1935655 (Refugee)
[2020] AATA 4277
•17 August 2020
1935655 (Refugee) [2020] AATA 4277 (17 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1935655
COUNTRY OF REFERENCE: Iran
MEMBER:Jason Pennell
DATE:17 August 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the third named applicant satisfies s.36(2)(a) and s.36(2)(aa) of the Migration Act; and
(ii)that the other applicants satisfy s.36(2)(b)(i) and s.36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the third named applicant.
Statement made on 17 August 2020 at 11.23am
CATCHWORDS
REFUGEE – protection visa – Iran – Federal Court remittal – religion – conversion to Christianity in Australia – attendance and activities – husband simplistic understanding of Christianity – wife deep belief and commitment to the Christian faith – members of family unit – particular social group – former alcoholic and drug addict – desertion of military service – mental health and access to treatment – imputed political opinion – returned failed asylum seeker – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5J, 5L, 36, 65, 91R, 91S
Migration Regulations 1994 (Cth), rr 1.05A, 1.12; Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Darboy [1998] FCA 931
MIMA v Zheng [2000] FCA 50
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Pei Lan He v MIMA [2001] FCA 446
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
VCAD v MIMIA [2004] FCA 1005
Wang v MIMA (2000) 105 FCR 548
Woudneh v Inder (unreported, Federal Court of Australia, Gray J, 16 September 1988)
WZAOO v MIAC (2012) 134 ALD 332
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.
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Iran, applied for the visas on 20 August 2013 and the delegate refused to grant the visas on 27 January 2015 on the basis that the applicant is not a person in respect of whom Australia owes protection obligations as outlined in s.36(2)(a) or s.36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations.
The applicant applied to the Migration and Refugee Division of the AAT (differently constituted) on 6 February 2015 (‘the First Tribunal’) to review the decision made by the delegate to refuse to grant him a protection visa. The First Tribunal decided on 10 November 2016 to set aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substituted a decision to refuse to grant the applicant a Protection (Class XD) visa.
The applicant lodged an application for judicial review of the First Tribunal’s decision to the Federal Circuit Court on 24 November 2016. The Federal Circuit Court dismissed the application on 23 May 2019.
The applicant then applied to Federal Court on 7 June 2019. [In] November 2019, the Federal Court set aside the order made by the Federal Circuit Court and quashed the decision of the First Tribunal, remitting the matter back to the Tribunal for reconsideration
The applicants appeared before the Tribunal on 12 June 2020 to give evidence and present arguments. The Tribunal took oral evidence from [the first applicant] and [the third applicant]. The applicant was represented in relation to his review and at the Tribunal hearing by his registered migration agent.
The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. Due to the Covid-19 pandemic the hearing was conducted by telephone. The applicant’s confirmed to the Tribunal that they were able to hear the Tribunal member and the interpreter throughout the course of the hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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 (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.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
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 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.
Complementary protection criterion
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
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.
Member of the same family unit
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. Regulation1.12 provides that a person is a member of a family unit of another person includes id that are a spouse or de-facto partner of the family head or a dependent child of the family head or of a spouse or de-facto partner of the family head.
In this case the evidence of [the first applicant] and [the third applicant] are that that they are husband and wife having been married in Iran in 1999 and that [the second applicant] is their son. Based on the applicant’s evidence and the documentation provided to the Tribunal the Tribunal accepts and finds that [the first applicant] and [the third applicant] are husband and wife and that [the second applicant] is their son as claimed.
As such, pursuant to s5(1) of the Act, the Tribunal finds that [the first applicant], [the third applicant] and [the second applicant] are members of the same family unit
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants meet the criteria set out in either of s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Applicant’s identity and Country of Reference
The applicants claim that they are citizens of Iran. They claim that:
(a)[the first applicant] was born on [Date 1] in Shiraz, Iran;
(b)[the third applicant] was born on [Date 2] in Shiraz Iran; and
(c)[the second applicant] was born on [Date 3] in Shiraz, Iran.
The applicants provided the department with a copy of [the first applicant]’s Islamic Republic of Iran Birth Certificate Booklet[1] and his National Identity Card that confirmed that the date and place of birth of each applicant. In addition, it confirmed that [the first applicant] and [the third applicant] were married [in] September 1999 as claimed.
[1] Translation of Birth Certificate, The Original Birth Certificate [the first applicant], Islamic Republic of Iran issued [date]
There is no evidence to suggest that the applicants have the right to enter and reside, whether temporarily or permanently, in any other country.
Therefore, based on the applicant’s own evidence and the supporting documentation provided, the Tribunal is satisfied it that the applicants are citizens of the Islamic Republic of Iran (Iran) and that they do not have a right to enter and reside in any other country. The Tribunal therefore finds that they are not excluded from Australia's protection obligations under s36(3). As such their protection claims will be assessed against Iran as the country of reference and 'receiving country' respectively.
Migration history
The applicants left Iran [in] November 2012 and travelled through [Country 1] and [Country 2] before arriving in Australia [in] May 2013. The applicants then travelled to Australia by boat and arrived in Australia [in] August 2011.[2]
Applicant’s claims for protection
[2] Delegates decision dated 14 November 2017 AAT File No 1729813 @ f.12; Applicants Irregular Maritime Arrival Entry Interview dated 17 October 2011 [File number] @ 1-10
The previous Tribunal summarised the applicants claims as follows:[3]
The applicant is a former alcoholic and drug addict who was repeatedly arrested in Iran. His drug dependency journey began with alcohol at the age of 13 and then developed through to the use of opioids and ICE. In addition, he claims to have escaped completing his military service as a young adult approximately [number] years ago. Upon the passing of his father and receiving an inheritance he used the money to depart Iran through Imam Khomeini Airport on a fraudulently obtained exit permit, travelling to [Country 2] where he conscripted a people smuggler to take him to Australia arriving in May 2013. Since arriving to Australia, he has received drug rehabilitation treatment and has not used drugs. The applicant is married and was accompanied to Australia by his wife and young son. While in Australia he and his wife claim to have undergone a religious conversion to Christianity.
[3]DOU16 v Minister for Home Affairs [2019] FCAFC 212; Previous Tribunal decision at [22];
The applicants’ claims for protection visas were summarised in their submission to the Tribunal in a letter dated 6 June 2020[4] as follows:
(a)Direct and targeted serious harm (including threats to his life, death and significant physical harassment and ill-treatment) by the Iranian authorities including the Basij.
