2103091 (Refugee)

[2024] AATA 2174

2103091 (Refugee) [2024] AATA 2174 (22 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Miss Mary O'Callaghan

CASE NUMBER:  2103091

COUNTRY OF REFERENCE:                   Iran

MEMBER:Jessica McLeod

DATE:22 March 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 22 March 2024 at 12.09pm

CATCHWORDS
REFUGEE – protection visa – Iran – arrival by sea with members of family unit wife and two children – not unauthorised maritime arrivals and fast track applicants as defined – second application made after birth of third child – fourth child born after delegate’s decision not an applicant – ethnicity – original claim as stateless Faili Kurds retracted – advised by people smugglers – Iranian Kurds – accused of stealing from workplace, fired and interrogated – no charge, unhindered departure and no independent evidence of adverse interest – religion – non-committed Muslims converted to Christianity in Australia – attendance, baptism and activities and development of commitment – some claims and evidence embellished – supporting statements and photos – genuine conversion not for purpose of strengthening claims – political opinion – second applicant’s online activism in women’s movement – family questioned – gender – wife and daughters – length of residence, westernised lifestyles and mental health, and children’s language – country information – religious conversions not recognised – modification of behaviour not reasonable, effective protection measures not available and chance of harm relates to all areas – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5AA, 5(1), 5H(1)(a), 5J(1), 36(2)(a), 65, 91K
Migration Regulations 1994 (Cth), r 2.08(1)(b)

CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 (2021) 285 FCR 667

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 March 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants claim to be citizens of Iran. They are part of a family group comprised of Applicant 1 (the applicant husband), Applicant 2 (the applicant wife) and Applicants 3, 4 and 5 (the applicant children). There is also a fourth child in the family born in [Year] who is not an applicant in this review.[1]

   [1] As the fourth child of the family was born in [Year], after the primary decision was made in 2021, there is no deemed visa application for him and reg. 2.08(1)(b) is not satisfied. The Tribunal does not have jurisdiction in respect of this child.

3. According to Departmental records, Applicants 1 ,2, 3 and 4 arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] February 2013. Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447, the applicants are not deemed to be ‘unauthorised maritime arrivals’ (as was defined in s 5AA of the Act) due to this arrival method. Accordingly, the applicants are not ‘fast track applicants’ (as defined in s 5(1)) and the subsequent decision to refuse to grant the applicants Safe Haven Enterprise visas is not a ‘fast track decision’ (as defined in s 5(1)). Instead, it is a Part 7-reviewable decision able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411.

4. Applicants 1, 2, 3 and 4 lodged a protection visa application on 8 June 2017. While this was initially declared invalid due to the effect of s 91K of the Act, due to the Full Federal Court’s ruling in MICMSMA v CBW20 (2021) 285 FCR 667, the applicants were notified that their application had been reassessed as valid. However, prior to this, the family lodged another SHEV application which included Applicant 5, who was born in Australia in 2018. This is the application that was considered by the delegate and in respect to which the delegate refused the grant of visas to Applicants 1, 2, 3, 4, and 5 on 1 March 2021.

5. With respect to Applicant 5, who was born in Australia in [Year], by operation of r 2.08 of the Migration Regulations 1994 (Cth) (the Regulations), she is taken to have applied for the same visa and her application is taken to be combined with that of her parents.[2]  She is a subject of the primary decision and she is included in this application for review, which the family lodged with the Tribunal, within the prescribed period on 11 March 2021.

   [2] The delegate’s decision record erroneously states that Applicants 2, 3, 4 and 5 arrived in Australia on [date]/09/2020 however that is not their date of arrival, but rather, the date their PV application was lodged.

6. The applicants were all invited to appear in a hearing before the Tribunal on 26 February 2024 to give evidence and present arguments. Applicants 1 and 2 attended the hearing, supported by their legal representative. During the hearing, which was conducted with the assistance of an interpreter in the Persian and English languages, the Tribunal heard evidence from Applicants 1 and 2 individually as well as together. The applicants’ church Pastor also attended part of the hearing and gave evidence on their behalf. The applicants’ representative also gave oral submissions.

   CRITERIA FOR A PROTECTION VISA

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

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

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

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

11. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

12. The issues in this review, therefore are whether there is a real chance that the applicants would be persecuted for a s.5J(1)(a) reason if they returned to Iran for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of their being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm for the purpose of s.36(2)(aa) of Migration Act.

    Mandatory considerations

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Identity / Nationality / Background

14. The applicants claim to be Iranian citizens of Kurdish ethnicity. Apart from Applicant 5 (who was born in Australia) they claim to be from [Location] in Ilam Province, Iran.

15. Initially, in their Entry Interviews conducted a few weeks after their arrival, Applicants 1 and 2 claimed that they and their children were stateless, undocumented Faili Kurds. They later advised this to be false, along with some other incorrect information about their backgrounds and experiences in Iran which had flowed from their statelessness claim. They provided documentation evidencing their and Applicants 3 and 4’s Iranian nationality[3]as well as corrected background and personal histories. When asked about their retracted claims in their protection visa interview and Tribunal hearings, Applicant 1 explained that he and Applicant 2 had initially lied to Australian authorities about being undocumented on the advice of the people smugglers (who had taken the family’s passports) and others on the boat who on observing their Kurdish ethnicity, suggested they claim to be undocumented. They were also scared and feared that if they provided their genuine documents, information about them could reach the Iranian authorities. I accept this explanation and I do not consider that the initial falsification adversely impacts their overall credibility or casts doubt upon the other evidence they have provided of their identity and nationality, or protection claims.

    [3] The documentary evidence included (1) birth certificates for Applicants 1, 2, 3, and 4; (2) Iranian National Identity Cards and marriage certificate for Applicants 1 and 2; (3) an Iranian Driver’s Licence and Military Service Completion Card for Applicant 1.

16. I place weight on the documentary evidence now provided, their Kurdish and Farsi language skills demonstrated in their various Departmental interviews and Tribunal hearing, and the updated evidence Applicants 1 and 2 have provided as to their biographical narratives and backgrounds in Iran. I accept that Applicants 1, 2, 3, and 4 are Iranian citizens of Kurdish ethnicity from Ilam province in Iran. Applicant 5 was born in Australia[4] but as children born to Iranian fathers generally acquire citizenship at birth regardless of where they were born[5] and that there is no information suggesting she would not have acquired Iranian nationality in this manner, I also accept Applicant 5 is an Iranian citizen.

    [4] Applicant 5’s Australian birth certificate has been provided.

    [5] Australian Department of Foreign Affairs and Trade (DFAT), ‘DFAT Thematic Information Report - Faili Kurds in Iraq and Iran', Department of Foreign Affairs and Trade, 3 December 2014, CIS2F827D91722

17. I accept their identities and nationalities and ethnicity are as claimed. I find that Iran is their receiving country for the purpose of this assessment.

