2017560 (Refugee)

2017560 (Refugee) [2024] AATA 1581 (21 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Hassan Izadnia (MARN: 1571846)
CASE NUMBER:  2017560
COUNTRY OF REFERENCE:                   Iran
MEMBER:Paul Noonan
DATE:21 February 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 21 February 2024 at 2.57pm

CATCHWORDS
REFUGEE – protection visa – Iran – arrival by sea – not ‘unauthorised maritime arrival’ or ‘fast-track applicant’ as defined and refusal reviewable by tribunal – religion – reluctant or non-practicing Muslim from strict family converted to Christianity in Australia – baptism, regular attendance and activities at different churches successively – political opinion – no political involvement and low participation in protests in home country – attendance at protests in Australia – social media posts – returned failed asylum seeker – economic conditions – Australian citizen wife and child – bar on applying for partner visa – inconsistent claims and evidence – relationship with father, payment for journey and regular remittances – low church engagement and understanding, and sole purpose of strengthening claim – recent and limited social media activity – supporting statements outweighed by other evidence – country information – no routine investigation of returnees with no adverse profile – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AA, 5H(1)(a), 5J(1), (6), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
DBB16 v MIBP (2018) 260 FCR 447
GLD18 v MHA [2020] FCAFC 2
MIAC v SZQRB [2013] FCAFC 33

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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 December 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Iran, applied for the visa on 3 August 2020.
The delegate refused to grant the visa on the basis that he had converted to Christianity from Islam for the sole purpose of strengthening his claims for protection and that he had not made a genuine and true conversion to Christianity. Further that no one in Iran, including his father, was aware of his Christian activity in Australia. That, while he may hold views critical of the Iranian authorities, he had not participated in any political activities that would bring him to the adverse attention of the authorities. The delegate considered, on the basis of the applicant’s accepted profile, and relevant country information, that there is no real chance that he will be persecuted upon his return to Iran for reason of his Christian activity in Australia, his non-practising Muslim status, as a failed asylum seeker returning from a Western country or his political opinion. The delegate also did not find that there is a real risk of significant harm to the applicant for these reasons for the same reasons found under the real chance test applying to refugee considerations. In addition, that the applicant’s claim of significant harm due to economic hardship in Iran would not amount to significant harm. As such the delegate concluded that the applicant was not entitled to either refugee protection or complementary protection.
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] May 2013. In DBB16 v MIBP (2018) 260 FCR 447 (DDB16), the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Act. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a Temporary Protection visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal. On 10 July 2020 the applicant was notified the application for a Temporary Protection (Subclass 785) visa was invalid as he was affected by the DDB16 judgement.
The applicant was re-notified of their Part 7 review rights by the Department on 24 July 2020 and made a valid application for review within the prescribed period on 3 August 2020.
As such the Department has recently reconsidered the first application as valid. As this earlier Temporary Protection visa application was not decided at the time the second application was lodged, the Temporary Protection (XD785) application subject to this review can be considered valid. The Tribunal advised the applicant that it will be considering all claims for protection that he makes to the Tribunal.
The applicant appeared before the Tribunal on 20 December 2023 to give evidence and present arguments. For the purposes of his appeal the applicant supplied the Tribunal with a copy of the delegate’s decision. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review by Mr Hassan Izadnia. Mr Izadnia attended the Tribunal hearing.
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 (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.
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.
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.
Country of nationality
The applicant has consistently stated in this matter that a people smuggler took his passport when he was en route to Australia and he never received it back. He provided the delegate with certified copies of his Iranian birth certificate, national identity card, Iranian driver’s licence and Iranian military service exemption card. All documents have a photo of the applicant and copies are retained on the Department file. He has at all times stated that he is a citizen of Iran and he has been assessed on that basis by the Department. The Tribunal finds that the applicant is an Iranian citizen and has assessed his claims against Iran as the country of nationality and the receiving country.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is owed protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Case history
It has been consistently asserted by the applicant that he was born in Tehran. That his religion is Shia Islam. That his ethnicity is Azeri Turk and that he has completed a degree in [Subject] at [University] in Qazvin. The Tribunal accepts these claims.
