2403903 (Refugee)
[2025] ARTA 2173
•31 July 2025
2403903 (REFUGEE) [2025] ARTA 2173 (31 JULY 2025)
DECISION AND
REASONS FOR DECISION
Representative: Dr Arash Mehrafrooz (MARN: 2318129)
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2403903
Tribunal:General Member C Duffy
Date:31 July 2025
Place:Brisbane
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.
Statement made on 31 July 2025 at 3:15pm
CATCHWORDS
REFUGEE – protection visa – Iran – religion – conversion to Christianity – determining the matter without a hearing – cognitive impairment – fear of detention – fear of killing – church activities in Australia – decision under review remitted
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), ss 9, 106
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 348, 499
Migration Regulations 1994, Schedule 2CASES
AGU16 v Minister for Immigration & Anor [2016] FCCA 1647
BXFHJ v Minister for Immigration and Multicultural Affairs [2025] ARTA 550
Chan Yee Kin v MIEA [1989] HCA 62Any 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 review of a decision made by a delegate of the Minister for Home Affairs on 22 February 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
In her application for a protection visa of 26 October 2023, the applicant asserted that she was a national of Iran and that she was seeking protection from, and could not return to, that country.
By a decision of 22 February 2024, the delegate refused to grant the visa on the basis that the applicant was neither a refugee, nor a person in respect of whom Australia owed ‘complementary protection’, under the Act. At the core of the delegate’s decision was the fact that they did not accept that the applicant had “genuinely converted” to Christianity. They also found that the applicant did not face a real chance of serious or significant harm if she was to return to Iran.
The applicant sought review of the delegate’s decision to refuse to grant her a protection visa with the then Administrative Appeals Tribunal (AAT) on 3 March 2024. Along with this application, the applicant provided the Tribunal with a copy of the delegate’s decision, and the letter notifying her of same.[1]
[1] These documents were lodged on behalf of the applicant, by the applicant’s registered migration agent.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Applicant’s personal circumstances
The applicant is [an age]-year-old woman from Mazandaran province, Iran. She travelled to Australia on a visitor’s visa, arriving in Brisbane [in] August 2023. With the assistance of an agent, she applied for protection on 26 October 2023. The applicant has a daughter and grandchildren in Brisbane, with whom she currently resides. She has [other children] and a husband in Iran, as well as a son who is deceased. Her husband is unwell and assisted by a nurse in Iran.
The applicant is illiterate, has no formal education, and has indications of a severe cognitive impairment. She also has mobility issues. She has never been employed but did farming work on her own land.
Procedural history
On 2 December 2024, the applicant’s agent wrote to the Tribunal, indicating that as the applicant was “experiencing significant distress due to her circumstances” and had been “suffering from mental and physical health challenges, which [had] been exacerbated by the uncertainty surrounding her visa status”, her application should be prioritised for an expedited review. The agent relied on the applicant’s “vulnerable condition and the potential impact of delays on her well-being”.
On 5 February 2025, a Tribunal officer wrote to the applicant’s agent, noting reference to the applicant’s mental and physical health challenges, seeking evidence of her health (mental and physical) status by 19 February 2025.
On 17 February 2025, the applicant’s agent submitted a letter to the Tribunal, dated 9 February 2025, from the applicant’s general practitioner, indicating that the applicant was “managing several chronic medical conditions” as well as mobility challenges. The letter further indicated that the applicant’s daughter was providing full-time care to the applicant.
On 3 March 2025, a Tribunal officer wrote to the applicant, via her agent, advising that the Tribunal did not consider the circumstances, as indicated, warranted an expedited review, but that should her circumstances change, she could request reconsideration of that decision.
On 25 March 2025, and following a request for information from the Tribunal, the applicant’s agent submitted a completed pre-hearing information form. The form indicated—regarding any issues that might affect the applicant’s ability to take part in any in person hearing—that the applicant has a mobility impairment, is unable to walk, and suffers from “multiple health conditions”. Attached to the form were also the following materials:
a)An image appearing to be a screenshot of a video of the applicant’s baptism, as well as a description to that screenshot noting that this material had not been available at the time of the delegate’s decision;
b)A black and white image of the applicant, sitting down, with a man standing by her side, with the description, “photo with the pastor posted on [social media]”; and
c)A letter from ‘[Church 1]’, dated [March] 2025, from a senior pastor who has “serve[d] the Persian Christian [congregations]” since 2014, stating that the applicant is “a valued member of our church community” and has been “coming to our church since August 2023 with her daughter”; that she has been an “active member” of the church since she started and has participated in various classes and communicated with fellow members. In the completed pre-hearing information form, this letter is relied upon “to confirm the applicant’s continued attendance at church as evidence of the genuineness of her conversion from Islam to Christianity”.
Of note, the form indicated an intention on the applicant’s part to submit further evidence.
On 9 April 2025, the Tribunal—differently constituted—wrote to the applicant’s agent, seeking “a written submission setting out all claims made and maintained by the applicant” by 15 May 2025, accompanied by a signed declaration from the applicant that the submission had been read and explained to her and that it accurately and completely represented her claims. Attached to the letter was a notice of a hearing set down on 22 May 2025.
On 14 April 2025, the applicant’s agent submitted a completed “Response to Hearing Notice” form. In the form, in response to the question, “Will you participate in the hearing scheduled for 22 May 2025?”, the box was checked alongside the statement, “No, I will not participate in the hearing and request the Tribunal to make a decision on the papers without holding a hearing.” Further, in response to a question concerning whether the applicant had any issue that might affect her ability to take part in the hearing, the answer was, “yes”, and accompanied by the following statement: “[The applicant] is highly suggestive [sic] of sever[e] cognitive impairment and unable to comprehend (See the attached letter from GP). She also has severe mobility issues.” The form also indicated that the applicant would experience difficulty participating in the hearing for the same reasons. Of further note, the document indicated that the applicant’s language was the Mazandarani dialect. The applicant’s representative indicated an intention to submit further documentation (in the form of a submission) by 15 May 2025. In the part of the form where it is to be “signed on behalf of, and with the consent of, all applicants”, the form bears the applicant’s name and the date—13 April 2025. In the signature space, the form has been marked.
Accompanying this response to hearing notice form was a medical certificate from a doctor in a Brisbane-based clinic. In relevant part, the medical certificate—dated 2 April 2025—stated the following:
“I have examined [the applicant] today. On the Mini-Mental State Examination performed via a telephone interpreter today, she scored 7 out of 30. Accounting for the fact that [the applicant] never attended any schooling, it is still a very low score and is highly suggestive of severe cognitive impairment. It is my opinion that [the applicant] is unable to comprehend an immigration interview even with an interpreter present.”
