2112901 (Refugee)

2112901 (Refugee) [2024] AATA 742 (18 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Michael Kah
CASE NUMBER:  2112901
COUNTRY OF REFERENCE:                   Iran
MEMBER:Rachel Da Costa
DATE:18 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 18 January 2024 at 11:04am
CATCHWORDS
REFUGEE – protection visa – Iran – Federal Circuit Court remittal – religion – doubting Muslim converted to Christianity in Australia – courses, activities and developing leadership – documentation and supporting statements – mental health – country information – raids and possibility of prison or death penalty – modification of behaviour not reasonable, no effective protection measures and relocation not reasonable – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 19 October 2016 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a citizen of Iran. He applied for the visa on 11 May 2015. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
On 25 September 2019, a differently constituted Tribunal affirmed the delegate’s decision (case number 1618555). [In] October 2019, the applicant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The matter was heard [in] June 2021.
[In] August 2021, the Tribunal’s decision was quashed by the Federal Circuit Court because the judge found that the Tribunal’s decision was affected by jurisdictional error. A writ of mandamus was issued requiring the Tribunal to redetermine the review application according to law. The matter is now before the Tribunal pursuant to this order of the Court.
CLAIMS AND EVIDENCE
Background
In his protection visa application form, the applicant provided the following information. He was born in [City], Kermanshah province, Iran in [Year]. His parents are both Iranian citizens. He speaks, reads and writes English and Persian/Farsi. His ethnicity is Persian and his religion is Christianity. He is a student and works as a part time [Occupation 1]. He is not and never has been married or in a de facto relationship.
In Iran, he has his parents. He is in regular contact with them by phone. In Australia, he has a sister, brother-in-law and a niece. His brother-in-law and niece are Australian citizens.
In Iran, the applicant lived his early life in [City], Kermanshah province. From [year] to 2001, he lived in [a suburb] in Tehran city. From July 2001 until he departed Iran, he lived in the city of Karaj in Alborz province. The applicant obtained a [Qualification 1] in Iran, and then commenced a [Qualification 2] in Australia at [University]. After finishing university in Iran, he volunteered [in] a [Workplace 1] in Tehran and worked in customer service in a [store].
The applicant arrived in Australia [in] May 2014, having travelled from Iran on his Iranian passport. He held a Student visa.
Evidence before the Department
Protection visa application
The applicant’s claims for protection are contained in his protection visa application form and a written case statement attached to the form. Relevantly, the applicant claims as follows:
·     In Iran, the applicant has started to have doubts about his Islamic faith;
·     His sister married and moved to Australia in 2010;
·     The applicant came to Australia in 2014 to study. He found the culture shock very difficult, in part due to his lack of proficiency in English, and had to seek professional support for his mental health;
·     His sister introduced him to some other Iranians in Sydney so he could try to make friends. Some of them were Christian converts. They treated him very well. They invited him to go to church with them and he first attended church in [Suburb] on 10 June 2014.
·     He found peace and fellowship in the church community and was interested in the culture and attitude of the people in the religious gathering, the way they practiced their religion in a civilised way, the way they spoke to God and they offered to help him. The Iranian pastor welcomed him and gave him a Persian bible which he read with great interest and self-reflection.
·     He discussed the situation with his sister and brother-in-law. They were encouraging of his interest in Christianity and the people at the church but were not particularly keen to attend church themselves.
·     The applicant continued to attend church, read the bible, attend bible study classes and participate in church activities. In 2015, his pastor helped him to enrol at [College 1] for a [Course 1].
·     The more he learns about Christianity, the more interested he is in it. His sister has started attending church with him. The applicant’s pastor has accepted him to work as his assistant and has arranged further classes for the applicant so he can become the pastor’s right hand in the church. This course includes management skills and unsupervised working in the church community, as well as theology.
