2003902 (Refugee)

[2021] AATA 3197

2003902 (Refugee) [2021] AATA 3197 (1 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2003902

COUNTRY OF REFERENCE:                   Iran

MEMBER:Denis Dragovic

DATE:1 June 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 01 June 2021 at 8:25am

CATCHWORDS
REFUGEE – protection visa – Iran – Federal Circuit Court remittal – overlooking or ignoring country information that was significant – consequence of having tattoos – low risk of official discrimination – religion – Christianity – initial engagement – changes to life – Bible reading and prayer – church attendance – proselytising – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 91S
Migration Regulations 1994 (Cth), Schedule 2

CASES
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

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

1. 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 applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant claims to be a citizen of Iran. I viewed a copy of an untranslated identity card and note that the applicant participated in hearings using a Farsi speaking interpreter. For these reasons and there being no contention over the applicant’s nationality I am satisfied that the applicant is a citizen of Iran.

3. The applicant arrived in Australia [in] July 2012 as an unauthorised maritime arrival and applied for the visa on 12 November 2012. The delegate refused to grant the visa on 3 July 2013.

4. The matter is before the Tribunal because of a Court order. The previously constituted Tribunal fell into jurisdictional error by overlooking or ignoring country information that was significant in the context of the review: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431. The relevant country information stated that a possible consequence of having tattoos was lashing.

5. The applicant appeared before the Tribunal on 19 March 2021 and 7 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from [Pastor A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

6. The applicant was represented in relation to the review.

   RELEVANT LAW

7. 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

8. 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).

9. 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.

10. 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.

11. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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

18. 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’).

19. ‘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.

20. 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

21. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Evidence and findings of fact

    Tattoos

23. The applicant stated that from an early age and being the youngest child of the family, he developed an interest in tattooing. The tattoos on his body caused distress to his family, leading to his family disowning him and asking him to leave home. He claims that during this period he was subject to a lot of chastisement by his brother.

24. Despite this treatment, he claims that he did not give up his idea of tattoos. Instead, he left his home and went to live with a friend where he claims to have furthered his interest in tattooing as an art.

25. In early 2012 he claims that he was arrested by the Basij while having a chat with a friend at a road junction. He described the incident as a Basij vehicle stopping and questioning him, asking why he dyed his hair as a woman. They then decided to arrest him and detained him with zip ties and then put him in the car. He claims that he managed to open the door on the other side and run away.

26. The applicant claims that he first hid at a friend’s place for a few nights. A few days later he decided to meet with another friend who was a tattoo artist to learn how to do tattooing. The applicant claims that he laid low, living with friends until around May 2012 when according to the applicant, at around 8.30pm, after he had been taught by the same tattoo artist how to use the needle machine, some people entered, sprayed them with something, handcuffed them and put head covers on. He was taken on a drive for about an hour to a compound. He recalled at the hearing that as they entered the room, the others asked, ‘who are these people’ and the response was summarised by the applicant as being, ‘they are the guys who ignore the rules and laws of this country and are trying to convert to Christianity.’

27. In a statutory declaration dated 1 November 2012, the applicant described the incident as:

    They then took us to their headquarters. It was there that I was tortured by the Basij. They connected electric shocks and tazers to the area of my tattoos. They persisted to kick and beat me with their fists and legs. They continued saying ‘this person is a Christian, he is against Iran’. They said that I should be tortured and punished for being involved in tattoos.

28. In a later statutory declaration dated 18 February 2021, he provided more details:

    I could hear someone asking “who are these people you have brought?” They were responding that they we were against the rules. They said things like “look at them they are dressed like gays, they were doing tattoos, this one has a Christian tattoo he is probably a Christian”. As I was standing there someone came and slapped me and kicked me. I asked “why are you hitting me?” I heard a noise like a “ta-ta-ta” and my leg was hit with a shocker or taser. I collapsed on the ground and people started kicking me. I was crying, screaming, “please don’t hit me”. They were telling me to shut up. They were saying “you are a parasite to the public”. One of the kicks hit me in the face and I passed out.

