1926276 (Refugee)

1926276 (Refugee) [2022] AATA 1746 (29 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1926276
COUNTRY OF REFERENCE:                   Iran
MEMBER:Kate Millar
DATE:29 April 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958.

Statement made on 29 April 2022 at 9:01am
CATCHWORDS
REFUGEE – protection visa – Iran – religion – Islam – Christian convert – harassed by Basij – rape of girlfriend – history of mental illness – self-harm – inconsistent evidence about date of conversion – effect of mental illness on practise as a Christian – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36, 91R, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

[The applicant] is a citizen of Iran. He arrived [in] July 2012, having travelled from Iran through [Country 1] and [Country 2]. He applied for a Subclass 866 (Protection) visa on 10 December 2012.
A delegate of the Minister for Immigration refused his application on 12 February 2014 because the delegate was not satisfied he was a person in respect of whom Australia has protection obligations under s 36 of the Migration Act 1958 (the Act), and therefore did not meet the requirements for the grant of a Subclass 866 visa.
[The applicant] applied to the Refugee Review Tribunal for a review of the decision. Through his representative, he stated he was unable to attend a hearing due to his mental health and requested a decision was made on the material before the Tribunal as soon as possible. A decision to affirm the refusal of his visa application was made on the material before the Tribunal.
[The applicant] sought a further review of this decision, and the decision to refuse his visa application was remitted for reconsideration by the then Federal Circuit Court with the consent of the Minister. This is the reconsideration of the decision to refuse [the applicant]’s visa application following remittal by the Court.
[The applicant] appeared before the Tribunal on 23 February 2022 to give evidence and present arguments. He was represented in relation to the review. The Tribunal also received oral evidence from [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
Prior to the hearing, [the applicant] submitted he no longer relies on the claims in his protection visa application, and now solely relies on his claim to have converted from Islam to Christianity. The central issues in this matter are therefore whether he is a genuine convert to Christianity, and whether this gives rise to a well-founded fear of persecution.
BACKGROUND
[The applicant] was born in Tehran in [year] or [year].
His parents [named] live [on] the outskirts of Tehran, and he speaks to his mother once or twice a week. His [sisters] and [brothers] all live in Tehran.
[The applicant] attended primary and secondary school in Tehran until [year] but did not complete secondary school. After leaving school, he ran a business as a [Occupation 1] and then as a [Occupation 2] before undertaking military service between 1998 and 2000. He was then self-employed as a [Occupation 2] until he left Iran to travel to Australia.
Before leaving for Australia, [the applicant] had previously travelled to [Country 3] in March 2012 for one to two months to buy clothes. When he came to Australia, he left Iran legally on his Iranian passport with a visa to [Country 2] but says the people smuggler took his Iranian passport when he travelled to Australia.
[The applicant] arrived in Australia [in] July 2012 and applied for a protection visa on 10 December 2012. As his bridging visa ceased, he was in immigration detention from 5 December 2018 until 6 February 2020.
CLAIMS ON ARRIVAL
In the statutory declaration that accompanied his application, [the applicant] claimed:
·He left Iran because there is no human right to freedom. They cannot socialise or have entertainment, and do not have the liberty to move around without being questioned or accused.
·He has been detained and beaten by the Basij on two occasions for drinking alcohol, and was told that if he is caught again, he will have to accept the punishment they give him.
·When he was out with his girlfriend, they were stopped and questioned by the Basij. As they were not married, he was taken out of the car for questioning, and they took his girlfriend in another direction. He paid a bribe of 20,000 toman to be released.
·His girlfriend was raped by the police, which caused her to try and take her own life. Her father blames him for what has happened because according to Iranian law a man and woman cannot be out in public before they are married.
·He tried to get his girlfriend to report the rape to an authority, but she did not think it would help and would get them in more trouble.
·If he returns to Iran, he will face a real chance of being persecuted for his political opinion as he does not believe in the way of life in Iran. He likes to drink alcohol and feels this should be his right. He does not believe he should be blamed for being out with an unmarried woman.
·If he returns to Iran the Basij will punish him for getting into trouble a third time, as they have warned him that he will have to face their punishment if this happens.
·His ex-girlfriend’s family will not let him live in peace and they will punish him severely.