·     The applicant is determined to serve God and proselytise Christianity. This makes him very scared about returning to Iran because to continue practising his Christian faith there would put him at risk, including the risk of death, from the Iranian authorities and people who cannot understand or tolerate his conversion. He cannot hide his conversion to Christianity.
·     He told his parents in Iran about his conversion and they accept it, but he has asked them to keep it a secret in case it creates problems for them in Iran.
As set out below, the applicant has subsequently provided further evidence about his religious activities in Australia in support of his claims for protection.
Interview with the delegate
On 4 September 2015, the applicant attended an interview with the delegate and provided further information about his background and claims for protection based on his religious conversion from Islam to Christianity.
The delegate’s decision
On 19 October 2016, the delegate made their decision. The delegate did not accept the applicant’s evidence about his rejection of Islam or that his conversion to Christianity was genuine. Therefore, the delegate found that the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
Application for review
On 7 November 2016, the applicant lodged an application for review of the delegate’s decision. He provided the Tribunal with a copy of the delegate’s decision.
Other documents before the Tribunal
Prior to his interview with the Department, the applicant provided a number of supporting documents to the Department including:
·     Applicant’s Baptism Certificate dated [July] 2015;
·     Letters of support from [Reverend A] and [Minister B] of [Church 1] in [Suburb], NSW, and from [Mr C]], a congregation member at the applicant’s church, in August and September 2015 attesting to the applicant’s genuine conversion to Christianity, his genuine interest in Christianity, how he has subsequently become a member of the leadership training group and his further study of theology;
·     Letter of support from the applicant’s sister dated 2 September 2015 attesting to the applicant’s conversion to Christianity since arriving in Australia and explaining the positive impact this has had on his behaviour and well-being. She also states that she has become a Christian;
·     Certificate of completion of [a] bible correspondence course dated 30 June 2015;
·     Letter from [College 1] dated 31 August 2015 confirming that the applicant has completed [Course 2].
Prior to the 2019 Tribunal hearing, the applicant provided written submissions, a list of witnesses, country information about the dangerous situation for Christians in Iran and range of further documents including:
·     Statutory declaration of the applicant dated 14 May 2019 reiterating the events leading to his conversion to Christianity and his involvement with the church in Australia since that time, including his activities and responsibilities at [Church 1];
·     Further letters of support from his sister, [Mr D], [Mr E], [Mr F], [Reverend B], [Reverend G], [Reverend A] attesting to the genuineness of his conversion his ongoing studies of theology and his involvement with the church and leading the Iranian congregation;
·     Letter dated 19 June 2019 from the applicant’s parents confirming the applicant’s conversion to Christianity, referring to the online and social media activities he has been involved with to help people to understand the bible and lead them which are available to view in Iran on the internet, and referring to their concerns for his safety if he returned to Iran due to the attitude of the Iranian government towards people who convert from Islam;
·     [Church district authority], authorising the applicant to perform certain pastoral duties, conduct worship services, funerals and baptisms and deliver sermons, up to 30 June 2023;
·     Letter from [College 2] dated 1 March 2019, confirming the applicant was enrolled in [Qualification 3];
·     Copies of the applicant’s university qualifications obtained in Australia and academic transcript;
·     Psychological assessment report dated 4 August 2014 in which the applicant was diagnosed with symptoms of depression and anxiety and which sets out strategies for the applicant to attempt to improve his mental health.
After the hearing, the applicant’s representative provided short post-hearing submissions summarising the scope of persecution that Christians face in Iran. It was submitted that the applicant cannot hide his religion in Iran and he if he returned there he would continue to practice his religion, including proselytising, and as a result he would come to the negative attention of the authorities and face persecution which could include arrest, torture or death.
