1934933 (Refugee)

1934933 (Refugee) [2023] AATA 2904 (7 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Abby Hamdan
CASE NUMBER:  1934933
COUNTRY OF REFERENCE:                   Iran
MEMBER:Katherine Harvey
DATE:7 June 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act, and
(ii)that the second named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 07 June 2023 at 9:44am

CATCHWORDS
REFUGEE – protection visa – Iran – religion – Eckankar – Muslim-born convert – evidence of religious practice – community aware of the applicant’s conversion – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 November 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicants claim to be citizens of the Islamic Republic of Iran (Iran). The first named applicant (the applicant) is a [age]-year-old man and the second named applicant is a [age]-year old woman. The applicants are married. They arrived in Australia on a temporary work skill visa [in] March 2017 and established a [business] where they both work.
The applicants’ personal details were set out in their application for protection. The applicant was born in [City 1], Iran and the second named applicant was born in Tehran, Iran. They married in 1986 and have two daughters, one who is living in Australia and one who is living in Iran. Before arriving in Australia, the applicant worked as a [Occupation 1] in Iran and then [Country 1].
On 29 June 2018, they applied for protection visas.
Summary of claims
The applicant’s claims are set out in his application for protection.
The applicant claimed that he left Iran because of his religious beliefs as he is a follower of Eckankar. He claimed that he converted after the death of his [brother]. He claimed that a change of religion is one of the highest crimes in the country.
He claimed that he shared some of his ideas and beliefs with some relatives and friends and people around him.
He claimed that he was entitled to work insurance for 36 months, but payments stopped after a few months because someone incorrectly claimed he had a job. He appealed that decision but his appeal was not taken into consideration. After a few months, he started getting threatened by some people and concluded that the issue was related to his religion.
He claimed that he was providing for two families [his and his [brother]’s families], not getting insurance money and not finding a job. He had many Bahai friends and their problems made him fear other consequences, so he sold his household and accepted a job from a friend in [Country 1] and moved there.
He claimed he has been practising his religion freely for almost 10 years. The government does a background check on people returning to Iran after a long time and they have agents in almost every country. He claimed that, as he has been practising his religion, expressing his opinion freely and been in contact with one of the most well-known Eckankar leaders by phone, he fears he would be arrested, tortured and forced to give a false confession.
He claimed he would not be protected by the authorities in Iran and there is no area in the country where he can be safe and not harmed.
The applicant provided country information with his application:
·   the United States Department of State Iran 2016 International Religious Freedom Report
·   a translation of his marriage contract with the second named applicant
·   a copy of the second named applicant’s South Australian driver’s licence
·   a United States Court of Appeal petition dated 9 November 2012
·   extracts from online articles: Iran: Medieval-like death sentences for expression of opinion (27 March 2017), Six people said killed, 300 arrests as Sufi protest in Iran (February), Translator in prison for one year without knowing charges; her lawyer denied access to case file (13 September 2016), The Times of Israel Iran spiritual leader on death row gets jail on retrial (10 March 2018), Sentencing of Mohammad Ali Taheri to death in Iran (1 September 2017), Immigration and Refugee Board of Canada Iran: Eckankar religion of the Light and Sound of God including whether there are members in Iran; if so, their numbers, location and treatment by authorities (1 July 1999), AAP 300 arrested after Sufis clash with Iran police, killing 5 (20 February 2018)
·   extracts of article Iranian writer and translator sentenced to death (15 March 2017) and extract about Marjan Davari
·   online articles: Theresa Malinowska, The cost of religious conversion in Iran (10 May 2009), Iran, a Muslim who converted to Christianity risks the death penalty (undated), Hanged for being a Christian in Iran (11 October 2006)
·   Huffington Post, The cost of religious conversion in Iran 12 January 2018
·   Human Rights Watch extract on International Covenant on Civil and Political Rights legal framework
·   part of an email from Eckankar membership advising they had processed the applicant’s Eck membership for one year
·   a screenshot of an undated message from Eckankar membership services with a footer that it is copyright 2018 and attached jpg files are named ‘20180629_162359-1.jpg and 20180629_162336-1.jpg
·   unverified copies of the biodata page and two pages of stamps from the applicant’s Iran passport
·   unverified copies of the biodata page and copy of a [Country 1] visa from the second named applicant’s Iran passport
·   ASIC company extract for [Company 1]
·   a [Company 1] employment offer to [Ms A] dated 11 June 2016
·   a [Company 1] statement letter in regard of genuine position dated 7 November 2016
After his hearing with the delegate, the applicant provided:
·   copy of a photo of an envelope from Eckankar US office with the postmark
·   an undated welcome letter from Eckankar
·   a copy of an Eckankar membership card in the name of the applicant that expired [in] 2019 and described the applicant as ‘New Chela’,[1] and
·   a photo of an envelope from Eckankar addressed to the applicant dated 06/25/2018 (25 June 2018)
[1] Chela means student
The second named applicant did not make separate claims.