29. At the hearing he continued his recollection of that night by saying that they blindfolded him, abused him, kicked him and when he went down they kept kicking him again. He claimed that they kicked him in the face and broke his nose.

30. The applicant claimed that when he gained consciousness, he was wearing blue clothes and slippers and his face had bandages. Feeling very frightened and dizzy he asked hospital staff if he could use a phone and so they gave him one and he called a friend. His friend told him to get a taxi and go straight to his house. The applicant claimed that he then got a taxi, went to the friend’s house and asked his friend to pay for the taxi.  I queried the applicant about the taxi driver not questioning a passenger wearing a hospital gown to which he said that the driver did not ask. I asked whether the taxi driver would have been worried about him not having a wallet, he said that the driver would not know whether he had his wallet.

31. I asked if he thought that he had become a person of interest to the authorities. He said that he is not sure if they knew his identity. But he said that he fears his family dobbed him in. He was frightened that he would be chased again.

32. The applicant explained that his family is very religious and are strong believers in the Koran. He said that they follow what is written, such as the verse, ‘you shouldn’t harm your body as God gifted it to you.’ For that reason they believe a person with a tattoo is not a Muslim. He said that they dislike him but he can’t say if they have acted against him, such as reporting him, as he has been in Australia a long time and he hasn’t spoken to his mother through the whole period. He told the Tribunal that he speaks with only one sister. He said that his mother has disowned him saying that she doesn’t have such a son, and does not even mention his name.

33. I asked if it was shameful for his family to have a son or a brother who is tattooed like him. He responded that it is shameful. He said that people with tattoos are portrayed as being bad in Iran and his family believes that he is in the same cohort. I asked if he believed that his family would take action against him; he did not indicate that they would. I put to him that it seems based upon the evidence he had given that there is no societal pressure for the family to take action against him. He responded that it is not just the family but other people who he is judged by. He said that the family and the state want people to live according to the ‘book’ but he doesn’t want to live the life they choose. I asked what is the worst that can happen, to which he responded that they thought that he breached Islamic belief and they decided that he has no religion, is an atheist and is doing things against the religion. He said that the people who rule Iran have created a situation where a person with tattoos is looked at in a bad way.

34. I asked the applicant why he couldn’t use laser treatment to remove the visible tattoos. He responded that he wouldn’t do it because tattoos are his interest.

35. The applicant showed some of his tattoos at the Tribunal hearing and described others. In total he has at least [number] tattoos, six to seven of which he recalls that he got while living in Iran and the remainder in Australia. The tattoos are:

    ·A cross on his [Body Part 1] about [number] cm in length that is visible even when wearing long sleeves. The cross is not necessarily identifiable as a Christian cross as it is simply two lines, one shorter and one longer, and may, for example, resemble a sword.

    ·A [shape] that looks like [specified symbol] on his [Body Part 2] that he claims was in memorial of his father.

    ·A [symbol] on his [Body Part 3] accompanied by a Persian poem that roughly translates to “[redacted]”. This tattoo is approximately [number] cm radius.

    ·On his [Body Part 4] he has an [symbol] the size of his ear.

    ·Next to his [Body Part 5] there are [number] short, one centimetre, lines.

    ·On the right side of his [Body Part 4] he has the word ‘[redacted]’ written in large words reaching to about [number] cm.

    ·On the back of his [Body Part 4] he has [specified design] that is about [number] cm radius.

    ·He has [design] tattooed on [Body Part 6] spelling out ‘[word redacted]’ as well as some additional symbols ([specified]) on each [Body Part 6].

    ·His [Body Part 7] has a [design] that stretches the full length of his [Body Part 7] and through to [Body Part 8].

    ·On the underside of his [Body Part 1] he has a [symbol] that is [number] cm in diameter.

    ·He has a [symbol] on his [Body Part 9] that is about [number] cm long.

    ·On both his left and right [Body Part 10] he has tattoos, one of an [specified design] and the other of a [different design].

