Evidence
Evidence Before The Court
The applicant departed Iran legally [in] April 2013 using his Iranian passport. He arrived in Australia by boat. Evidence before the Department and the TribunalClaims for protection In a written statement attached to his protection visa application form, the applicant explains that while he has made claims for protection in the past, currently his biggest concern about returning to Iran is that he has converted to Christianity. In his written statement, the applicant claims as follows:· He was born a Muslim but found it difficult being forced to follow a religion in Iran;· He enjoyed the freedom of choice to learn about Christianity in Australia;· A close friend evangelised him and introduced him to bible study classes held in [Suburb 1] in Sydney;· He started attending bible classes regularly;· He was baptised [in] July 2017;· Being baptised gave him a feeling of belonging to the Christian family and he has continued to attend bible study classes as well as church on Sundays at [Church 1];· He evangelises to friends and people at [local venues] and promotes Christianity on his [social media] page. He will continue to evangelise because that is God’s wish;· If he returns to Iran he will continue to practise his religion;· He fears returning to Iran because of his status as a Christian convert and he will not be safe anywhere in the country from the government authorities.Interview and the delegate’s decision On 25 August 2020, the applicant attended an interview with the Department to discuss his claims for protection. On 16 September 2020, the delegate made their decision. The delegate accepted that the applicant had engaged in Christian activities and had been baptised but the delegate found he had not demonstrated a genuine and ongoing commitment to the religion. The delegate found that the applicant was not a person in respect of whom Australia has protection obligations. Documents provided in support of the applicant’s religious conversion claim The applicant has provided a range of documents to the Department and Tribunal in support of his claim to be a Christian. Relevantly, these documents include:· Screenshots of the applicant’s public [social media] posts about Christianity, showing Christian images, some with comments in Arabic, as well as images entitled “bible study” or showing a prayer emoji and the date showing the applicant in what appears to be a classroom or church hall. These images are sometimes accompanied by a page of text with discussion questions and biblical references. These images range in date from 2018 to 2024;· Photos of the applicant distributing Christian material to letterboxes and outside a shopping centre, along with a photo of him with the Pastor from his church, [Church 1], in 2020;· The applicant’s certificate of baptism dated [in] July 2017;· Letter of support from [Pastor A] of [Church 1] dated 26 July 2020 confirming the applicant’s baptism and his attendance at church and participation in multiple bible study classes and completion of various courses conducted by the church on different aspects of Christianity;· Various written records showing dates of the applicant’s attendance at church bible study classes on different subjects from the period 2017 through to 2024;· Select pages from the applicant’s Persian bible with highlighted passages and annotations showing the dates he studied particular passages of the bible;· Letters of support from members of the applicant’s church community from December 2023 and January 2024 attesting to the applicant’s religious beliefs and his active membership of the church community since 2017;· Letter from [a named] Psychologist, dated 27 May 2024 providing the professional diagnosis that the applicant suffers from Major Depressive Disorder, Post-Traumatic Stress Disorder and Generalised Anxiety Disorder and that these conditions have been exacerbated by the waiting period for resolution of his visa status.Statutory declaration of the applicant dated 16 July 2024
Decision
Reasons for decision
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 The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.Rachel Da CostaMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…
Ratio Decidendi
Legal Principle Established
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.Analysis, reasons and findings The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. In the Tribunal hearing, the Tribunal discussed with the applicant his background, family, education and employment, religious upbringing, religious beliefs and practices and why he fears returning to Iran. The applicant gave his evidence in a clear, straightforward and self-reflective manner. The Tribunal did not have the sense that he was attempting to embellish his evidence. The applicant’s evidence about his faith journey was broadly consistent with what he told the delegate about his religious conversion (up to that time) and the later evidence contained in his Statutory Declaration. The Tribunal had the sense that since the applicant spoke to the delegate, his knowledge of Christianity and understanding of his faith has deepened which is understandable given the passage of time and the applicant’s ongoing practise of his Christian faith. In the hearing, the applicant spoke clearly about his pretence of following Islam in Iran as that is what he was expected to do, and his discomfort with this. He also explained that despite this, he always believed in the existence of God as a creator so he had not entirely rejected religion. He confirmed that he knew nothing about Christianity before coming to Australia. The applicant explained how in the first few years after arriving in Australia he had become depressed and sick, so in 2017 when a friend invited him to attend a bible study class because it might make him feel better, he agreed. The applicant explained how the kindness he was showed by the pastor and the other people at the class, as well as his feeling of being prayed for and not judged, had a great impact on him. He left the class feeling good and wanted to return and know more, which is what he did. He was able to explain to the Tribunal some of the aspects of Christianity that appealed to him compared to Islam, such as the ability to choose whether or not to be Christian, to ask questions, to challenge beliefs, and the difference in how women are viewed. The applicant explained, with reference to a verse from the Bible, why he had embraced Christianity and agreed to be baptised so quickly after first attending church, and how by that time he felt Jesus in his heart and no longer felt alone but rather, part of the Christian family. The applicant spoke about how he lives his faith on a daily basis, both spiritually and practically, and the positive effect it has had on his mental health and sense of well-being, including in his interactions with other people. He was also able to articulate why his faith was important in this regard, rather than these benefits simply being the result of being part of a community.