The applicant was interviewed by the Department on 17 May 2013, following his arrival into Australia. He was asked why he left Iran and came to Australia. As set out in the delegate’s decision the applicant (in summary) is recorded as stating that he came to Australia to find better economic and work opportunities and that his father had paid for his trip to Australia. He stated that he had never been involved in politics in Iran or undertaken any form of protest or other activities against the Iranian authorities. This recounting of the interview is not disputed by the applicant.
In his 2017 protection application the applicant stated (in summary) that he experienced tension with his parents because he did not practise a religion in Iran. After finishing school he decided to find a better life overseas. After being in Australia for a few months he was invited to start attending [Church 1] and proceeded to do so on a weekly basis. He learnt the religion by reading [Church 1 book] and from the church teachings. He was baptised [in] August 2014. He stated that he has been rejected by his parents because he converted. He believes it is his duty to proselytise for [Church 1]. He now fears that he will be persecuted in Iran for apostasy.
In his 2020 protection application the applicant (in summary) stated that he had now realised that there are flaws in [Church 1] and he had decided to join the Farsi congregation of [Church 2]. He attends services regularly and also attends Bible classes on Tuesdays. He undertakes some volunteer work for the church and will be baptised again when the pandemic allows.
The applicant was interview by the delegate on 9 October 2020. The applicant stated (in summary) that his parents had not supported his journey to Australia and he had paid for the journey using his own money. When questioned why he had used his father’s account and chequebook he stated that it was because he was too young to have a chequebook. In Iran he was forced to undertake religious duties but as soon as he arrived in Australia he effectively stopped practising Islam. He was not an atheist. In early 2014 he went to a [Church 1] at the behest of missionaries and was welcomed. He did not really understand proceedings due to his poor English. At that time a friend gave him a Farsi Bible and told him it was the same as [Church 1] used and he grew his understanding that way. Eventually, after several years as a member of [Church 1], he split with them after having a confrontation with them because he was living with his girlfriend, which [Church 1] did not allow. Further his girlfriend told him she disagreed with [Church 1’s] rules. He has since been active with the Farsi church. He fears his father, who is a fanatical Shia Muslim, and has threatened and disowned him for reason of his conversion, may have reported his conversion to the authorities. He stated that his brother in Iran has told him that people from the intelligence ministry came to their home looking for him. He has attended four protests in Australia against the Iranian authorities but did not know who organised these events.
The delegate set out the following concerns (in summary) to the applicant:
·It was difficult to understand his spiritual journey from a person with no interest in religion to a follower of [Church 1] and [Church 2] which are also quite restrictive and prescriptive when this was what he had stated he was against with respect to Islam. Even after being disappointed with [Church 1] he had immediately joined [Church 2]. The delegate noted that this history might lead to the conclusion that the applicant’s conversion and participation in these churches was undertaken purely for the purposes of strengthening his protection application.
·That the applicant had no history of active proselytising, which may indicate he would not seek to do so in Iran.
·That he had not mentioned disapproval or threats from his father in his written statements prior to the interview, or a claimed visit from intelligence services looking for him, which may indicate his claim the authorities are looking for him is not credible.
·That, in his 2013 entry interview, he had stated that his father had paid for his trip to Australia, which may lead to a conclusion that his later claim that his father had disapproved of his trip and disowned him was not credible.
In response to the delegate’s concerns the applicant stated that he had only provided brief details of his claim at his entry interview; he believes the interpretation was not accurate and he sought to clarify that he had put his own money in his father’s cheque account so his father did not question it when he used the chequebook to pay for his trip to Australia and as such he had paid for his own trip.
The applicant’s representative also submitted a response post interview to the delegate setting out details of the applicant’s father having appeared on Iranian national television [in] 2019 and [in] 2020 about [deleted].