On 16 April 2025, the Tribunal—differently constituted—wrote to the applicant’s representative. The Tribunal requested further information concerning the ‘Mini-Mental State Examination’ performed on the applicant, and indicated, inter alia, that it would await the provision of the submissions anticipated to be provided on 15 May 2025 before reaching its decision on whether to proceed to determine the matter without holding a hearing (as contemplated by section 106 of the Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’)).
On 9 May 2025, the applicant’s representative responded to the Tribunal’s letter. The representative provided a copy of the ‘Mini Mental State Examination’ (‘MMSE’) and a copy of the medical certificate previously provided to the Tribunal. The MMSE was a record of the questions asked of the applicant during the course of the examination and the individual scores she attained with respect to each question. The document also notes that certain tasks were unable to be completed by the applicant for cultural or literacy reasons, thereby contributing to the low score.
The Tribunal notes that a MMSE is a set of 11 questions used by doctors and other health professionals to check for cognitive impairment.[2] It can be used to check if a person has dementia. It checks six areas of mental ability: orientation (as to date and place); attention and concentration; short-term memory; language skills; visual-spatial skills; and ability to understand and follow instructions. The test takes about 5-10 minutes to perform.
[2]
On 9 May 2025, the applicant’s representative also filed a bundle of documents with the Tribunal in support of the applicant’s case. These documents consisted of:
a)Three pages of submissions, addressing: the genuineness of the applicant’s religious conversion; the timeline of the applicant’s arrival in Australia vis her religious conversion; the applicant’s credibility and the limitations of her departmental interview; and the risk she faces if she is to return to Iran.
b)A medical certificate dated 28 April 2025, confirming the applicant’s mobility issues.
c)A further copy of the aforementioned 2 April 2025 medical certificate concerning the applicant’s MMSE results and associated cognitive impairment.
d)[An] October 2023 letter from a senior pastor at ‘[Church 1]’ confirming that the applicant was (then) a recent arrival to the community and had expressed her wish to join the church.
e)A [February] 2024 letter from a pastor at ‘[Church 2]’ stating that the applicant had regularly attended weekly “English Conversation” classes at the church since [October] 2023, and had been attending “[Bible] Study” at the church since December 2023.
f)A further copy of the aforementioned [March] 2025 letter from ‘[Church 1]’.[3]
g)A ‘baptism certificate’ issued by ‘[Church 1]’, dated [in] February 2024.
h)Copies of three photographs, as outlined at paragraph 10, above.
[3] See paragraph 12, above.
On 20 May 2025, the Tribunal—as presently constituted—wrote to the applicant, via her representative, indicating that it was in receipt of the materials submitted to it and was considering the applicant’s request for a decision based on the material and things before it, without holding a hearing in the matter. Further, that in light of the imminent hearing date, it would cancel the hearing as scheduled for 22 May 2025, and that the applicant would be advised in due course of—either—a fresh hearing date, or alternatively, of the Tribunal’s decision to proceed without holding a hearing, under section 106 of the ART Act.
Accordingly, the Tribunal notes, for the following reasons, that it has determined as a preliminary matter to make its decision in this proceeding without holding a hearing—that is, after considering only the documents and things given to it, in accordance with section 106(1) and (3) of the Administrative Review Tribunal Act 2024 (‘ART Act’). Having outlined the reasons why it has decided to proceed under this provision without holding a hearing, the Tribunal will then go on to consider the merits of the applicant’s substantive claims for protection.
Preliminary matter—decision without a hearing
Section 106 of the ART Act provides, in relevant part:
(1) The Tribunal may make its decision in the proceeding in relation to the application after considering the documents and things given to [it] and without holding the hearing of the proceeding if any of subsections (2) to (5) applies.
[…]
Where only parties are applicant and non-participating party to the proceeding or hearing
(3) This subsection applies if:
(a) the only parties to the proceeding are the applicant and a non-participating party to the proceeding or the hearing of the proceeding; and
(b) either:
(i) the decision is wholly in favour of the applicant; or
(ii) the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding; and
(c) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.
In accordance with section 106(3)(a), the only parties to this proceeding are the applicant and a non-participating party to the proceeding (the Minister for Immigration and Multicultural Affairs).[4] This requirement is therefore satisfied.
[4] By virtue of section 348A(1) of the Migration Act, the Minister is taken to be a non-participating party to a proceeding for review of a reviewable protection decision for the purposes of the ART Act.
A recent decision of the Tribunal, constituted by his Honour Justice Kyrou, President, and Deputy Presidents Burford and Dordevic, considered the requirements for a decision without holding a hearing (known colloquially as a decision ‘on the papers’) in BXFHJ v Minister for Immigration and Multicultural Affairs.[5]
[5] [2025] ARTA 550 (hereinafter ‘BXFHJ’).
In relation to paragraph 106 (3)(b)(ii)—whether the applicant has in fact requested the Tribunal to make its decision without holding a hearing—the Tribunal noted that there may be factual issues arising in the application of this provision (ie. with respect to an applicant’s intention).[6]
[6] BXFHJ [33]-[35].
In the instant case, the Tribunal is satisfied that the applicant’s representative has requested the Tribunal to make its decision without holding the hearing of the proceeding. However, for reasons which will be outlined, it cannot be satisfied that the applicant herself has requested the Tribunal to make its decision without holding the hearing of the proceeding, in the sense that she has—or some months ago, had—the requisite cognitive capacity to understand the nature of that request, or the implications of requesting it (ie. the effective waiver of her right to an oral hearing at which she could provide further evidence), such that her formal request for this disposition was meaningful.
Indeed, on 12 April 2025, the applicant’s representative noted the applicant’s “sever[e] cognitive impairment” and that she was “unable to comprehend” via the very form advising that the applicant would not participate in a hearing and requesting the Tribunal to make a decision on the papers. That form also relied upon the MMSE assessment conducted on 2 April 2025, referred to, above, in which the applicant had obtained a score of 7 out of 30, indicative of a “severe cognitive impairment”. These documents noting the applicant’s cognitive capacity pre-date the 14 April 2025 form requesting a decision ‘on the papers’.
Further, in his submissions to the Tribunal of 9 May 2025, the applicant’s representative—in addressing the delegate’s attitude towards statements made by the applicant during her departmental interview in February 2024—stated that the applicant’s cognitive impairment “would have impacted her capacity to provide detailed verbal testimony” at that time (ie. some 14 months prior to the request for a decision ‘on the papers’).
