2012900 (Refugee)

[2024] AATA 4428

2012900 (Refugee) [2024] AATA 4428 (30 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Ryan Lasaki (MARN: 1575928)

CASE NUMBER:  2012900

COUNTRY OF REFERENCE:                   Iran

MEMBER:Jane Marquard

DATE:30 September 2024

PLACE OF DECISION:  Sydney

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

Statement made on 30 September 2024 at 7:07pm

CATCHWORDS

REFUGEE – protection visa – Iran – religion – imputed political opinion – conversion to Christianity – particular social group – returned asylum seeker – fear of detention – executions in Iran – mental health issues – church activities in Australia – online activism – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133

Chan v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Fox v Percy (2003) 214 CLR 118
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Nejad v Minister for Immigration and Multicultural Affairs [1999] FCA 182.7
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76        

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. The applicant has sought review of a decision made by a delegate of the Minister for Home Affairs on 14 August 2020 to refuse to grant him a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   BACKGROUND TO THE REVIEW

2. The applicant was born in [specified year] in Tehran, Iran and lived there until he departed for Australia.

3. He left Iran [in] September 2012 and arrived in Australia [in] October 2012 by boat. At the time he was classified as a ‘Direct Entry Person’ and placed in immigration detention in Darwin. He was interviewed on that day (arrival interview) and on 29 November 2012 (entry interview) by officers of the Department of Home Affairs (the Department).

4. On 6 December 2012 the applicant was granted a Temporary Humanitarian Stay (J 449) Visa and released from detention.

5. On 9 November 2016 he applied for a Safe Haven Enterprise Visa (SHEV) (Subclass 790). This application was found to be invalid on 28 May 2020.

6. On 11 June 2020 he applied for the visa the subject of this review. He claimed to fear persecution in Iran for reasons of his conversion to Christianity.

7. A delegate of the Department refused the visa as the delegate did not accept that the conversion to Christianity was genuine, as he converted very quickly to Christianity without any reflection or knowledge about the principles of the religion.

8. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

   SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW

9. The applicant has applied for a SHEV. Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Act. If granted, a SHEV permits a non-citizen to stay in Australia temporarily for a period of five years.

10. Australia acceded to the 1951 Convention relating to the Status of Refugees[1] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[2] in 1973, thereby undertaking to apply their substantive provisions. For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[3]

    [1] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).

    [2] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).

    [3] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’.

11. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.

12. An applicant must establish that they:

    ·     are a refugee (the refugee criterion);[4] or

    ·     qualify for complementary protection (the complementary protection criterion);[5] or

    ·     are a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (family member criterion).[6]

    [4] Section 36(2)(a) of the Act

    [5] Section 36(2)(aa) of the Act.

    [6] Sections 36(2)(b) and (c) of the Act.

    Refugee criterion

13. Section 36(2)(a) of the Act 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.

14. A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of their country of nationality:  s 5H(1)(a) of the Act.

15. Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.

16. A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J(2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)) although there are exceptions to this, set out in the provision. Effective protection measures are defined in s 5LA of the Act.

17. The reason must be the essential and significant reason or one of the reasons for the persecution. The persecution must involve serious harm and systematic and discriminatory conduct.(s 5J(4)). Indicative examples of serious harm are set out in s 5J(5) of the Act.

18. Conduct engaged in by an applicant in Australia must be disregarded unless the applicant satisfies the Tribunal 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) of the Act).

19. 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-5LA of the Act, which are extracted in Attachment A to this decision.

    Complementary protection criterion

20. If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.

21. 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) of the Act, which are extracted in Attachment A to this decision.

    EVIDENCE CONSIDERED IN THE REVIEW

22. The Tribunal has taken into consideration the application for this visa and supporting documents, Departmental migration records and new evidence before this Tribunal.

23. The Tribunal has also considered the Refugee Law Guidelines and Complementary Protection Guidelines prepared by the Department[7] and independent information about Iran, including the Department of Foreign Affairs and Trade (DFAT) Report prepared for protection status determination purposes.[8]

    [7] These are mandatory considerations as prescribed by Ministerial Direction No 84, a direction made under s 499 of the Act (‘Direction No 84’).

    [8] These are also mandatory considerations under Direction No 84.

24. The applicant appeared before the Tribunal on 24 September 2024 to give evidence and present arguments. The applicant’s representative, Ryan Lasaki, was in attendance. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi and English languages. The applicant confirmed that he understood this interpreter well.

25. The evidence and material before the Tribunal is referred to where relevant in the findings. The findings incorporate reference to information that the Tribunal has found to be material to the determination of the issues in the case.[9]

    Summary of evidence in arrival interview [in] October 2012 and entry interview 29 November 2012

    [9] The Tribunal notes that it is not required to make explicit reference to every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.

26. The applicant stated that he was of the Shi’a religion and [named] ethnic group. He said that he was married and ‘had serious financial hardship which was going to end in divorce’. He said that ‘I thought to come to Australia for last 5 years because no one would give me a job’. He said that he had trouble with his wife’s family and was getting close to divorce. He said that he was told to shut his shop. He said that he lived with his mother and installed satellites. He said that the police came into his house without permission and broke the satellites.

27. He also referred to an incident in 2008 when he was arrested as his bike did not have registration.

    Summary of evidence in application and accompanying statement dated 5 October 2016 which were submitted with his previous SHEV application (later found to be invalid)

28. The applicant stated in his application that he left Iran because of problems with his ex-wife and her father. He said that in 2015 he was threatened by them.

29. He said that in 2007 he was working as a satellite receiver installer, which was a ‘secret job as the government was against freedom of media’. He did not tell his father-in-law as he was a policeman, instead telling him he was working with his father.

30. He said that before the 2009 presidential elections he was contacted by a person called [Mr A], who offered the applicant and his business partner a big installation project, involving more than [number] antennas and receivers in a month. He said that [Mr A] said that he would pay from fees paid by customers, but later they realised the payments came from a charitable family, linked to [a prominent Iranian exile]. His wife wanted him to stop this work as satellite businesses were targeted by the government. He did stop and worked with his father in the [business 1]. In 2011 he started to work in the satellite business again due to the poor performance of his father’s business. His wife left him and threatened legal action. He did not make the mahriyeh payment and his wife and father threatened him in 2015. Her father had made a formal complaint against him saying he worked for ‘overseas opposition’.

31. The applicant claimed to fear returning to Iran as he would have a ‘marriage related debt’ and would be imprisoned on this basis. He also claimed to fear returning as he would be arrested for an accusation of working with overseas organisations, or because he was involved with satellite installation, and as a returnee asylum seeker.

    Summary of Supplementary Statement 18 July 2019 (previous SHEV application)

32. The applicant made additional submissions on 18 July 2019. He claimed to have converted to Christianity. His claims are discussed in more details in the findings below.

    Summary of application and Statement 11 June 2020

33. The applicant said he left the country after ‘facing serious issues with the authorities’. He claimed to fear returning to Iran because of his conversion to Christianity. His evidence is referred to in detail in the findings below.

    Summary of evidence provided in SHEV interview 27 July 2020

34. The applicant was interviewed by a delegate of the Department on 27 July 2020.

35. The applicant said that while in the army, he was [with] the Army of Guardians of the Islamic Revolution (Sepah), however he did not have national security or intelligence roles.