On 14 October 2020 the delegate sent the applicant a natural justice letter which advised him that there was unfavourable information before the Department which reflects that the applicant remitted funds to his father’s bank account between September 2013 and September 2020, including a substantial amount of $5,700 in 2015. Also, that he had listed his father as an emergency contact at his arrival interview. The delegate set out that this may lead to a finding that he had exaggerated the deterioration in his relationship with his father and the claimed threat from his father was not credible.
On 26 October 2020 the applicant’s representative responded that the applicant provided his father’s details as he was the person of authority in the family. The applicant sent money to his father because his mother was ill. The applicant’s father will not tolerate the applicant’s conversion and he will have to hide himself from his father. The applicant remains fearful of the Iranian authorities for committing political and religious offences.
The applicant submitted various documents to the delegate in support of his application which are set out in the delegate’s decision, retained on the Department file and to which the Tribunal has had regard.
Prior to the Tribunal hearing the applicant submitted written submissions, religious and political protest social media posts, witness written submissions, photos he has taken at Australian based protests, an Australian marriage certificate reflecting his marriage to an Australian citizen [in] 2021 and an Australian birth certificate reflecting the birth of his first child on [Date]. The Tribunal accepts the applicant’s evidence that he has a bar on applying for a partner visa while in Australia due to his unauthorised arrival in Australia.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50%: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The Tribunal hearing
Claim – fear of persecution due to charges of apostasy and Christian practice
The Tribunal asked the applicant to give evidence about his religious upbringing. The applicant described a heavily religious and restrictive family upbringing in Tehran. He stated that he came to Australia to escape the ‘swamp of religion and political issues’. He resented his religious upbringing including being forced to pray at five in the morning and fast. He characterised his family environment as miserable.
The applicant informed the Tribunal that he travelled to Australia as a non-practising Muslim. He confirmed that he exited Iran through the main airport in Tehran using a legally issued Iranian passport. He described how, after arriving in Australia, he was introduced to [Church 1] by missionaries. He enjoyed the experience. The Tribunal discussed the delegate’s concern, which it stated it may also have, that it may appear implausible that he would seek to engage with [Church 1] so soon after spending his life railing against the restrictions imposed on him by Islam. The applicant responded that he was depressed and as such amenable to [Church 1’s] approach as a means to lessen his feelings of loneliness. When asked again if he had doubts about embracing another potentially restrictive religion the applicant stated that Australia is a free country so he felt able to make his own choices. He did not know about the different Christian denominations and just believed in the Bible. It was only after being given a Farsi Bible in 2014 that he began to understand the differences.
He stated that he had been baptised as, even though he was having difficulty understanding [Church 1] practices, he was just motivated to become Christian. He agreed that eventually he had left [Church 1] because of the issue with his girlfriend, (who is now his wife), and after she had explained about the restrictive beliefs of [Church 1] with respect to relationships.
After leaving [Church 1] he searched for a Persian church and joined the Farsi [Church 2] in 2017. He stated that he had been baptised again recently as a member of a further church being [Iranian Church 3]. When asked why he felt the need to be baptised again the applicant stated that he did not know but the priest had told him the [Church 1] baptism was not acceptable so he had done it again.
The applicant confirmed to the Tribunal that he fears the death penalty from the Iranian authorities because of photos of him on social media practising and exposing Christianity. Further that he will not be able to practise Christianity in the manner he wishes in Iran because of the same risk.
The Tribunal put to the applicant, with respect to his claimed conversion to Christianity in Australia, that s 5J(6) provides that 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 in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.

The Tribunal put to the applicant, with respect to s 5J(6), that it has concerns with respect to this claim for the following reasons.