In October 2023, prior to the hearing before the current Tribunal the applicant provided additional submissions and evidence including:
·     Written submissions which set out the applicant’s background and the history of his protection visa application, his claims for protection based on his conversion to Christianity, the relevant law, and a range of country information relating to the restrictions on the practice of Christianity in Iran and the range of risks faced by Christians in Iran including from the current DFAT Country Information Report on Iran, 24 July 2023 (DFAT Report), the current US Department of State Report on International Religious Freedom, and articles from organisations such as Article18[1] that report on incidents of persecution of Christians around the world, including in Iran. The submissions refer to the evidence about the applicant’s conversion to Christianity and his religious activities in Australia. It is submitted that if he returns to Iran he will continue to practice his Christian faith, including proselytising. It is submitted that the applicant meets the criteria for the grant of a protection visa because he has a well-founded fear of persecution in Iran due to his religion and he fears persecution from the Iranian authorities due to his conversion from Islam to Christianity.
[1] According to its website, “Article18 is a non-profit organisation based in London dedicated to the protection and promotion of religious freedom in Iran and advocating on behalf of its persecuted Christians”.
·     Letter from [Church district authority] dated 16 November 2022 explaining the process for issuing an authority to a Lay Assistant within the [district], explaining the level of satisfaction of the person’s faith and leadership abilities required in order for such an authority to be issued and confirming the issuing of such an authority to the applicant;
·     An updated [Authority] extending the applicant’s authorisation as a Lay Assistant to 30 June 2027;
·     Letters from [Reverend H] of [Church 1] dated 16 November 2022 and 24 May 2023 attaching statistics which show the regular and growing attendance of participants in the Iranian worship and bible study sessions led by the applicant and confirming the applicant’s important role as the spiritual leader of these groups, as well as attesting to the applicant’s clear grasp of the Christian gospel message and the pastoral care he provides particularly to the Farsi speaking community in the church;
·     Letter from [Reverend I], Senior Pastor, [Church 1], dated 18 November 2022 explaining the applicant’s spiritual and pastoral leadership of the church’s Farsi speaking congregation and how important this is to the church and its community, along with similar letters from other pastors at the church;
·     Additional letters of support for the applicant from various members of church congregations, including other Iranians, and community members attesting to the applicant’s role in the church, his Christian beliefs, his leadership of the Iranian church, the pastoral care he offers to the congregation and how he lives in accordance with his Christian faith;
·     Letter from [Reverend A], who was formerly the Assistant Minister at [Church 1] and is now the Senior Assistant Minister at [Church 2], dated 17 April 2023. He explained that he had witnessed the applicant’s conversion and his growth as a Christian over many years. He referred to his experience of some difficulties the Iranian Church at [Suburb] had with people attempting to make “fake” conversions to support migration claims. He explained he was well-aware of this situation and had experienced it and in that context, based on his knowledge and experience, had full confidence in the genuineness of the applicant’s conversion and his understanding of the Christian faith;
·     Photos showing the applicant delivering religious services between May 2019 and May 2023;
·     Photos showing the applicant conducting a baptism on 30 September 2023;
·     Advertisements for prayer nights (in English and Farsi) at [Church 1];
·     Screenshot of a social media video, “[Title]”, which shows the applicant’s testimony before [a] Christian Convention;
·     Three videos of the applicant participating in the above events;
·     Live video recording of the applicant performing a worship service visa Instagram.
The hearing
The applicant appeared before the currently constituted Tribunal on 9 November 2023 and 15 January 2024 to give evidence and present arguments. The applicant brought four witnesses along to the hearing on 15 January 2024 to give evidence in support of his religious conversion and activities in Australia. Those witnesses were [Reverend A], [Mr D], [Reverend H] and [Reverend B]. In the circumstances, the Tribunal decided it was not necessary to hear from those people. An interpreter in the Persian and English languages was present in the hearing but their assistance was not required as the applicant speaks fluent English.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
In the Tribunal hearing (currently constituted), the Tribunal discussed with the applicant his background, family, employment, religious beliefs and practices and why he fears returning Iran.