36. He explained that he worked for a friend installing satellite dishes when he was about [age range] years old, before his compulsory military service. After his military service he did this work about two or three times a month.

37. He said that his family were not religious, but he had an Islamic wedding.

38. He said that he feared returning to Iran because of his Christian conversion and for no other reason. He said that he no longer claimed protection based on threats from family members or due to satellite installation.

39. He told the delegate that he would practise secretly and evangelise if he returned to Iran.

40. He told the delegate that he had seen a psychologist in 2018 but did not take medication.

41. He provided a certificate from [Bible College 1] dated 27 November 2018 for ‘Personal Evangelism’.

    Submissions to the Tribunal dated 17 September 2024

42. These submissions are discussed in detail in the findings below.

    FINDINGS AND REASONS

43. The Tribunal has determined that the decision under review should be remitted for reconsideration. The reasons for this are set out below.

    Nationality

44. For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’.

45. For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.

46. The applicant provided a copy of an Iranian passport, identification card and driver’s licence. He claimed that his passport was lost when their boat capsized.  The Tribunal is satisfied on the basis of the documents provided and his oral testimony, that the applicant is a national of Iran, and that Iran is the receiving country for the purposes of the legislation.

    Background and family

47. The Tribunal accepts the evidence provided about the applicant’s family background in his application and at the Tribunal hearing. This information is not in dispute and there is no reason to doubt it.

48. The applicant was born in Tehran and lived there until he travelled to Australia.

49. When he was growing up, his father had a [product] shop. His father has now passed away. His mother, who is [an occupation], is still living in Tehran. Currently, she lives on her own. She is retired following [an] operation.

50. The applicant has [specified family members]. [One] brother lives close to his mother in Tehran and works as [an occupation 3]. He speaks to his mother and brother regularly; in fact the last time was the morning of the Tribunal hearing.

51. His [specified siblings] are all living in the same vicinity. He has not had much contact with them recently although in the past he talked to them more. He is in contact with his [other specified siblings]. They live close to his mother, except for one who lives in the south of Iran.

52. His grandmother was alive when he left Iran, but she has now passed away. He has a large extended family in the same area.

53. The applicant married in 2008 and his former wife is living in Iran. After he came to Australia his wife divorced him. It took five years, when she realised that she could not come to Australia. They had no children. They had a difficult marriage and he had ‘problems’ with his father-in-law.

54. The applicant completed school in [year] and military service in [year]. He said in his application that from 2007 to 2009 he was working installing satellites and was self-employed with [name]. From 2009 he was also attending vocational school as [an occupation 3]. In his application he said that from June 2009 to September 2012 he was working in a joint business with his father and uncle, as [an occupation 4].

55. He confirmed this at the Tribunal hearing, saying that he worked with his father doing [occupation 4] and in the evenings he installed satellites, and this work continued until he travelled to Australia.

    Did the applicant instal satellites in Iran, which drew adverse attention to him, and did he have difficulties with his father-in-law?

56. In the arrival interview and entry interview the applicant said that in Iran he ‘had trouble with his wife’s family’ and was ‘getting close’ to divorce. He said that he installed satellites and that the police came into his house without permission and broke the satellites. In evidence in an earlier application for a SHEV he referred to threats from his wife’s family due to his work in installing satellites and non-payment of a dowry.

57. In evidence to the Department relating to this application, he said that he no longer claimed protection based on threats from family members or due to satellite installation.

58. At the Tribunal hearing the applicant confirmed that he had problems with his father-in-law. He said that his father-in-law ‘worked in the system’ and he picked on the applicant. He said that his father-in-law had participated in Iran/Iraq war. The applicant said that he feared telling his wife things in case she told her father. He said that his father-in-law did not approve of him installing satellites as it was illegal to do so. However the applicant had to do this ‘to make ends meet’.

59. The applicant told the Department that he no longer claimed that he feared returning because he owed his wife money for ‘mehriyeh’ or dowry, a financial obligation under Iranian law. At the Tribunal hearing he said that he did have ‘concerns’ about these matters. He said that he was meant to pay a dowry and as he has not, this could lead to ten to 20 years of imprisonment.

60. The Tribunal accepts that the applicant’s father-in-law did not approve of the applicant, and in particular, his satellite installation business. This evidence has been provided consistently since the applicant’s arrival. The applicant’s evidence that he had to instal satellites for financial reasons, even though it was illegal, was persuasive, and is accepted by the Tribunal. The applicant accepts that this contributed to the breakdown of the marriage, and finally divorce (although there was some different evidence about the time of the actual divorce) and that the applicant has not paid his marriage debt.

61. The Tribunal accepts that his involvement with satellites may have led to an instance of police harassment as claimed by him.

62. Considering the findings below, in relation to his political activities and religion, the Tribunal has not considered his earlier claims relating to his father-in-law or previous satellite business in any detail.

    Did the applicant convert to Christianity in Australia, and is he a genuine Christian?

1. In his application (and in an earlier application for a different visa) the applicant claimed that he had converted to Christianity in 2017 and feared returning to Iran as a Christian convert, given that the Iranian regime persecutes converts from Islam. The delegate of the Department did not accept that his conversion was genuine, given how quickly he embraced the religion and lack of insight into Christian principles.

2. The Tribunal has considered the evidence as a whole[10] in assessing whether the applicant genuinely converted, noting that since the delegate’s decision the applicant has continued to be very active in the church.

   [10] Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997); AAT, Migration and Refugee Division, ‘Guidelines on the Assessment of Credibility’, available on the AAT Website, <>

   It is well-recognised that assessment of credibility is inherently difficult and at times can be based on imperfect perceptions of truth.[11] Research in Canada found that refugee decision-makers have unreasonable expectations of memory, and that ‘decades of psychological research’ has demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.[12] An Australian study found that tribunal members may rely on assumptions which can be inconsistent with psychological literature.[13] The Tribunal has considered the applicant’s level of knowledge carefully, in light of this research, noting that it should only consider what the applicant would reasonably be expected to know[14] and considering the applicant’s state of mind. This is the approach taken in the Tribunal’s Guidelines on the Assessment of Credibility,[15] which reinforce that the Tribunal should be mindful of the various factors which may impact on evidence and should approach the assessment with an open mind.

   [11] Fox v Percy (2003) 214 CLR 118.

   [12] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010), International Journal of Refugee Law, Volume 22, Issue 4, 469-511, < Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal Member’s reasoning, nor consideration of the totality of the evidence presented’.

   [14] Nejad v Minister for Immigration and Multicultural Affairs [1999] FCA 182.7

   [15] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT website, <>

   The Tribunal is conscious and mindful that there may be factors that influence how evidence is presented and assumptions which may consciously or otherwise influence decisions.[16] The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia.[17] In the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably. The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries. As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

   understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

   [16] H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9.

   [17] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

3. In submissions to the Tribunal dated 17 September 2024 the applicant’s representative said that the applicant had been suffering from anxiety and stress which had significantly affected his ability to concentrate and communicate effectively, especially in formal settings such as interviews. It was submitted that this stress had been documented in previous letters submitted as part of his application.

4. The applicant had earlier told the Department that he consulted with [Agency 1] in May 2015, June 2018 and in May 2020.

