2006923 (Refugee)

2006923 (Refugee) [2023] AATA 2447 (18 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Kamran Ghanbari (MARN: 0848517)
CASE NUMBER:  2006923
COUNTRY OF REFERENCE:                   Iran
MEMBER:Katherine Harvey
DATE:18 May 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act, and
(ii)that the second named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 18 May 2023 at 12:06pm

CATCHWORDS
REFUGEE – Protection Visa – Iran – religion – a Muslim-born convert to Christianity – Christian converts –political opinion – family’s anti-Iranian Regime activities – act of apostasy – mental health of the second named applicant – applicant was detained and convicted for action against national security – applicant has a well-founded fear of persecution for reason of her political opinion and religion – member of the same family unit as the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 April 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

The applicants claim to be citizens of the Islamic Republic of Iran (Iran). The first named applicant (the applicant) is a [age]-year-old woman and the second named applicant is her

[age]-year-old daughter. They arrived in Australia on [date] November 2017 travelling on Iranian passports as the holders of visitor visas.
3.

On 15 January 2018, the applicants applied for a protection visa.
On 8 April 2020, a delegate of the Minister refused to grant the visas.
The review application
On 9 April 2020, the applicants applied for a review of that decision. They provided the Tribunal with a copy of the delegate’s decision. The Tribunal is satisfied that the decision is reviewable under s 411(1)(c) of the Act.
On 1 March 2021, the applicant’s representative submitted a 13-page statement dated 24 February 2020 addressing the delegate’s decision. The representative also submitted:
·   a four-page statutory declaration from the applicant dated 24 February 2021 (detailed below at [57]–[64]
·   a single page statement from [the] applicant’s niece, dated 1 March 2021, and a copy of her driver’s licence
·   a single page statement from [the] applicant’s sister, dated 1 March 2021, and a copy of her driver’s licence
·   a single page statement from [the] applicant’s aunt, dated 1 March 2021, and a copy of her driver’s licence
·   an undated and unsigned letter of support from [a named busines], where the applicant works
·   copies of a legal communication from the General Court of Tehran Province and its translation by the same National Accreditation Authority for Translators and Interpreters (NAATI)-accredited translator:
othe first, a copy of the translated document including the dates 20 August 2016 and 11 October 2017 that was provided to the Department. The document was translated on 14 January 2018
othe second, a copy of the translated document dated 11 October 2017 that was translated on 27 May 2020, and
othe third, a copy of the translated document provided to the Department with a handwritten note from the translator certifying that the amended translation was done on 27 May 2020 removing the extraneous date that is crossed in this translation (being 20 August 2016).
·   copies of the applicant and second named applicant’s return flight details issued on 16 October 2017 for departure on [date] November 2017
On 9 March 2021, a letter from [Dr A] dated 1 March 2021 was submitted about the mental health of the second named applicant.
On 3 April 2023, the Tribunal wrote to the applicant advising that it had considered all of the material before it relating to the application but was unable to make a favourable decision on that information alone.
On 6 April 2023, the representative re-submitted a number of documents previously received that are listed above and:
· a statement from the second named applicant dated 6 April 2023, and
· a character reference from the applicant’s employer [dated] 6 April 2023.
The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 26 April 2023 and to provide all documents they intended to rely on to support their case by 19 April 2023.
On 13 April 2023, the representative submitted a two-page statement from the applicant.
On 26 April 2023, the applicants and their representative attended the Tribunal. Before the hearing commenced, the applicant objected to the interpreter, who was the NAATI-accredited interpreter who had mistranslated the document from the General Court of Tehran, as described above at [7].
The Tribunal determined to postpone the hearing to another date with a different interpreter.
The applicants appeared before the Tribunal on 4 May 2023 and the applicant gave evidence and presented arguments. Given the age of the second named applicant and the evidence from her mother, the Tribunal did not take oral evidence from the second named applicant. The Tribunal hearing was conducted, with the assistance of an interpreter, in the Persian and English languages. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. Where relevant, the applicants’ evidence to the Tribunal is referred to below in the Tribunal’s analysis.
The applicants were represented in relation to the review by their registered migration agent and he attended the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION
The issue in this case is whether the applicants have a well-founded fear of persecution for a refugee nexus reason, or if they are owed complementary protection, or if they are a member of the same family unit as a non-citizen who is a refugee or is owed complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted.
Background
The applicant’s personal details are set out in her application for protection. She is [age] years old and was born in Tehran, Iran. At the time she made her application, she stated that she was married with one child, the second named applicant. The applicant has a [degree] and worked in [a] company before training as a [Occupation 1]. The applicant arrived in Australia in November 2017 on a visitor visa and now manages a [shop] in Adelaide.
The second named applicant is [age] years old and was born in Tehran, Iran. The Tribunal accepts that she is the daughter of the applicant. The second named applicant arrived in Australia with her mother in November 2017 on a visitor visa and now attends school.
Country of reference
The applicants claim that they were both born in Tehran, Iran. They provided copies of the biodata pages of their Iranian passports and copies and translations of their birth certificates.
The Tribunal is satisfied that the applicants are citizens of Iran and that Iran is the receiving country for the purpose of s 36(2)(aa) of the Act.
Summary of claims
The applicant’s claims are set out in her statutory declaration and a statement by her representative that accompanied her application for protection visas.
The applicant claimed that she has been facing problems with the Iranian Regime because of her political opinions and religion.
She claimed that she is currently due to face the Revolutionary Court for apostasy while also being subject to a suspended five-year prison term for her politics.
She claimed that her anger and dissatisfaction with the Iranian Regime stems from the arrest of her older sister for possessing two copies of Salman Rushdie’s Satanic Verses and her sister’s subsequent execution on [date] June 1992.
She claimed that she came to hate Islam and the Regime and this stimulated a fierce desire to oppose the Regime, which continues today.
She claimed she started university two months after the Iranian Student Protests of July 1999.
She claimed that on 6 December 2000, on Student Day, she participated in a demonstration where she was bashed and taken with other students to [a] police station and then held for 20 days at [a venue], where she was interrogated 3 times. After signing a paper saying that she would not participate in further demonstrations, she was released.
She claimed that on 1 November 2002 she attended the memorial for Dariush Forouhar.
She claimed that on 7 December 2002, she rallied to remember the students killed in 1999 and was beaten by the security forces and taken to [a] police station and then [another] Police Station, and then Evin Prison, where she spent 37 days in solitary confinement, and then 20 days with another inmate.
She claimed that she was interrogated five times and during her interrogations, she was sexually assaulted, harassed, abused and threatened.
She claimed that she was released on 2 February 2003 with a house deed as surety and she attended the Revolutionary Court on [date] May 2003 and was found guilty of acting against national security and received a 5-year suspended sentence.
She claimed that for some years she did not participate in political protests and actions because of her fear of being arrested and having the 5-year suspended sentence imposed.
She claimed that the threat re-emerged because she rejected Islam and embraced Christianity.
She claimed that her brother was arrested on 10 February 2013 for demonstrating against the regime and he was bashed, brutalised and tortured. While he was on bail, he fled Iran and went to [a country].
She claimed that although her family were Muslims, as a woman she thought about the rights which they did not have in Iran and that the abuse they all faced came from being under the Islamic Regime.
She claimed that in 2011, she and her husband moved to an apartment block and became friendly with another couple who were Christian converts.
She claimed that she began to explore Christianity with the wife and then she and her husband joined a local home church with the couple.
She claimed that on [date] April 2014, she and her husband and another couple were baptised.
She claimed on 5 November 2016, she was requested to attend the Tehran office of the Etelaat, where she was questioned about her religion. She refused to state her religion and was taken to what she believes was a Sepah base where she was held for 10 days and interrogated once.
She claimed that she and some friends re-began the home church in her home in March 2017.
She claimed that her brother, who was now living in Australia, was getting engaged and she applied for a visitor visa on 18 July 2017, that the Australian government approved on 8 September 2017.
She claimed that on 14 September 2017, Etelaat officers came to her home and arrested her after finding two Bibles in her bag.