    Protection claims:

18. The applicants claim to fear harm from the Iranian authorities, religious groups and supporters of the current regime, who they believe will target them because of their religious conversion and commitment to Christianity since coming to Australia, their Kurdish ethnicity, their imputed anti-Iranian regime opinions stemming from the accusations of workplace theft against Applicant 1 and the family’s departure from Iran and asylum request in Australia) and actual anti-regime opinions evident through their participation in anti-regime protests and movements in Australia and Applicant 2’s online activism. They also fear being targeted and harmed for being westernised and with respect to Applicants 2, 3, 4, and 5, for gender-based reasons arising from their female gender and being women/girls from a religious and ethnic minority who transgress social and religious norms.

19. In advancing their claims and in support of them, they have provided numerous Statutory Declarations spanning before and after the delegate’s decision and as recently as January, February and March 2024. They have also provided numerous update letters from their psychologist treating Applicants 2 and 3, doctors letters regarding Applicant 1’s diabetes, numerous letters of support from their church Pastor and photographs of their youngest son’s dedication ceremony at church. They have also provided screenshots of their social media accounts in which Applicant 2 has posted messages critical of the Iranian regime and in support of the Women, Life, Freedom movement as well as photographs of herself and the family in the church environment, protests, and in non-conservative clothing and without hijab.

    Departure from Iran

20. The applicants claim that they fled Iran in 2013 after Applicant 1, [an Occupation] for [a] Company, was accused of stealing from the company leading to his being fired and targeted by the security and intelligence apparatus in Iran. The company operated under the guise and scrutiny of [Official body]. The applicants claim that Applicant 1, the only Kurd in his workgroup, was unwittingly set-up to facilitate the removal of [Products] from his workplace which resulted in him being falsely accused and scapegoated over the theft. He was fired and interrogated by security officials at his workplace, and the following morning was taken from his home, handcuffed and blindfolded and questioned for an hour before being released. Family members’ houses were also searched. Realising his predicament and believing that further action would be taken against him, he had his brother-in-law gather the family’s things and help them escape by bus to stay with his brother in Tehran. The following day, after his brother received a phone call advising him to turn Applicant 1 in, his brother suggested they should go to Australia. Applicant 2 was initially reluctant but fearing Applicant 1’s impending arrest and imprisonment and separation from the family, she agreed. Applicant 1’s brother made the arrangements with the people smugglers and bought their plane tickets to [Country]. They departed from Tehran’s Imam Khomeini International Airport (IKIA) [in] February 2013.

21. The delegate, in his decision, described Applicant 1’s claims about the workplace issue as a “conceivable narrative” and noted that his written and oral evidence was consistent overall. With some minor exceptions, I concur, and I note that Applicant 1’s evidence given in his Tribunal hearing was also generally consistent with his earlier telling of the evidence.

22. I note the delegate’s concern about the convenience of the applicants already having passports at the time this issue arose, despite not having previously travelled. The applicants’ evidence to the delegate and the Tribunal is that they had obtained the passports at an earlier time, as others in the applicant’s workplace also did, as a way to demonstrate their mindedness towards pilgrimage – because although they themselves were not religious, religiosity was valued in Applicant 1’s workplace, and it aided his trustworthiness with his boss. This was relevant especially with him being the only Kurd. They also said they wanted to visit some Kurdish sites in Iraq, though they hadn’t made any specific travel plans, or plans to finance them. In the Tribunal hearing, the applicants also clarified that they had obtained passports around a year in advance of the workplace incident, though they did also apply closer to, to apply for their daughter (Applicant 4) who was born in [Year]. I consider these to be plausible explanations in the circumstances. There is no independent evidence contradicting these claims and as I find the explanations to the plausible in the circumstances, I accept them.

23. I do, however, share the delegate’s concerns about the family’s ability to depart through IKIA on their own passports without being stopped or questioned when Applicant 1 was purportedly of interest to the intelligence and security authorities. The applicants have emphasised the short timeline of a few days between the incident and the family’s departure and Applicant 1 has also suggested that it was in the authorities and his workplace’s interest for him to flee and appear guilty. However, on the applicants’ own evidence to the Tribunal, Applicant 1 has never been charged or sentenced with anything and apart from a letter from the applicant’s sister written in 2018 (to which I give little weight), there is no independent third-party evidence supporting that the applicant was of adverse interest to the authorities when he left Iran.

24. Country information referenced by the delegate indicates that at the time the applicants’ departed, the security and intelligence authorities could, without any judicial oversight, prevent a person of interest departing by imposing a travel ban and given the ease of departure, it does not appear that one was imposed on the applicant. It is difficult to accept that the authorities’ interest in Applicant 1 was so great that they detained him and searched the houses of family members, and tracked him to Tehran where they contacted and pressured his brother to turn him in, but that they would have released him and not have taken any other official steps such as issuing any written warrants or charges, or imposing a travel ban, when it was in their power to do so. These factors indicate to me that Applicant 1 was not of adverse interest to the regime (and nor were Applicants 2, 3, and 4) at the time they departed Iran.

25. However, Applicants 1, 2, 3, and 4 have now been in Australia for over a decade and Applicant 5 has lived the first [Number] years of her life here and the nature their other claims have substantially changed and grown. It is on the basis of these other claims that I have concluded that the decision under review should be remitted for reconsideration. 

    Religious conversion claims

26. The applicants claim that they weren’t they have converted from Islam to Christianity since arriving in Australia and believe they would be arrested and harmed if they tried to practise their religious beliefs in Iran.

27. They claim that they were born Muslims and believed in God (Allah), but that Islam didn’t resonate with them. Applicant 2 felt a personal connection to God but had particular difficulties with the religious leadership within the Iranian regime and everyone being made to follow them, and to follow the strict religious rules for praying in a certain way and fasting. They both also mentioned issues around the treatment of women and not being comfortable with the Islamic regime’s application of certain aspects of Islam pertaining to women.

28. They claim their interest in Christianity developed after arriving in Australia as other people in detention were attending church. They also started attending church while in detention in [City] and after moving to Melbourne, they were introduced through a friend to [Church] in [Suburb] and have attended and been active members of the church since 2015. They were baptised there in 2016 and have often attended weekly services (including online during the COVID lockdowns) and bible studies sessions (and hosted them at their house for several years) and participated in the church’s asylum seeker group. Whilst the services are aimed towards adults and there are no specific children’s services or Sunday School, their daughters have attended some of the church services, participated in church events, engaged in some of the bible studies when it was held in their house and are being raised overall with Christian beliefs, practising certain Christian rituals at home including praying and giving thanks before meals and praying. The youngest member of the family (now [Age]) was also ‘dedicated’ in a dedication ceremony (whereby his parents promised to raise him as a Christian) in December 2023.

