2012718 (Refugee)

[2022] AATA 1543

2012718 (Refugee) [2022] AATA 1543 (31 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2012718

COUNTRY OF REFERENCE:                   Iran

MEMBER:Michael Hawkins AM

DATE:31 March 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 March 2022 at 8:00am

CATCHWORDS

REFUGEE – protection visa – Iran – race – Faili Kurd – religion – conversion to Christianity – proselytising – returned asylum seeker – member of the family unit – fear of arrest – fear of killing – education – best interests of the family unit – request for Ministerial Intervention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 46, 65, 91WB, 417, 499
Migration Regulations 1994, Schedule 2, cl 866.211

CASES

Appellant S395/2002 v MIMA (2003) 216 CLR 473
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZRSN v MIAC [2013] FCA 751

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 dependants.

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 Home Affairs on 31 July 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Iran, applied for the visa on 20 April 2020. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations under s.36 of the Act and subclause 866.211 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”).

3. The applicant appeared before the Tribunal on 24 March 2022 by video to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

4. The applicant was represented in relation to the review and the representative also attended the hearing by video.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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

11. The issue in this case is whether the applicant meets the refugee criterion and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

12. The applicant’s attention is drawn to the Tribunal’s recommendations as to a request for Ministerial Intervention.

    Background:

13. The Tribunal has obtained the following background information from the applicant’s protection visa application forms, evidence presented to the delegate and the delegate’s decision.

14. The applicant is [an age]-year-old national of Iran.

15. [In] September 2010, the applicant first arrived in Australia with his wife and son by sea without a valid visa.

16. On 22 November 2010, the applicant lodged a request for a Refugee Status Assessment (RSA). The Department made a decision on the RSA on 7 December 2010, finding that Australia did not owe protection obligations to the applicant. An Independent Merits Review affirmed the negative RSA decision in a decision made on 23 June 2011.

17. On [date], the applicant’s second child was born in Australia.

18. On 20 September 2011, an International Treaty Obligations Assessment (ITOA) was completed, finding that Australia did not owe protection obligations to the applicant.

19. On 15 January 2015, a second ITOA was commenced and then processing was suspended on 13 October 2015.

20. On 29 September 2017, the applicant’s wife and two children applied for a Class XD, Subclass 785 (Temporary Protection) visa. The visas were granted on 1 December 2017 and due to expire on 1 December 2020. The applicant’s wife made a further Temporary Protection visa application and continues to hold this visa in lieu of a Bridging visa while her application is assessed.

21. On 26 March 2020, the applicant was invited to apply for a Class XE, Subclass 785 (Temporary Protection) visa or Class XE, Subclass 790 (Safe Haven Enterprise) visa.

22. On 20 April 2020, the applicant applied for a XE 790 visa. The application was subsequently refused by a delegate of the Minister for Home Affairs in a decision made on 31 July 2020.

    Claims:

23. The applicant’s claims are summarised in his protection visa application, written claims and the delegate’s decision.

    Claims raised in the entry interview on 28 September 2010

24. The applicant claims he is a stateless Faili Kurd who was born in [a location in] Illam province, Iran.

25. The applicant claims he fled Iran, so his son could have a home country, be able to attend university, and participate in sport.

26. The applicant claims he had two altercations with the Basij. He claims the first occurred during an election demonstration in about June 2009. He claims he was not arrested or detained and his face was covered, so he could not be recognised.

27. The applicant claims the second incident occurred on a [sport 1] trip in July 2010 when some Basijis joined the [sport 1] team. He claims an altercation ensued with a couple of other [competitors]. He claims that after the incident, he lost his job and was no longer able to work as a [sport 1] trainer.

    Claims raised in the RSA request

28. The applicant reiterated the claims made at his entry interview and made a further claim that he has an imputed political opinion as a result of photographs taken of protesters at the election demonstration he attended in June 2009.

    Claims raised in the Independent Merits Review (IMR)

29. The applicant reiterated the claims made at his entry interview and RSA.

30. The applicant further claimed he attempted to obtain Iranian citizenship to receive tertiary education, but his application was rejected.

    Claims raised in the first ITOA

31. The applicant reiterated the claims made at his entry interview, RSA and IMR.

32. The applicant further claimed that he would be of interest to the Basij due to being a returned asylum seeker.

33. The applicant also raised claims on behalf of his children in relation to being stateless Faili Kurds and fearing for his children’s right to life, health and education.

    Claims raised in the second ITOA

34. The applicant reiterated the claims made at his entry interview, RSA, IMR and first ITOA.

35. The applicant further claimed that he shared posts on [social media] that are against the Iranian government and he fears this will increase the chance of attracting adverse attention from the Iranian authorities.

    Claims raised in SHEV application

36. The applicant was born into an Iranian, Kurdish Shia family in the province of Ilam, which is a Kurdish dominant region in Iran.

37. The applicant claims he had a shop in Tehran, but his business was affected by the strict Islamic rules enforced by the Iranian regime. He claims he was harassed by the authorities for wearing fashionable clothing or for having a shaved face.

38. The applicant claims he came to Australia because of the hardship and discrimination he faced in Iran and his dissenting views in relation to the Iranian regime. He claims he decided to flee Iran with his [wife] and [age]-year-old son.

39. The applicant claims he was advised by the people smuggler to claim to be a stateless Faili Kurd or he would be deported to Iran.

40. The applicant claims his relationship with his wife deteriorated in 2012 due to the stress and pressure of living in Australia without immigration status.

41. The applicant claims he first encountered Christians while undertaking an English language course at [Church 1], however due to language limitations, he did not peruse Christianity at the time.

42. The applicant claims that in late 2014 or in early 2015, his wife started attending church and asked him to accompany her to [Church 2] in [Town 1]. He claims that since attending church, his relationship with his wife has improved and he became a much better person.

43. The applicant claims he was baptised [in] October 2015.

44. The applicant claims that if he returns to Iran, he will be persecuted in the form of being imprisoned, harassed, tortured and capital punishment, and he will not be able to practice Christianity freely.