36. I accept that the applicant has all of the tattoos described above. I accept that at least [number] were done while in Iran and the remainder while in Australia. I find that the applicant undertook the tattooing in Australia for the reason of his passion for tattoos.

37. With regards to the claimed incident in which a Basij member arrested him and the second incident in which he claims to have been detained and subsequently beaten and hospitalised, there is country information that suggests that people with tattoos face a low risk of official discrimination. This indicates that it does occur, albeit rarely, but nevertheless it is evidence in support of his claim that it occurred. The Guardian newspaper reports of a situation faced by one Iranian as:

    I get many negative reactions,” Mahsa says. “I hide my tattoos when I walk through the city, because it can be dangerous. People can associate the one on my neck with the evil eye and see it as a satanic thing. But it has nothing to do with that. I just think it’s beautiful.[1]

    [1] 'A silent act of resistance': the hidden tattoo studios of Tehran’, 4 February 2019, The Guardian

38. Alternatively, in the same article there are other references to tattoo artists being influencers on Instagram and having well known businesses. DFAT states that it ‘is not aware of the authorities targeting people on the basis of a ‘Western’ appearance or for having visible tattoos.’[2] When the DFAT information was put to the applicant he responded that Iran would put such information out as they want to cover up their actions and appear nice. But, he said, they beat people with tattoos in the streets. He said that there is information available on the internet about how gays, tattooists and people with tattoos are treated.

    [2] DFAT, ‘DFAT Country Information Report: Iran’ 14 April 2020 at [3.137]

1. While DFAT may not be aware of authorities targeting people on the basis of having tattoos, this does not necessarily mean that it does not occur. In addition, the DFAT report of 2020 does not necessarily reflect the circumstances the applicant faced in 2012. Contemporaneous country information includes:

   a.According to international media sources, in January 2011, Iran imposed a stricter dress code at some universities, banning women from wearing bright clothes, short or tight jeans, having long nails, tattoos, body piercings, and wearing hats without veils.[3]

   b.Ali Hussein, a young Iranian living in Dubai, told RFE/RL's Radio Farda that during a trip to Iran he was stopped by a police officer who fined him for "wearing a tattoo – and therefore harming his own body."[4]

   c.“According to two sources, new police officers have been assigned to enforce the dress code (RFE/RL 19 Apr. 2006; BBC 21 Apr. 2006). HRW reports that the Basij militia are involved in enforcing the ‘‘morality’ campaign’ (17 May 2007). The Guardian reports that Amaken-e Omoomi ‘a police body for regulating businesses’ is responsible for closing down barbers and hairdressers (25 Aug. 2007).”[5]

   d.The use of torture is becoming less discriminate, whether on the basis of seriousness of the suspected offence or any distinction between political and criminal offences that may have existed at the time of the relevant determinations. As has been documented, torture is becoming a routine investigation method that is applied regardless of the offence in question; as evidenced by the courts’ corresponding willingness to accept confessions and statements procured under duress in a wide variety of prosecutions.”[6]

   [3] Reuters, 10 January 2011, Ramin Mostafavi, "Iran Bans 'Tight Jeans,' Tattoos at Some Universities."

   [4] Radio Free Europe/Radio Liberty, Iran: Wrapping up for winter, and the morality police, 13 December 2007, available at:

   [5] United Kingdom: Home Office, Country of Origin Information Report - Iran, 6 August 2009, available at: [accessed 26 May 2021]

   [6] United Kingdom: Home Office, Country of Origin Information Report - Iran, 6 August 2009, available at: [accessed 26 May 2021]

2. Based upon contemporaneous country information, along with the applicant’s own evidence, I am satisfied that the applicant was harassed by the Basij and then detained and treated as claimed.

   Christianity

3. The applicant claims that his mother forced him to learn Koranic verses. He said that they ignored the fact that he was at an age when he instead needed love. When he didn’t learn the verses, he would be beaten by force. He said that he was forced to go to the mosque and pray and that he never felt that he absorbed the love of Islam. He emphasised that he never had an interest in Islam and when he arrived in Australia, he was facing a lot of stress and he felt abandoned by his family.

