2017226 (Refugee)

2017226 (Refugee) [2022] AATA 2762 (22 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2017226
COUNTRY OF REFERENCE:                   Iran
MEMBER:Nathan Goetz
DATE:22 June 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the [applicant] satisfies s.36(2)(a) of the Migration Act; and
(ii)that the [second applicant] satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as [the first applicant].

Statement made on 22 June 2022 at 4:26pm
CATCHWORDS
REFUGEE – protection visa – Iran – religion – Christian convert – particular social group – imputed political opinion – Christian converts – people considered apostates – membership of the same family unit – 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants were represented in the review application by registered migration agent 0955242 Mr Kourosh Momeni.
BACKGROUND
The applicants identify as [Ms A] and [Miss B], a mother and daughter aged [age] years and [age] years of age who were both born in Iran and are citizens of that country.
On [date] September 2019 the applicants arrived in Australia holding visitor visas. These visas ceased [in] October 2019. They each applied for another visitor visa.
On 22 October 2019 the applicants were granted further visitor visas. These visas ceased on 12 December 2019.
On 10 December 2019 the applicants applied for protection visas. [Ms A] was interviewed by the delegate on 19 August 2020. By letter dated 23 November 2020 the applicants were notified that the delegate refused to grant the protection visas on 23 November 2020 because the delegate was not satisfied that the applicants met s.36(2) of the Act.
On 28 November 2020 the applicants applied to the Tribunal for review of the decision to refuse to grant the protection visas.
On 6 September 2020 the Tribunal wrote to the applicants and invited them to appear at a Tribunal hearing on 21 September 2020 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to invite the applicants to a Tribunal hearing because it had considered the information it had and was unable to make a decision favourable to the applicants. The Tribunal was satisfied that an audio-visual hearing through MS Teams was appropriate given the COVID-19 pandemic.
On 21 September 2021 [Ms A] appeared at the Tribunal hearing. [Miss B] advised that she would not be appearing at the Tribunal hearing. The migration agent also attended the Tribunal hearing. Present were witnesses who indicated that they wished to give oral evidence in support of the applicants, but none of those witnesses had provided written statements in accordance with the relevant practice directions. The Tribunal adjourned the Tribunal hearing to 22 September 2021 to allow the written statements to be provided. On 22 September 2021 the Tribunal hearing resumed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The relevant country information report is the DFAT report on Iran dated 14 April 2020.
CONSIDERATION OF CLAIMS AND EVIDENCE
Visa application and additional oral evidence to delegate
In the protection visa application form, [Ms A] identifies that she is a female citizen of Iran who was born in [a] town/city, Hamedan state/province, Iran. She provided a copy of her Iranian passport, as well as her Iranian national identity card and an English translation of her birth certificate.
She identifies that she is married to [Mr C], a male citizen of Iran. Mr [C] was not included in the protection visa application. It is indicated that her husband is in Iran. She told the delegate at interview that in a few places she had referred to her husband only as [name]. She told the delegate that her husband had things to do and that is why he did not travel with her to Australia.
[Ms A] indicated that she and her husband have a daughter who is named [Miss B]. She was born in Tehran town/city, Tehran state/province, Iran. [Miss B] is included in the protection visa application and is presently located in Australia. [Miss B]’s Iranian passport was provided. [Ms A] told the delegate that her daughter lived with her in Australia.
Both the applicants arrived in Australia lawfully by airplane. They obtained passports lawfully through the Iranian passport office.
The protection visa application form asked questions relating to the protection claims. [Ms A] indicated she was making her own protection claims. She seeks protection from Iran. In relation to all questions asked in the protection visa application form, she directed the reader to a written statement she provided. The Tribunal notes that the protection visa application form makes it clear that [Ms A] identifies as a Christian (as does her daughter). At the delegate interview, she said that she was born into a Shi’a Muslim family.
[Miss B] indicated that she was not making her own claims for protection. As noted previously in this decision record, a person can be granted a protection visa despite not making ‘protection claims’ if they are a member of the same family unit as a person who has been found to be owed protection obligations and that person has been granted a protection visa. Evidence was provided by way of reports that [Miss B] suffers from diabetes.
The written statement provided as part of the protection claims is dated 10 December 2019. It is written by [Ms A]. She wrote that she and her daughter came to Australia to visit her sister for a short time. She had planned to have her husband come to Australia as well but ‘since we came to Australia lots of changes occurred in our lives and as a result, I fear returning back to Iran ever again unless the Islamic government collapses.’
[Ms A] detailed her life growing up in Iran. She noted that she had one sibling, her father’s work as a government employee (though he has since retired) and the fact that her mother is a homemaker. She described unpleasant memories from her childhood concerning the Iran-Iraq war. She wrote that her school years were not carefree and that her schooling was very strict following Islamic norms and there was poor treatment through the enforcement of rules. She had to participate in religious events such as public prayers and demonstrations and was indoctrinated to always feel guilty because of sins and fear of God’s punishment. She noted that her parents grew up with traditional Muslim teachings and were religious people, but they never enforced their beliefs on their children. She repeated this to the delegate, saying that in public they were forced to be Muslim, but she was not required to practice in the privacy of the family home. She told the delegate that she felt no connection to Islam.
She described her relationship with God being based on fear and guilt. She described society in Iran being oppressed by Islamic rules and that not wearing a full hijab could carry serious consequences. She said that when she was a teenager, she was punished for disobeying barbaric rules and that this had a lasting impact on her mental health.
She detailed her educational achievements and the circumstances meeting her now husband. This relationship was described as a friendship that eventually resulted in marriage as her husband was the first person, she had an emotional relationship with. She detailed that she had to appear at her university’s disciplinary committee a few times and was asked to stay away from her now husband while at university.
She detailed her previous employment in Iran, noting that she left a particular job just before she gave birth to her daughter. After the birth, she decided to return to work again. Both she and her husband did photography as a hobby and [Ms A] decided to open a photo studio. Their main work was filing wedding ceremonies and parties. She noted that police used to check the videos to make sure that the wedding ceremonies were held based on Islamic rules and that police attended upon the studio many times. [Ms A] said that this was distressing and that she always fears that she was putting her clients at risk. She noted that the combined economic downturn and fears of police attending upon the studio made the family decide to close the studio after six years. She detailed her next employment in a family business that was a [factory].
She detailed that her sister migrated to Australia 10 years ago but developed [medical conditions] after being here for about 7 years. She corrected this at the delegate interview to 9 years. She detailed the effect this had on her and her mother. She noted that her sister came to Iran which helped calm them down. She told the delegate that her sister came to Iran in 2012. It was at that time that she remembers her sister talking to her about her faith in Jesus and how by trusting him she had gained peace which helped her sister cope with her illness. [Ms A] identified her sister in the protection visa application form as currently living in Australia as an Australian citizen/permanent resident. Department records indicate that [Ms A]’s sister arrived in Australia as part of skilled migration.
[Ms A] detailed that in the midst of her sister’s sickness, she was invited to [Church 1] by Christian friends and there had been prayers for her. Her sister was asked to put her trust in Jesus so her life would change. Her sister prayed in front of [Ms A] when in Iran, which was very new and surprising. She told the delegate that her sister travelled to Iran a few more times after that but could not say when. She told the delegate that her sister started attending church in 2011 after her sickness. [Ms A] told the delegate she would attempt to find documents to corroborate her sister’s attendance at church prior to the [Ms A]’s arrival in Australia.