1. To support their claimed eight years long engagement and relationship with this church, the applicants have provided documentary evidence including baptism certificates, photographs and support letters from the Church’s Pastor (dated 21 March 2017, 30 July 2018, 16 October 2023 and 19 February 2024. The Pastor also attended the applicants’ Tribunal hearing and gave evidence on their behalf.

2. In summary, the Pastor’s letters indicate that he has known the applicants since around March 2016. He refers to the whole family, including noting their [son] who was dedicated and celebrated with the congregation on [Date]. All four letters (written when the Pastor had known the family for around one year, three years, eight years and eight and a half years) refer to the applicants attending weekly church services and hosting weekly Bible study sessions at their house. He notes their interest in Christianity progressed to being Christians at heart and Applicants 1 and 2 were baptised by him in October 2016. He states the family has the friendship, trust and respect of their church community and have shown their true character including their Christian behaviour and genuine heart through a variety of the church’s groups and environments. He considers they fully understand the meaning of Christianity and their baptism and the testimony of their beliefs have remained strong and public in the presence of the whole church.  

3. At the Tribunal hearing, the Pastor reiterated his support and belief in the applicants’ genuine conversion to Christianity and their ongoing commitment to the faith. He gave evidence consistent with his letters and said he meant every word in his letters (apart from a reference to Sunday School, which he clarified does not operate). He said it was his opinion that all the applicants are genuinely interested in Christianity and referred to their long term ongoing and consistent commitment to the church activities and church community, and to contributions the family had made in volunteering on certain projects or initiatives through the church over the years. He described them as being ‘part of us’ and described his knowledge of the children’s commitment, and how he had prayed with them and engaged them in the bible studies sessions at their home. He noted the applicants’ continued engagement and connection throughout the Covid lockdowns. He said he believed the applicants’ practise of Christianity in Iran would only be affected by the threat they would face, on account of their conversions.

4. I understand the delegate’s scepticism as to the genuineness of the applicants’ faith at the time they were interviewed by him in 2020. I share some concerns based on some of the responses given in that interview. For example, I consider that they both gave vague, confusing accounts of their favourite bible stories and somewhat superficial sounding explanations for choosing Christianity for its peace and truthfulness and because they felt lighter and as though they have been born again.

5. However, they did offer some deeper responses about why they weren’t committed to Islam, for example taking issue with retribution as punishment, the harsh penalties which can befall people under some interpretations of Shari’a law and acts of violence they believed were condoned. They also referred with conviction to how Applicant 2 had been affected in the way women and men were treated differently, putting it down to Islam and not just to the regime. Applicant 2 spoke convincingly about her morning prayer ritual in Australia and her daily reflections, and Applicant 1 spoke about feeling stressful practising Islam under the regime and the patience and acceptance he had developed applying Christian teachings learned in Australia. I am mindful too, that the applicants were unrepresented at this point and it was a long interview conducted by phone, and in the months leading up to the interview, they had only been engaging with their church via services on zoom. While I have considered that the issues and concepts they spoke of could of course be fabricated and rehearsed for interview or hearing purposes, I think in the applicants’ case that they were feelings and observations genuinely held, even at that time.

6. At the time of writing this decision in March 2024, a further three years have passed since the delegate’s interview and I have the benefit of considering multiple further statutory declarations from Applicants 1, 2, and 3 (which in part directly address the delegate’s concerns as well as other things)m their representative’s submission and other documentary evidence. I have also had the benefit of questioning Applicants 1 and 2 and their Pastor witness (who I note was not previously contacted for verification during the primary assessment stage) in a face-to-face hearing in the presence of their representative.

7. I do have some reservations about the applicants embellishing some aspects of their faith, such as Applicant 1’s strong insistence that he would outwardly evangelise to others in Iran when he does not appear to have been doing so in Australia. However, overall, I have found the claims of their conversion and ongoing commitment to be convincing, and I consider their descriptions of how they integrate Christianity into their parenting and their daily lives to be un-exaggerated and persuasive. They willingly shared their personal views and insights and were able to explain why certain tenets of the faith resonated with them. Applicant 2 has persuasively recounted instances where he has experienced the presence of Jesus including during her most recent pregnancy and in times of despair. Their account of involvement with [Church] is also consistent with the views shared by their Pastor in his evidence to the Tribunal.

8. I accept that Applicants 1 and 2 have converted to Christianity and are raising their children to be Christians. I accept they have been active, committed members of [Church] for more than eight years. I am satisfied that Applicant 1 and 2’s conduct in converting and raising their children in this way, attending services, hosting and participating in bible study groups and performing other roles within the church, has been engaged in otherwise than for the purpose of strengthening their claims to be refugees.   

9. I have accepted Applicants 1 and 2 have converted to Christianity and have been actively practising communally with their church community. I accept too, that their children (Applicants 3, 4, and 5) have little to no knowledge of Islam and are being raised to be Christians, practising Christian rituals at home. Applicants 1 and 2 have said they are leaving it to their children to decide themselves when they are old enough if they want to be baptised, and I accept this, noting their personal enmity towards their own experiences of being born into and required to adopt a particular religion, and noting too the Pastor’s evidence that the church’s services are tailored towards adult participation and that children’s baptisms are carried out but not routinely practised. Notwithstanding that they are not baptised, I accept the children are being raised with Christian beliefs and family home practise, that they children are known to the church congregation, that they enjoy attending church from time to time, that they have participated in some of the bible studies discussions and participated willingly in events within the church environment. As such, I find that Applicants 3, 4 and 4 are also practising Christians and may be perceived as converts, along with their parents. I am satisfied that they, like their parents are engaged in Christianity otherwise than for the purpose of strengthening their claims to be refugees.

10. Applicants 1 and 2 claim that if they are forced to return to Iran, they will continue practising Christianity and raising their children to too. I have considered that some aspects of their faith can be practised privately and discreetly, such as their pre-meal ritual of giving thanks with their children and Applicant 2’s morning prayers and discussion with God outside, before the other members of the family wake. As noted above, I also have some scepticism about Applicant 1’s claim that he would outwardly evangelise. However, I do accept his convictions for his faith and that he would feel some sense of obligation to share his insights with others, and that Applicants 1 and 2 would both want to be open about their faith. I accept too, that it has become central to applicants’ faith to share their practise in community with others. In the hearing they spoke of the spiritual atmosphere they felt in the church that gave them a stronger sense of higher presence. They conveyed that their physical attendance and openness with others, and being able to take communion was meaningful to them. I note too, their Pastor’s evidence that but for the threat, they would keep up their Christian faith and usual practise.

11. I accept these claims; I am satisfied that Applicants 1 and 2 hold genuine convictions and that if they were to return to Iran, they would want to engage in communal worship, openly share their beliefs and to openly raise their children with Christian beliefs and practising Christianity.