In the hearing, the Tribunal confirmed with the applicant that the only reason he fears returning to Iran is his fear of persecution due to his religious beliefs, namely, his conversion from Islam to Christianity and he confirmed this was correct. The Tribunal explained to the applicant that it had read and watched the extensive material he had provided in support of his claims, and had considered his written submissions, and on the basis of that material it accepted that his conversion to Christianity is genuine and it accepts the evidence about his ongoing significant involvement with the Christian church in Australia over the last 10 years. The Tribunal was also persuaded by the presence of the three Reverends and another friend from the applicant’s church, mentioned above, who attended the hearing and were prepared to give evidence in support of the applicant’s religious conversion and involvement with the church in Australia.

In light of the Tribunal’s acceptance of the applicant’s conversion and his experience in the Iranian Christian community in Sydney, the Tribunal asked the applicant to explain from his perspective what he would look for in a genuine Iranian Christian convert, and referred to the concerns expressed by [Reverend A] in his letter dated 17 April 2023 about “fake” conversions made to support migration claims. The applicant provided an eloquent response, acknowledging that this is a challenge in the Farsi community. He said that in his opinion, it would be possible for people for people to fake a conversion for a short time but not a long time. He said he would look at their personality and the “fruits of their life” as the bible teaches people as Christians, and time is a test of this. He would encourage people to read the bible and expose them to that and examine how they are progressing over time with the development of their faith. He said that his church’s focus is on leading people to Christ, providing the environment for them to be exposed to the truth and see where that leads them. He said that his church does not provide letters of support easily to Iranians who claim to have converted, although he is aware that some other churches provide them regularly.
The Tribunal asked the applicant if he would continue to practice his Christianity if he returned to Iran and, if so, how. The applicant explained that his faith is not part of his life; it is his life and so the fruits of his life are due to his faith. He has dedicated his life and soul to his faith and that would continue regardless of where he is. His practise of Christianity is beyond being an ordinary follower. His calling is to actively serve, which is what he does in Australia. He would continue to do that in Iran by serving and evangelising wherever he was and being part of the church. In Iran, that would have to be the underground church and there are risks associated with that. He has been called to evangelise by the way he lives and talks, and what he has done in Australia he would do in Iran.
The Tribunal asked the applicant where he would practice his faith in Iran. He responded that there is no active church permitted in Iran so believers need to get together in underground churches and these are under attack. Fake people from outside try to infiltrate them and report worshippers which makes the situation very unsafe. He said he would continue to be part of that underground church and to evangelise. The Tribunal asked him where he would evangelise and he said it could be in a taxi, or with relatives, or wherever the opportunity arises.
Based on the evidence before it, the Tribunal accepts that the applicant began attending church in 2014 and genuinely converted to Christianity, culminating in his baptism in 2015. Since that time, the Tribunal accepts that he has continued to be extensively involved with [Church 1], and the Farsi community in particular, gradually increasing his involvement as his religious knowledge and leadership skills and experience have developed. The Tribunal accepts that the applicant has undertaken formal theological study and has been authorised by the [Church district authority] to be a lay preacher and conduct various services up to June 2027. He now has primary responsibility for leading the Iranian worship and bible study groups at his church, which he is apparently doing successfully, as well as being involved in other religious activities in his church community, publishing Christian worship material online and on social media, and providing pastoral care to people in the church community. The Tribunal finds that the applicant’s involvement in the church extends well beyond that of an ordinary worshipper.
Based on the Tribunal’s findings about the applicant’s conversion to Christianity and his religious activities in Australia, the Tribunal is also prepared to accept his evidence about how he would continue to practice his Christian faith in Iran, which would include attending the underground church, evangelising to people in public and not attempting to hide his Christian faith.
Does the applicant meet the refugee criterion?
In the hearing, the applicant gave evidence that he fears returning to Iran on the basis of his conversion to Christianity and the way he practices his faith. He fears being arrested, imprisoned and possibly killed by the Iranian authorities as a result of his religious faith and says his right to live a normal life will be taken away.