    Evidence:

45. The Tribunal has before it a range of material, including, relevantly:

    a)the applicant’s protection visa application forms, which were lodged on 20 April 2020;

    b)the applicant’s identity documents provided to the Department, being a copy of his Iranian national identity card, birth certificate and exigency military service completion card;

    c)the protection visa decision record dated 31 July 2020 (delegate’s decision);

    d)the application for review form dated 11 August 2020, which included a copy of the delegate’s decision;

    e)Department file [number] concerning the applicant’s Refugee Status Assessment and International Treaty Obligations Assessment, and Department file [number] concerning the applicant’s protection visa application, which contains all documents submitted by the applicant in support of his protection visa application, including:

    ·a statement of claims from the applicant dated 14 April 2020;

    ·photographs of the applicant at church, including of his baptism;

    ·the baptism certificates of the applicant and his two children;

    ·a support letter from [a] Case Coordinator from [Agency 1] dated 13 November 2017;

    ·a support letter from [Pastor A] of [Church 2] dated 13 July 2020;

    ·a support letter from [a colleague] who works with the applicant at [Employer 1] dated 13 July 2020; and

    ·a support letter from [the] applicant’s cousin dated 13 July 2020;

    ·Refugee Status Assessment Outcome dated 7 October 2010;

    ·Independent Merits Review outcome dated 23 June 2011;

    ·first International Treaty Obligations Assessment outcome dated 20 September 2011;

    ·Post-Review Protection Claims outcome dated 6 March 2013;

    ·documents relating to the second International Treaty Obligations Assessment, including interview notes.

    f)all documents submitted to the present Tribunal in support of the applicant’s review application, including:

    ·the applicant’s Iranian marriage certificate;

    ·the Class XD, Subclass 785 (Temporary Protection) visa grant notification letters for his wife and two children;

    ·the applicant’s wife’s statement of claims dated 29 September 2017;

    ·a further copy of a support letter from [Pastor A] of [Church 2] dated 13 July 2020;

    ·a letter from the Department notifying the applicant of the outcome of his request for Ministerial Intervention dated [in] March 2020;

    ·an updated support letter from [Pastor A] of [Church 2] dated 15 March 2022;

    ·a copy of a previous Tribunal decision dated 21 July 2015, case number 1315163.

    ·written submissions from the representative dated 22 March 2022. 

    g)country information on Iran, as set out below.

    Country of reference:

46. The applicant claims to be a citizen of Iran. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Iran is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

47. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.

    Hearing:

48. The applicant appeared before the Tribunal on 24 March 2022 by video to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

49. The applicant was represented in relation to the review and the representative also attended the hearing by video.

50. After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa he must either be recognised as a refugee or be a person entitled to Complementary Protection.

51. The Tribunal explained that under Australian law, to be a refugee he must have a well- founded fear of persecution in Iran. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Iran. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.

52. With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Iran.

53. The Tribunal discussed his historical claims as summarised in the applicant’s past claims and statements, protection visa application, written claims and the delegate’s decision. The Tribunal noted specifically that the applicant had now recanted all earlier claims and instead relied upon his sole protection claim that he has converted to Christianity and fears the consequences of that in the event that he returns to Iran.

54. The Tribunal also noted that the representative had made a pre-hearing submission to the effect that the applicant is a member of the same family unit as his wife and [children], and therefore should be entitled to protection pursuant to the SHEV granted to his wife and [children]. The Tribunal promised to address that mater first.

55. The applicant and the representative both agreed that the applicant had recanted all earlier claims. They agreed that the Tribunal was not required to consider any claim other than his claim to conversion to Christianity.

56. The Tribunal asked the applicant whether that claim was his sole claim. He confirmed that his claim as so summarised was not in dispute. The Tribunal asked the applicant whether those claims were now accurate and complete. He stated they were and that he did not need to change them.

57. For good measure, the Tribunal noted the statement of the applicant’s wife dated 29 September 2017 wherein she stated that just before leaving Indonesia they came to know that in order to be accepted in Australia they had to have a case and prove that they had escaped from an immediate danger from Iran. As this was not the case for them, they were taught to lie about their identity and claims. In fact they used their own genuine identity documents to leave Iran.

    Assessment of claims and evidence, and findings:

58. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

59. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

60. The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

1. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

2. The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:

   In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]

   [1] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf

3. However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]

   [2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.

4. The Tribunal discussed with the representative his pre-hearing submission. The representative tendered in his submission a decision by the Tribunal (of a similar fact situation) made in 2015.[3]

   [3] AAT Case Number 1315163, delivered 21 July 2015

5. In that case, the Tribunal was satisfied that the applicant was married to his wife. It was also satisfied that the applicant’s wife held a protection visa duly granted on the basis that she was a person to whom Australia owed protection obligations under the Refugees Convention. And it was satisfied, and this is significant, that the applicant had lodged his application prior to the date of the grant of his wife’s protection visa.

6. In the matter before this Tribunal, it is apparent that the applicant’s wife was granted a Class XD Subclass 785 (Temporary Protection) visa on 1 December 2017. It remains current.

7. But the applicant did not make his application for his Class XE Subclass 790 (Safe Haven Enterprise) visa until 20 April 2020.

8. Section 91WB prevents the Minister, or the Tribunal on Review, from granting a protection visa to an applicant on the basis of the family unit criteria in ss 36(2)(b) or (c) if the applicant applies for the visa after their family member has already been granted a protection visa.

9. The Tribunal invited comment from the representative. The representative submitted that in this case it was impossible for the applicant to lodge his application for a protection visa prior to the grant of his wife’s visa, as the Minister did not lift the s46A bar until 26 March 2020. The Tribunal acknowledged that but noted also that s91WB did not appear to provide any discretion to the Minister or to this Tribunal, either.