4. He claims to have then met a friend in [Suburb 1] library who noted that he was troubled and upset. His friend was known to him as a Christian who had changed his beliefs. He said that he started going to church on Saturday evenings with this friend. As he wasn’t able to cook for himself and they would provide food, he enjoyed attending. Initially, he said that he was mainly interested in getting there so that he could speak to someone in Farsi as he didn’t speak English and he wanted to eat something. He said that he didn’t think about the possibility of any risk that may arise in the future by attending the church.

5. In a post-hearing submission the applicant provided more information in response to concerns raised at the hearing that he had engaged with the Christian church because of his circumstances. He wrote:

   It is true that I drew a sense of community from the church, the people who attend, who are now my friends and my family, and from [Pastor A]. But my sense of faith is separate to the community and the kindness and affection. My faith is separate. I read the bible and I talk to God in my daily life. He tells me I should do good things. I thank Him for my life, for breath and for my life. Even small things like parking in an illegal spot, or if I find money on the ground - He tells me not to do that, or to hand the money in. He also influences my bigger life decisions. Jesus says, if you get married, you are making me happy. I have a girlfriend who is [from Country 1], and she is Catholic. Our beliefs are a bit different but we believe in the same God. I want to get married one day.

6. The applicant claimed that he felt warm and welcomed when he was with the church community and that he hadn’t seen that sort of care before. He continued to go to church and started communicating with the pastor, [Pastor A]. They had a few common points as [Pastor A] came from Iran and was formerly a Muslim. At some stage [Pastor A] presented him with a Bible and told him that God willed it that the applicant was present with them. This kindness, he claimed, led him to join the Bible study classes. The applicant said that it took a while for him to embrace Christianity. He said that he had rejected his prior religion and so wanted to study this new religion before committing. He claimed to have first studied the book of Matthew. He recalled that after some study, it was around 2015, he decided to tell [Pastor A] that he wanted to become a Christian. In a post-hearing submission, he described the difference he felt between the two religions: ‘One thing is that Muslims are always scared about God. They are always saying, sorry I did this, fearing God. Christians are always thanking God because God gives us everything. Jesus Christ died for us and He forgives our sins. Christians are not fearful of God.’

7. I asked the applicant what activities he did as a part of his faith. He said that he would do any task referred to him. As he was there every week, he would move furniture through to going to purchase food. In addition, he said that becoming Christian led him to try to practice the Ten Commandments. I noted that despite repeatedly asking him about changes in his behaviour, activities, or sense of obligations he never mentioned proselytising. When I put this to him, he said that he is not in a position to share the message of Christ with others. Instead, what he does is to invite people to the church and then [Pastor A] is there to explain the rest. In a post-hearing submission, the applicant added more detail. He wrote, ‘part of being a Christian is about sharing the book, sharing the word of God. Every week there is a bible study group and I used to go regularly, until I obtained work rights, but I often now work weeknights and cannot always attend.’

8. The applicant also wrote:

   I told the Member that I needed to bring other people to God as this is my duty as a Christian. Jesus said, if you believe me, you should talk to other people and bring them to me. If you do not do that, you are not a Christian. We had a lot of English books at the market explaining about Jesus Christ. We would hand them out to people at the market with [Pastor A].

9. He claims that he brought two Iranians to the church and they eventually went through the baptism process but when I asked him what their religions were before he wasn’t sure.

10. I asked why he couldn’t be kind to others and continue to read the Bible while in Iran? He said because he was born into an Islamic family, he fears he would be sentenced to death. He said that the duty of a Christian is to spread the word and if he goes back, he will have to do it in Iran. He said that Christ said that if you deny me then you cannot be a Christian. I put to him that it doesn’t sound like he has been doing that here in Australia. He said that here in Australia ‘we are like lambs’, [Pastor A] is our shepherd and it’s not up to him to spread the word, but he will have to do it if he goes back to Iran. I put to him that he is not spreading the word in Australia so why would he have to in Iran. He said that he is not at the level to teach, nor does he have the English language ability, but if he goes there, where he speaks the language, and doesn’t have a leader like [Pastor A], he will have to take it upon himself.