She claimed that she was taken to the Etelaat Detention Centre and interrogated and tortured and, during her second interrogation and beating, on 24 September 2017, she was [injured] and she required hospitalisation and an operation.
She claimed that she was returned to the Etelaat Detention Centre on 27 September 2017, but she passed out two days later because of an infection at the wound site and was returned to hospital until 9 October 2017, after which she remained in Etelaat detention until 15 October 2017.
She claimed that she was released from detention on the lodgement of a house deed as surety and she was warned that she would soon have to attend the Revolutionary Court.
She claimed that she has a well-founded fear of persecution because of her political stance, imputed opinions because of her family’s anti-Iranian Regime activities and the act of apostasy.
She claimed that women in Iran are very vulnerable and, if they are placed into the prison system long-term one punishment is rape and sexual abuse by the guards, as a deliberate tactic to harm and humiliate women and to try to force them to be compliant with the system and the Regime.
The applicant provided supporting evidence including:
·   a copy and translation from the Criminal Records Department of the Public and Revolutionary Court of Tehran advising that the applicant was detained and convicted on [date] December 2002 for action against national security by [a branch] of the Revolutionary Court
·   a copy and translation of an order of a property registered to [name] be held as collateral in relation to a verdict issued against the applicant
·   a copy and translation of a surveyor’s valuation of the property registered to [name]
·   a copy and translation a legal communication from the General Court of Tehran Province including the dates 20 August 2016 and 11 October 2017 about a request to confiscate land and property (request for a bond)
·   a copy and translation of a title deed registered on 6 January 2001 in the name of [name]
·   a copy and translation of a unit summary sheet from [a] Hospital diagnosing the applicant with a [condition] and recording her admission from 24–27 September 2017, and
·   a copy and translation of a unit summary sheet from [the] Hospital diagnosing the applicant with [a condition] and recording her admission from 29 September–9 October 2017.
In her statutory declaration of 24 February 2021, the applicant made additional claims for protection.
She claimed that after her application was refused, her husband demanded that she return their daughter to Iran.
She claimed that her daughter is a strong-minded person who is very attached to her mother and her Australian friends and she did not want to return to Iran.
She claimed that her husband started threatening her and said he will do everything to get them back to Iran.
She claimed that under Iranian law, her husband can take their daughter from her.
She claimed that if she returns to Iran, she will lose her life at her husband’s hands because Iran allows a man to kill his wife if he argues that she has disrespected him, which she has done by refusing to go back to Iran.
She claimed that after her husband spoke to their daughter, she was deeply impacted mentally and began biting and chewing her fingernails until they got infected.
She claimed her daughter has anxiety about returning to Iran, losing her mother and having to live with her father in Iran.
The statements from the applicant’s sister, aunt and niece supported the applicant’s claims about the impact of her father’s demands on the second named applicant and her fears for her mother and of returning to Iran where she would be obliged to obey the tough Islamic rules in public or school, such as wearing hijab.
The letter from [Dr A] dated 1 March 2021 supported the applicant’s claims about the mental health of the second named applicant. Dr [A] advised that she is anxious, missing her maternal grandparents in Iran, that she gets frequent nightmares and screams in her sleep, and she bites her fingernails to the extent that they bleed and become infected. The doctor advised that they are in the process of getting psychological counselling for her from [an] aunt who is a psychologist in [Country 1].
The second named applicant provided a statement dated 6 April 2023.
She claimed that she is scared that their visa application will be rejected as she does not want to return to Iran and she is worried about her mother’s life and her situation without her.
She claimed that her relationship with her father is strained.
She claimed that she is deeply concerned about the current social and political situation in Iran where women’s and girls’ rights are limited and being further restricted.
She claimed that her right to safety, opportunities, choices and education are in jeopardy if she goes back to Iran and she will not be able to travel or leave without her father’s permission.
She claimed that she has dreams and aspirations that she fears will be unattainable in Iran. For example, she claimed that she wants to be [occupation] but limitations on women in sports in Iran make it impossible to pursue this passion.
She claimed that she wants to work in government and politics but as a Christian girl, opportunities are limited for her.