(b)Direct and indirect threats to their life or liberty communicated to them amounting to serious harm (that is, sperate and distinct from any harm they may follow those threats).
(c)Ongoing cumulative serious discrimination by the Iranian authorities that causes them significant economic hardship that threatens their capacity to subsist and denies them the capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist.
(d)The applicants would be compelled to act discreetly and modify their appearance and profile to hide their Christianity and anti-Islamic/anti government beliefs to avoid serious harm to the extent that the modification would be of the kind expressly not permitted under the Act.[5]
The Applicants’ documents
[4] Letter for [a legal services provider] sated 6 June 2020
[5] Section 5J(3)(a),(b) and (c) of the Migration Act 1958. S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 216CLR 473.
The applicants provided the following documents in support of their claim:
(a)Submission made by the applicant’s representative dated 23 December 2014
(b)Letter from a Family Counsellor at [Refugee services provider 1] who counselled the applicant and his family dated 18 December 2014
(c)Translation of the applicants’ Iranian birth certificates and certified copies of identification cards
(d)A letter from the Pastor at [Church 1] relating to the applicants’ participation in church activities dated 30 May 2017
(e)Letter from [Health services provider] regarding the applicant’s chronic health issues including an opiate addiction dated 30 May 2017
(f)Letter from a casework coordinator at [Refugee services provider 2] dated 29 May 2017 relating to the family’s destitution
(g)Letter from the applicants’ son’s high school relating to the deterioration of attendance and increased anxiety as well as poor academic progress and behavioural issues dated 26 May 2017
(h)Letter from Senior Practitioner at [Refugee services provider 1] on the family’s situation and the work conducted with the family dated 6 June 2017
(i)A statutory declaration submitted with the protection visa application outlining the applicant’s claims for protection dated 13 August 2013.
(j)Email from the applicant’s representative seeking priority processing due to the applicant’s son’s mental health issues as result of his father’s detention received on 10 February 2020
(k)A letter from the applicant’s wife, [the third applicant], requesting priority processing of the review based on her son’s deteriorating mental health dated 23 April 2020
(l)A letter from the high school attended by the applicant’s son which details the impact of the applicant’s detention on his son’s behavioural and academic issues dated 5 August 2019
(m)A letter from [a mental health services provider] confirming that the applicant’s son is receiving mental health support for issues caused by his father’s detention and uncertainty pertaining to his immigration status dated 6 August 2019
(n)A statement made by the applicant’s wife, [the third applicant], dated 5 June 2020 relating to her conversion from Islam to Christianity and her experiences studying and becoming part of the Church in Australia as well as her fears of returning to Iran based on her conversion from Islam[6]
[6] Tribunal file 1935655 – f. 128-31
(o)A statement made by the review applicant on 5 June 2020 relating to his claims for protection, namely his failure to complete compulsory military service and conversion to Christianity as well as his mental health and drug issues and his fears of returning to Iran[7]
[7] Ibid – f. 132-5
(p)A letter from a psychiatrist working at [Refugee services provider 2] who has reviewed [the third applicant] several times confirming she suffers from depressions and is medicated due to her condition dated 4 December 2018
(q)Another letter from [a mental health services provider] dated 4 June 2020 about the progress of the applicants’ son and the impact of his father’s ongoing detention situation
(r)A letter from [Refugee services provider 3] relating to the anguish that the writer has witnessed in the applicant’s wife and son as a result of the immigration detention of the applicant dated 3 June 2020
(s)Certificates of baptism of [the third applicant] and [the first applicant] dated [October] 2016 and [the second applicant] [in] March 2017
(t)Two letters from the Pastor at [Church 1] relating to the applicants’ participation in church activities and the mental health deterioration she has witnessed resulting from the visa issues dated 26 June 2018 and 30 May 2017
(u)Another letter from the applicants’ son’s high school about the negative impact the detention of the applicant has had on the son and the increase of behavioural issues and deterioration of academic results dated 3 June 2020
(v)Letter from two pastors at [Church 2] confirming that [the third applicant] has attended the church since July 2019, her depression and her involvement in the church
(w)Submission made by the applicant’s representative dated 6 June 2020 outlining the applicants’ claims
(x)Statutory declaration made by the review applicant on 16 October 2016 about the applicant’s conversion from Islam to Christianity
(y)Certificates of Baptism issued to the applicant and his wife for baptism [in] October 2016
(z)Letter from [Church 1] dated 20 October 2016 stating that the applicant and his wife have been baptised since they made the salvation decision on 28 August 2016
The applicants’ evidence
In a statutory declaration dated 13 August 2013[8] [the first applicant]‘s evidence was that:
[8] Department file f. 166-70
(a)He fears being harmed at the hands of Iranian authorities because he is a drug addict.
(b)He has been drinking alcohol since 12 or 13 years old and has been arrested and publicly lashed for this several times. Two years after he started drinking alcohol he started to use other drugs including opium, heroine and ice.
(c)His family disowned him because of his drug use
(d)After he completed high school he began undertaking compulsory military service but this was difficult for him because he was addicted to drugs. He escaped after completing only half of the required service
(e)He lived in fear that he would be arrested for his drug use. His wife often paid a bribe to have him released after being arrested, having been detained by police for up to a month at a time
(f)Police beat him, shocked him and hung him by his wrists with chains. He was brought before a judge on several occasions, charged with drug use and jailed for up to 6 months. His wife had to pay penalties to reduce the time that he spent in jail.
(g)In November 2012 after being arrested for drug use, he was beaten and tortured by police using electric shocks and pepper spray. His father in law paid bail on this occasion to release him.
(h)The applicant, his wife and son fled Iran in November 2012 and travelled through [Country 1] and [Country 2] to arrive in Australia in May 2013
(i)He has received treatment for addiction in Australia and was no longer using drugs. If he returns to Iran he fears relapse.
(j)He does not think that he can return to elsewhere in Iran because authorities will find him and arrest, torture, abuse and kill him
(k)He left Iran with a false passport and has not completed his military service so he will be killed by authorities. In Iran the punishment for drug abuse is jail, lashes and torture
In a statement made to the Tribunal on 5 June 2020 [the third applicant] claimed that:
(a)She was born into a devout Muslim family and practised Islam until she converted to Christianity two years after arriving in Australia. She first came across Christianity from a friend named [Mr A] who was visiting them from Brisbane
(b)She and the applicant decided to attend Church and asked around the Iranian community about Christianity and where they could find a church community. They started to attend religious gatherings and bible study sessions at [Church 1]. Their son attended activities organized by the church.