5. This was confirmed in a letter from [Agency 1] dated [in] July 2020. It was reported that the applicant self-referred for symptoms such as depression, loss and grief and anxiety. It was reported that the death of his father and his loss of a job due to COVID had increased his level of stress and anxiety.

6. A report from [Psychologist A], clinical psychologist, dated 10 April 2024 stated that the applicant was in a precarious financial situation and his mental health was a matter of ‘grave concern’. The psychologist noted that his general practitioner had reported ‘symptoms of paranoia, including feeling chased and continually looking over his shoulder’. She said that he has a history of paranoid thoughts, as evidenced by a past admission to a psychiatric unit in Melbourne. She reported that he has a ‘K10 score of 36/50 indicating a severe level of psychological distress, primarily stemming from a mix of depression and anxiety’. The doctor reported that his mental health struggles, including facing family challenges, are exacerbating his medical conditions. He was admitted to [Hospital 1] on 27 December 2023 due to a [medical] condition.

7. At the Tribunal hearing the applicant confirmed that he sees a psychologist monthly. He said that he felt well and capable of giving evidence at the Tribunal.

8. In submissions by the applicant’s representative to the Tribunal dated 17 September 2024 it was requested that the Tribunal take the applicant’s mental state into consideration in assessment of his evidence. The Tribunal notes the report of [Psychologist A] that the applicant had reported symptoms of paranoia, as well as a severe level of psychological distress, stemming from depression and anxiety. The Tribunal accepts that stress and anxiety can impact on the presentation of evidence and has taken this into consideration in assessing his evidence.

9. The Tribunal has also taken into consideration other difficulties applicants may experience in presenting evidence. The Full Federal Court in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167 summed it up:

   refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.

10. These experiences may lead to nervousness and anxiety in presenting evidence to government authorities and in the applicant’s case presentation may also be impacted by long separation from family. An applicant may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons.[18]

    [18] AAT, Migration and Refugee Division, available on the AAT website, < on the Assessment of Credibility, AATrefugee-division/mrd-resources/legislation-policies-and-guidelines>.

11. Taking these various matters into consideration, and considering the evidence in totality, the Tribunal accepts that the applicant has converted to Christianity in Australia and has been involved in evangelical activities. Reasons for this are set out below.

12. Firstly, the applicant has been consistent in his evidence to the Department and Tribunal that while born a Muslim, he was not religious growing up and was not involved in religious activities. He told the Tribunal that his father believed in God but did not go to mosque. His mother was the only member of the family who attended mosque and she had not been to the mosque for the last few years due to a [medical] condition.  He said that his [other family members] were ‘not attached to the religion’ and none of them were devout. His family did not pray five times a day or fast during Ramadan (except for his mother), and rarely participated in festivals.  He said that he had an Islamic wedding as ‘this is the only option in Iran’. Country sources suggest that there are many non-practising Muslims in Iran.[19] A ‘senior research fellow in Iranian studies at a university in Germany’ advised ACCORD in August 2015 that ‘non-practising Muslims form a large part of the population of Iran’s cities. They lead normal daily lives and are rarely called upon to answer direct questions about Muslim religious practice and are rarely pressured to observe Muslim precepts’.[20]  

    [19] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 24 July 2023.

    [20] Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), ‘Iran: Freedom of Religion; Treatment of Religious and Ethnic Minorities COI Compilation’, 1 September 2015, p.31.

13. At the Tribunal hearing the applicant said that he also did not practise Islam when he came to Australia. He submitted, and the Tribunal accepts, that having a family that were not devout Muslims, and not being a devout Muslim himself, made it easier for him to take on a new religion. The Tribunal accepts that he was not closely tied to Islam, such that he was not abandoning a belief system that he felt strongly about when he converted to Christianity.

14. Secondly, although the applicant’s conversion does appear to have happened very soon after he first was taken to a church, he has provided some explanation as to why he adopted the religion so rapidly, saying that the religion helped him at a time when he was not happy, and he had seen others adopt Christianity successfully.

15. In his application for the visa, he stated that he became a Christian in 2017, introduced by his friend [Friend A], whom he met at a shopping centre. [Friend A] took him to [Church 1] on [a day in] July 2017 and he decided to become a Christian after accepting Christ a few hours later. In the statement made as part of his application to the Department on 11 June 2020, he said, consistently with his earlier evidence, that about four years after living in Australia he became familiar with Christianity through one of his friends, [Friend A]. He said that he knew that many of his friends were attending different churches and every one of them was happy with their religious activities. [Friend A] gave him some general information and suggested it was a good idea he attend a Sunday sermon and speak with [Pastor A]. He said that he attended the church and was ‘evangelised and saved on [that day in] July 2017’. The applicant confirmed at the Departmental interview that he converted because the Pastor explained to him that Jesus went to the cross to remove his sins and believing in Him is the way to eternal life.  He said that [Pastor A] believes that conversion can happen instantly, and it happened to him in one day. He was later baptised by immersion in water, and he had a ‘great feeling’ as his sins were washed away.

16. Asked at the Tribunal hearing about how he first became interested in Christianity he confirmed that it was in 2017 through his friend, [Friend A]. When pressed by the Tribunal about why he went to church on the first occasion, he said that he saw [Friend A] in the street and told him that he did not feel well, and [Friend A] then invited him along to a church and Bible Study which he thought might improve his mood. He explained that his friend said church might help him get better and he respected his opinion. He expanded on his evidence to the Department, saying that on the first occasion he just went along to listen and later on he felt the Holy Spirit and that was why he accepted Christianity. He said that the pastors talked and explained Christianity to him, and he was also told about the differences between Christianity and Islam. He said that as he progressed in learning, his belief became stronger.

17. He claimed he was baptised on [a later day in] July 2017 after 12 days in the church and attending some classes. He provided a copy of a ‘Certificate of Baptism’ dated [that day in] July 2017 from [Church 1]. At the Tribunal hearing he was asked why he would get baptised after only 12 days as this was a very short time to be certain that the religion was the right one for him or to know enough about it. He said that before this, he was not following any religion, and when he accepted Christianity, he felt that his sins were forgiven, and he could start a new life. He also attempted to explain baptism to the Tribunal saying that it ‘started with John’. He said that ‘it is like resurrection, you are immersed in the water and come out a new person, like a newborn’.

18. The Tribunal shares the delegate’s scepticism that a person could truly embrace a religion in such a short space of time, however considering that the applicant has provided some reasons for this, including his emotional state at the time, and considering the length of time he has been going to church since then, the Tribunal accepts that he has genuinely converted to Christianity over time.

19. Thirdly, as mentioned, no matter whether or not the applicant initially became interested in Christianity in order to bolster his refugee claim, there is strong evidence that over the years he has spent a significant amount of time in the church community and engaging with church activities. According to his evidence and that of the pastor, he attends services, Bible Study and outreach, and assists in tasks such as cleaning, painting, maintenance, cooking and connecting cables in the church.

