 24 July 2023, 20230724110043​; United States (US) Department of State, ‘2022 Report on International Religious Freedom: Iran’, 15 May 2023, 20230516090011

    [5] DFAT, ‘DFAT Country Information Report: Iran’, 24 July 2023, 20230724110043​

    [6] 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

17. Iranian Christians who are not members of recognised churches generally practise in secret and illegal underground ‘house churches’ involving small, informal gatherings of close family and friends engaging in communal prayer, bible studies and worship.[7] Numbers of house church adherents are not known due to their secrecy, but they are said to be growing. Authorities interpret the growth in house churches as a threat to national security: official reports and the media have characterised house churches as ‘illegal networks’ and ‘Zionist propaganda institutions and the authorities periodically carry out raids against them.[8] Congregants regularly change houses to avoid detection. Raids focus particularly on house churches that actively proselytise or seek out new members. Many raids result from tip-offs from Muslim neighbours, but some sources also report that the government sends people posing as converts to infiltrate house churches.

    [7] DFAT, ‘DFAT Country Information Report: Iran’, 24 July 2023, 20230724110043​

    [8] United States Commission on International Religious Freedom (USCIRF), Religious Propaganda in Iran', July 2022, 20220727100834; United States (US) Department of State, ‘2022 Report on International Religious Freedom: Iran’, 15 May 2023, 20230516090011; DFAT, ‘DFAT Country Information Report: Iran’, 24 July 2023, 20230724110043​

18. Accepting as the Tribunal does, the applicants’ strong commitment and that they would want to engage in communal Christian worship and practise, the Tribunal accepts that their only apparent option would be to seek to immerse themselves in an unrecognised Christian group, which it accepts may involve seeking out members from their old house church and/or finding and joining another existing house church. Several members of their old house church were arrested and there is nothing in the evidence to suggest that the applicants know any Christians in Iran (recognised or unrecognised) who were not part of their own house church that became known to the authorities. The Tribunal accepts that the act of seeking out a new house church or seeking out any remaining members from their old house church would necessarily involve exposure to some added risk. The Tribunal accepts that in seeking out others to practise with, there is a real chance the applicants will come to the adverse attention of the Iranian authorities. The Tribunal notes as well, that Applicants 1 and 2 previously kept their Christian practise in Iran secret even from Applicant 3 in fear of her leaking their secret at school (as she was still young then), and as Applicant 2 herself mentioned, Applicant 4 is very young and would not understand the risks. The Tribunal accepts that relying on him to act discreetly even if the applicants were comfortable with that, may simply (because of his young age and comprehension of the different rules in Iran), be unrealistic, and thus add to the risk of exposure for the entire family.  

19. If the applicants’ conversions and Christian practises were discovered, their conversions would not be recognised and they will be subject to apostasy laws and face the risk of arrest, detention and prosecution.[9] Apostasy is not specifically codified as a crime in Iran, but it is nonetheless a crime under Sharia law, which is enforceable under the Constitution. DFAT emphasises that while neither prison nor the death penalty are common punishments (in fact, various sources indicate the death penalty is rare)[10], they are both possible under apostasy laws and if imprisoned, the sentence can be years or decades long.[11] Other potential punishments include a period of internal exile or being banned from leaving Iran for a period of time.[12]

    [9] Immigration and Refugee Board of Canada, ‘IRN200458.E - Iran: Situation and treatment of Christians by society and the authorities (2017-February 2021)', 9 March 2021, 20210330090142; Amnesty International, ‘Amnesty International Report 2022/23: The state of the world’s human rights',  27 March 2023, 20230328142801; United States Commission on International Religious Freedom (USCIRF), 'United States Commission on International Religious Freedom Annual Report 2023', 1 May 2023, 20230502165921;  Article 18, Middle East Concern, Open Doors, Christian Solidarity Worldwide, '2023 Annual Report: Rights Violations Against Christians in Iran', 19 February 2023, 20230622154640; DFAT, 'DFAT Country Information Report - Iran',  24 July 2023, 20230724110043

    [10] 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

    [11] DFAT, ‘DFAT Country Information Report: Iran’, 24 July 2023, 20230724110043​