(c)She and the review applicant were baptised into the church [in] October 2016
(d)After four years of attending [Church 1] she started to attend [Church 2] where she has been attending bible study classes, even online during the COVID-19 restrictions
(e)She was suffering from depression when her husband was taken into detention and was taking medication after seeing a psychiatrist
(f)She fears returning to Iran because her husband has not completed his military service and because of her conversion to Christianity she would be punished for rejecting Islam and sentenced to death
(g)She believes that she would not be able to practice Christianity in Iran, even secretly, as house churches often get raided and people arrested
(h)Her sister’s husband is [an officer] in the Iranian army and has been asking about her conversion.
(i)She states that they could not move anywhere in Iran as nowhere is safe and she fears arrest, detention, torture and death if returned to Iran
In a statement made to the Tribunal on 5 June 2020 [the first applicant] made the following claims:
(a)He did not complete the compulsory military service in Iran and fears persecution because of this. He also obtained a false completion certificate in order to obtain a passport to depart Iran.
(b)He began military service and escaped because he believed he would be considered a spy because of his connections. He believes that if he were to return to Iran he would be tortured, abused, jailed and killed.
(c)He converted to Christianity after sitting in on some services with a friend who was a Christian. He was introduced to [Church 1] by another friend. He believes Christianity helped him overcome his drug addiction and he has not taken illicit drugs for three years
(d)He undertook bible study classes and was baptised by the church along with his wife. He has continued to practice Christianity by performing Christian studies online and talking to his wife
(e)He has been on various medications for mental health issues. He is currently taking methadone and sleeping tablets which have been prescribed by a psychiatrist and these medications affect his memory and ability to concentrate and remember things. He also claims to have chronic depression and anxiety.
(f)He fears returning to Iran and believes that authorities would be able to find him anywhere in Iran. He fears arrest, detention, torture and death by the Iranian authorities.
COUNTRY INFORMATION
The Tribunal in accordance with the Ministerial direction No 56 made under s.499 of the Act the Tribunal also had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT), in particular, the DFAT report on Iran dated 14 April 2020 (‘the DFAT Report’).[9] The Tribunal has had particular regard to those parts of the DFAT report as detailed in annexure A attached to these reasons.
[9] DFAT Country Information Report India 17 October 2018
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36 (2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Credibility
When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[10]. Nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[11]
[10] s.5AAA Migration Act 1958.
[11] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[12] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
[12] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482
If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[13] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.
[13] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196
In considering the overall the credibility of the applicant, the Tribunal refers to Randhawa v MILGEA (1994) 52 FCR 437 at 451, in which Beaumont J stated that 'in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants'. In addition the Tribunal refers to Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191, in which Gummow and Hayne JJ said that 'the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising'. The Tribunal has sought to adopt in this case a liberal attitude in consideration of the applicant’s claims in this case.
Applicant’s Refugee Claim
Relevant grounds
The applicants claim to have a well-founded fear of persecution within the scope of s.91R(1)(a) of the Act by reason of their religion as a result of them having rejected Islam and being baptised as Christians.
The scope of ‘religion’ within the context of the Convention was considered in MIMA v Darboy[14] in which the Federal Court referred to the following passage from the High Court’s judgment in Church of the New Faith:
The canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself. Conversely, unless there be a real connexion between a person’s belief in the supernatural and particular conduct in which that person engages, that conduct cannot itself be characterised as religious.
[14] [1998] FCA 931 (Moore J, 6 August 1998). (See also Wang v MIMA (2000) 105 FCR 548 and Liu v MIMA [2001] FCA 257 (Cooper J, 16 March 2001) at [19]-[22]).
The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status provides an overview of the scope of ‘religion’[15] as:
‘71‘The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which right include the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.
72Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.
73.Mere membership of a religious community will normally not be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground.’
[15] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status @ [71]-[73] >
The question of whether an applicant has a well-founded fear of being persecuted for reasons of religion may arise in a variety of factual circumstances and may include the application of generally applicable religious-based laws, departing from orthodox religious beliefs or transgressing social mores, conversion, apostasy and mixed marriage.[16] It will often depend on the motivation of the persecutor or in circumstances where any fear is caused by the operation of generally applicable laws, whether there is a persecutory intent or nature to those laws or to the way they are applied.[17]
[16] To be an apostate does not require conversion from one faith to a different faith but does require abandonment or rejection of the first faith: WZAOO v MIAC (2012) 134 332 at [12], citing W161/01A v MIMA [2002] FCA 285.
[17] See VCAD v MIMIA [2004] FCA 1005 (Kenny J, 4 August 2004) at [35] where Kenny J held that where an applicant has avoided military service for religious reasons there may be a well-founded fear of persecution for reasons of religion if a law, neutral on its face, has an indirect discriminatory effect or indirectly inflicts disproportionate injury, for reasons of religion.
It has been held that persecution for reasons of religion will often involve prohibition against, restrictions on, or punishment for, a particular religious practice.[18] It requires an assessment in the light of all the circumstances, including, where relevant, the ‘central tenets’ of the religion, how an applicant is likely to manifest his or her religious beliefs and the likelihood of that manifestation attracting a persecutory reaction from the authorities.[19]
[18] Wang v MIMA (2000) 105 FCR 548; Woudneh v Inder (unreported, Federal Court of Australia, Gray J, 16 September 1988); MIMA v Zheng [2000] FCA 50 (per Hill, Whitlam & Carr JJ, 10 February 2000)
[19] Pei Lan He v MIMA [2001] FCA 446 (Ryan J, 23 April 2001).
In this case, the applicants claim that they have rejected Islam and converted to Christianity and as such will be persecuted by the authorities if they were returned to Iran. The applicants have provided the Tribunal with copies of their [Church 1] Certificates of Baptism to the Tribunal. In addition, they have provided letters from [Church 2] and [Church 1] in relation to their involvement with each church. Therefore, based on the applicants’ own evidence of their conversion to Christianity and the documentation provided, the Tribunal accepts their claims falls within s.91R(1)(a) of the Act by reason of their religion.