12. In assessing what would happen to the applicants on return, I have considered credible country information reports from a range of sources including DFAT, the United States (US) Department of State and the United States’ International Commission for Religious Freedom, as well as reporting cited by the applicants’ representative, and many other sources.

13. Iran’s constitution recognises Christians, Zoroastrians and Jews as religious minorities and these religious groups do have minority communities within Iran. Estimates of recognised Christians vary from around 117, 700 to up to a million.[6] The majority of Christians are ethnic Armenian and Assyrian. Chaldean and Roman Catholic communities also exist in small numbers. [7] However, DFAT notes that such recognition does not necessarily equate to tolerance. Protestant churches, like the [Church] that the applicants belong to, which follows the [protestant] doctrine) are not legal and only those born into and are members of those recognised religious groups (not converts like the applicants) may practise their faith.[8] The applicants have come to Christianity through conversion and such religious conversion has not been recognised since the 1979 Iranian revolution, including when the conversion occurs outside of Iran. A person who claims to be Christian and who cannot prove that their family was Christian before 1979, would be considered Muslim by the government and thus subject to apostasy laws.[9] This, therefore is the case for the applicants who were Muslims until they converted in Australia. They will not be allowed to join a recognised church and nor would they be welcome or permitted to practise with a recognised group. Security officials closely monitor registered churches and their congregations and perform regular identity checks on worshippers to confirm that non-Christians or converts do not participate in services. Churches that do not comply face closure.

    [6] DFAT, ‘DFAT Country Information Report: Iran’, 24 July 2023, 20230724110043​

    [7] DFAT, ‘DFAT Country Information Report: Iran’, 24 July 2023, 20230724110043​

    [8] DFAT, ‘DFAT Country Information Report: Iran’, 24 July 2023, 20230724110043​; United States (US) Department of State, ‘2022 Report on International Religious Freedom: Iran’, 15 May 2023, 20230516090011

    [9] DFAT, ‘DFAT Country Information Report: Iran’, 24 July 2023, 20230724110043​

14. Iranian Christians who are not members of recognised churches generally practise in secret and illegal underground ‘house churches’ involving small, informal gatherings of close family and friends engaging in communal prayer, bible studies and worship.[10] Numbers of house church adherents are not known due to their secrecy, but they are said to be growing. Authorities interpret the growth in house churches as a threat to national security: official reports and the media have characterised house churches as ‘illegal networks’ and ‘Zionist propaganda institutions’ and the authorities periodically carry out raids against them.[11] Congregants regularly change houses to avoid detection. Raids focus particularly on house churches that actively proselytise or seek out new members. Many raids result from tip-offs from Muslim neighbours, but some sources also report that the government sends people posing as converts to infiltrate house churches.

    [10] DFAT, ‘DFAT Country Information Report: Iran’, 24 July 2023, 20230724110043​

    [11] United States Commission on International Religious Freedom (USCIRF), Religious Propaganda in Iran', July 2022, 20220727100834; United States (US) Department of State, ‘2022 Report on International Religious Freedom: Iran’, 15 May 2023, 20230516090011; DFAT, ‘DFAT Country Information Report: Iran’, 24 July 2023, 20230724110043​

15. Accepting as I do, the applicants’ strong commitment and that they would want to engage in communal Christian worship and practise, I accept that their only apparent option would be to seek to immerse themselves in an unrecognised Christian group, which I accept may involve seeking out and joining an existing house church. There is nothing in the evidence to suggest that the applicants know any Christians in Iran (recognised or unrecognised) and as such, I accept that the act of seeking one out would necessarily involve exposure to some added risk. I accept that in seeking out others to practise with, there is a real chance the applicants will come to the adverse attention of the Iranian authorities. I note as well that two of the children (being Applicant 5 and the non-applicant youngest child) are still very young and relying on them to act discreetly even if the applicants were comfortable with that, may simply (because of their young age and comprehension of the different rules in Iran), be unrealistic, and thus add to the risk of exposure for the entire family.

16. If the applicants’ conversions and Christian practises were discovered, their conversions would not be recognised and they will be subject to apostasy laws and face the risk of arrest, detention and prosecution.[12] Apostasy is not specifically codified as a crime in Iran, but it is nonetheless a crime under Sharia law, which is enforceable under the Constitution. DFAT emphasises that while neither prison nor the death penalty are common punishments (in fact, the death penalty is rare), they are both possible under apostasy laws and if imprisoned, the sentence can be years or decades long.[13] Other potential punishments include a period of internal exile or being banned from leaving Iran for a period of time.[14]

    [12] Immigration and Refugee Board of Canada, ‘IRN200458.E - Iran: Situation and treatment of Christians by society and the authorities (2017-February 2021)', 9 March 2021, 20210330090142; Amnesty International, ‘Amnesty International Report 2022/23: The state of the world’s human rights',  27 March 2023, 20230328142801; United States Commission on International Religious Freedom (USCIRF), 'United States Commission on International Religious Freedom Annual Report 2023', 1 May 2023, 20230502165921;  Article 18, Middle East Concern, Open Doors, Christian Solidarity Worldwide, '2023 Annual Report: Rights Violations Against Christians in Iran', 19 February 2023, 20230622154640; DFAT, 'DFAT Country Information Report - Iran',  24 July 2023, 20230724110043

    [13] DFAT, ‘DFAT Country Information Report: Iran’, 24 July 2023, 20230724110043​

    [14] European Union Agency for Asylum (EUAA), ‘People convicted with religious offences’, 8 February 2023, 20230209092031; Amnesty International, 'Amnesty International Report 2022/23: The state of the world’s human rights', 27 March 2023, 20230328142801

17. Convictions solely for apostasy are possible, but very rare. However, converts can be charged under national security laws, or, following amendments to the Iranian Penal Code in February 2021, for ‘divine religions or Islamic schools of thought’ (Article 499) and committing ‘deviant educational or proselytising activity that contradicts or interferes with the sacred law of Islam’ (Article 500).[15] Arrests and prosecution of Christian coverts have been occurring in recent years, including in 2021, 2022 and 2023. According to a joint report by four Christian advocacy groups, in 2021 there were 59 arrests of Christians and in 2022, 134 Christians were arrested and 30 others were serving prison sentences.[16] Most of the 2022 prosecutions reported occurred under Article 500.[17] Some converts were released on bail, but with charges remaining in place.[18] Several more arrests were made in 2023.[19] The exact number of arrests and convictions is unknown as many cases are not made public or are unreported.[20] More broadly, according to the UN Special Rapporteur on Human Rights in Iran, the number of converts imprisoned at any time in recent years has varied from between a few dozen to around 100.[21] Sources also report that there is a lack of due process surrounding the arrest and detention of Christians. They are unlikely to have adequate legal defence, and are likely to be convicted.[22]

    [15]US Department of State, ‘2022 Report on International Religious Freedom: Iran’, 