10. Unfortunately, while it would appear that the applicant would satisfy s 36(2)(b) or (c) as his wife already holds a TPV, given the timeline of his own application, the applicant would be prevented by s 91WB from being granted the visa on this basis.

11. The Tribunal turned to the applicant’s religious claim.

12. Before engaging with the applicant’s most recent claim, the Tribunal took a moment to note all of the applicant’s previous claims, and to the extent that he had prosecuted them through numerous interviews and statements, noting further the many findings made against his claim both by Delegates and reviewing authorities and ultimately noting that the said claims were now recanted.  The Tribunal stated to the applicant that it must have concerns about the credibility of the new claims given his maintenance of those previous claims and the lengths to which he went and the evidence that he adduced to defend his claims.

13. The Tribunal expressed its grave concerns from the outset as it had also noted that the applicant had only engaged with Christianity after his RSA and ITOA had been rejected. The Tribunal explained to the applicant that in those circumstances, it might not consider his claims to Christianity to be genuine. It said to the applicant that it might be perceived that he may have taken advice from people that were he to become a Christian, that it may help his claims to protection.

14. To that end, the Tribunal expressed to the applicant that it might consider that the applicant has raised this most recent claim for the purpose of enhancing his protection claims and thereby an opportunity to remain in Australia.  The Tribunal advised that it would be considering that aspect as it explored the nature of this most recent claim, to have converted to Christianity in 2015.

15. The Tribunal noted the Representative’s pre-hearing submission.  The Representative drew to the Tribunal’s attention apparent inconsistency in the decision-making by the Department in that the Department had granted the applicant’s wife and two [children] a Protection Visa which were based on identical claims to those made by the applicant and in circumstances which were very similar to the circumstances relied upon by the applicant in making his claims.

16. The Tribunal engaged in a lengthy discussion with the applicant as to when he first explored Christianity, how he engaged with Christianity and his longer-term intentions as to the practice of Christianity.

17. The applicant replied that he was compelled to observe Islam when at high school and that he was told that he must attend prayers.  The Tribunal noted that following high school, the applicant appeared to be a non-practising Muslim.  The Tribunal noted Country Information that appeared to confirm that many Iranians did not practice religious observances or participate in the practices of Islam.  The applicant confirmed that was the case. He confirmed that he did not practice Islam once he left school.

18. The Tribunal confirmed that the applicant first arrived in Australia in 2010.  It asked the applicant when he first became involved in a church or religion.  He replied that he first attended [Church 1] in 2011 but he stressed that that was not for religious purposes but to attend English classes.  He stated that he was invited to attend some functions and events but did not engage with the religion at that time. 

19. He then said it was his wife who introduced him to the church in early 2015.  He went on to explain that upon the family’s arrival in Australia, there was much tension and stress and that he in particular was depressed by the uncertainty of their visa status.  He went on to state that as a consequence, he and his wife separated in late 2012 and the children remained with his wife.

20. The applicant stated that a friend of the family invited the applicant’s wife to attend the church.  He went on to explain that the friends of theirs had children that were about the same age as his own children.  The friends apparently indicated to his wife that attending church may help her, and ultimately them, to share a faith.

21. The applicant readily acknowledged that it was his wife who attended the church first.  She did so for many months on her own.  She did this while she was separated from the applicant.

22. The applicant stated that he believes it was towards the end of 2014 when his wife suggested to him that he attend the church with her.  He admitted to doing so tentatively and as a means to see his family and then found himself attending church regularly from the beginning of 2015.

23. When asked again, the applicant reiterated that his wife had invited him to attend the church in order to assist him with his depression and ultimately to help them reunite as husband and wife.

24. He also readily admitted that his wife was more actively engaged in the church than he was as she attended bible classes and numerous women’s events through the church.  He maintains that he attends church regularly on a weekly basis but that he has to run the family business and assumes primary responsibility for taking his [children] to weekend sport and training. He stated that he does engage in events involved with the church.

25. He stated that he was still attending church regularly, though when COVID struck, they began to attend online.

26. He stated that he remains in contact with [Pastor A] who was their first Pastor when they joined the church.  He stated that the Pastor was now retired and that in any event they had moved to a new church, [Church 3], which is only 5 to 10 minutes from their home.

27. He stated that the children attend church as well.

28. The Tribunal was referred to the numerous references from two Pastors, numerous church members, a cousin and an employee that attested to the attendance by the applicant at church, his participation in church-led activities and which also attested generally to his good character.

29. The Tribunal asked the applicant whether he was likely to continue to practice Christianity if he were to return to Iran.  He replied enthusiastically that he would and, after engaging with the Interpreter to find the right words, expressed his strong desire to spread and share the good news.  He went on to add that Jesus has requested he and his wife to spread the good word.

30. The applicant admitted, somewhat self-consciously, that he was rather good at talking to people about religion and his Christian faith.  The Tribunal noted that he was indeed a [salesman].  The applicant agreed, stating further that he always obtained very good Google ratings for his business.

31. The Tribunal remained somewhat sceptical about whether the applicant would continue to practice Christianity if he returned to Iran given the fact that he had not practised any religion in Iran when he lived there and given that it would have been so much easier to practice a faith that was generally accepted.

32. The applicant explained that he did not like Islam as he found it an oppressive religion.  Christianity, by contrast, was an uplifting religion, one that he had no difficulty in exploring and explaining.  In discussing his Christian faith, he found commonality with a lot of people who have now become his friends.  He spoke positively of an employee who had been troubled and distracted but whom he had since imposed good blessings.  The applicant also spoke of a cousin whom he was attempting to persuade to convert but whom he did admit was still thinking about conversion.

33. The Tribunal discussed with the applicant his background in Iran.  It asked the applicant whether his parents were still residing in Iran.  The applicant said his father was but that his mother had passed away in 2021.  He said that he had [a number of siblings], all of whom were living in Iran.  He also stated that all of them were non-practicing Muslims.

34. Asked whether any of them were aware of his conversion to Christianity, he replied that some of them were not completely aware of the fact that he had converted.  When asked to explain what he meant by that, he stated that his family members would be aware of his knowledge of Christianity and that he lived in a Christian state.