In addition, the applicants submit that their claims fall within the scope of s.91R(1)(a) of the Act by reason of them being members of a particular social group (PSG). As to [the first applicant], he claims that he is a member of a PSG by reason of him having been convicted of drug offences in Iran, having not completed his military service in Iran and fraudulently obtaining a Certificate of Completion of Military Service. In addition, both [the first applicant] and [the third applicant] claim that are members of a PSG as returnees from a western country if they are returned to Iran
To be considered as part of a particular social group, it is necessary for the applicant to share, or be perceived to share, a characteristic with each member of the group. The characteristic must distinguish the group from the rest of society and must be innate or immutable or so fundamental to the identity or conscience of the members of the particular group that a member should not be forced to renounce it.[20]
[20] /Section 5L of the Act
In this case, for the reason expressed in this decision, the Tribunal has reservations about the applicant’s evidence concerning [the first applicant]’s military service in Iran and obtaining a fraudulent Certificate of Completion of Military Service. In addition, the Tribunal has reservations about the applicants’ claim that they would be persecuted as returnees from a western country. In particular, the Tribunal has reservations about it constituting a characteristic that is so fundamental to their identity or conscience for them to be considered members of a PSG to the extent that it distinguishes them and the group from society at large. Nevertheless, for the purposes of this decision, the Tribunal is prepared to accept that they are members of a PSG as returnees from a western country. Accordingly, the Tribunal accepts that the applicant is a member of a PSG pursuant to s.91R(1)(a) of the Act.
Applicant’s well-founded fear
In Chan v MIEA[21] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Dawson J noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[22]
[21] (1989) 169 CLR 379 at 396.
[22] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The subjective element of ‘well-founded fear’ concerns the state of mind of each applicant. That is, whether they hold a genuine fear is a question of fact. In this case, based on the applicants’ evidence, the Tribunal accepts that they have a subjective fear of being harmed in the event that they return to Iran by reason of their religion.
However, to hold a ‘well-founded fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J stated:[23]
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.
[23] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397
In MIEA v Guo, the Court stated that:[24]
Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is ‘well-founded’ when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
[24] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.
The applicants claim that if they are returned to Iran there is a real chance, they will suffer serious harm as a result of them having become Christian and rejecting Islam. For the reasons expressed below, the Tribunal accepts that the applicants have a subjective fear or objective fear of persecution for a reason mentioned in s.91R(1)(a) of the Act by reason of their religion.
However, for the reason expressed below the Tribunal does not accept that the applicant’s hold a well-founded fear, either subjectively or objectively, of being persecuted by reason of their membership of a PSG as claimed.
Applicants Claim as a Refugee
Applicants personal details
[The first applicant]’s evidence to the Tribunal in relation to his personal and family details was consistent with the information provide in his protection visa application. His evidence was that he was born on [Date 1] in Shiraz, Iran and claims to be Persian and a Christian.[25] He claimed that his parents have passed away. His father about 10 years ago and his mother 4 years ago. His father worked as [an Occupation]. He has [number] brothers and [number] sisters, all of whom continue to live in Shiraz, Iran.
[25] [The first applicant]’s statement dated 5 June 2020 @ [1]
The applicant’s evidence was that he attended school in Shiraz until year [level] and left secondary school in 1997. After school he initially worked for his father in the [business] and later for his father in law selling [products]. The Tribunal accepts the above evidence in relation [the first applicant]’s personal and family details as claimed.
[The third applicant]’s evidence to the Tribunal in relation to her personal and family details was also consistent with the information provide in the protection visa application. She was born on [Date 2] in Shiraz, Iran. She is of Persian ethnicity and a Christian. Her parents continue to live in Shiraz, Iran. Her father operates a [business] and her mother is engaged in home duties. She claimed that she attended High School in Shiraz. After which she commenced a [specified] degree but did not finished it. The Tribunal accepts [the third applicant]’s evidence in relation to her personal and family details as claimed.
[The first applicant] and [the third applicant] both stated they were married in 1999 and that their son, [the second applicant] was born on [Date 3] in Shiraz Iran, which the Tribunal accepts.
[The first applicant]’s Military service
[The first applicant]’s evidence was that he commenced his military service when he turned 18 years old. His evidence was that he underwent an initial two months training. He claimed that as a result of having a family member who was an officer in the Islamic Revolutionary Guard Corps (Sepah), [Mr B], he joined Sepah and undertook a further two months training.
The applicant claims that he was stationed for a period of six months as a guard at a Barracks located in the [mountains]. He claimed that the Barracks was exclusively for making, assembly and storage of rockets and other military equipment.[26] He claimed that almost half the military equipment for the country was stored at the Barracks in tunnels under the mountains. He claimed that many of the high-ranking officials would visit the site.
[26] Op Cit @ [7]
The applicant then claimed that he was assigned to the human resources department of Sepah. He claimed that the location of the department was approximately 2km from the Barracks. He claimed that he worked in this position, as an ordinary solider for a period of eight months. He claims that as part of his job he had access to all the information of the military staffed employed by Sepah.
However, the applicant claimed that he left the military service due to his addiction to drugs. He claimed that he was poorly paid, newly engaged and addicted to drugs. As a result, he claims that one day he simply ran away from the military service. The applicant’s evidence was that he left the Barracks and the human resources department of Sepah on a regular basis to purchase drugs. He claimed that the military were aware that he was leaving his position and suspected that he was involved in an illegal activity but did nothing. As a result, he claimed that he simply left his position one night and did not report back.
[The first applicant] claimed that when he did not report back to his position the military police came looking for him. Save for his evidence that he had not returned to his post, [the first applicant] did not provide the Tribunal with any coherent or independent evidence was as to why he believed he was pursued by the military police. In any event, he claimed that he moved from place to place to avoid detention. He stated that [the third applicant]’s family did not approve of their marriage, and as a result they moved to ‘another place.’ The applicant claimed that he and [the third applicant] moved from city to city avoiding the military police for 5 or 6 years, after which they had a child and returned to Shiraz before traveling to Australia.
However, contrary to his evidence that he had moved from city to city to avoid the military police, in response to the Tribunal’s questions he stated that after he left the military, he and [the third applicant] initially lived in a village close to Shiraz where his father had a property before returning to Shiraz, approximately eight months after he had left the military. His evidence was that upon their return to Shiraz, they registered their marriage and rented a property in which to live. He confirmed that he used his real name to register his marriage and rent the property. In addition, his evidence was that he worked for his father-in-law in [a business] for approximately three years before traveling to Australia. However, the Tribunal notes [the first applicant]’s evidence that he married [the third applicant] in 1999, [the second applicant] was born on [Date 3] in Shiraz and that he departed Iran [in] November 2012. As such, it appears he was based in Shiraz for a period of approximately 12 years after his marriage.
[The third applicant]’s confirmed that after they were married, she and [the first applicant] lived with her in-laws for a while before renting their own home in Shiraz.