11. I noted that he claims to publicly proselytise in [Suburb 1] Market and that his representative has remarked that he appears on the Church’s [social media] page. Yet he wrote in his statutory declaration dated February 2021:

    I no longer have the contact details of my friends in Iran, I have lost connection with all of my friends. I am scared to tell anyone that I am living here. I am scared because I think the Iranian government could do anything to me.

12. I put to him that he has a [social media] page in his name with pictures of Christianity on it and that his claims in his statutory declaration of being scared do not align with this sort of action. He said that he opened the [social media] page in 2019 and that he doesn’t believe his [social media] page would be a problem.

13. I noted that he wrote that he is ‘scared to tell anyone that I am living here’ and yet on his [social media] page it states that he ‘Lives in Melbourne’. He said that the statutory declaration was from before becoming Christian. I corrected him and noted it was from February 2021. He then suggested that his [social media] page is in Australia and the Iranian government limits people to have access to [social media].

14. I put to the applicant that if he was so afraid as not to keep in touch with his oldest friends, why has he not asked the pastor to take down the picture of him on the Church’s [social media] page? ([Pastor A] submitted a statement to the Tribunal: “[the applicant] and I are friends on [social media] and there are photos of [the applicant] on [social media] attending church activities.”) I further added that [Pastor A] expressed fears of the government monitoring the church’s website. The applicant said that he cannot deny his belief in Christianity and that he has to share his message. He said that he has to speak to his promise from Christ, that if you deny me then I will deny you.

15. I asked the applicant how he saw himself changing because of his faith. He said that it was through the love of God that he feels in his heart, the blessing that he has and passing this kindness to other people but not through coercion.

16. [Pastor A] provided evidence as a witness. He said that in their culture if someone has tattoos on their face, the community creates a lot of problems for that person. Whoever sees this person with tattoos on their face, they assume that he is a drug dealer or a troublemaker. He added that the applicant does not have a level of education that is accepted in Iranian culture. When he came to the pastor, he was extremely depressed and was seeking some refuge. He has changed to now trust people and sees that there are a lot of kind people. He tries his best to practice the teachings of Christianity. He may not be able to fluently speak about Christianity but that would be due to his educational background.

17. The applicant appears to have adopted Christianity, but the question is whether he sustains this embrace for reasons of social isolation and feelings of hopelessness, or he has embraced his new faith with all his heart. I note that the applicant described the impact upon him was he to return to Iran as leading to a ‘spiritual death’, as he would be unable to grow spiritually. The applicant has argued convincingly that he is on a pathway of spiritual development.

18. It is necessary to make a finding of fact on the applicant’s beliefs reaching into the reasonably foreseeable future. In this regard I find that the applicant’s initial engagement with Christianity was not spiritual in nature. I do not find that it was artificial or intended to further his visa, but rather that he went to church because he was lonely, hungered for familiar food and sought to speak with people in his own language. Churches are places of community and so this is not a surprise. The applicant has been involved in his church community for over five years. Since this time, he has developed knowledge of Christian scriptures and shown some changes in his life. They are not major changes, but they could be costly changes in the context of Iran.

19. I accept that the applicant reads the Bible regularly and will continue to do so as he was well versed in its content and was able to respond in a manner representative of his claimed commitment to studying the Bible when I put to him the conundrum of Matthew 6:5-6. In those two versus, the Evangelist St Matthew writes:

    5 “And when you pray, do not be like the hypocrites, for they love to pray standing in the synagogues and on the street corners to be seen by others. Truly I tell you, they have received their reward in full. 6 But when you pray, go into your room, close the door and pray to your Father, who is unseen. Then your Father, who sees what is done in secret, will reward you.