She claimed that she and her mother are followers of the Christian faith, which is not supported by the Iranian government.
She claimed that she and her mother have been photographed and filmed at protests against the Iranian government, which would likely put them at significant danger if they are forced to return.
In her statutory declaration dated 13 April 2023, the applicant made the following claims.
She claimed that her husband has been aggressively pursuing every avenue he can find to force she and her daughter to return to Iran.
She claimed he has caused problems for her parents.
She claimed that she has been in a relationship with [Mr B] since May 2022.
She claimed that if she is in Iran, she must appear before the Revolutionary Court and they will make an example of her and she will not be served with justice or allowed to defend herself.
She claimed that she has participated in many rallies and protests against the Iranian government coming down very hard on people protesting against the compulsory hijab wearing in both 2019 and late 2022 because she is worried about her fellow Iranians, particularly women.
She claimed that her involvement is known to her husband and she is sure to the authorities, because he would be happy to tell them bad things about her.
She claimed that her daughter is very fragile emotionally and the stress of possibly returning to Iran and being separated from her mother is very hard for her and makes her distressed.
She claimed that her daughter is not Muslim, she is a Christian.
She claimed that it was a male officer, not a female officer, who [hurt her] and that her migration agent agrees he might have made the mistake of saying the officer was a female.
Assessment of claims and evidence
Christian convert
When asked what being a Christian meant to her, the applicant said that it means kindness and honesty. She said that she is hoping she’s having a good life with Jesus and, after her death, she is hoping that she will rise with Jesus and have a good life. She said believing in Jesus changed her life dramatically and her soul is ‘more gentle’ and the way she treated her daughter and husband was much better.
She said that in Iran, people did not know she had converted to Christianity. She said that, at that time, there was a fashion for people to listen to CDs from a psychologist. She said people were asking what had happened to her and whether she was listening to the CDs. She said that after her conversion she changed a lot and always tried to put herself in other people’s shoes and be kinder.
The applicant said that she was baptised in 2014 in her home, because there was some problem in her friends’ house. She and her husband and another couple were baptised.
The Tribunal asked how her baptism in Australia was different. She said that, regarding her faith, it did not change but after she was attending church in Australia, she discussed it with [Rev A] and asked if she could be baptised again and if her daughter could be too. He said that it would be OK. The applicant agreed that she only needed to be baptised once but explained that when she was talking to [Rev A], he said she could be baptised again because the first time it was done she was in fear.
When asked how someone would know that she was a Christian, apart from being kinder, the applicant said that, if the opportunity arises, she tells them. She said that when she is getting closer to a person she tries because Jesus asked us to spread his word. She said that it does not happen so much in Australia but when she was in Iran, she was trying to mention Jesus and spread the word. She said that when she was feeling close to someone and feeling safe, she was telling them that she did not believe in anything before but that she was familiar with Jesus, and it was the starting point of the conversation about the contentment she got from this belief and how it helps her a lot in this life. The applicant gave the example of two friends she got close to in her [Occupation 1] class in Iran. She talked to them about the changes in her life after her conversion and she said they sometimes read the Bible together as well. When asked why she had not put this information in her protection application, she said that she did not think that was the things she would put in, because it does not have any impact on the case, it is not important. She said that after she was released after her first time being arrested, she was spreading the word and talking to her two friends in the [class]. She said in the gathering they had she was talking about spreading the word. She said that because of the fear she had after the first time being arrested, she wanted to feel safe, that is why everybody was making sure that the person they were going to bring to house church was a safe person. She said they were starting with one or two people, which was how she could spread the word given the situation in Iran. She was really happy if she could bring one person to the faith or the church, the way [two named person] brought her.
The applicant said she has recently changed the church she attends as the old one has been transferred to [Country 2] people. Two weeks ago, they had an introductory session at the new church where they were introduced to the congregation and asked if they agreed to be members of it, and the congregation were asked if they wanted to take them as members. About 20–30 people transferred churches. She said that she and her daughter take communion once a month and her daughter received a birthday card from the congregation for her birthday, which was the day before the hearing.
In her submissions and at the hearing, the applicant raised the incorrect dates on the official translation of her court document. The Tribunal accepts that the translation of the document on 22 May 2020 is an accurate translation and that the General Court of Tehran Province requested a bond [in] October 2017 relating to the applicant.
The Tribunal asked how the applicant was able to leave Iran if she was on bail. She explained that because of the physical condition she was in – as a result of the [injury] and infection – she was not in a situation to travel. She thinks that the judge took that into consideration when they released her on bail. She said that she did not have a court sentence and, with the condition she was in, maybe they did not think to put her on a travel ban. She said that she was very concerned about being on a blacklist and her husband kept checking that her name was not on the list. She said that you check by approaching a part of the passport office with a passport and ID card and they can check if you are permitted to leave the country or not. She said that stress was with her until they took off from the runway.
The applicant raised the delegate’s concern that she had not left the country immediately after being released from detention, which is recorded in the decision record, a copy of which the applicant provided to the Tribunal. The applicant explained that physically she was in a really terrible situation when she was released and the doctor did not give her permission to fly. That is why they cancelled the ticket and the next ticket they could get was one month later.
The Tribunal asked what had happened when she did not turn up for the court case. The applicant said her husband told her he received a letter two or three times telling the applicant that she had to attend court and he told them that she had left Iran. She said that they most definitely knew she had left Iran. She said that when they applied to get the passport for her daughter, the authorities also got permission from her husband for them to exit Iran.
Based on the information before it, the Tribunal accepts that the applicant converted to Christianity in Iran, that she was and is a practising Christian and that her daughter is a practising Christian. The Tribunal accepts that the applicant came to the attention of the Iranian authorities and that she was detained and required a bond to be provided for her [in] October 2017. The Tribunal also accepts that the applicant was detained and convicted for action against national security in 2002
Political opinion
The Tribunal asked about the protests that the second named applicant said she had attended with her mother in Australia. The applicant explained that the protests were in 2019, 2022 and 2023. She said that they were held in different [locations], and there was quite a number of them and they were mostly held on Saturday afternoons at 2 pm. When asked what they were protesting, the applicant said that she thinks everyone knows about Mahsa Amini[1] by now and the events happening three years ago when 1500 people were killed in Iran. She said that after killing Mahsa Amini, it caused more killing of girls and boys in Iran and blinding them and that problem is still going on.
The applicant said that on one hand, she is happy her daughter is not there and, on the other hand, she is really concerned about the other people there. She said that she thinks she has passed on the hatred she has for the authorities to her daughter. She said she really likes her country and her people, but... She said that, because her daughter has lived in Australia, she does not think her daughter would accept the pressure to put the hijab on. She said her daughter had shown her a clip of one of the authorities throwing acid on the women who did not have any hijab.
At the hearing, the representative showed photographs of the applicant, her sister and the second named applicant participating in protests and, after the hearing, he provided these to the Tribunal.
[1] ‘On 16 September 2022, Jina Mahsa Amini, a 22-year-old Iranian woman from the Kurdish minority, died in Tehran in police custody three days after her arrest for allegedly failing to comply with the country’s strict rules on women’s dress by wearing an ‘improper hijab’. Her death sparked nationwide outrage and waves of protests across the coutnry with women and young persons leading the charge under the banner ‘Zan, Zendegi, Azadi’ (Women, Life, Freedom).’ United Nations Human Rights Council, Situation of human rights in the Islamic Republic of Iran 7 February 2023 [6] 2 (‘UN Report’).