The country information reports that the Sepah is Iran’s most powerful security and military organization, responsible for the protection and survival of the Islamic Republic.[27] It is a branch of the Iranian Armed Forces, founded after the Iranian Revolution on 22 April 1979 by order of Ayatollah Ruhollah Khomeini.[28] Whereas the Iranian Army defends Iranian borders and maintains internal order, according to the Iranian constitution, the Revolutionary Guard is intended to protect the country's Islamic republic political system. The Revolutionary Guards base their role in protecting the Islamic system as well as preventing foreign interference and coups by the military or "deviant movements".[29] It has around 250,000 military personnel including ground, aerospace and naval forces. It also controls the paramilitary Basij militia which has about 90,000 active personnel.[30]
[27] DFAT Report @ p.64
[28] ibid
[29] AL JAZEERA, ‘The birth of a new class, How Iran’s revolutionary Guard became the country’s political and economic heavyweights’ by MORRIS M. MOTTALE dated 22 April 2010
[30] DFAT Report @ p.64
It is reported that over time Sepah has transformed into a leading economic and political actor. The organization and it’s associated companies are deeply enmeshed in the Iranian economy, with significant interests in the energy, construction, telecommunications, banking, shipping and financial sectors. In addition to its strengths in the security and economic spheres, it also has significant influence in domestic politics and foreign policy.
Having considered the country information in relation to Sepah, the Tribunal finds it unlikely that an organisation with such military, political and economic influence within Iran would not be able to locate [the first applicant] if he had deserted his military position as claimed. In circumstances where the applicant’s evidence was that he had remained in Shiraz working for his father-in-law for approximately three years and used his own name to register his marriage and rent properties, the Tribunal finds it extremely unlikely that the military police or the Sepah itself would not have been able to locate the applicant if he has deserted his position as claimed.
Pursuant to article 151 of the constitution, the Iranian government commits to providing a program of military training for all its citizens to ensure they will be able to engage in the defence of their country.[31] It’s reported that military service is compulsory for men aged between 18 to 40 and usually lasts between 18 and 24 months.[32] It notes that, while most Iranian men will undergo Military service, it is possible to obtain an exemption, but this will depend on the person’s socio economic circumstances.[33] In this case it was [the first applicant]’s own evidence was that he completed approximately 18 months of his military service.
[31] OpCit @ p.55
[32] ibid
[33] Op Cit @ p.56
Therefore, in light of [the first applicant]’s contrary evidence and the available country information about the military, political and economic influence of Sepah in Iran, the Tribunal does not accept the applicant’s evidence that he deserted his position with Sepah or that he was being pursued by the military police as claimed. In circumstances where he had registered his marriage, rented property and worked for a period of approximately three years, he would have easily been detected by the authorities if they had been looking for him as claimed. As a result, the Tribunal does not accept that the military police were pursuing [the first applicant] as claimed.
[The first applicant]’s Completion of Military Service Card
[The first applicant] claimed that as part of his preparations to travel to Australia he paid a bribe to a person in the regular army in the amount of IRR[Amount] (approximately USD$[Amount]) to obtain a Completion of Military Service card from the regular army. [The first applicant] was not able to tell the Tribunal how he arranged to obtain a Completion of Military Service card but stated the person who arranged the card was a friend of his brothers and an officer in the regular army. [The first applicant] was not able to provide any independent evidence of him having obtained the Completion of Military Service card as claimed. In addition, he was not able to provide the name of the person who obtained his card or say how he paid the bribe. He merely said that it was arranged by his brother. Finally, [the first applicant] was not able to provide a copy of the document for the Tribunal.
The Tribunal notes that [the first applicant]’s evidence to the Tribunal was different to the evidence he gave to the First Tribunal in that he claimed he left Iran illegally, using a false document that showed that he had completed his military service with the Iranian navy rather than the army.
In any event, [the first applicant]’s evidence was that once he had obtained the Completion of Military Service Card, he then obtained his Iranian passport to travel to Australia. He claimed to fear persecution if returned to Iran on the basis, amongst other things, that the Iranian authorities might discover that he had illegally procured a Completion of Military Service certificate by bribery.
The Tribunal notes that the applicant has used the Completion of Military Service card for the purposes of obtaining a legitimate passport. It was also his evidence that he departed the country on his passport. As such, if there had been any difficulties with the applicant’s discharge from the military, the Tribunal would have expected that it would be detected at the time of issuing the passport or at least at the time of his departure from Iran. In circumstances where the applicant possessed a legitimate passport, [the first applicant] was not able to say how the authorities were going to detect that he had not completed his military service.
The Tribunal notes the country information which states that Iranian identity documents include sophisticated security features and are difficult to manufacture for fraudulent use.[34] While it may be possible to obtain genuine identification documents with the intention of impersonating a person , DFAT assess that sophisticated border controls procedures would make it difficult to use such a document to leave the country.[35] In addition, the DFAT report[36] notes that secondary forms of documentation, including military exemption cards, while technically more vulnerable to fraud, are expensive to obtain. Contrary to the country information, the amount [the first applicant] claimed he paid for the Completion of Military Service card (IRR [Amount], being approximately UDS$[Amount]) is relatively small.
[34] DFAT Report @ p.72
[35] Ibid
[36] ibid
In light of the vague nature of [the first applicant]’s evidence and his lack of detail in relation to the circumstances in which he obtained a Completion of Military Service card, the fact that his evidence was not consistent with his evidence to the First Tribunal and the available country information, the Tribunal does not accept his evidence that he fraudulently obtained a Completion of Military Service card as claimed. In fact, the Tribunal specifically finds that he did not obtain the Completion of Military Service card fraudulently as claimed.
Even if the applicant did obtain a Completion of Military Service card fraudulently as claimed (which the Tribunal specifically finds he did not), the fact that he possessed a legitimate passport and was able to exit the country without any issue means that it is highly unlikely the Iranian authorities will discover he had illegally procured a Completion of Military Service card.
Therefore, having found that the applicant did not desert his military position with Sepah and that he did not obtain a Completion of Military Service card fraudulently as claimed, the Tribunal finds that there is no real chance the applicant will be seriously harmed by reason of him deserting the military position or obtaining a Completion of Military Service card fraudulently if he is to return to Iran.
[The first applicant]’s Drug Addiction
By his statutory declaration dated 13 August 2013, [the first applicant] claims that he has had been abusing alcohol and drugs since the age of 12 or 13 years old[37] and that he commenced using opium, heroine and ice from about the age of 15 years.[38] In the statutory declaration the applicant details his arrest for drugs in November 2012. He claims that while he was at the police station he was beaten, abused and tortured using electric shocks.