20. I put to the applicant that according to these verses participating in communal prayer is not necessary. The applicant responded with an answer that did not go to the heart of the issue but showed some appreciation of the verses and the context. As such, I asked that he reflect on that question and make a post-hearing submission. In the submission he wrote:

    I do not think this means that we should always pray alone. When Jesus Christ says: 'But whenever you pray, worship the heavenly Father alone and in private' it means that we should focus all our attention on God, not ourselves. And do not pretend to be religious. We need to get rid of worldly thoughts when we talk to God. This does not mean that we should pray only privately and alone. In Christianity, praying with other believers is very important and necessary. The important point is that we should all look to God alone in prayer. Not trying to get others to pay attention to our prayers by pretending to be godly. This was stated in Matthew by Jesus Christ because many Jewish leaders in those days worshiped in public places to see others and to say what righteous and pious people they were.

21. The applicant went on to write that he had also engaged with [Pastor A] about the passage. I am satisfied that the above quoted reflections are those of his own as they align with the level of understanding of Christianity he exhibited at the hearing and are commensurate to the study he claims to have made.

22. I accept that the applicant prays regularly and will continue to do so. I also accept that the applicant, free from fear, would attend a church regularly for reasons of his spiritual growth even if he was in an environment that satisfied his social and economic needs. I accept both of these for the reason that the applicant has shown a long-term commitment to prayer and attending church, a Biblical understanding of the importance of both and because of the evidence given by [Pastor A] regarding the applicant’s conversion. With regards to the latter, [Pastor A] had written in a statutory declaration:

    After about a year of talking and spending time together he came to Christ. I remember he came to bible studies, and he started sayin that Islam is not a religion from God. He told me at one of the bible studies class that he accepted Jesus as his saviour, in his heart. He said that he had spent a good amount of time learning about Christianity, and in particular he saw the love and support of the Christian community. He described this love as being very different from what he saw in the Muslim community. He told me that he wanted to be a Christian…I watched him reject Allah as God, and Mohammad as the holy prophet.

23. Regarding proselytising, the applicant has made tentative steps in fulfilling a role that he claims to be central to his faith. He has spent time manning a booth at [Suburb 1] Market which exposes him publicly as a convert and he has brought friends to his church. He was unsure how many times he has attended but [Pastor A], in a statutory declaration claimed that it would be approximately 20 times. The pastor describes the volunteers as ‘evangelist volunteers’ who go to [Suburb 1] market where there are a lot of Muslims and there they ‘spread the word of Jesus’. The pastor described the applicant as an ‘active volunteer’.

24. It appears that the applicant is willing to play a role in evangelism under the guidance of a church leader or together with a group. This is not a problem from a faith perspective but when considering how the applicant will act was he to return to Iran, free from fear, I find that into the reasonably foreseeable future he will try to tell others of his faith in a positive manner and endeavour to convince others to convert, not in a methodical manner, but rather in an ad hoc or opportunistic way when he was comfortable with the interlocutor. I do not accept that he would, free from fear, organise his own stalls at Iranian markets as he does in Australia where he does so only because of the community that surrounds him.

    Considerations

25. I read to the applicant country information regarding Christian converts in Iran noting that ‘the authorities do not actively search for Christian converts...DFAT assesses that a Christian convert would not face harm if they maintain a low profile, do not openly proselytise and are not of interest to the authorities for other reasons. Official sources told DFAT that converts who keep their beliefs private are not of interest to the authorities.’[7]

    [7] DFAT, ‘DFAT Country Information Report: Iran’ 14 April 2020 at [3.56]

26. The applicant responded that Iranians don’t tell the truth. They don’t provide correct information. He said that in 1990 a law was passed that the sentence for anyone who changes their religion is execution. It is not a law-abiding country, he said. They do whatever they like and cover up things. 

27. I read to the applicant other country information:

    International observers report that Iranians who convert to Christianity abroad are unlikely to face adverse official attention upon their return, provided they have not previously come to the attention of the authorities for political activities, maintain a low profile and do not engage in proselytisation activities. This includes individuals who publicise their conversion online while abroad.[8]

    [8] Ibid [3.57]

28. The applicant responded that he cannot deny his belief in Christ. He said that he has to do something about it. He said that Australia is a good place with a diversity of belief. In Iran that is not the case, thousands are killed because of their actions.