On 15 November 2019, a delegate of the Minister refused to grant the visas.
The review application
On 10 December 2019, the applicants applied for a review of that decision. They provided the Tribunal with a copy of the delegate’s decision. The Tribunal is satisfied that the decision is reviewable under s 411(1)(c) of the Act.
On 16 March 2020, the applicant provided a statutory declaration summarising his protection claims and a three-page submission from his then migration agent.
On 20 April 2023, the Tribunal wrote to the applicants advising that it had considered all of the material before it relating to the application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 8 May 2023 and to provide all documents they intended to rely on to support their case by 1 May 2023.
On 1 May 2023, the applicants’ representative submitted a hearing response and supporting documents:
·   a four-page statutory declaration from the applicant dated 1 May 2023
·   a letter from the applicant’s daughter who lives in Iran dated 5 May 2019 requesting her father be granted a visa to travel to [Country 2] for her wedding
·   copies of wedding invitations and flight itineraries
· Eckankar material previously provided, detailed at [12].
In his statutory declaration, the applicant claimed that the interpreter did not correctly interpret his answers in his interview with the delegate. On 5 May 2023, the Tribunal vacated hearing scheduled for 8 May 2023 and invited the applicant to detail all instances where his answers were not correctly translated by 19 May 2023.
On 5 May 2023, the applicants’ representative submitted an 11-page submission, company and financial records related to the applicants’ [business], tax returns for the applicants and their Australian-based daughter and additional country information.
On 19 May 2023, the applicants’ representative submitted a statutory declaration from a certified translator and interpreter with correct translations of the applicant’s evidence.
The hearing
The applicants appeared before the Tribunal on 24 May and 5 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], the applicants’ daughter. The Tribunal hearing was conducted, with the assistance of an interpreter, in the Farsi (Persian) and English languages. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments presented on their behalf. Where relevant, the applicants’ evidence to the Tribunal is referred to below in the Tribunal’s analysis.
The applicants were represented in relation to the review and their representative attended the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Country of reference
The applicant claims that he was born in [City 1], Iran, the second named applicant was born in Tehran, Iran and that they are citizens of Iran. They provided a copy of the biodata pages of their Iranian passports.
The Tribunal is satisfied that the applicants are citizens of Iran and that Iran is the receiving country for the purpose of s 36(2)(aa) of the Act.
The applicants claim that they do not hold citizenship of another country or have the right to enter and reside in another country. Based on the evidence before it, the Tribunal finds that s 36(3) does not apply to the applicants.
Analysis, reasons and findings
The issue in this case is whether the applicants have a well-founded fear of persecution for a refugee nexus reason, or if they are owed complementary protection, or if they are a member of the same family unit as a non-citizen who is a refugee or is owed complementary protection.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Conversion to Eckankar[2]
[2] Eckankar is a religious movement founded by Paul Twitchell in 1965. It is self-described as ‘the path of spiritual freedom’ and ‘an active, individual, creative spiritual practice’.
The applicant explained that, when he was living in Iran, he was a Muslim and he would go to the mosque every Friday for prayers.
He said that he had a [brother] who suffered from bipolar disease; he would be happy and jovial one minute and angry the next. He said one morning in 2004, his brother’s wife rang to say that his brother had attempted to commit suicide by setting himself on fire. He and his wife rushed to their house in their pyjamas and his wife minded the child while they took his brother to the emergency department. His brother had burns to 95 per cent of his body. In the evening of that day, his brother was getting worse but he could still speak.
His brother asked the applicant to look after his two children, he said ‘I put them in your care’. After he died, the applicant felt like a mountain had crashed on top of his head. He felt very distressed because he had two daughters and his brother had two children and they did not have a place of their own to live in. The applicant said that they held a wake for him and after that he regularly went to charities and gave money to the poor and it made him feel better doing those things for him. They would also go to his grave and pray.