The Tribunal—in considering the issue presented by section 106(3)(b)(ii) of the ART Act—has also considered the applicant’s departmental interview. While this interview will be discussed further in these reasons with respect to the applicant’s substantive application, the Tribunal notes, for present purposes, that the audio recording of the interview raises questions about the applicant’s cognitive capacity at that time, amongst other things. By way of example, there are multiple instances during which the interpreter and the applicant have exchanges between them for one to three minutes, in respect of a relatively straightforward question. While the Tribunal does not have any knowledge of the language being spoken, it often appears during the interview that the interpreter is explaining the content of the question to the applicant several times over.
This may have been complicated by the fact that the interview was conducted with the assistance of an interpreter in the Persian language, when it was expressly stated in documents submitted on behalf of the applicant to the Tribunal (as well as before the department) that the applicant speaks Mazandarani (dialect).[7] The interpreter also made clear at the beginning of the interview that she did not speak Mazandarani.
[7] Also known as ‘Mazanderani’, it is a language closely related to ‘Gilaki’. It is an indigenous language and although it has influenced Persian, both are independent languages.
The Tribunal does not take any view of whether the difficulties apparent in the interview were attributable to the applicant’s (declining) cognitive capacity, or to language or other issues, or to a combination of these factors, but simply observes that the interview contributes to its concerns about the applicant’s current lack of capacity to provide meaningful instructions[8] as to the disposition of her case (and therefore adds to its concerns about whether she can be said to have “requested” a decision ‘on the papers’).
[8] The Tribunal notes that the March 2022 Code of Conduct for registered migration agents requires, inter alia, that a migration agent act in accordance with the client’s instructions (33(a)(ii)).
The Tribunal notes that the applicant’s representative has not addressed the issue of the impact of the applicant’s cognitive impairment on the request that the Tribunal proceed without holding a hearing in the matter. The Tribunal might have requested him to provide submissions on this issue. However, for the reasons that follow—namely, that the decision is wholly in favour of the applicant, as alternatively provided by section 106(3)(b)(i)—the Tribunal considered that not to be necessary.
The Tribunal is therefore satisfied as to the requirement in paragraph 106(3)(b) based on the outcome of this decision being in the applicant’s favour (s 106(3)(b)(i)).
Turning to s 106(3)(c), the Tribunal must also be satisfied that the issues for determination in the proceeding can be adequately determined in the absence of the parties.
The issues to be determined by the Tribunal are:
a)Whether the applicant faces a real chance of persecution for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Migration Act if returned to Iran; and
b)If not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that she will suffer significant harm for the purpose of s 36(2)(aa) of the Migration Act.
The BXFHJ Tribunal stated that the “adverb ‘adequately’ does not describe an absolute state, but one that involves some questions of degree that are informed by the circumstances of each case.”[9] The Tribunal also stated that the availability of a choice for the applicant “provides a safeguard against applicants being deprived of a hearing against their wishes” while “reinforc[ing] the principle that, unless the requirements of s 106 are satisfied […] the Tribunal will conduct a hearing.”[10]
[9] BXFHJ [47].
[10] BXFHJ [50].
Critically, the Tribunal stated that the requirements of s 106(3)(c) cannot be satisfied where review without a hearing: (a) would not be fair and just; (b) would not enable the Tribunal to give ‘proper consideration of the matters before it’; (c) would not comply with the procedural fairness provisions that apply to the type of case before it; and (d) would not enable the Tribunal to make the ‘correct or preferable decision’ in relation to the proceeding.[11] But the fact that s 106 constitutes an exception to the principle that, ordinarily, a hearing will be conducted “does not mean that s 106 should only be applied in rare or exceptional circumstances.”[12]
“It is relevant to the appropriateness of the Tribunal exercising the power to make a decision without a hearing under s 106(3) of the ART Act that the applicant has been provided with reasonable opportunities to present evidence and make submissions in support of their application for review, including during the conduct of the proceeding before the Tribunal.”[13]
These opportunities would include those provided prior to the delegate’s decision being made, the opportunity created at the time of lodging the application for review, any responses to Tribunal outreach and any responses to the general invitation in a notice of hearing.[14]
[11] BXFHJ [53].
[12] BXFHJ [58].
[13] BXFHJ [61].
[14] BXFHJ [62].
The Tribunal is satisfied that the issues in this proceeding can be adequately determined in the absence of the parties to the proceeding (in this case, the applicant). In deciding to proceed in this manner, the Tribunal has taken into account: the way in which the applicant’s case proceeded before the Department, in particular that she participated in an interview in which she answered questions in respect of her claims, albeit that the process was limited for reasons which will be discussed further; the fact that the applicant is represented before the Tribunal and was represented, by the same agent, before the department; the evidence before the Tribunal concerning the applicant’s current cognitive impairment from which can also be inferred that her cognition was challenged at the time of the departmental interview; the unlikelihood of the applicant’s cognitive capacity improving in the near future, if at all;[15] the fact of the applicant’s relative vulnerability by virtue of the indications of cognitive impairment, but also for reasons such as her age, lack of education, illiteracy, and mobility issues, all of which present particular stressors for her in the context of an oral hearing and reduce the likelihood that an oral hearing will elicit further evidence of use to the Tribunal’s decision-making process; and the evidence before it, as outlined in the sections of these reasons entitled, ‘Evidence before the Department’ and ‘Evidence before the Tribunal’, respectively.
[15] While not making any finding as to the reason/s for the applicant’s cognitive impairment, the Tribunal does note that age-related conditions such as Alzheimer’s disease and related dementias are likely to decline.
Lastly, the Tribunal notes the objectives in section 9 of the ART Act which include the Tribunal providing a mechanism of review that is fair and just (section 9(a)), and which ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense as a proper consideration of the matters before the Tribunal permits (section 9(b)). The Tribunal must pursue the objective of providing a mechanism of review that promotes public trust and confidence in it (section 9(e)). The Tribunal has additionally considered these objectives in deciding that the issues before it can be adequately determined without holding a hearing in the matter. In particular, with respect to the requirement of fairness and expeditiousness, the Tribunal considers a decision ‘on the papers’ will best serve those objectives in the circumstances of the applicant’s aforementioned vulnerabilities.
EVIDENCE
Evidence before the Department
The following evidence was considered by the department in relation to the applicant’s application for protection:
(i)Identity documentation
The applicant provided the following identity documentation to the department:
a)An English translation (by a NAATI accredited translator) of the applicant’s birth certificate, showing that the applicant was born in [specified year], in [Town 1] and, further showing that the applicant was married in July 1964. The birth certificate also shows that the applicant has [number] children, and shows their respective national ID numbers.
b)A copy of the biodata page of the applicant’s passport, issued by the Islamic Republic of Iran.
c)An English translation (by a NAATI accredited translator) of the applicant’s National ID card.
d)An English translation (by a NAATI accredited translator) of a ‘Penal Clearance Certificate’ issued by the Department of Justice of Mazandaran province (the ‘Public and Revolutionary Court of Sari) showing that the applicant has “no punitive conviction record”.