100. The Tribunal accepts that, by attending protests in Australia, the applicant was continuing to express her political opinion as she had done in Iran and that her conduct was not engaged in to strengthen her claim to be a refugee. The Tribunal accepts that the applicant is fearful of what would happen to her daughter as a young woman in Iran.
Relationship outside marriage
101. At the hearing, the applicant explained that she was in a relationship with [Mr B], who is living in [Country 1]. When asked how she started a relationship with someone in [Country 1], the applicant explained that he was a distant relative who has also separated from his partner. She said that they were in contact for a while and now it is getting more serious. She said that he had visited Australia in February 2023 and they had spent 10 days together, including a few days [in a region]. She explained that he did not have much leave left, but if he could arrange his situation in [Country 1], he would be in Australia in a couple of months.
102. At the hearing, the representative showed photographs of the applicants and [Mr B] in Australia and copies were provided after the hearing.
103. The applicant said that being in a relationship with another man when she has not divorced is called fornication and she said that in Iran she could be stoned to death. The Tribunal asked why her husband had not divorced her if she was in another relationship. The applicant said that she thinks he wants to control the situation if she goes back to Iran, because he can still put pressure on her and create fear. Or maybe he wants revenge for the years that she was not listening to him. She said that he found out that she was in a relationship and he wants revenge.
104. The applicant did not provide corroborative evidence that the applicant’s husband is aware of her new relationship however the Tribunal accepts that the applicant is in a new relationship and that she fears harm from her husband.
Second named applicant’s claims
105. Given the medical report from [Dr A] and the statutory declarations from her relatives, the Tribunal asked whether the second named applicant had undertaken counselling. The applicant explained that it did happen but her daughter was not comfortable to do it, that she was not comfortable talking and so it had stopped.
106. The applicant said that she is baffled about how her daughter found out about the Tribunal hearing date. She said that her daughter told her she went to the school counsellor and spoke about it and the counsellor had told her she could write a letter to the Tribunal and explain her thoughts, because her mother said that she did not want her involved. She said that her daughter had come to the first hearing because it was school holidays and then she insisted that she come to the rescheduled hearing.
107. The Tribunal asked if her daughter would wear a hijab. The applicant said not at all. She said that her daughter hates it. She said that she is free spirited and even going to school they have to argue about her skirt and whether it is 4 cm longer or shorter.
108. The Tribunal accepts that the second named applicant does not want to return to Iran, that she is concerned what will happen to her mother, and that she is concerned about her rights as a young woman and a Christian.
Country information
109. The DFAT Country Information Report - Iran explains that the Penal Code strictly prohibits proselytization and that it is a capital crime for non-Muslims to convert Muslims. Authorities interpret the growth in house churches, where Iranian Christians who are not members of recognised churches generally practise, as a threat to national security. They periodically carry out raids against house churches, particularly those that seek to actively proselytise or seek new members. DFAT reports that the judiciary has handed down long sentences in relation to house church activities.
DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed. Christians found to be proselytising face a high risk of arrest, prosecution and imprisonment. DFAT assesses that Christian converts face a high risk of societal discrimination in the event their conversion becomes widely known, particularly if they are from more religiously-minded Muslim family backgrounds. This may involve ostracism from one’s family and discrimination in employment.[2]
[2] Department of Foreign Affairs and Trade DFAT Country Information Report – Iran (14 April 2020) 32–34 (‘DFAT Report’).