29. I have found that the applicant will continue to read the Bible and pray. Both of these actions, I am satisfied, will not lead to the applicant facing a real chance of serious harm or a real risk of significant harm. In addition, I have found that, free from fear, the applicant will seek to participate in a community of Christians and practice his faith in a church. This, unlike studying the Bible and praying, could under certain circumstances lead to harm.

30. The quotes from the DFAT report suggest that converts would not face harm if they did certain things including maintaining a low profile and not proselytising; such converts are not of interest to the authorities. The applicant does not preach, he is not a church leader nor is he an activist in any sense. While I found the applicant would tell others of his new found faith, I also found that it would be ad hoc and opportunistic and focused on those he felt comfortable with, which I find would not expose the applicant to the level of harm described in country information arising from proselytising. Proselytising is defined by the Cambridge dictionary defines as, ‘to try to persuade someone to change their religious or political beliefs or way of living to your own’.[9] There is a distinction between the applicant sharing his faith with those he is comfortable with, in essence telling them about himself, and actively trying to persuade someone to change their religious beliefs. I find that his practice of his faith is low profile. He prays alongside a congregation and otherwise contributes to a community. Were it only a matter of maintaining a low profile, based on how he practises his faith, I would not be satisfied that he has a well-founded fear of persecution. But the applicant has visible tattoos and will share with others his faith albeit tentatively.

    [9] type="1">

31. While the applicant isn’t of interest to the authorities in the sense of being on a watch list or having a criminal record, he would be of a higher likelihood of coming to the attention of the authorities because of his prolific tattoos. The applicant has tattoos across his body including in visible areas such as his [specified body parts]. This visibility will raise his profile to potential persecutors such as the Basij or at immigration. They may at some point ask to see his tattoos. Upon seeing them, they may be led to enquire about the applicant’s religious beliefs because he has symbols that could be interpreted as being a Christian cross and a [specified symbol]. There are a number of contingencies in this series of events that would need to occur, but country information suggests that on at least one occasion there will be a degree of targeted enquiry:

    Those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are traveling on a laissez-passer. Questioning usually takes between 30 minutes and one hour, but may take longer where the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history on the part of the returnee.[10]

    [10] Ibid [5.29]

32. The applicant’s own experiences, which I accepted as fact, were that once he was caught by the Basij, his then tattoos which included a symbol that may appear to be a cross, were identified, and he was accused of being a Christian (see [27]).

33. Even if the applicant was to pass through immigration without being challenged about his faith or the authorities caring about activities undertaken while abroad, as country information suggests[11], the applicant will seek out a faith community and share with others his conversion. To do this in the context of Iran, the applicant would be required to seek out a house church. DFAT describes these groups as small family and friends’ based entities. As the applicant does not have family or friends to introduce him, he would have to tentatively reach out and seek to find one or alternatively be forced to cease practising his faith out of fear of openly enquiring. DFAT notes that while members of large congregations have been arrested and prosecuted, they determine that it is ‘not common’ and ‘most are released.’[12] Overall, DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed.[13]

    [11] Ibid

    [12] Ibid [3.55]

    [13] Ibid [3.58]

34. Based upon this information and the applicant’s future actions, I am satisfied that he will be arrested and detained if not prosecuted. As such, I find that the applicant faces a real chance and a real risk of harm. I now turn my mind to consider whether the harm amounts to serious or significant harm.