The information in these documents concerning the applicant’s identity is consistent.
(ii)Protection Visa application form dated 26 October 2023
The applicant’s protection visa application form shows the following personal details:
a)The form was completed and lodged on behalf of the applicant by her agent;
b)The applicant was born in [year] and is currently [age] years old. She was born in [Town 1] in Mazandaran province, Iran. Her current relationship status is “married”. She married in 1964. Her spouse is currently [age] years old and lives in Sari, Mazandaran. The applicant had been living there for over 20 years, prior to coming to Australia;
c)The applicant has two children who are deceased ([details deleted]). She has [children] who currently live in Iran, and a daughter who lives in Australia. She has [grandchildren] also living in Australia;
d)At the time of her application, she was residing in a suburb of Brisbane;
e)The applicant’s language is Farsi-Mazandarani, which she speaks only (ie. does not read or write). She is only able to communicate in that dialect, which is spoken in the north of Iran.
f)Her citizenship at birth was Iranian. It is still her citizenship. She has never held any other citizenship or nationality;
g)Her religion is ‘Christian’ and her ethnicity, ‘Iranian’;
h)She travelled to Australia on [in] August 2023 using her Iranian passport, arriving in Australia on a visitor visa;
i)She has never been employed, but had previously farmed her own land and, since in Australia, had been supported by her daughter;
j)She has never been to school.
k)The applicant uses a mobility walker.
With respect to her claims for protection, the form provides the following:
a)The applicant had not previously experienced harm, or the threat of harm, while living in Iran, but she anticipates that she will be in danger if she returns there because of her renunciation of Islam while in Australia;
b)The applicant converted from Islam to Christianity while visiting her family in Australia and believes that if she returns to Iran, her conversion will not be tolerated by the authorities, or her community;
c)The applicant’s claim for protection is based on previous persecution and discrimination against those who convert to other faiths, by the Iranian government. The harm faced can include social ostracism and harassment from both the authorities and the community, and even physical harm such as the death penalty;
d)Iran’s strict blasphemy and apostasy laws can be used to punish those who publicly renounce Islam. Penalties can include the death penalty. The applicant expects to be arrested and charged;
e)The authorities cannot assist the applicant as they would be the source of the potential harm; internal relocation within Iran is also not possible for similar reasons.
(iii)Interview with the Department
The applicant was interviewed by a delegate of the department on 13 February 2024, with the assistance of an interpreter in the Persian language. The applicant’s representative was present at that interview, as was her daughter who resides in Australia, as a support person.
As a preliminary matter, the Tribunal notes—as referred to at paragraphs 27-28 of these reasons, above—that the applicant’s agent requested an interpreter in the Mazandarani dialect. In an email to the department, he specified that the applicant was only able to communicate in that dialect, which is spoken in the north of Iran, and not “in the usual Farsi language”[16]. Nonetheless, after it was identified that the interpreter did not speak the Mazandarani dialect, the interview continued.
[16] ‘Persian’ and ‘Farsi’ refer to the same language (‘Farsi’ being the Persian word for the Persian language, or an endonym).
The Tribunal notes that neither the delegate nor the applicant’s agent raised this as an issue, and the interpreter told the delegate that the applicant could understand her (which the applicant confirmed). However, as also identified earlier in these reasons, the interview bears some hallmarks of communication issues between the delegate and the applicant, whether these were language based, or otherwise. There are numerous occasions on which the delegate asks a straightforward question such as “What is your religion?” and a lengthy discussion between the interpreter and the applicant then ensues, followed by a brief response. A further example is that, early in the interview, the applicant’s agent told the delegate that the applicant had some “problems with the memory and cannot remember some words, so maybe she cannot remember the word for the religion” (in reference to ‘Islam’). It can equally be said that—for a significant part of the interview—the applicant understands what is being asked, and answers accordingly. However, given its concerns about the interview having proceeded in the way it did—with the benefit of more recent evidence concerning the applicant’s presumptive cognitive capacity issues—the Tribunal has assessed the applicant’s answers in the manner most favourable to her.
In respect of her claims for protection, the applicant said the following:
·“In Iran I have a lot of problems but over here I don’t have any problems because men and women are equal”;
·She came to Australia “because my daughter has been here; I haven’t seen her for 5 or 6 years; the country is… both sexes are equal, men and women are equal; that’s why I was attracted to come to Australia”;
·Her religion is Christian (“we are Christian”), whereas her husband, who is still in Iran, is sick and does not recognise her anymore has “the religion of Iran”;
·In Iran, she was following the same religion (“Muslim”), “but over here I am Christian, it is very peaceful and nice and the people are nice. But in Iran, they are all Muslim”;
- The applicant’s family members who still live in Iran ([her children] and her husband) are Muslim. “In Iran yes, all my family are Muslims, but over here I am with my daughter and grandchildren, I am very happy.”
·Asked if she could explain why she had applied for protection, the applicant responded: “I was alone in Iran. I was feeling lonely. And I came here to visit my daughter. And over here I saw the peace and kindness and love, and I’d like to settle down here. There is a lot of killing and persecution in Iran and over here it is very peaceful and very nice.”
·Asked whether she was claiming protection due to her religion, the applicant said yes.
·Asked about her (prior) Islamic practice in Iran, the applicant said that, in Iran she used to do obligatory prayers “but that is over, now that I am here, I love Christianity and I practise Christianity.” The applicant was asked whether she did ‘obligatory prayers’ until she left Iran but then said, “when I was coming to this country, I wasn’t saying my obligatory prayers”.
·Asked about her feelings towards Islam while living in Iran, the applicant said, “well, I [had a] son in Iran and by force he was taken to national service, the government enforced this and he was killed; after that I didn’t like the whole practice.”
·The applicant did not hear anything about Christianity while living in Iran. She heard about it when she came to Australia, “and I deeply, deep in heart, I believe in Christianity.” When she came to Australia, she heard about Christianity “everywhere. My daughter [told me] me about Christianity. It’s a very peaceful and loving religion.”
·She was interested in learning about Christianity because she came “here” and “learned that in Christianity they consider men equal to women. It’s peaceful, there’s a lot of love, deep inside I believe in Christianity, so I love the religion.”
·Asked what specifically about Christianity interested her, the applicant said, “it’s a love, peacefulness, kindness, I pray to God; I love the religion […] Although I am illiterate I cannot read and write, but I have eyes to sense that love and affection.”