110. The Country Information Report provides the following information about the use of religiously based charges against Muslim-born converts to Christianity:
Under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. Separately, a person of any religion may be charged with the crime of ‘swearing at the Prophet’ (blasphemy) if they make utterances that are deemed derogatory toward the Prophet Mohammed, other Shi’a holy figures or divine prophets. The Penal Code does not specifically criminalise apostasy, but provisions in the Penal Code and the constitution stipulate that sharia applies to situations in which the law is silent, and judges are compelled to deliver sharia-based judgements in such cases. Although the Quran does not explicitly say that apostasy should be penalised, most Islamic judges in Iran agree that apostasy should be a capital crime. This ruling is based both on oral traditions attributed to the Prophet Mohammed and to Shi’a Imams, whom Shi’a consider the Prophet’s rightful successors. Chapter 5 of the Penal Code specifically criminalises swearing at the Prophet as a capital offence, although a clause states that the sentence can be reduced to 74 lashings of the whip if the accused states the insults were the result of a mistake or were made in anger.
Politically-motivated apostasy charges were frequent in the years following the Iranian revolution, often leading to death sentences. However, in the vast majority of cases, defendants charged with apostasy also faced other charges related to national security. Many of these cases were quickly tried, ending in execution, so apostasy was not fully discussed in the prosecution of these defendants.
While apostasy and blasphemy cases are no longer an everyday occurrence in Iran, authorities continue to use religiously-based charges (such as ‘insulting Islam’) against a diverse group of individuals. This includes Shi’a members of the reform movement, Muslim-born converts to Christianity, Baha’is, Muslims who challenge the prevailing interpretation of Islam (particularly Sufis) and others who espouse unconventional religious beliefs (including members of recognised religious groups). Some religiously-based cases have clear political overtones, while other cases seem to be primarily of a religious nature, particularly when connected to proselytisation.
Today, death sentences in apostasy and blasphemy cases are rare. In March 2017, the Supreme Court upheld the decision of a criminal court in Arak (Markazi Province) to sentence a 21-year-old man to death for apostasy. Authorities arrested the man after he made social media posts considered critical of Islam and the Quran while on military service. According to publicly available information, the death sentence had not been implemented at the time of publication. The court also convicted two co-defendants of posting anti-Islamic material on social media, sentencing them to prison.
DFAT assesses that those accused of religiously-based charges are also likely to face charges related to national security. They are unlikely to have adequate legal defence, and are likely to be convicted.[3]
[3] Ibid 36–37.