    [12] European Union Agency for Asylum (EUAA), ‘People convicted with religious offences’, 8 February 2023, 20230209092031; Amnesty International, 'Amnesty International Report 2022/23: The state of the world’s human rights', 27 March 2023, 20230328142801

1. While convictions solely for apostasy are very rare, converts can be also charged under national security laws, or, following amendments to the Iranian Penal Code in February 2021, for ‘divine religions or Islamic schools of thought’ (Article 499) and committing ‘deviant educational or proselytising activity that contradicts or interferes with the sacred law of Islam’ (Article 500).[13] Arrests and prosecution of Christian coverts have been occurring in recent years, including in 2021, 2022 and 2023. According to a joint report by four Christian advocacy groups, in 2021 there were 59 arrests of Christians and in 2022, 134 Christians were arrested and 30 others were serving prison sentences.[14] Most of the 2022 prosecutions reported occurred under Article 500.[15] Some converts were released on bail, but with charges remaining in place.[16] Several more arrests were made in 2023 and a few arrests have also been reported in 2024.[17] The exact number of arrests and convictions is unknown as many cases are not made public or are unreported.[18] More broadly, according to the UN Special Rapporteur on Human Rights in Iran, the number of converts imprisoned at any time in recent years has varied from between a few dozen to around 100.[19] Sources also report that there is a lack of due process surrounding the arrest and detention of Christians. They are unlikely to have adequate legal defence and are likely to be convicted.[20]

   [13]US Department of State, ‘2022 Report on International Religious Freedom: Iran’, 15 May 2023, 20230516090011; Article 18, Middle East Concern, Open Doors, Christian Solidarity Worldwide, '2023 Annual Report: Rights Violations Against Christians in Iran', 19 February 2023, 20230622154640; 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

   [14]Article 18, Open Doors, Middle East Concern, Christian Solidarity Worldwide, 'Rights Violations Against Christians in Iran - Annual Report 2021', 25 January 2022, 20220127091848; Article 18, Middle East Concern, Open Doors, Christian Solidarity Worldwide, '2023 Annual Report: Rights Violations Against Christians in Iran', 19 February 2023, 20230622154640

   [15] '2023 Annual Report: Rights Violations Against Christians in Iran', Article 18, Middle East Concern, Open Doors, Christian Solidarity Worldwide, 19 February 2023, p.3, 20230622154640; European Union Agency for Asylum (EUAA), 'EUAA COI Query Response - Iran - Situation of atheists and non-religious individuals, including legislation, treatment by state actors and society, availability of state protection', 17 November 2023, 20231121091002

   [16] European Union Agency for Asylum (EUAA), 'EUAA COI Query Response - Iran - Situation of atheists and non-religious individuals, including legislation, treatment by state actors and society, availability of state protection', 17 November 2023, 20231121091002

   [17]Article 18, ‘Over 50 Christians in five cities arrested in new crackdown’, 18 July 2023, 20230727103645; Premier Christian News, ‘At least 51 Christian converts arrested in Iran in state security clampdown’, 20 July 2023, 20230727121344; Article 18, ‘Convert flogged for second time, now faces exile’, 27 June 2023, 20230707141217; Article 18, ‘#Place2Worship campaigner released after nearly five years in prison’, 9 February 2023, 20230707141323;

   [18]Article 18, Open Doors, Middle East Concern, Christian Solidarity Worldwide, 'Rights Violations Against Christians in Iran - Annual Report 2021', 25 January 202220220127091848

   [19] Landinfo - Norwegian Country of Origin Information Centre, 'Iran: Christian converts and house churches (2) - arrests and prosecutions'29 November 2017, p.13, CISEDB50AD8641

   [20] Immigration and Refugee Board of Canada, 'IRN200458.E - Iran: Situation and treatment of Christians by society and the authorities (2017-February 2021)', 9 March 2021, 20210330090142; The Christians in Parliament All Party Parliamentary Group and the All Party Parliamentary Group for International Freedom of Religion or Belief,  'The Persecution of Christians in Iran', 1 March 2015, CISEC96CF1343