35. The applicant then said that his father did actively practice Islam until he was too old to do so.  He noted that his father was now [age] years old.  Asked whether he would tell his family members directly that he had converted to Christianity, he replied that he had discussed it with them a little bit.  But he noted that they were not interested in discussing religion.  He said that all of his family are good people and act righteously, that they live with good actions and that he believed that there was fertile ground to work with should they consider converting to Christianity.  But he stated that they would need a Pastor to do this, that he was not qualified to do so.

36. Asked what his family’s reactions would be to his conversion, or to his detailed knowledge of and understanding of Christianity, he replied that the younger ones would likely accept it and accept him.  However, he said that he would not want to implicate his family in his Christian beliefs given what the government reaction would be.

37. Further he could not tell his father over the phone, as he would lose his relationship with his father.

38. He went on further to state that his father was the Head of the village and that all of the people in the village looked to his father for leadership.  Accordingly, he was not sure how his father would react if he learnt that his son had converted to Christianity.  He stated that it would put his father in a difficult position.  He then went on to add that he knows that his father wants all of his children to do good things.  He concluded, stating that if he told his father of his Christian conversion, it might endanger him as the village Leader.

39. The applicant then went on to explain the difficulties it might give his father by reference to a similar example in how he had named his second [child], [a specified name].  It transpires that [this name] is [deleted].  It is a Persian name for [deleted].  The fact that he has named his [child] after this [has] caused problems for his parents in Iran.  He said the people in the village made a very big deal out of the fact that his parent’s [grandchild] was called [this name].

100.   The applicant also stated that he would not know where he would live if he had to return to Iran, stating that his concern for his father and his family would prevent him being able to live in his village and practice his Christianity.  He stated that he would have to live elsewhere but that he has no family elsewhere and no other support.  He spoke more of his concerns for himself and his family at the hands of the Iranian government and the Basij.

101.   He added that his wife and children would not return with him.

102.   The Tribunal considered Country Information in relation to the consequences for people who convert from Islam to Christianity.

103.   The Tribunal considered information included within the representative’s pre-hearing submission, noting that in many respects it was quite old (pre 2010). It noted references to the Penal Code which in one instance strictly prohibits proselytization by religious minorities, yet does not specifically criminalise apostasy.

Christian convert

104.   The Department of Foreign Affairs and Trade’s latest country information report on Iran[4] reports the following on Christians and Christian converts:

[4] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Iran’ (14 April 2020) at pp 30, 36-37.

3.37 According to the most recent national census (2016), there are 130,000 registered Christians in Iran. Ethnic Armenians concentrated in Tehran and Isfahan are the largest group of recognised Christians. Other recognised Christian groups include Assyrians, Chaldeans and Sabean-Mandaeans, although the latter group does not self-identify as Christian. Those citizens able to prove they or their families were Christian prior to 1979 are also recognised. Conversions after 1979 are not recognised (see Unrecognised Christian Groups (House Churches)). The ethnic churches have different denominations – there are Assyrian Catholic, Orthodox and Presbyterian congregations – but the members of the various denominations maintain close links within their own community. Because the law prohibits citizens from converting from Islam to another religion, the government only recognises these groups because their presence in Iran pre-dates Islam. Recognised churches are required to deliver sermons in their traditional language. Farsi-language services are not permitted, as they could promote proselytisation. There are approximately 20 officially recognised Christian churches in Iran. All pre-date the Islamic Revolution (the authorities have not granted permission for the construction of new churches since 1979).

3.38 The activities of recognised Christian communities are closely regulated, to guard against proselytisation. All Christians and Christian churches must be registered with the authorities, and only recognised Christians can attend church. Security officials closely monitor registered churches to verify that services are not conducted in Farsi, and perform regular identity checks on worshippers to confirm that non-Christians or converts do not participate in services. Authorities have closed several churches in recent years for failing to comply with these restrictions, including churches that had existed prior to 1979.

3.39 Despite these restrictions, community leaders associated with recognised churches report that the authorities respect their religious rights, and their communities are able to act freely in their own spaces without government interference (including holding mixed-gender gatherings, using alcohol for ceremonial purposes and allowing women to uncover their heads). A local Christian from Tehran told DFAT they experienced no official or societal discrimination and felt comfortable practising their faith.

3.40 DFAT assesses that, while their congregations are monitored and they are subject to restrictions, Christians from recognised churches are permitted to practise their faith. DFAT further assesses that, except for their exclusion from senior government, military, intelligence and judicial positions, recognised Christians who do not engage in proselytisation activities face a low risk of official discrimination.

…

Religiously-Based Charges

3.73 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.

3.74 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.

3.75 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.

3.76 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.

3.77 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.

105.   However, country information suggests that charges and convictions solely on the basis of apostasy involving Christian converts have been very rare.[5]

[5] ‘Country Policy and Information Note - Iran: Christians and Christian converts’, UK Home Office,  27 February 2020, p.7; ‘Christian Converts in Iran’, Finnish Immigration Service, 21 August 2015, p.7; ‘Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran’, UN Human Rights Council, 18 March 2014, p.11; ‘Iran: Christians and Converts’, LandInfo, 7 July 2011, p. 16.

106.   The UK Home Office in a May 2019 report about Christians and Christian converts in Iran states that simply converting to Christianity is not considered enough to put a person at a real risk of persecution but that their actions and activities and the degree to which their conversion is visible will determine whether or not they would be at a real risk.[6] The report goes on to state that the Iranian authorities are interested in those engaged in evangelical or proselytising activities and that it is not usually a problem for those who practise their faith discreetly, including for those who return to Iran and do not actively seek to influence others to convert to Christianity, who consider their faith a personal matter, and who are unlikely to seek to express in public their faith. Such people are likely to be able to continue practising Christianity discreetly.[7]  The UK Home Office also reported that members of evangelical/house churches are ‘subject to harassment, arrest, close surveillance and imprisonment by the Iranian authorities’.[8]

[6] UK Home Office, Country Policy and Information Note, Iran: Christians and Christian converts, May 2019 at 2.4.13 < Ibid at 2.4.14.