·The delegate told the applicant that there are many religions that promote peacefulness and equality between men and women and asked her why she was interested in Christianity, specifically. The applicant stated: “It was the love and affection and when I prayed to God, this is what I loved.”
·Asked what she knew about Christianity, the applicant replied, “Jesus Christ teaches love and affection.”
·The applicant has learned about Christianity by going to church where they read the bible, and praying to God. “It is so much love, complete absence of death, in Iran there is a lot of killing.”
·The applicant said she attends a church close by to her daughter’s house where they have “speeches” and she listens and prays to God to bring peace to her heart. She attends this church every Sunday and had last attended on the Sunday before the interview and intended to go there on the following Sunday.
·The applicant said that the church services were in Persian and that she was able to understand what was said at these sessions “a little bit [… ] I’m not an educated person; I don’t understand fully.”
·The delegate asked the applicant if she was unable to read the bible and only understood a little bit of what was said in the “sessions”, how had she learned about Christianity. The applicant stated: “my daughter reads the bible at home for me and I pray to God and that’s how I experience the religion.”
·The applicant was asked about her favourite passage in the bible. She was unable to respond initially but then said that she likes the “new testament” where Christ “gave them the bread and he says that this wine is my blood and he drink it, and then he went to God; or he brought them to life.”
·The applicant struggled to name other significant people in the bible, but said, “it’s the father, son, the holy spirit”.
·Asked whether she attended bible studies, the applicant said she could not read, she was illiterate, so could only listen at home.
·The delegate asked the applicant why she had been baptised so recently (about [number] days prior to the interview). She said that she had been baptised to be cleansed “of all satanic things and to become clean […] Mary was the mother of Jesus Christ.” She said that, at the baptism, the priest prayed and then performed the baptism (“He said prayers and then put me under water”). It was in a pool, but she did not know where that pool was located.
·The delegate asked the applicant what her [children] who are still living in Iran think about her conversion. The applicant replied, “they don’t know that information. My life would be in danger.” Asked what her family in Iran would think generally about her conversion if they knew, the applicant replied, “well, they have no control over my life; and this is what I wished; I wanted to become Christian so I accepted Christianity.”
·Asked whether she would continue to practise Christianity if she was to return to Iran, the applicant answered, “yes […] the love of Jesus Christ is in my heart.”
·Asked how she thought she could practice Christianity if she was to return to Iran, the applicant said, “I don’t want to return to Iran, because if I return to Iran my life would be in danger. [] I want to stay here and I am not going to return. [] My life would be in danger so I am not going to return. [] If they return me to Iran they are going to put me in jail and execute me.
·Asked how anyone would know that she is Christian if she was to return to Iran, the applicant replied that “people would know it” … “now I am here and no one would know that I have become a Christian. But Christianity is in my heart.”
·Asked who, in particular, the applicant feared in Iran, she replied, “they [the authorities] have already killed my son, they have killed many others, they are murderers, they are killers, so I am basically scared.”
·Prior to the end of the interview, the agent addressed the delegate, noting the following:
oConsidering the age of the applicant and that this was the first time in her life being interviewed, she was very panicked;
oThe applicant’s age, and illiteracy;
oThe applicant is not an expert in Christianity, she does not know the details but has her own feeling about the religion;
oPeople understand religion based on their level and their needs;
oThe applicant’s conversion to Christianity is an ongoing process which the applicant started “a few months ago”. This is the reason for the recency of the baptism;
oThe applicant was confused about the difference between the question of why she came to Australia, versus why she has applied for protection. She came to Australia on a visitor’s visa. She was lonely and wanted to see her daughter. But it is not her reason for applying for protection.
(iv)Other material
The applicant otherwise submitted, via her agent, a letter of support from ‘[Church 1]’ dated [in] October 2023 stating that the applicant had been attending the church since August 2023, that upon her arrival in Australia she “expressed her wish to join our church and requested our assistance” and that she was preparing for baptism. Further, that she had been an “active member” of the church “for the past few months” by participating in various classes and communicating with fellow members.
Following her interview with the department, the applicant submitted a letter dated [in] February 2024 from a pastor at ‘[Church 2]’ stating that the applicant had been attending weekly English conversation classes at [Church 2] since [October] 2023 and has attended “[Bible] Study” since December 2023.
(v)The delegate’s decision
By way of decision dated 22 February 2024, the delegate found, inter alia, that the applicant “did not adequately express what connection she has with Christianity which raises concerns about her reasons for converting”. The delegate also found that the timing of the applicant’s baptism “raises concerns about the genuineness of [her] initiation ceremony”. Further, the delegate stated that she was “not satisfied that the applicant in fact holds Christian beliefs” on the basis of her limited understanding of the religion and belief system. Accordingly, the delegate was not satisfied that the applicant had “genuinely converted to Christianity”. The delegate found that the applicant’s Christian conversion was influenced by the protection visa application process.
Additionally, the delegate considered whether the applicant might experience harm as a result of her being a non-practising Muslim and found that she would not. The delegate considered whether the fact of the applicant having attended church and being baptised would cause her harm and found that it would not. The delegate also considered the applicant’s gender and found that she did not face a real chance of serious harm in Iran on this basis for any reason. The delegate, therefore, considered the applicant was neither entitled to protection as a refugee, nor on the basis of complementary protection.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to this decision. Further reference to relevant country information will be made, below, at paragraphs 55-58 of this decision.
COUNTRY INFORMATION
General
Iran, formerly Persia, is an Islamic republic situation between the Caspian Sea and the Persian Gulf in the Middle East. Most Iranians are ethnic Persian, speak Farsi and adhere to the Shi’a branch of Islam.[17] Iran is a theocratic republic.[18] Disqualification of reform-minded candidates, or candidates considered insufficiently loyal to the clerical establishment, is common.[19] The current president of Iran is Masoud Pezeshkian, in office since July 2024. His predecessor, Ebrahim Raisi, was subject to US sanctions for human rights abuses including judicial execution of children, his role in crackdowns on protests, and in a commission that ordered thousands of executions of political opponents in 1988.[20]
[17] DFAT Country Information Report: Iran, 24 July 2023, [2.1].
[18] DFAT Country Information Report: Iran, 24 July 2023, [2.29].
[19] DFAT Country Information Report: Iran, 24 July 2023, [2.32].
[20] DFAT Country Information Report: Iran, 24 July 2023, [2.35].
The constitution provides for freedom of expression, association, opinion, assembly and religion, if those rights do not violate certain principles, including Islam. In practice, these rights are not typically upheld by authorities.[21]
[21] DFAT Country Information Report: Iran, 24 July 2023, [2.36].