In submissions provided prior to the hearing, [the applicant] abandoned these claims and now relies solely on his claim to have converted to Christianity. He claims that if returned to Iran he will face questioning by Iranian authorities on his arrival and will feel compelled to tell them he sought asylum in Australia because he has converted to Christianity. He considers he will be forced to sign a document where he promises not to follow Christianity. He claims if he is released, he will be monitored but will feel compelled to try and find a church and the authorities will see his attempts to join a church as he will be monitored, or he will be reported to authorities due to his attempts to find a church, or he will be discovered at a home church during a raid.
[The applicant] claims that his conversion will come to the attention of the authorities because if he is forced to return, he will again be exposed to oppression which will trigger his mental health issues, and he does not think he has it in him to act in a way that denies his faith. He fears imprisonment, floggings, torture or the death penalty for being a Christian convert and serious harm as a result of restrictions or discrimination against him as a Christian.
In support of this claim he provided:
·     A Certificate of Baptism dated 20 December 2015 and photographs of his baptism.
·     A table with the title “Special Messages and requests 19 October 2014”, which states “[Alias] is just starting to learn English and has a very basic vocabulary”. It lists [Alias] as a first-time worshipper and lists his name under the hearing “Beginning a relationship with Jesus Christ”.
·     Newsletters from the Church and pastoral care records in the period 2014 to 2021 showing [the applicant] as a parishioner.
·     Letters of support from a neighbour and parishioners of the church stating [the applicant] is Christian.
·     A letter from Pastor [B] from [Church 1] dated 4 February 2015 stating [the applicant] has been worshipping across two churches for the previous nine months.
·     A letter from Senior Pastor [C] of [Church 2] dated 27 February 2015 stating [the applicant] has been attending church for several months.
·     Letters of support from Pastor [D], Pastor [C], Mr [E], Mr [F] and [Mr A].
·     A letter from Ms [G] dated 9 March 2022 providing information on the financial support given to [the applicant] by the Circle of friends.
RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have a genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
[The applicant] is a citizen of Iran and is outside his country of origin. He claims to fear persecution because of his religion, and because he is a convert from Islam. In issue is whether he is a convert to Christianity and whether this gives rise to a well-founded fear of persecution.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
[THE APPLICANT]’S MENTAL HEALTH
[The applicant] has sought assistance with his mental health since his arrival in Australia. The first record of [the applicant] being referred to counselling services appears in July 2013.
An undated letter from a person described as a “Counsellor Advocate” for [Organisation 1] states [the applicant] has been receiving services from [Organisation 1] since 29 August 2013.
The Department was advised on 4 October 2013 that [the applicant] had attempted suicide after his interview with the Department on 24 September 2013. [The applicant] was assessed by a psychiatrist on his admission to hospital, who reports he suffers chronic PTSD and had suffered an acute behavioural/emotional crisis that led to an impulsive overdose. [The applicant] was assessed by the same psychiatrist in January 2019 while he was in immigration detention, that is, the psychiatrist who wrote a letter to support his release from detention due to a decline in his mental health given his background of complex PTSD. The psychiatrist provided a further handwritten note dated 22 June 2019 stating there was no evidence of psychosis or formal thought disorder and supportive counselling was recommended due to high levels of anger and frustration leading to a risk of impulsive behaviour and self-harm. By 23 November 2019, it is reported [the applicant] had reduced his medication. It again recommends community placement.
[The applicant] provided a report from a Counsellor/Advocate from [Organisation 1] dated 28 October 2014. This report repeats [the applicant]’s claims. It is noted he has scars on his wrists and arms as he cut himself in Iran three to four years ago, and he reported overdosing on medication in Iran on one or two occasions. The report states [the applicant] has reported symptoms of depressed mood, loss of appetite, feelings of isolation, despair and hopelessness and withdrawal and lack of motivation. [The applicant] is reported to have had significant difficulty engaging with services due to inappropriate anger towards service providers.
[The applicant] provided reports from a psychologist dated 25 August 2016 and 16 April 2015. The reports, without providing the details of an assessment, note that he suffers from a severe depressive condition and high levels of stress and anxiety suggestive of PTSD. It advocates resolution of his refugee status as he is unable to engage effectively with the psychologist. A summary from a social worker at [Health Service 1] states that [the applicant] was involved with this service from 2014 to 2019, with frequent requests for home visits due to a fear of panic attacks, which the agency was unable to accommodate.
