2017053 (Refugee)

[2024] AATA 2599

2017053 (Refugee) [2024] AATA 2599 (8 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Razzaghipour Farnam (MARN: 9789359)

CASE NUMBER:  2017053

COUNTRY OF REFERENCE:                   Iran

MEMBER:Meena Sripathy

DATE:8 March 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 08 March 2024 at 3:27pm

CATCHWORDS

REFUGEE – Protection Visa – Iran – religion – a non practising Muslim in Iran – had genuinely converted to Christianity in Australia – an abusive relationship with her husband – harassment from morality police in Iran relating to hijab – satisfied the applicant has converted to Christianity in Australia – she is genuine in her Christian faith and activities-  membership of the particular social group – women who do not conform to dress codes – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 November 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Iran, applied for the visa on 7 September 2019. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant faced a real chance of serious harm within the meaning of that term in s5J(5) for any of the specified reasons under s5J(1), and therefore does not satisfied the refugee criteria in s5(H). The delegate was also not satisfied that she faced a real risk of suffering significant harm for the purposes of the complementary protection criteria. In reaching these conclusions the delegate accepted that the applicant was a non practising Muslim in Iran, was detained by morality police in the past due to not wearing the hijab and that she attends [Church 1] and was baptised in Australia but did not accept any of her other claims, including relating to her Christian activities in Iran or that she had genuinely converted to Christianity in Australia or that Christianity would be a defining feature in her life. The delegate also did not accept her claims relating to an abusive relationship with her husband or fear from him or the authorities in Iran. 

3. The applicant appeared before the Tribunal on 6 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Ms [A] , Pastor. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.

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

5. The issue in this case is whether there is a real chance, if the applicant returns to Iran, that she would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Iran, there is a real risk that she will suffer significant harm.

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

   CRITERIA FOR A PROTECTION VISA

7. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

8. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

9. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

10. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

11. 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

12. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Evidence before the Department

13. The applicant is a [age]-year-old Iranian national born in Tehran. She indicates she married in April 1998 and provides details of her son born in [year] and partner who reside in Iran and two sisters who reside in Australia. She indicates she is in contact via [social media] with her husband and son. The applicant provided her address history in Iran, indicating numerous previous addresses, and the most recent one was from 2014-2019 in Tehran.  She provided details of her employment history, variously as [occupations] with various employers between 2012-2019. She is educated to post-secondary level with [qualifications]. 

14. In summary the applicant provided the following information in the application regarding her reasons for claiming protection:

    ·She became interested and encouraged to follow Christianity by her brother in [Country 1] during her visit there in 2018.  He evangelized the message of Christ to her and gave her a copy of the Bible which she left in [Country 1].

    ·In August 2018 her brother gave her the name of a person -[Ms B]- who could help her to participate in Christian group in Iran.

    ·[Ms B] invited her to attend monthly meetings at a garden property in [a city]. They met every last Thursday from 2-4pm, with 5-8 female participants, who only knew each other by first name and no other personal information was shared between them. She did not tell her husband about the meetings. At the meetings they read parables from the New Testament, watched Persian programs recorded outside Iran and said prayers.

    ·The last meeting she attended was on 28 March 2019 when the group members were all arrested and taken away by Sepah agents. The agents then went into the property and took [Ms B] away in handcuffs. Their Bible study materials were also taken.  The applicant and other group members were asked to hand over their mobile phones and pin numbers to unlock them and show their ID documents.

    ·She was pushed and kicked into a small solitary cell when taken to where she was detained. She believes one of the group member’s husband [dobbed] in the meeting. The applicant was separated from the group, interrogated, threatened and detained overnight. She was allowed to contact her husband the next afternoon. Her husband was told to bring her birth certificate, smart card, passport and national ID card for him to sign for her release.

    ·Her husband later told her he had to pay bribe money and sign an undertaking for her to be released. They had a heated argument in the car and he punched her in the [body part]. He was upset she had not told him the truth about the meetings.

    ·The applicant filed a formal complaint against her husband to the Coroners and a report was issued upon physical examination of the claimed assault.

    ·Her husband had no religious issues with her seeking to pursue a different faith but raised concerns about the safety and security risks from contravening religious laws and sensibilities of the conservative regime. He told her to take 2 weeks leave from work and stay home. She did what he asked because she wanted him to use his influential friend in Sepah to get her passport returned.

    ·She told her husband she wanted to have the ability to leave Iran if she had further issues with the authorities.

    ·She received several threatening phone calls from private numbers leading her to turn her phone off. She could not change her number because it involves registering her name and personal details.

    ·Her passport was returned to her husband 9 days before her departure from Iran. She left Iran without her husband’s knowledge and only sent him a text message after boarding the plane. He thought she was leaving because of marital issues and she reassured him it was not this but her fear of being rearrested and detained and harmed again by authorities.

    ·Her parents were contacted by the authorities over her involvement in Christianity.

    ·She cannot relocate to another part of Iran as she will be found by the authorities.

    ·She fears being arrested and harmed because of her interest in Christianity and determination to pursue her faith through participation in a chosen church in Sydney.

    ·She will provide an additional statement of claims.

15. On 3 August 2020 the applicant provided a Statement of protection claims, which included the following additional information:

    ·Since last September her relationship with her husband deteriorated and she told him she wanted to end the marriage.

    ·He does not want to let go of the marriage and wants her to live in Iran.

    ·He is aware of her Christian beliefs and baptism because she has told him about attending church with her mother in telephone conversations.

    ·He demands her to abandon her faith and return to Iran, repent and resume the life she had. He threatened if she does not, she will never see her son again.

    ·He also threatened he can find people in Sydney who would find and harm her for AUD$10,000. He threatened to have her and her mother reported to the authorities as Muslim converts to Christianity.

    ·She told him her faith is not negotiable and she is willing to sacrifice her life for it.

    ·He has beaten her on two occasions in their marriage. She cannot trust what he says or promises any more.

    ·After her release from custody she contacted her sister in Australia on [social media] and told her what happened and asked her to apply for a visitor visa and save her from the situation she was facing.

    ·She had already applied for a visitor visa for her in February which was refused and they had given up on it. She then used the same documents and applied again and it was granted on 14 May 2019. She could not leave immediately because she did not have her passport back. She did not tell her husband about the visa grant, only told her mother.

    ·Since the first week she came to Australia she has been attending [Church 1] introduced to her by her sister [Ms C] who attends with her son.

    ·She received Bible instructions on Sunday afternoons after the church service until late last year. After that the Bible study sessions moved to Thursday afternoons.

    ·She received full emersion water baptism in a swimming pool in a private home of a church member together with her mother on 10 November 2019.

    ·She has developed a close relationship with Pastor [A] who will attend the interview with her.

    ·Her mother came to Australia after she applied for protection. She told her they were contacted and questioned over her involvement with Christianity. After her mother came to Australia she asked her father to move to a relative’s home [in] northern Iran. He has spent most of his time there.

    ·Relocation would not offer a meaningful or long lasting solution to her situation because she would be located.

    ·She intends to practice her faith in the same or similar manner as she has been doing here and fears she would not be able to avoid the risk of being captured and harmed again.

    ·Her husband now also represents a serious threat because of her decision to remain in Australia and not go back to him.

    ·She fears being arrested, interrogated mistreated and physically and psychologically harmed for commission of religious crimes.

    ·If she returns she will take all her Christian materials, baptismal certificate and Persian Bible to Iran.

16. On 11 August 2020 the applicant attended an interview with a delegate.  She was accompanied by her registered migration agent. Pastor [A] from [Church 1] was also present; however, the delegate did not ask her to provide evidence in support. The Tribunal has a copy of the audio recording of the interview and has listened to it. 

17. On 13 November 2020 the delegate refused the application, not accepting the applicant had genuinely converted to Christianity in Australia, although it was accepted she is a non-practising Muslim and attends church in Australia and was baptised. The delegate did not accept the applicant was of interest to the authorities in Iran for reasons of religion or that her husband was abusive towards her.  Based on these findings the delegate was not satisfied she faced a real chance of serious or significant harm on return.

    Evidence before the Tribunal

18. On 11 May 2023 the Tribunal received a psychologist report relating to the applicant seeking priority processing of her application due to her psychological and emotional circumstances.  The request for priority was refused on 23 May 2023.

19. On 22 November 2023, in response to an invitation to attend a hearing and to provide evidence and submissions, the Tribunal received the following evidence on which the applicant relies in the review:

    ·Statutory Declaration by [Ms A]  dated 20 November 2023 declaring she is an ordained Minister [since] 2010 and confirming that the applicant has been attending the Sunday services of the church since she has met her in August 2019 and also online sessions. She indicates she will attend the hearing on 6 December 2023 to give evidence.