Firstly, and as discussed, the delegate’s decision sets out evidence that he had been remitting money to his father’s bank account right up until 2020. The Tribunal noted that this could plausibly reflect the applicant had not fallen out with his father due to his claimed conversion to Christianity as he claims. The applicant stated that in 2015 he had remitted money for his mother’s medical treatment. The Tribunal accepts that the applicant’s mother was ill at this time based on medical records submitted. However, the applicant was remitting money from 2013 up until 2020 to his father. Given this, the Tribunal considers that it is far more plausible that, if the applicant’s father had disowned the applicant because of his baptism and conversion to Christianity in 2014, and relations were so poor due to the religious conversion claim that he fears he has been reported to the Iranian authorities by his father, there would not be an ongoing exchange of money through the applicant’s father’s bank account. It is far more plausible, in the Tribunal’s view, that the applicant’s ongoing remittal of money to his father reflects an ongoing cordial relationship. The Tribunal therefore does not accept that the applicant has fallen out with his father or that his father is aware of the applicant’s claimed conversion to Christianity in Australia or has informed the Iranian authorities of this. It is far more plausible that the applicant has not mentioned his Christian activity to his father because he has only been undertaking this activity for the purpose of furthering his claim to be a refugee.
Secondly, and as discussed, the Tribunal has serious concerns as to the plausibility of the applicant’s story of his conversion to Christianity and level of engagement thereafter. This is because of the following reasons:
·Firstly, the applicant has asserted that he resented the restrictions and requirements placed upon him by Islam in Iran and this was a key driver behind his decision to migrate to Australia. His explanation that he quickly joined another restrictive religion such as [Church 1] due to feelings of loneliness is implausible in the face of such strong feelings about the restrictiveness of his prior religion. The Tribunal would expect the applicant would seek to fully educate and engage himself in his new religion to ensure that there was no reprisal of all that he previously considered abhorrent. However, the applicant’s evidence reflects a very loose engagement with [Church 1] for many years. He did not really understand what was going on due to language barriers and did not understand core tenets of their faith which eventually led to a complete breakdown in his relations with them when he realised how restrictive they actually were, with respect to his relationship with his girlfriend. The Tribunal considers this history strongly reflects the applicant sought to engage with [Church 1], and Christianity more generally, for the sole purpose of strengthening his claims to be a refugee rather than through any desire to embrace the religion.
·The Tribunal has considered [Church 3]’s Reverend [A]’s written submission on 8 December 2023, which was reemphasised in written submissions by the applicant’s representative post hearing, that many Iranian converts do not prioritise denominational differences when choosing a church and the central importance lies in believing in the Bible and Jesus. Reverend [A] stated that the applicant had soon realised [Church 1] were not teaching Christian doctrine and after a couple of conversations he is scheduled to receive a baptism. The Tribunal does not accept that the applicant soon realised [Church 1] were not right for him. He was a member of [Church 1] for several years and did not seek to engage or clearly understand core tenets of their faith as reflected in his surprise about events surrounding his relationship with his girlfriend. The Tribunal rejects the submission that this was due to language barriers. The Tribunal also rejects the assertion that the applicant did not prioritise the denomination as a reasonably plausible explanation for his low level of engagement. The Tribunal would expect that a person intent on adopting a new religion would find means to understand the core tenets of his chosen religious denomination, which the applicant made no attempt to do. It is far more probable that he casually engaged with [Church 1] for many years without any real intent of understanding the denomination and associated religion, or participating genuinely with the religion, solely for the purpose of strengthening his refugee claim. He then swapped to the Farsi church, despite again having a poor experience with religion and then again to [Church 3]. This causes the Tribunal to consider, as discussed, that he was largely window shopping for a religion for the purpose of strengthening his refugee claim.
·Secondly, and as discussed, there is scant evidence of the applicant actively proselytising or engaging in a fervent or highly engaged manner with the various Christian denominations he has joined. As put to the applicant, the evidence he submitted with respect to his religious social media posts made to [Social media] appear recent, sporadic, general in nature and limited to only around nine individual posts to [Social media] in total. Further, despite the applicant asserting that his proselytising demonstrated the genuine nature of his conversion, he did not provide compelling witness statements setting out his claimed active proselytising, which the Tribunal would expect would be readily available if it were so. The Tribunal has noted Reverend [A]’s and Pastor [B]’s of the Farsi church written opinions that the applicant is a genuine convert and the various letters of support asserting as to his good character. However, these opinions are outweighed, in the Tribunal’s view, by the evidence otherwise, with respect to his low level of engagement in the various Christian denominations, as set out above.