Corruption is widespread and a major barrier to economic activity in Iran, with the nation having ranked 147th out of 180 countries in Transparency International’s 2022 Corruption Perceptions Index.[22]
Religion
[22] DFAT Country Information Report: Iran, 24 July 2023, [2.16].
As at the middle of 2023, the United States government estimated the population of Iran as 87.6 million, 99.4 per cent of whom are Muslims.[23]
[23] ‘2023 Report on International Religious Freedom - Iran', US Department of State, 26 June 2024, p.6.
Freedom of religion is restricted under the Iranian Constitution[24] and the Iranian Penal Code. The constitution defines the country as an Islamic republic and designates Twelver Ja’afari Shia Islam as the official state religion.[25] The law prohibits Muslims from changing or renouncing their religious beliefs.[26]
[24] ‘2023 Report on International Religious Freedom - Iran', US Department of State, 26 June 2024, pp.6-7.
[25] ‘2023 Report on International Religious Freedom - Iran', US Department of State, 26 June 2024, p.8.
[26] DFAT Country Information Report: Iran, 24 July 2023, [2.63]; ‘2023 Report on International Religious Freedom - Iran', US Department of State, 26 June 2024, p.9.
Sharia, as interpreted by the government, considers conversion from Islam to be apostasy, a crime punishable by death.[27] A judge may issue the death penalty to someone accused of apostasy under other charges, such as “enmity against God,” “corruption on earth,” “insulting the Prophet Muhammad,” and “outrage against high-ranking officials.” The only known execution of an Iranian Christian specifically on the charge of apostasy occurred in 1990.[28]
“The constitution states Zoroastrians, Jews, and Christians are the only recognized religious minorities. “Within the limits of the law,” they have permission to perform religious rites and ceremonies and to form religious societies. They are also free to address personal affairs and religious education according to their own religious canon. The government considers any citizen who is not a registered member of one of these three groups or who cannot prove his or her family was Christian prior to 1979 to be Muslim.”[29]
“Because the law prohibits citizens from converting from Islam to another religion, the government only recognizes the Christianity of citizens who are Armenian or Assyrian Christians, because the presence of these groups in the country predates Islam, or of citizens who can prove they or their families were Christian prior to the 1979 revolution.”[30]
[27] ‘2023 Report on International Religious Freedom - Iran', US Department of State, 26 June 2024, p.9.
[28] ‘2023 Report on International Religious Freedom - Iran', US Department of State, 26 June 2024, p.9.
[29] ‘2023 Report on International Religious Freedom - Iran', US Department of State, 26 June 2024, p.11.
[30] ‘2023 Report on International Religious Freedom - Iran', US Department of State, 26 June 2024, p.11.
According to the Iran Human Rights Documentation Centre, person can be found guilty of the crime of apostasy based on the testimony of two male witnesses, the knowledge of a judge or a confession. The death penalty is a potential punishment but very rare in practice.[31] The Tribunal notes, however, current reports of the increasing use of the death penalty. In recent days, the United Nations High Commissioner for Human Rights, Volker Tűrk, has issued a plea to Iran to halt its use of the death penalty amid a surge in executions. The current number in 2025 is double the rate of executions over the same period of time in 2024. The High Commissioner noted that a number of the executions were of those tried “on broad and vague charges such as ‘enmity against God’ and ‘corruption on earth’ which are often used by the authorities to silence dissent.”[32]
[31] DFAT Country Information Report: Iran, 24 July 2023, [2.65].
[32] (last accessed, 30 July 2025).
DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed. Christians found to be proselytising face a high risk of arrest, prosecution and imprisonment. DFAT assesses Christian converts face a high risk of societal discrimination in the event their conversion becomes widely known, particularly if they are from more religiously-minded Muslim family backgrounds. This may involve ostracism from one’s family and discrimination in employment. DFAT assesses that those who convert while outside of Iran and who intend to continue to practise their Christian religion would face a high level of official discrimination and could be subject to the death penalty.[33]
[33] DFAT Country Information Report: Iran, 24 July 2023, [2.88].
The Ministry of Foreign Affairs of the Netherlands states that authorities usually do not ask a person about their religious identity at the airport when they return, unless they know a person has converted or sought asylum based on their Christian conversion.[34] In March 2024, a Christian convert who had returned to Iran from Malaysia was sentenced to two years imprisonment based on photographic evidence of her Baptism and Christian activities in Malaysia.[35]
Other vulnerabilities—health, disability, gender
[34] 'General Country of Origin Information Report on Iran', Ministerie van Buitenlandse Zaken (The Netherlands), September 2023, p.110.
[35] ‘Christian convert baptised in Malaysia given prison sentence on return to Iran’, Article 18, 26 March 2024.
All Iranian citizens are entitled to free healthcare, however quality and availability of services can be variable, especially in poorer rural areas.[36] There are no official statistics on the number of people living with a disability (PWD). In 2012, unofficial sources estimate that as many as 12 per cent of Iranians are living with a disability.[37] Societal understanding of the needs of PWD is generally low. Locals report PWD face social stigma and encounter obstacles in accessing housing, employment and public transportation.[38]
[36] DFAT Country Information Report: Iran, 24 July 2023, [2.18].
[37] DFAT Country Information Report: Iran, 24 July 2023, [2.20].
[38] DFAT Country Information Report: Iran, 24 July 2023, [2.21].
Wearing the hijab—for women—is compulsory. By law, women must have their entire body covered except for face, hands and feet. Some women wear the scarf around their neck or use another form of head covering (for example, a hat). Such women risk arrest, particularly during periodic crackdowns. Younger women are more likely to wear their headscarves in this way. Morality police patrols in public places increased in 2022.[39]
[39] DFAT Country Information Report: Iran, 24 July 2023, [2.129].
Women in Iran have diverse experiences and an assessment of discrimination and violence depends on the individual circumstances of each woman. DFAT assesses most Iranian women face moderate societal discrimination and threat of gender-based violence, including ‘honour’ crimes and street violence. Women perceived by the authorities to be pushing Iran’s moral and religious boundaries face a high risk of official discrimination in the form of arrest, punishment and violence.[40]
[40] DFAT Country Information Report: Iran, 24 July 2023, [2.144].
Two and a half years after protests began in September 2022, women and girls in Iran continue to face systematic discrimination, in law and in practice, that permeates all aspects of their lives, particularly with respect to the enforcement of the mandatory hijab.[41]
[41] A/HRC/58/CRP.1 Consolidated findings of the Independent International Fact-Finding Mission on the Islamic Republic of Iran, para. 12, available here: (last accessed: 31 July 2025).