[37] [The first applicant]’s statutory deceleration dated 13 August 2013 @ [3]
[38] Op Cit @ [4]
[The first applicant] claimed that whilst being held in immigration detention in Darwin he was receiving intensive treatment for his addiction to drugs and alcohol. He remained in detention until his treatment was completed. He claims that he stopped taking illicit drugs approximately three years ago and that he takes methadone to manage his addiction.[39] The applicant claims that, as a result of his drug addiction, he suffers mental health problems including sleeplessness, depression and anxiety. He claims that he is receiving medication to help these conditions.[40] [The first applicant] claims that if he returns to Iran he will relapse and become addicted again. He fears that if he returns, he will be arrested and detained by authorities as a result of his prior drug use.
[39] [The first applicant]’s statement dated 5 June 2020 @ [27]
[40] OpCit @ [27]-[31]
The country information reports[41] that illicit drugs are a growing problem in Iran. It’s claimed that in 2018 three percent of the population were addicted to drugs. The Iranian government puts the number of drug addicts in the country at between 2.8 million to 3.6 million.[42] It is reported that Local NGOs claim the reason for the high rate of drug addiction includes the general availability (being close to Afghanistan), economic and social frustration, high rates of unemployment, increased urbanisation and lack of early intervention.[43]
[41] DFAT Report @ p.16
[42] ibid
[43] ibid
The country information reports that Iran, being located along the opium trade route, has the highest rate of opiate drug use in the world.[44] It is reported that there are support services in Iran but noted that social taboos tend to undercut government and NGO efforts to address the issue. At June 2017 there were 1,300 rehabilitation centres for drug addicts nationwide, in addition to nearly 7,500 treatment and harm reduction centres.[45] NGOs are active in the provision of such services, however, it is noted that support services outside Tehran are limited with little financial support.[46] It is noted that of the various treatment methods available, Methadone Maintenance Treatment (MMT) is considered the treatment of choice.[47] It is reported that approximately 700 centres offered MMT to addicts in 2007. The treatment success rate among this group of addicts varies, but a multi-center study revealed a six-month retention rate of 23%, often requiring repeated treatment episodes.[48]
[44] Harm Reduction Journal, Patterns of pre-treatment drug abuse, drug treatment history and characteristics of addicts in methadone maintenance treatment in Iran by , & dated 7 June 2012 DFAT Report @ p.16
[46] ibid
[47] Harm Reduction Journal, Op Cit
[48] ibid
Based the [the first applicant]’s evidence, which is supported by the available country information, the Tribunal accepts that that [the first applicant] suffered from drug addiction while in Iran. However, based on the country information the Tribunal finds that there are available resources for him to receive treatment for his drug addiction in Iran. [The first applicant]’s evidence is that he is currently receiving a Methadone treatment to manage his addiction. From the available country information, it appears that he will be able to access such treatment in Iran. The applicant claimed that if he returns to Iran, he fears that he would fall back into using illicit drugs. However, there was no evidence to suggest that he would be denied access to such treatment for his drug treatment in a discriminatory or systematic manner. As such, the Tribunal finds that there is no real chance that [the first applicant] would be seriously harmed as a result of his drug addiction in the event that he returns to Iran.
Imputed political opinion as a failed asylum seeker
The Tribunal has considered that if the applicants are removed from Australia to Iran as failed asylum seekers and/or forced returnees the possibility that they may be imputed with an adverse political opinion or imputed with a political opinion of being opposed to the Iranian regime and having alleged persecution by the regime abroad.
The advice from DFAT[49] is that, while it is possible that a known dissident may be prosecuted, it is unlikely that an individual simply claiming asylum overseas will be prosecuted as an asylum seeker. The question for the Tribunal is whether the applicant will come to the attention of the Iranian authorities on or after his return to Iran as a failed asylum seeker, and so be imputed with an anti-government political opinion as a result.
[49] DFAT Report @ p.69
The available country information indicates that for a person to be returned to Iran without a valid Iranian passport it would be necessary for them to come to the attention of the Iranian authorities. The Tribunal has noted that [the first applicant] has a valid passport. It has not accepted that he deserted his military position as claimed or that he fraudulently obtained a Completion of Military Service card. It has noted that even if he did fraudulently obtain such a card he was issued with a valid passport. As such, there appears to be no reason why he would be accused of having not completed his military service upon his return to Iran as claimed. DFAT reports that, unless a person were the subject of adverse official attention prior to departing Iran, returnees are unlikely to attract any attention from the authorities and face a low risk of monitoring, mistreatment or other forms of official discrimination if returned to Iran.[50] For the reasons stated above, the fact [the first applicant] was not the subject of adverse official attention prior to departure from Iran suggests it is unlikely to attract attention upon his return. As such, the Tribunal finds that there is no real chance the applicants will be seriously harmed due to being failed asylum seekers upon their return to Iran.
Applicant’s Mental Health
[50] OP Cit @ p.70
[The first applicant] claims that as a result of his drug use, he has suffered mental health issues including sleeplessness, depression and anxiety. His evidence was that he is currently receiving methadone treatment for his drug addiction and sleeping tablets to help with his sleeplessness. He claimed that he had received some treatment for his depression and anxiety while in detention but was not currently receiving regular treatment.
[The third applicant] stated that when [the first applicant] went into immigration detention, she became depressed and she consulted a psychiatrist on several occasions. She claims that she has been diagnosed with depression. The Tribunal was provided with a letter from [Refugee services provider 2] by [Dr C] dated 2 December 2018 which claims that she suffers from depression and that she was prescribed Fluvoxamine. The Tribunal accepts that [the third applicant] may suffer for depression as a result of [the first applicant] having been placed in immigration detention and as a result of her current circumstances.
Finally, the Tribunal notes that [the second applicant] has been referred to [a mental health services provider] by his Doctor in June 2018 as a result of a mental health disturbance due to [the first applicant] being placed in immigration detention. The Tribunal has been provided letters dated 6 August 2019 and 4 June 2020 in relation to his referral to [the Provider]. While the Tribunal accepts that [the first applicant] being placed in detention would have been a stressful and disturbing event for his son, from the documentation provided it is not able to make any assessment as to [the second applicant]’s mental health. Nevertheless, the Tribunal is prepared to accept that he would have suffered depression and anxiety as claimed as result of [the first applicant] being placed in detention.