The above concerns cumulatively cause the Tribunal to conclude that the applicant has not genuinely converted to Christianity in any denominated form and rather that he has pursued a path of conversion in Australia through several different Christian denominations, solely for the purpose of strengthening his claim to be a refugee. Accordingly, this conduct must be disregarded by the Tribunal. It follows that the applicant’s claim to fear persecution in Iran due to charges of apostasy and Christian practice is not well-founded as the Tribunal is required to disregard this claim to have converted to Christianity.
Claims to fear persecution – political opinion and returning as a failed asylum seeker from the West
The Tribunal asked the applicant if he had ever participated in political protests in Iran. He stated that he had been near or attended some university demonstrations when he was studying but he had stopped going after some friends were detained by the authorities. He confirmed that he had not come to the adverse attention of the Iranian authorities for reason of his political opinion while he lived in Iran and that he had departed legally through the main airport.
The applicant submitted that he fears he will come under the adverse attention of the Iranian authorities for this reason because he had posted critical content of the Iranian authorities on social media and because he had participated in some protests in Australia against the Iranian authorities. The Tribunal has reviewed the applicant’s evidence with respect to his claimed protest activity. The Tribunal has submitted many more recently made politically themed protest posts to [Social media] than he did with respect to religiously themed posts. He has been a reasonably prolific recent poster in this respect. With respect to the applicant’s attendance at protests the Tribunal put to him that he has not demonstrated any significant political protest activity in the past in Iran and that he had merely attended some recent protests in Australia and had not been an organiser. The applicant raised his participation in university protests in the past, in particular in Shiraz in 2009. He had not participated in other protests because of fear of the authorities.
Despite the recent nature of the applicant’s political protests the Tribunal accepts that there have been significant human rights issues arising recently in Iran from mass popular protests against the authorities that have been widely reported outside Iran.[1] The Tribunal accepts as reasonable the applicant’s submission that he was angry about these events and commenced reposting content critical of the Iranian authorities and attending some local Australian protests connected with these events not solely for the purpose of strengthening his refugee claim.
[1] DFAT Country Information Report, Iran, 24 July 2023, pp 24–25
The Tribunal put to the applicant that DFAT understands that returnees to Iran’s actions while outside of Iran (including social media posts reflecting sur place activities) are not routinely investigated by authorities. DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination.[2] The applicant asserted that Iranian agents were taking photos at the Australian demonstrations he attended and protest security took action against this and that the Iranian government has been lying and covering up their activities in this regard.
[2] Ibid p 40
The Tribunal has had regard to the recent US State Department assessment that with respect to the Iranian regime it:
continued to engage in acts of transnational repression to intimidate or exact reprisal against individuals outside of the country’s sovereign borders, including against members of diaspora populations such as political opponents, civil society activists, human rights defenders, and journalists. In its report on transnational repression released in June, Freedom House noted Iranians were among those nationalities subjected to “digital and physical transnational repression while in Turkey” and stated extraterritorial killings “have been a staple of the Iranian regime since the 1979 revolution.” Iran was listed in the report as one of six countries known to be conducting aggressive campaigns against political opponents abroad. Freedom House reported the Iranian regime had an “expansive definition of who constitutes a threat,” labeling dissidents and journalists as terrorists to justify violence and disregard for due process.
Freedom House reported the regime employs a range of tactics to exert pressure on or exact reprisal against individuals located outside Iran, which “amount to a constant barrage of harassment, intimidation, and surveillance.”