35. Country information explains the Iranian government’s treatment of detainees as including ‘threats of execution or rape, sexual humiliation, sleep deprivation, electroshock, burnings, the use of pressure positions, and severe and repeated beatings. Allegations of forced confessions through torture, denial or delayed access to legal representation, and mistreatment while in detention are common in the case of individuals charged with national security offences. Individuals arrested for minor offences, dress code violations and consuming alcohol face a low risk of torture.’[14]

    [14] Ibid [4.12]

36. Country information suggests Christianity has been seen as a national security threat to the Iranian regime:

    The Iranian government’s rationale for cracking down on house churches is that evangelicals are a deviant form of Christianity, different from state-recognized Christianity, and that the house church movement is linked to “Western powers” and “Zionists” who are waging a soft war against the regime.  This is a particular threat to non-ethnic Christians as they are perceived to have anti-regime political opinions because of their liturgical use of the Persian language (which facilitates conversions), their commitment to proselytizing and the affiliations some Protestant churches have to denominations and church networks abroad.[15]

    [15] International Campaign for Human Rights in Iran, The Cost of Faith: Persecution of Christian Protestants and Converts in Iran, New York, 2013, p.6, >

    DFAT notes that the Iranian regime sometimes also uses national security charges against Muslim-born converts to Christianity.[16]

    [16] [3.75]

37. The type of harm the applicant faces includes:

    a.A change to the law relating to identifying a religion on the application form for an identity card led the UN special rapporteur to raise the following concerns, ‘The application form had previously listed ‘other’ as a religious option. In January, the National Organization for Civil Registration reported that this option had been removed, meaning individuals could only choose from the four officially recognised religions. The removal of ‘other’ raised fears that nonrecognised religious groups, such as Baha’is, Christian converts, Yarsanis, Sabean-Mandaeans and nonbelievers, would be unable to obtain a national identity card, which is necessary to gain access to government and banking services.’[17]

    b.Some country information, contrary to the view of DFAT, suggests that the authorities do target Christian converts.[18] In addition, the same source states, ‘evangelicals and other converts from Islam, continued to experience disproportionate levels of arrests and detentions and high levels of harassment and surveillance, according to Christian NGOs…News reports stated authorities subjected arrested Christians to severe physical and psychological mistreatment, which at times included beatings and solitary confinement. According to human rights NGOs, the government also continued to enforce the prohibition against proselytizing.’

    c.Ongoing societal pressure and rejection by family or community members.[19]

    [17] International Religious Freedom Report, ‘Iran 2020’ p29

    [18] International Religious Freedom Report, ‘Iran 2020’ p15

    [19] Ibid p35

38. In addition, I note the following information on prison conditions:

    Prison conditions are widely considered to be poor. Human rights observers report that, because of overcrowding, some prisoners sleep on floors, in hallways or prison yards (according to some reports, the prison population is nearly 28 per cent higher than its official capacity). Amnesty International claims prisoners receive insufficient food. Medical facilities are basic, and prisoners are often reportedly denied medical treatment for pre-existing conditions, injuries suffered at the hands of prison authorities or fellow prisoners, and for illnesses caused by poor sanitary conditions.[20]

    [20] DFAT, ‘DFAT Country Information Report: Iran’ 14 April 2020 [5.18] see also United States Department of State, Iran 2015 Human Rights Report, 2016, p.6

39. The most recent assessments of the situation in Iran for religious freedom describes a deterioration in 2020 with the government ‘escalating its severe repression of religious minorities.’[21]

    [21] United States Commission on International Religious Freedom, Annual Report 2021, p26

40. I have found that the applicant will face a real chance of being arrested and detained through his pursuit of his faith. At that stage, not only would his Christianity be a reason to suspect him as being a threat and for breaching Islamic norms, but his tattoos would add further doubt about his non-conformism and willingness to embrace outside values. He has spent a considerable period in a Western country and has participated in a church that has, according to the pastor, received suspicious attention due to the pastor’s public profile. Based upon the confluence of these factors I find that the applicant, once identified as Christian, would face a real chance of what would amount to serious harm.

41. I find that religion is the essential and significant reason for the harm and that the harm is systematic and discriminatory.

42. As the state is the persecutor, I find that the applicant will be unable to access state protection.

43. As Iran is wholly controlled by the Iranian government, who is the persecutor, I find that the applicant is unable to relocate.

44. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

45. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Denis Dragovic
    Senior Member