    ·Statutory Declaration by applicant dated 20 November 2023, providing similar information contained in previous written statements and the following new information:

    ·   Her parents in Iran were not strict followers of Islam

    ·   Before her brother introduced her to Christianity in March/April 2018 she had no interest in religion but felt a spiritual void.

    ·   She refers to the second time her husband was physically violent to her was two years earlier in 2017 when he kicked her and that there were many times he was controlling or jealous. She refers to be [age] years old and forgiving him.

    ·   Her husband is a Muslim in the sense everyone is in Iran but does not believe in God.

    ·   She is still not divorced from her husband. He arranged for her to go to Turkey in 2022 for the purpose of finalising their divorce but he changed his mind once she got there and did not answer his phone.

    ·   Her son is turning 18 in the next months and after 18 he will not be able to leave the county as he has to go into the army. She bought him a phone 5 months ago but it was stolen form him among other items.

    ·   Looking back on her relationship with his father now she knows he was very controlling and abusive towards her in ways that were not physical. She was patient but now can see how much abuse she put up with.

    ·   She refers to him getting hold of a video of her dancing at a [party] last year. Her husband shared it with her father and son and they called her a bad woman and adulterer who should be stoned to death. He messaged her that she is lucky she is not there now.

    ·   Her father did not speak to her for 6 months. Her husband threatened to show the video to the authorities.

    ·   She hates Islam. It gives men power and they control women. She has a growing hatred of Islam in her heart. In Christianity there is acceptance that we are not perfect. She believes Jesus is saviour.

    ·   She goes to Church every Sunday.

    ·   She wants women to have freedom in their lives. She has protested in [Sydney].  She is crying for her country. She finds it outrageous that women are arrested just for hijab.

    ·   She put a post on her [social media] page about the protest and it was blocked there. The government called her father and asked about this and where she was. Her husband and son were questioned at a police station about this and he told her not to talk about it because they are monitoring her.

    ·   She wants freedom for women in Iran.

    ·   She restates her claims in this review: that she is a faithful and committed Christian and has shared her faith with people in Australia and Iran; she rejects Islam and does not identify as Muslim; she continues to be married to her husband who is living with a new partner but refuses to divorce her; she has been actively participating in the pro-women’s right movement after the murder of Mahsa Amini in September 2022. ; she has been a public and vocal supporter of the anti-hijab struggle and has openly and without covering her face participated in street protests in Sydney shouting slogans of Women, Life, Freedom; she has personally suffered religious oppression in Iran; she fears the regime have become aware of her antiregime views and activities in Australia and will seek to investigate and harm her for this; she has not seen her son since August 2019 (other than a short trip to Turkey in 2022) and it has had a huge toll on her mental health; she fears being punished by her husband for being in an unlawful relationship with another man which is not true as she has remained without a partner since coming to Australia.

    ·Bundle of photos relating to her Christian activities, social protests, and bruising

    ·Translation of a letter dated 3 July 2019 to Chief of Police Station [relating] to medical examination of applicant’s bruises on [body part] caused by impact with hard object within past 6-7 days.

    Evidence at hearing 6 December 2023

1. A summary of the evidence obtained from the applicant follows. She confirmed her address in [Suburb 1] where she has been living for the past two years and she lives alone. Prior to this she lived with her sister, [Ms D][and] her family, also in [Suburb 1]. Her mother was also living with them, but she now lives alone for the last 6 months.  In addition to these family members, she has another sister, [Ms C], who lives with her husband and son in [Suburb 2]. This sister came to Australia as the partner of her husband, who had been living here for over 15 years. Her sister [Ms D] was here longer than that, she came on a [visa], and remained after that, later marrying an Australian citizen. [Ms D] is also a Christian and applied to stay here permanently on that basis.  [Ms C] was not previously a Christian, but recently she has started coming to the applicant’s church.  The applicant’s mother came to Australia three months after her and she and her mother attend the same church and have been attending the church together since they both arrived.  Her mother applied to remain here on that basis, and she has been granted a permanent visa. Her claims were similar to the applicant’s and the applicant said she attended her mother’s interview. The Tribunal invited her to provide any information relating to her mother’s application if she wants.

2. Her father is also currently in Australia, on a visitor visa.  He resides in Iran but comes here to visit his family regularly. He has been here for the last 7 months and stays with [Ms D].  The Tribunal asked why he doesn’t stay with her mother.  She said their relationship is not that good at present. He is Muslim and not happy with her conversion. The siblings have discussed it with him and he is coming around. He has agreed to come to church and see what it is about.  The applicant explained that Iran is a very restrictive country regarding religion and his father reflects those views. The Tribunal queried then why her father is comfortable staying with [Ms D], given she also is Christian.  She said he did not initially approve of [Ms D] or of her marriage to her husband, but over time he has come to know and like him. Her parents came when her first son was born, and again for the birth of [Ms C]’s child. Her father lives in his [own house]. He is a retired [officer]. Since his retirement many years ago (when she was still in school) he has done many jobs.

3. In Iran the applicant has her son. He stays with her father when he is there because he has had problems with his own father.  Presently he lives with his father. When asked what problems he has with his father, she said he has a new partner, and he also talks ill of her and her son does not like this. He is [age] years old and in high school.  When he was staying with her father, she was in regular contact with him and sending money to him through her father.  Now it is more difficult because he is staying with her husband/his father.

4. The applicant also has a brother in [Country 1].  He has residency there but is soon to relocate to [another country].  He went to [Country 1] around 20 years ago, then returned to Iran. He had problems in Iran so he went to [Country 2] where he became Christian and from there he went to [Country 1] and applied to stay there on that basis. He is still a practising Christian in [Country 1].  Later in the hearing the applicant said she has other relatives in [Country 1].  Her maternal grandmother lived there for many years, and she has various maternal uncles there.

5. The Tribunal asked about her relationship with her husband since coming to Australia in 2019. She said she did not inform him she was coming until she was on the plane, and he was very angry about that. Since then, he has spoken badly of her to her parents and has told them he will inform the authorities about her Christianity.  She said she does never had a good relationship with her husband. She wanted to come here to be free, also of her religion. She was never happy with Islam.  Her husband did not want her to stay in Australia. He wants her to return. He has mental health issues.  He was seeing a psychologist about 3 years before she came here. Initially he refused to go, and she was going alone.  Eventually he agreed, they went together 2-3 times, and he started on medication. She struggled with him for this reason, he was paranoid and jealous. Her parents were not there at the time and she was dealing with it alone.  She was also not happy with how Islam controls women in Iran.  She felt controlled by the religion and her husband and it caused mental issues for herself also.

6. The Tribunal asked the applicant about her travels prior to coming here in 2019.  She confirmed she travelled to Australia in 2013 for [Ms D]’s marriage. She went to [Country 2] with her son when he was young, to visit her brother, and again to [Country 1], with her parents, to see her brother and her grandmother who lived there and had health issues. She has also travelled many times with her husband and son to Thailand and other countries for holidays.

7. The applicant confirmed she completed post-secondary education, [after] marriage. The Tribunal noted that her husband appeared to allow her to travel and study and this may contradict her claims regarding his controlling nature. She explained that he became bankrupt soon after their marriage and had failed to tell her, because of this her parents convinced him to allow her to study so she could help him in business. Even during her study period she had to lie to him about whether there were male teachers, he was always controlling and jealous. She provided another example when she was on a bus from college and sat next to a male passenger. He saw this and demanded she get off the bus.  

8. The Tribunal asked why she came to Australia.  She was in a bad relationship situation. When she went to [Country 1] her brother saw the state she was in and her lack of peace and low mood. He took her to his church and talked about the peace it gave and she felt that.  She said the religion she grew up with was always controlling and negative and she never embraced it. She felt empty and got no good feeling from religion before. Her family are Muslim in the way all Iranians are, her father practiced by going to mosque and praying but her mother did not. The girls were all made to wear the hijab from a young age, and she objected to it, especially in the heat. She had many problems for reasons of the hijab and was taken 5-6 times in a van to the Monkerat in Vozara Street and made to pay fines. She said the morality police regularly harassed her – even when she was with her husband, they would demand they produce their marriage certificate.