In February the BBC filed a complaint with OHCHR regarding escalating “extra-territorial threats” against journalists working for the BBC’s Persian language service and their families, both in Britain and other countries. The complaint included reports from staff members of increased harassment of family members in Iran, increased financial pressure including asset freezes, increased intelligence and counterintelligence activity, and increased and continued online attacks. The BBC stated such threats from Iran had continued for more than a decade but worsened since 2021. OHCHR raised these concerns with Iran authorities in May in a communique made public in August. The BBC reported the Iranian government responded with claims that the BBC’s journalism “is aimed at ‘the overthrow of the Islamic Republic’” and complained of “hostile” coverage that had “incited riots.”
In September cybersecurity firm Mandiant released a report on APT42, an Iranian state-sponsored cyber espionage and surveillance group that employs highly targeted social engineering tactics to target civil society organizations, nonprofits and education organizations, governments, and media in at least 14 countries. The report noted that the group was believed to operate on behalf of the IRGC. In additional to spear-phishing campaigns designed to steal users’ credentials, the group was also believed to conduct surveillance operations targeting the locations and communications of “individuals of interest to the Iranian government, including activists and dissidents.”[3]
[3] Iran - United States Department of State
The above country information reflects that the Iranian authorities do now seek to identify political dissidents overseas amongst the Iranian diasporas. However, there is no suggestion in the evidence before the Tribunal, that the applicant has been so identified and targeted for harassment, intimidation or surveillance. Further the applicant is not a member of, or closely aligned with an organised political opposition group, and as such there is no basis for considering he may have been specifically identified through his level of association with such groups. The applicant gave evidence that he did not even know who organised the Australian protests that he had attended. In this instance the Tribunal places significant weight upon the also recent DFAT advice that, in general, the Iranian authorities pay little attention to failed asylum seekers on their return to Iran[4] and that in general sur place activities such as social media posts are not routinely investigated by the Iranian authorities. For this reason, the Tribunal also rejects the applicant’s assertion that the Iranian authorities have been looking for him within Iran at any stage, as the country information reflects that generally such low level sur place activity would not generate adverse attention in Iran and, if he was of adverse interest for political opinion reasons, then he would be under significant reprisal action from the Iranian authorities even while still residing overseas.
[4] DFAT Country Information Report, Iran, 24 July 2023, pp 24–25 p. 40
Overall and as discussed DFAT advises that millions of Iranians travel into and out of Iran each year without difficulty including the large Iranian diaspora residing in the West.[5] The Tribunal is satisfied that the applicant’s claimed low level political protest activity in 2009 did not generate an adverse profile with the Iranian authorities as he departed Iran legally and was not sought or apprehended by the authorities at any stage following that protest. The Tribunal is satisfied that the applicant’s low level sur place political activism will not come to the adverse attention of the Iranian authorities should he return to Iran. The Tribunal also notes that the applicant was previously circumspect in his political activities in Iran to avoid persecution and considers this reflects that he will again be so should he return there and as such will not come to the adverse attention of the Iranian authorities for reason of his political opinion either now or in the immediately foreseeable future.
[5] Ibid, p. 40
Given the above conclusions and country information the Tribunal is satisfied that there is not a real chance of serious harm to the applicant from the Iranian authorities for reason of his political opinion or as a failed asylum seeker returning from the West should he return to Iran either now or in the reasonably foreseeable future.
Claim to fear persecution – non practising Muslim
The Tribunal accepts that the applicant is a non-practising Muslim and would return to Iran as such. The Tribunal discussed with the applicant that DFAT assesses that non-practising Iranian Muslims face a low risk of official and societal discrimination, particularly in the major cities.[6] Further that many younger and wealthier Iranians are secular, a majority of the population does not attend mosque and a study reflects that around 20% of the population do not believe in God.[7] The Tribunal put to the applicant that, as a person returning to the largest city in Iran, Tehran, country information reflects that he will not come to the adverse attention of the authorities for this reason. The applicant simply asserted that he would be returning as a Christian and so would be targeted for persecution.
[6] Ibid, p. 23
[7] Ibid p.23
Given the above conclusions and country information the Tribunal is satisfied that there is not a real chance of serious harm to the applicant from the Iranian authorities for reason of him being a non-practising Muslim should he return to Iran either now or in the reasonably foreseeable future.