[8] UK Home Office, Country Policy and Information Note, Iran: Christians and Christian converts, May 2019 at 2.4.4 <  The Australian Institute of International Affairs published an Iran Study Tour Report in April 2018 which stated as follows:

Under the current Islamic regime, citizens are, at least in theory, free to practice the religion of their choice. Each religious minority is guaranteed a seat in parliament, as stipulated in Iran’s constitution. However, whilst conversion to Islam is accepted and encouraged, it is illegal to convert to a different religion once one has identified as Muslim. This is considered apostasy and harsh penalties can apply. Apostasy is punishable by death in certain cases, however the crime has never been codified in law.[9]

[9] Cited in: UK Home Office, Country Policy and Information Note, Iran: Christians and Christian converts, May 2019 at 8.1.3.

State protection

108.   The Department of Foreign Affairs and Trade’s latest country information report on Iran[10] reports the following on state protection:

[10] Australian Department of Foreign Affairs and Trade, ‘ DFAT Country Information Report: Iran’ (14 April 2020) at pp 64-66.

5.1 Security forces are conspicuous in many aspects of Iranian life. An extensive network of police, security and intelligence services exercises effective control over most of the country (see Security Situation). Lines of authority between various security bodies can be blurred, with overlapping and competing responsibilities and, occasionally, unclear command and control structures. For ordinary Iranians, interaction with the security forces can be unpredictable, and can be influenced by the prevailing political environment and individual personalities. A number of offices exist to enable individuals to register complaints of human rights violations and improper treatment by security forces, and the judiciary is responsible for prosecuting these cases. DFAT is unable to establish whether a complaints office exists for the IRGC or the Basij. DFAT assesses it is unlikely that a complaint from a member of the public against a law enforcement officer from any agency would result in prosecution.

…

Basij Resistance Force

5.4 The Basij Resistance Force (‘the Basij’) is a volunteer paramilitary force that operates under the command of the IRGC. The Basij was established shortly after the Islamic Revolution as an auxiliary law enforcement unit and was brought under the direct command of the IRGC in 2007. The Basij is one of the primary enforcers of internal security and moral codes, including in relation to Islamic dress. The Basij has a countrywide presence, with branches in virtually every Iranian city and town. The Basij maintains three primary armed wings: (1) the Ashoura and Al-Zahra Brigades, which are tasked with defending neighbourhoods in the event of emergencies; (2) the Imam Hossein Brigades, which comprise war veterans and cooperate closely with IRGC ground forces; and (3) the Imam Ali Brigades, which deal with security threats. The IRGC also has multiple branches with specialised functions. According to the United States Institute of Peace, each of these specialised branches functions as a counterweight to NGOs and the perceived threat they pose to the state. For example, the Labor Basij provides a counterpart to labour organisations, unions and syndicates, while the Student Basij balances independent student organisations. The Basij is headed by a commander appointed by, and answerable to, the Supreme Leader

5.5 Estimates of the total number of Basiji vary widely. In 2009, the IRGC commander claimed the Basij had 11.2 million members; however, independent sources cite considerably lower figures (the US Council on Foreign Relations estimates the Basij’s strength at 600,000). Not all Basiji are uniformed. As such, the Basij’s presence on the street is not always overt and obvious. Its membership includes both sexes and a wide range of ages, although the majority are between high school age and mid-30s. Membership of the Basij comes with privileges, including in relation to university admission, government jobs and bank loans. Local mosques provide background information about each volunteer applicant, and also serve as the Basij headquarters for the neighbourhood. For full-time paid positions, applicants must apply to the Basij’s provincial headquarters.

5.6 The state has periodically mobilised the Basij to suppress anti-government protests, including during the November 2019 unrest and Green Movement demonstrations. Basij members often receive less formal training than other Iranian security forces. International sources report that Basij units often repress political opposition elements and intimidate civilians perceived to be violating Iran’s strict moral code without formal guidance or supervision from their superiors. DFAT assesses that there is considerable popular resentment against the Basij, although this may vary according to location.

Police

5.8 The Law Enforcement Force (also known as the Disciplinary Force or the abbreviation NAJA) is Iran’s uniformed national police force, and operates under the Ministry of Interior. It is responsible for internal security, although receives support from the IRGC and the Basij in quelling large-scale protests. The exact size of the police force is unclear. It comprises a number of specialised branches, including (but not limited to): traffic; cyber; prevention; intelligence and public security; anti-narcotics; immigration and passport; diplomatic; criminal investigation; border guard command; and the special unit. The special unit is responsible for suppressing riots, anti-terrorist activities, urban defence and resolving hostage situations. The police have an obvious street presence, particularly in the major cities. The police force is highly organised, including in responding to crime. The level of violent crime in Iran is low relative to other countries in the region (see Security Situation).

Treatment of returnees and conditions for returnees

109.   The Department of Foreign Affairs and Trade’s latest country information report on Iran[11] reports the following on the treatment of returnees and conditions for returnees:

[11] Australian Department of Foreign Affairs and Trade, ‘ DFAT Country Information Report: Iran’ (14 April 2020) at pp 69-70.

Conditions for returnees

5.27 Iran has a global and longstanding policy of not accepting involuntary returns. Historically, Iran has refused to issue temporary travel documents (laissez-passers) to facilitate the involuntary return of its citizens from abroad. In March 2018, Iran and Australia signed a Memorandum of Understanding on Consular Matters. This includes an agreement by Iran to facilitate the return of Iranians who arrived after March 2018 and who have exhausted all legal and administrative avenues to regularise their immigration status in Australia. A laissez-passer can be obtained from an Iranian diplomatic mission on proof of identity and nationality.