2. DFAT’s in-country sources have advised that returnees who have not had a profile previously (for example through political activism or previous religious conversion 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. The Tribunal accepts, however, that for the applicants, there are several other various factors which may affect their profile on return. This includes that Applicants 1 and 2 were previously involved in a house church which was targeted by the authorities and notwithstanding that the Tribunal has some concerns about the timing of the claimed house raid and about the materials left behind, it is possible that given the arrest and detention of the other members, they may be known to the authorities by now. It also includes Applicant 1’s web blog and the family’s social media activities and their participation in the Women, Life, Freedom movement in Australia involvement in protests in Australia (evidence of which has appeared on news sites) and their 7+ year stay in Australia adopting western and Christian lifestyles.

3. DFAT assesses that Christians found to be proselytising face a high risk of arrest, prosecution and imprisonment and Applicants 1 and 2 have demonstrated their desire to introduce new members to their church in Australia, and the house church in Iran, and to spread Christian messages through their web blog, social media and other means. The Tribunal accepts they would make an effort to cautiously evangelise on return. DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed (something the applicants would face a higher risk of due to their evangelism) and that they 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. The UNHRC and Special Rapporteur have also referred to there being inherent gender discrimination at all institutional levels, as well as within the law, practices and societal attitudes.[21] DFAT assesses that those who convert while outside of Iran and who intend to continue to practise their Christian religion, as the Tribunal accepts about the applicants would, would face a high level of official discrimination and could be subject to the death penalty.

   [21] 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

4. The Tribunal is satisfied that Christian converts in Iran who do not modify their behaviour (by acting discreetly and secretly in their worship and maintaining a low profile) and who attend illegal house churches face more than a remote possibility of being subject to monitoring, a raid by the Iranian authorities, arrest and subsequent detention. The detention and removal of liberty in such circumstances may itself amount to serious harm, and during its course the Tribunal considers they would face a real chance of being subjected to significant physical abuse.

5. There is little information available about how child converts (and those born into families of religious converts) are treated in Iran. While the Islamic Penal Code stipulates that non-mature children have no criminal responsibility it also states that the age of maturity for girls are nine lunar years, and for boys it is fifteen lunar years.[22] It is possible, that Applicant 3 could be treated as an adult and as such, the Tribunal accepts she faces a real chance of being subject to the same treatment as her parents. Applicant 4 was only born in 2019. Whilst it is reasonable to assume he may be considered non-mature, the Tribunal accepts that he (along with the other applicants) faces a real chance of official and societal discrimination which would cumulatively, amount to persecutory harm.

   [22] RefWorld, ‘Iran: Islamic Penal Code (1991)’, accessed 22 March 2024 at refworld.org/legal/legislation/natlegbod/1991/en/115464; 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

6. The Tribunal is satisfied this real chance would arise for the applicants for expressing their religious faith by attending underground house churches or other secret Christian gatherings, and/or by evangelising or openly sharing their views on their Christian faith with others in Iran. The Tribunal accepts that they face a real chance of harm including persecutory level cumulative discrimination and/or other serious harms manifesting through significant physical harassment, significant physical ill-treatment, and a threat to their liberty. The Tribunal is satisfied that this harm is systematic and discriminatory conduct carried out or condoned by the Iranian authorities against Christian converts from Islam for the essential and significant reason of their religion.

7. The country information referenced throughout indicates that an extensive network of police, security, and intelligence services exercises effective control over almost all areas of the country. 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.

8. The Tribunal considers that modification of behaviour would be impermissible in these circumstances; the applicants cannot reasonably be expected to renounce their religious conversion or conceal their Christian beliefs to avoid a real chance of persecution.

9. The Tribunal is satisfied that the applicants’ fear of persecution on the basis of their conversion to Christianity is well-founded. The Tribunal finds that on this basis, all the applicants are refugees within the meaning of s 5H(1) of the Act.

   Gender based and political claims

10. The applicants have also raised sur place claims which were not considered by the delegate, and which also provide further grounds for remit, at least for Applicants 2 and 3.