9. Her brother introduced her to the Christian religion.  She did not see Christianity as a religion then but rather a relationship with God. When asked if she understood the danger to her of pursuing Christianity in Iran, she said she was not intending to show it or be public about it then. Her brother gave her a name of a woman who could help her explore it more in Iran. He found this woman’s number through a friend of his.  She contacted the woman, [Ms B].  [Ms B] told her she could join their group but it is very dangerous and very private. The Tribunal asked why then she would have trusted her.  She said it was because [Ms B] had been contacted by someone in [Country 1] who told her the applicant would be contacting her, so she trusted her for that reason. They talked 3-4 times and then she gave her the details to attend a house.  Her husband did not know about her contact with [Ms B]. He is not a religious man but participates in the religious activities as everyone does in Iran. He had Islamic values and thoughts, as he would because it gives power to men.  She was afraid therefore to confide in him about her activities.

10. The applicant provided the following description of her attendance at the group. It was held on the last Thursday of every month. She went around 7 times in total. She believes it was at [Ms B]’s own house. It was always the same place. About 6-8 people attended, all women. Sometimes less, sometimes more each month. She knew the first names of most of them, but no other details. One of the rules of the group was not to disclose any details about each other.  The location was always the same. The gathering lasted around 2 hours, they talked about the bible, [Ms B] read from it and explained the stories, she would show some videos, they prayed.  She did not talk with the women or engage much. She stopped attending when they were arrested. Sepah came to the house as they were all leaving and all of them were arrested and taken to the Monkerat – same place she had previously been taken for the hijab issue. They took their details, their phones and passwords.  She was pushed and kicked and placed in a cell. She was held there for the rest of that day and until the following day, when she was allowed to ring her husband. He came and she was released. He was very angry with her, especially because of his paranoia when she did not come home that night. The applicant then talked about the background of her family. She said she has family members who left the country for political reasons, on her maternal side. These are the relatives in [Country 1], and also an uncle in [a country]. Because of this context the authorities sometimes contact the family and her husband is scared of the authorities for this reason also. She said  he is insecure and was very angry she has made them even more insecure.

11. Her husband also has some contacts within the authorities which helped her to get released. She said she only ever told them it was the first time she went to the group – this was one of the rules of attending, that they say it’s the first time if picked up.  She was released by her husband paying a fine but she does not know how much as he did not tell her. She believes it was a lot however, because he was very angry. She confirmed that there were no other conditions on her release and, apart from receiving a few phone calls afterwards warning her not to attend such activities again or she will be stoned, nothing further happened to her from this incident. She did not return to the group after that as she was too scared. Her husband made her stay at home and not go to work. She never spoke or had contact with [Ms B] again and has no idea what happened to her. She never asked her brother.  When asked why not she said they cannot discuss anything like that over the phone because the phones are always monitored.

12. The Tribunal asked if there were any other consequences for her arising from this incident.  She said her husband hit her in the car, on the face and arm.  The Tribunal asked about the complaint she made. She said she went to the coroners office and reported that he hurt her, in order to get a medical report. She obtained this but did nothing further about it.  Then she said, she did not do this the same day. She reported another incident of him hitting her, some months later in June 2019.  This incident was about something else, her lying. The Tribunal asked if the medical examination document provided relates to this second incident. She said it did. The Tribunal noted that she has not mentioned this subsequent incident before. She explained that she did not have this document previously. She later found it and now she is saying it.  She said her husband has hurt her a lot during their relationship, but she always tolerated it because she was young, and he and his mother promised it would not happen again.  She then said in total he hit her four times. When asked why she obtained the report she said her intention was to get evidence to apply for her dowry from him. But in the end, she did not follow through on it. She did not because she knows what he would be like if she tried and was thinking about her son.

13. The Tribunal asked the applicant if, prior to coming to Australia she had converted her religion. She said she had not, but she had by then embraced the Christian faith.  When asked what she was doing between March 2019 and August 2019 when she came here, she said the relationship with her husband was bad, she was talking to her sister in Australia and asked her to help her get a visa to get out of the country.

14. The Tribunal asked the applicant why her husband gave her passport back to her if he is as controlling as she claims. She said he would have had no idea that she could get a visa to leave. When she got her passport back, she planned her exit.  She arranged to go to her mother’s house and told him she was staying the night.  She has done that before, and he was agreeable to it. She and her son stayed over and the next day she departed.  It was very distressing for her to say goodbye to her son. 

15. The Tribunal discussed her activities after arrival.  She said she stayed with her sister [Ms D] but was talking to [Ms C] and she knew what she was going through and how she was feeling.  [Ms C] told her about a church close to her house and offered to take her there. The Tribunal asked why it was [Ms C] and not [Ms D] who took her to church, given her evidence that [Ms D] is Christian and not [Ms C]. She said [Ms D] was very busy at the time, and also he was pregnant at that time and she was not attending church regularly. Her husband is [of an ethnic origin] and she and he go to his [Church].  Also the TAFE the applicant was going to was in [Suburb 2] so it was close to the church.

16. She started to attend the [Church 1] from about 2 weeks after arrival. When asked the denomination she said it is a Baptist Church which believes that Jesus is the son of God. The Tribunal asked her about her beliefs. She said she believes in God without fear, for her to be Christian means to be kind to others, establish good relations with God and forgiveness. Jesus died for us. 

17. The Tribunal asked the applicant about her English language capacity when she arrived.  She said it was limited and she found the accents were difficult to follow. She confirmed the church services were in English but there were two other Iranians in the congregation, [Mr E] and [Mr F]. [Mr E] would translate for her. When asked why he has not provided support for her application in the form of a statement or oral evidence, she said he is not in Australia at the moment. She believes he provided a support letter previously. The Tribunal said it has not seen this and invited her to provide a copy following the hearing.  The rest of the congregation were a mix of [backgrounds]. Her sister [Ms C] was not Christian and did not attend the church with her then. Recently she has convinced [Ms C] to come to church and she has become Christian.  The Tribunal asked how [Ms C] introduced her to this church if she was not attending. She said she was coming to the church for social reasons when she arrived. The Tribunal asked the applicant if she considered finding a church that had services in Farsi. She said she did not because she formed a relationship with the pastor of this church and loved it. She attends every Sunday. After her mother arrived, she attended with her every Sunday and for Bible classes. After COVID the Bible classes were online. They would study passages from the Bible and talk about what it means.  Her Pastor gave her a copy of the Bible in Farsi when she arrived. She showed this to the Tribunal. She had seen a Farsi Bible previously, in [Country 1] and [Ms B] had one also.

18. The Tribunal asked her to describe a Sunday service. She said there are songs, then the Pastor makes a speech, members of the congregation speak then they have lunch and social time. She was asked about the topic of last Sunday’s sermon. She said it was about there being a lot of problems in society and why was God not solving them. But if you stop focusing on yourself you will see there is more good than bad given to us. They also talked about the story of Abraham and Sarah who was in her 90’s but was able to have a son and there was some laughter because her sister [Ms C] was present that [day].

19. The Tribunal asked the applicant, given how she has described her faith and what it means to her, what is the need for her to attend church to practice her faith. She said going to church is important to her faith because it is the church environment that makes her feel peace. Also she cannot understand the Bible unless it is explained to her in the context of church services. The Tribunal asked the applicant about her baptism experience. She said she did about 4-5 months of bible study prior to it so that she understood what it meant to be baptised.

20. The Tribunal put to the applicant, in light of her evidence of starting to attend church within weeks of arriving in Australia and getting baptised so soon after, it may suggest that she was doing this to strengthen a refugee claim. Under s5J(6) unless it is satisfied that she was engaged in this conduct other wise than for the purpose of making this claim it would have to disregard the conduct. In response the applicant said if she as just doing it for this reason she could have stayed in [Country 1] on this basis, or applied to stay when she last came here in 2013.  She made this application because of her fear of return otherwise she would never have left her son. She never thought the process would take so long.  She did not choose Christianity to stay here. She chose it because she believes in it.

21. The Tribunal asked what she fears now if she returns. She said she fears being arrested because of her religion and also her partner has advised he has told the authorities about her religion. She is also afraid because she has engaged in protests activities here following the killing of Mahsa Amini. She attended unmasked and she posted about it on her [social media] page. She did this because she hates the government, and she is free here and can protest and she wants everyone to know. She also shares about her Christianity on her [social media] page. The applicant showed the Tribunal her mobile phone with posts on her [social media] account.

22. She said she is in support of women’s rights because she knows how hard women’s lives are in that country. She feels very strongly about this issue in all of her body. When asked if she has been in contact with anyone from Iran since the protests on this issue, she said she hasn’t because the internet was cut. When she did contact her son, because he was using a VPN to access the internet, she discovered that they had asked him about her [social media] posts and after that it was blocked.