    [16]Article 18, Open Doors, Middle East Concern, Christian Solidarity Worldwide, 'Rights Violations Against Christians in Iran - Annual Report 2021', 25 January 2022, 20220127091848; Article 18, Middle East Concern, Open Doors, Christian Solidarity Worldwide, '2023 Annual Report: Rights Violations Against Christians in Iran', 19 February 2023, 20230622154640

    [17] '2023 Annual Report: Rights Violations Against Christians in Iran', Article 18, Middle East Concern, Open Doors, Christian Solidarity Worldwide, 19 February 2023, p.3, 20230622154640; European Union Agency for Asylum (EUAA), 'EUAA COI Query Response - Iran - Situation of atheists and non-religious individuals, including legislation, treatment by state actors and society, availability of state protection', 17 November 2023, 20231121091002

    [18] European Union Agency for Asylum (EUAA), 'EUAA COI Query Response - Iran - Situation of atheists and non-religious individuals, including legislation, treatment by state actors and society, availability of state protection', 17 November 2023, 20231121091002

    [19]Article 18, ‘Over 50 Christians in five cities arrested in new crackdown’, 18 July 2023, 20230727103645; Premier Christian News, ‘At least 51 Christian converts arrested in Iran in state security clampdown’, 20 July 2023, 20230727121344; Article 18, ‘Convert flogged for second time, now faces exile’, 27 June 2023, 20230707141217; Article 18, ‘#Place2Worship campaigner released after nearly five years in prison’, 9 February 2023, 20230707141323;

    [20]Article 18, Open Doors, Middle East Concern, Christian Solidarity Worldwide, 'Rights Violations Against Christians in Iran - Annual Report 2021', 25 January 202220220127091848

    [21] Landinfo - Norwegian Country of Origin Information Centre, 'Iran: Christian converts and house churches (2) - arrests and prosecutions'29 November 2017, p.13, CISEDB50AD8641

    [22] Immigration and Refugee Board of Canada, 'IRN200458.E - Iran: Situation and treatment of Christians by society and the authorities (2017-February 2021)', 9 March 2021, 20210330090142; The Christians in Parliament All Party Parliamentary Group and the All Party Parliamentary Group for International Freedom of Religion or Belief,  'The Persecution of Christians in Iran', 1 March 2015, CISEC96CF1343

18. DFAT’s in-country sources have advised that returnees who have not had a profile previously (for example through political activism in country) are unlikely to come to attention of authorities if they keep a low profile, and that this is not affected by social media posts about their conversion that they may have made while they were in a Western country like Australia. I accept, however, that for the applicants, there are several other various factors which would be apparent on their return, including Applicant 1’s previous issue with the authorities following the workplace incident (which I accept would form part of his historical record, despite my non-acceptance that he was still wanted by them at the time of departure), Applicant 2’s online activism, their participation in the Women, Life, Freedom movement in Australia and their 10+ year stay in Australia adopting western lifestyles.

1. DFAT assesses that Christians found to be proselytising face a high risk of arrest, prosecution and imprisonment, though while Applicant 1 has claimed that he would actively evangelise, I am not persuaded of this. In any event, DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed and that they 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. The UNHRC and Special Rapporteur have also referred to there being inherent gender discrimination at all institutional levels, as well as within the law, practices and societal attitudes.[23] DFAT assesses that those who convert while outside of Iran and who intend to continue to practise their Christian religion, as I accept the applicants would, would face a high level of official discrimination and could be subject to the death penalty.

   [23] UNHRC, ‘UNHRC Report of the Special Rapporteur on the Situation of Human Rights in the Islamic Republic of Iran - A/HRC/55/62’ 9 February 2024

2. I am satisfied that Christian converts in Iran who do not modify their behaviour (by acting discreetly and secretly in their worship and maintaining a low profile) and who attend illegal house churches face more than a remote possibility of being subject to monitoring, a raid by the Iranian authorities, arrest and subsequent detention. The detention and removal of liberty in such circumstances may itself amount to serious harm, and during its course I am also satisfied they would face a real chance of being subjected to significant physical abuse. There is little information available about how child converts are treated in Iran. While the Islamic Penal Code stipulates that non-mature children have no criminal responsibility it also states that the age of maturity for girls are nine lunar years, and for boys it is fifteen lunar years.[24] It is possible, that Applicants 3 and 4 could be treated as adults and as such, I accept they face a real chance of being subject to the same treatment as their parents. Applicant 5 was only born in [Year]. Whilst she may be considered non-mature, I accept that she (along with the other applicants) faces a real chance of official and societal discrimination which would cumulatively, amount to persecutory harm.

   [24] RefWorld, ‘Iran: Islamic Penal Code (1991)’, accessed 22 March 2024 at refworld.org/legal/legislation/natlegbod/1991/en/115464; UNHRC, ‘UNHRC Report of the Special Rapporteur on the Situation of Human Rights in the Islamic Republic of Iran - A/HRC/55/62’ 9 February 2024

3. I am satisfied this real chance would arise for the applicants for expressing their religious faith by attending underground house churches or other secret Christian gatherings, and/or by openly sharing their views on their Christian faith with others in Iran. I accept they face a real chance of harm including persecutory level cumulative discrimination and/or other serious harms manifesting through significant physical harassment, significant physical ill-treatment, and a threat to their liberty. I am satisfied that this harm is systematic and discriminatory conduct carried out or condoned by the Iranian authorities against Christian converts from Islam for the essential and significant reason of their religion.

4. The country information referenced throughout indicates that an extensive network of police, security, and intelligence services exercises effective control over almost all areas of the country. As the harm feared by the applicants would be inflicted by the authorities or condoned by them, I find that effective protection measures are not available to the applicants and that the real chance of harm relates to all areas of Iran.

5. I accept the representative’s submissions about a modification of behaviour being impermissible in these circumstances; the applicants cannot reasonably be expected to renounce their religious conversion or conceal their Christian beliefs to avoid a real chance of persecution.

6. I am satisfied that the applicants’ fear of persecution on the basis of their conversion to Christianity is well-founded. I find that on this basis, all the applicants are refugees within the meaning of s 5H(1) of the Act.

   Gender based and political claims

7. Although I have already found the applicants to be refugees on religious grounds, I also consider it is worth addressing some of their other claims relating to the very particular circumstances of Applicants 2, 3, 4, and 5 which I found compelling.

8. The applicants submit that they also fear being harmed in Iran on account of their political activism in particular in support of women’s rights in Iran. Applicants 2, 3 and 4 and 5 also have fears about being women and girls in Iran, including with dimensions of intersectional discrimination, for example as women and girls who belong to religious (Christian) and ethnic (Kurdish) minorities and as women and girls in Iran who are westernised and transgress social and religious norms by not veiling amongst other things. 