5.28 The IOM runs a program to assist voluntary returnees to Iran, in cooperation with the country from which they are returning. Iranian authorities cooperate with the IOM in this regard. In cases where an Iranian diplomatic mission has issued temporary travel documents, authorities will be forewarned of the person’s imminent return. DFAT is not aware of any legislative or social barriers to voluntary returnees finding work or shelter in Iran, nor any specific barriers to prevent voluntary returnees from returning to their home region. Some countries offer failed asylum seekers financial packages to support their reintegration on return to Iran. The IOM also provides some resettlement assistance to voluntary returnees who fail to secure asylum in a third country.

5.29 Authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. 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. Arrest and mistreatment are not common during this process. A well-placed source was not aware of voluntary returnees being prosecuted for criticising the Islamic Republic, converting to Christianity or proselytising while abroad on their return to Iran. As far as DFAT is aware, the authorities do not check the social media accounts of Iranians returning from abroad.

5.30 International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government (heavy Internet filtering means most Iranians will never see them), protesting outside an Iranian diplomatic mission, converting to Christianity or engaging in LGBTI activities. In such cases, the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists. The treatment of returnees, including failed asylum seekers, depends on the returnees’ profile before departing Iran and their actions on return. According to local sources, the greatest challenge facing failed asylum seekers on return is reintegrating economically and finding meaningful employment.

5.31 DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination.

110.   The Tribunal discussed with the Representative concerns that it had about that Country Information.  It noted that certain penalties were certainly applicable to those that sought to convert from Islam to Christianity and to proselytise, but it also noted that in the case of returnees to Iran, the government did not appear to be interested in any of their conduct abroad, specifically including if the returnee had converted to Christianity whilst abroad.

111.   The Tribunal asked the Representative how he would reconcile that Country Information.  `

112.   The Representative acknowledged that both pieces of Country Information are correct.  But he stated that everyone returning to Iran gets questioned about their conduct when they were overseas.  He stated that the Basij have unlimited powers and when people return from overseas, their mobile phones can be seized and their photos checked. 

113.   He stated that upon return to Iran, one has to declare one’s religion and if the applicant were to be truthful, he would be immediately targeted.

114.   Further, if it is known to the authorities that an Iranian has attempted to obtain protection in another country, they are interrogated as to their claims.

115.   The Representative concluded by stating that as the applicant won’t deny that he is a Christian and will be obliged to state that his wife and [children] are still in Australia as they are Christians, then his interrogation will lead to warnings and arrests as the authorities would seek to silence him.

116.   The Tribunal noted country information referenced above that states that returnees may be questioned for between 30 and 60 minutes and will then be released. Arrest and mistreatment are not common during this process. A well-placed source was not aware of voluntary returnees being prosecuted for criticising the Islamic Republic, converting to Christianity or proselytising while abroad on their return to Iran.

117.   The Representative then spoke of the needs of his [children].  The applicant had stated that if he was obliged to return to Iran, he would be doing so alone as his wife and [children] would remain in Australia pursuant to their visas.  He said that in any event his [children] could not return to Iran as they spoke only English and had had no Iranian or Muslim education.

118.   The Representative then spoke generally about the extreme hardship that such separation would cause the applicant and his wife and children respectively.

119.   He also spoke of the good character of the applicant, drawing the Tribunal’s attention to the [number] Google reviews that attest to his honesty.

120.   He closed out by demanding of the Tribunal how it could be that the applicant could be refused a visa when his wife’s claims, the same claims, made on the same attendances at the same churches, and with reference statements from the same people, were accepted.

121.   Asked if he had anything further to add, the applicant stated that he was aware of a villager, from the village adjacent to his own, who was arrested and jailed for speeding in his car. When he was in jail, he was beaten and tortured which lead to his death. No inquiry was had as to how he could come to be killed in jail. Asked whether he had a reference to this, the applicant stated that he had seen it on Instagram, because he knew the family of the victim. He stated that if he returned, he would be jailed and could be killed.

122.   The Tribunal notes that significant time has passed since the applicant’s arrival in Australia, the decision in relation to his Refugee Status Assessment in December 2010, the decision of the Independent Merits Review on 23 June 2011 and the decision of the International Treaty Obligations Assessment in September 2011.

123.   Since that time, the applicant has visited [Church 1], visited and joined [Church 2] and latterly [Church 3]. According to a support letter from that church, he has maintained a continuous connection and commitment to the church community.

124.   Whilst the Tribunal initially had its concerns, particularly in relation to the timing of the commencement of his engagement with the church, based on the evidence before it, the Tribunal accepts the applicant’s claims about his Christian conversion and that his involvement in Christian activities in Australia are genuine. 

125.   Specifically, the Tribunal accepts the applicant was baptised [in] September 2015 at the [Church 2] in Brisbane. The Tribunal accepts that prior to his baptism he had encouragement from a friend and then his wife to explore Christianity and tuition from [Pastor A] to learn about Christian faith and practises. 

126.   The Tribunal accepts that the applicant and his wife are members of [Church 3]. It accepts that his wife and children are also a Christians. It accepts that the applicant and his wife, when they are able, attend church services at [Church 3] at [Town 2], and that he is involved in some other church activities. 

127.   The Tribunal accepts that the applicant’s two children have been baptised into the Christian faith at [Church 2].

128.   The Tribunal found the applicant’s account of his conversion to be credible.  This included a generally consistent account of the applicant’s early exposure to Christianity most notably at the behest of his wife and his desire to reunite with his wife and children. 

129.   The Tribunal finds the applicant’s conversion to Christianity to be genuine.

130.   The Tribunal finds the applicant is a committed Christian in Australia and is now a member of [Church 2] in Australia.

131.   The Tribunal has considered the applicant’s motivations for converting to Christianity in Australia and their timing, noting that it is required to disregard such conduct in Australia unless satisfied that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee: s.5J(6).

132.   The Tribunal is of the view that the applicant’s commitment to exploring Christianity was genuine and has grown over time as claimed.  The Tribunal regarded that his interest in Christianity was consistent with his account of his engagement encouraged by his wife (for his well-being and their ultimate reunion) and then [Pastor A].