20. A support letter was provided to the Department from [Pastor A] of [Church 1] dated [in] July 2020. The pastor said he had known the applicant since [July] 2017. He said that on that day serious mistakes in the Quran were explained to the applicant by another pastor, as well as the path to salvation. He said that the applicant accepted the truths and prayed to receive Jesus Christ as his saviour. He said that since then he had a good attendance at church and was baptised. He had brought over five people to the church and completed 86 out of 184 subjects for a Bible study certificate. He said that he had completed a personal evangelism course, helped around the church and posts ‘Bible truths’ on [social media]. He also donates to the church, is a good friend to the pastor, and has a ‘special interest in helping Muslims see the errors of Islam and to become a Christian’. He also attends gospel presentation classes to improve his gospel presentation skills. The pastor noted that the applicant helped renovate the premises and is kind and dedicated.

21. [Pastor A] in a further letter [in] August 2024 said that the applicant had now brought six people to the church and passed out gospel papers in [several specified suburbs] over 15 times. He said that in 2023 the applicant attended 9 bible classes and five in 2024.  He said that the applicant had completed 86 out of 184 subjects in the [Bible Certificate] as well as a number of other subjects for other certificates. He had also completed a ‘personal evangelism’ course.

22. A letter of support from the ‘Members of [Church 1]’ dated [in] September 2024 was also provided to the Tribunal. The members of the church stated that the applicant had been an active and devoted member of the church community since 2017, attending services, Bible Study classes and other church activities with ‘enthusiasm and a genuine heart’. They said that he was known in their congregation as a kind and good-hearted man who helps with church preparation and assists with members in need, ‘reflecting his strong Christian values’. It was stated that despite facing mental health challenges, he did not let this affect his dedication and responsibilities to the church.

23. The Tribunal accepts that this devotion to the church over a long period is suggestive of a person who has genuinely embraced the religion.

24. Fourthly, although the applicant’s articulation of Christian principles was not sophisticated, he clearly was familiar with Christian principles and stories. He said on a number of occasions that ‘in Christianity your sins are forgiven and you have a new life’, which he said ‘was not a principle of Islam’. He said that Christ is pure and can ‘provide for a person’. He said that the prophets came, committed sin and left the world but Jesus promised eternal life by going on the Cross. Asked how he lives in order to embody the Christian values, he said  that ‘kindness and peace is very important’. He said that there is a saying that ‘you should put the light on your house high enough such that the light will cover your neighbour’s house’. He referred to the ‘Book of Acts’ 4:12 which states there is no other path to truth except through Jesus. He also referred to Romans 10:13, where he said that it is stated that whoever calls on God will be saved.

25. He said that he celebrates Christmas. Last year he went to church in the morning, said prayers and had a meal and then helped at the church. He also drove people who could not get to church by public transport. He said that the story of Christmas is the birth of Christ from Mary.

26. While some of the information he provided about Christianity is fairly generic, it was clear that he knows some of the tenets and stories, which when considered with the other factors discussed in these findings, contributes to the finding that he is a genuine convert.

27. Fifthly, the applicant told his family and friends after he first converted. This suggests that it was a significant event for him as he has said that he is close to his family. The pastor confirmed that the applicant had told his family and friends in Iran. The pastor said his mother was angry about this but is now happy. The applicant also said that his mother was upset for two years, but since then he had tried to make her believe in Christ and she has slowly come around.

28. The Tribunal is also satisfied that the applicant has participated in proselytising activities with member of the church in Sydney. The Tribunal accepts that since 2018 he has been a member of [Agency 2] since 2018, which he has explained as an evangelical group where they ‘teach Christianity to others’. He showed the Department a document called ‘[Title]’ issued by this group. He told the Tribunal that he goes with the pastor to spread the word on the street and he also sometimes goes on his own. They go to Muslim areas such as [named suburbs] and tell people the story of Jesus, and about his teachings and sermons and the path to salvation. They invite them to Church and Bible Study. He said that sometimes people get aggressive with them. He said that he had engaged in this kind of activity sometimes every week and sometimes every few months. Photographs of him handing out pamphlets were provided to the Tribunal. Also provided was a certificate of ‘Personal Evangelism’ from the [Bible College 1] dated December 2018.

1. The Tribunal accepts also that the applicant has posted Christian material on [social media] regularly since 2017. At the Tribunal hearing the Tribunal Member was shown his [social media] account. In submissions dated 17 September 2024 to the Tribunal, the applicant’s representative stated that ‘his [social media] page serves as a thorough personal diary, documenting his faith and religious activities, including evangelising, participating in Bible Study, and spreading the message of Christianity.’ It was requested that ‘special attention be given to his [social media] activity as evidence of his genuine and consistent Christian practice’. At the Tribunal hearing he was asked why he posts on [social media]. He said that he puts the teachings from the pastor on [social media] to ‘share with friends’. He has about [number] followers. He has a public profile so ‘everyone could see the good news’. He was asked why if it might bring him into trouble if he returns to Iran, he posts on [social media]. He said that the Iranian government would check, but he makes the posts as it is ‘good news’.

2. Subject to s 5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. In this case, the applicant has claimed that he has converted to Christianity in Australia and therefore his fear of persecution is partly a consequence of this (he also claims persecution based on his political profile). Section 5J(6) of the Act provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the Tribunal that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.

3. According to the Revised Explanatory Memorandum, the provision ‘maintains the integrity of Australia’s protection process by ensuring that a protection applicant cannot generate sur place claims by deliberately creating circumstances to strengthen his or her claim for refugee status’.[21]

   [21] Migration Legislation Amendment Bill (No 6) 2001 (Cth), Revised Explanatory Memorandum, at [29].

4. The Tribunal is satisfied that the applicant has engaged in Christian worship other than for reasons of bolstering his refugee claims. His explanations as to how and why he first showed some interest in Christianity were persuasive. He had never been a strict adherent of Islam so it is more plausible that he may have had an interest in other religions. Clearly since then he had engaged deeply with the church community, as evidenced by the pastor’s letters, letters from the church community, [social media] posts and a number of photographs depicted him helping in the church hall, handing out pamphlets outside a shopping centre, and attending Bible Study.

   Has the applicant been involved in political activities in Australia?

5. The applicant has claimed that he has been involved with [Community Organisation 1] in Australia. He said that the association has a [social media] page and organises demonstrations. He claimed to have attended a number of these demonstrations.

6. The Tribunal is satisfied that the applicant has participated in [this organisation’s] activities, attended anti-Iranian regime protests in Australia and posted anti-regime material on [social media].

7. His claims were corroborated in a Statutory Declaration of [Leader A] of the [Community Organisation 1], dated ‘30’, 2023. [Leader A] said that [Community Organisation 1] is a not-for-profit organisation that familiarises compatriots with the history of Iran, defends and supports the rights of Iranian people and educates and creates harmony between Iran and Australia. They organise celebration ceremonies, conferences and peaceful demonstrations in support of the pro-democracy movement. [Leader A] said that he had known the applicant for nearly eight years. He said that the applicant is an active member and participates in most of their ceremonies, voluntarily helps transport guests, prepares food at his own expense, and prepares assemblies. He said that the applicant is helpful and responsible.

100.   [Leader A] confirmed that the applicant had actively participated in the Sydney protests and supported democracy in Iran. He also provided photographs to corroborate the applicant’s attendance, depicting a person who appears to be the applicant holding the flag and placards, one of which stated ‘women life freedom’.