9. The applicants have referred to the change in country conditions for women in Iran, as a result of the Women, Life, Freedom revolution sparked by the death of Mahsa Amini on 16 September 2022. Applicants 1 and 2 claim they participated in the Women, Life Freedom movement and anti-Iranian regime protests in Australia sparked by the death of Mahsa Amini (from September 2022), and some refugee rights protests in 2023. Applicant 2 submits that she would have been more active recently but for her pregnancy and caring for her baby, a car accident and her declining mental health, all of which has affected her ability to physically participate. She submits, however that she was active online, posting frequently about the movement and the regime on social media – up until January 2023 when she learned that her family in Iran had been questioned and threatened over her activities. She has since deleted many of her posts.

10. Applicant 2 has submitted information about restrictions upon her sisters who have remained in Iran and her concerns for her and her daughters if they do not wear the hijab. She has also posted content on social media showing her and her daughters without hijab and of her doing exercise workouts without hijab, in short-sleeved and form-fitting workout clothes.

11. Applicants 1 and 2 submit that their daughters, having grown up in Australia and adopted western mannerisms, would refuse to dress appropriately. They also note that their daughters speak little Persian and submit they would stand out as Westerners in Iran and will be targeted for it. Their daughters are aware of the Women, Life, Freedom movement and of the treatment of women and girls and they have become fearful about going to Iran.

12. Applicant 3 is [Age] years old, turning [Age] this year and she has submitted her own statutory declaration dated 5 March 2024 which I accept in its entirety. In summary, she states the following:

    a.She has grown up in Australia, having come here when she was [Age] years old. She speaks fluent English and while she knows some Persian and little Kurdish, she gets those languages mixed up with English. She cannot read or write in Persian.

    b.She referred to the schools she has attended in Australia (and I note they are co-ed Australian state schools). She loves school. She is good at [Subject] and plans to attend university to either become [occupations] (careers she does not believe she could pursue in Iran as a Kurdish girl). She is also interested in sport.

    c.In terms of her faith, she likes attending church with her family and finds learning about God interesting, though she does not attend every week. She knows that if she returns to Iran she will be forced to follow Islam and won’t have a choice in her religion. 

    d.She faces difficulties with her mental health, feeling anxious and depressed, particularly due to the uncertainty with her visa status and her future.

    e.She sees on social media, things about how woman and girls are treated in Iran. She knows about people getting killed and protestors being harmed by the authorities. She worries about the dress code and not having the freedom to speak freely in Iran. She knows she would have to wear the hijab and dress conservatively or she will be harmed. She does not want to be forced to do this. She also knows that girls in Iran do not have the right to speak their mind. She wants to stay in Australia where she does not have to change her religion and she can speak about issues that concern her freely without worrying about facing harm because of those things, or because she is a girl.

13. I have some reservations about Applicant 2’s claims that her posts have already come to the attention of the Iranian regime and that her family members in Iran have been questioned and threatened. However, I accept it is possible that the social media content came to the authorities’ attention given her husband’s previous encounter with the Ettela'at the family’s sustained absence from Iran, the nature of the content posted, and the amount posted.

14. I accept, based on their statutory declarations, photographs and social media evidence, and my discussions with them at the hearing, that Applicants 1 and 2 have engaged in the claimed demonstration activity and that Applicant 2 has posted photographs without hijab and exercising in workout clothes and anti-regime content online, including specifically in relation to women’s rights and the Women, Life, Freedom movement. I accept they have engaged in this activity out of genuine conviction for the causes and an expression of solidarity, and desperation for change, including with Applicant 2’s sisters in Iran in mind, and out of concern for conditions in Iran should they have to return. As for Applicant 2’s exercise photographs the photographs of her with her daughters without hijabs, I take into account that the applicants have been in Australia for more than 11 years and have adopted some openness as to the content shared, including sharing family photographs of excursions and significant events and sharing one’s exercise and fitness journey, as many people do While I do have some reservation about why Applicant 2 would not have been more careful with her privacy settings prior to January 2023, I nonetheless consider the posts were made in good faith, and not for the purposes of strengthening a refugee claim/s. I have no concerns about s 5J(6) and am satisfied that the applicants’ conduct in Australia need not be disregarded.

15. I accept the applicants’ concerns for Applicants 2, 3, 4 and 5 being women and girls in Iran, and women and girls from religious and ethnic minorities. The applicants’ evidence in this regard has been forthright and entirely plausible given recent events and the statutory declaration from Applicant 3 is particularly compelling. I certainly do not take the view that every Iranian woman or girl, or even every Kurdish woman or girl would necessarily face persecution on those bases only. However, given the country information discussed below, and taking into account their strong, evidenced feelings against the regime, their 11 year stay in Australia where they have grown accustomed to free expression and association and non-conservative dress and the children have little to no experience with Iran and Islamic culture and rules, and few Persian and Kurdish language skills, I accept their claims and I do not consider their concerns to be exaggerated, or that any conduct ought to be disregarded pursuant to s5J(6).

16. Although the Iranian Constitution provides for equal rights for women, a number of legal provisions discriminate against them, and they face official discrimination in law and practice as well as societally.[25]  

    [25]DFAT Country Information Report: Iran’, Department of Foreign Affairs and Trade, 24 July 2023, 20230724110043 

17. Women in Iran are subject to strict dress codes and though they may wear western fashions to an extent, they are required by law to wear the hijab and have most of their bodies (except for face, hands and feet) covered. Women that defy the dress code risk arrest, particularly during periodic crackdowns. Younger women are more likely to push the boundaries with respect to their hair coverings. Posting pictures online without the hijab (as I accept Applicant 2 did for a consistent and sustained period prior to January 2023) is considered a crime and women have been prosecuted for doing so.[26] In recent years, there have been increasing restrictions imposed on women with regard to their public appearance, including banning women from accessing services (e.g. public transportation, banks and government offices) in some cities unless they conform to the hijab laws.[27]

    [26] US Department of State, Country Reports on Human Rights Practices for 2022 - Iran, 20 March 2023, 20230321153013; Freedom House, 'Freedom on the Net 2023 - Iran', 4 October 2023, 20231005083514; Iran Human Rights Monitor, ‘Women’s removal of veil in social media images draws harsh reaction’, 21 May 2020, 20200525092633 

    [27] Iran International, ‘Iran's Raisi Orders Strict Enforcement Of Hijab Amid Crackdown’, 6 July 2022, 20221020104545; DFAT Country Information Report: Iran’, Department of Foreign Affairs and Trade, 24 July 2023, 20230724110043; UNHRC, ‘UNHRC Report of the Special Rapporteur on the Situation of Human Rights in the Islamic Republic of Iran - A/HRC/55/62’ 9 February 2024

18. High profile cases of women being killed or injured have sparked protests, most notably, under the Women, Life, Freedom movement. Sparked by the death in custody of Jina Mahsa Amini, a young Iranian-Kurdish woman, after her arrest for “improper” wearing of the hijab in Tehran, the protests began on 16 September 2022 and spread across the country, galvanising women, men and children from various ethnic, religious and socioeconomic backgrounds, based on a multitude of grievances. The protests were unprecedented because of the leadership of women and youth, in their reach and longevity and, ultimately, the State’s violent response.[28] The movement also spread globally[29] and I accept Applicants 1 and 2 participated in demonstrations in Australia and from the social media screenshots, it is also apparent that Applicant 2 posted content on social media promoting the movement and criticising the Iranian regime.