A report dated 20 January 2022 from [Dr H], a clinical lead at [Health Service 2], states [the applicant] was referred to [Health Service 2] by his general practitioner on 26 March 2021 due to a diagnosis of PTSD with possible psychotic features and a secondary diagnosis of mixed anxiety and depression. He received services between April and October 2021, including financial relief, psychosocial support and community engagement. He was discharged from this program in October 2021. He was assessed by a psychiatrist in April 2021. A shared care program with his general practitioner was instituted but he failed to attend after two appointments.
A psychiatry assessment dated 29 April 2021 provides that the impression of the psychiatrist was that [the applicant] suffers PTSD of chronic treatment resistant type and an adjustment disorder with mixed emotional disturbance. It recommends follow up with his general practitioner, advocacy, psychiatry of psychology services in his native Farsi language and medication. Subsequent emails make it clear this psychiatrist is not involved in his ongoing care.
In his statement provided before the hearing, [the applicant] claims his mental health makes it difficult for him to concentrate and recall details when he is stressed, and that he gets distressed and anxious when discussing the possibility of returning to Iran. He was referred to a psychiatrist again in 2021 but stopped attending as he did not find it a positive experience. Following receipt of the hearing invitation he has attempted to re-engage with his psychiatrist at[Organisation 1].
[The applicant] was asked about his mental health at the hearing. He said he was feeling stressed and could not sleep well the night before the hearing. He said his current diagnosis is anxiety and PTSD with panic attacks. This makes him stressed and forgetful, and he is scared to do things, for example when he sees a policeman, he feels fearful.
[The applicant] did not show any significant signs of distress or difficulty with recall at the hearing. He was able to participate over a lengthy period of time. Due to his mental health, he was also provided further time after the hearing to address issues raised by the Tribunal in the course of the hearing.
[The applicant] had sought treatment for his mental health over a long period of time. He has been consistently diagnosed by a psychiatrist with chronic treatment resistant PTSD. Manifestations of his mental illness include withdrawal from the community and anger and frustration towards service providers. He has been prescribed medication for a long period of time but has intermittent contact with service providers. He has been shown to act impulsively and self-harm when faced with acute stress.
RELIGION
[The applicant] claims he has converted to Christianity and fears persecution because of his religion if he returns to Iran. This encompasses both because he is a Christian and because he is a convert from Islam.
The DFAT report states that while their congregations are monitored and they are subject to restrictions, Christians from recognised churches are permitted to practise their faith. DFAT further assesses that, except for their exclusion from senior government, military, intelligence and judicial positions, recognised Christians who do not engage in proselytization activities face a low risk of official discrimination.

The current DFAT report dated 14 April 2020 states:[1]
Iranian Christians who are not members of recognised churches generally practise in underground ‘house churches’. The secrecy surrounding house churches makes it impossible to provide an exact number of house churches or unrecognised Christians in Iran. The Special Rapporteur on the situation of human rights in Iran estimates there are between 300,000 and 350,000 Muslim converts to Christianity, with international Christian advocacy groups citing significantly higher numbers. While precise figures are elusive, Iran has a growing unrecognised Christian population. DFAT understands a high percentage of unrecognised Christians are Farsi-speaking converts from Islam, or the children of converts. Some converts reportedly travel to Turkey (with which Iran has visa-free travel arrangements) to be baptised, then return to Iran and practise in private. Local sources claim many converts are unhappy with being designated Muslim at birth and wish to explore their religious identity. Others see adopting Christianity (albeit surreptitiously) as a form of protest against the government.
…
Despite occasional arrests and prosecutions, the authorities do not actively search for Christian converts and, as far as DFAT is aware, do not employ people exclusively for this purpose. DFAT assesses that a Christian convert would not face harm if they maintain a low profile, do not openly proselytise and are not of interest to the authorities for other reasons (e.g. political activism). Official sources told DFAT that converts who keep their beliefs private are not of interest to the authorities. Those who openly propagate Christianity and seek to convert others, in contrast, would draw the attention of the authorities, and face a high risk of official discrimination, including harassment, arrest and prosecution, and some societal discrimination. Local sources were not aware of Christian converts being executed for apostasy in recent times. DFAT assesses the risk of execution for conversion/apostasy to be low (see Religiously-Based Charges).