23. The other reason she fears return is harm from her husband.  He shared a video he obtained from social media of her at a party here. He told everyone she was with another man and how bad she is. He threatened her because he wants her to return where she will face consequences of stoning.

24. The Tribunal put to the applicant her claims relating to her husband seem to be evolving and changing since the application was made. Initially in her written application she said he was not religious and had no issues with her religion, only the implications for their security. Then she started adding claims about his controlling, threatening behaviour and physical violence on multiple occasions. The Tribunal may, based on the evolving claims, have doubts about the veracity of her claims. In response she said her husband’s behaviour has always been unpredictable and up and down. His moods change and his behaviour changes. She did not previously think about it that way but now she does.

25. Regarding her claims about harassment by authorities relating to the hijab, the applicant confirmed that she told the delegate that she did not include it in her claims because it was normal treatment that all women are subject to but now that is different. Mahsa Amini was killed for this reason and women are being seriously badly treated on this basis because of the protests.  She fears serious harm on this basis now if she returns as a woman opposed to the rules relating to wearing the hijab.

1. The Tribunal put to the applicant independent information before it in the most recent DFAT report indicates that authorities generally do not seek out Christian house churches but find them when tipped off and invited her comment on that. She said she agreed with that and that is what happened to her when she was arrested, they saw the husband of one of the women in the van and assumed that he had informed the authorities. She said she is afraid because her husband has informed the authorities of her conversion and so she would not be able to practice quietly anywhere.

   Evidence from Pastor [A]

2. The witness confirmed she is a Pastor at [Church 1] and has been there for 13 years, having started this Church. The Tribunal asked if she is known by any other name.  She said her husband is [name] but she uses her maiden [name] .  She also has a [name], [which] she uses as a middle name.  The Tribunal notes that information on the Church website refers to her as [Ms A with her husband’s last name].  She said the information is quite old and has not been updated. Regarding her history as a pastor, before starting the [Church 1] she was at [another] Church as a pastor so she has been doing this work for many years.

3. When asked how she met the applicant she said she reached out to her sister [Ms C] by evangelising in [a venue].  [Ms C] did not join the church but some months later she brought the applicant to the church.  Since then, recently, the applicant has convinced her sister to become Christian also.

4. The Tribunal asked it there are other Iranians in her congregation. She said there is another one called [Mr F], he has been coming for 7 to 8 years. He was there last Sunday.  When asked if any others, she referred to a [Mr E] but she has not seen him for about one year and understands he is now in Iran.

5. The Tribunal asked how the applicant was able to understand the services when she arrived in 2019. She said she had assistance from [Mr E] who translated for her and she managed. The witness confirmed she was her pastor and also ran the Bible studies classes and the applicant attended both regularly.

6. The Tribunal asked what her understanding was of the applicant’s exposure to Christianity before she came to her church. She said she told her she saw Jesus in a dream and the witness said she has heard this from other converts from Islam also. Her sister, [Ms C] told the witness the applicant had a lot of problems with her father in her youth, because she was rebellious and challenged things.

7. The witness said the applicant helps them at church with computer issues, she has seen her online for Bible classes and she sees her most weeks at Church. Regarding her faith, the witness said she has successfully evangelised, bringing her friend to the church. Her friend’s husband is Christian but he had never managed to convert her but the applicant has been able to.

8. When asked why the witness believes the applicant is genuine about her Christianity, she said she has seen people come through who ask to be baptised and then she never sees them again. The applicant has been coming continuously.  Her mother also keeps coming to the Church.

9. The witness concluded by telling the Tribunal that she does not come to give evidence about the genuineness of a person’s faith lightly and would not do it for all members of her congregation so she hopes the Tribunal takes that into consideration. The Tribunal asked, in the context of the applicant’s practice of her religion, why could she not do it in a house church setting in Iran. The witness said she would not be able to do this because there is a specific significance for her practice to do it in fellowship with others and in a church setting as opposed to privately. The witness said she has visited countries in the Middle East and practising Christianity there in house churches is not the same as they practice here. 

10. At the conclusion of the hearing the representative requested until 12 January 2024 to provide further information and submissions.

11. On 12, 13 and 18 January 2024 the Tribunal received the following additional documents:

    ·Statutory Declaration of applicant dated 11 January 2024.  The applicant provides further information and explanation about her claims relating to her husband and her perspective of her previous relationship with him has changed since she has been in Australia.  She also provides further explanation of her involvement and participation in political rallies since the death of Mahsa Amini and how she relates to this issue and her acts of posting online about this. Regarding her Christian faith she reiterates that she is the follower of a Pentecostal church which is a community oriented Christian denomination. She fears harm because she has come to the attention of the authorities in the past, and has had escalating issues with her husband since coming to Australia and now also has been involved in dissident political participation here. Further evidence in support of her genuine Christian faith is provided. She refers to her family members who have converted to Christianity and maintained their faith for many years.

    ·Statutory Declarations by [various individuals]– members of the [Church 1] who all attest to knowing the applicant since 2019 and her attendance and involvement at the church, and attesting to the genuineness of her faith.

    ·Evidence of applicant’s father’s return flight to Iran in [date] March 2024.

    ·Statement of claims of [applicant’s] mother dated 4 May 2021, and evidence of her Christian activities

    ·Copy of applicant’s passport valid from 2018 until 2023

    Country information

    Christians

12. The latest DFAT Country Information Report on Iran[1] provides the following information about Christians:

    2.80 Protestant (including Evangelical) and Pentecostal churches, which some asylum seekers join while they are in Western countries like Australia, are not legal. Conversions that took place after 1979 or conversions that take place outside Iran are not recognised by the government. A person who claims to be Christian, however cannot prove that their family was Christian before 1979, would be considered Muslim by the government and thus subject to apostasy laws.

    ….

    2.83 Iranian Christians who are not members of recognised churches generally practise in underground ‘house churches’. House churches are usually Evangelical Protestant and are found throughout the country, but especially in more affluent and cosmopolitan areas. Numbers of house church adherents are not known because these churches are secret and illegal. The Joshua Project, an Evangelical ministry from the United States that publishes information for missionaries, estimates 0.52 per cent of the population is Evangelical Christian. In 2019, UN Special Rapporteur Rehman estimated that there were between 300,000 and 350,000 Muslim converts to Christianity. In-country sources told DFAT in 2019 that the number of underground Christians was growing, and Christians may travel to Turkey (with which Iran has visa-free arrangements) to be baptised then continue to practise their religion in secret. Reasons for conversion vary, but local sources told DFAT that it may be an earnest desire to explore their own spirituality, or it may be a subtle form of protest against the government. DFAT has been unable to source more recent figures on Christian conversions.

    2.84 House churches vary in size, style and structure. Most are small and informal, and consist of close family and friends gathering on a regular or semi-regular basis to pray, worship, read the Bible and/or watch Farsi Christian television programs broadcast via satellite or discs smuggled from abroad. Foreign Christian missionaries, to which asylum seekers may have links, may participate in Iranian Christianity through house ‘internet pastors’ who preach and conduct services remotely via the internet. Local Christian leaders and adherents may be foreign trained while overseas.

    2.85 Authorities interpret the growth in house churches as a threat to national security and periodically carry out raids against them. Congregants regularly change houses to avoid detection. Raids focus particularly on house churches that actively proselytise or seek out new members. Sources told DFAT authorities do not actively look for house churches. Rather, raids – where they occur – are usually the result of tip-offs by Muslim neighbours. Other sources say the government sends people posing as converts to infiltrate house churches.

    2.86 Prison or the death penalty are possible outcomes for Christians meeting in house churches, both leaders and everyday adherents. DFAT understands that while not a common punishment, prison or the death penalty for apostasy is possible. Years or even decades-long prison sentences are also possible. Changes were made to the Islamic Penal Code in February 2021 that mean that those guilty of ‘deviant psychological manipulation’ or ‘propaganda contrary to Islam’ could be found to be members of a ‘sect’, which can lead to imprisonment, fines, flogging or the death penalty. According to international or media reports, three Christians in the city of [a city], near Tehran, were sentenced to total of nine years in prison under the new offences in August 2021.

    2.87 In-country sources told DFAT that returnees who have not had a profile previously (for example through political activism in country) are unlikely to come to attention of authorities if they keep a low profile, and that this is not affected by social media posts about their conversion that they may have made while they were in a Western country like Australia.