[Ms A] then wrote that she didn’t know much about Christian faith and her experience was limited to what she saw in Islam. She didn’t ask her sister to explain anything more about it. She told the delegate that she was not really interested in Christianity at that point and did not ask her sister any questions. [Ms A] thought that if her sister’s belief in Jesus was the only thing that healed her, her sister should be left to ‘live in her thoughts’ as otherwise she may lose all hope for recovery. She did observe that her sister’s attitudes changed and in phone conversations between the pair her sister was no longer worrying about herself. [Ms A]’s sister told her about how her Christian friends took care of her in Sydney.
[Ms A] noted that she was the older sister and decided to visit her sister in Sydney to take care of her, but she was working full time, her daughter was in school, and her husband was working, so it was not possible for [Ms A] to visit until recently. She told the delegate that her purpose for coming to Australia was to see her sister. She detailed that during her daughter’s school holidays they came to Australia to visit her sister. This was uplifting for [Miss B] because she suffers with diabetes and has had ‘quite a tough life.’
[Ms A] detailed that when she arrived in Australia, her sister’s friends came and visited them. She soon realised that weeks before their arrival in Sydney, the friends were praying for [Ms A] and [Miss B] to join them in Church and ‘surrender their lives’ to Jesus. [Ms A] noted her sister’s friends’ kindness and generosity but wrote that she initially accepted a visit to their church out of curiosity. She noted that when she entered the church she was warmly welcomed by a large number of Australian and Iranian Christians.
She told the delegate that she first attended church in Australia on [date] September 2019. She described this as a Sunday service and the atmosphere was indescribable and unimaginable. She told the delegate that when she arrived in Australia her sister was attending [Church 2]. The delegate pointed out that in a letter the applicant provided in support of her protection claims it was claimed that [Ms A] and her sister first attended [Church 2] on the same day. [Ms A] said that her sister changed to [Church 2] because that has more Iranians. [Ms A] also said that she had attended a church in [location], New South Wales. This was done at the suggestion of [Mother D]. She told the delegate that she knew that people who changed their religion would be considered apostates in Iran and knew this when she went to [Church 2], but said that when she first attended, she did not plan to change her religion and went because she was invited. She went because she was invited and was curious. She wrote that she enjoyed visiting these people and her mood started to change. She detailed continuing to attend Church services and bible study classes. She also detailed meeting her sister’s other Christian friends in different parts of Sydney.
[Ms A] detailed that despite feeling a very good connection with Christian people and observing the spiritual atmosphere and power of their prayers, she still had a number of questions in her mind. She detailed that she spoke to a woman named [Mother D] who provided [Ms A] with answers to [Ms A]’s questions about fundamentals of Christian faith. [Ms A] was provided with a Persian bible and was asked to read it. The more [Ms A] read about the teachings of Jesus, the more she fell in love with Jesus’ teachings. She also described the feeling of spiritual energy she obtained from attending Church and prayers. She testified to her faith in Jesus and was baptised [on date] November 2019 at [Church 2] in [Suburb 1], New South Wales. She told the delegate that planning for her baptism started two weeks prior to that, and that before being baptised she had to do Bible studies and got in contact with [Pastor E]. She had discussions about the purpose of baptism. She attached a Certificate of Water Baptism to corroborate this event, as well as a letter dated 20 November 2019 from [Pastor E], who was identified as the Disciples & Connections Pater of that Church. The letter from [Pastor E] was written to the applicant confirming the baptism and wrote how the pastor was inspired by [Ms A]’s testimony and how God had been working in her life. The letter also detailed suggestions about listening to prayers and prophecies and the support [Pastor E] will continue to offer to [Ms A] should she have any questions or concerns. Also attached to the application were photographs of:
·[Ms A] with [Pastor E] and her sister on what was identified as ‘Testimony Preparation Day’ on [date] November 2019
·[Ms A] with [Pastor E] (appearing to be on the same day as above)
·[Ms A] being baptised [on date] November 2019 with [Pastor E], Senior Pastor [F], and Senior Pastor [G], and another photo appearing to capture the same event.
·[Ms A] with Senior Pastor [F], her sister and [Mother D]
·[Ms A] with Senior Pastor [F], [Mother D] and her daughter [Miss B]
·[Ms A] with Senior Pastor [F]
·Two photographs of [Ms A] with Senior Pastor [G] and [Mother D]
[Ms A] wrote that ‘having experienced the presence of the Holy Spirit leading or life for loving to follow Jesus’ she decided that there was no way to Salvation and prosperity except through Jesus. She decided to live her life as a Christian for good and was excited at the prospect of returning to Iran so she could share her faith and finding with her husband, parents and trusted friends. She told the delegate that she had initially planned to carry her Christianity as a ‘gem’ but grew in her understanding about what would be required for her as a Christian, namely proselytising and that she would be required to do this. She quoted a Bible passage to the delegate to support this proposition.

In her written statement she wrote that as she was preparing for her return to Iran, a few days after her baptism Iran went through horrific experiences and many innocent people were killed by the Iranian inhumane government because people protested against their cruel policies. She told the delegate that it was her intention when she arrived in Australia to return to Iran. She detailed that it was stressful, that the internet lines were disconnected, and she was unable to call her husband for six days. She was worried about what could have happened to her husband because he was not answering his phone given that he was ‘not a very cautious man’ and was ‘anti-Islamic.’ Thankfully, she heard from her husband on 19 November 2019, and he said he was safe and healthy but suggested she avoid returning back to Iran as the country ‘turned into a living hell’ and he feared leaving the home and being arrested. He detailed that Iran’s political atmosphere had changed a lot. He was fearful of being captured on government cameras and being arrested. It was suggested that he had participated in a peaceful protest against the Iranian government. She detailed the contents of the phone conversation with her husband. She told the delegate that her husband had ‘political ambition’ in Iran and had told her not to travel back there.
[Ms A] wrote that after the last conversation with her husband, she shared her thoughts with her pastor and Christian friends who agreed it would be unwise for her to return to Iran. It would place her life in danger, and they would not be able to live as Christians. She knew that returning to Iran would either end their Christian journey or their lives. [Ms A] wrote that her conversion from Islam to Christianity is punishable by the death penalty in Iran and that the conversion would also impute a political opinion against the Iran government, which she claims actively identifies and kills their opponents. She told the delegate that after she became a Christian, she became aware that she could apply for protection in Australia and told the delegate that she did not find out about protection visas from her sister. She told the delegate that she could now not return to Iran because she changed her religion and because the ‘political situation in Iran changed’ and she did not want to go back. She repeated that her fellow Christians at her church encouraged her not to return to Iran. She told the delegate that when she became aware that she needed to proselytise and share her Christianity, and this would cause her lots of problems in Iran. She said there is no opportunity for her to practise her Christianity in Iran because there was no pastor there to answer her questions.
In the written statement, she noted that her husband still lives in Iran and there is a possibility that she may never see him again, but she and her daughter decided to remain in Australia and seek protection so she could continue a peaceful life based on the teachings of Jesus Christ instead of returning to Iran and facing death threats and imprisonment. She told the delegate that since attending services in Australia nothing had happened to her husband. She told the delegate that she would not be able to practice her faith in Iran and may be tortured.