The Tribunal notes that the country information states that the need for mental health services in Iran is significant.[51] It reports that a study by the Ministry of Mental Health and Medical Education found that nearly a quarter of adults in Iran suffer from some form of mental illness.[52] In particular, a study in 2017 found that 12 percent of Iranian adults suffered from depression and 14 percent from an anxiety related disorder.[53]
[51] DFAT report @ p.15
[52] ibid
[53] ibid
The country information refers to the fact that Iran has had a national policy on mental health since 1986[54] which aims to increase access to mental health services by building psychiatric wards in general hospitals and developing a mental health component in primary care.[55] It is reported that as part its implementation of the Health System Development Plan, the government has increased its availability of counselling services and therapeutic interventions for people suffering from mental health issues.[56] It is reported that the availability of mental health services has improved. In addition, private mental health services are available, but the cost can be prohibitive for the ordinary person.
[54] ibid
[55] ibid
[56] ibid
While the Tribunal accepts that mental health facilities and treatment in Iran are not as good as Australia, the country information reports that mental health services are available to be accessed in Iran. There is no evidence to suggest that the applicants would be denied access to any mental health services in Iran on a discriminatory or systematic basis. As such, based on the available country information the Tribunal finds that the applicants would be able to access mental health services in Iran. As a result, it finds that there is no real chance they will be seriously harmed if they return to Iran by reason of their mental health as claimed.
Applicant’s Christianity Claim
The applicants claim that in Iran they considered themselves as practicing Muslims[57] and upon arriving in Australia they ceased practicing Islam. One or two years after they arrived a friend of [the first applicant]’s, known as [Mr A], travelled from Brisbane to visit them in Melbourne. He is a practicing Christian and [the first applicant] would drive him to Church. On a few occasions both [the first applicant] and [the third applicant] would accompany him to Church.
[57] Statement of [the third applicant] dated 5 June 2020 @ [5]
100.After [Mr A] retuned to Brisbane, [the first applicant] relapsed and went back to using drugs. After having witnessed [Mr A] at Church [the first applicant] discussed with [the third applicant] about attending Church to help him turn his life around. They went to the place where [Mr A] had attended church, but it had been closed. After some enquiry they discovered [Church 1] close to their home and, in or about 2016, they attended [Church 1] for the first time with a friend known as [D]. Their evidence was that their first prayer session started at 9.30am but they both stayed with [D] for the following prayer session at 11.00am, after which they were introduced to the Pastor and welcomed into the Church. They claimed that they met Pastors [E], [F] and the main Pastor [G] and his wife [H].[58]
[58] Op Cit @ [14]-[15]
101.Both [the first applicant] and [the third applicant] then started attending Bible classes with their son [the second applicant] each Tuesday night and attending Church each Saturday afternoon and Sunday morning. The applicants were baptised in [Church 1] [in] October 2016. The applicants presented to the Tribunal copies of their Certificates of Baptism. As such, the Tribunal accepts, they have been Baptised as Christians into [Church 1] as claimed.
102.[The third applicant]’s evidence was that she and her son have had a difficult life as a result of [the first applicant]’s drug addiction. The applicants provided letters dated 30 May 2017 and 26 June 2018 from [Pastor E] of [Church 1] attesting to their involvement in the Church and the difficulties they faced, particularly since [the first applicant] was placed in immigration detention.
103.The country information[59] states that under Iranian Law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. The Penal Code does not specifically criminalise apostasy, but provisions of the Penal Code and the constitution stipulate that sharia applies to situations in which the law is silent, and judges are compelled to enforce sharia-based judgements in such situations. The DFAT report states that while apostasy and blasphemy cases are no longer an everyday occurrence in Iran, authorities continue to use religiously based charges again a diverse group of individuals. These include Shi’a members of reform movements and Muslim born coverts to Christianity.[60]
[59] DFAT Report @ p.36
[60] Op Cit @ p.37
104.In addition, DFAT assess[61] that Muslim converts to Christianity risk arrest and detention if their conversion is revealed. Christians found to be proselytising face high risk of arrest, prosecution and imprisonment. In addition, DFAT assess that Christian converts face high risk of social discrimination in the event their conversion becomes widely known, particularly if they are from a religiously minded Muslim family.[62]
[61] Op Cit @ p.34
[62] ibid
105.[The third applicant] claims to have turned to Jesus Christ. She claims that He has entered her heart and soul and that she has given her life to Christ. She has studied at [Church 1] for approximately four years. In or about July 2019 [Church 2] was established upon which she commenced attending [Church 2] on Sundays and for bible class. During the Covid-19 pandemic she has continued attending [Church 2] services conducted via Skype. The applicants provided a letter by [Pastor I] of [Church 2] in support of her involvement in [Church 2]. As such the Tribunal accepts that she now attends [Church 2] as claimed
106.[The first applicant] claims that while he has been in immigration detention, he has maintained his religious beliefs by speaking to [the third applicant] and listening to Christian studies online.
107.However, [the first applicant] was not able to demonstrate any knowledge of the Christian faith. He was not able to articulate what it meant to be Christian and was not able to tell the Tribunal about the Lord’s Prayer. [The first applicant] only demonstrated at best a simplistic understanding of Christianity. While the Tribunal accepts that he did attend church and bible classes, it would have expected him to have developed a deeper understanding of the Christian faith. As such, the Tribunal is not satisfied that if [the first applicant] returns to Iran he would maintain his Christian faith as claimed and engage in proselytization of the Christian faith. The Tribunal notes country information that states Iranians who have converted to Christianity abroad are unlikely to face adverse official attention upon their return provided they maintain a low political profile and have not engaged in proselytization activities. By a letter dated 19 June 2020 the applicants have provided copies of [social media] accounts which display posts and videos of their religious and Christian belief. They claim that they share these social media accounts, however, on viewing the material it is clear most of the posts were made by [the third applicant] and not [the first applicant]. [The third applicant]’s evidence was that her sister and her brother in law had noticed her posts and were asking if she had converted to Christianity. Therefore, notwithstanding that they share the social media accounts, it does not appear that [the first applicant] has engaged in any proselytization of his Christian faith that would bring him to the attention of the authorities. As such, the Tribunal finds that there is no real chance that [the first applicant] would be seriously harmed if he was to return to Iran.
108.In contrast to her husband, when asked by the Tribunal what it meant to be a Christian, [the third applicant] stated that it was to follow Jesus Christ and to walk in his path. She was able to demonstrate an understanding of the Christian faith including the Lord’s Prayer. Her belief in the Christian faith is supported by her posts on social media. The letter provided by [Church 1] and [Church 2] demonstrate that she has been an active member of each church with continued contact. Her evidence to the Tribunal was that as a woman she felt like a valued member of her Church. She claimed that in Islam women were not given any value and treated poorly, including by men being able to punish their wives.