The applicant said that in Islam, if someone commits suicide it is believed that they will go to hell. He said they wondered why he should need to go to hell because he was sick and he knew he had a mental health condition. The applicant said that he felt very sad, very depressed. He had no energy and no desire to go to work and he would just walk the streets. He said despite giving money to charities and so on, it was not helping him get better.
The applicant had a friend who had a car showroom and he would go there in the evening to talk. One time, in 2005, when he was walking on the street he had tears in his eyes. Someone touched him on the shoulder and asked why he cried all the time. The applicant explained the situation and the man started reciting some of Rumi’s poetry. The applicant said he did not understand the poems very well. It turned out that the man who touched his shoulder, [Mr B], was the brother of his friend with the showroom. He said that he did not know him until that encounter.
Over time, [Mr B] would read Rumi poems to the applicant and he said that he gradually started understanding it and learning it and he started feeling peace and calm in himself. The applicant said that reciting Rumi poems is not an offence but the reason [Mr B] was doing it was to try and direct the applicant, to lean him towards the Eckankar religion. He said that once you start introducing people to Eckankar, that’s when the problem arises.
[Mr B] explained to the applicant that in Islam someone who commits suicide goes to hell, but it would not be the case with his brother in this other religion because he was mentally ill. [Mr B] explained that Islam had got it wrong by stating that people go to heaven or hell, whereas this other religion believes that when you die your spirit goes to God and it goes and comes back again until it forms itself as a complete entity. The applicant said that [Mr B] did not introduce Eckankar straight away; as he got to know the applicant better, he told him that Islam would not give him peace of mind or help him feel better but he could introduce him to Eckankar.
The applicant said this process took a few months. First [Mr B] recited poetry. Gradually he asked the applicant if he was willing to embrace the Eckankar religion. As the applicant was showing interest, [Mr B] would tell him more and more. He told the applicant that it was not easy to embrace Eckankar, first you have to know how to separate yourself from your demons. He gave the applicant two books by Paul Twitchell (the creator and director of Eckankar), The Tiger’s Fang and The Flute of God, and God’s slow burning love by Harold Klemp. The applicant explained that Sri Klemp is promoting Eckankar in America and he is the religious nominee to hold the connection to God, or to help the spirits get closer to God. The applicant said that [Mr B] said that the books were no longer allowed in 2005, but they had previously been available in Tehran in the bookshops near the university and that quite a lot of people in Iran covertly followed Eckankar.
The applicant explained that [Mr B] told him that Eckankar is all about love. He told the applicant that he needed to learn how to love himself and love others and that if he did that, he would get a higher level of holiness, of spirituality. He told him that he needed to reach a level where he loved and cared for others as much as he does for his own children. The applicant spoke at some length about what [Mr B] taught him, including about reincarnation and karma, explaining that if you do something wrong, you have to accept the consequences and be punished for it, that you get back what you give.
The applicant said that after he had spoken with [Mr B] he went home and talked to his family and told them it was giving him quite a bit of tranquillity. He said unlike Islam, which talks about killing and violence, this religion talks about love. He said initially he only talked to his wife and when she saw that he was happier, not so depressed, not so agitated and aggrieved, she felt better too and showed some interest in getting to know the religion herself.
The applicant said he then spoke to friends, relatives and fellow workers and people he knew in society because he was very keen to inform them about what he had discovered. He said that his friends were keen to know why he had changed so much, what had changed his outlook and he explained to them about his change of religion. The applicant was asked why he was having conversations. He said that he was very happy and keen to tell people. He said that is a natural instinct, when you discover something like that, you are keen to tell others about it. He said that people saw a change in him that prompted them to ask him why he was different and that opened up the conversations about Eckankar.

The applicant was asked why he had talked publicly about his beliefs when [Mr B] had been so careful to slowly and privately introduce him to Eckankar over a period of time. He said that he was telling people who showed an interest and who were also dissatisfied and not content with the regime. He said that not everyone took up the invitation; his sister-in-law was not willing to continue listening to him.
The applicant said that he thinks someone informed on him. It was pointed out that Eckankar does not proselytise and there is no religious requirement to tell people about your beliefs. He agreed that the principle is that you can believe if you want to, that there is no coercion, no encouragement, and no penalties if you leave. He said that maybe he was a bit negligent, but he did not think he would be trapped, that they would put together a criminal file for him.