    2.88 DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed. Christians found to be proselytising face a high risk of arrest, prosecution and imprisonment. DFAT assesses Christian converts face a high risk of societal discrimination in the event their conversion becomes widely known, particularly if they are from more religiously-minded Muslim family backgrounds. This may involve ostracism from one’s family and discrimination in employment. DFAT further assesses that, while their congregations are monitored and they are subject to restrictions, Christians from recognised churches are permitted to practise their faith. DFAT assesses that, except for their exclusion from senior government, military, intelligence and judicial positions, recognised Christians who do not engage in proselytisation activities face a low risk of official discrimination. DFAT assesses that those who convert while outside of 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. [2]

    [1] DFAT Country Information Report - Iran', Department of Foreign Affairs and Trade, 24 July 2023

    [2] Ibid, p20-21

13. The Tribunal has also considered information from other sources regarding the treatment of Christian converts in Iran including Landinfo - Norwegian Country of Origin Information Centre , UK Home Office, US Department of State and the Danish Immigration Service and the Danish Refugee Council, and others, as cited below. 

14. Conversion from Islam to Christianity is prohibited in Iran,[3] and converts are perceived as a threat to the legitimacy and stability of the regime.[4] Various sources of information indicate that Christian converts face risk of arrest, detention and prosecution.[5] 

    [3] 2021 Report on International Religious Freedom: Iran’, US Department of State, 2 June 2022, Sec.2

    [4] Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise', Landinfo - Norwegian Country of Origin Information Centre, 27 November 2017, p.21,

    [5] DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, pp.33-34; 'Country Policy and Information Note - Iran: Christians and Christian converts', UK Home Office, 27 February 2020, p.7; 'Christian Converts in Iran', Finnish Immigration Service, 21 August 2015, p.9.

15. Since 2012 the government has banned converts from attending services in registered churches.[6] Converts are perceived as a threat to the legitimacy and stability of the regime[7] and face the risk of arrest, detention and prosecution.[8]  The regime has publicly declared its intent to prevent the growth of house churches, which it characterises as ‘illegal networks’ and ‘Zionist propaganda institutions’.[9]

    [6] Iran: House Churches; Situation of Practising Christians; Treatment by Authorities of Christian Converts' Family Members’, Austrian Centre for Country of Origin Information and Asylum Research and Documentation, 14 June 2017, p. 8

    [7] Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise', Landinfo - Norwegian Country of Origin Information Centre, 27 November 2017, p.21

    [8] Country Policy and Information Note - Iran: Christians and Christian converts', UK Home Office, 27 February 2020, p.7; 'Christian Converts in Iran', Finnish Immigration Service, 21 August 2015, p.9

    [9] 'Iran: Christian converts and house churches (2) - arrests and prosecutions', Landinfo - Norwegian Country of Origin Information Centre, 29 November 2017, p.21 'Religious Propaganda in Iran', United States Commission on International Religious Freedom (USCIRF), July 2022, p.8, ‘2022 Report on International Religious Freedom: Iran’, US Department of State, 15 May 2023, Sec.2, Government Practices; ‘Country Policy and Information Note - Iran: Christians and Christian converts’, UK Home Office, September 2022

16. Authorities use informers to infiltrate house churches; although house churches restrict numbers and change locations in order to prevent infiltration; [10] potential new members are typically monitored by the house church for months.[11]

    [10] ‘Iran: House churches and converts’, Danish Immigration Service and the Danish Refugee Council, February 2018, p. 5; ‘Over 450,000 Join Iranian House Church Movement, 'Great Number of Muslims Turning to Christ'’, Christian Post (United States), 3 March 2016, CX6A26A6E1858; ‘Update on the Situation for Christian Converts in Iran: Report from the Danish Immigration Service’s fact-finding mission to Istanbul and Ankara, Turkey and London, United Kingdom’, Danish Immigration Service, 23 June 2014, p. 21

    [11] ‘Update on the Situation for Christian Converts in Iran: Report from the Danish Immigration Service’s fact-finding mission to Istanbul and Ankara, Turkey and London, United Kingdom’, Danish Immigration Service, 23 June 2014, p. 24,

17. Regarding arrest and prospection of Christians, most of the Christians arrested in recent years have been converts affiliated with house churches and have been arrested during raids.[12]  Sources indicated most have been released after a short time in exchange for signing a declaration and promising to cease activity.[13] However, other sources state that Christians have been handed punishments in addition to custody, including a period of internal exile or being banned from leaving Iran for a period of time.[14]

    [12] 'Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise', Landinfo - Norwegian Country of Origin Information Centre, 27 November 2017, p.24,

    [13] 2023 Annual Report: Rights Violations Against Christians in Iran', Article 18, Middle East Concern, Open Doors, Christian Solidarity Worldwide, 19 February 2023, p.3,  'Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise', Landinfo - Norwegian Country of Origin Information Centre, 27 November 2017, p. 24; 'Iran: Christian converts and house churches (2) - arrests and prosecutions', Landinfo - Norwegian Country of Origin Information Centre, 29 November 2017, p. 22,

    [14] People convicted with religious offences, European Union Agency for Asylum (EUAA), 8 February 2023; 'Amnesty International Report 2022/23: The state of the world’s human rights', Amnesty International, 27 March 2023, p.199

18. Those prosecuted and convicted have usually been arrested or convicted previously, had contact with foreign organisations or published online about their faith. However, an increasing number of non-leaders have also faced national security charges in recent years. The law distinguishes between members and leaders of illegal organisations and has heftier prison sentences for those convicted of establishing or leading an organisation. Ordinary members risk arrest, but will generally be released if they cease proselytising. That said, members may still be at risk as the Iranian regime acts in highly unpredictable ways, which is part of their logic of oppression.[15]

    [15] 'Country Policy and Information Note - Iran: Christians and Christian converts', UK Home Office, 27 February 2020, p.8; 'Iran: Christian converts and house churches (2) - arrests and prosecutions', Landinfo - Norwegian Country of Origin Information Centre, 29 November 2017, p.20, ‘Iran: Full Country Dossier’, Open Doors, January 2022, p.30; 'Iran: Christian converts and house churches (2) - arrests and prosecutions', Landinfo - Norwegian Country of Origin Information Centre, 29 November 2017, pp. 10 – 11;  ‘Iran: House churches and converts’, Danish Immigration Service and the Danish Refugee Council, February 2018, p. 7;  'Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise', Landinfo - Norwegian Country of Origin Information Centre, 27 November 2017, p.25

19. There is evidence that arrests and prosecutions of Christians converts continued in 2022 and 2023, with one joint report indicating that 134 Christians were arrested in 2022 and 30 others were serving prison sentences. Comparatively, in 2021 there were 59 arrests of Christians.[16] According to the UN Special Rapporteur on Human Rights in Iran, the number of converts imprisoned at any time in recent years has varied from between a few dozen to around 100.[17]

    [16] 2023 Annual Report: Rights Violations Against Christians in Iran', Article 18, Middle East Concern, Open Doors, Christian Solidarity Worldwide, 19 February 2023, p.11; 'Rights Violations Against Christians in Iran - Annual Report 2021', Article 18, Open Doors, Middle East Concern, Christian Solidarity Worldwide, 25 January 2022, p.10

    [17] 'Iran: Christian converts and house churches (2) - arrests and prosecutions', Landinfo - Norwegian Country of Origin Information Centre, 29 November 2017, p.13

20. On prison and detention conditions for Christians, there are reports indicate that after being detained, converts are sometimes interrogated and released within days, sometimes charged (occasionally requiring a large bail amount to be released), or else held (sometimes without charge) for months.

    Political opinion and protests

21. The DFAT report refers to protections in the constitution of freedom of belief for all Iranians in  article 23, freedom for the media at article 24, freedom of association at Article 26 and freedom of assembly at Article 27.  However, it also notes that such freedoms are conditional on not being ‘detrimental to the principles of Islam’. Topics deemed sensitive by the government include women’s rights, LGBTI rights, criticism of the regime, relations with the United States and Israel.[18]

    [18] DFAT Country Information Report - Iran', Department of Foreign Affairs and Trade, 24 July 2023, p24

22. In relation to the response of authorities to the Mahsa Amini protests, the DFAT Report states:

    2.106 On 16 September 2022, a significant protest movement began following the death of 22-year-old Kurdish-Iranian woman, Mahsa Amini, while in the custody of Iran’s morality police. Amini was arrested in Tehran for breaching the strict Islamic dress code by allegedly not wearing the hijab appropriately. The protests, initially led by women and girls, took place across the country. Over the succeeding weeks, the protests garnered broad support, particularly among young people and students, and a range of celebrities and public figures. They have evolved into broader protests against the regime.