11. Applicants 1 and 2 submit that they and Applicant 3 also fear being harmed in Iran on account of their political activism in particular in support of women’s rights in Iran. Applicants 2 and 3 also have fears about being women and girls in Iran, including with dimensions of intersectional discrimination, for example as women and girls who are Christian converts and and as women and girls in Iran who are westernised and reject the religious dress code including wearing the hijab. 

12. The applicants have referred to the change in country conditions for women in Iran, as a result of the Women, Life, Freedom revolution sparked by the death of Mahsa Amini on 16 September 2022. There is evidence that Applicants 1 and 2 participated in at least three public rallies (in October 2022, March 2023 and September 2023) for the Women, Life Freedom movement and against the use of chemical attacks on Iranian girl’s schools. They appear in photographs published by SBS Online and SBS News about the events and are pictured alongside Kylie-More Gilbert (a high profile Australian woman who was detained in Iran for over two years) in some photos. They have also submitted examples of Applicant 3’s pro-women’s rights and anti-regime Instagram posts and a written statutory declaration from her.

13. Applicant 2 submits that she would not follow the hijab rules and that Applicant 3 has grown up in Australia and does not understand the meaning of hijab and will not follow it either.  Applicant 3, who is now [age] years old, has submitted that she does not feel comfortable with the strict Islamic law in Iran, in particular the law which would force her to wear the hijab. She recalls being [age] years old and turned away from a medical help because she was not wearing one. She states she is accustomed to the Australian way of life and values and is accustomed to not wearing the hijab and to wearing western style clothing. She says she would not wear it in Iran because it is not part of her religion, and she does not believe in it. It would be false to her core to follow these rules that do not align with her beliefs. She says she strongly believes the government should not have the authority to dictate what women should wear or how they should conduct themselves. 

14. There is nothing before the Tribunal to suggest that the applicants have already come to the attention of the Iranian regime in relation to these matters. However, given the arrest of their fellow house church group members, the longevity of Applicant 1’s web blog and their social media activities, in the event that they are intercepted or persons of interest in relation to their religious activities, it is likely the authorities would also investigate further and may discover evidence on these other matters. This, the Tribunal accepts would create further problems for the family, in particular, for Applicants 1 and 2.

15. Based on the applicants’ statutory declarations, photographs and social media evidence, and the Tribunal’s discussions with Applicants 1 and 2 at the hearing, the Tribunal accepts that Applicants 1 and 2 have engaged in the claimed demonstration activity and that they and Applicant 3 have engaged in anti-regime content online, including specifically in relation to women’s rights and the Women, Life, Freedom movement (and religion). The Tribunal accepts they have engaged in this activity out of genuine conviction for the causes and an expression of solidarity, and advocacy for change and out of concern for conditions in Iran should they have to return. The Tribunal also takes into account that the applicants have been in Australia for more than 7 years and have adopted some openness as to the content shared. The Tribunal considers the activities and social media posts have been undertaken or made in good faith, and not for the purposes of strengthening a refugee claim/s. The Tribunal has no concerns about s 5J(6) and is satisfied that the applicants’ conduct in Australia need not be disregarded.

16. The Tribunal accepts the applicants are concerned for Applicants 2 and 3 being women/girls in Iran, and women and girls who are unwilling to adopt the hijab and follow the Islamic religious conduct expected of them. The applicants’ evidence in this regard has been forthright and entirely plausible given recent events and the Tribunal considers the statutory declaration from Applicant 3 to be genuine. The Tribunal does not take the view that every Iranian woman or girl would necessarily face persecution on those bases only. However, given the country information discussed below, and taking into account their strong, evidenced feelings against the regime, their extended stay in Australia where they have grown accustomed to free expression and association and non-conservative dress and the children have little to no experience with Iran and Islamic culture and rules, and few Persian language skills, the Tribunal accepts claims and does not consider their concerns to be exaggerated, or that any conduct ought to be disregarded pursuant to s5J(6).