At the second interview, the applicant explained that [City 1], his home town, is a very small city and he lived in a small suburb and he had lived there for 35 years. He said you get to know the people around you and they were his friends and he was talking to them. He said that he trusted the people around him to the extent that he would let them take his daughter to school. He said that he has no idea how people external to that circle knew that he had changed his religion. He said that he was gullible and simple minded and was excited about embracing the new religion and foolishly shared it with other people. He said that is why he raised suspicions and they wanted to gather information about him.
The applicant said that after the business that he ran with two others closed he was meant to get 36 months of employment insurance payments. However, his employment insurance stopped after three months. He said that when he enquired about why the payment had stopped, they never gave him a reason. They just told him that the authorities had directed them to stop paying him. He said the employment or social security insurance is tied in with the Ministry of Employment.
He said he then tried to get a trading permit to start his own business. He said he could not get the trading permit or a loan from the bank. Then two of his friends who he went to school with told him not to worry about getting a trading permit because the regime was opening a case against him, and they told him that he should try to leave Iran if he can.
The applicant said that what happens is the intelligence branch puts together a file on you and then they send it to the court authorities where a judge makes a ruling. Then the airports are informed not to let this person leave the country until the matter is heard. He thought that he left the country just before his file was transferred to the court system to be considered. He said that his school friends told him in 2008 and he left between one and two months later. He moved his immediate family to [Country 1].
The applicant said the reason he had left the country and not gone back was fear of persecution. He said that he knows without a shadow of doubt that he will be in trouble. He said that because of his file, what Sepah[3] has accumulated against him, he expects to get 30–40 years imprisonment and they might execute him because he converted his religion from Islam to Eckankar and he was promoting that religion by talking to his wife, his children and his friends about Eckankar.
[3] Sepah, also known as the Islamic Revolutionary Guard Corps or Pasdaran.
The applicant was asked why, if he feared returning, he had gone back to Iran for a week ten days after moving to [Country 1]. He said that he needed money. He went to see if he could get some money from his business, to cash some cheques and pay money he owed. He said that anybody who he tries to get money from tells him that he needs to be there to get the money back and that he is still owed 120m toman (about AUD50,000). At the second hearing, when asked why he had put his life at risk for AUD50,000, the applicant said that he thought the money would help them live in [Country 1]. He said perhaps it was a mistake as he was not sure that he could get his money back. He said that adds to the list of things he should not have done.
It was suggested to the applicant that he had left Iran for economic reasons. He said that he never had financial difficulties in Iran. He is an industrial producer and he could sell a particular formula for an ingredient and get a lot of money. He said that a lot of companies would like to have him as a production manager, or he could have got a permit through his wife or daughter.
At the second hearing, the applicant said that he is not sure how much trouble he is in. He was told he was under suspicion and that they have put a file together for him. He said that when they start suspecting that you may be engaged in an activity they don’t approve, they make life hard for you until you leave the country. That is one of the methods they have for dealing with you. He said that unless you are politically active or have religious matters, they make life hard for you and stop your social privileges. He said unless they are convinced that you are a non-believer or an atheist, that you have converted your religion, they will not serve you a harsh punishment but if they suspect that you have changed your religion, they start investigating. He said unless you try to convert others or actively try to recruit, they do not immediately put you in jail. He said that he was not recognised as a non-believer, that they had not established he was a non-believer but unless you opt to leave the country, the consequences could be bad.
The applicant said that the regime is stricter now than it was before when he left and it is easier for people to get into trouble, to be arrested and put in jail.
Based on the information before it, the Tribunal accepts that the applicant converted from Islam to Eckankar in Iran. The Tribunal accepts that he spoke about his religious beliefs with his family and friends.
Evidence of religious practice
The applicant said that it does not matter whether you are in Iran, [Country 1] or Australia, all of your prayer, studies and reading in Eckankar are done at home. He said in [Country 1] and Iran, he prayed and did all of his religious rituals at home. While he was in [Country 1], the applicant said that he twice spoke with [Mr C], a [occupation] in Tehran, as he wanted his advice on interpreting certain dreams. [Mr C] was ranked second in the hierarchy of Eckankar but was arrested as he was more overt in practising his religion, including not holding a wake or ceremony when his father died.