International observers report that Iranians who convert to Christianity abroad are unlikely to face adverse official attention upon their return, provided they have not previously come to the attention of the authorities for political activities, maintain a low profile and do not engage in proselytisation activities. This includes individuals who publicise their conversion online while abroad. According to local sources, in 2017 DFAT Country Information Report IRAN (April 2020) 34 an Iranian mother and her child who were baptised in Turkey were briefly detained on their return to Iran (they were carrying baptism certificates), but then released. DFAT understands such arrests are not common (see Conditions for Returnees).
DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed. Christians found to be proselytising face a high risk of arrest, prosecution and imprisonment. DFAT assesses that Christian converts face a high risk of societal discrimination in the event their conversion becomes widely known, particularly if they are from more religiously-minded Muslim family backgrounds. This may involve ostracism from one’s family and discrimination in employment.
[1] DFAT [3.50], [3.56] – [3.58]
The view of DFAT that the risk of charges for apostasy is low is also reflected by the UK Upper Tribunal.[2]
[2] PS (Christianity – Risk) Iran CG [2020] UKUT 00046 (IAC)at [35]
The Upper Tribunal states that decision makers should begin by determining if the person has demonstrated it is reasonably likely he or she is Christian, and if this burden is discharged, then the following considerations apply:
i)A convert to Christianity seeking to openly practice that faith in Iran would face a real risk of persecution.
ii) If the claimant would in fact conceal his faith, decision-makers should consider why. If any part of the claimant’s motivation is a fear of such persecution, the appeal should be allowed.
iii) If the claimant would choose to conceal his faith purely for other reasons (family pressure, social constraints, personal preference etc) then protection should be refused. The evidence demonstrates that private and solitary worship, within the confines of the home, is possible and would not in general entail a real risk of persecution.
The US Department of State in the 2020 Report on International Religious Freedom: Iran[3] reports that the law in Iran prohibits its citizens converting from Islam to another religion, with penalties ranging from a prison sentence to the death penalty. Amnesty International reports that people born to Muslim parents who tried to convert risked arbitrary detention, torture or the death penalty for apostasy.[4] These are threats to a person’s life or liberty, or significant physical ill-treatment for the purposes of s 91R(2) of the Act, amounting to “serious harm”, as contemplated by s 91R(1)(b) of the Act, as well as systemic and discriminatory conduct.
[3] Iran - United States Department of State, Amnesty International Report 2020/21 Iran, at p. 194
The Upper Tribunal also found that where the claimant is insincere in his or her claimed conversion there is not a real risk of persecution in Iran because there is no reason for the person to associate with Christians. However, decision-makers are to consider the ‘pinch point’ of arrival. The considerations at this point are:
i)    All returning failed asylum seekers are subject to questioning on arrival, and this will include questions about why they claimed asylum;
ii)    A returnee who divulges that he claimed to be a Christian is reasonably likely to be transferred for further questioning;
iii)   The returnee can be expected to sign an undertaking renouncing his claimed Christianity. The questioning will therefore in general be short and will not entail a real risk of ill-treatment;
iv)  If there are any reasons why the detention becomes prolonged, the risk of ill-treatment will correspondingly rise. Factors that could result in prolonged detention must be determined on a case by case basis. They could include but are not limited to:
a)    Previous adverse contact with the Iranian security services;
b)    Connection to persons of interest to the Iranian authorities;
c)     Attendance at a church with perceived connection to Iranian house churches;
d)  Overt social media content indicating that the individual concerned has actively promoted Christianity.
If [the applicant] is not a genuine convert, in issue is whether his claimed previous conduct in Iran including drinking alcohol or the claimed rape of his girlfriend, or the manifestation of his mental illness mean he would be at risk at the point of arrival.
From the available information, the Tribunal concludes that if [the applicant] is a genuine convert from Islam to Christianity, he will have a well-founded fear of persecution if his practise of Christianity involves openly practising his faith. The risk is greater if he seeks to convert others. If he does not openly practise his faith, the reasons he would conceal his faith must be considered.
If [the applicant] is not a genuine convert to the Christian faith, the circumstances that would occur if he was returned to Iran and was interviewed on entry require consideration. [The applicant]’s representative argues this is a purely hypothetical exercise as he is not willing to return voluntarily, and Iran does not accept the involuntary return of its citizens if they arrived in Australia before March 2018.
Has [the applicant] genuinely converted to Christianity?