She told the delegate that she was continuing to attend [Church 2] and that she continued to do this during COVID by attending online services. She also told the delegate that her daughter now attends school in Australia (which she identified as a Christian school) and that if her daughter returned to Iran she would be confused.
The applicants provided additional supporting documentation to the delegate.
·     There was a new letter from [Pastor E] of [Church 2] in [Suburb 1] dated 17 July 2020. [Pastor E] detailed her involvement with that church, detailing [Ms A]’s attendance at the church since September 2019 and confirming her basptism on [date] November 2019. The letter attested to the author’s belief that [Ms A] was a genuine Christian convert.
·     There was a letter from [Pastor H] of [Church 2] in [Suburb 1] who noted that he has been a pastor of that church since 2011. He detailed his responsibilities at that church. The letter noted that the author met [Ms A] about a year previously when she started attending night service. It corroborated her attendance and baptism and spoke of the author’s belief that the applicant was genuine conversion to Christianity.
·     There was a letter from [Ms D] (who the Tribunal understands to be ‘[Mother D]’) dated 7 July 2020. In that letter, Ms [D] detailed that she was a community leader at [Church 2] [Suburb 1] for 5 years after being the Iranian Connect Group Leader of [Church 1] for almost 15 years. She wrote that she met [Ms A] through [Ms A]’s sister whom she had known for a number of years. [Ms D] always prayed for [Ms A];s sister to beat [illness]. [Ms D] wrote that she invited [Ms A] to her home for Bible studies and she invited [Ms A] to attend church services at [Church 2]. As [Ms D] noted that [Ms A] had attended different churches in Australia but because [Ms A] was invited to [Church 2], both sisters started attending that Church. [Ms D] detailed her belief that [Ms A] was a genuine convert to Christianity.
The migration agent spoke to the delegate at the conclusion of the interview. The representative criticised the delegate’s questioning (suggesting that the delegate should give ‘more weight’ to the applicants claims about conversion) and that the delegate should ‘not be so negative about it.’ That was entirely inappropriate, as was the migration agent’s suggestion that if the delegate was not going to give the claims more weight, then the interview had no purpose. Also inappropriate was the migration agent telling the delegate that the migration agent himself was a Christian and that people don’t go to Christianity without a reason or suggesting to the delegate what would happen at the time that Jesus was alive. It was also inappropriate for the migration agent to tell the delegate that he himself was impressed by [Ms A]’s knowledge of biblical verses. Such a submission should not be put to a decision maker, nor should the migration agent have said to the delegate that if the delegate was ‘if you are going to refuse this one, then who could be granted a protection visa?’
It appeared that the agent attempted to give evidence on behalf of [Ms A]. If the migration agent wished to make ‘submissions’ then she should have made submissions about the claims available on the evidence and directed the delegate to relevant country information concerning the available claims.
Taking a generous approach to the migration agent’s ‘submissions’ and putting those ‘submissions’ in an appropriate manner, the migration agent brought to the fact that:
·     [Ms A] had provided an explanation of her journey to Christianity which was supported by documentary evidence. The agent suggested that the delegate was not able to make an assessment about her genuineness without seeing the applicant (noting that the interview was conducted on the telephone)
·     [Ms A]’s conversion was supported by documentary evidence and that the pastors were in the best position to know her intentions.
·     [Ms A] did not attempt to exaggerate her claims.
·     The claims were credible because [Ms A] would not fail to return to her husband if she was not genuine in her claims.
The migration agent then raised a new claim at the delegate interview, namely that [Miss B] had diabetes and that if required to return to Iran, because of the sanctions against Iran, she may not be able to get adequate care and she ‘may be’ put into a particular social group and subject to harm in Iran.
As touched on previously, the migration agent provided a post-hearing submission dated 16 September 2020. That submission was not of assistance as it merely repeated evidence given by [Ms A] at the delegate interview and sought to give evidence about certain facts on behalf of the [Ms A]. If [Ms A] wished for additional evidence to be considered by the delegate, then the proper course was for her to provide a written statement attesting to her evidence. The submission contained hyperlinks to news articles which the migration agent suggested ‘confirmed that in November 2019 Iran went into complete shock and there was a communication breakdown which made everyone panic about their situation.’ The migration agent should have provided an article to corroborate what [Ms A] had said, not provided links to websites.
The post hearing submission also repeated the claim raised by the migration agent that [Miss B] ‘should be considered part of a particular social group getting harmed in Iran for lack of medicines and medical treatments due to COVID. Again, hyperlinks were provided instead of articles.
The submission then went on to detail that [Ms A]’s sister would be quite lonely in Australia and asked the delegate to consider this, asking for kindness.
Delegate decision
[Ms A] participated in an interview with the delegate on 19 August 2020. Although the Tribunal review application is a de novo hearing, it is worthwhile detailing what the delegate found in order to provide context to why the applicants sought review of the decision to refuse to grant the protection visas.
The delegate called into question [Ms A]’s ‘spiritual journey’ to Christianity to question whether [Ms A] was a genuine convert.
The delegate accepted that the applicant demonstrated knowledge of Christian teaching at interview as could reasonably be expected of someone who has engaged in Christian worship over a number of months, but that this was not a definitive indicator of [Ms A]’s motivation for engaging in that worship.
[Ms A] ‘did not provide information as to how her previous lifestyle was misaligned with her ‘required way of life,’ or how she had ‘adapted her lifestyle beyond merely attending church and reading the Bible.’
The delegate noted country information that ‘there is an establish trend of some Iranian asylum seekers worldwide using non-genuine conversions to Christianity to form the basis for their claims for asylum, and this is known within the Iranian diaspora.
The delegate did not accept that ‘a university educated person would agree to attend a Christian church on a Sunday and not believe that it somehow linked to religion.’ The delegate claimed that this was ‘at odds with the claim that the applicant’s friends at [Church 1] visited her and told her about Christianity.’
The delegate was aware of the adverse treatment of Christian converts in Iran as apostates of Islam and did not except that [Ms A] would be excited about her return to Iran to tell others about her conversion to Christianity. The delegate was also not satisfied that ‘a change in the political situation in Iran in 2019 caused the applicants to apply for a protection visa, as the risk for apostates in Iran far predates this.’ The delegate also did not accept that the applicant only became aware of the need to apply for protection after her baptism because of [Ms A]’s claimed knowledge of the treatment of apostates in Iran.
The delegate viewed the photographs provided by [Ms A] to the Department suggested that it was a ‘low key meeting with [Pastor E]’ and that the photographs were provided because the applicant was fully aware of the need to provide evidence to substantiate her claims.
The delegate detailed that the applicant’s husband was refused a visitor visa to visit Australia and that this showed that the entire family unit intended to travel to Australia, which raised concerns that there was a plan to migrate here. There is no department record of that. From the delegate’s decision record, it appears that the delegate got this information from the applicant. However, the applicant made no such assertion in the delegate interview.