133.   The Tribunal has also considered the applicant’s responses to the Tribunal’s queries as to the reaction of his family members to his conversion. The Tribunal accepts that the applicant’s father, who was an observant and committed Muslim, may have issues with his conversion and the Tribunal notes the applicant’s aversion to advising his father. The Tribunal noted the applicant’s remark that his father would only want to see him doing good. His siblings were a different story, with the applicant predicting their acceptance of his decision and of him, which would indicate a level of religious tolerance consistent with the applicant’s own exploration of faith. The Tribunal then does not foresee the applicant’s family rejecting him. Accordingly, the Tribunal does not consider, on the evidence before it, that the applicant faces a risk of serious harm from his family in Iran due to his conversion.

134.   Further, the Tribunal accepts that the Church and its members and the broader Christian community have become a source of community for the applicant and his family.

135.   The Tribunal has considered how the applicant may act on return to Iran as a Christian and a convert from Islam and whether that would lead to a real chance of serious harm by the Iranian authorities.

136.   The applicant fears harm based on being an apostate and Christian who has renounced Islam. The Tribunal has considered then whether he faces a well-founded fear of persecution on return to Iran due to his religion (as an apostate and Christian who has renounced Islam) and as a member of the particular social groups of ‘Christian converts in Iran’ and ‘apostates who have converted to Christianity’.

137.   The representative submitted that he is an active participant of a Christian community. The applicant stated that he believes he must spread Christianity by talking to people about the good word.  If the applicant, on return to Iran, speaks to others about Christianity or expresses his belief with others, then the country information indicates he could be at risk. It is arguable that even if the applicant’s conversion were not considered to be genuine, he would nonetheless be at risk for perceived apostacy.  It was submitted he faces a real risk of persecution as a Christian convert from Islam, punishable by harsh and violent sentences, including death. 

138.   Country information set out above indicates that international observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government, protesting outside an Iranian diplomatic mission, converting to Christianity or engaging in LGBTI activities.

139.   The country information set out above also indicates that the government in Iran continues to regulate Christian religious practises and those at greatest risk are its leaders and proselytisers. The information suggests that the state is focused more on the public practise of religion and proselytising than on private conviction. On this basis, the Tribunal considers that if the applicant were to return and practise his Christian religion discreetly, he might be able to do so without attracting the adverse attention of the Iranian authorities.

140.   However, the Tribunal notes that individuals seeking protection are not required, and cannot be expected, to take reasonable steps to avoid persecutory harm, or to live ‘discreetly’ to avoid such harm: s. 5J(3) and Appellant S395/2002 v MIMA (2003) 216 CLR 473.

141.   The Tribunal questioned the applicant about his conviction in talking to others about his faith. He spoke specifically of an employee and a cousin. He also spoke of his being good at it.

142.   The Tribunal has considered the applicant’s claimed practise of his faith in Australia to include activities which could be characterised as proselytisation, given its acceptance that the applicant has genuinely converted from Islam to Christianity.

143.   The Tribunal considered the applicant’s letters of support tendered on his behalf. The letters were considered intently by the Tribunal.

144.   The first letter, from [name deleted], stated that the applicant is always keen to help whenever needed.  He makes himself available to join the church whenever he can. But it also states that they do not see him as regularly as it should due to his big commitment to his [business].

145.   [Pastor A] spoke of the applicant attending his church each Sunday and is involved through his [business] in actively helping the church community.

146.   What is apparent to the Tribunal is that neither letter speaks of the applicant actively seeking new members or preaching the good word. There is no suggestion of the applicant proselytising.

147.   The Tribunal considered the statement of the applicant’s wife lodged in support of her visa application and dated 29 September 2017 that had been provided to this Tribunal. That statement speaks of her joy in finding Jesus who has granted them salvation and eternal life. It states that they “want to give His Good News to everyone and hope to live in Australia and to practice their faith freely”. But there was no mention of any conduct or behaviour that might be seen as proselytization. No mention of seeking to convert others.

148.   The Tribunal is also mindful of the fact that the applicant did not practice his Islamic faith in Iran.

149.   It is also mindful of its finding above, that the Church and its members and the broader Christian community have become a source of community for the applicant and his family.

150.   The Tribunal has the strongest reservations as to whether the applicant would actually continue to practice his faith in Iran if he was to return. The Tribunal is quite satisfied that despite the applicant’s suggestion that it is his duty to spread the good word, the applicant would not do that, he would not be a church leader and he would not proselytise. He has admitted that he does not even want to confirm to his family that he has converted, albeit he attempted to advise the Tribunal that he had told them a little bit. He has stated that he would not seek to live in his village so as not to implicate his family, but that does not explain why he could not confide in his family members the fact of his conversion, especially in light of the fact he believes his siblings, and especially the younger ones, would accept it and accept him.

151.   The country information referenced above is quite clear. The Iranian authorities appear to have little or no interest in his private convictions – only his public expressions and proselytising. The Tribunal is satisfied that the applicant may maintain his private conviction to his Christian faith, especially given that his wife and [children] are Christians, but has no confidence that he would attempt in any way to express that conviction publicly in any way should he return to Iran.

152.   For these reasons and having regard to the country information concerning the situation for Christian converts in Iran and the applicant’s particular circumstances, the Tribunal accepts that should the applicant return to Iran, now or in the foreseeable future, there is no real chance he will face serious harm from the authorities as required by the Act.

153.   The Tribunal accepts that the treatment of apostates of only private conviction who come to the attention of authorities in Iran does not constitute serious harm for the purposes of the Act. The Tribunal further notes that even in the event of more public apostacy, the Penal Code has not criminalised apostasy and even under Sharia Law, the death penalty is now very rare.

154.   The weight of country information before the Tribunal indicates that the applicant’s fears in relation to his conversion from Islam are not well-founded and that there is no real chance that continuing to privately hold his Christian conviction would draw attention to his conversion from Islam and expose him to harm.   