Claim to fear persecution – the poor state of the Iranian economy
The applicant stated that this reason now only constitutes a small reason for why he does not want to leave Australia and return to Iran, despite the fact this was the reason he initially gave in his entry interview for leaving Iran. The Tribunal accepts that the applicant wishes to remain in Australia because he has been able to find employment in Australia and can, in his view, earn more money in Australia, and the poorer earnings available in Iran will cause him harm. At the hearing, the Tribunal put to the applicant that such economic harm would not appear to be directed at him for reasons related to the purposes of the refugee assessment. The applicant stated that economically he is now very well off in Australia. If he is arrested he will not be able to use this financial strength in Iran.
The Tribunal finds the economic harm feared by the applicant is not for the essential and significant reason of his race, religion, nationality, membership of a particular social group or political opinion. Therefore, he does not meet the criteria set out in s 5J(1)(a) of the Act.
The applicant confirmed that he had no other reason for fearing persecution, should he be required to return to Iran.
Complementary protection considerations
Political opinion, non-practising Muslim, failed asylum seeker from the West
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Iran, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[8] It follows that there is also no real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Iran, for reason of his claims related to his political opinion and his status as a non-practising Muslim and his status as a failed asylum seeker returning from the West.
Christian practice in Australia
[8] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa) for reason of his Christian practice in Australia, the Tribunal considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that he will suffer significant harm. ‘Significant harm’ is exclusively defined in s 36(2A), as follows:
(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.

The Tribunal accepts that the applicant has been baptised as part of Christian religious ceremonies. The Tribunal accepts that the applicant has been a regular attendee at Christian churches for many years. The Tribunal has found that this behaviour was undertaken for the sole purpose of strengthening his refugee claim. As such the Tribunal does not accept that the applicant will continue to practise Christianity or proselytise Christianity should he be required to return to Iran.
DFAT assesses that converts to Christianity risk arrest and detention if their conversion is revealed. Christian converts also 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. Those who convert while outside Iran and who intend to continue to practise their Christian religion would face a high level of official discrimination and could be subject to the death penalty.[9] The Tribunal has already concluded that the applicant’s family in Iran remain unaware of his Christian activities in Australia as reflected by their ongoing cordial relationship.
[9] Ibid, p 21
The Tribunal has concluded that the applicant has not genuinely converted to Christianity as his activity in this regard was undertaken for the sole purpose of furthering his claim to be a refugee. As noted above DFAT assesses that social media posts reflecting sur place activities are not routinely investigated by the Iranian authorities. As also noted above DFAT assesses that millions of Iranians travel in and out of Iran each year. Given the applicant’s assessed profile, and this country information, the Tribunal does not consider that it has substantial grounds for believing, that as a necessary and foreseeable consequence of him being removed from Australia to Iran, there is a real risk that the applicant will come to the adverse attention of the Iranian authorities, or anyone else, such that he will suffer significant harm, for reason of his Christian activities and associated limited religiously themed social media posts undertaken while in Australia, should he be required to return to Iran.
The poor state of the Iranian economy
As discussed with the applicant at hearing, the Australian courts have held that complementary protection obligations are concerned with intentional acts or omissions by third persons.[10] The applicant made no substantive submissions with respect to this issue.
[10] GLD18 v MHA [2020] FCAFC 2.
The Tribunal accepts that the economic situation in a country has differing impacts on different people according to their circumstances. However, the applicant does not suggest that any economic harm he might suffer in Iran would arise from the intentional or deliberate act or omission of a third person or persons such that it could constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, degrading treatment or punishment or torture. Nor is it suggested that the death penalty will be carried out upon him.
For these reasons, the Tribunal does not accept that any economic harm to which the applicant may be subjected if returned to Iran would meet the definition of ‘significant harm’, as that term is exclusively defined in s 36(2A).
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Noonan
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.
…

[2024] AATA 1581

21 February 2024

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