The delegate assessed the support letters provided by [Church 2]. The delegate described looking at a screen shot of that church’s website and that it appeared to suggest that the church’s goal was conversion of all people. It was suggested by the delegate that the church had previous experiences with Iranian asylum seekers. The delegate determined that it would be reasonable to infer that the church would convert all people in the hope they would become a genuine believer and would not be able to tell the difference between a person who genuinely converted to Christianity and someone who did not.
The delegate was not satisfied that [Ms A] was a genuine Christian convert and was not satisfied that if returned to Iran she would continue to engage in Christian worship. The delegate determined that [Ms A] would return to living a ‘largely secular lifestyle.’
The delegate decision also notes that in a post-interview submission, the applicant’s migration agent raised that ‘the applicant’s sister faced loneliness not having someone to care for her if the applicant was required to leave Australia.’ That came from the post-interview submission dated 16 September 2020. The delegate wrote that while that may be the case, it was ‘beyond the scope of the protection visa assessment for the applicant’ and that claim was not assessed further.
The delegate also noted that the submission of 16 September 2020 raised that the applicant would experience ‘serious harm’ in Iran as a result of the Iranian government’s handling of the COVID-19 pandemic. The delegate determined that any harm from being exposed to COVID-19 would not stem from an act of persecution, nor did it satisfy the criteria for complementary protection.
The delegate also noted that the submission of 16 September 2020 raised that [Miss B] had diabetes and that there is inadequate medical treatment in Iran. The delegate determined that any harm from diabetes would not stem from an act of persecution, nor did it satisfy the criteria for complementary protection.
Review application to Tribunal
The Tribunal wrote to the applicants and invited them to appear at a Tribunal to give evidence and present arguments because it was not satisfied that it could make a decision favourable to the applicants on the material provided.
The Tribunal’s concern was that [Ms A] had attended Christian church services in Australia only so she could be granted a protection visa. Given that the Tribunal hearing was held in September 2021, just over a year since the delegate interview, the Tribunal was curious to know whether [Ms A] was still attending church services and still had the support of people connected with the church. The Tribunal reasoned that if [Ms A] ceased attending church services and did not have any current letters of support from people holding positions of authority with the church, it may suggest that she ceased her involvement and did so because her earlier participation was done only so she could be granted a protection visa. Given that [Ms A]’s journey to Christianity stemmed from her sister, the Tribunal was also keen to explore her sister’s involvement with Christianity.
As noted previously, the hearing was adjourned from 21 September 2021 to 22 September 2021. This was because [Ms A] requested the Tribunal take oral evidence from Senior Pastor [F], Pastor [E] and Pastors [H] and [I]. The Tribunal indicated that it would only do so if written statements were provided and adjourned the hearing so those statement could be provided.
Prior to the hearing resuming on 22 September 2021, the Tribunal was provided with the following:
·     Letter from Pastor [E] of [Church 2] [Suburb 1] dated 21 September 2021.
·     Letter from Pastor [F] of [Church 2] [Suburb 1] dated 21 September 2021.
·     Letter from [Pastor H] of [Church 2] [Suburb 1] dated 21 September 2021.
Each of those letters detailed how the authors knew [Ms A] and confirmed her current attendances at Church. The Tribunal accepted that the authors would give oral evidence consistent with their written statements and based upon this, determined that taking their oral evidence was unnecessary.
The Tribunal also notes that it received a written statement from [Miss B] dated 13 September 2021. It was indicated that she would not be attending the Tribunal hearing. Her letter detailed that she was feeling emotionally weak and that she was in anxiety and fear. Her letter detailed the difficulty she had adjusting to life in Australia, but her desire to not return to Iran because that was a country that did not value her as a woman.
The Tribunal also received [Ms A]’s husband’s e-Visa to [Country 1], and a certificate of completion of a yoga course. It was submitted that ‘this is proof that [Ms A] comes from a family which values spiritual journey and that her husband travelled to [Country 1] to strengthen his spiritual mood and become a yoga teacher.
The Tribunal was also provided with a written submission from the migration agent dated 19 September 2021. The submission was misdirected as to its purpose and again appeared to give evidence on behalf of the applicant. The Tribunal has disregarded everything in that submission other than the identification by the migration agent of protection claims.
At the Tribunal hearing, [Ms A] told the Tribunal that everything she said to the delegate was true and correct. The relevant evidence she gave to the Tribunal is detailed below.
She confirmed that she is still in a relationship with her husband and speaks to him daily, and that she has only one sibling.
She confirmed that she was not born into a Christian family and did not convert to Christianity in Iran. She did not know any Christian families in Iran. She agreed with the Tribunal’s assessment of her evidence that she was a secular/cultural Muslim in Iran. She described her religious practice in Iran as covering hair and body and following orders and rules in society, including praying daily at school or if out in public at prayer times. Her family did not consume alcohol.
[Ms A] told the Tribunal that her sister is not a baptised Christian. She said her sister had not had a chance to do so yet.
The Tribunal was told by [Ms A] that her sister knew [Mother D] because they both used to attend [Church 1]. They used to go together to pray for her sister. She did note that her sister did not always attend [Church 1] events due to her illness. She confirmed that her sister started attending [Church 2] since [Ms A] came to Australia and was invited to attend that Church. They had done so since September 2019. They attended because there [were Farsi speakers] at that Church.
[Ms A] confirmed that when her sister came to visit her in Iran in 2011, she spoke to her about her interest in Christianity and the prayers that were being made for her. The Tribunal asked whether [Ms A] thought it odd that her sister would speak to her about Christianity in 2011, attend Church services in Australia, receive Christian prayers, but had not yet been baptised as a Christian. [Ms A] said her sister was a Christian but had not had time to get baptised yet. She speculated that her sister might not be ready as her sister did not have a ‘spiritual character’ for the beginning. [Ms A] confirmed that neither Pastor [F] nor [Pastor E] knew her sister before September 2019. It was [Mother D] who knew her sister. She confirmed that Pastor [F] and [Pastor E] had since met her sister.
[Ms A] was asked how she would practice her Christianity if she returned to Iran. She quoted a Bible passage and said words to the effect that faith cannot be taken or left. She said she would continue her Christian faith in Iran. She said that she and her husband spent all their lives in their faith and there is ‘no other way.’ The Tribunal asked [Ms A] whether her husband was a Christian. She said no but he was very close to her and were always in the same beliefs. It was only through their phone conversations and online conversations that she can share her beliefs with him. She noted their Yoga journey together. [Ms A] said the relevance of their ‘yoga journey’ was demonstrative of a desire of the couple to find themselves. It was about understanding God in a different way. Their journey began with yoga. She started practising yoga from 2014 in Iran.

She told the Tribunal that she lives as a Christian by going to Church and reading the Bible and trying to live her life like Jesus. She spoke of love, respect and compassion. She said that she evangelises to people. She told the Tribunal that she fears return to Iran because everyone who converts faces a ‘horrible cost’ and a risk of execution. She queried what would happen to her daughter if [Ms A] was required to return Iran because her daughter suffers from diabetes and life would be difficult for her daughter.
Noting that if unsuccessful in their protection claims that both [Ms A] and [Miss B] would be required to return to Iran, the Tribunal asked how [Miss B] being back in Iran with diabetes would be any different to their present circumstances in Australia. [Ms A] said that in Australia there are medical services to help her daughter, while in Iran there is ‘no education’ about diabetes at all. It was suggested that access to medicine is connected to the political system. She said that you cannot compare the medical systems between to the two countries and there is no access to Insulin. It was suggested that this was due to sanctions imposed on Iran.