109.The Tribunal accepts that [the third applicant] is a person who has left the Islamic faith. She appears to have deep belief and commitment to the Christian faith. Based on her evidence, the Tribunal is of the view that she is a person who will continue to proselytise her faith if she is returned to Iran. Having considered the relevant country information, the Tribunal accepts that there is a real chance she will be seriously harmed if she is returned to Iran by reason of her conversion to Christianity.
110.As to [the second applicant], the Tribunal accepts that he attended church with [the first applicant] and [the third applicant] as claimed. It accepts that he has been baptised. However, the Tribunal was not provided any evidence of his faith and his practice as a Christian. Therefore, based on the available country information the Tribunal finds that there is no real chance [the second applicant] will be seriously harmed if he is returned to Iran by reason of his religion.
Complementary Protection Criteria
111.In considering whether the applicants met the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.
112.The applicants claims that they satisfy the requirements under s.36(2)(aa) by reason that they face a real risk of significant harm for the same reason as they face a real chance of serious harm pursuant to s.36(2)(a) of the Act.
113.In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[63] Save for its finding in relation to [the third applicant]’s claim as a Christian convert, the Tribunal has made earlier findings that the applicants do not face a real chance of serious harm arising from their claims. As the ‘real risk’ test is the same as the ‘real chance’ standard, for the reasons stated above in relation to each of the applicant’s claims, the Tribunal does accept that there are substantial grounds for believing that there is a real risk the applicants will suffer significant harm as a necessary and foreseeable consequence of the applicants being removed from Australia and returned to Iran. Similarly, given that the real risk test is the same as the real chance test the Tribunal accepts that there is a real risk that [the third applicant] will suffer significant harm if she is returned to Iran as a Christian convert as claimed.
[63] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].
114.At no stage did the applicants advance any other reason in their written or oral claims that the applicants are owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicants’ accepted circumstances, to be considered.
115.As such, having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of [the first applicant] and [the second applicant] being removed from Australia to Iran, there is a real risk they will suffer significant harm as required by s36(2)(aa).
Member of the same family unit.
116.The applicants claim that they are all members of the same family unit pursuant to s.36(2)(b) of the Act. Reg 1.12(4) of the Act provides that a person is a member of the same family unit if they are a dependent child or dependent on the head of the family. Reg 105A provides that a person is dependent on another where they are wholly or substantially reliant on that person for financial, psychological or physical support.
117.In this case, the Tribunal has accepted and found that [the first applicant] and [the third applicant] are husband and wife and [the second applicant] is their son. In such circumstances the Tribunal finds that they are all member of the same family unit pursuant to ss.36(2)(b) of the Act.
118.Therefore, having considered [the first applicant]’s and [the second applicant]’s claims singularly and cumulatively, the Tribunal finds that there is no real chance that they will suffer serious harm if they are returned to Iran. As such, the Tribunal finds that they do not not face a real chance of serious harm, now or into the reasonably foreseeable future, for any reason.
119.However, while the Tribunal is satisfied that [the first applicant] and [the second applicant] do not satisfy the criterion set out in s.36(2)(a) it finds that they are members of the same family unit as [the third applicant], being a person who satisfies s.36(2)(a) or (aa) of the Act.
CONCLUSION
120.For the reasons given above, the Tribunal is satisfied that [the third applicant] is a person in respect of whom 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) and as a result ss.36(2)(a) of the Act.
121.For the reasons given above, the Tribunal is satisfied that the [the first applicant] and [the second applicant] are not persons in respect of whom 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) and as a result ss.36(2)(a) of the Act.
122.However, the Tribunal has found that [the first applicant] and [the second applicant], pursuant to s.36(2)(b), are members of the same family unit as [the third applicant], being a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, they satisfy the criterion in s.36(2).
DECISION
123.The Tribunal remits the matter for reconsideration with the following directions:
(i)that the third named applicant satisfies s.36(2)(a) and s.36(2)(aa) of the Migration Act; and
(ii)that the other applicants satisfy s.36(2)(b)(i) and s.36(2)(c)(i) of the Migration Act, based on their membership of the same family unit as the third named applicant.
Jason Pennell
Senior MemberAnnexure A
Christians[64]
[64] DFAT Report @ p.30
3.37 According to the most recent national census (2016), there are 130,000 registered Christians in Iran. Ethnic Armenians concentrated in Tehran and Isfahan are the largest group of recognised Christians. Other recognised Christian groups include Assyrians, Chaldeans and Sabean-Mandaeans, although the latter group does not self-identify as Christian. Those citizens able to prove they or their families were Christian prior to 1979 are also recognised. Conversions after 1979 are not recognised (see Unrecognised Christian Groups (House Churches)). The ethnic churches have different denominations – there are Assyrian Catholic, Orthodox and Presbyterian congregations – but the members of the various denominations maintain close links within their own community. Because the law prohibits citizens from converting from Islam to another religion, the government only recognises these groups because their presence in Iran pre-dates Islam. Recognised churches are required to deliver sermons in their traditional language. Farsi-language services are not permitted, as they could promote proselytisation. There are approximately 20 officially recognised Christian churches in Iran. All pre-date the Islamic Revolution (the authorities have not granted permission for the construction of new churches since 1979).
3.38 The activities of recognised Christian communities are closely regulated, to guard against proselytisation. All Christians and Christian churches must be registered with the authorities, and only recognised Christians can attend church. Security officials closely monitor registered churches to verify that services are not conducted in Farsi and perform regular identity checks on worshippers to confirm that non-Christians or converts do not participate in services. Authorities have closed several churches in recent years for failing to comply with these restrictions, including churches that had existed prior to 1979.
3.39Despite these restrictions, community leaders associated with recognised churches report that the authorities respect their religious rights, and their communities are able to act freely in their own spaces without government interference (including holding mixed-gender gatherings, using alcohol for ceremonial purposes and allowing women to uncover their heads). A local Christian from Tehran told DFAT they experienced no official or societal discrimination and felt comfortable practising their faith.
3.40DFAT assesses 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 proselytisation activities face a low risk of official discrimination.
Religiously-Based Charges[65]
[65] Op Cit @ p.36
3.73Under 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.
3.74Politically-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.
3.75While 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.
3.76Today, 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.
3.77DFAT 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.
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