State authorities sought to cement the already existing discriminatory legal framework against women and girls regarding the mandatory hijab through the judiciary. During the second half of 2024, women were increasingly summoned to appear before Criminal or Revolutionary Courts, including the Ershad Judicial Complex in Tehran. In some cases, they were sentenced to flogging based on evidence from security forces and the police. This reaffirms that women remain frequently monitored and reported on by the State apparatus for non-compliance.[42]
[42] A/HRC/58/CRP.1 Consolidated findings of the Independent International Fact-Finding Mission on the Islamic Republic of Iran, para. 34, available here: (last accessed: 31 July 2025).
A “Hijab and Chastity” Law was set to come into force on 13 December 2024, but was suspended pending further review. The current draft, if adopted, would intensify State control over women’s and girl’s bodily autonomy and infringe upon fundamental rights and freedoms. If their conduct is deemed to amount to “corruption on earth”, as defined under Article 286 of the Islamic Penal Code, they may face the death penalty. While the “Hijab and Chastity” Law has been temporarily suspended, OHCHR states that its potential future implementation remains a serious threat to the rights of women and girls. The law prescribes severe penalties, including imprisonment, flogging and even the death penalty, for individuals accused of promoting fesad fil-arz by opposing or challenging hijab regulations.[43]
[43] A/HRC/59/22, Report of the Secretary-General, ‘Situation of human rights in the Islamic Republic of Iran’, 18 June 2025, [29].
According to information received by OHCHR, the execution of women has recently increased, with at least 31 women reportedly executed in 2024 – compared with at least 22 women executed in 2023.[44]
[44] A/HRC/59/22, Report of the Secretary-General, ‘Situation of human rights in the Islamic Republic of Iran’, 18 June 2025, [5].
According to information received by OHCHR, femicide cases in the Islamic Republic of Iran have reportedly increased with at least 179 reported incidents in 2024 compared with 55 in 2023. The majority of convicted perpetrators were intimate male partners and relatives.[45]
[45] A/HRC/59/22, Report of the Secretary-General, ‘Situation of human rights in the Islamic Republic of Iran’, 18 June 2025, [32].
ANALYSIS, REASONS AND FINDINGS
The issue in this case is whether the applicant is someone to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
While not directly applicable to this Tribunal, the Tribunal has had regard to the Guidelines on the Assessment of Credibility of the Migration and Refugee Division of this Tribunal’s predecessor Tribunal, the Administrative Appeals Tribunal, in assessing the applicant’s claims, particularly vis-à-vis her departmental interview. The Tribunal notes that many of the observations in the Credibility Guidelines are general principles for the assessment of the credibility of evidence in migration and protection matters.
The Tribunal has previously noted the applicant’s several vulnerabilities—her age and cultural background, her presumptive cognitive impairment, her lack of formal education and illiteracy, and her physical disability; as well as, in the context of her claims and her receiving country—Iran—her gender.
The Credibility Guidelines note that:
20. There are a number of factors or circumstances that may affect an applicant’s ability to provide oral evidence or present his or her claims at a hearing. It is important that consideration be given to the circumstances of each case to ensure that as far as possible the hearing is conducted in a way that facilitates the taking of evidence and the opportunity for the applicant to present his or her case.
21. Members need to be mindful of the difficulties of assessing oral evidence provided through an interpreter.
22. Members need to be mindful that a person may be anxious or nervous due to the
environment of a hearing and the significance of the outcome. A person from a
different social and cultural environment may experience bewilderment and anxiety.
The educational, social and cultural background of a person may affect the manner in
which a person provides his or her evidence and the depth of understanding of
particular concepts. A person may have had traumatic experiences or be suffering from a disorder or illness which may affect his or her ability to give evidence, his or her memory or ability to observe and recall specific events or details.[46] There may also be mistrust in speaking freely to people in positions of authority.
[46] Emphasis added.
In contrast with the position adopted by the delegate as to the applicant’s responses about her knowledge and understanding of Christianity being vague, or her answers to certain questions being contradictory, or her explanations being insufficient, and these phenomena being attributable to the lack of genuineness of the applicant’s sur place conversion to Christianity, the Tribunal has generally taken a view more favourable to the applicant, of her personal statements (ie. at interview) due to her presumptive cognitive impairment, coupled with potential issues of understanding for other reasons (such as the earlier identified language anomalies, her age and lack of education). The Tribunal notes that—unlike the delegate—it has the benefit of presumptive testing results as to the applicant’s cognitive capacity.
With the foregoing in mind, the Tribunal makes the following factual findings.
General
The applicant is [an age]-year-old woman from Mazandaran province, in northern Iran. For all relevant purposes, Iran is the receiving country in this matter. She speaks Farsi-Mazandarani, though does not read or write. The applicant has never been employed but previously farmed her own land. She has never been to school.
The applicant married in 1964. Her spouse is currently [age] years old and lives in Sari, Mazandaran, Iran. He is of ill health, and has nursing assistance.
The applicant had [number] children, one of whom—a son—is deceased. She has [other children] who live in Iran, and a daughter who lives in Australia, with whom she resides.
The applicant was previously an adherent of Islam, which she described as “the religion of Iran”. Her family in Iran are also Muslim. The applicant did “obligatory prayers” while in Iran. The Tribunal accepts that the applicant’s attitude towards Islam changed when her son was forcibly taken into national service and killed. The Tribunal accepts, by inference, that the applicant attributes responsibility for her son’s death to the government of Iran and that—being a theocracy—the applicant equates the government with the religion (Islam) (“after that I didn’t like the whole practice”).
Based on the evidence before it, including the MMSE documentation and medical certificates, the applicant has a presumptive (severe) cognitive impairment. By inference, the Tribunal finds that the applicant was cognitively impaired at the time of her departmental interview. Further, coupled with her age and lack of formal education, this cognitive impairment negatively impacted the applicant’s capacity to participate in her interview with the department, fully and meaningfully. The applicant also has mobility issues and uses a ‘walker’.
Reasons for coming to Australia
The applicant arrived in Australia [in] August 2023, on a visitor’s visa, and has been living with her daughter since.
The Tribunal finds that the applicant came to Australia to visit her daughter, that at the time she had not seen her daughter for some years, and that she (the applicant) was lonely. However, the Tribunal also accepts the applicant’s statements during her departmental interview that Australia has been a comparatively peaceful place for the applicant, and that she feels reassured by the gender equality she sees, both in the Christian church she attends and otherwise.