    [28] UNHRC, ‘UNHRC Report of the Independent International Fact-finding Mission on the Islamic Republic of Iran - A/HRC/55/67 (2 February 2024)’, 2 February 2024

    [29] DFAT Country Information Report: Iran’, Department of Foreign Affairs and Trade, 24 July 2023, 20230724110043 

19. UNHRC reporting[30] based on an independent fact-finding mission indicates that while the street protests have largely subsided, their effects and other forms of protest continue, together with State repression. The UN Special Rapporteur reported in February 2024 that since April 2023, the authorities have increasingly used brutal and repressive policing methods on girls and women defying the compulsory hijab laws. The morality police have not disbanded, as some reporting suggested in late 2022. Members of the authorities including members of the security forces, the judiciary and the Islamic Revolutionary Guard Corps now enforce compliance with the mandatory hijab laws.[31] According to the fact-finding mission, over the past year, the responsibility for enforcement has also expanded to the private sector and private individuals. In addition to existing public phoneline and messaging services, a phone application called Nazer has been developed to by the national police force to enable security officers, and volunteers who have been vetted, to report women offending against the mandatory hijab laws.[32]Authorities also reportedly use digital surveillance of public spaces, including facial recognition to enforce dress code laws.[33]

    [30] UNHRC, ‘UNHRC Report of the Independent International Fact-finding Mission on the Islamic Republic of Iran - A/HRC/55/67 (2 February 2024)’, 2 February 2024

    [31] UNHRC, ‘UNHRC Report of the Special Rapporteur on the Situation of Human Rights in the Islamic Republic of Iran - A/HRC/55/62’ 9 February 2024

    [32] UNHRC, ‘UNHRC Report of the Independent International Fact-finding Mission on the Islamic Republic of Iran - A/HRC/55/67 (2 February 2024)’, 2 February 2024

    [33] Human Rights Watch World Report 2023', Human Rights Watch (HRW), 12 January 2023, 20230112144355; 'Freedom in the World 2023 - Iran', Freedom House, 9 March 2023, 20230310090512 

20. The UNHRC and the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran have expressed concern above a bill which has been introduced to support the family by promoting the culture of chastity and hijab. The bill sets out measures to (a) increase punishments for acts and promotion of non-compliance; (b) spread enforcement powers across State institutions; (c) make private actors liable for both compliance and enforcement; and (d) extend existing gender segregation in various areas, including universities, hospitals and public offices and spaces. The bill does also provide for a dress code applicable to men, but the UNHRC has remarked that it clearly targets women and exacerbates the already fundamentally discriminatory legal framework governing the mandatory hijab for women and girls. The bill also addresses online content, criminalising online expression of views critical of the mandatory hijab.[34] It provides for severe punishments for women and girls. Although the bill is undergoing some revisions, officials have instructed the police not to wait for its approval, and to implement it immediately.[35] As a result, the authorities have imposed fines and closed numerous businesses, including cafes, restaurants, pharmacies, private doctors’ offices, travel agencies and private companies for not adhering to the mandatory hijab laws. Thousands of individual women also have been penalised for not wearing the hijab appropriately while travelling in a car with the penalties including among other things, the confiscation of cars and referral to the judiciary.[36] instances of attempted and violent arrests continued to be reported, against women and girls who have defied the mandatory hijab laws in public. In October 2023, a 16 year old girl died following an allegedly following an altercation for her failure to wear a hijab in a Tehran metro carriage.[37] Physical mistreatments and other harsh punishments such as being made to wash dead bodies and referral to psychiatric treatment have recently been imposed for non-compliance.[38]The State authorities have also publicly warned women and girls that they would be deprived of education and health if they were found in violation of the mandatory hijab laws and regulations.[39]

    [34] UNHRC, ‘UNHRC Report of the Independent International Fact-finding Mission on the Islamic Republic of Iran - A/HRC/55/67 (2 February 2024)’, 2 February 2024

    [35] UNHRC, ‘UNHRC Report of the Independent International Fact-finding Mission on the Islamic Republic of Iran - A/HRC/55/67 (2 February 2024)’, 2 February 2024

    [36]UNHRC, ‘UNHRC Report of the Independent International Fact-finding Mission on the Islamic Republic of Iran - A/HRC/55/67 (2 February 2024)’, 2 February 2024; DFAT Country Information Report: Iran’, Department of Foreign Affairs and Trade, 24 July 2023, 20230724110043; UNHRC, ‘UNHRC Report of the Special Rapporteur on the Situation of Human Rights in the Islamic Republic of Iran - A/HRC/55/62’ 9 February 2024

    [37] UNHRC, ‘UNHRC Report of the Special Rapporteur on the Situation of Human Rights in the Islamic Republic of Iran - A/HRC/55/62’ 9 February 2024

    [38] DFAT Country Information Report: Iran’, Department of Foreign Affairs and Trade, 24 July 2023, 20230724110043 

    [39]See (in Persian): type="1">

21. DFAT assesses that women perceived by the authorities to be pushing Iran’s moral boundaries face a high risk of official discrimination in the form of arrest, punishment and violence.[40] I accept, given the accumulation of factors noted above specific to this family, that Applicants 2, 3, 4, and 5 would struggle to conform and either deliberately or inadvertently, push these moral boundaries.

    [40] DFAT Country Information Report: Iran’, Department of Foreign Affairs and Trade, 24 July 2023, 20230724110043 

22. Having regard to Applicant 2’s social media posting as well, country information suggests that individuals who repeatedly post content critical of the regime, its institutions or policies or who are deemed to be pushing moral boundaries may attract adverse attention from the authorities, including individuals based abroad.[41] In recent years, people have been arrested and detained and many have been harmed in custody for online activities and postings on Instagram, Telegram and other social media platforms for ‘insulting the Prophet’, ‘connection with opposition groups’ and ‘insulting the police.’[42] UNHRC has also reported that Iranian authorities have recently threatened, intimidated, summoned and arrested persons in connection with protest-related content posted on social media platforms. Such content included messages of solidarity with protesters, reports of violations committed by the State, pictures posted by injured protesters and offers of legal and medical assistance for protesters and their families. The authorities have used social media content as evidence for criminal charges on various grounds, such as “propaganda against the system”, “spreading lies” and “insulting the Supreme Leader” and in such cases, the content of personal Instagram accounts has been used as evidence during criminal proceedings for charges that carried heavy punishments, including the death penalty.[43]

    [41] DFAT, ‘DFAT Country Information Report: Iran’, Department of Foreign Affairs and Trade, 24 July 2023, 20230724110043; Immigration and Refugee Board of Canada, 'IRN201321.E - Iran: Monitoring of Iranian citizens outside of Iran, including political opponents and Christians, by Iranian authorities; monitoring of Iranian citizens in Canada; consequences upon return to Iran (2021–March 2023)', 20230414091421 

    [42] United Nations General Assembly, 'Situation of human rights in the Islamic Republic of Iran (14 May 2021)', 14 May 2021, 20210624120211; Freedom House, 'Freedom on the Net 2023 - Iran', 4 October 2023, 20231005083514; Freedom House, ‘Freedom on the Net 2020 - Iran', Freedom House, 14 October 2020, 20201016084814  Huffington Post (US) ‘Iran Tightens Its Grasp on Telegram Use’, Huffington Post (United States), 6 June 2017, CXC9040669094; Center for Human Rights in Iran (United States), ‘Three Young Iranian Men to Serve 12 Years in Prison For 'Insulting' Social Media Posts’, 28 April 2017, CXC9040666693; International Campaign for Human Rights in Iran (United States), ‘Security Agencies and the Prosecution of Online Activists’, 11 November 2014, CX1B9ECAB9307; 

    [43] UNHRC, ‘UNHRC Report of the Special Rapporteur on the Situation of Human Rights in the Islamic Republic of Iran - A/HRC/55/62’ 9 February 2024; UNHRC, ‘UNHRC Report of the Independent International Fact-finding Mission on the Islamic Republic of Iran - A/HRC/55/67 (2 February 2024)’, 2 February 2024

23. I note Applicant 1’s participation in the Women, Life, Freedom movement and other demonstrations, and his opinions as to the treatment of women and girls in Iran and his support and fears for his wife and daughters. However, I am not of the view that he himself is of any interest to the authorities for these reasons or that he would be targeted in Iran for such things. I am not satisfied he faces a real chance of persecution for these reasons. However, as above, I have found him to be a refugee on religious grounds. 

24. As for Applicants 2, 3, 4, and 5, I accept they would struggle to conform to the legal expectations and social and religious norms and that they would either deliberately or inadvertently, push the moral boundaries to which DFAT and the other country information refer. I accept that in doing so, and noting Applicant 2’s strong, evidenced feelings against the regime, their 11 year stay in Australia where they have grown accustomed to free expression and association and non-conservative dress and the children have little to no experience with Iran and Islamic culture and rules, and few Persian and Kurdish language skills, and that they are women and girls who – aside from being religious converts – do not practise or believe in Islam and are of an ethnic minority which itself faces discriminatory treatment, and noting the discriminatory societal attitudes towards such groups in addition to official, I find that there is more than a remote chance that Applicants 2, 3, 4, and 5 will come to the adverse attention of the Iranian authorities for one or a combination of these reasons.

25. I accept that should that happen, they will face a real chance of being harassed and arrested or otherwise detained and deprived of their liberty. During such detention too, I accept there is a real chance they will be subjected to significant physical harassment or ill-treatment or other harms that would amount to serious harm. Similarly, to my consideration of Applicant 5’s religion, I find that although she is under the age of criminal responsibility and would not be targeted in the same way as her mother and sisters may be, I nonetheless accept that she faces a real chance of official and societal discrimination which would cumulatively, amount to persecutory harm.

26. I am satisfied this real chance would arise because of their gender and/or their gender combined their membership of a minority ethnic group, their non-adherence to Islam and/or their faith, exacerbated by their westernised mannerisms or imputed western political opinion. I am satisfied that various iterations of these such profiles satisfy the definition in s 5L(a), (b) and (c) and that s 5L(d) does not apply. For Applicant 2, I find it also arises from her actual political opinion against the Islamic Iranian regime.

27. I find that their gender and or and/or their gender combined their membership of a minority ethnic group, their non-adherence to Islam and/or their faith, exacerbated by their westernised mannerisms or imputed western political opinion are equally the essential and significant reasons for the persecution (and for Applicant 2, her actual political opinion as well), as required by s 5J(4)(a) and that the persecution involves serious harm, as required by.s5J(4)(b) and systematic and discriminatory conduct, as required by s5J(4)(c), as it is targeted toward members of the group or persons with the applicants’ profiles and is non-random.

28. As above, I am satisfied that the Iranian regime and authorities exercise effective control over almost all areas of the country, and as the harm feared by the applicants would be inflicted by the authorities or condoned by them, I find that effective protection measures are not available to the applicants and that the real chance of harm relates to all areas of Iran.

29. Given the real chance of harm arises as a consequence of Applicant 2, 3, 4, and 5’s gender and characteristics or convictions that I consider are now fundamental to their identity, and out of Applicant 2’s true political beliefs and past actions, I do not consider there are any reasonable steps the applicants could take to modify their behaviour so as to avoid a real chance of harm.

30. I am satisfied that Applicants 2, 3, 4 and 5’s fear of persecution on these bases is well-founded. I find that on this basis, they are refugees within the meaning of s 5H(1) of the Act.

    CONCLUSIONS

31. I am satisfied that the applicants’ fear of persecution on the basis of their conversion to Christianity, Applicants 2’s online political activism, and for Applicants 2, 3, 4 and 5 their gender and expression of their identity, is well-founded. I find that they are all refugees on one or more of these bases and are owed protection obligations pursuant to s 36(2)(a).

32. For the reasons given above the Tribunal is satisfied that each of the applicants is a refugee and a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s 36(2)(a).

33. Given this finding, while the applicants have raised other relevant claims related to their Kurdish ethnicity and other factors, I have not given them in-depth consideration or made any findings on those other claims for protection. 

    DECISION

34. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

    Jessica McLeod
    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.

    …

    
    

United States ‘2022 Report on International Religious Freedom: Iran’,15 May 2023, 20230516090011; Article 18, Middle East Concern, Open Doors, Christian Solidarity Worldwide, '2023 Annual Report: Rights Violations Against Christians in Iran', 19 February 2023, 20230622154640

Article 18, ‘Three Christian women held incommunicado for 40 days face court hearing on unknown charges’, 30 June 2023, 20230707110316; Asia News IT, ‘Three Christian women arrested without charges to go on trial in Iran’, 1 July 2023, 20230707110732

Article 19 (United Kingdom),  ‘Tightening the Net: Online freedoms in Iran following Rouhani’s reelection’, 17 July 2017, CISEDB50AD4882; Agence France Presse (France),  ‘Iran rounds up 450 social media users for 'immoral activities'’, 23 August 2016, CX6A26A6E8281