17. Although the Iranian Constitution provides for equal rights for women, a number of legal provisions discriminate against them, and they face official discrimination in law and practice as well as societally.[23]  Women in Iran are subject to strict dress codes and though they may wear western fashions to an extent, they are required by law to wear the hijab and have most of their bodies (except for face, hands and feet) covered. Women that defy the dress code risk arrest, particularly during periodic crackdowns. Younger women are more likely to push the boundaries with respect to their hair coverings. In recent years, there have been increasing restrictions imposed on women with regard to their public appearance, including banning women from accessing services (e.g. public transportation, banks and government offices) in some cities unless they conform to the hijab laws.[24] The Tribunal notes there are photographs of Applicants 2 and 3 online without their hijab, that Applicant 2 is pictured without it at the protests and that she appears in some of the Church’s online content free of hijab too.

    [23]DFAT Country Information Report: Iran’, Department of Foreign Affairs and Trade, 24 July 2023, 20230724110043 

    [24] Iran International, ‘Iran's Raisi Orders Strict Enforcement Of Hijab Amid Crackdown’, 6 July 2022, 20221020104545; 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

18. High profile cases of women being killed or injured have sparked protests, most notably, under the Women, Life, Freedom movement. Sparked by the death in custody of Jina Mahsa Amini, a young Iranian-Kurdish woman, after her arrest for “improper” wearing of the hijab in Tehran, the protests began on 16 September 2022 and spread across the country, galvanising women, men and children from various ethnic, religious and socioeconomic backgrounds, based on a multitude of grievances. The protests were unprecedented because of the leadership of women and youth, in their reach and longevity and, ultimately, the State’s violent response.[25] The movement also spread globally[26] and the Tribunal has accepted that Applicants 1 and 2 participated in demonstrations in Australia and that Applicant 3 also posted content on social media promoting the movement and criticising the Iranian regime.

    [25] 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

    [26] DFAT Country Information Report: Iran’, Department of Foreign Affairs and Trade, 24 July 2023, 20230724110043 

19. UNHRC reporting[27] based on an independent fact-finding mission indicates that while the street protests have largely subsided, their effects and other forms of protest continue, together with State repression. The UN Special Rapporteur reported in February 2024 that since April 2023, the authorities have increasingly used brutal and repressive policing methods on girls and women defying the compulsory hijab laws. The morality police have not disbanded, as some reporting suggested in late 2022. Members of the authorities including members of the security forces, the judiciary and the Islamic Revolutionary Guard Corps now enforce compliance with the mandatory hijab laws.[28] According to the fact-finding mission, over the past year, the responsibility for enforcement has also expanded to the private sector and private individuals. In addition to existing public phoneline and messaging services, a phone application called Nazer has been developed to by the national police force to enable security officers, and volunteers who have been vetted, to report women offending against the mandatory hijab laws.[29]Authorities also reportedly use digital surveillance of public spaces, including facial recognition to enforce dress code laws.[30]

    [27] 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

    [28] 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

    [29] 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

    [30] Human Rights Watch World Report 2023', Human Rights Watch (HRW), 12 January 2023, 20230112144355; 'Freedom in the World 2023 - Iran', Freedom House, 9 March 2023, 20230310090512 

1. The UNHRC and the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran have expressed concern about a bill recently approved by the Guardian Council of the Islamic Republic and Iran’s parliament. The new law is called the ‘Protection of the Family through Promoting the Culture of Hijab and Chastity’ law. It sets out measures to (a) increase punishments for acts and promotion of non-compliance; (b) spread enforcement powers across State institutions; (c) make private actors liable for both compliance and enforcement; and (d) extend existing gender segregation in various areas, including universities, hospitals and public offices and spaces. The law does also provide for a dress code applicable to men, but the UNHRC’s remarks on the bill were that it was clearly targeting women and that it would exacerbate the already fundamentally discriminatory legal framework governing the mandatory hijab for women and girls. The law also addresses online content, criminalising online expression of views critical of the mandatory hijab.[31] It provides for severe punishments for women and girls.

   [31] 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; Human Rights Watch, ‘Iran: New hijab law adds restrictions and punishments’, 14 October 2024, https://

2. 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 

3. 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 2024

4. The 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

    CONCLUSIONS

12. For 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).

13. For the reasons given above, the Tribunal finds that s 36(3) does not apply in the circumstances of this case.

    DECISION

14. The 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 McLeod

    Date(s) of hearing:  4 September 2024
    Representative for the Applicant:           Ms Eliza Considine

    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.

    …

    
    

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