[Ms A] told the Tribunal that her daughter was diagnosed with diabetes in 2015 or 2016. When asked how she received treatment in Iran, she said they could ‘hardly manage.’ She said they studied themselves and searched for way to manage the problem and tried to find a specialist. Noting that [Ms A] and her daughter came to Australia on visitor visas in 2019 and that her daughter was diagnosed with diabetes in 2015 or 2016, the Tribunal asked whether the intention was to depart Australia at the end of the visitor visa nothwithstanding the medical condition. [Ms A] did not answer that question directly, but said that the purpose of the trip was to change the way her daughter feeled.
The Tribunal asked [Ms A] why she did not return to Iran at the conclusion of her first visitor visa. The Tribunal notes that this visa expired on 16 October 2019. She said that they wanted to see more of Australia and spend more time with her sister. The Tribunal asked why they did not lodge protection visas at that time, instead lodging other visitor visas. She said that she had no intention to apply for protection at that time. She thought protection visas were for boatpeople or people from refugee camps overseas. She said that her basis of this belief was what she heard and saw in the news. She said that she learned about protection visas after she got close to the Church and founds friends in Church who got to know about their lives. She repeated about becoming baptised and losing communication connection to Iran as she detailed previously. She said that she was shocked, and this made her realise how dangerous it was to return to Iran. She spoke to friends in the Church and was told by fellow Church members and her husband not to return to Iran.
Noting that [Ms A] started attending Church in September 2019 (which was prior to her first visitor visa expiring) the Tribunal queried how she could do this and yet plan to return to Iran (given her evidence that she did not plan to apply for protection at the time she applied for her second visitor visa). She said that at the beginning she attended Church out of curiosity and because she was invited to go there. She said that it was attractive but that her journey to Christianity did not happen overnight. [Ms A] disputed that she engaged in baptism and attending Church in Australia just so she could be granted a protection visa.
[Ms A] was asked whether there was anything else she wished to say in support of her protection claims. She said that her sister would have no one to take care of her.
Country Information relevant to claims
Regrettably, the migration agent did not provide the Tribunal with the relevant sections of the DFAT country report to support the applicant’s protection claims. The Tribunal observes that rather than giving evidence himself to support the protection claims, it would have been better for the migration agent to identify the applicant’s evidence, identify the claims available on that evidence, and identify the relevant information from the DFAT country report in support of those claims.
In any event, the Tribunal has considered the relevant contents of the most recent DFAT report concerning the claims raised. They are reproduced as follows:
RELIGION
Over 99 per cent of Iranians are Muslim, of whom 90-95 per cent are estimated to be Shi’a and 5-10 per cent Sunni. Small religious minority communities – including Baha’is, Christians, Zoroastrians, Jews and Sabean-Mandaeans – make up the remainder. Of Iran’s religious minorities, only Christians, Zoroastrians and Jews (excluding converts) enjoy legal recognition and, in turn, the ability to worship openly (see Recognised Religious Minorities). Adherents of non-recognised religions are considered Muslim and are prohibited from expressing their faiths publicly. Religious minority communities – recognised and non-recognised – have shrunk considerably since 1979, with many choosing to leave Iran after the Islamic Revolution.
Iran is a theocracy with Islamic beliefs and customs enshrined in law. Shi’a Islam is the official state religion. Article 4 of the constitution requires that all laws and regulations be based on (Shi’a) Islamic criteria. Legislation and government policy heavily favour the majority Shi’a population, leading to pervasive structural discrimination against non-Shi’a Muslims and recognised religious minorities. Non-Shi’a Muslims, for example, are constitutionally-barred from serving as Supreme Leader or as members of the Guardian Council, the Assembly of Experts and the Expediency Council. Adherents of non-recognised religions, particularly Baha’is, face widespread official and societal discrimination. According to a July 2019 survey on religious restrictions conducted by the Pew Research Center, Iran ranks among the top 10 countries in the world for laws and policies restricting religious freedom.
Recognised Religious Minorities
The Christian, Zoroastrian and Jewish religions are the only recognised non-Muslim faiths in Iran. The constitution grants adherents of these religions the freedom – within the limits of the law – to perform their religious rites and ceremonies, and to comply with their own canon in their personal affairs and religious education.
Christians
According to the most recent national census (2016), there are 130,000 registered Christians in Iran. Ethnic Armenians concentrated in Tehran and Isfahan are the largest group of recognised Christians. Other recognised Christian groups include Assyrians, Chaldeans and Sabean-Mandaeans, although the latter group does not self-identify as Christian. Those citizens able to prove they or their families were Christian prior to 1979 are also recognised. Conversions after 1979 are not recognised (see Unrecognised Christian Groups (House Churches)). The ethnic churches have different denominations – there are Assyrian Catholic, Orthodox and Presbyterian congregations – but the members of the various denominations maintain close links within their own community. Because the law prohibits citizens from converting from Islam to another religion, the government only recognises these groups because their presence in Iran pre-dates Islam. Recognised churches are required to deliver sermons in their traditional language. Farsi-language services are not permitted, as they could promote proselytisation. There are approximately 20 officially recognised Christian churches in Iran. All pre-date the Islamic Revolution (the authorities have not granted permission for the construction of new churches since 1979).
The activities of recognised Christian communities are closely regulated, to guard against proselytisation. All Christians and Christian churches must be registered with the authorities, and only recognised Christians can attend church. Security officials closely monitor registered churches to verify that services are not conducted in Farsi, and perform regular identity checks on worshippers to confirm that non-Christians or converts do not participate in services. Authorities have closed several churches in recent years for failing to comply with these restrictions, including churches that had existed prior to 1979.
Despite these restrictions, community leaders associated with recognised churches report that the authorities respect their religious rights, and their communities are able to act freely in their own spaces without government interference (including holding mixed-gender gatherings, using alcohol for ceremonial purposes and allowing women to uncover their heads). A local Christian from Tehran told DFAT they experienced no official or societal discrimination, and felt comfortable practising their faith.
DFAT assesses that, while their congregations are monitored and they are subject to restrictions, Christians from recognised churches are permitted to practise their faith. DFAT further assesses that, except for their exclusion from senior government, military, intelligence and judicial positions, recognised Christians who do not engage in proselytisation activities face a low risk of official discrimination.
Atheists and Secular or Non-Practising Muslims
Local sources told DFAT that secularism is widespread, particularly in the major cities and among younger and wealthier Iranians. A significant proportion of the population does not attend mosque or pray on a regular basis, and alcohol consumption is common. Official sources told DFAT that religion was a private matter — that, beyond the expectation that people do not eat in public or hold parties during the holy Muslim month of Ramadan, how one wished to observe Islam was an individual choice, and was not a matter for the state. DFAT heard anecdotally that many Iranians do not observe Ramadan strictly, including by eating, drinking liquids and smoking at home. Most restaurants are closed during Ramadan, although many (especially in Tehran) reportedly serve food discreetly. Those caught eating in public during Ramadan run the risk of arrest and prosecution.