155.   The applicant stated that he has no other claims and that all previous claims are recanted. The applicant and representative agreed that it was not necessary for the Tribunal to consider any of the previous claims made.

156.   For the reasons set out above, the Tribunal does not consider that there is a real chance that the applicant would suffer serious harm on the grounds of his claimed conversion from Islam to Christianity whilst in Australia, including his baptism as a Christian and of his wife and children, and church attendances or any other reason if he returns to Iran now or in the reasonably foreseeable future.

157.   Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Iran. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

Cumulative claims

158.   Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of his conversion from Islam to Christianity whilst in Australia, including his baptism as a Christian and of his wife and children, and church attendances, or any other reason if he returns to Iran now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Iran. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?

159.   The Tribunal has considered the applicant’s claims under complementary protection.

160.   The Tribunal has found that the applicant, whilst he might continue to hold his Christian convictions privately if he was to return to Iran, would not express his Christian conviction publicly or attempt to practice his Christianity, or proselytise or seek to convert others to his new faith. Accordingly, he would not come to the attention of the Iranian authorities, and if he did, upon his return, he would be released after a short period of questioning.

161.   The applicant made a closing and final remark that he wanted to stay in Australia and didn’t want to be separated from his wife and [children]. He stated that it would impose unbearable hardship upon them all, firstly the separation but also the support of the family in Australia.

162.   The representative implored the Tribunal to take account of the best interests of the family unit.

163.   The Tribunal was particularly sympathetic to the submission but acknowledged that it could not be a refugee or protection claim in of itself.

164.   The Tribunal acknowledges that Australia has signed the Convention on the Rights of the Child (CROC) and the International Covenant on Civil and Political Rights (ICCPR). Article 3.1 of the CROC states:

"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration. "

165.   Australia has signed the International Covenant on Civil and Political Rights (ICCPR). Article 23.1 of the International Covenant on Civil and Political Rights (ICCPR) provides that:

"The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State ... "

166.   Relevant Departmental policy instructions (PAM 3) relating to family separations state (at paragraph 76) that:

"Obligations apply to persons within Australia's territory and also to persons within Australia's jurisdiction. The obligations that are most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement (this latter term refers to an obligation that people should not be removed to frontiers/territories where they face certain types of harm)... "

167.   Article 1 of the Convention on the Rights of the Child states: ‘For the purposes of the present Convention, a child means every human being below the age of eighteen years unless the law applicable to the child, majority is attained earlier.’ Both children are under 18 years of age.

168.   It was submitted that the Australian courts have found that generally it is in the best interests of the child to remain with their family. The applicant has two children, one born in Iran, the other in Australia, though not whilst the applicant or his wife held a visa.

169.   The Tribunal agrees that it would be preferable for all for the family to remain as a unit, and the Tribunal is reminded that if the applicant is required to return to Iran, the wife and children will remain in Australia.

170.   But this matter is not a cancellation matter, though the Tribunal acknowledges the weight that would be given to it as a consideration in such a circumstance.

171.   The Tribunal has considered whether a claim of significant harm arises as a consequence of the applicant being separated from his wife and children who have been granted protection visas. Whilst not specifically claimed, the Tribunal has given consideration to the possibility that there may be psychological harm suffered by the applicant.

172.   In SZRSN v MIAC [2013] FCA 751 the Federal Court found that separation of family members could not amount to ‘significant harm’ as defined in s.36(2A) because it is harm arising from the act of removal itself, and also because it would not meet the ‘intention’ requirement. The Tribunal notes that this cited case involved the separation of the applicant from his children in Australia, but the Tribunal is satisfied that it is indistinguishable from the present case of applicant being separated from his wife and children.

173.   The Tribunal will give this matter additional consideration below.

174.   Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Iran now or in the reasonably foreseeable future.

Conclusion: Refugee Criterion

175.   Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.

Conclusion: Complementary Protection

176.   Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran that there is a real risk that he will suffer significant harm.

Overall conclusion:

177.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

1. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

2. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

   Ministerial Intervention:

180.   The Tribunal is troubled by the submission that the applicant’s wife was granted a visa on the basis of the same claim and supporting evidence.

181.   The Tribunal, whilst departing from the findings of the delegate in relation to the genuineness of his conversion to Christianity in Australia, upholds the delegates findings in relation whether the applicant would seek to practice the Christian religion should he return to Iran, including proselytising, and the delegate’s application of the applicable country information.

182.   The Tribunal is required to consider the claims and individual circumstances before it – it can not make a decision based on the findings of another matter, no matter how closely related. Whilst the Tribunal has considered the claims and evidence that were apparently accepted in relation to the protection visa application of the applicant’s wife, the Tribunal is not bound by the fact of the grant of the visa to unequivocally accept the applicant’s claims and evidence in this case.

183.   However, that is not to say that the Tribunal is not sympathetic to the applicant’s submissions in this regard and to the impassioned plea by the representative in relation to their perception of inconsistent decision making.

184.   The Tribunal is also sympathetic to the representative’s submissions in relation to the primacy of the family unit, and the undoubted hardship that would be experienced if the applicant were to return to Iran and the wife and two children remain in Australia.

185.   The Tribunal is very much aware of the provisions of the Convention relating to the rights of the children and the preservation of the family unit as considered above.

186.   Section 417 of the Act gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal has considered the Ministerial guidelines set out in PAM3 “Minister’s guidelines on ministerial powers (sections 345, 351, 417, 454 and 501J)” and considers that the circumstances of this case raise the following matters:

·Compassionate circumstances regarding the separation of a husband from his wife and father from his children, which if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship.

·Apparent inconsistency in decisions by the Department in relation to similar claims and evidence, it being acknowledged that the decisions were made some five years apart and that the relevance of the claims or country information might have changed in that time.

·The strongly attested good character of the applicant and his contribution to business.

DECISION

187.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Michael Hawkins AM
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.

…