The applicant was asked why there was no evidence of his Eckankar membership before 2018. He said that he was not allowed to practise in [Country 1]. He said there was an institution but they would not let them in, he does not know why. He said that when they arrived in Australia, his daughter found a contact in America who sent CDs and booklets. He said that when they were in Australia, they were told that there were a couple of people who could help them, but they could not establish contact with them because they did not have the right visa.
The applicant’s daughter explained that she is not Eckankar herself. She said she is not judgemental, that her dad finds peace with Eckankar and she is happy to help him. She said that he can practise on his own and she has tried to translate some of the books they received through the US institute. She said that people are very helpful giving contact details and she called the man whose name she was given. He asked her whether her parents had permanent residency or were Australian citizens. When she said no, he said that he cannot let them come into the community until they are permanent or citizens. She said that she understood because people could cause trouble and she does not have any Persian friends herself.
Based on the information before it, the Tribunal accepts that the applicant was and is a practising follower of Eckankar.
Politics
The applicant said that when customers come and visit his [shop], they have conversations. He said that some of them are informers for the Iranian regime and that some of the people have left Australia. He said that he has lost quite a few customers who do not visit the shop anymore. He said that some of the people were importers of goods from Iran who used to deliver to him but have stopped. He said that they used to come and talk but ever since they realised that he is not a supporter of the regime they do not come to the shop, and they do not answer their telephone. He is pretty sure that they have passed his details onto the intelligence branch in Iran.
He said that if he returned to Iran he would need to stay in a room. He said that he would not be able to express himself or do what he likes to do. He said that he likes to talk and to do things and he would not be able to do that there.
The applicants’ daughter explained that in the [business] they were listening to the news all day every day because of the serial killing happening in Iran. She said that there was a heated argument with one of their suppliers, who said that (Supreme Leader) Khamenei was his ‘red line’ for criticism. He said that even if his sister or mother is being killed, that is the rule in Iran. After that, the supplier left and has never come back, and he does not answer his phone when her father calls. She said that he had previously said if any family members need a job to tell him, because his brother is working in the oil ministry. She said that her father does not allow some people in the shop.
The Tribunal accepts that the applicant has expressed his views about the Iranian regime with other Iranians in his shop in Adelaide.
Second named applicant
The second named applicant said that she was born into and brought up with Islam, the religion that she was given, but after conversations with her husband and listening to him and learning from him, she has taken a liking to Eckankar, she ‘is swayed towards it’. However, she said that she is not a strong believer in Islam and she has not quite taken to the new religion either.
When asked what would happen to her if she returned to Iran, the second named applicant said that she does not think she would be in much trouble. She would follow the dress code and wear hijab. She said that she knows better than to say anything. She said that as long as she keeps quiet, she does not envisage anything happening to her. She will just follow like the other women in the country and she does not have political opinions.
The second named applicant thought that there was a small chance of her getting into trouble because of her husband having conversations with her. She said that sometimes, inevitably, she gets involved in political conversations in the [business] because she does not like the way the regime is treating people. She said she does say a few things in support of her husband.
The second named applicant said that she noticed embracing Eckankar made her husband feel a lot happier. She said that he was not so depressed, so anxious. She said that he was very, very down because of the death of his brother and he felt guilty that he was partly responsible. She said embracing Eckankar made him feel happier. She said that he talked to her and their daughters about it. Then he started talking with her brothers and sisters and their close relatives because he was so excited, feeling reborn and rejuvenated. He was talking to everybody – close friends and relatives. She said that he was very keen to tell his story and he was not so worried if they would embrace it or not, he felt he should tell everybody. She said that everyone had a different reaction.
The Tribunal accepts that the second named applicant does not fear for her safety in Iran. The Tribunal accepts that she believes her husband has converted to Eckankar.
Protection visa application
The applicants’ daughter explained that when they were in [Country 1], there started to be troubles for Iranians. She said it was linked to the government and political issues. She applied and received an offer to study her Masters in [Country 3], but her parents decided to bring their business to Australia and she came with them. They applied for and received a two-year 457 visa and arrived in March 2017. They established their business and opened the shop in September 2017. She said then the rules changed and there was no way of extending the visa. She investigated different subclasses, but her father was too old and did not know English. She said that there was nothing they could do. They could not go back to Iran and they did not want to stay in Australia illegally, so she put in their protection visa application.