    2.107 The government response to protest action has been harsh. Iran Human Rights Group estimated that, as at 3 April 2023, at least 537 people including 68 children and 48 women, died during the protests. While the death toll and the causes of death cannot be verified, reports indicate that the vast majority of deaths have been at the hands of security forces either by firearms or beatings. The government has imposed severe sentences on those arrested, including significant jail time, and in some instances, the death penalty. The response by security forces has been particularly harsh in majority Kurdish and Baluch regions.

    2.108 While the exact number of death sentences imposed on protesters is difficult to determine, as at 13 January 2023, Iran Human Rights Group estimated at least 109 protesters were at risk of execution. DFAT understands at least 15 death sentences have been confirmed – two of which were carried out in early December 2022, with a further two in early January 2023 and three in May 2023.

    2.109 While there are no official figures, as at 10 January 2023, reliable sources indicated around 20,000 people had been arrested since the protests began. Many have been released either without charge, or pending court hearings. DFAT is aware of harsh sentences being handed to many protesters, including long jail sentences. As at 19 December 2022, DFAT understood 400 protesters had been sentenced to jail, 160 of whom were sentenced to between five and 10 years in prison, 80 sentenced to two to five years, and 160 people to up to two years. Trials have occurred quickly without due process and in secret. DFAT has been told that many of those prosecuted have either had no legal representation or ineffective court-appointed lawyers. As at the time of publication, the government’s harsh response had significantly curtailed, but not stopped, protest activity. Social media activity reflects ongoing anger against the regime. These are the biggest and longest-running protests in the history of the Islamic Republic. They differ from previous protests in their overt call for social change and the overthrow of the regime.[19]

    [19] Ibid.

1. The Tribunal has also considered other sources that have reported on the Mahsa Amini protest movement, noting that women were key participants in the protests, as were students and young people; though it is also observed people of all generations classes and ethnicities were involved.[20] Authorities responded to the protests with lethal force, with non-government organisations estimating that between 488 and 529 people were killed during or as a result of the demonstrations, including 64 children,[21] an estimated 20,000 were arrested and four men were executed in connection with the protests.[22] Human rights organisations reported that protesters experienced torture and rape while they were detained[23].  There are reports that women were assaulted or killed by security forces during protests for removing their headscarves during protests.[24]

   [20] Woman, life, freedom; Comprehensive report of 20 days of protest across Iran’, Human Rights Activists News Agency, 12 October 2022,

   [21] At Least 55 People Executed in 26 Days; List of Protesters at Risk of Death Penalty', Iran Human Rights, 27 January 2023, 2023020213572; ‘Iran protests flare in several cities amid continuing unrest’, Guardian, 17 February 2023

   [22] Iran acknowledges it has detained 'tens of thousands' in recent protests’, Associated Press, 5 February 2023, 20230310103427; ‘Iran protesters released from prison wrestle with fear and trauma’, Washington Post, 6 February 2023, 20230310103559;  'Iran executes 2 more men detained amid nationwide protests', Associated Press (AP), 08 January 2023

   [23] Freedom in the World 2023 - Iran', Freedom House, 9 March 2023, 20230310090512; 'Iran: Quash death sentences of young protesters subjected to gruesome torture', Amnesty International, 27 January 2023

   [24] 'In Iran, Schoolgirls Leading Protests for Freedom', Human Rights Watch (HRW), 12 October 2022, 20221013090651; ‘Iran: Leaked official documents ordering deadly crackdown highlight need for international action’, Amnesty International, 30 September 2022, p.6,

2. Family members of Iranian nationals who participated in anti-government protests abroad (including in Australia) have reportedly been harassed and arrested in Iran in 2022 and 2023.[25]

   Women

   [25] '‘Silencing dissent by threatening family’: Iran cracks down on family of Australian protester', The Age - Australia, 16 January 2023, 20230117084032; 'How the Iranian regime is intimidating and surveilling its former citizens in Australia', Australian Broadcasting Corporation (ABC) (News), 05 November 2022, 20221129110328; 'Australia says it busted Iran surveillance op targeting activist', Agence France Presse (AFP) - France, 14 February 2023.

3. The DFAT report provides the following information:

   2.129 Wearing the hijab is compulsory. By law, women must have their entire body covered except for face, hands and feet. Some women wear the scarf around their neck or use another form of head covering (for example, a hat). Such women risk arrest, particularly during periodic crackdowns. Younger women are more likely to wear their headscarves in this way. Morality police patrols in public places increased in 2022. Following the protests and outcry sparked by the death of Mahsa Amini at the hands of the morality police, they withdrew from the streets. The morality police have been disbanded but there is little sign that enforcement of hijab laws has ceased, with authorities using denial of services in banks and shops and airports as one way to ensure compliance.

   2.130 Sources told DFAT in 2019 that enforcement of Islamic dress codes fluctuates, with checks on dress code violations increasing during holy periods (such as Muharram and Ramadan) and the summer season (when many women tend to adhere to dress codes more loosely due to the heat). In 2019 and more recently, authorities closed a number of restaurants and cafes due to non-observance of the Islamic dress code since and police reportedly monitor women for wearing their hijabs inappropriately or not at all while travelling in vehicles. Where a female is detected with ‘bad hijab’ inside a vehicle, the owner of the vehicle receives an automated text message instructing them to report to a police station and sign a declaration undertaking not to wear or tolerate ‘bad hijab’ again. According to local sources, repeat offenders incur a fine and, concurrently, are requested to settle any outstanding traffic infringements. A failure to do so can result in the impounding of one’s car and potential suspension of licence until all outstanding fines are settled.

   2.131 The UN reported in 2019 that three women were arrested after appearing in an online video protesting against the compulsory hijab law on International Women’s Day, including by removing their headscarves. They were subsequently convicted of assembly and collusion in acts against national security, propaganda against the state, and encouraging moral corruption and prostitution. Two of the women received sentences of 16 years’ imprisonment. The third woman was additionally convicted of ‘insulting the sacred’, and received a prison sentence of 23 years and six months. …

   2.144 Women in Iran have diverse experiences and an assessment of discrimination and violence depends on the individual circumstances of each woman. DFAT assesses most Iranian women face moderate societal discrimination and threat of gender-based violence, including ‘honour’ crimes and street violence. Women perceived by the authorities to be pushing Iran’s moral and religious boundaries face a high risk of official discrimination in the form of arrest, punishment and violence.[26]

   [26] DFAT Country Information Report - Iran', Department of Foreign Affairs and Trade, 24 July 2023, p 28-29

4. Other sources considered by the Tribunal provide information about laws restricting women’s rights to choose their clothing and punishment for breaches. When in public, women must cover their whole bodies with the exception of their face, hands and feet. Those who do not wear a proper hijab (including inside their own cars) can be punished with a fine, up to two months’ imprisonment, or 74 lashes. Posting pictures online without the hijab is considered a crime in Iran and women have been prosecuted for doing so.[27]

   [27] Country Reports on Human Rights Practices for 2021 - Iran, US Department of State, 12 April 2022, Sec.7D, p.60, 20220413110714; 'Freedom on the Net 2022 - Iran', Freedom House, 18 October 2022, 20221019080814; ‘Women’s removal of veil

5. A number of sources report that since being elected in mid-2021, the Iranian government has increased its focus on enforcing the mandatory wearing of the hijab for women. President Ebrahim Raisi indicated in the first year of his presidency that enforcing the mandatory hijab laws were a priority for his government[28]. New restrictions have been placed on women who do not adhere with the dress code laws, and there have been reports of women being arrested or attacked in public for not wearing their hijab correctly in 2022. [29] Reports state that morality police are often accused of using excessive force against women deemed to be in violation of the dress codes.[30] There are also reports of women being approached on the street or on public transport by regular citizens who demand they comply with the veiling law.[31]

   FINDINGS AND REASONS

   [28] Iran’s Hijab Protests Are of Raisi’s Ow n Making’, Foreign Policy, 10 October 2022; ‘Crisis in Iran: Raisi’s hijab hype backfiring badly’, Asia Times, 29 September 2022

   [29] ‘Raisi weighs in to launch new repressive measures against w omen in summer’, Iran Human Rights Monitor, 10 July 2022, 20220713103058; ‘Iran establishes new base to enforce mandatory hijab’, Iran Human Rights Monitor, 24 May 2022, 20220525131153; 'Authorities Further Police Iranian Women’s Dress Code', Human Rights Watch (HRW), 17 August 2022, 20220818124351

   [30] ‘Iranian w omen under pressure as Raisi stiffens hijab mandate’, Al Monitor, 23 July 2022, 20221020105018; ‘Iran's Raisi Orders Strict Enforcement Of Hijab Amid Crackdow n’, Iran International, 6 July 2022

   [31] ‘Iranian w omen under pressure as Raisi stiffens hijab mandate’, Al Monitor, 23 July 2022, 20221020105018; 'Authorities Further Police Iranian Women’s Dress Code', Human Rights Watch (HRW), 17 August 2022

   Nationality

6. On the basis of her Iranian passport, and absence of any information before the Tribunal to suggest any issues relating to her identity, the Tribunal accepts the applicant is a national of Iran and considers Iran is the country of nationality and the receiving country for the purpose of assessing her claims against the refugee and complementary protection criteria respectively.