Deciding whether [the applicant] has converted to Christianity effectively involves considering factors that indicate he has converted and factors that indicate he has not.
In favour of his conversion are his baptism, his lengthy involvements with the church over a period of eight years and support he has from other parishioners, the pastor who baptised him and an associate pastor at the church he currently attends. Against this lies inconsistent accounts of when he first converted, lengthy periods of non-attendance at church, that he has not told his parents of his conversion and that he reports deleting his Facebook account because he thought his Muslim friend did not approve.
A conversion to Christianity since arriving in Australia will assist [the applicant]’s claim for a protection visa, and the reason he claims to be Christian is contemplated in s 91R(3) of the Act. This states that in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons in Article 1A(2) of the Refugees Convention, the Tribunal is to disregard any conduct engaged in by the person in Australia unless the person satisfies the Minister (and the Tribunal in the place of the Minister) that the person engaged in the conduct otherwise than for strengthening the person’s claim to be a refugee.
In his application for a protection visa, [the applicant] states his religion at Question 14 as “Shia”. He said he was Muslim in name because he was born in a Muslim family.
In his statement provided before the hearing, [the applicant] states his father and brothers did not participate in Islam strictly, and his father was pushed to pray three times a day by his mother, and they were expected to take part in key traditions.
[The applicant] said he was Muslim in Iran but “didn’t like it”. He initially said he never went to the mosque in Iran, but then said maybe sometimes when he was little he went with the other children. His father and brother were not interested in religion, but his mother does attend the mosque. [The applicant] was somewhat vague about the involvement of his father and his brothers in religious activities and said they may have attended religious activities sometimes without him knowing. This was also evident in the statement provided before the hearing, where he claims his father and brother did not participate in Islam strictly, but his father was pushed to pray three times a day by his mother. [The applicant] states he became increasingly opposed to Islam as he grew up as he witnessed more of the violent practices, including seeing people being executed in public.
[The applicant] claims he was first exposed to Christianity when he travelled to [Country 3] to buy clothes and while at a bazaar a woman and a child gave him and his friend a bible and invited them to a religious celebration. He said on their return to Iran his friend was told he had a bible in Farsi and was questioned about it, but because his friend did not know that it was a bible and had not converted to Christianity, he was released, and the bible confiscated. [The applicant] claims his bag was not checked so he returned home with a bible and read bits of it when he returned to Iran.
At hearing he said he decided he wanted to be a Christian when he was in Iran when he was reading the bible. This was at odds with the information he provided in the interview with the delegate. At the interview with the delegate, [the applicant] said:
You asked me about anything I might want to change. Not at the moment but in the future when my English is better I am considering to go to a church and change my religion to Christianity but not at the moment.
As this information could be the reason or part of the reason for affirming the decision under review, the particulars of the information were provided to [the applicant] under s 424AA of the Act. This was because if the Tribunal relied on this information it would find he first contemplated Christianity after his arrival in Australia and his claims to have converted before arriving in Australia were fabricated. It would also be a step towards a finding that his claimed conversion was not genuine.
In response at the hearing, [the applicant] said he said this as he wanted to know more about Christianity and the Ba’hai faith. In a further statement provided after the hearing he said he had little contact with the lawyer provided by the Department when lodging his visa application and did not receive guidance about what it was important to tell the interviewer. His mental health was poor, and he had recently had treatment following self-harm by cutting his hand. At the time of the interview his thinking about Christianity was in its infancy, and he was yet to decide. He states that because he did not rely on this as the reason he was seeking protection at the time, he did not provide as much detail as he would have otherwise.
In his statement, [the applicant] claims that he asked his housing provider for a church to attend, and he started attending [Church 2]. He states he regularly attended the Monday meet and greet program which provided meals, and met a person who arranged for him to attend bible study at [Church 1], as well as services on Sundays. He decided to be baptised after attending church for many months. He states he has two bibles in the Farsi language, one that was provided in immigration detention and a smaller bible he carries with him when he goes to church. He has a bible in simplified English and DVDs on Jesus. While he was in immigration detention many things were thrown out or lost, so he no longer has the notes from his bible study classes.