101.   The applicant has also provided reasons for his participation in political activities, which the Tribunal accepts, given the passion he displayed in expressing his opinions. At the Tribunal hearing the applicant said that he had been involved with about four to five anti-regime demonstrations because the Iranian regime kills women, imprisons protestors (he said 3000 were in gaol) and they beat women not wearing hijab. He said that the regime is brutal and shoots people arbitrarily.

102.   The applicant was also able to provide details of the protests. He said that he first attended a protest about two and a half years ago in Olympic Park and then the city. There were speakers using loudspeakers and they wore [identifiable clothing]. They were discussing women’s freedom, the death of Mahsa Ahmini and other topics. He told the Tribunal that the most recent protest was a year ago, held in Sydney Town Hall.

103.   As claimed, there have been a number of Iranian anti-regime protests in Sydney, including at Olympic Park[22]  and Sydney Town Hall[23] which are locations identified by the applicant. The ‘women, life freedom’ protests, which he claimed he attended have been reported in the media[24].

[22] See for example, Crisis24, 17 November 2022, < Australia: Activists plan to march in Sydney Nov. 19 in solidarity with anti-government protests in Iran | Crisis24 (garda.com)>.

[23] See for example, Meya News, 26 September 2022, < Iranian anti-government protests draw solidarity from Australia, Malaysia - Medya News>.

[24] See for example, Green Left, 11 October 2022, <Video: Thousands march in Sydney for ‘Women, life, freedom!’ movement in Iran | Green Left>.

104.   The applicant has also posted content about these demonstrations on his [social media] site, which have been viewed by the Tribunal. In submissions to the Tribunal in September 2024 the applicant provided copies of some of these [social media] posts. In 2020 there was a repost of a 7 News story stating ‘the real reason for execution.. he has been unjustly targeted by the Iranian authorities’. [in] October 2023 there was a repost of a ‘women life freedom’ poster. [in] January 2024 there was a repost of a petition calling for the ending of executions in Iran, referring to the proposed execution of Mohamad Ghobadlo.

105.   The Tribunal accepts that the applicant has taken part in the demonstrations and posted anti-regime material on [social media] because of his political views and to expose what he regards as cruel behaviour by the Iranian regime. The Tribunal accepts that he engaged in this behaviour other than for the purposes of bolstering his refugee claim. He spoke passionately to the Tribunal about the lack of equality in Iran, and the brutality and cruelty. He said that he wants to ’share with people what is happening’. The Tribunal is satisfied that, as claimed by him, he would continue to share his views if he returned to Iran, even though, as he said, this may lead to harm from the authorities.

Does the applicant have a well-founded fear of persecution?

106.   A person is a refugee if he or she is outside his or her country of nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail him or herself of the protection of that country.[25]

[25] Section 5H(1) of the Act.

107.   The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution. The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act, which provides that a person has a well-founded fear of persecution if:

·the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

·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 above; and

·the real chance of persecution relates to all areas of a receiving country.

108.   The applicant claims to fear returning to Iran for reasons of his religion and political opinion. He said that he fears the regime will know about him already because of his social media posts, and he will be arrested at the airport and charged and possibly killed. He also claims that he will continue to tell others about his political views and to try and convert others to Christianity in Iran, and this would lead to his arrest if he had not already been arrested at the airport.

Does the applicant fear being persecuted for one of the stated reasons?

109.   Section 5J(1)(a) of the Act requires that the person ‘fears being persecuted’ for one of the stated reasons.

110.   The Tribunal had some concerns as to whether the applicant fears being persecuted for reasons of his religion, given that he has been trying to convert his family members who are living in Iran. He said, referring to attempts to convert them, that he was ‘working on it’. He said that he had shown his mother movie clips and told her about the resurrection to try and make her believe in Christ. The Tribunal queried whether he has concerns of harm in Iran if he was trying to convert family members, which would possibly cause adverse attention to them from authorities. The Tribunal asked him why he would try and convert his mother if there was the chance of her suffering harm as a result. He said that there was persecution but Jesus could save her. Asked if he too, could be saved by Jesus if he returns to Iran, he said that he cannot hide his beliefs, which could lead to martyrdom, but his mother would not tell anyone, and could just be a Christian in her heart. He said that he needs to ‘share the Good News’ with his family.

111.   While somewhat concerning that he would try and convert his family given persecution of converts in Iran, the Tribunal accepts his explanations that he considers that his family could accept Jesus privately without drawing attention to themselves. The Tribunal is satisfied that the applicant fears being persecuted for reasons of his religion, given that he has converted to Christianity openly in Australia, has posted on [social media] and would want to evangelise if he returns to Iran. The Tribunal is satisfied also that the applicant fears being persecuted for reasons of his political opinion, given that he has attended protests and would want to continue to express his views.

Is there a real chance of serious harm if the applicant were to return to Iran in the reasonably foreseeable future?

112.   For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act, provides an objective element to that concept;[26] not only must a person fear persecution, but there must also be a prospect of that fear being realised.

[26] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <  The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[27]

[27] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p171.

114.   The Tribunal is satisfied that the applicant has genuinely converted to Christianity, for reasons set out earlier. Given his passion for his new religion, the Tribunal is satisfied that he would continue to practise Christianity if he returned to Iran, including spreading the word to others, which he has done in Australia. The Tribunal is also satisfied that the applicant has attended protests in Australia and would continue to express his opinion, including on social media.

115.   The Tribunal is satisfied that the applicant faces a real chance of serious harm for reasons of his religion and political opinion if he returned to Iran in the reasonably foreseeable future. The reasons are set out below.

116. DFAT reports that over 99 per cent of Iranians are Muslim. Freedom of religion is restricted through the Iranian Constitution. The US Department of State reports that the Constitution states citizens shall enjoy all human, political, economic, social, and cultural rights ‘in conformity with Islamic criteria’.

117.   Furthermore, the law prohibits Muslims from changing or renouncing their religious beliefs. The only recognized conversions are from other religions to Islam’.[28]The Islamic Penal Code criminalises proselytising and attempts by non-Muslims to convert Muslims.[29] DFAT confirms that attempts by non-Muslims to convert others attract the death penalty and it is illegal under Sharia law to be an apostate.[30] DFAT reports that a person can be found guilty based on the testimony of two male witnesses, the knowledge of a judge or a confession and the death penalty is available, although rarely used.[31] Blasphemy or swearing at the prophet is similarly an offence attracting the death penalty.[32]

[28] US Department of State, ‘2023 Report on International Religious Freedom: Iran’, 26 June 2024.

[29] US Department of State, ‘2023 Report on International Religious Freedom: Iran’, 26 June 2024.

[30] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 24 July 2023.

[31] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 24 July 2023.

[32] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 24 July 2023.

118.   DFAT has noted that persons charged with apostasy also faced other charges related to national security and were executed, but apostasy and blasphemy cases are no longer an everyday occurrence in Iran and death sentences are rare. There was a case in March 2017 in which 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.[33] There have been some recent cases of execution. In May 2023 two men were executed for apostasy after posting on social media.[34]

[33] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020.

[34] United Nations Human Rights Council, ‘Situation of Human Rights in the Islamic Republic of Iran’, 24 February 2024.