A Muslim who renounces Islam and becomes atheist is considered apostate and risks state persecution and, potentially, the death penalty (see Religiously-Based Charges). DFAT is unable to verify what proportion of the population is atheist. According to local sources, atheists are discreet about their non-belief beyond their close family and friends. Unless they widely publicise their non-belief, atheists are unlikely to come to the attention of the authorities. Atheists from conservative families might face familial pressure and potential ostracism if their atheism were revealed, but would generally not be subjected to physical harm. Local sources told DFAT that atheists from more liberal families and parts of the country, like north Tehran, would face no such pressure.
DFAT is unaware of individuals being prosecuted for atheism. DFAT assesses that non-practising Iranian Muslims face a low risk of official and societal discrimination, particularly in the major cities. DFAT assesses that atheists who are open about their non-belief face a moderate level of official and societal discrimination.
Unrecognised Christian Groups (House Churches)
The Penal Code strictly prohibits proselytisation by religious minority groups — it is a capital crime for non-Muslims to convert Muslims. Against this background, the three recognised minority religions do not proselytise or accept converts. Strict instructions not to minister to Iranians apply to all recognised churches, including the small number of Latin Catholic and Protestant churches in Tehran and elsewhere that cater to expatriates. To enforce this prohibition, authorities closely monitor recognised churches (see Christians). DFAT understands that recognised churches regularly receive telephone enquiries from individuals falsely claiming to be interested in converting, as a way of testing their adherence to the prohibition on converts.
Iranian Christians who are not members of recognised churches generally practise in underground ‘house churches’. The secrecy surrounding house churches makes it impossible to provide an exact number of house churches or unrecognised Christians in Iran. The Special Rapporteur on the situation of human rights in Iran estimates there are between 300,000 and 350,000 Muslim converts to Christianity, with international Christian advocacy groups citing significantly higher numbers. While precise figures are elusive, Iran has a growing unrecognised Christian population. DFAT understands a high percentage of unrecognised Christians are Farsi-speaking converts from Islam, or the children of converts. Some converts reportedly travel to Turkey (with which Iran has visa-free travel arrangements) to be baptised, then return to Iran and practise in private. Local sources claim many converts are unhappy with being designated Muslim at birth and wish to explore their religious identity. Others see adopting Christianity (albeit surreptitiously) as a form of protest against the government.
According to international observers, house churches exist across Iran, particularly in major cities. DFAT understands that most house churches follow evangelical Protestant teachings and tend to be situated in more affluent and liberal parts of major cities (including north Tehran). 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 Christian television programs broadcast via satellite or discs smuggled from abroad (including in Farsi). Other house churches may be larger, and may grow organically as members share their faith with family and friends. While some groups do not have any formal links with other Christian groups, others are part of house church networks within a particular city or area. Some house church leaders are trained in Christian theology (either online, via Christian satellite television or through residential courses completed outside Iran). A growing number of house churches have ‘Internet pastors’, where a foreign-based preacher leads the church and provides instruction remotely via the Internet. DFAT understands that house church congregants regularly change houses to avoid detection.
Authorities interpret the growth in house churches as a threat to national security and periodically carry out raids against them. Raids focus particularly on house churches that actively proselytise or seek out new members. DFAT is unable to verify if the frequency of raids of house churches is increasing or whether a warrant is required to execute a raid. Local sources were unaware of any raids in the first half of 2019, although raids may not necessarily be publicised. According to the UK Home Office, the authorities use informants posing as converts to infiltrate house churches. Where the authorities receive a report of a house church, they may initiate a monitoring process to survey and collect information about its members. Local sources told DFAT that the authorities do not actively look for house churches. Rather, raids – where they occur – are usually the result of tip-offs by Muslim neighbours.

100. The judiciary has handed down long sentences in relation to house church activities. In July 2017, the Revolutionary Court convicted eight Christians of ‘acting against national security through the establishment of a house church’, ‘conducting evangelism’ and ‘insulting Islamic sanctities’, and sentenced the group to between 10 and 15 years’ imprisonment. Among those sentenced were Victor Bet-Tamraz, an Assyrian Christian pastor and former head of the Assyrian Pentecostal Church in Iran, and a Christian convert arrested during a private Christmas gathering in Bet-Tamraz’s Tehran home. In January 2018, Bet-Tamraz’s wife was sentenced to five years in prison for ‘acting against national security by organising house churches, attending Christian seminars abroad and training Christian leaders in Iran for the purpose of espionage’. Bet-Tamraz and his wife have been released on bail, but reportedly remain the subject of close surveillance. A priest, Ebrahim Firouzi, was arrested in 2013 on allegations of ‘promoting Christian Zionism’ and handed a five-year prison sentence on charges of acting against national security.
101. According to media reports, nine Christian converts received five-year prison sentences in December 2019. At least three of those sentenced had reportedly been arrested in a house church in Rasht (Gilan Province). In June 2018, four Christian converts were sentenced to 10 years’ prison each, and another 114 were reportedly arrested on charges of proselytising in December 2018. In March 2018, 20 Christian converts allegedly participating in a workshop were arrested near Karaj (most of whom were subsequently released). Christian advocacy groups claim that authorities pressure some church leaders to emigrate, either through direct threats or through intentional harassment (including daily summons to security offices for questioning, confiscation of identity documents or forcing them out of their jobs).
102. DFAT assesses that small, self-contained house church congregations that maintain a low profile and do not seek to recruit new members are unlikely to attract adverse attention from authorities beyond monitoring and, possibly, low-level harassment. Members of larger congregations that engage in proselytisation activities and have connections to broader house church networks are more likely to face official repercussions, which may include arrest and prosecution. Of particular interest to the authorities are the leaders of house church congregations, who, according to local sources, face a higher risk of arrest and prosecution than ordinary congregants. According to these sources, while there have been instances of ordinary congregants being prosecuted, this is not common — most are released.
103. Despite occasional arrests and prosecutions, the authorities do not actively search for Christian converts and, as far as DFAT is aware, do not employ people exclusively for this purpose. DFAT assesses that a Christian convert would not face harm if they maintain a low profile, do not openly proselytise and are not of interest to the authorities for other reasons (e.g. political activism). Official sources told DFAT that converts who keep their beliefs private are not of interest to the authorities. Those who openly propagate Christianity and seek to convert others, in contrast, would draw the attention of the authorities, and face a high risk of official discrimination, including harassment, arrest and prosecution, and some societal discrimination. Local sources were not aware of Christian converts being executed for apostasy in recent times. DFAT assesses the risk of execution for conversion/apostasy to be low (see Religiously-Based Charges).
104. International observers report that Iranians who convert to Christianity abroad are unlikely to face adverse official attention upon their return, provided they have not previously come to the attention of the authorities for political activities, maintain a low profile and do not engage in proselytisation activities. This includes individuals who publicise their conversion online while abroad. According to local sources, in 2017
105. DFAT Country Information Report IRAN (April 2020) 34 an Iranian mother and her child who were baptised in Turkey were briefly detained on their return to Iran (they were carrying baptism certificates), but then released. DFAT understands such arrests are not common (see Conditions for Returnees). DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed. Christians found to be proselytising face a high risk of arrest, prosecution and imprisonment. DFAT assesses that Christian converts face a high risk of societal discrimination in the event their conversion becomes widely known, particularly if they are from more religiously-minded Muslim family backgrounds. This may involve ostracism from one’s family and discrimination in employment.