   Findings on applicant’s claims for protection

7. When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims.  This usually involves an assessment of credibility of the applicant, and in making such assessments, the Tribunal is mindful of the difficulties faced by applicants, including issues relating to use of interpreters, nervousness, and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.  Where the Tribunal is unable to make an adverse finding on a material claim with confidence it must proceed to assess the claim on the basis that it might possibly be true (See MIMA v Rajalingam (1993) FCR 220), although it is not required to accept uncritically any, or all, of the allegations made by an applicant.

8. Having regard to the above principles, the Tribunal finds the applicant to be generally a credible witness.  Her written and oral evidence presented to the Department and Tribunal was substantially consistent and coherent. Although her claims relating to her husband evolved through the process, her explanation about how her own perspective changed on reflection of her relationship while here, was not unreasonable or lacking in credibility.  In the main, she was forthcoming and direct in her responses to the Tribunal’s questions and did not exaggerate or embellish her claims. On this basis the Tribunal makes the following findings on the applicant’s material claims.

   Claims regarding applicant’s Christian activity in Iran

9. The Tribunal accepts that the applicant participated in a Christian house church group in Iran prior to coming to Australia.  It finds that she attended the group for a finite period, she was only learning about the religion in this period and did not convert to Christianity in Iran.

10. The Tribunal’s findings are based on the substantially consistent and detailed nature of her evidence of participation in the house church group in Iran, how she and why she came to become involved and descriptions of the activity, the group and the logistics involved in attending and participating across her written and oral testimony. Her experiences were consistent with and supported by country information about such groups.    

11. She claims she, along with the other members of the group, was arrested and detained overnight where she was subject to mistreatment and interrogation by the Sepah.  She was released after her husband paid a fine and was not subject to any conditions after that.  Having accepted her as a generally credible witness, and based on the consistent, detailed and coherent account she has given of this incident, which is also supported by independent information about periodical raids made on house churches, often from tip offs, the Tribunal is prepared to accept this happened to her as claimed.  

12. The applicant did not claim any subsequent interactions with the authorities over this incident and states she had no further contact with the group.  She remained in Iran for almost 5 months after this and exited Iran without issue, indicating that she was not of any ongoing adverse interest to the authorities at that time.

    Claims regarding marital abuse and current relationship with husband

13. The applicant’s claims relating to her husband, and history of marital abuse and her current relationship with him have evolved somewhat during the process of the application.  In her written application she painted a picture of him as uninterested in religion and not especially concerned with her interest in exploring a different faith. She referred to the incident of him punching her in the car following her arrest and detention by authorities due to his anger of the danger she caused the family by coming to the attention of the authorities, but also that he returned her passport to her which enabled her to depart Iran, although she claimed he was unaware of her plan until she boarded the plane.  Before the delegate at interview, she referred to her husband as her ‘biggest enemy’, to a second physical assault by him some years prior, and that he threatened to expose her to the authorities for converting to Christianity if she did not agree to return home to him. She also said she was in regular contact with him 3-4 times a week and he harassed her a lot. In her evidence to the Tribunal, some three years later, the applicant claimed that she now looks back on her relationship with her husband as controlling and coercive. She told the Tribunal her relationship with her husband was not good, even in Iran, and that he suffered from mental health issues and was paranoid and jealous. She said he has physically hit her four times in Iran, including a second incident some months after the arrest in June 2019, in respect of which she provided a medical examination document as evidence.  She claimed he obtained and shared videos of her at a party in Australia and was using this to attack her reputation to her father and son and threaten to expose her to the authorities. She claimed that she never had a good relationship with him, he was opposed to her staying in Australia and that he suffered mental health issues and that she was fearful of returning to Iran and to his control. 

14. The Tribunal is prepared to accept her explanation that she has reflected on her marriage and his behaviour since she has been here and sees things she did not see before, although it observes that her claims about the extent and level of his control over her is not supported by her evidence of past experiences. For example, he allowed her to travel overseas in the past independently from him and she was able to attend the Christian group over some months without his knowledge indicating she had some freedom of movement and activities in Iran.  The Tribunal also notes he returned her passport to her which enabled her to depart the country, and her ability to exit the country without issue suggests he did not seek to impose a travel ban on her. 

15. Nevertheless, the Tribunal is prepared to accept that the applicant’s husband exerted a degree of control over her which is permissible and common in Iran, as identified by DFAT in its country report.[32] It accepts he would not be happy with her act of abandoning and leaving him without notice and accepts that he has not cooperated in giving her a divorce. 

    Claims of harassment from morality police in Iran relating to hijab

    [32] DFAT Country Information Report Iran paragraph 2.132-2.144, pp28-30

16. At the delegate’s interview, the applicant referred to being arrested and taken to Monkerat by the morality authorities over hijab offences on numerous occasions in the past, although this was not mentioned in her original written claims.  She repeated the claim before the Tribunal and that while previously she considered this ‘normal’ or not out of the ordinary treatment of women, the situation is now very different after the killing of Mahsa Amini and the protests that have taken place since then and she told the Tribunal she now fears serious harm if she were to return to Iran now as a woman who opposed the rules regarding the wearing the hijab. The Tribunal observes that evidence was also spontaneously offered by the witness, Pastor [A], that the applicant’s sister told her the applicant had a history of problems with her father in her youth because she was rebellious and challenged him.

17. Notwithstanding the failure to mention the claim in her initial written application, the Tribunal considers the applicant’s evidence about her history of being taken in by the morality police over hijab offences to be credible and plausible, as is her explanation for not mentioning it earlier.  Her past experience and explanation of the ‘normality’ and consequences (fines, warning) for this conduct is consistent with, and supported by, independent information including in the DFAT report (see above) and it also conforms with the insight into the applicant’s character the applicant’s sister conveyed to the witness.

18. On the evidence before it, the Tribunal accepts that the applicant has a history of being arrested for hijab offences in the past. 

    Claims of conversion to Christianity in Australia

19. The applicant claims she began attending church two weeks after arrival in Australia, has been attending and participating in church activities continuously since then and was baptised in November 2019. In support of her claims regarding her attendance at church and genuineness of her commitment to the Christian faith, written evidence in Statutory Declaration form, and oral testimony at hearing, was provided by Pastor [A] , pastor of the [Church 1] she attends. Following the hearing the Tribunal received Statutory Declarations in support of her regular attendance and commitment to the church from a substantial number (20) of fellow parishioners from her church, attesting to their personal knowledge of the applicant and in the context of her attendance and participation at church.  The Tribunal gives this evidence some weight, particularly having regard to the diverse range of individuals who provided the declarations and the individualised content of the statements.

20. The Tribunal explored with the applicant at hearing her church activity and Christian beliefs and faith.  She was able to describe her journey to the faith, starting from her initial introduction to it in [Country 1] while visiting her brother, and further exploration and knowledge gained in the house church sessions she attended in Iran. She told the Tribunal while she had not converted to the religion in Iran, by the time she came to Australia she had embraced the Christian faith.  This background and context of her Christian journey prior to arriving in Australia is consistent with her conduct of seeking out and attending a church so soon after arrival.  The evidence supports that she has since then maintained a regular and consistent connection with one church, and corroborative evidence from the pastor, as well as a diverse range of fellow parishioners has been provided. The evidence also supports that the applicant has encouraged and brought others into the Church, including her mother and sister and friend, [name deleted]. 

21. The Tribunal accepts the applicant has been attending [Church 1] since August 2019 and is a regular and committed participant in the church community.

22. In her evidence to the Tribunal the applicant talked about her interest in Christianity in the context of her negative feelings towards Islam, and particularly how she felt Islam controls women and the Tribunal finds the conversion of religion in her context is connected to her views and opinions about the lack of freedom and control on women in Iran.

23. On the evidence, the Tribunal is satisfied the applicant has converted to Christianity in Australia and that she is genuine in her Christian faith and activities.