119.   Authorities use religiously based charges (such as ‘insulting Islam’) against a diverse group of individuals, including cases with political undertones.[35] Christians are usually charged under Article 499 of the Penal Code, ‘insulting divine religions or Islamic schools of thought’, or Article 500 ‘committing deviant educational or proselytising activity that contradicts or interferes with the sacred law of Islam’.[36]

[35] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020.

[36] United States Department of State, ‘2022 Report on International Religious Freedom’, 15 May 2023.

120.   Christian converts can face arrest, harassment, surveillance, assault, torture and other ill-treatment.[37] Most arrested in recent years have been affiliated with house churches and have been arrested and later released when agreeing to cease the religious activity.[38] The UK Home Office in 2022 found that Christian converts who seek to openly practise their faith ‘are likely to be subject to treatment or discrimination by the state that is sufficiently serious, by its nature or repetition, to amount to persecution’.[39] DFAT assesses that Muslim converts to Christianity face arrest and detention if their conversion is revealed and those found to be proselytising face a high risk of arrest, prosecution and imprisonment.[40] DFAT assesses that those who convert while outside Iran and who intend to continue to practise their Christian religion would face a high level of official discrimination and could be subject to the death penalty.[41]

[37] Canadian Immigration and Refugee Board, Canada, ‘Iran: Situation and Treatment of Christians by Society and the Authorities (2017-Februrary 2021)’, 9 March 2021, Amnesty International, ‘State of the World’s Human Rights 2024’, 23 April 2024.

[38] Open Doors, ‘Faceless Victims: Rights Violations against Christians in Iran 2024 Annual Report’, Article 18, Middle East Concern, Christian Solidarity Worldwide, 19 February 2024.

[39] UK Home Office, ‘Country Policy and Information Note: Christians and Christian converts, Iran (Report, September 2022)’, Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 24 July 2023.

[41] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 24 July 2023.

121.   Other reports also refer to discrimination against converts[42] and the use of the law to justify violent treatment against converts.[43] There is a lack of due process surrounding the arrest and detention of Christians.[44] There are also reports of beatings, solitary confinement, and sexual abuse of converts in detention as well as psychological abuse.[45]

[42] US Department of State, ‘2021 Report on International Religious Freedom: Iran’, 2 June 2022, Human rights lawyer quoted in US Department of State, ‘2021 Report on International Religious Freedom: Iran’, 2 June 2022, Canadian Immigration and Refugee Board, Canada, ‘Iran: Situation and Treatment of Christians by Society and the Authorities (2017-Februrary 2021)’, 9 March 2021, Amnesty International, ‘State of the World’s Human Rights 2024’, 23 April 2024.

[45] Canadian Immigration and Refugee Board, Canada, ‘Iran: Situation and Treatment of Christians by Society and the Authorities (2017-Februrary 2021)’, 9 March 2021, Amnesty International, ‘State of the World’s Human Rights 2024’, 23 April 2024.

1. The Tribunal has accepted that the applicant has a genuine passion for Christianity and would want to practise his religion, including spreading the word to others, which would likely lead to his arrest or other ill-treatment, especially as he also has a political profile in Australia.

2. The Tribunal notes that as a returnee asylum seeker with a political profile and who has made posts on [social media], he may have already attracted interest of the Iranian authorities.

124.   In the past, country information on the overseas monitoring capabilities of the Iranian government indicated that the authority’s main interest was in higher profile anti-government activists.[46] DFAT maintains that in general authorities pay little attention to failed asylum seekers on return and social media is not actively investigated.[47] DFAT states that returnees are questioned at Tehran airport about the circumstances of their departure, and why they are travelling on a laissez-passer. This usually takes 30 minutes but if the applicant is evasive or there is a criminal history, this may take longer. DFAT states that arrest is not common.[48]

[46] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020.

[47] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 24 July 2023.

[48] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 24 July 2023.

125.   There are however some reports suggesting that the Iranian authorities do take an interest in returnees. In February 2021, a representative of Human Rights Activists News Agency (HRANA) stated that there had been multiple reports of dissidents being arrested upon their return and ‘even lured into returning to Iran’ to then be arrested.[49] The UK Home Office also provides some examples of failed asylum seekers being prosecuted and/or punished for political or other activities upon return; these appear to have obtained a profile whilst abroad or else had a criminal record in Iran before leaving.[50] The Austrian Centre for Country of Origin Information and Asylum Research and Documentation has stated that it is likely that the regime knows the name of and monitors substantial numbers of converts.[51] A Belgian report referred to a Christian convert who was deported from Germany in 2019 and was arrested at the airport.[52] Open Doors suggests that Iran uses informers in Western countries to monitor Christians and report to intelligence agencies.[53]

[49] IRB, 22 February 2021, ‘IRN200457. E – Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019–February 2021)’,< UK Home Office, ‘Country Policy and Information Notes – Kurds and Kurdish Political Groups’, May 2022, < Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), ‘Iran: Freedom of Religion; Treatment of Religious and Ethnic Minorities COI Compilation’, 1 September 2015.

[52] Belgian Office of the Commissioner General for Refugees and Stateless Persons, ‘Treatment of Returnees by their national authorities’, 20 March 2020.

[53] Open Doors, ‘Iran: Full Country Dossier’, 1 December 2023.

126.   It is reported that Iran sends agents to overseas countries. The Immigration and Refugee Board of Canada reported, in February 2021:

When asked whether Iran monitors overseas anti-government activities, the retired Professor[54] responded that Iran’s government "sends people as agents to other countries" (Retired Professor 25 Jan. 2021). The Assistant Professor[55] indicated that the government "will try to find [anti-government activists] inside and outside of the country" and that the intelligence agency will help gather information (Assistant Professor 23 Jan. 2021). The same source noted that Iran uses refugees to monitor other refugees outside of the country (Assistant Professor 23 Jan. 2021). A December 2019 Associated Press (AP) article reports that in December 2019 an Iraqi man was charged with spying and was sentenced to two and a half years in prison for collecting information about Iranian refugees in Sweden, Denmark, Belgium, and the Netherlands (AP 20 Dec. 2019).

[54] This refers to information provided to the Canadian Immigration and Refugee Board (IRB) on 25 January 2021 by ‘a retired professor at York University, who has published books and articles in English and Persian on the leftist movement in Iran, religious fundamentalism, secularism, multiculturalism, and the diaspora’: ‘IRN200457.E – Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019–February 2021)’, < 22 February 2021.

[55] This refers to information provided to the IRB on 23 January 2021 by ‘an assistant professor of political science at the University of Tennessee at Chattanooga, who studies authoritarian regimes with a focus on the Middle East and North Africa and has written about Iran’: ‘IRN200457.E – Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019–February 2021)’, < IRB, 22 February 2021.

The Assistant Professor explained that people are "forced and coerced into working with Iranian security authorities" and that authorities will use personal information to pressure them (Assistant Professor 23 Jan. 2021). The same source indicated that "sometimes" prisoners are promised that they will be released if they collaborate (Assistant Professor 23 Jan. 2021). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

The Assistant Professor also noted that Iran's government monitors political opponents abroad to find out about their activities (Assistant Professor 23 Jan. 2021). The same source noted that the authorities "usually focus on important people, but they are interested in any information that they can use to put pressure on people," such as information about a person's consumption of alcohol or romantic relationships (Assistant Professor 23 Jan. 2021). The retired Professor indicated that Iran's government spies on the opposition and Iranians abroad (Retired Professor 25 Jan. 2021).