Religiously-Based Charges
106. Under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. Separately, a person of any religion may be charged with the crime of ‘swearing at the Prophet’ (blasphemy) if they make utterances that are deemed derogatory toward the Prophet Mohammed, other Shi’a holy figures or divine prophets. The Penal Code does not specifically criminalise apostasy, but provisions in the Penal Code and the constitution stipulate that sharia applies to situations in which the law is silent, and judges are compelled to deliver sharia-based judgements in such cases. Although the Quran does not explicitly say that apostasy should be penalised, most Islamic judges in Iran agree that apostasy should be a capital crime. This ruling is based both on oral traditions attributed to the Prophet Mohammed and to Shi’a Imams, whom Shi’a consider the Prophet’s rightful successors. Chapter 5 of the Penal Code specifically criminalises swearing at the Prophet as a capital offence, although a clause states that the sentence can be reduced to 74 lashings of the whip if the accused states the insults were the result of a mistake or were made in anger.
107. Politically-motivated apostasy charges were frequent in the years following the Iranian revolution, often leading to death sentences. However, in the vast majority of cases, defendants charged with apostasy also faced other charges related to national security. Many of these cases were quickly tried, ending in execution, so apostasy was not fully discussed in the prosecution of these defendants.
108. While apostasy and blasphemy cases are no longer an everyday occurrence in Iran, authorities continue to use religiously-based charges (such as ‘insulting Islam’) against a diverse group of individuals. This includes Shi’a members of the reform movement, Muslim-born converts to Christianity, Baha’is, Muslims who challenge the prevailing interpretation of Islam (particularly Sufis) and others who espouse unconventional religious beliefs (including members of recognised religious groups). Some religiously-based cases have clear political overtones, while other cases seem to be primarily of a religious nature, particularly when connected to proselytisation.
109. Today, death sentences in apostasy and blasphemy cases are rare. In March 2017, the Supreme Court upheld the decision of a criminal court in Arak (Markazi Province) to sentence a 21 year-old man to death for apostasy. Authorities arrested the man after he made social media posts considered critical of Islam and the Quran while on military service. According to publicly available information, the death sentence had not been implemented at the time of publication. The court also convicted two co-defendants of posting anti-Islamic material on social media, sentencing them to prison.
110. DFAT assesses that those accused of religiously-based charges are also likely to face charges related to national security. They are unlikely to have adequate legal defence, and are likely to be convicted.
Health
111. Article 29 of the constitution stipulates that every Iranian has the right to enjoy the highest attainable level of health.
112. The Ministry of Health and Medical Education is responsible for planning, monitoring and supervising health-related activities for the public and private sectors. Health care and public health services are delivered through a countrywide network, based on a referral system that starts at primary care centres in the periphery and proceeds through secondary-level hospitals in provincial capitals and tertiary hospitals in major cities. The government remains the main provider of primary health care services across the country, although the private sector also plays a significant role in health care provision, mostly through secondary and tertiary health care in urban areas. While the quality of healthcare in the public sector is of a good standard, overcrowding and doctor shortages are major challenges — Iran has 1,000 public hospitals for a population of nearly 83 million, or approximately 1.7 hospital beds per 1,000 people. Iran’s private health care system is highly regarded, and attracts patients from other countries in the region. Numerous non-governmental organisations (NGOs) are active on health issues, particularly in specialised fields. Sanctions (see Sanctions) and COVID-19 have placed significant strains on the local health care system.
113. Iran has strong human development indicators. The United Nations Development Programme (UNDP) ranks it 65th out of 189 countries in the 2019 Human Development Index (situating Iran in the high human development category). Health care is a major government priority — it spent the equivalent of 7.6 per cent of GDP on health in 2018. According to the UNDP, Iranians have a life expectancy of 76.5 years. Iran has achieved significant reductions in the rates of both under-five and maternal mortality (14.9 and 16 deaths per 1,000 live births, respectively, in 2017). According to the UNFPA, 99 per cent of live births are attended by skilled health personnel. All Iranian citizens are entitled to basic health care coverage provided by the government, and 90 per cent have health insurance. In 2014, the government introduced a Health Transformation Plan aimed at improving efficiency, equity and effectiveness, particularly in poorer and rural areas.
FINDINGS AND REASONS
114. The issue in this case is whether either applicant is a ‘refugee,’ or person who meets the criteria ‘complementary protection’ or a person who is a member of the same family unit as a ‘refugee’ or a person who meets the criteria for ‘complementary protection.’
115. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration because it should give the benefit of the doubt to the claim concerning conversion to Christianity.
[Ms A]’s profile as a Christian convert
116. The Tribunal was initially sceptical about [Ms A]’s claimed genuine conversion to Christianity. It was also odd that her journey to Christianity started with her Australian citizen sister telling her during a visit to Iran in 2011 about Christianity and the benefits it gave her sister coping with her medical condition when the applicant’s sister is not in fact baptised as a Christian. It was also odd that [Ms A]’s sister would not have attended [Church 2] prior to attending with [Ms A]. This initially suggested to the Tribunal that there was no such journey or exposure to Christianity in 2011, and a backstory had been fabricated in order to avoid an inference being drawn that [Ms A] arrived in Australia and then started attending Christian Church services (and becoming baptised) solely to obtain a protection visa.
117. However, upon mature reflection, it is possible that there is truth to the fact that [Ms A]’s sister was friends with [Ms D] and that her sister had some involvement with [Church 1] through her friendship with Ms [D]. It is also possible that the prayers of Ms [D] and fellow worshippers brought some relief to [Ms A]’s sister and it is possible that [Ms A]’s sister would continue to attend Christian church services without being baptised if she felt that this attendance gave her some spiritual satisfaction. The fact that Ms [D] is now involved with [Church 2] instead of the [Church 1] would provide a reasonable explanation as to how [Ms A] and her sister are now involved in that particular Church.
118. [Ms A] demonstrated an understanding of what the Tribunal accepts is Christian teaching throughout her written material, delegate interview and Tribunal hearing. It is possible that this understanding was only learned to give credibility to her claims to be a genuine Christian convert from Islam to Christianity. However, it is also possible that this understanding is based on the fac that she is a genuine convert to Christianity. Given all the circumstances, the Tribunal is satisfied it is the latter. The Tribunal is not persuaded that a person would not convert to Christianity if they were a secular/cultural Muslim or would only convert to Christianity if there was some form of major crisis in their lives. [Ms A] spoke about her reasons for converting to Christianity, namely the peace it gave her, and broadly speaking, the fact that this type of religion (for her) saw God in a positive and loving light, rather than a negative light and someone who punishes people. There is nothing inherently incredulous about [Ms A]’s narrative about her journey to Christianity. Further, [Ms A] has continued to be involved in Christian activity in Australia at the time of the Tribunal hearings. While it is possible that she only continued to do so to lend credibility to the genuineness of her claimed conversion, it is also possible that she continued to do so because she is a genuine convert to Christianity.