The applicant’s evidence about how he would practice his Christianity in Iran as a Christian convert, which the Tribunal accepts, and the consequences he fears as a result is consistent with country information available to the Tribunal. The DFAT Report states about Christians in Iran:
Christians
2.79 There are a small number of recognised Christians in Iran: 117,700 according to government figures quoted in the US Department of State’s 2021 Religious Freedom Report, and up to a million according to Christian groups. The majority of Christians are ethnic Armenian and Assyrian. Chaldean and Roman Catholic communities also exist in small numbers.
2.80 Protestant (including Evangelical) and Pentecostal churches, which some asylum seekers join while they are in Western countries like Australia, are not legal. Conversions that took place after 1979 or conversions that take place outside Iran are not recognised by the government. A person who claims to be Christian, however cannot prove that their family was Christian before 1979, would be considered Muslim by the government and thus subject to apostasy laws.
2.81 The activities of recognised Christian communities are closely regulated, to guard against proselytisation. Recognised Christian groups refuse to proselytise as a result, and in-country sources told DFAT this resolve is tested regularly by authorities. All Christians and Christian churches must be registered with the authorities, and only recognised Christians can attend church. Security officials closely monitor registered churches to verify that services are not conducted in Farsi (they must be performed in the traditional language of the Church and not the vernacular) 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.
2.82 Community leaders associated with registered churches report authorities respect their religious rights, and their communities can act freely in their own spaces without government interference (including holding mixed-gender gatherings, using alcohol for ceremonial purposes and allowing women to uncover their heads). However, in-country sources report that the government restricts their community members from senior management roles in public and private organisations due to an Iranian law that prohibits non-Muslims from holding positions of authority over Muslims. This means that the heads of Christian schools Shi'a Muslims appointed by the government.
2.83 Iranian Christians who are not members of recognised churches generally practise in underground ‘house churches’. House churches are usually Evangelical Protestant and are found throughout the country, but especially in more affluent and cosmopolitan areas. Numbers of house church adherents are not known because these churches are secret and illegal. The Joshua Project, an Evangelical ministry from the United States that publishes information for missionaries, estimates 0.52 per cent of the population is Evangelical Christian. In 2019, UN Special Rapporteur Rehman estimated that there were between 300,000 and 350,000 Muslim converts to Christianity. In-country sources told DFAT in 2019 that the number of underground Christians was growing, and Christians may travel to Turkey (with which Iran has visa-free arrangements) to be baptised then continue to practise their religion in secret. Reasons for conversion vary, but local sources told DFAT that it may be an earnest desire to explore their own spirituality, or it may be a subtle form of protest against the government. DFAT has been unable to source more recent figures on Christian conversions.
2.84 House churches vary in size, style and structure. Most are small and informal, and consist of close family and friends gathering on a regular or semi‑regular basis to pray, worship, read the Bible and/or watch Farsi Christian television programs broadcast via satellite or discs smuggled from abroad. Foreign Christian missionaries, to which asylum seekers may have links, may participate in Iranian Christianity through house ‘internet pastors’ who preach and conduct services remotely via the internet. Local Christian leaders and adherents may be foreign trained while overseas.
2.85 Authorities interpret the growth in house churches as a threat to national security and periodically carry out raids against them. Congregants regularly change houses to avoid detection. Raids focus particularly on house churches that actively proselytise or seek out new members. Sources told DFAT authorities do not actively look for house churches. Rather, raids – where they occur – are usually the result of tip-offs by Muslim neighbours. Other sources say the government sends people posing as converts to infiltrate house churches.
2.86 Prison or the death penalty are possible outcomes for Christians meeting in house churches, both leaders and everyday adherents. DFAT understands that while not a common punishment, prison or the death penalty for apostasy is possible. Years or even decades-long prison sentences are also possible. Changes were made to the Islamic Penal Code in February 2021 that mean that those guilty of ‘deviant psychological manipulation’ or ‘propaganda contrary to Islam’ could be found to be members of a ‘sect’, which can lead to imprisonment, fines, flogging or the death penalty. According to international or media reports, three Christians in the city of Karaj, near Tehran, were sentenced to total of nine years in prison under the new offences in August 2021.