The Assistant Professor stated that the authorities will "hack" for information on a "mid-rank" activist and will monitor "an ordinary Iranian," "because any information is useful" (Assistant Professor 23 Jan. 2021). Based on a report by the cybersecurity company Check Point, a February 2021 article by Arab News, an English-language newspaper published in Saudi Arabia (Arab News n.d.), reports that "Iran is running two surveillance operations in cyberspace, using various methods to spy on more than 1,000 dissidents" and that "[p]eople in Iran, the UK, the US and 10 other countries have been tracked by Iranian hackers" (Arab News 9 Feb. 2021).[56]

[56] Canadian Immigration and Refugee Board, 22 February 2021, ‘IRN200457.E – Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019-February 2021)’,  In recent years there appears to be more interest in the diaspora, including in Australia. In September 2022, protests erupted across Iran over the death of Mahsa Amini, a 22-year-old Kurd who had been detained for inappropriate dress. The demonstrations, the largest in many years, evolved into calls for the ousting of the supreme leader, and an end to the Islamic Republic. The security forces responded with deadly force.[57] An ABC article claimed that HRANA said 410 protestors had been killed in total and 17,251 people arrested as at November 2022.[58] The report also documented the use of batons, electric shocks, pepper spray, tear gas, pellets, plastic bullets and handguns. The Basij is referred to as the key body used to suppress protestors.[59] Protests involved all classes of Iranians, including lower, middle and upper classes, and different ethnic groups and religions.[60] In February 2023 the state announced 20,000 pardons of protestors, although those charged with ‘corruption on earth’ have not been pardoned.[61] Four people charged with this charge have been executed, and 100 are facing death sentences according to a Norwegian Human Rights group, which an Al Jazeera report said led to a slowing in protests.[62] A February 2024 report by the Special Rapporteur, referred to execution, without fair trial of eight protestors from the September 2022 protests. The report also stated:

[57] United States Institute of Peace,< ABC News, 21 November 2022, < Human Rights Activists News Agency, September/October 2022,<

[60] Human Rights Activists News Agency, September/October 2022, < Al Jazeera, ‘Protests in Iran’, 5 February 2023, <Iran’s supreme leader pardons ‘tens of thousands’ of prisoners | Protests News | Al Jazeera>.

[62] Al Jazeera, ‘Protests in Iran’, 5 February 2023, <Iran’s supreme leader pardons ‘tens of thousands’ of prisoners | Protests News | Al Jazeera>.

The Special Rapporteur is concerned by reports of continuing arbitrary arrests and the frequent use of torture or other cruel, inhuman or degrading treatment or punishment, including kicking, flogging and beating with batons and cables, prolonged solitary confinement, deliberate denial of health care, electric shocks and mock executions. In addition, psychological torture methods reported by victims include degrading insults and profanities, death and rape threats, and threats to harm the family members of detainees. The use of torture was particularly the case for individuals who were charged with or convicted of national security offences, political crimes or drug-related offences.[63]

[63] United Nations Human Rights Council, ‘Situation of Human Rights in the Islamic Republic of Iran’, 24 February 2024.

128.   One report on the protests said that there had been unprecedented solidarity between Iranians in the diaspora and Iranians within the country.[64] It referred to the ‘international community’ becoming the ‘voice of the Iranian people in an unprecedented way, and by disseminating information and taking various actions, they have attention to what is going on in Iran’.[65] Australian Iranians have also become active, calling on the Australian government to sanction the Iranian government.[66] An article in The Australian quotes academic Kylie Moore-Gilbert, who spent more than 800 days in Iran’s Evin prison, as stating that Iranian Australians were calling for tangible action from the Australian government including the sanctioning of officials, listing the Islamic Revolutionary Guard Corps as a terrorist organisation and addressing Iranian government infiltration domestically.[67]

[64] Human Rights Activists News Agency, September/October 2022, < Human Rights Activists News Agency, September/October 2022, < The Australian, 11 November 2022, < The Australian, 11 November 2022,  A 2023 report in the Sydney Morning Herald[68] quotes Iranian democracy protestors in Australia who claim family members have been arrested in retaliation for their actions. One protestor has said that his mother has been arrested and asked questions about her son in Australia. While the reports are unverified, they have been widely accepted by academics in Australia, including Kylie Moore-Gilbert, who said that she had heard direct reports from other Iranian Australians whose relatives had been harassed and questioned about them. She also claimed that there was a lot of fear in the Australian community due to the involvement of agents and informers in Australia, recording protests, sending threatening messages and letting people know they are being watched.

[68] Sydney Morning Herald, ‘Iran cracks down on family of Australian protestors’, 16 January 2023, <  A Melbourne lawyer and anti-regime activist is also quoted in the article. He said that he had direct knowledge of six Australian Iranians whose relatives had been arrested or interrogated since the protest movement began. The article also refers to the head of Britain’s MI5 intelligence agency claiming recently that Iran was plotting to kill or kidnap 10 British residents.[69]

[69] Sydney Morning Herald, ‘Iran cracks down on family of Australian protestors’, 16 January 2023, <  The former Home Affairs Minister, Clare O’ Neill has singled out Iran as an offending government in respect of foreign interference, revealing ASIO had disrupted an operation on Australian soil targeting an Australian-Iranian critic of the regime.[70]

[70] SBS News, ‘They tried many times to corrupt me, Australians speak out against foreign spies’, 29 February 2024.

132.   The Australian Federal Police has urged Iranians in Australia to report harassment or surveillance by Tehran authorities to the national security hotline, including monitoring of social media.[71] Iran International reported on concerns by the Australian government of espionage by Iran in Australia, and the targeting of Iranians living in Australia.[72]

[71] The Guardian, ‘AFP urges Iranians in Australia to report harassment by Tehran authorities as anti-government protests escalate’, 21 December 2022.

[72] Iran International, 17 January 2024, < Australia ‘Concerned’ By Iranian Espionage Activities | Iran International (iranintl.com)>.

133.   An SBS article in 2024 refers to the case of an Iranian Australian pro-democracy activist, who found a body of a decapitated chicken outside her front door.[73] That same week relatives in Iran were taken for questioning and asked if she liked the ‘surprise on her doorstep’. The article refers to members of the Iranian-Australian community who had told SBS News that incidents of foreign interference had rapidly escalated since the protests in Australia. According to activists the Iranian regime’s spy networks are strong and active and take multiple photographs openly at protests.

[73] SBS News, ‘They tried many times to corrupt me’, Australians speak out against foreign spies’, 29 February 2024.

134.   The SBS news article also refers to comments by Professor Dara Conduit, a Middle East Specialist at the University of Melbourne, who said that most foreign interference from Iran is centrally organised through official government bodies and the Islamic Revolutionary Guard Corps.[74]

[74] SBS News, ‘They tried many times to corrupt me’, Australians speak out against foreign spies’, 29 February 2024.

135.   The applicant only has about [number] followers on [social media] although his profile is public. It was submitted that his posts are extensive, spanning several years and are a ‘continuous and public display of his faith’, which would make it more likely that he would attract the attention of authorities in Iran. The Tribunal accepts that he has made regular political and Christian posts for a long period of time which is likely to draw attention from persons monitoring for the Iranian regime. A link to his [social media] page was provided and he also submitted photographs of his posts from 2017 to 2024. Some of these are as follows. A post in 2017 shows [Christian teachings] about marriage. In 2018 there is a repost of a ‘[Christian source]’ post about Jesus saving patients from sickness. A post in 2018 shows the applicant with the pastor receiving a certificate at Bible College. A post in 2019 is of [of Jesus], stating ‘I am the way, the truth and the life’. There are various posts in 2020 showing [Pastor A] and others at church. In 2022 there was a post for [Easter]. On Good Friday 2023 there was a post of [Pastor A] with the applicant. There are also posts depicting protests including the ‘women, life, freedom’ demonstrations.

136.   The applicant has been involved in protests in Australia. It is reported that within Iran the authorities monitor social media[75] and the sources above indicate recent monitoring of Australian Iranians. In this environment, where the diaspora including Australian Iranians, has been active, and where there is recent evidence of monitoring and harassment of overseas and Australian activists and their families, it is conceivable that the authorities would be observing returnee asylum seekers much more closely than they have in the past. Of particular concern are the posts of the applicant at protests and proselytising on the streets in Sydney.

[75] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020.

137.   The UK Upper Tribunal (Immigration and Asylum Chamber) has said that returnees are interrogated upon return, including being questioned about asylum claims[76] which in the applicant’s case may lead to questioning about his political opinion and religion. The applicant has been in Australia since 2013, such that there may be particular interest in why he has been out of the country for so long. The Danish Immigration Service report, citing an unnamed source from Elam Ministries, states that those who spent extended periods outside Iran are more likely to be suspected of spying upon return.[77] Not only is there the possibility that the applicant’s photographs in the media and social media have been noticed, but it is likely that if the applicant were to be questioned, the authorities would become aware that he is a failed asylum seeker and has been involved in protests and suspect, or become cognisant of, the applicant’s Christian conversion. He has been fully engaged with the church in Australia, attending Bible Study and social gatherings and posting on social media.

[76] UK Upper Tribunal, PS (Christianity-risk) Iran CG [2020] UKUT 00046 (IAC).

[77] Danish Immigration Service and the Danish Refugee Council, ‘Iran: Christian converts and house churches (1) – prevalence and conditions for religious practise’, February 2018.

138.   Recent reports have emphasised the increase in executions in Iran. The Special Rapporteur said in the February 2024 Report that he remains deeply concerned at the spike in death penalty sentences and executions observed during the reporting period. According to information received, at least 834 people were executed in 2023, a 43 per cent increase compared to 2022, when at least 582 persons were executed.[78]

[78] United Nations Human Rights Council, ‘Situation of Human Rights in the Islamic Republic of Iran’, 24 February 2024.

139.   The Special Rapporteur in the February 2024 Report of the Human Rights Council stated that: ‘the Special Rapporteur is concerned by reports of continuing arbitrary arrests and the frequent use of torture or other cruel, inhuman or degrading treatment or punishment, including kicking, flogging and beating with batons and cables, prolonged solitary confinement, deliberate denial of health care, electric shocks and mock executions. In addition, psychological torture methods reported by victims include degrading insults and profanities, death and rape threats, and threats to harm the family members of detainees’.[79] The same report also referred to increasing limitations on rights to freedom of opinion and expression.[80]

[79] United Nations Human Rights Council, ‘Situation of Human Rights in the Islamic Republic of Iran’, 24 February 2024.

[80] United Nations Human Rights Council, ‘Situation of Human Rights in the Islamic Republic of Iran’, 24 February 2024.

140.   The Tribunal is satisfied that the authorities may arrest and physically harm the applicant once they become aware of his conversion and political opinion. Even if they were unaware of his activities in Australia, there are circumstances in which Iranians must declare their religion, and if someone born Muslim indicates they are Christian this could have detrimental consequences. This includes obtaining an identity card required for many social services and banking.[81] Given the conduct of the authorities towards protestors in recent years, and to families of Australian activists, the Tribunal is satisfied that there is a real chance of serious harm. Once the authorities are aware of his anti-Islamic views and conversion, this could lead to religiously based charges or charges relating to national security, without adequate legal defence, and a likelihood of conviction.[82]

[81] United States Department of State, ‘2023 Report on International Religious Freedom’, 26 June 2024.

[82] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 24 July 2023.

141.   DFAT and other sources have reported that Muslim converts to Christianity face a risk of arrest and detention if their conversion is revealed. Many attend house churches which are perceived as a national security threat by the regime and attendees have been monitored and arrested.[83]. In one example, a Christian convert was arrested in February 2024 and presented with evidence of her baptism years earlier in Malaysia, as well as photographs and videos of her Christian activities in Malaysia. She was sentenced to two years imprisonment and a travel ban.[84]

[83] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 24 July 2023; Open Doors, ‘Faceless Victims: Rights Violations Against Christians in Iran 2024 Annual Report, Article 18, Middle East Concern, Christian Solidarity Worldwide, 19 February 2024; Amnesty International, ‘State of the World’s Human Rights 2024’, 23 April 2024, United States Commission on International Religious Freedom, 1 May 2024.

[84] Article 18, ‘Christian Convert baptised in Malaysia given prison sentence on return to Iran’, 4 March 2024.

142.   The Tribunal is satisfied that the chance of harm to this applicant would be substantial, as opposed to a remote or far-fetched possibility (Chan v MIEA (1989) 169 CLR 379), given the current conduct of the regime and the attitude to the diaspora, and would relate to all areas of the country. In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or if is mere speculation’. In this case, given the substantial volume of country information about the repressive and unpredictable conduct of the Iranian regime, the Tribunal is satisfied that the chance of harm is more than mere speculation, and amounts to a real, substantial chance.

143.   Section 5J(2) of the Act provides that a person does not have a well-founded fear of persecution if effective protection is available. As the harm would be from the authorities, the Tribunal is not satisfied that effective protection would be available.

144.   Section 5J(3) of the Act provides that a person does not have a well-founded fear of persecution if they could take steps to modify their behaviour. The Tribunal accepts that should the applicant return to Iran, the applicant would wish to participate in his faith in a similar way to here in Australia and that to renounce or cease to be involved in the open practise of his faith in order to avoid harm from the Iranian authorities would be an impermissible modification of his behaviour for the purposes of s 5J(3)(c)(i).

1. The Tribunal is satisfied that the applicant faces a real chance of serious harm for the essential and significant reason of his religion and political opinion. The Tribunal is satisfied that the harm would involve serious harm (s 5J(4)(b)) as it is described in s 5J(5) of the Act, as it is likely to involve deprivation of liberty or physical ill-treatment. The Tribunal is satisfied, given the conduct of the regime in recent months towards political opponents, that the harm would involve systematic and discriminatory conduct (s 5J(4)(c)).

146.   In conclusion, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for the essential and significant reason of his religion were he to return to Iran in the reasonably foreseeable future.

CONCLUDING PARAGRAPHS

147. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

DECISION

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

Jane Marquard
Member

ATTACHMENT A  -  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.

…