2107759 (Refugee)

2107759 (Refugee) [2023] AATA 4693 (31 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Razzaghipour Farnam (MARN: 9789359)
CASE NUMBER:  2107759
COUNTRY OF REFERENCE:                   Iran
MEMBER:Wayne Pennell
DATE:31 October 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy section 36(2)(a) of the Migration Act.

Statement made on 31 October 2023 at 4:18pm
CATCHWORDS
REFUGEE – protection visa – Iran – religion – Christianity – non-practicing Muslims – attended daughter’s church during previous visit then hosted house group on return – son and other members arrested after applicants returned to Australia – church attendance before and after COVID restrictions – physical health and two kinds of surgery – credible knowledge and understanding of Christianity, and supporting evidence from daughter, friend and pastor – country information – prohibition of proselytisation and widespread state security activity against house churches – real chance of serious harm – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 65
Migration Regulation 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
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 a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicants protection visas under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]
[1]The delegate’s decision was provided to the applicants on 10 June 2021.
The applicants claim to be citizens of Iran and applied for protection visas.[2] When assessing the application, the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed to Iran, there was a real risk they would suffer significant harm. Therefore, the delegate refused to grant the visas[3] on the basis that they were not refugees as defined by the Act[4] and they were not persons in respect of whom Australia has protection obligations.[5]
[2]The applicants’ application was received by the Department on 28 February 2020.
[3]The delegate’s refusal was made on 10 June 2021.
[4]Migration Act 1958 (Cth), s 5H.
[5]Migration Act 1958 (Cth), s 36(2)(a); s 36(2)(aa).
The applicants filed an application with the Tribunal for a review of the delegate’s decision.[6] At a subsequent time,[7] the Tribunal sent a letter to the applicants and advised that it had considered all the material relating to their application but was unable to make a favourable decision on that information alone. They were invited to attend an in-person review hearing scheduled for 8 September 2023. The applicants accepted that invitation and attended the scheduled hearing. Out of fairness to the applicants, when the hearing commenced the Tribunal identified that the applicants were not in a position to present their case. The hearing was then postponed to 27 October 2023 to allow them an opportunity to provide further evidence.
[6]On 16 June 2021.
[7]On 24 July 2023.
CRITERIA FOR A PROTECTION VISA
The measures for a protection visa are set out in the Act[8] and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[9] That is, the applicant 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]Migration Act 1958 (Cth), s 36.
[9]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[10]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.[11] 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.[12]
[10]Migration Act1958 (Cth), s 36(2)(a).
[11]Migration Act1958 (Cth), s 5H(1)(a).
[12]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that 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, and 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.[13] 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 the Act, which are extracted in the attachment to this decision.[14]
[13]Migration Act 1958 (Cth), s 5J(1).
[14]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[15] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[16] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[17]
[15]Migration Act 1958 (Cth), s 36(2)(a).
[16]Migration Act 1958 (Cth), s 36(2)(aa).
[17]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[18]
[18]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[19]
[19]Migration Act 1958 (Cth), s 36(2B).
COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY
The applicants claim to be citizens of Iran and provided copies of their passports to authenticate this claim.[20] The Tribunal accepts their identities and based on the evidence they provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Iran is their country of nationality and their receiving country for the purposes of the refugee and complementary protection assessments.[21]
[20]The applicants’ passport were issued in Iran.
[21]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
Based on the evidence, the Tribunal is satisfied the applicants do not have a right to enter and reside in any other country. Therefore, the Tribunal finds that they are not excluded from Australia’s protection obligations.[22]
[22]Migration Act 1958 (Cth), s 36(3).
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No. 84 made under the Act,[23] 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.
[23]Migration Act 1958 (Cth), s 499.
APPLICANTS’ BACKGROUND AND CLAIMS
In explaining why the applicants left Iran, the first applicant said that she and the second applicant are both aged [Age], and are Iranian nationals. Neither of them has a right to reside in any other country. They claim to have a well-founded fear of returning to Iran.
Both applicants were born into Islamic families, although neither of them have voluntarily practised nor taken any meaningful interest in Islam. The first applicant said that she was thankful all of her schooling took place before the so-called Islamic revolution of 1979. She completed her high school certificate (year 12), but has never been employed as she spent much of her adult life raising her three children. The applicants were married in [Year], and the secondary applicant has always provided full financial support for the first applicant and their children.
The first applicant claimed that she first became interested in Christianity through the persuasion of their daughter. Their daughter has practised Christianity for some eight years or so, which is since she left Iran for [Country 1] and was eventually granted a refugee visa.
The first applicant claimed that in her first trip to Australia in October 2016, her daughter took her to two different churches in Brisbane. One of the churches was [a Specified] church. She was introduced her daughter’s church friends and she attended Sunday church services with her daughter. She claimed she quickly established a strong connection with the [church] community and became a part of the church group. Both applicants are now baptised as Christians.
The first applicant claimed that when she returned to Iran, she took a Persian Language Bible and some other Bible study material with her and shared her religious interest with her husband and their son. She claimed that they, being herself, her husband and her son, started reading passages of the Bible after family dinner and prayed for their health, their family and their country.
The first applicant said that her daughter came to Iran in late January 2018 and brought with her some additional Christian material in Persian and encouraged the family to set up religious group meetings at home. The meetings were initially attended by their daughter, their son, the second applicant and two of her daughter’s old friends who were all interested in Christianity. Another person in the group was one of the first applicant’s neighbours.
The first applicant said that in February 2018, she and her family formed the religious group and they assembled on the last Thursday of every month in their family home until she left Iran for Australia in early March 2018.
The first applicant said that the reason ‘we’, being her family, all agreed for the meetings to be held in her family home was because the other three ladies' families did not allow them to have Christian meetings in their homes. She said that during those meetings they watched Nejat TV and then each read one story from the New Testament, followed by a group discussion.
The first applicant claimed that when she and the second applicant arrived in Australia in March 2018, they started attending church services with their daughter. After being in Australia for three months, the second applicant returned to Iran. The first applicant remained in Brisbane until she departed and returned to Iran in January 2019. She claimed that she continued to attend the Sunday church services during her stay in Australia, and her husband and son continued to hold the monthly church meetings in Iran at their house.
The movement records for the applicants shows that the first applicant arrived back in Australia [in] April 2019, and the second applicant arrived [in] December 2019. The first applicant claimed that the church meeting at their house in Iran continued in their absence with the same group members. She also claimed that [in] January 2020, the Iranian authorities raided the church meeting at their house. All of the group, except for one neighbour who had been ill that night, had been taken to the local Basij station. Included in the group that was arrested was their son.
The first applicant claimed that she and the second applicant managed to secure the release of their son from detention through one of the second applicant’s brothers who has an influential connection within Basij. The second applicant had to pay close to AU$10,000.00 as a bribe to get their son out of detention. By that time he had spent about 10 days in detention after his arrest.
The first applicant claimed that the Iranian authorities have held their son’s passport and birth certificate and ordered him to present himself once a week to the same Basij station. Their son was also forbidden to hold any further Christian meetings or have any contact with the other two arrested persons.
The first applicant said this made her and the second applicant extremely anxious for their own safety. They speak with their son almost daily, but they avoid raising the issue of his arrest and detention fearing that their calls may be monitored by the authorities.
The first applicant said that she and the second applicant fear that the arrested group members may have disclosed their names, along with their daughter’s name as being the instigators of the meetings.
The first applicant claimed that she and her husband had already shared with all the group members information regarding their participation in the church services since they have been in Australia and the material seized from their home during the raid was all issued and printed in Australia. They fear that the authorities may already know that the applicants participated in the meetings held in their home before they travelled to Australia.
When explaining what she thought would happen to them if they returned to Iran, both applicants said that they have a well-founded fear of being arrested, interrogated, prosecuted, detained, and/or being charged for crimes of proselytising; along with being punished for organising Christian meetings in their home and encouraging other Muslim Iranians to learn about Christianity. They also have a fear that because they have abandoned their Islamic faith and converted to Christianity, they will be executed.
In respect to the applicants being able to relocate to another part of Iran for protection, they said that relocating to another part of Iran will not be a solution for their security. Iranian security authorities utilise sophisticated population control measures which enable them to find individuals of adverse interest wherever the person of interest maybe within the national borders. They claimed that moving to another part of Iran could only delay being found by the authorities and be brought to justice as defined by Sharia law. Credible and reliable country information available to the Tribunal as contained within a DFAT Country Information Report (‘DFAT report’) provides that the countrywide capacity of the centrally organised state security forces means that an individual facing adverse official attention is unlikely to escape this attention by relocating internally.[24]
[24] The DFAT Country Information Report, Iran, 14 April 2020, pages 69 to 69, paragraph 5.21.
In respect to the claims made by the second applicant, his claims mirror those which were made by his wife, being the first applicant.
THE EVIDENCE
The applicants
Both applicants appeared before the Tribunal and gave their evidence. The first applicant has provided two statements to support their claims.[25] In her first statement, she outlined the claims they made and the information for the basis of those claims. In the later statement, she outlined some updating information, including details surrounding her health, in particular her [surgery 1] and her [operation 2].
[25] Dated 13 January 2020 and 29 August 2023.
In respect to the first applicant’s medical issues, the Tribunal has been provided with documentation from her family doctor and her specialist that confirms the first applicant underwent [surgery 1]in 2021. It would appear that although she has recovered physically from that operation, she has issues from time to time which raise a concern in respect to her cognitive capacity to recall events. Her [operation 2] took place in May 2023, and as expected for a person of her age, she is still impacted by that surgery. However, it seems from the material provided that there are no long lasting effects.
A nucleus of their claims was that notwithstanding they were each born into Muslim families, they were not focused on practising Islam, but rather they developed an interest in, and have converted to Christianity.
Within their testimony, they explained that because they changed their religion, they cannot return to Iran because their son was detained for religious reasons. He was participating in Christianity prayer sessions at their home and the authorities raided their house and arrested those that were involved.
In respect to their church activities in Australia, the applicant explained that between their arrival and up until the time of the COVID pandemic, they were both regular attendees at Church 1] in Brisbane. During COVID, the attendances tailed off because of the concerns about gathering in church. The Tribunal accepts their evidence that during that time there were times when the local pastor from the church visited their home and they engaged in religious prayers.
Since the pandemic is no longer a concern, they re-commenced their church activities, although in recent time the first applicant’s attendance has been hampered because of her [operation 2].
During the review hearing, the Tribunal had the opportunity to appraise the applicants’ demeanour, as well as their responses to the many questions that were asked of them. Some of those questions related to general knowledge questions about Christianity as well as the philosophies of Christianity. The Tribunal is satisfied that their responses to those questions shows that they possess a very good understanding and knowledge of Christianity, which the Tribunal finds credible.
When carefully assessing their evidence, the Tribunal accepts that they are both from Iran and were each born into Muslim families. The Tribunal also accepts (and so finds) that they have denounced the religion of Islam and are now practising Christians.
[Ms A]
The applicants are [Ms A]’s parents. She appeared in person at the review hearing and told the Tribunal that although she was born a Muslim, she never practised Islam or any other religion in Iran but was very familiar with Christianity because she had friends who were Christians. She fled Iran in 2010 and settled in [Country 2] where she remained for about three years. She became a United Nations sponsored refugee and then moved to Australia, arriving in January 2013 on a refugee (subclass 204) visa. In 2019, she was granted citizenship and permanently resides in Australia.

It was when [Ms A] lived in [Country 2] that her knowledge of, and involvement in Christianity increased. She was associating with other refugees who were Christians, as well as other likeminded people. Slowly over time, she accepted Christianity and is now a committed Protestant.
[Ms A]’s evidence in respect to the applicants’ claims corroborated the evidence given by the applicants, including their conversion to, and involvement in Christianity both in Iran and in Australia where the applicants have attended a number of religious activities, including church services at [Church 1] in Brisbane. She also corroborated the evidence relating to when the first applicant returned to Iran, she took a Persian Bible and some other bible study material. She also gave evidence about visiting Iran in early 2018 where she took some additional Christian material to Iran and encouraged her parents to set up group meetings in their home for other Christians.
It was the Tribunal’s view that it was not surprising that because she is the applicants’ daughter, her evidence was anything else other than supportive of her parents’ application and the claims they made. However, the Tribunal had the opportunity to scrutinise her evidence at the review hearing and appraise her as a witness. Having carefully assessed her evidence, the Tribunal is satisfied that there was nothing found within her evidence that discredits the meaningful content of what she told the Tribunal. Therefore, the Tribunal accepts her evidence.
[Ms B]
[Ms B] appeared as a witness for the applicants. She is originally from Iran and after some issues which she described as being relative to her religion. She then fled to [Country 2] where she became a United Nations sponsored refugee. She arrived in Australia in May 2012 and later shared a house with [Ms A]. She recalled meeting the applicants for the first time from around 2014 or 2015. In August 2021, [Ms B] became an Australian citizen and at present, she is married with a young child and she is employed as a professional [Occupation 1].
[Ms B] explained to the Tribunal that since 2006, she has converted from Islam to Christianity and has been baptised. She has also studied Divinity at a [Country 3] based university, however, is yet to complete her studies.
In respect to her involvement in christian religious activities, she explained that she is a Protestant and since 2008 she has been conducting bible study classes since 2012; she is a regular attendee at [Church 2].
She told the Tribunal that since the time that she has known the applicant and they have been in Australia, she has conducted bible studies in which both applicants participated. Those studies were carried out at her own home, at the applicants’ residence, and during COVID, she also undertook the studies with them online.
She said that the applicants always showed a keen interest and clear enthusiasm to learn and follow the christian faith and it was her view that both applicants displayed a genuineness in their conversion from Islam to Christianity and she felt that their commitment to follow Christ was authentic.
Because [Ms B] appeared in person before at the review hearing, the Tribunal had the opportunity to personally assess the manner in which she gave evidence, her demeanour and appraise her credibility. It was observed that she delivered her evidence in a strong forthright manner, without any suggestion that her evidence was anything else other than genuine. Over all, the Tribunal found her evidence convincing and she gave every impression of a credible and reliable witness.
[Mr C]
[Mr C] attended the review hearing in person and told the Tribunal that since 2018, he has been an ordained Protestant Minister and registered pastor with [Church 1] in Brisbane. He added that the church has approximately 150 to 160 parishioners. He confirmed that the applicants were both part of the congregation and they regularly attended church services at [Church 1]. He went on to clarify that he met the applicants when they started attending services with their daughter prior to the COVID pandemic.
The Tribunal is satisfied that [Mr C]’s evidence shows that the applicant’s attendance at church services at [Church 1] is regular and committed.
COUNTRY INFORMATION
Unrecognised Christian Groups (House Churches)
Available to the Tribunal is reliable and credible country information contained within the DFAT report.[26] The DFAT report provides that the Iranian Penal Code strictly prohibits proselytisation by religious minority groups and it is a capital crime for non-Muslims to convert Muslims.[27] To enforce this prohibition, the Iranian authorities closely monitor recognised churches, and the DFAT understands that recognised churches regularly receive telephone enquiries from individuals falsely claiming to be interested in converting, as a way of testing their adherence to the prohibition on converts.
[26]Published 14 April 2020.
[27]The DFAT Country Information Report, Iran, 14 April 2020, page 32, paragraph 3.49.
Within the claims made by the applicants, what they have described is a situation where they were not members of a recognised church in Iran, but rather they held bible classes at their home and invited others from the neighbourhood to join them. This conforms with what the DFAT report categorised as ‘underground house churches’. The DFAT report emphasised that because of the secrecy surrounding house churches, this makes it impossible to provide an exact number of house churches or unrecognised Christians in Iran.[28]
[28]The DFAT Country Information Report, Iran, 14 April 2020, page 32, paragraph 3.50.
The DFAT report further provided that house churches exist across Iran, particularly in major cities and most are small and informal, and consist of close family and friends gathering on a regular or semi-regular basis to pray, worship, read the Bible and/or watch Christian television programs broadcast via satellite or discs smuggled from abroad (including in Farsi).[29]
[29]The DFAT Country Information Report, Iran, 14 April 2020, page 32, paragraph 3.51.
The Iranian authorities interpret the growth in house churches as a threat to national security and periodically carry out raids against them. The raids are usually the result of a tip-off and the raids focus particularly on house churches that actively proselytise or seek out new members. If assessing the applicants’ claims against that point, they described a raid being conducted by the authorities on their house during a time when a prayer gathering was taking place, although they were visiting their daughter in Australia at the time.[30]
[30]The DFAT Country Information Report, Iran, 14 April 2020, pages 32 to 33, paragraph 3.52.
Under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. Separately, a person of any religion may be charged with the crime of ‘swearing at the Prophet’ (blasphemy) if they make utterances that are deemed derogatory toward the Prophet Mohammed, other Shi’a holy figures or divine prophets. The Penal Code does not specifically criminalise apostasy, but provisions in the Penal Code and the constitution stipulate that sharia applies to situations in which the law is silent, and judges are compelled to deliver sharia-based judgements in such cases.[31]
[31]The DFAT Country Information Report, Iran, 14 April 2020, page 36, paragraph 3.73.
Politically motivated apostasy charges were frequent in the years following the Iranian revolution, often leading to death sentences. However, in the vast majority of cases, defendants charged with apostasy also faced other charges related to national security. Many of these cases were quickly tried, ending in execution, so apostasy was not fully discussed in the prosecution of these defendants.[32]
[32]The DFAT Country Information Report, Iran, 14 April 2020, page 37, paragraph 3.74.
DFAT assesses that those accused of religiously based charges are also likely to face charges related to national security. They are unlikely to have adequate legal defence, and are likely to be convicted.[33]
REFUGEE FINDINGS
[33]The DFAT Country Information Report, Iran, 14 April 2020, page 37, paragraph 3.77.
Real chance of serious harm
The applicants claim that as a necessary and foreseeable consequence of them being removed to Iran, there exists a real risk that they will suffer significant harm or there is a real chance they would suffer serious harm. Their well-founded fear exists because they are from Iran, and have abandoned Islam and converted to Christianity, and they will be subjected to persecution should they return to Iran. They gave an example of the authorities raiding their home and arresting their son and others for holding a Christian gathering. The applicants were not there at the time, but fear that because it was their home, and that they had previously held christian prayer meetings at their home that they would be at significant risk of harm if they returned to Iran.
The Tribunal acknowledges that at the time of the review hearing of this matter, the Tribunal had been afforded the opportunity to have before it a substantial amount of relevant material, information and evidence to that which had been provided to the delegate.
In determining that fear can be well-founded without any certainty, or even probability, or that it will be realised, the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 recognised the principle found by the United States Supreme Court in Immigration and Naturalization Service v Cardoza-Fonseca[34] that a statutory provision reflecting the relevant phrase in the Refugee Convention did not require the probability of persecution, and:[35]
That the fear must be 'well-founded' does not alter the obvious focus on the individual's subjective beliefs, nor does it transform the standard into a 'more likely than not' one. One can certainly have a well-founded fear of an event happening when there is less than a 50 per cent chance of the occurrence taking place.[36]
[34]Immigration and Naturalization Service v Cardoza-Fonseca, 480 U.S. 421; 107 S. Ct. 1207; 94 L. Ed. 2d 434; 55 U.S.L.W. 4313, United States Supreme Court, 9 March 1987, available at: [accessed 31 October 2023].
[35]Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 397.
[36]Immigration and Naturalization Service v Cardoza-Fonseca (1987) 94 L Ed 2d 421, 431.
A fear of persecution may be well-founded for the purposes of the Refugee Convention even though the persecution is unlikely to occur. A real chance of something happening equates to a risk that is more than remote, that is, being a risk that could not be described as being remote, farfetched or fanciful,[37] and the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[38]
[37]Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 429.
[38]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
When carefully considering the facts, circumstances and the evidence of the applicants’ case, the Tribunal was afforded the opportunity to monitor and assess their responses to the Tribunal’s analysis of the evidence, and to gauge the genuineness, or the credit of the responses they provided during the review hearing. The Tribunal also had the same opportunity to monitor and assess the evidence given by the applicants’ daughter, the pastor of [Church 1] the applicants attend, and another witness who knows the applicants and their daughter. The Tribunal accepts the evidence of the applicants and the witnesses.
When carefully assessing the available country information contained within the DFAT report, and analysing that information against the evidence before the Tribunal, the Tribunal finds that the applicants have substantiated their claim that as a necessary and foreseeable consequence of them being removed to Iran, there exists a real risk that they will suffer significant harm or there is a real chance they would suffer serious harm because of their rejection of Islam and conversion to Christianity. All of that is supported by the evidence of the witnesses.
Having considered all the circumstances as they apply individually and cumulatively to the applicants, the Tribunal finds that there is a real chance they will be persecuted for reasons of their religion should they return to Iran. The Tribunal also finds that their fear of persecution is well-founded as required by section 5J of the Act and, therefore, they are refugees within the meaning of section 5H of the Act and the Tribunal remits the matter for reconsideration with the direction that the applicants satisfy section 36(2)(a) of the Migration Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy section 36(2)(a) of the Migration Act.
Wayne Pennell
Senior Member
ATTACHMENT - Extract from Migration Act 1958 (Cth)
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.
…

[2023] AATA 4693

31 October 2023

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