2.87 In-country sources told DFAT that returnees who have not had a profile previously (for example through political activism in country) are unlikely to come to attention of authorities if they keep a low profile, and that this is not affected by social media posts about their conversion that they may have made while they were in a Western country like Australia.
2.88 DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed. Christians found to be proselytising face a high risk of arrest, prosecution and imprisonment. DFAT assesses Christian converts face a high risk of societal discrimination in the event their conversion becomes widely known, particularly if they are from more religiously-minded Muslim family backgrounds. This may involve ostracism from one’s family and discrimination in employment. DFAT further assesses that, while their congregations are monitored and they are subject to restrictions, Christians from recognised churches are permitted to practise their faith. DFAT assesses that, except for their exclusion from senior government, military, intelligence and judicial positions, recognised Christians who do not engage in proselytisation activities face a low risk of official discrimination. DFAT assesses that those who convert while outside of Iran and who intend to continue to practise their Christian religion would face a high level of official discrimination and could be subject to the death penalty.
This country information about the treatment of Christians generally and Christian converts more specifically is also supported by information from other credible sources such as the Canadian Immigration and Refugee Board,[2] the UK Home Office Country Policy and Information Note Iran: Christians and Christian converts (UK Home Office Report),[3] and the US Department of State 2022 Report on International Religious Freedom: Iran.[4]
[2] Iran: Situation and treatment of Christians by society and the authorities, 9 March 2021, IRN200458.E, Research Directorate, Immigration and Refugee Board of Canada
[3] September 2022
[4]
The UK Home Office Report states at 2.4.6 that:
In general, a person who is found to have converted to Christianity and who seeks to openly practice their faith in Iran, are likely to be subject to treatment or discrimination by the state that is sufficiently serious, by its nature or repetition, to amount to persecution.
It goes on to state that this is particularly the case if a person is a church leader or evangelises. In the Tribunal’s view, as a Christian convert who would seek to openly practice his faith in Iran, including by evangelising, this would be the situation for the applicant.
In the Tribunal’s view, based on its findings above and the country information referred to, the Tribunal is satisfied that the applicant fears being persecuted for reason of his religion and there is a real chance that he would be persecuted for reason of his religion if he returned to Iran in the reasonably foreseeable future. The Tribunal finds that the real chance of persecution relates to all areas of Iran.
The Tribunal is satisfied that the persecution will be directed at the applicant for the essential and significant reason of his religion, it involves serious harm to him and that it involves systematic and discriminatory conduct in that it is deliberate or intentional and involves significant physical harassment and/or ill-treatment of the applicant and a threat to his liberty.
Given it is the Iranian State that is the agent of persecution in this case, the Tribunal is satisfied that protection against persecution would not be provided to the applicant by the Iranian State and that the Iranian State is not willing and able to offer such protection. On this basis, the Tribunal finds that effective protection measures are not available to the applicant in Iran.
The Tribunal is satisfied that the applicant cannot take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in Iran because a modification would require him to alter his religious beliefs or conceal his true religious beliefs or cease to be involved in the practice of his faith. Accordingly, the Tribunal finds that the applicant has a well-founded fear of persecution for reason of his religion in Iran.
The Tribunal finds that the applicant is outside the country of his nationality and, owing to a well-founded fear of persecution, he is unable or unwilling to avail himself of the protection of that country. Therefore, the Tribunal finds that he meets the definition of refugee in s 5(H)1 of the Act.
As the applicant meets the definition in s 5H(1), the Tribunal is satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
As the Tribunal has found that the applicant meets the refugee criterion in s 36(2)(a) of the Act, it is not necessary to consider whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Rachel Da Costa
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 742

18 January 2024

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Immigration

Statutory Interpretation

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Statutory Construction

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