[The applicant] says that while he was in immigration detention, he made many requests to go to [Church 2] but this was refused as it was too far, and he was offered assistance to attend a local church. He attended this church once but says that members of his church community would instead come and pray with him and he did not attend again. He was unable to attend church in 2021 due to COVID-19, and as a result states his knowledge of Christianity is still in its infancy. He states he converted to Christianity because it aligns with his beliefs about world peace, kindness and harmony. His current practice includes reading daily extracts from the bible on his phone and praying before going to sleep.
[The applicant] says he goes to church on Sundays and on Monday nights he attends the meeting where they cook for needy people. He said he attends church unless he is depressed and may not attend for a month at a time if he is depressed. He did not attend church for about 14 months when he was in immigration detention, or when COVID-19 restricted church services.
[The applicant] states he has not told his parents about his conversion to Christianity as he fears what will happen to them if they found out he is Christian. He had a Facebook account on which he would post messages about Jesus Christ’s writings, but had a friend in Melbourne who disagreed with his conversion because he is Muslim and stopped speaking to him. [The applicant] states his mental health was so frail he decided to delete his Facebook account. When this was explored at hearing, [the applicant] said his friend did not say anything to him but ceased communication. [The applicant] assumed it was because he was Christian and deleted his Facebook account.
[Mr A] gave evidence and said he has known [the applicant] for six years and he considers [the applicant] has a compelling approach to his faith. He said [the applicant] assists outside Sunday services with meet and greets, and engages in conversations with parishioners.
Statements were provided after the hearing from Associate Pastor [D], who states [the applicant] has attended Sunday worship over a long period of time and requested baptism. Pastor [C] states he met with [the applicant] before his baptism and was satisfied he understood what he was doing and that his faith was genuine. Pastor [C] states [the applicant] attended the church until he left in November 2016. He provided a statement saying he attended bible study from the latter part of 2021.
[The applicant] concedes his practice does not involve proselytising. He has voluntarily practised covertly in Australia by deleting his Facebook page as he thought his Muslim friend did not approve, although this was not said to him. He has not told his parents he has converted to Christianity.
[The applicant] said that his nine years of attending church shows that he engaged in this conduct because he is a Christian and not to strengthen his claim to be a refugee.
From the information provided by [the applicant] and the statements of others, the Tribunal makes the following findings:
·[The applicant] has been involved in [Church 2] from 2014 and was baptised on 20 December 2015.
·His attendance at Church has been intermittent, with periods where his mental health prevented him from attending.
·He declined to attend a church other than the one he specified while he was in immigration detention and has had periods where attendance has not been possible due to COVID-19.
·He has maintained connection with the Church for eight years.
·His practice of religion involves reading the bible, prayer and attendance at church when he is able.
·He has relatively recently commenced attending bible study.
There are gaps in [the applicant]’s practice as a Christian, some inconsistencies about the commencement of his interest in Christianity, and he has not told his parents of his conversion. This gives rise to concern about whether his stated commitment to Christianity and conversion is genuine.
However, the gaps in his attendance at church are consistent with the reports from the psychiatrists on the effect of his mental illness. He has continued to practise as a Christian over a very lengthy period of time. He has the committed support of the Pastor who baptised him and the Assistant Pastor at the church, as well as other members of the congregation. The pastor who baptised him says he assured himself of [the applicant]’s understanding of baptism and of Christianity before he was baptised.
As a result, the Tribunal accepts [the applicant] is a genuine convert to Christianity.
The best predictor as to how he would practise his faith if returned to Iran is how he has practised over a lengthy period of time while he has been in Australia. This involves prayer, reading bible extracts, and attendance at church when he can. This attendance was intermittent, which he claims is due to his depression. He declined to attend a church while in immigration detention, as he wanted to attend his regular church and not the church that he was offered. He has practised covertly to some degree, as he has not told his parents of his conversion and deleted his Facebook account because he thought his Muslim friend did not approve of his conversion.
[The applicant] claims he will feel compelled to seek out a house church if he returns to Iran to continue to practise his faith. While there are elements of a covert practice while in Australia, he has also attended church when he was able to do so. The Tribunal accepts a feature of his practice is church attendance. If he were to return to Iran, seeking to attend a church would give rise to a real chance of arbitrary arrest, torture or the death penalty being imposed.
Accordingly, the Tribunal finds that [the applicant] has a well-founded fear of being persecuted because of his religion.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, [the applicant] satisfies the criterion set out in s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958.
Kate Millar
Senior Member

[2022] AATA 1746

29 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies