2311317 (Refugee)
[2025] ARTA 1488
•31 March 2025
2311317 (REFUGEE) [2025] ARTA 1488 (31 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Representative: Dr Sirous Ahmadi (MARN: 0854826)
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 2311317
Tribunal:General Member W Pennell
Date:31 March 2025
Place:Brisbane
Decision:The Tribunal affirms the decision under review.
Statement made on 31 March 2025 at 5:17pm
CATCHWORDS
REFUGEE – protection visa – Iran – religion, political opinion and particular social group – applied for partner visa and granted visitor visa – relationship ceased, domestic violence protection order made and application for partner visa withdrawn – questioning Muslim converted to Christianity – musician playing at mixed-gender events – attendances at protests and churches in Iran and Australia – physical and mental health – fear of harm from authorities and Islamic extremists – delay in departing after visitor visa granted and unhindered departure – vague, inconsistent and contradictory claims, evidence and supporting statements – no evidence of political activity in Iran – first church attendance in Australia after separating from wife and two days before making protection application, soon before visitor visa due to expire – attendance at two protests after making protection application – late claims of harassment, violence and threats by wife to report to authorities – submissions by representative unsupported by evidence – no recent mental health consultations – country information – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Administrative Review Tribunal Act 1958 (Cth), ss 50, 52
Migration Regulations 1994 (Cth), Schedule 2CASES
ABT16 v MHA [2019] FCA 836
Chan v MIEA (1989) 169 CLR 379
Kavan v MIMA [2000] FCA 370
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo Wei Rong (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Selvadurai v MIEA (1994) ALD 346
Subramaniam v MIMA (1998) VG310 of 1997
Zhang Su Rong v Refugee Review Tribunal [1997] FCA 423Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for a review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (‘the delegate’) to refuse to grant the applicant a Protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]
[1]The delegate’s decision of 28 July 2023.
The applicant, who is a citizen of Iran, applied for a Protection visa,[2] and at that time, he was represented by a migration agent. In undertaking an assessment of his application, the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Iran, there was a real risk he would suffer significant harm, and his application was refused on the basis that he was not a refugee as defined by the Act[3] and therefore he was not a person in respect of whom Australia has protection obligations.[4]
[2]The Department of Home Affairs received the applicant’s application on 20 January 2023.
[3]Migration Act 1958 (Cth), s 5H.
[4]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).
After receiving the decision to refuse his application, the applicant filed an application (‘review application’) with the Administrative Appeals Tribunal (‘AAT’) to review the delegate’s decision,[5] and in doing so, he provided the Tribunal with a copy of the delegate’s written reasons for refusing his application (‘Decision Record’).
[5]The Tribunal received the applicant’s review application on 31 July 2023.
Since then, the AAT has been abolished and replaced by the Administrative Review Tribunal (‘the Tribunal’),[6] and under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (‘the Transitional Act’), any applications for review that were not finalised prior to the AAT being abolished were taken to be an application before the Tribunal, and the Transitional Act provides the Tribunal with the authority to finalise any review application not completed by the AAT.[7]
[6]On 14 October 2024.
[7]For the purposes of these Reasons, the reference to ‘the Tribunal’ refers to both the abolished Administrative Appeals Tribunal and the new Administrative Review Tribunal.
At the time of the applicant’s review application being lodged with the Tribunal, he was represented by a registered migration agent (‘applicant’s representative’), and on 1 August 2023, the Tribunal dispatched an email to the applicant and his representative. Enclosed in that email was a letter in which the Tribunal acknowledged receiving the review application.
Subsequently, on 22 January 2025, the Tribunal dispatched an email to the applicant and his representative and enclosed an invitation for the applicant to attend a hearing in respect to his review application, scheduled for 17 February 2025. Both the applicant and his representative appeared at the scheduled hearing, and an interpreter was engaged to assist the applicant throughout the hearing in both the Iranian and English languages.
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]
[10]Migration Act1958 (Cth), s 36(2)(a).
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]
[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, 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 applicant claims to be a citizen of Iran and provided a copy of his passport to the Department to authenticate this claim. The Tribunal accepts his identity and based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Iran is his country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[20]
[20]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations.[21]
[21]Migration Act 1958 (Cth), s 36(3).
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No. 84 made under the Act,[22] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and the 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.
[22]Migration Act 1958 (Cth), s 499.
APPLICANT’S APPLICATION
Prior to the hearing, the applicant’s representative provided to the Tribunal a number of documents which included pre-hearing submissions and evidence. Within those submissions and the evidence, it shows that [in] October 2022, the applicant arrived in Australia subject to a Visitor visa, and in respect to a chronology of events, the following has taken place.
02 September 2022
Application submitted for a Partner (Provisional) (subclass 309) visa.
23 September 2022
Granted a Visitor (subclass 600) visa.
[October] 2022
Arrived in Australia.
28 December 2022
Termination of the applicant’s relationship with his ex-wife [Ms A]. He vacated her house and then moved in to live with his sister and brother-in-law (‘[Mr B]’).
18 January 2023
The applicant attended a church in Australia for the very first time where he met [Pastor C].
20 January 2023
Lodged an application for a Protection visa with the Department.
[January] 2023
Served with a ‘Police Protection Notice’ issued pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) by the Queensland Police Service to appear in the Magistrates Court [in] January 2023.
[January] 2023
Visitor visa expired.
The applicant appeared in the Magistrates Court in Brisbane as a respondent to a domestic violence application. A Domestic Violence Protection Order made by the Court for the maximum period of five years.
07 February 2023
Granted a Bridging A (subclass 010) visa in conjunction with his application for a Protection visa.
28 July 2023
Protection visa application refused.
04 August 2023
The Department wrote to the applicant and acknowledged the withdrawal of his application for a Partner (Provisional) visa (subclass 309) / Partner (Migrant) (subclass 100) visa.
Returning to the applicant’s Protection visa application, the protection claims as they were outlined in his application were:
Provide reasons why this applicant left that country or those countries: The applicant left that country to visit their partner and family on a visitor visa. Did this applicant experience harm in that country or those countries? No Did this applicant move, or try to move, to another part of that country or those countries to seek safety? No
Give details for why this applicant did not try to move to another part of the country or those countries.
The problem began after I left Iran. I participated in anti-regime protests. For more details please refer to my statement. Explain what the applicant thinks will happen to them if they return to that country or those countries: I fear that if I return to Iran, I will be arrested and jailed. I fear that I will get persecuted and tortured in jail. I know that they will hurt me both physically and psychologically. Does this applicant think they will be harmed or mistreated if they return to that country or countries? Yes Give details including:
• the type of harm or mistreatment this applicant is likely to experience
• the person/people who would be responsible for the harm or mistreatment• why they would harm or mistreat this applicant.
Since I have participated in anti-regime protests and believe in Christianity, I am afraid of Iranian authorities, IRGC, and Islamic extremists. From two years ago I began searching and researching about Christianity at home which is another reason as to why I fear for my life. Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back? No Give details about why this applicant thinks the authorities could not, or would not, protect them. Authorities themselves are what I fear.
Does this applicant think they would be able to relocate within that country all those countries to an area where they would not be harmed? No Give details about why this applicant is unable to relocate. I am certain that the moment I arrive in the country I will be arrested and imprisoned by the authorities and security forces. The security and intelligence forces have control all over the country.
On 7 February 2023, the Department sent him a letter (by email to his representative) acknowledging the receipt of his valid application and advised him that an opportunity was available to provide additional information relating to his claims, and that there were a number of ways for him to do that; including through his ImmiAccount, or by mail.
Within the Department’s acknowledgment letter, the applicant was invited to attend an appointment with the Department scheduled for 5 April 2023. The purpose for that appointment was for the applicant to provide his personal identifying particulars, and if he chose to, he could take with him to that appointment any other information, material or evidence to support his application. Although he attended that appointment, he did not provide any further information, material or evidence to support his application at that time.
On 9 May 2023, the Department sent a letter to the applicant (by email to his representative) and invited him (the applicant) to attend an interview with the Department, scheduled for 5 June 2023. In readiness for that interview, on 1 June 2023, the applicant’s representative sent to the Department the following documents.
(a)Medical certificate from [Dr D] dated 16 May 2023. In that certificate, [Dr D] explained that the applicant had presented to the doctor’s practice in January 2023 with severe depression and anxiety. The certificate went on to say that the applicant was still suffering from major depression and generalised anxiety and he was on different medications, and that he had been diagnosed with diabetes and severe dyslipidemia. [Dr D] believed that the applicant required a non-stressful life due to his medical conditions.
(b)Psychological assessment report dated 22 May 2023 compiled by psychologist [Mr E] from the [Psychological Clinic] in Sydney. Aspects of this report are discussed in greater detail later in these Reasons.
(c)Two A4 pieces of paper consisting of six photographic images. The first piece of paper contained four photographs, and the second contained the remaining two images. Although the Tribunal recognises that the applicant is shown in all of those images, the Tribunal finds that there was no description provided on any of the images to identify who the other people are, or what occasion or event those images relate to.
(d)Two A4 pieces of paper, each containing four images. The first piece of paper contains two images of what is purportedly an exchange of text message conversation involving the applicant on 27 February 2023. A further image depicts a spreadsheet making reference to the old Testament and the new Testament.
(e)Psychological assessment report dated 18 January 2023 compiled by psychologist [Mr E] from the [Psychological Clinic] in Sydney. Aspects of this report are discussed in greater detail later in these Reasons.
(f)Letter dated 17 May 2023 from [Dr D] addressed to ‘Doctor A & E, [Hospital]’. The letter addressed the medications prescribed to the applicant at that time, along with a diagnosis on 18 April 2023 that the applicant had diabetes, dyslipidaemia and hypertension. The letter also refers to the applicant’s brother telling [Dr D] of the applicant’s severe depression, anxiety and suicidal ideation.
(g)Letter dated 19 May 2023 from [Associate Pastor C] from [Church 1], Brisbane. It was noted that the letter was not on any formal letterhead for the church, and it outlined that [Associate Pastor C] and the applicant had met for the first time on 18 January 2023.
(h)Applicant’s statement of claims dated 1 June 2023.
(i)Character reference from [Mr F] dated 27 January 2023 who indicated that he had known the applicant since he (the applicant) arrived in Australia.
In regard to the interview scheduled between the applicant and the delegate on 5 June 2023, the applicant participated in the interview. As it is described in the delegate’s Decision Record, the applicant said that he has converted to the Christian religion. He began to question his Muslim beliefs when he was wanting to follow his passion for playing music which is against the Islamic religion. His sister was visiting Iran with her husband (a christian) and he (the applicant) was able to begin to learn more about Christianity. [Mr B], who is the applicant’s brother-in-law and is married to the applicant’s sister, introduced him to [Ms A], whom the applicant later married. She sponsored the applicant to Australia and introduced him to the Christian community in Australia.
He later met [Pastor C] and learned more about Christianity. His marriage to [Ms A] did not last, and this caused him some mental anguish and he has been seeking mental health counselling. He claimed that he has a fear that if he returned to Iran, he would be identified as an apostate because it is illegal to convert from Islam to Christianity, and he will be imprisoned for the crime of abandoning Islam.
The applicant said that he also holds a political opinion which opposes the Iranian government, and he had attended protests in Iran and Australia. After he arrived in Australia he attended about six or seven protests with other Iranians. He also claimed that prior to leaving Iran, he participated in political protests about the death of Mahsa Amini and the rights of women.
Subsequently, on 28 July 2023, the delegate made a decision to refuse the applicant’s application. In refusing that application, the delegate was not satisfied that the applicant had been persecuted in Iran, and there was no evidence of him experiencing serious, or systematic harassment before he departed Iran. Nor was the delegate satisfied that if the applicant returned to Iran, there was a real chance of him experiencing persecution because of his race, religion, nationality, membership of a particular social group or political opinion, and therefore the delegate was not satisfied that he was a person in respect of whom Australia has protection obligations as provided for in section 36(2)(a) of the Act.
In regard to the alternative criterion of complementary protection, the delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Iran, there is a real risk he would suffer significant harm as defined in section 36(2A) of the Act, and therefore he was not a person in respect of whom Australia has protection obligations as provided for in section 36(2)(aa) of the Act.
As it has already been explained in these Reasons, on 31 July 2023, the applicant lodged a review application with the Tribunal. On 1 August 2023, the Tribunal wrote to the applicant’s representative (letter sent by email) and acknowledged receiving the review application. Contained within that acknowledgement letter was the Tribunal’s recommendation that if he was going to provide material or written arguments for consideration, then he should do so as soon as possible.
On 7 January 2025, the Tribunal dispatched an email to the applicant’s representative in which it was outlined that the applicant’s file was being prepared for allocation to a member of the Tribunal. A request was made for the applicant to complete a prehearing information form and return the form to the Tribunal within seven days. It was also outlined that if the applicant had any additional evidence that is relevant to his application, then he should send that evidence to the Tribunal as soon as possible.
On 8 January 2025, the applicant returned to the Tribunal the completed prehearing information form. In that form, he indicated that he did not want to provide any additional documents and that he did not have any witnesses who would be attending the hearing.
On 22 January 2025, the Tribunal wrote to the applicant’s representative (letter sent by email) to advise that a hearing had been scheduled in regard to the applicant’s review application, and that hearing was scheduled for 17 February 2025 in the Tribunal’s Brisbane Registry. Included with that letter was an invitation for the applicant to attend that hearing and he was provided with a ‘Response to hearing invitation’ form. He was asked to complete that form and return it to the Tribunal within seven days.
On 24 January 2025, the applicant’s representative returned to the Tribunal the completed Response to hearing invitation form. In providing that form to the Tribunal, the representative indicated that further supporting documents would be provided to the Tribunal prior to the hearing. In Part 4 of the response form, the applicant was requested to provide information in respect to the witnesses that he intended to call, or rely upon, in regard to the review hearing. In the applicant’s case, when asked whether he was requesting the Tribunal take oral evidence from any other person, the applicant’s response was No.
On 11 February 2025, the Tribunal received from the applicant’s representative an email containing a number of documents which the applicant relied upon to support his application. Those documents were.
(a)Submissions provided by the applicant’s representative, dated 10 February 2025;
(b)Applicant’s statement dated 10 February 2025.
(c)Seven photographic images purportedly of a baptism ceremony undertaken on 28 January 2024 when the applicant was baptised by [Pastor C];[23]
[23]Representative’s submissions, attachments 1 and 2.
(d)Letter from [Pastor C], dated 5 May 2024;[24]
[24]Representative’s submissions, attachment 3.
(e)Letter from [Mr B], dated 1 February 2025;[25]
[25]Representative’s submissions, attachment 4.
(f)Letter from [Senior Pastor G], dated 9 February 2025;[26]
[26]Representative’s submissions, attachment 5.
(g)Two photographic images reportedly relating to a [protest] held in Brisbane [in] April 2023 which was attended by the [Public figure]. The applicant is shown in both of the photographic images, and in one image is shown standing beside the [Public figure].[27]
[27]Representative’s submissions, attachment 6.
(h)Four photographic images of an event reportedly being an Iranian protest in Brisbane [in] September 2023. The applicant is shown in two of those images where he is taking a “selfie” type photograph.[28]
(i)Letter from [Mr H] (undated);[29]
(j)Although this document was titled “Protection Order”, it was actually a Police Protection Notice served by the Queensland Police Service on the applicant [in] January 2023. The applicant was nominated as the respondent in respect to a domestic violence application made to the Magistrates Courts, and [Ms A] is the aggrieved;[30]
(k)Letter from [Mr I], dated 9 February 2025;[31]
(l)Letter from [Mr J], dated 5 February 2025;[32]
(m)Letter from [Mr J], dated 6 February 2025;[33]
(n)Various Department of Home Affairs documents relating to the applicant’s applications for a Partner visa and Visitor visa.[34]
(o)Psychological assessment report from Psychologist [Mr E] dated 18 January 2023; Psychological assessment report from Psychologist [Mr E] dated 22 May 2023; and a Medical certificate from [Dr D], dated 16 May 2023. These are the same reports and medical certificate as provided to the Department on 1 June 2023;[35]
(p)Two letter from Psychologist [Mr K], [Provider], dated 16 October 2023, and 5 February 2025;[36]
(q)Documentation relating to the applicant’s Australian Business Number, [Work-related] Licence, [Work-related] Authority and a vehicle registration certificate relating to the applicant being [an Occupation 1].[37]
[28]Representative’s submissions, attachment 6.
[29]Representative’s submissions, attachment 7.
[30]Representative’s submissions, attachment 8.
[31]Representative’s submissions, attachment 9.
[32]Representative’s submissions, attachment 10.
[33]Representative’s submissions, attachment 11.
[34]Representative’s submissions, attachment 12.
[35]Representative’s submissions, attachment 13
[36]Representative’s submissions, attachment 13.
[37]Representative’s submissions, attachment 14.
In undertaking an assessment of the applicant’s case, the Tribunal has carefully considered each of the documents outlined above, as well as each of the documents the applicant provided to the Department prior to the delegate’s decision being made.
REVIEW HEARING
When the hearing commenced, the applicant’s representative confirmed with the Tribunal that the documentation provided by the applicant to both the Department and the Tribunal was all the material the applicant relied upon. The Tribunal identified to the representative, which was accepted as being correct, that when the Response to hearing invitation form had been returned to the Tribunal, it was indicated that the applicant was not relying upon any witnesses to give evidence on his behalf.
Noting that there had been a number of documents provided to both the Department and the Tribunal by people who could be considered as witnesses, the applicant’s representative was asked whether the applicant intended for any of those people to be called to give evidence before the Tribunal, or was it a situation where he was merely relying upon the contents of those documents.
In asking that question, the Tribunal identified to the applicant’s representative that there was no requirement placed upon the Tribunal to make the applicant’s case for him, as it was his responsibility to specify all particulars of his claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish those claims.
The applicant’s representative told the Tribunal that the applicant would not be relying upon any personal appearances of those people who provided those letters or documents, but rather he relied upon the contents of the letters and documents.
Having read the contents of all the documents provided to both the Department and the Tribunal, when reaching a determination in respect to the applicant’s application, the Tribunal has carefully considered all of the information contained within each of those letters and documents.
The applicant told the Tribunal that his claims for protection revolved around his conversion from Islam to Christianity, his political activities and because he played [Instrument 1] in a musical band
Having assessed the material he provided to the Department and the Tribunal, the Tribunal is satisfied that his application involves claims that he began to question his Muslim beliefs, particularly as he sought to pursue his passion for music, which he felt conflicted with his religious upbringing. His sister’s visit to Iran with her Christian husband ([Mr B]) opened opportunities for him to learn more about Christianity.
Through [Mr B], he met [Ms A], who later became his wife. She played an essential role in his journey by sponsoring him to move to Australia and introducing him to the local Christian community. In Australia, he met [Pastor C], which furthered his exploration and understanding of the Christian faith. Despite the initial promise of his marriage to [Ms A], their marriage did not last, leading to significant emotional distress for the applicant.
This emotional turmoil prompted him to seek mental health counselling to cope with the challenges he faced. He fears that if he returns to Iran, he will be identified as an apostate, and because it is a crime to abandon Islam, he will be imprisoned. He also claims that he holds a political opinion which opposes the Iranian government.
During his oral testimony at the hearing, he told the Tribunal that from the age of three, he had been playing and practising the [Instrument 1]. After he finished his schooling, he enrolled in a music institute and attended classes once a week. At the same time, he was employed in his father’s [business]. He explained that he worked for his father for 17 years.
He married his first wife when he was aged 23. That marriage lasted for 14 years, and he has a daughter who is now aged [Age]. In regards to his own immediate family, his parents still live in Iran, and he has two sisters. One sister lives in Iran, and his other sister arrived in Australia about four years ago on a Partner visa, and she currently lives in Brisbane with her husband, [Mr B]. At the time of the hearing, he was living with his sister and [Mr B].
When asked if any other member of his family had visited Australia, he said that his mother arrived in Australia about two weeks after he did. She came to Australia because his sister was pregnant. His mother had a three year visa, however, the conditions of her visa were that she could only stay for a maximum of a year at any one time, and she had to leave Australia and not return for at least six months. He said that after his mother first arrived, she stayed in Australia for 11 months, then she returned to Iran for about six or seven months. She then came back to Australia, and at the time of the review hearing, she was still in Australia, but was planning to return to Iran the next Thursday after the hearing (20 February 2025).
In regard to his interest in music and playing the [Instrument 1], he said that he loved music and played the [Instrument 1] very well, and started teaching music and also performing in different music groups, but mostly in an underground way. He did not say that he was targeted by any of the Iranian authorities because of his music pursuits, and nor has he provided any evidence of that occurring.
Religious claim
In regard to his religious beliefs, in his statement provided to the Department on 1 June 2023, he said that one of the nicest things that happened to him by being part of a musical group was meeting with, and becoming friends with, a [Instrument 2] teacher called [Mr L]. One day, he overheard [Mr L] talking on the telephone, and from what he heard being said, he understood that [Mr L] had secretly converted to Christianity.
The applicant said that he and [Mr L] talked about Christianity, and he was told by [Mr L] that since he ([Mr L]) had changed his faith, his mind’s working, and his thoughts on the way he lived had changed drastically. As their friendship blossomed, [Mr L] invited the applicant to celebrate Christmas with him, and he (the applicant) was invited to attend a church in Tehran where he met other Christians. He went on to claim that when he attended the Christmas celebration with [Mr L], he found the event to be “so precious and beautiful”. When he decided to take up his new christian faith, he talked to [Mr L] who let him borrow his Farsi Bible.
The applicant did not disclose in his evidence when he first met [Mr L], or in which year it was that he attended the Christmas celebrations at the church in Tehran. Nor does he elaborate on that information he provided, but rather he says that he had converted from Islam to Christianity.
Although the applicant claims that he converted from Islam to Christianity, he did not provide any evidence to the Tribunal that his previous religion was Islamic, or that he had in any way practised that religion, or that any other member of his family, such as his father and mother, identified with the religion of Islam.
After carefully considering his oral testimony at the hearing, and comparing that evidence to what he had said in his statement, the Tribunal finds that his oral testimony about when he first became interested in Christianity was inconsistent with what he had earlier disclosed in the statement he provided to the Department. That inconsistency satisfies the Tribunal to find that his evidence about him becoming interested in Christianity, and the timing of when that happened, is not credible or reliable.
In his oral testimony, he told the Tribunal that at the time when he was studying, he was thinking about Islam and Islamic believes and he felt that his beliefs did not conform with how he felt about life. When asked by the Tribunal how old he was at that time, he said he was aged about 18. He went on to tell the Tribunal that he had been taught with books about Islamic beliefs, wars and killings and revenge, and people said that “we should only accept Muslims, and everyone else were infidels”. He then said that he started doing some research about the inequality between men and women, and why there were wars, and killings, and in Islam there is a particular time and place where he had to pray, and he said that was totally different from his mindset.
Returning to the applicant’s disclosures he made within the statement he provided to the Department, particularly in respect to his religious activities, what he disclosed under the heading of “Becoming Familiar with Christianity” was the comment which flowed on from what he had been discussing about playing the [Instrument 1] in a band.
He said, “One of the nicest things that happened to me as part of this group was meeting with a [Instrument 2] teacher called [Mr L]”. He went on to outline in his statement how their friendship blossomed, and he (the applicant) had been invited to the Christmas celebrations. He also disclosed that because of all of that, he decided to take up a new faith, so he borrowed a Farsi Bible from [Mr L].
He went on to say that [Mr L] introduced him to a group of friends who had converted to Christianity; and they all met in small gatherings “at our homes” to talk about Christianity and to read the bible and pray.
His oral testimony about when he became interested in Christianity is also inconsistent with what he told the psychologist, [Mr E], as well as what is recorded in the statement of [Pastor C].
In the psychological assessment report, it is reported that:
[The applicant] reports that about two years ago during his contact with his brother-in-law who had converted to Christianity from being a Muslim he was advised to find a translated version of the bible and start to read about Jesus and the faith of Christianity, just to see if Christianity can be of help to him. According to [the applicant] he was under extreme stress and pressure about two years ago, and he tried to find a psychologist to start his treatment, when he talked to his brother in laws he was advised to find the bible in the Persian language in case it can help him.
What is recorded in [Pastor C]’s statement is that he ([Pastor C]) was not told by the applicant when he became interested in Christianity, but rather it was [Mr B] who told [Pastor C].
The only time that the applicant disclosed in his statement that he had ever openly practised Christianity in Iran was when he was invited by [Mr L] to celebrate Christmas at a church in Tehran with other Christians. Apart from saying that he had visited the church with [Mr L], he did not say whether the Christmas celebrations took place in a registered church or a home church, however given the flavour of other comments he made in the statement, the Tribunal is satisfied that he was describing a registered church. That is because he went on to say that he decided to take up a new faith and after talking to [Mr L] and borrowing from him his Farsi bible, he was introduced to a group of friends who had also converted to Christianity. He then said they all met in small gatherings “at our homes”, giving the impression that those gatherings were separate from the Christmas celebrations and the meetings took place in a ‘home church’.
His statement to the Department suggested that in the period leading up to when he left Iran and travelled to Australia, he took his laptop to the prayer gathering and shared it with those others in the prayer group. In his statement he does not say where that laptop is, or what happened to it.
He simply said, “I took those videos and documents to our gatherings with [Mr L] and my other Christian friends and shared it with everyone else using my laptop”. When this comment was explored with him by the delegate during their interview, the applicant said that he had been provided with information relating to Christianity beliefs by [Mr B], and he saved this information on his laptop, and shared this information with others at the meetings which took place in the House Churches.
He also said that he took photographs within the House Church, and the laptop was evident in the background. He told the Department during the interview that he believed that the information is now held by the Iranian authorities, and because of that, he would be arrested if he returned to Iran, although he has never explained in his statements or to the Tribunal how he knew or suspected that the Iranian authorities had possession of his laptop.
The Tribunal is satisfied that even if there was any evidentiary basis for the Tribunal to accept that the Iranian authorities had possession of his laptop, the fact remains that he could not have been a person of interest to the authorities because he was able to lawfully depart Iran.
Notwithstanding that he claimed that the information [Mr B] provided to him was on his laptop, when carefully assessing the information contained within [Mr B]’s statement, [Mr B] said that he “began sharing my knowledge and learnings about Christianity” with the applicant and “invited him to study parts of the bible”.
[Mr B]’s statement makes no reference to any laptop, or that the applicant was provided with any material or information by electronic means. All that is said by [Mr B is that there was an exchange of information.
When carefully assessing his evidence about the purported laptop, what confirms it for the Tribunal that the applicant was describing that this event was something which happened recently and just prior to his departure from Iran was his comment in his statement when he said:
While waiting for the visas, I got even more motivated to invest my time in learning about Christianity by using the content that I had gotten from my brother-in-law. I took those videos and documents to our gatherings with [Mr L] and my other Christian friends and shared it with everyone else using my laptop.
When assessing that portion of his evidence, and then matching that against the known timeline of events which he disclosed, he said to the Tribunal that he married [Ms A] [in] June 2022, and in documents he provided to the Tribunal, it shows that an application for his Partner visa was not lodged until 2 September 2022, and his Visitor visa was not granted until 23 September 2022. Therefore, in the absence of any other evidence to the contrary, the Tribunal is satisfied that by the applicant saying that while he was waiting for the visa, he was referring to the three week period between 2 September 2022 and 23 September 2022.
Apart from his discussion about the laptop with the delegate, which is referred to in the Decision Record, the above passage from his original statement of facts provided to the Department is the only reference in his evidence about a laptop. It was not mentioned in the protection claims expressed within his application that he feared that the Iranian authorities may have possession of the laptop, and in fact, when an assessment is made of those original claims in his application, what he said was that his problems began after he left Iran because he had participated in anti-regime protests; and, when asked in the application why he would be harmed or mistreated if he returned to Iran, his response was:
Since I have participated in anti-regime protests and believe in Christianity, I am afraid of Iranian authorities, IRGC, and Islamic extremists. From two years ago I began searching and researching about Christianity at home which is another reason as to why I fear for my life.
The Tribunal finds that he made no reference within his protection claims expressed in his application about having a well-founded fear of returning to Iran because the Iranian authorities had his laptop, and nor had he made reference in his application to him having ever attended any christian activities such as Christmas celebrations in a church, or that he had prayer gatherings with others in a home church. It was only after he had been invited to attend the interview with the delegate scheduled for 5 June 2023 that he provided his statement of claims, in which he raised the comments about the laptop, attending Christmas in a Tehran church and being present in a prayer gathering in a home church. Those disclosures were only made after he was invited for an interview by the Department, and when his statement was provided on 1 June 2023, this was over four months after he had lodged his application.
In regard to house churches in Iran, the country information contained within the current DFAT Country Information Report on Iran provides that the Iranian authorities interpret the growth in house churches as a threat to national security and periodically carry out raids against them. Congregants continually change houses to avoid detection.
Raids by the authorities on house churches are particularly focused on house churches that actively proselytise or seek out new members. Sources have told DFAT that the authorities do not actively look for house churches, but rather, raids occur usually as a result of tip-offs by Muslim neighbours. Other sources say the government sends people posing as converts to infiltrate house churches.[38] The applicant has not claimed, and nor has he ever provided any evidence, that the Iranian authorities ‘raided’ a house church he was associated with.
[38]The DFAT Country Information Report, Iran, 24 July 2023, page 21, paragraph 2.85.
Apart from identifying [Mr L] as being a member of a church in the [District] of Tehran, he does not identify anywhere within either of his statements or his evidence at the hearing that [Mr L] went to the house churches. Although he said that others were at the house church prayer gatherings, he never identified any other person, or indicated that he had anything other than a fleeting or brief encounter with them at the house churches.
In that regard, given that the applicant was a relatively new ‘convert’ to Christianity and known only to [Mr L] (who is not identified as being there at the house churches), and carefully considering the above country information, the Tribunal does not accept that the owner of the house, or the other participants of the house church would have given permission for the applicant to take photographs as he claimed that he did.
The Tribunal also finds that there is an absence within the applicant’s protection claims of any reference to any church, including a house church, and the very first reference he ever made to having attended such an establishment was only made when he provided his statement to the Department after being invited to their interview.
Further to that, apart from saying in his statement “We would all meet in small gatherings at our homes, and we would talk about Christianity, read the Bible and pray”, he did not provide the Tribunal with any tangible evidence that he had ever attended any prayer gatherings within Iran, with the only reference being made in any of his material was in that statement he provided to the Department.
The Tribunal’s findings are further supported by the contents of the statement of [Mr B] where there is a complete absence of any evidence of [Mr B] ever saying, or giving an indication that he had been aware of the applicant ever attending a church in Tehran to celebrate Christmas, or him ever having attended a prayer gathering at his own home or at the home of others.
In respect to his religious activities since arriving in Australia, he said that [Ms A] invited him to join her in Australia to see the community of Christians and converts where they could both participate in Christianity and go to church. She was open about being a Christian and that if he married her and moved to Australia, they could have the freedom to practice their christian faith. He also said that he was excited about the possibility of entering the church with [Ms A] when they moved to Australia.
He claimed that he was overcome with a profound sense of panic and terror for his fellow countrymen and women who were fighting for the basic human rights in Iran, and he sought solace in his Christian faith and turned to Jesus Christ for comfort, and when he came to Australia, for the very first time in his life, he found himself attending a real church, without the constant fear of being arrested for his religious beliefs. He also said that “This became a regular habit of mine, and to my delight, my brother-in-law also joined [Ms A] and me in our Sunday church visits”. He also claimed that this has since became a regular habit of his, and his statement also reflects the comment that “I met [Pastor Given name] during my visits and my friendship with him suddenly fill the gaps that I had in my faith and my life”.
The Tribunal recognises that he was referring to [Pastor C]. However, in respect to his phrase “met [Pastor C] during my visits”, he told the Tribunal during the hearing that after he arrived in Australia, the very first time he attended any church or church service was 18 January 2023. It was on that date that he first met [Pastor C].
The Tribunal finds that when careful consideration is given to his evidence at the hearing on this point, and that is weighed against what he wrote in his statement about attending church, his statement that he met [Pastor C] “during my visits” provides a false narrative as to when he actually first engaged with the church following his arrival in Australia.
When a close examination is made of the evidence of when he and [Ms A] separated, the Tribunal also finds that his very first engagement with religion in Australia did not commence until almost three weeks after his separation from [Ms A], and he became aware that as his sponsor for a Partner visa, she withdrew her sponsorship in respect to that visa.
In regard to his claim that he was accompanied by [Ms A] and [Mr B] when he attended church, the Tribunal does not accept that [Ms A] ever accompanied him to church. This is because there is no evidence within either of the two letters provided by [Pastor C] of him ever knowing [Ms A], or having met her, or ever been aware that she was a parishioner at his church. In fact, [Pastor C] makes no mention of the applicant’s background, why he came to Australia, or anything at all about him being married to [Ms A].
In respect to the applicant’s claim that [Ms A] accompanied him and his brother-in-law, [Mr B], “in our regular Sunday church visits” the Tribunal is satisfied (and so finds) that this statement is not a credible or accurate statement, and it is not supported by the evidence of [Pastor C] or [Mr B], as neither of them make any reference in their statements to [Ms A] ever accompany the applicant to church.
Furthermore, the evidence in this matter shows that the very first time he met [Pastor C] was on 18 January 2023, and he confirmed with the Tribunal in his oral testimony at the hearing that this was the very first time he had attended church since he arrived in Australia.
The Tribunal also finds that about three weeks earlier, he and [Ms A] separated on or about 27 December 2022 because of domestic violence in their relationship. Therefore, she could not have been accompanying him on any “regular Sunday visits” to church and the Tribunal finds that he was not a truthful witness in respect to his involvement in Christianity in Australia after he arrived, and his motivation was to bolster his refugee status because his Visitor visa was about to expire, and he had separated from [Ms A] who was sponsoring his Partner visa application.
In respect to the statements of [Pastor C], notably, in his statement dated 5 May 2024, he said that supposedly the Applicant was a person who [Pastor C] met with “to read the Bible and pray together many times over the past year”, yet there is an absolute absence of any reference to [Pastor C] ever knowing [Ms A], or even knowing of her or knowing why the applicant came to Australia, or why he ([Pastor C]) had provided both of his statements.
The Tribunal is satisfied (and so finds) that there is no evidence of [Ms A] ever attending church with the applicant. The very first statement provided by [Pastor C], dated 19 May 2023, provides that he ([Pastor C]) had only ever met the applicant “this year”, and the very first time that they met was on 18 January 2023. There is nothing mentioned in any of the statements made by [Pastor C] of the applicant ever attending any church services prior to that date; and nor is there any reference to the applicant attending any church services with [Ms A].
Within [Mr B]’s statement, there is a reference to a claim that [Mr B] was excited to take the applicant to church, and he was present when the applicant was baptised. However, there is no evidence from [Mr B] that the applicant attended any church services with [Ms A]. What [Mr B] said was that he had known the applicant for eight years and was married to the applicant’s sister, and he ([Mr B]) had converted from Islam to Christianity and is now a Protestant. Although his statement is silent as to a date, [Mr B] first learnt about the applicant’s claimed interest in Christianity when he (the applicant) was living in Iran, and he began sharing with the applicant his knowledge and learnings about Christianity and invited him to study various parts of the bible.
Although the applicant in his first statement said that [Mr B] guided him thoroughly, and had sent him many resources, videos and prayers, no such evidence was contained with [Mr B]’s statement of him ever providing the applicant with anything such as that, except for what [Mr B] said was “my knowledge and learning about Christianity” and “invited him to study various parts of the bible”.
Described earlier in these Reasons was the applicant providing to the Department two A4 pieces of paper, each containing four images of what is purportedly an exchange of text message conversation on 27 February 2023 involving the applicant. A further image depicts a spreadsheet making reference to the old Testament and the new Testament.
When carefully assessing that evidence, although there are examples shown that the applicant was conversing with [Pastor C], what this evidence shows is that the exchange of text messages was brief, and contained to the exchange happening on 27 February 2023. Notwithstanding this, there is nothing within the applicant’s evidence which explains the exchange of text messages.
Apart from the brief exchange of messages, there is no evidence of any further communications through text messages between the applicant and [Pastor C]. Therefore, although the Tribunal accepts that the exchange of messages did take place, and they relate to [Pastor C] instructing the applicant to read specific parts of the bible, there is no evidence beyond 27 February 2023 of any further instructions about bible reading being given to the applicant.
The applicant had provided to the Tribunal a claim that he is now baptised, and in support of that claim, he relies upon his own evidence, a certificate of baptism and some photographic images, and a statement from [Pastor C] and what [Mr B] said in his statement about him being present when the applicant was baptised.
Turning to the applicant’s evidence, in his second statement dated 10 February 2025, he said that:
I have provided ample evidence in the form of statements from friends and family, my baptism certificate, photos of participation in protests, letters from members of the Christian community and churches in Australia, medical certificates, etc. as well as a submission by my migration agent for your kind review. My case and these documents have been prepared in consultation with me and I confirm reading and understanding them and that they are accurately and completely presenting my claims and most recent circumstances.
Furthermore, [Pastor C] said in his second statement, dated 19 May 2024, that many times over the previous year, he and the applicant met to read the Bible and pray together. During that same period, the applicant visited the churches that [Pastor C] attended during this time; at first it was [Church 1] in [Suburb 1], and more recently it was [Church 2]. He said that he baptised the applicant “at the start of this year”. To support that he had been baptised, the applicant provided photographic images of the baptism ceremony and the certificate of baptism.
When a careful assessment is undertaken of all the evidence in respect to the applicant’s claim that he had been baptised, the Tribunal accepts that he was baptised by [Pastor C] on 28 January 2024, and the Tribunal finds that this ceremony took place 12 months after the applicant’s application was lodged with the Department, and five months after the delegate refused his application.
For the reasons explained throughout these Reasons in respect to the Tribunal careful assessment of all the circumstances and the evidence in this matter, the Tribunal also finds that the applicant’s involvement in Christianity in Australia only arose after he separated from [Ms A], and after he became aware that her sponsorship and support for a Partner visa was no longer available to him, and his determination to involve himself into Christianity was motivated for the purpose of bolstering his migration status as a refugee.
Returning to his claim in respect to religion, when asked by the Tribunal what his concerns were with regard to his religion, he said that because [Ms A] told her family back in Iran about him converting to Christianity, he was concerned that should he return to Iran, he would be targeted by the Iranian authorities because of his Christianity.
Having carefully considered that evidence, the Tribunal is not satisfied that any evidence exists to show that [Ms A] had relayed that information to her family, and even if she had done so, there is no evidence of that information ever been provided to the Iranian authorities, or that the Iranian authorities would have any particular interest in the applicant.
100. Finally, when carefully considering the timeline as discussed earlier in these Reasons, the evidence of the applicant at the hearing was that his first engagement with the church in Australia took place on 18 January 2023, which was after the breakdown of the relationship with [Ms A], and after that he was aware that she was going to withdraw her sponsorship for a Partner visa.
Representative’s submissions – religion
101. Described above was an acknowledgment by the applicant that in respect to all the documents that he relies upon, along with the submissions provided by his representative, he confirmed that he had read and understood all those documents, and they were accurate and completely represented his claims and the most recent circumstances.
102. In making submissions about the applicant’s conversion to Christianity, his representative told the Tribunal that in respect to the applicant’s claim that he has converted to Christianity, [Pastor C] has provided a letter which outlined the applicant’s commitment to his chosen faith, and it was [Pastor C] who baptised the applicant, and they have read the bible together, and [Pastor C]’s evidence outlined that it seems the applicant is seeking to take Christianity seriously, and what this may mean for him if he returned to Iran.
103. The Tribunal does not cavil with that submission, however the representative then went on to submit that [Pastor C]’s evidence:
highlights the personal sacrifices he has made due to his conversion, including deteriorating mental health, inability to maintain safe social interactions, threats against him and the strain on his relationship with his parents who are also threatened by his ex-wife’s father on a number of occasions due to [the applicant]’s new faith. These threats, dangers and risks have severe implications on his life and his family due to the strict enforcement of Islamic law in Iran, which imposes severe penalties for apostasy.[39]
[39]Representative’s submissions, paragraph 5.
104. When contemplating those submissions, the Tribunal has given careful consideration to the contents of both letters provided by [Pastor C] and finds that there is no proper basis for the making of this submission as there is no evidence in either of his letters that support those comments.
105. The representative submitted that the Tribunal should pay particular attention to what he claimed was the threats against him (the applicant) and the strain on his relationship with his parents who are also threatened by [Ms A]’s father on a number of occasions due to the applicant’s new faith.
106. The applicant’s evidence in his two statements and his oral testimony to the Tribunal does not refer to any strain on the relationship between him and his parents. Further to this, the Tribunal rejects that submission because the applicant said that his mother travelled to Australia, arriving soon after he arrived. She stayed with his sister and [Mr B], which is the same residence the applicant moved into when he separated from [Ms A].
107. In furtherance to that, [Mr B]’s statement is devoid of any reference to any strain on the relationship between the applicant and his parents. What [Mr B] said was:
His marriage to [Ms A] caused him frequent problems including threats to him and his family as well as experience of violence and defamation as well as psychological distress. Since 28 December 2022, [the applicant] has cut contact with [Ms A] and has continued to seek solace in his faith and his new life in Australia. Unfortunately, ever since, he has repeatedly faced instances of persecution and threats by [Ms A] here in Australia and his family in Iran have also experienced similar threats from [Ms A]’s family.
108. Therefore, the Tribunal is satisfied that the only reference [Mr B] makes about threats taking place in Iran is his comment that “he has repeatedly faced instances of persecution and threats by [Ms A] here in Australia and his family in Iran have also experienced similar threats from [Ms A]’s family”.
109. He does not provide any specifics about the claimed threats, such as when they were made, or where those threats took place in Iran. Furthermore, any suggestion or claim of the applicant’s parents experiencing harassment from [Ms A]’s parents in Iran because of the applicant’s conversion to Christianity is only ever referred to in the applicant’s second statement which he made on 10 February 2025.
110. The Tribunal finds that this claim was not referred to in either his initial application for a Protection visa, or his lengthy first statement which he provided to the Department prior to being interviewed by the delegate.
111. What he said in his second statement was:
I submitted a Protection visa application in January 2023. This application was submitted after I experienced harassment, violence and threats from my ex-wife, [Ms A]. She sent video recordings of my participation in anti-regime protests to her father who is a hardliner supporter of the Islamic Regime and told him that I have converted to Christianity.
…..
My family in Iran are not safe from [Ms A] either. While I have chosen to forgive her and pray for her to find peace and solace, my family in Iran have been harassed by her father and sister who showed up at my family’s place of residence and caused a scene, shouting many obscenities and threats, namely an “apostate lives here!”. This has disrupted the life of my family as they feel threatened and afraid.
112. The Tribunal has given very careful consideration to the contents of both of his statements so far as his comments about what he claimed members of [Ms A]’s family in Iran did. In the above passages lifted from his second statement, he refers to why his application was submitted from what he claimed was harassment, violence and threats from [Ms A].
113. The Tribunal rejects that claim and finds that he has not provided any evidence of her being violent, harassing or threatening towards him prior to his application being lodged.
114. Although he has provided a number of statements from his friends, those statements refers to events which took place well after he lodged his Protection visa application. Furthermore, when discussing [Ms A], he goes to significant effort to denigrate her and claim that she had been domestically violent towards him, yet he has never sought assistance from the police for his own protection, or even sought from the Court an Order preventing her from undertaking that alleged activity. The Tribunal finds his complaint about her to be baseless, self-serving and designed to bolster his refugee status.
115. In the absence of any evidence to support the claims he raised in his second statement, which have been outlined above in these Reasons, the Tribunal finds that those claims differ to what he had earlier said in his first statement. Whereas his second statement spoke about threats to his family in Iran by members of [Ms A]’s family because of his religion, he did not make any reference in his first statement about his family in Iran being harassed by [Ms A]’s family because of religion, instead he claimed it was because he had engaged in political protests in Australia. In his first statement he said:
I started attending those protests on a regular basis. [Ms A] was not interested in attending those protests and this was a trigger for many of our arguments. She, however, accompanied me to a couple of those protests. During these protests, there was a lot of media coverage with photo and video coverage and even [Ms A], herself, took many photos and videos. I later learned that she had shared those photos and videos with others including her father who resides in Iran. As our relationship was breaking down to pieces, [Ms A] started to act aggressively wanting me to leave Australia while at the same time making sure that I will be in a trouble with the Iranian government as soon as I returned. Her father then called my father in Iran and used very rude words to threaten them because of my activities in Australia. Using abusive language, he had told my father that he will make sure I will be both kicked out of Australia and get jailed in Iran. He had accused me of encouraging her daughter to participate in anti-regime protests in Australia, something that he is strongly against.
116. The applicant’s representative submitted that “Threats against [the applicant]’s life began after his ex-wife, [Ms A], and her family reported him to Iranian authorities as a result of the breakdown of their relationship in Australia”. The Tribunal finds that there is no proper basis for the representative to make that submission as there is absolutely no evidence presented to either the Department or the Tribunal, or given in the applicant’s oral testimony, of [Ms A] or any member of her family ever reporting the applicant to the Iranian authorities for any reason whatsoever. Therefore, the Tribunal wholeheartedly rejects that submission.
117. At best, what the applicant said in his second statement was “my family in Iran have been harassed by her father and sister who showed up at my family’s place of residence and caused a scene, shouting many obscenities and threats, namely an “apostate lives here!”. “This has disrupted the life of my family as they feel threatened and afraid”. He went on to speculate that “If as a result of [Ms A]’s threats and her family’s reporting to the IRGC I am to be returned to Iran, my life will be at extreme risk”.[40] He did not say how he knew, or when he became aware of this, and nor did he say that the Iranian authorities has visited his parents in Iran about this particular issue.
[40]The applicant described the IRGC to be the Islamic Revolutionary Guard Corps.
118. Furthermore, the applicant’s representative further submitted the following passage:
In parallel to these malicious threats against [the applicant] in Australia, [Ms A] has sent his family, including her father and her sister, to [the applicant]’s parents’ house. Their arrival was marked by loud disturbances and threatening remarks about [the applicant] being an apostate and an opposer of the regime and their goal was to disturb the neighbours in the building complex and to spread information about [the applicant]. [The applicant]’s father was strongly affected and concerned by this intrusion to their privacy. He was also afraid of calling the police because the police in Iran are affiliated with the government and given [the applicant]’s political activism and status as an apostate, he would be sooner harmed than helped by the government. After some time of ignoring [Ms A]’s family at their door, they exited the building due to interferences by other neighbours who asked them to leave, however, [Ms A]’s father made it clear in his threats that he would not let [the applicant] live in peace and his place would be behind bars and on the way to execution for his behaviours, change of faith and political position.
119. When carefully assessing those submissions and weighing them against the evidence provided by the applicant within his two statements, and his evidence during his oral testimony, the Tribunal finds that there is no proper basis for those submissions to have been made, and they are not accepted by the Tribunal because there was never any evidence provided by the applicant, or anyone else that:
(a)By [Ms A]’s family going to the applicant’s family’s house, their goal was to disturb the neighbours in the building complex and to spread information about the applicant.
(b)The applicant’s father was strongly affected and concerned by this intrusion to their privacy, and he was also afraid of calling the police because the police in Iran are affiliated with the government and given [the applicant]’s political activism and status as an apostate, he would be sooner harmed than helped by the government.
(c)After some time of ignoring [Ms A]’s family at their door, they exited the building due to interferences by other neighbours who asked them to leave.
(d)[Ms A]’s father made it clear in his threats that he would not let [the applicant] live in peace and his place would be behind bars and on the way to execution for his behaviours.
120. Further to this, the Tribunal finds that within both his statements, the applicant refers to interactions between his family in Iran, and [Ms A]’s family. Within his first statement, he said that [Ms A]’s father “called” the applicant’s father, whereas in his second statement that has morphed into [Ms A]’s father and sister showing up at his family’s home.
121. By way of comparison of the Tribunal’s findings, the relevant passage from his first statement said:
Her father then called my father in Iran and used very rude words to threaten them because of my activities in Australia. Using abusive language, he had told my father that
he will make sure I will be both kicked out of Australia and get jailed in Iran. He had accused me of encouraging her daughter to participate in anti-regime protests in Australia, something that he is strongly against.
122. Whereas in his second statement, he claimed that:
My family in Iran are not safe from [Ms A] either. While I have chosen to forgive her and pray for her to find peace and solace, my family in Iran have been harassed by her father and sister who showed up at my family’s place of residence and caused a scene, shouting many obscenities and threats, namely an “apostate lives here!”. This has disrupted the life of my family as they feel threatened and afraid.
123. When a very careful consideration is applied to those two passengers extracted from both of his statements, the Tribunal is satisfied, and so finds, that the claims and the allegations in regard to the alleged actions of members of [Ms A]’s in Iran are completely inconsistent with each other, they are unreliable and devoid of any credibility.
124. In regard to any suggestion that the applicant would become a person of interest to the Iranian authorities, the Tribunal particularly notes that from what the applicant told the Tribunal, his mother arrived in Australia two weeks after he did and she stayed for 11 months before returning to Iran.
125. The applicant went on to tell the Tribunal that his mother remained in Iran for six months, and then travelled back to Australia again. She was due to leave Australia and return to Iran a few days after the hearing took place.
126. Since the breakdown of the applicant’s relationship with [Ms A], his mother has been in Australia and returned to Iran. There has been no evidence to show that she experienced any difficulties in returning to Iran, or indeed when she again left that country to travel to Australia for the second time. Nor does the applicant claim that the Iranian authorities ever stopped his mother at the airport, or visited her or his father at their family residence to seek out the applicant.
127. Therefore, the Tribunal is satisfied (and so finds) that any claim made by the applicant that he is a person of interest to the IRGC because of his religion is speculative. As the High Court has determined in Minister for Immigration and Ethnic Affairs v Guo Rei Wong, mere speculation cannot establish a well-founded fear. A fear of persecution is not well founded if it is merely assumed or of it is mere speculation. The High Court went on to find:
Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[41]
[41] MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS V GUO WEI RONG & ANOR (1997) 191 CLR 559, 572; CITING CHAN YEE KIN & ORS V MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (1989) 169 CLR 379, 397.
128. In furtherance to the claim in respect to the applicant’s conversion to Christianity, and to show that there was a significant risk of harm to him if he returned to Iran, the applicant’s representative then went on to submit that:
Since his conversion to Christianity, [the applicant] has been actively evangelising by talking to his friends in Iran over the phone. He has shared about the important and transformative influence of Christianity in his life.[42]
[42]Representative’s submissions, paragraph 8.
129. Again, the Tribunal has very carefully assessed the information contained within the first of the applicant’s statements which he provided to the Department in June 2023, and his second statement provided to the Tribunal just prior to the hearing. In neither of those statements was there any reference to the applicant “actively evangelising by talking to his friends in Iran over the phone”. Nor did it form part of his oral testimony at the hearing that he undertook any such activity.
130. It was not explained by the representative in the submissions where it is referenced within any of the material made available to the Tribunal that the applicant actively evangelised by talking to his friends in Iran over the phone.
131. Upon the Tribunal’s reading of the applicant’s statements, as well as considering the applicant’s oral testimony at the hearing, the Tribunal finds that there is no reference at all in the evidence that reflects that submission, and nor is there any evidence to support that submission. Therefore, the Tribunal finds that submission that the applicant had been actively evangelising to his friends in Iran is baseless, lacks veracity, and was made without any proper basis having regard to the available evidence. Therefore that submission is completely rejected.
Musician claim
132. Originally, when his application was lodged, the applicant was represented by a migration agent. Within his application, he made absolutely no reference at all to having an interest in music, or having any fear of returning to Iran because of his music interests. Instead, he said that he left Iran to visit his partner and family on a Visitor visa, and he had not experienced harm in Iran before he left, and nor had he moved or tried to move to another part of Iran to seek safety because his problems began after he had left Iran, and this resulted from his participation in anti-Iranian regime protests.
133. The applicant then said in his application that more details about his involvement in those protests were to be included in a statement. He went on to say in his application that he feared that if he return to Iran, he would be arrested and jailed, and he feared being persecuted and tortured in jail because he had participated in anti-regime protests. He believed in Christianity and he was afraid of the Iranian authorities.
134. Upon a careful assessment being undertaken of his application, there is absolutely no reference to him being involved in any musical band, or that he was in any way concerned for his safety because he had played in any musical band. Nor had there been any reference made in his application about any of his associates, fellow band members or other friends being persecuted, or subjected to persecution in Iran because of their involvement in playing musical instruments.
135. In his first statement which was provided to the Department just prior to the primary decision being made to refuse his application, he said that after he finished school in [Year], and because he loved music and played the [Instrument 1] very well, he started teaching music and also performing in different music groups, but clarified that his performance in those groups was mostly in what he described as “an underground way”.
136. He then said that he soon realised that he needed to pursue another line of work and abandoned his childhood passion of playing [Instrument 1], so he went to work in his father’s profession which was the construction of [products]. This was to increase his income and experience, as well as to manage his father’s business. He took on a managerial role at the workshop to learn how to become a professional [Occupation 2].
137. He then said that music never left his mind, and he knew in the back of his mind that it was a matter of time before he would return to practice music as it was more than just a hobby. He went on to say that he had made a few friends who were all musicians and by using their referrals, he managed to start teaching music again to a few students.
138. Within his first statement, he made reference to him becoming familiar with Christianity, and he said that the very fact that he was unable to play music freely in Iran should have been enough of a red flag to him to turn his back on what he described as the barbaric religion of Islam.
139. He further said that he started joining musicians who had legal permits from the Ministry of Culture and Islamic Guidance, but claimed that his collaboration with them did not last long because of the restrictions and corruptions that existed in the very limited sphere of legal musical work in Iran.
140. Notwithstanding that, through some connections, he managed to find work with bands that played musical entertainment during weddings and parties. He said that permits were not issued for such performances, especially if the ceremony was not a “gender-segregated” ceremony or event. He then said that if the police or judiciary forces raided those events, those authorities could easily arrest the guests, as well as the musicians and imprison them. He added that the authorities:
could also confiscate our musical instruments and even destroy them if they willed. Unfortunately, I also had similar experiences which left me completely traumatised and uncomfortable in my profession.
141. Although he made that comment, he did not specify the event, or discuss what happened to him (if anything) or what action the authorities took (if any). Nor did he say that any harm was caused to him, or that he had been taken into custody, or even questioned by the authorities in regard to his involvement in any musical band.
142. Within the submissions provided by the applicant’s representative, it is indicated that the applicant was not a person of interest to the Iranian authorities because he was a musician and the submissions conceded that the applicant:
341. When careful consideration is applied to the evidence of this matter, as well as the applicant’s claims for protection as they have been described earlier in these Reasons, he claims that he has a well-founded fear of returning to Iran for three reasons. Those reasons are:
(a)Religion. He claims that he was a Muslim, and started practising Christianity in Iran, and since arriving in Australia he continued practising Christianity and is now baptised. If he returned to Iran he will be arrested by the authorities because his ex-fife [Ms A] told her family in Iran, and they (members of her family) caused trouble for him and visited his parents in Iran calling him an apostate.
(b)Member of a particular social group. He claims that he is a musician, and a [Instrument 1 player] in a band. When living in Iran, he was a member of bands which played at mixed-gender events which is against the law.
(c)Political. He claims that he has a political profile in both Iran and Australia by his attendance at a protest in Tehran, and since arriving in Australia he has also attended other protests against the political regime in Iran.
Religion
342. In respect to his claim relating to religion, although the Tribunal accepts that the applicant was baptised on 28 January 2024, it makes the following findings.
343. The Tribunal particularly takes note, and finds accordingly, that at the time of the applicant meeting [Pastor C] for the first time, almost three months had passed since he (the applicant) had arrived in Australia. During that period, a very significant event took place in the Christianity calendar, and that event was the celebration of the birth of Jesus, also referred to as Christmas.
344. Within his statements, the applicant claims that he was enthusiastic and serious about Christianity when he was living in Iran, and being part of the ‘new community’ of Christians made him feel more adamant to pursue his dream of becoming a better musician. He went on to say that in such distressing times, he tried to anchor himself into Christianity, so he followed the teachings of Jesus Christ.
345. After learning that [Mr B] had converted to Christianity, and he (the applicant) was really delighted that he could talk about his chosen faith to his sister and [Mr B] without needing to hide it any longer. He said that [Mr B] guided him thoroughly and sent the applicant many resources, videos and prayers. He then claimed that he fully basked in those products and felt much more hopeful and stronger in pursuing his new faith.
346. He also claimed that after meeting [Ms A], she was also very open to him being a Christian and she kept telling him that if he married her and moved to Australia, they could have the freedom to practice their faith and get to know a beautiful inclusive culture. He went on to say that as it came time for [Ms A] to return to Australia, they agreed to get married and their wedding took place in the last days of her stay in Iran. She invited him to join her in Australia to see the community of Christians and converts, where they could both participate and go to church. He claimed that he felt like there is a light at the end of the tunnel for practicing his new faith instead of doing it in hiding.
347. He went on to say in his statement that when [Ms A] returned to Australia, she applied for a Partner visa for him to join her in Australia. He was very excited for the possibility of entering a church with his most loved one in a calm and spiritual space. Because of the COVID-19 pandemic, their visa application process was slowed, and while waiting for the visas, he got even more motivated to invest his time in learning about Christianity by using the content which [Mr B] has sent him.
348. When carefully assessing that evidence, it appears that the applicant was portraying an image of himself to be completely devoted to Christianity, with a desire and anticipation of having the opportunity of being able to associate freely and openly with other Christians in a free society when he got to Australia. Notwithstanding that he claimed that [Ms A] accompanied him to church, the Tribunal finds that there is no evidence provided within the statements of [Mr B] or [Pastor C] that supports any proposition that [Ms A] is a christian, and that she attended church.
349. In fact, both statements provided by [Pastor C] are completely silent in respect to any reference about [Ms A], or indeed that the applicant had married her and she was his wife. Therefore, the Tribunal does not accept that she is a christian as claimed by the applicant, or that she encouraged him to attend church services in Australia.
350. Within his statement, he also said that after meeting [Mr L], he was invited to celebrate Christmas with him in Iran. [Mr L] was a member of a church in [District] in Tehran and after talking to the church authorities, he ([Mr L]) managed to invite the applicant inside the church to celebrate Christmas. The applicant then described in his statement that this particular Christmas celebration was “so precious and beautiful” to him.
351. Yet, despite him making all those claims about how devoted he was to Christianity, and how precious and beautiful celebrating Christmas was as a christian, when presented with an opportunity to celebrate Christmas freely and openly as a christian with other Christians in Australia soon after he arrived, he did not attend any church services.
352. After carefully considering all of the available evidence, the Tribunal finds that the very first time he made any effort to engage with or attend any church for religious activities after he arrived in Australia was on 18 January 2023 when he met [Pastor C] for the very first time. That meeting, and the applicant’s first display of any effort to engage with, or visit any church took place almost two and half months after he arrived in Australia, and almost a month after his relationship with [Ms A] broke down and he became aware that her sponsorship for a Partner visa had collapsed.
353. Further to this, the applicant provided to the Department a page containing images from an exchange of text messages. By carefully assessing the information in those images, the ‘chat group’ involved the applicant, [Pastor C] and [Mr B], and the group was created by [Pastor C] on 27 February 2023, which was five weeks after they first met. Apart from this evidence provided by the applicant, there is nothing else to validate or show that there was any other ‘homework’ provided to the applicant by [Pastor C] for the applicant to do any bible reading during that intervening five week period, or at any other time after 27 February 2023.
354. In regard to the applicant’s involvement in Christianity in Australia, the Tribunal finds that although the applicant claims that [Ms A] is a christian, and that she accompanied him to church when they were in Australia, there is no evidence within the statements provided by [Pastor C] of her ever attending any church. [Pastor C] said in his first statement that since 18 January 2023, the applicant has regularly attended the church. In neither of his statements does he mention [Ms A] ever attending church with the applicant. Therefore, the Tribunal finds that the applicant’s evidence about him attending church with [Ms A] is not supported by the evidence and his evidence lacks credibility.
355. Apart from the applicant’s claims that he participated in Christianity in Iran, and had attended a church to celebrate Christmas, as well as attended a home church, he has not provided any evidence to support this. His brother-in-law is [Mr B], and in his statement ([Mr B]) it is indicated that they have known each other for eight years. Notwithstanding that, [Mr B]’s statement is silent so far as the applicant attending any churches in Iran.
356. [Mr B]’s statement suggests he first learnt about the applicant’s interest in Christianity when he (the applicant) was living in Iran. Despite saying that, [Mr B]’s statement is completely silent about those Christian activities that the applicant claims he participated in when he lived in Iran. If they were as close as claimed, and they had shared information about Christianity as claimed, then there is no explanation as to why [Mr B] did not disclose anything about being aware of the applicant attending a church at Christmas, and that he had attended home churches.
357. Given the examples within these Reasons of the Tribunal’s findings that the applicant was not a credible witness, the Tribunal is troubled by the absence of any information in [Mr B]’s statement about what has just been referred to, and finds that the applicant’s claims of participating in religious activities in Iran lacks credibility, and is not reliable. That finding is supported by the Tribunal’s earlier findings that the applicant’s portrayal of what he told to the psychologist what happened to him in Iran, and his first blush with Christianity in Australia did not occur until almost three months after he arrived.
358. Therefore, the Tribunal finds that although he has been baptised by [Pastor C], and he has maintained a connection with the church in Brisbane, the Tribunal finds that his evidence about his involvement in Christianity in Iran is not credible or believable. The Tribunal also finds that it was only after he had separated from [Ms A], who was his sponsor in respect to an application for a Partner visa, that he made his very first approach to Christianity within Australia. Having particular regard to his evidence about what he said was his feelings about Christmas celebrations he experienced in Iran, and the fact that he had not attended the same celebrations in Australia is an example that his claim in respect to Christianity and religion was only undertaken to bolster his claims to be a refugee in Australia.
Particular social group - musician
359. Turning to the applicant’s claim that he was a musician in Iran, although the Tribunal accepts his evidence that he played the [Instrument 1] in a band in Iran, and he has continued his music pursuits here in Australia, he has provided no evidence to either the Department or the Tribunal that he was contravening any law within Iran by being a musician. Therefore, the Tribunal does not accept that there is a real chance that the applicant will be persecuted because he is a musician if he returned to Iran.
360. Earlier in these Reasons, the Tribunal discussed the evidence that although he may have had an interest in music in Iran, and had played the [Instrument 1] under varying circumstances including during weddings and parties where the participants in those events were not segregated because of their gender, he presented no evidence to the Department all the Tribunal of him ever interacting with the authorities because he was a musician.
361. The Tribunal further finds that although he claimed that the authorities could confiscate his musical instruments and even destroy them, and that he had experienced a similar incident, his explanations were vague and non-specific, and those claims are rejected by the Tribunal..
362. Within the evidence provided to the Tribunal and the Department, there were psychological assessment reports undertaken of the applicant. Within the assessment report dated 18 January 2023, the psychologist referred to the applicant’s disclosures that before leaving Iran, he used to play in bands for weddings, which were mixed, and during these events there were times when the security police would invade and arrest people.
363. It is recorded within the psychological assessment report that the applicant told the psychologist that he had been arrested a few times and was threatened. As it has been earlier identified by the Tribunal within these Reasons, notwithstanding those comments recorded by the psychologist in his report, this is contrary to what is contained within the applicant’s statement and his evidence at the hearing where he made no reference at all of ever being arrested in Iran, in particular being arrested by the authorities for reasons of him playing in bands at weddings and other such events.
364. When careful consideration is given to the inconsistency between that evidence, the Tribunal is satisfied that his evidence is neither credible or reliable, and the Tribunal finds that he was not arrested in Iran, and nor did he have any adverse interactions with the Iranian authorities because he was a musician. A further confirmation that the applicant’s evidence is not credible or reliable was when he told the psychologist that he left Iran without heeding the calls for him to attend court hearings and all his previous experiences with the morality police could cause further trouble.
365. Similar to the Tribunal’s observations as described above, there was nothing contained within either of the statements provided by the applicant, or within his oral evidence that resembled anything about him having to attend a court hearing in Iran because he had been arrested by the authorities, and the Tribunal finds that he is not a witness of credit in respect to his claims.
Political profile
366. In respect to the applicant’s claims that he has a strong political opinion against the Iranian government, earlier in these Reasons, the Tribunal discussed all the known evidence and circumstances of his claims, and the Tribunal made findings that although he may have attended events in Iran and in Australia, his involvement in those events was no greater than being a mere participant.
367. Within the psychological assessment report dated 18 January 2023, the psychologist recorded that the applicant had told him that during the time that he had been in Australia he had attended protests against the Iranian government. The applicant has provided a number of photographic images of what he said were two political protests that he attended [in] April 2023 and [in] September 2023. There is no evidence presented to the Tribunal or provided to the Department which shows that since September 2023, he has engaged in any event which could be construed as a political protest against the Iranian government.
368. As it has been pointed out earlier in these Reasons, when careful assessment was undertaken of those photographic images, the Tribunal found that the event which he purports to be a political protest [in] April 2023 was not a political protest, but rather an event celebrating an Iranian cultural occasion. In respect to the other event which took place [in] September 2023, although the applicant had photographed himself twice at that event, there was no evidence provided to the Tribunal that the Iranian authorities had been provided with a copy of those photographs, which he himself had taken, and nor was there any evidence this event was drawn to the attention of the Iranian authorities.
369. When careful consideration is applied to the evidence provided by the applicant about what he claimed was his actual or imputed political profile in Australia, what he said in his evidence was that he regularly attended weekly protest every Saturday in Brisbane, and [Ms A] accompanied him to a couple of those protest.
370. It is known by the evidence in this matter that the applicant and [Ms A] separated on 28 December 2022, and the applicant told the Tribunal that the very first political event that he attended in Australia was [in] April 2023. Therefore, the Tribunal finds that his evidence within his statement that he attended weekly protests in Brisbane with [Ms A] is a serious misrepresentation of the facts.
371. The applicant also claimed that [Ms A] took videos and photographs of him attending protests in Australia, and copies of those photographs and videos have made its way back to her family in Iran. He was concerned that those images would be made available to the Iranian authorities. Having particular regard to the reasons for the Tribunal’s findings as they have just been outlined, the Tribunal also finds that [Ms A] did not attend any protests in Australia with the applicant, and therefore, the Tribunal finds that the applicant’s claim that photographs and/or videos images of him attending political event in Australia has been provided to some other person in Iran completely lacks any credibility and the claim is rejected.
372. In respect to the applicant having a political profile in Iran, he described in his statement dated 1 June 2023 that there were a number of protests in Iran against the Iranian regime because of the death of a young woman called Mahsa Amini. He went on to say he actively participated in some of those protests. He repeated that claim in the second statement dated 5 February 2025. However when asked by the Tribunal at the hearing about those events, his evidence was that he only attended one political protest when he was in Iran and he was not in any way involved in the organisation or coordination of that event, and he was nothing more than a mere participant. He told the Tribunal that during that protest, he had not in any way interacted with the Iranian authorities, and nor was his presence at that event made known to the authorities.
373. When all of that evidence is weighed against the applicant being able to depart lawfully from the international airport in Iran to travel to Australia, the Tribunal finds that he does not have a political profile, either actual or imputed, in Iran.
374. Consequently, after having considered all the circumstances as it applies individually and cumulatively to the applicant, the Tribunal is not satisfied that he has a well-founded fear that if he returned to Iran, there is a real chance that he will be persecuted for reasons of his race, religion, nationality, membership of a particular social group or political opinion.
375. Therefore, the Tribunal finds that his fear of persecution is not well-founded as required by section 5J of the Act, and he is not a refugee as defined in section 5H(1) of the Act. Accordingly, the Tribunal finds that he is not a person in respect of whom Australia has protection obligations as provided for in section 36(2)(a) of the Act.
COMPLEMENTARY PROTECTION CONSIDERATIONS
376. Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[57] the Tribunal has given careful consideration to the alternative criterion of complementary protection.[58] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Iran, there is a real risk that he will suffer significant harm as it is defined in the Act.[59]
[57]Migration Act 1958 (Cth), s 36(2)(a).
[58]Migration Act 1958 (Cth), s 36(2)(aa).
[59]Migration Act 1958 (Cth), s 36(2A).
377. Significant harm is defined within section 36(2A) of the Act as the person will be arbitrarily deprived of their life; the death penalty will be carried out on the person; the person will be subjected to torture; the person will be subjected to cruel or inhuman treatment or punishment; or the person will be subjected to degrading treatment or punishment.
378. Section 36(2)(aa) of the Act provides that the relevant risk threshold in assessing complementary protection is that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia, there is a real risk that he will suffer significant harm if returned to Iran. The Courts have adopted the principle that the test for ‘real risk’ imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[60]
[60]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
379. Real chance was also discussed in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and the High Court said the expression ‘a real chance’ clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring.[61] The question of ‘real chance’ is the test to be applied on an application for a Protection visa when considering whether the applicant has a well-founded fear that they will face persecution for a Convention reason if returned to their country of nationality.[62] A person’s fear of persecution must be well-founded on the basis that there is a real chance that they will be persecuted if they return to their country of nationality. A real chance is one that is not remote, regardless of whether it is less or more than fifty per cent.[63]
[61]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Boughey v The Queen (1986) 161 CLR 10, 21.
[62]Migration Act 1958 (Cth), s 36(2)(a); Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Regina v Home Secretary; Ex parte Sivakumaran (1988) AC 958.
[63]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
380. Turning to a consideration as to whether the harm the applicant claimed he feared could constitute either of the forms of significant harm as they are defined within section 36(2A) of the Act. He claims that because of his actual or imputed political profile, his religious beliefs and that he was a musician, if he were to return to Iran in the reasonably foreseeable future, he would be subjected to substantial harm.
381. In that regard, the applicant claims that if he was returned to Iran, there is a significant risk of him being arrested because he has converted to Christianity. He also claims that he has acquired an actual or imputed political profile because he engaged in political protests here in Australia and in Iran, and if he returned to Iran there is a real risk of him experiencing significant harm; and that being a musician provides also provides a risk of significant harm to him.
382. As it has already been explained in these Reasons, the Tribunal finds that he has engaged in religious and political activities here in Australia purely designed to bolster his status as a refugee. Significant examples have been outlined throughout these Reasons of the applicant’s lack of credibility, and an example of this is what the psychologist reported about the applicant’s claims about being arrested in Iran. The Tribunal is satisfied that this was the applicant’s attempt to portray to the psychologist that he had an actual political profile in Iran and had been arrested, however his evidence at the hearing was inconsistent with that.
383. Having carefully considered the applicant’s claims and the evidence which has been presented, the Tribunal finds that there have been a number of examples whereby the applicant’s evidence has been inconsistent, and lacked credibility. Those examples have already been canvassed and discussed within these Reasons.
384. Therefore, after having carefully considered all of the applicant’s claims, individually and cumulatively, along with the disclosures he made when he gave evidence at the hearing, the Tribunal is satisfied (and so finds) that if he returned to Iran, there is not a real chance he would face anything that amounted to ‘significant harm’ as provided for in section 36(2A) of the Act.
385. Furthermore, the Tribunal does not accept that if he returns to Iran now or in the reasonably foreseeable future he will be arbitrarily deprived of life, the death penalty will be carried out on him, or he will be subjected to torture or to cruel or inhuman treatment or punishment, and nor will he be subjected to degrading treatment or punishment.
CONCLUSION
386. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act (‘refugee criterion’).
387. Having concluded that he does not meet the refugee criterion, consideration has been given to the alternative criterion of complementary protection and the Tribunal is not satisfied that he is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.
388. There is no suggestion that the applicant satisfies section 36(2) of the Act based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a Protection visa. Accordingly, he does not satisfy the criteria in section 36(2) of the Act.
DECISION
389. The Tribunal affirms the decision not to grant the applicant a Protection visa.
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.
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36 Protection visas – criteria provided for by this Act
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(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.
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