111. The United Nations Special Rapporteur on the Islamic Republic of Iran, Mr Javaid Rehman, published a report on human rights in Iran on 7 February 2023. He described the context of the current violence against women and girls as follows:
The death of Jina Mahsa Amini was not an isolated event but the latest in a long series of extreme violence against women and girls committed by the Iranian authorities, the obligatory wearing of the hijab and its enforcement by State authorities being emblematic of this violence and of the denial of fundamental women’s human rights and dignity for decades.
An increased emphasis on the enforcement of the law on the wearing of the hijab during the reporting period was evidenced when, in June 2022, the morality police expanded street patrols, subjecting women perceived to be wearing “loose hijabs” to verbal and physical harassment, arresting them and shutting down several businesses. Over recent years, videos on social media and other evidence have shown multiple instances of such violence.14 In an emblematic case, in July 2022, a 28-year-old artist and editor, Sepideh Rashnoo, was arrested, a few days after the video of a woman in a bus trying to force her to wear a headscarf went viral online. While in State custody, Ms. Rashnoo was reportedly hospitalized for internal bleeding. After a social media campaign, she was unlawfully shown in a heavily edited video clip on State television, visibly unwell, apparently reading lines from a script. On 20 August 2022, State media reported that she had been charged with offences, including national security offences and “encouraging (moral) corruption and prostitution”. Ms. Rashnoo, released on bail in August 2022, was reportedly given a suspended sentence of five years in December 2022.
In July 2022, the head of the judiciary called on the intelligence services to take strong action against those advocating against mandatory wearing of the hijab. President Raisi requested all government entities to strictly implement a “chastity and hijab” law, calling the lack of compliance with rules on the wearing of the hijab “an organized promotion of moral corruption in Islamic society”. In August 2022, he signed a decree ordering further repressive measures. A month later, the authorities, announced a plan to use surveillance technology to detect women wearing “improper hijabs” on public transport and in shopping centres with a view to imposing financial penalties on them. Women without “proper hijabs” were reportedly barred from entering banks and government offices or taking public transport. On 4 September 2022, only a few days before the death of Jina Mahsa Amini, a spokesman for the Headquarters for the Promotion of Virtue and Prevention of Vice, Ali Khan-Mohammadi, announced that the Ministry of Intelligence had arrested 300 persons for their promotion of not wearing the hijab, whom he termed “ringleaders who were fighting against the hijab” and attributed such activism to “the enemy” seeking to polarize society. In an interview at the beginning of November 2022, he stated that: “The enemy is attempting to bring down the headscarf, which is a symbol [of sharia law]” and “If they bring down this symbol, then nudity and other things will come afterwards”. On 25 December 2022, the Prosecutor General reiterated that appearing without a hijab in public was a crime.[4]

[4] UN Report [14]-[16] 4–5.

112. The report describes the use of unlawful lethal force against protesters and the violent State response to the protests that started immediately after the death of Jina Mahsa Amini. It states:
The detention and mistreatment of children and young persons is particularly alarming. The authorities have acknowledged the widespread participation of children and young persons in the protests and their overrepresentation among those arrested. On 5 October 2022, the deputy commander of the Islamic Revolutionary Guard Corps sated that ‘the average age of most people detained during the protests is 15. A member of parliament also stated in an interview with local media that the majority of protesters arrested in the Khorasan-e Razavi Province were aged between 14 and 18 years old. On 11 October 2022, the Minister of Education confirmed that an unspecified number of children had been sent to ‘psychological centres’ after they were arrested for participation in anti-State protests.[5]
[5] Ibid [38] 10.

113. The DFAT Country Information Report - Iran explains that adultery is a criminal offence that can attract the death penalty.
Adultery is a criminal offence that can attract the death penalty. Under the Penal Code, a non- Muslim man is considered to have committed adultery when he has sexual intercourse with a Muslim woman, regardless of his marital status, and is subject to the death penalty. In contrast, a Muslim man must be married for the death penalty to apply. The punishment for adultery for a Muslim man with a Muslim woman is 100 lashes. The Penal Code does not specify any punishment for a Muslim man committing adultery with a non-Muslim woman. The Penal Code allows a man to kill his wife if she is caught in the act of committing adultery. Strict standards of proof are required to convict someone of adultery, including testimony from four eyewitnesses, and DFAT is not aware of the death penalty being applied in recent times.[6]
[6] DFAT Report (n 2) 51.

Does the applicant have a well-founded fear of persecution for a refugee nexus reason?
114. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
115. On the evidence before it, the Tribunal is satisfied that the first named applicant fears being persecuted because she is a Christian convert who practises her religion and is known to oppose the Iranian Regime. The Tribunal is satisfied that there is a real chance that the applicant would be persecuted as a Muslim-born convert to Christianity and as a woman who opposes the Iranian Regime.
116. Given the applicant’s personal circumstances and the country information referred to above, the Tribunal finds that, if the applicant returns to Iran now or in the foreseeable future, there is a real chance that she will suffer serious harm and systematic and discriminatory conduct because of her religion and her political opinion.
Conclusion
117. Having considered the applicant’s claims individually and cumulatively, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for reason of her religion and political opinion.
118. The Tribunal is satisfied that the real chance of persecution relates to all areas of Iran, that it would involve serious harm and systematic and discriminatory conduct, and that it is for the essential and significant reason of her religion and political opinion.
119. The Tribunal is satisfied that the applicant is not able to take reasonable steps to modify her behaviour to avoid a real chance of persecution.
120. The Tribunal is satisfied that effective protection measures would not be provided to the applicant by the State.
121. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and she satisfies the criterion set out in s 36(2)(a).
122. The Tribunal is satisfied that the second named applicant is the daughter of the applicant and is a member of the same family unit of the applicant for the purposes of s 36(2)(b)(i). As such, the fate of her application depends on the outcome of the applicant’s application. It follows that she will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
123. The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act, and
(ii) that the second named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Katherine Harvey
Senior Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 2447

18 May 2023

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