She said that when they moved out of Iran, her father was [age] and he moved and left everything and had to start from zero. She said that he had to move again at [age] and start again. She said no one wants to do that and you would not do it unless you had to.
The Tribunal accepts that the applicants applied for a protection visa because the applicant feared harm in Iran.
Country information
The DFAT Country Information Report - Iran provides the following information about the use of religiously based charges against Muslim-born converts:
Under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. Separately, a person of any religion may be charged with the crime of ‘swearing at the Prophet’ (blasphemy) if they make utterances that are deemed derogatory toward the Prophet Mohammed, other Shi’a holy figures or divine prophets. The Penal Code does not specifically criminalise apostasy, but provisions in the Penal Code and the constitution stipulate that sharia applies to situations in which the law is silent, and judges are compelled to deliver sharia-based judgements in such cases. Although the Quran does not explicitly say that apostasy should be penalised, most Islamic judges in Iran agree that apostasy should be a capital crime. This ruling is based both on oral traditions attributed to the Prophet Mohammed and to Shi’a Imams, whom Shi’a consider the Prophet’s rightful successors. Chapter 5 of the Penal Code specifically criminalises swearing at the Prophet as a capital offence, although a clause states that the sentence can be reduced to 74 lashings of the whip if the accused states the insults were the result of a mistake or were made in anger.
Politically-motivated apostasy charges were frequent in the years following the Iranian revolution, often leading to death sentences. However, in the vast majority of cases, defendants charged with apostasy also faced other charges related to national security. Many of these cases were quickly tried, ending in execution, so apostasy was not fully discussed in the prosecution of these defendants.
While apostasy and blasphemy cases are no longer an everyday occurrence in Iran, authorities continue to use religiously-based charges (such as ‘insulting Islam’) against a diverse group of individuals. This includes Shi’a members of the reform movement, Muslim-born converts to Christianity, Baha’is, Muslims who challenge the prevailing interpretation of Islam (particularly Sufis) and others who espouse unconventional religious beliefs (including members of recognised religious groups). Some religiously-based cases have clear political overtones, while other cases seem to be primarily of a religious nature, particularly when connected to proselytisation.
Today, death sentences in apostasy and blasphemy cases are rare. In March 2017, the Supreme Court upheld the decision of a criminal court in Arak (Markazi Province) to sentence a 21-year-old man to death for apostasy. Authorities arrested the man after he made social media posts considered critical of Islam and the Quran while on military service. According to publicly available information, the death sentence had not been implemented at the time of publication. The court also convicted two co-defendants of posting anti-Islamic material on social media, sentencing them to prison.
DFAT assesses that those accused of religiously-based charges are also likely to face charges related to national security. They are unlikely to have adequate legal defence, and are likely to be convicted.[4]
[4] Department of Foreign Affairs and Trade DFAT Country Information Report – Iran (14 April 2020) 36–37.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. 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.[5]
[5] Chan Yee Kin v MIEA (1989) 169 CLR 379.
Based on the evidence before it, the Tribunal is satisfied that the applicant has converted from Islam to Eckankar and that he intends to continue his religious practice. While the applicant practises at home, the Tribunal is satisfied that his community is aware of his conversion to Eckankar. The Tribunal is satisfied that the applicant holds a fear of being persecuted and that there is a real chance that he would be persecuted as a Muslim-born convert in Iran.
Given the applicant’s personal circumstances and the country information referred to above, the Tribunal finds that, if the applicant returns to Iran now or in the foreseeable future, there is a real chance that he will suffer serious harm and systematic and discriminatory conduct because of his religion.
Conclusion
Having considered the applicant’s claims individually and cumulatively, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for reason of his religion.
The Tribunal is satisfied that the real chance of persecution relates to all areas of Iran, that it would involve serious harm and systematic and discriminatory conduct, and that it is for the essential and significant reason of his religion.
The Tribunal is satisfied that the applicant is not able to take reasonable steps to modify his behaviour to avoid a real chance of persecution.
The Tribunal is satisfied that effective protection measures would not be provided to the applicant by the State.
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
The Tribunal is not satisfied that the other applicant is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the second named applicant is the applicant’s wife and is a member of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of her application depends on the outcome of the applicant’s application. It follows that the other applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act, and
(ii)that the other applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Katherine Harvey
Senior Member

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

[2023] AATA 2904

7 June 2023

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