    Claims of attendance at protests in Australia

24. The Tribunal accepts the applicant has attended protests in Australia about the killing of Mahsa Amini and has posted about this on her social media, [social media] page.  She showed the Tribunal evidence of her posts on her mobile phone at hearing and gave an authentic and credible explanation for her interest in and passion about this issue. Her attendance at these protests is consistent with the finding above regarding her history of arrest for hijab offences in Iran and her general views about the control of women in Iran.

    Does the applicant have a well founded fear of persecution on return in the reasonably foreseeable future?   

1. The applicant fears harm from the authorities based on her Christian faith and desire to be able to practice her faith and encourage others to do so, and her consequent rejection of Islam; she fears harm from a hostile husband who seeks to punish her by denying her a divorce and threatening her for leaving him and converting to Christianity. She fears harm from the authorities because she is a vocal and public supporter of the anti-hijab struggle and is at greater risk of harm because of her history of religious oppression in Iran and activities in Australia.

2. The Tribunal accepted above that the applicant participated in a Christian house church group in Iran and was arrested and detained in that context overnight. It accepts that, since coming to Australia she has become a baptised Christian and has been actively and regularly attending church here for over 4 years and has brought others into the church. It accepts she is genuine about her Christian faith and will seek to practice her religion upon return. The Tribunal has also accepted that the applicant has been arrested and fined for hijab offenses in the past in Iran and, since the death of Mahsa Amini over this issue she has been a vocal and supporter of the anti -hijab struggle and participated in anti regime protests about this issue in Australia and has posted about her activities on social media.

   Is the applicant’s fear of persecution for a reason specified in s5(J)(1)(a): race, religion, nationality, membership of a particular social group or political opinion?

3. The Tribunal accepts that the applicant fears persecution because of her religion.  It also accepts that she fears harm for reasons of her political opinion (anti regime, anti-hijab)) and membership of a particular social group (women in Iran, women who do not conform to dress codes).

   Is there a real chance she will face persecution?

4. The Tribunal has accepted above that the applicant is a genuine Christian convert and as such would seek to practice and encourage others to join her faith in Iran.  Country information before the Tribunal (paragraph 59 above) indicates conversion from Islam to Christianity is prohibited in Iran, and converts are perceived as a threat to the regime. The Tribunal accepts that to practice her faith upon return the applicant would have to participate in an underground house church.  DFAT and other sources (paragraph 57, 58) indicates that the authorities see the growth in house churches as a threat to national security and periodically raids are carried out against them, generally focussing on those which actively proselytise or seek out new members. The evidence before the Tribunal is that the applicant has been practising her faith here on a regular basis, attending weekly church services and bible study classes.  The Tribunal has accepted that in Australia, her practice of religion has included regularly attending church services in fellowship with other people and bringing people into her church, and accepts given her history of church service attendance and evangelising here, that she would seek to do so upon return, and the Tribunal cannot be confident that she would not do so and that she would not seek to share her faith and evangelise to new members.    

5. The Tribunal notes that sources informed DFAT that the authorities do not actively look for house churches and raids are often the result of a tip off by Muslim neighbours. Other sources also refer to state authorities using informers to infiltrate house churches (paragraph 57 above). The Tribunal found, above, that previously when the applicant was involved with a house church, her church group was subjected to such a raid, triggered, she believes, by a tip off by a member’s husband. It has accepted that she was arrested and detained overnight and, while she was unconditionally released (following payment of a bribe by her husband) she ceased her attendance after that experience.  

6. The Tribunal accepts that, upon return, the applicant’s participation in an underground house church would be as a baptised Christian who has spent substantial time in the West.  Having been arrested previously over a church raid there may be past records relating to her. She has also participated in anti-regime protests following the death of Mahsa Amini, and has posted on social media about her activities.  The Tribunal accepts that as at this time, she is still married to her husband, having denied her a divorce, and in this capacity, he will be able to exert control and power over her, including threatening to expose her to the authorities if she disobeys him. The Tribunal has also accepted that the applicant was subjected to domestic violence in the past and her status as his wife makes her vulnerable to being returned to him and/or subject to his control.

7. Taking into consideration all of the above, and considering the applicant’s cumulative profile as a Christian convert, with a history of past arrest for religious and hijab related offences, who has a hostile, controlling and abusive husband, and who has participated and is a vocal supporter of the anti-hijab, anti-regime movement of recent years,  the Tribunal cannot be confident there is not a real chance, one that is not remote or far fetched, that the applicant would not come to the attention of the authorities were she to participate in a house church and/or her husband would not seek to control or abuse her and/or inform on her to the authorities were she to return to Iran in the reasonably foreseeable future.

   Is the harm serious ham as contemplated in s5J(5)?

8. The Tribunal has considered whether the applicant, if she was subjected to a raid or otherwise came to the attention of authorities, would face treatment amounting to serious harm. While some sources of county information suggest that most people are released if they sign a declaration and promise to cease activity,[33] and DFAT states Christian convert ‘returnees who have not had a profile previously (for example through political activism in country) are unlikely to come to [the] attention of authorities if they keep a low profile (paragraph 53 above), the Tribunal also notes other sources that indicate an increasing number of non-leaders have faced national security charges in recent years[34] and sources that indicate ordinary members may still be at risk as the Iranian regime acts in highly unpredictable ways, which is part of their logic of oppression.[35]  The Tribunal has considered and accepts that arrests and prosecutions of Christian converts occur and there is a lack of due process surrounding arrest and detention of Christians. There are reports of much more serious repercussions including beatings, solitary confinement, sexual abuse of converts in detention as well as psychological pressure.[36]

   [33] '2023 Annual Report: Rights Violations Against Christians in Iran', Article 18, Middle East Concern, Open Doors, Christian Solidarity Worldwide, 19 February 2023, p.3; 'Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise', Landinfo - Norwegian Country of Origin Information Centre, 27 November 2017, p. 24; 'Iran: Christian converts and house churches (2) - arrests and prosecutions', Landinfo - Norwegian Country of Origin Information Centre, 29 November 2017, p. 22

   [34] ‘Iran: Full Country Dossier’, Open Doors, January 2022, p.30,

   [35] Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise', Landinfo - Norwegian Country of Origin Information Centre, 27 November 2017, p.25

   [36] See generally Department of Home Affairs, Christians In Iran Thematic Briefing, Country of Original Information Services Section , 25 August 2023, pp10-11

9. In addition to her profile as a returning Christian convert, the Tribunal takes into account the harsh government response to the Mahsa Amini protest movement in Iran. Political and religious expression is and has been heavily circumscribed within Iran, despite formal constitutional protections of freedom of belief, media and association.[37]  What tolerance there was for public discourse critical of the Iranian government and regime has diminished considerably since the September 2022 death of Mahsa Amini and large-scale protests which, as observed in the DFAT report, have been the biggest and longest-running protests in the history of the Islamic Republic, and differ from previous protests in their overt call for social change and the overthrow of the regime.[38] The government response has been particularly harsh with hundreds dying during the protests, tens of thousands arrested, and death sentences and long jail terms handed to many protesters, often without due process. (see paragraph 63 above). 

100.   The applicant also faces a risk of serious harm were she to fail to comply with the hijab rules in the context of current country conditions. The Tribunal accepts that after her years in Australia and growing confidence in her resistance to the rules governing women’s behaviour and dress code impositions, the applicant’s risk of a serious consequence for resistance to dress code rules is substantially higher were she to return to Iran now. 

101.   The Tribunal finds that the kind of serious harm feared by the applicant is harm in the form of beatings, sexual abuse, cruel, inhuman or degrading treatment, either in detention or if she is imprisoned for any period of time. 

[37] DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 23 July 2023, p24

[38] ibid

1. Such treatment would be for the essential and significant reason of her religion and/or actual and imputed political opinion.  The harm, including potentially torture or cruel, inhuman or degrading treatment would be systematic and discriminatory because such treatment is very clearly part of the regime’s response to dissenters or those perceived as dissenters and ‘detrimental to the principles of Islam’.

103.   As the Iranian regime exercises effective control over Iran, the Tribunal finds the real chance relates to all areas.

104.   The Tribunal is satisfied there is no effective protection available to the applicant, nor is there any modification of her behaviour she could reasonably undertake to avoid the real chance of harm. 

105. 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).

106.   There is no information before the Tribunal to indicate the applicant has a right to enter or reside in any country apart from Iran and therefore s36(3) does not apply.

DECISION

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

Meena Sripathy
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

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

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…