119. The Tribunal’s concern about the timing of the protection visa application were adequately addressed by [Ms A] in her oral evidence. She spoke of attending church out of curiosity and because she had been invited to do so. She also detailed that she applied for a second visitor visa because the purpose of her stay in Australia was to see more of the country and spend time with her sister. It appears that this time in Australia gave her the opportunity to develop her initial exposure to Christianity from an initial interest to that of a committed follower. It would appear that any fear of return to Iran only arose after the applicant became baptised in November 2019 and following a conversation with her husband and fellow Church members. The reason for the delay in applying for protection was adequately explained.
120. In the event that [Ms A] was required to return to Iran, she would do so as a genuine Christian convert. The Tribunal notes the DFAT report that established Christian churches exist in Iran, but that Iran authorities conduct identity checks concerning those in attendance. Given [Ms A] was born into a Shi’a Muslim household, the Tribunal is satisfied that [Ms A] would be easily identified as a Christian-convert if she attended any registered Christian church. Further, the Tribunal is satisfied that if she decided not to attend a registered Christian church in Iran, she would not do so for fear of being identified to the authorities. Noting the ban of ‘proselytization’ in Iran, it is hard to imagine that [Ms A] would engage in this activity even if she desired to do so. The Tribunal is satisfied that [Ms A] would probably not engage in this sort of activity sharing her beliefs given that there would be a risk that she would come to the attention of the Iranian authorities if she did so. She would therefore need to hide or modify her behaviour in order to avoid any harm.
121. If [Ms A] decided to try and find an ‘unrecognised Christian group house Church’ in order to practice her Christianity she would do so in an environment where house churches are seen as a threat to national security and are periodically raided by the Iran authorities. The Tribunal notes that long sentences have been handed down by the judiciary in relation to house church activities as detailed in the DFAT report.
122. While the DFAT report notes that ‘despite occasional arrests and prosecutions, authorities do not actively search for Christian converts’ the same report details instances of such arrests and prosecution in 2017. The DFAT report notes that ‘local sources were not aware of Christian converts being executed for apostasy in recent times and that the risk of execution of apostasy is low.’ However, that does not mean that the risk is remote.
123. The DFAT report notes 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 also assesses that Christian converts face a high risk of society discrimination in the event that their conversion becomes widely known. The Tribunal is satisfied that [Ms A] would only be able to avoid the high risk of arrest, prosecution, imprisonment, or societal discrimination by hiding the fact that she is a genuine convert to Christianity. She would be required to modify her behaviour, which would be unreasonable in the circumstances. The Tribunal also accepts on the basis of the DFAT report that [Ms A]’s conversion to Christianity (if discovered) may be seen through a political lens as a challenge to the Iranian authorities. The Tribunal contrasts this risk to the risk of execution that [Ms A] claimed she would face in Iran. The Tribunal is not satisfied that there is a real risk of that occurring, noting the DFAT report does not suggest that
124. The Tribunal is satisfied that arrest, prosecution and imprisonment would constitute serious harm in these circumstances.
125. The Tribunal is satisfied that there is a real risk of the type of serious harm (as described above) to [Ms A] in Iran due to her conversion to Christianity and the integers that arise from that conversion.
[Miss B]’s claims about inability to access medical treatment for her diabetes
126. Although the protection visa application form makes it clear that [Miss B] was not raising any protection claims, in the course of the delegate interview and the review application it was suggested that [Miss B] would not be able to get the required medical assistance she needed for her diabetes in Iran.
127. While sufferers of diabetes may be considered a ‘particular social group’ no independent or corroborative evidence was provided to the Tribunal to suggest that any medical treatment (if available) would be denied to [Miss B] for discriminatory reasons to enliven the ‘refugee’ protection grounds. The claim (if it was one) amounted to nothing more than an observation that [Miss B]’s medical condition may not be catered for in Iran and contrasted the Australian health system with that of Iran.
128. There is no merit in this claim and the Tribunal is not satisfied that [Miss B] meets the requirements of s 36(2)(a) on the basis that she suffers with diabetes.
129. In terms of looking at [Miss B]’s diabetes through the lense of complementary protection, the claim (if it was one) amounted to nothing more than saying harm will happen to her in the event that she does not receive medical treatment for her diabetes. That is not the statutory requirement for s 36(2)(aa).
130. There is no merit in this claim and the Tribunal is not satisfied that [Miss B] meets the requirements of s 36(aa) on the basis that there is a possibility that she may suffer ‘harm’ (broadly speaking) in the event that she does not receive medical treatment for her diabetes.
[Ms A]’s sister in Australia
131. It was suggested in the migration agent’s written submission, and by [Ms A] at the Tribunal hearing, that in the event that [Ms A] was required to return to Iran, there would be no one to look after her sister. How this was relevant to the protection claims was not identified to the Tribunal. How this related to s 36(a) or (aa) of the Act was not addressed by the migration agent in the submission. The migration agent’s submission asked the Tribunal to consider this without identifying how this fact (which the Tribunal accepts would occur) engaged Australia’s protection obligations.
132. The Tribunal is not satisfied that there is a real chance of serious harm to [Ms A] in Iran due to her race, religion, nationality, membership of a particular social group or political opinion due to her Australia being left in Australia without anyone to care for her, nor does the Tribunal accept that there are substantial grounds to believe that as a necessary and foreseeable consequence of [Ms A]’s removal from Australia to Iran there is a real risk of significant harm to [Ms A] on the basis that her sister would be in Australia without anyone to care for her. The submission should not have been made.
[Ms A]
Refugee
133. For the reasons given above, the Tribunal is satisfied that there is a real chance [Ms A] will suffer serious harm in Iran due to her religion, membership of a particular social group (being Christian converts/people considered apostates) or political opinion (imputed due to her conversion to Christianity/people considered apostates).
134. Therefore, [Ms A] is owed protection obligations under s 36(2)(a) of the Act.
Complementary protection
135. As [Ms A] meets the requirements for protection under s 36(2)(a), she cannot meet the requirements of s 36(2)(aa) because complementary protection obligations only arise for a person other than a non-citizen mentioned in s 36(2)(a) of the Act.
136. Therefore, [Ms A] is not owed protection obligations under s 36(2)(aa) of the Act.
Member of the same family unit
137. [Ms A] did not claim to be a member of the same family unit as a person who meets s 36(2)(a) or (aa) and holds a protection visa.
138. Thefore, [Ms A] is not a person who satisfies s 36(2)(b) or (c).
[Miss B]
Refugee
139. For the reasons given above, the Tribunal is not satisfied that there is a real chance [Miss B] will suffer serious harm in Iran due to her race, religion, nationality, membership of a particular social group, or political opinion.
140. Therefore, [Miss B] is not a person who is owed protection obligations under s 36(2)(a) of the Act.
Complementary protection
141. For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [Miss B]’s removal from Australia to Iran, there is a real chance she will suffer significant harm.
142. Therefore, [Miss B] is not a person who is owed protection obligations under s 36(2)(aa) of the Act.
Member of the same family unit
143. For the reasons given above, the Tribunal is satisfied that [Miss B] is a member of the same family unit as a person who meets s 36(2)(a) and therefore [Miss B] meets the requirements of s 36(2)(b)(i).
DECISION
144. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy the above sections of the Migration Act.
Nathan Goetz
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.
…

[2022] AATA 2762

22 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Standing

Statutory Construction