The Tribunal additionally accepts—and does not view it as inconsistent with the foregoing—that the applicant is claiming protection due to her (now) Christian religion. The Tribunal accepts that the applicant was introduced to Christianity by her daughter, and that she did not know about Christianity prior to coming to Australia.
‘Sur place’ Christian conversion
Shortly after the applicant’s arrival in Australia [in] August 2023, she expressed a wish to join the ‘[Church 1]’ church. The applicant has continued to attend church at [Church 2], attending a weekly ‘English Conversation’ and ‘[Bible] Study’ class. Between August 2023 and March 2025, the applicant had regularly attended church.
The applicant was introduced to Christianity by her daughter.
The applicant was baptised by [Church 1] [in] February 2024.
While the evidence, particularly in terms of the timing of the applicant’s introduction to Christianity, and the contemporaneity of her baptism with her interview with the delegate, may point to a tailoring of that evidence for the purposes of pursuing a successful protection claim, the Tribunal does not view the evidence—as a whole—in this way.
The Tribunal considers it plausible that the applicant was introduced to Christianity by her daughter, on her arrival in Australia, and that—following the death of her son, as she claims, because of the Iranian authorities, she experienced a conversion to Christianity in the manner she claims: that she felt love, and kindness and peacefulness and equality. As the applicant stated, “[a]lthough I am illiterate, I cannot read and write, but I have eyes to sense that love and affection.” The Tribunal further considers the applicant’s statements about her relationship to her new faith—while general in nature (“Jesus Christ teaches love and affection”; “Christianity is a peaceful and loving religion”)—to be consistent with the applicant’s age, cognitive capacity, level of education, and relatively recent arrival into the Christian church.
The delegate noted in her decision that “[i]n general, asking an applicant about their views and knowledge about the professed religion may assist in determining whether the applicant in fact holds the professed belief […] If the applicant cannot provide any detail or description, it may be possible to conclude that the applicant does not hold the religion based on the standard the applicant has set…”.[47]
[47] Delegate’s Decision, pp. 5-6, referring to Refugee Guidelines.
For the reasons previously outlined, the Tribunal considers these statements of general application not to be fitting to the characteristics of this case. While the inability to detail the doctrine or teachings of a particular faith may, in some circumstances, indicate a lack of genuine adoption of that faith or religion, the Tribunal has taken an approach more favourable to the applicant in considering these factors as a reflection of her various vulnerabilities.
The Tribunal is therefore satisfied that the applicant is a Christian. Based on the applicant’s answer, at interview, the Tribunal also accepts that she intends to continue to practise Christianity if she was to return to Iran (“yes […] the love of Jesus Christ is in my heart.”). The Tribunal accepts that the applicant has a subjective fear of returning to Iran (“If they return me to Iran they are going to put me in jail and execute me.”). In part, the Tribunal accepts the applicant’s stated fear as genuine because she also explained that she had not and would not disclose the fact of her conversion to Christianity to her family.
Country information
The Tribunal finds—on the available country information before it—that freedom of religion in Iran is restricted under the Constitution and the Penal Code, and that the law prohibits Muslims for changing or renouncing their religious beliefs. Further, that on the face of it, the law considers conversion from Islam to be apostasy, a crime punishable by death, even though the only known execution of an Iranian Christian specifically on this charge was in 1990. The Tribunal notes the increased use of the death penalty in recent months, including on broad and vague charges such as ‘enmity against God’ and ‘corruption on earth’.
The Tribunal also notes that the government only recognises Christians who are of Armenian and Assyrian descent.
100. The Tribunal accepts that Muslim converts to Christianity, such as the applicant, risk arrest and detention if their conversion is revealed. The Tribunal finds that the applicant is particularly at risk of revealing her Christian conversion, if questioned by authorities, due to her age and presumptive cognitive impairment, even if she intended not to reveal it. The Tribunal finds the applicant is at high risk of societal discrimination for the same reasons. The Tribunal finds—based on the DFAT assessment and other evidence before it—that the applicant, as someone who has converted while outside of Iran and has claimed to intend to continue to practise Christianity if she was to return to Iran—would face a high level of official discrimination and could be subject to the death penalty.
101. The Tribunal considers that the aforementioned risks are exacerbated by the applicant’s additional vulnerabilities. Country information speaks to a variety of discriminatory-based risks because of the applicant’s health, physical infirmity and gender. The Tribunal has considered these risks based on the evidence of the increase in crackdowns by the authorities, particularly on women. While the Tribunal notes that the risks for Christian converts in Iran are particularly grave for those who proselytise, or are of a high profile or deemed to be of threat to the regime, it cannot rule out that the applicant would be questioned on return to Iran, by the authorities, or that the authorities might find out that the applicant has converted to Christianity and/or claimed asylum while in Australia for the past two years.
Does the applicant satisfy the refugee criterion for protection?
102. Based on the applicant’s circumstances, the Tribunal finds that if she were to return to Iran, her likely place of return is Mazanadaran province. Further, it finds—on the basis of the foregoing—that there is a real chance, being a possibility that is not remote or far-fetched,[48] that the applicant would be subject to serious harm from the Iranian authorities, in the reasonably foreseeable future, if she were to return to Iran. The Tribunal has considered the non-exhaustive definition of serious harm in section 5J(5) of the Act, and considers the serious harm at risk to include to the applicant’s life, her freedom, and of physical harassment or ill-treatment. In assessing the seriousness of harm, the Tribunal has had regard to the applicant’s personal attributes, such as her age, gender, frailty, lack of formal education and—of course—presumptive cognitive impairment.[49]
[48] Chan Yee Kin v MIEA [1989] HCA 62.
[49] AG16 v Minister for Immigration and Border Protection
103. The Tribunal finds that the harm of which the applicant would be at risk, were she to return to Iran, would be for one of the reasons set out in s 5J(1)(a), namely, her religion, and specifically, her conversion from Islam to Christianity while in Australia. The Tribunal considers the applicant’s conversion to Christianity to be the essential and significant reason for the feared persecution, and that the feared persecution would involve systematic and discriminatory conduct, as is abundantly evident in the country information before it.
104. The Tribunal also finds that the harm would relate to all areas of Iran, as required by s5J(1)(c) of the Act. This is based on the fact of Iran being a ‘theocratic republic’, the clear evidence of surveillance in place by the authorities, and the action routinely taken (in the form of interrogation, and detention) against Christian converts returning to Iran. While, as previously stated, the Tribunal notes that the applicant is not of a high profile such as to warrant the attention of the authorities on return, the Tribunal considers that routine questioning of her on her return might lead to her divulging her Christian conversion, and this, in turn, lead to further harm, including by virtue of her particular vulnerabilities.
105. Since the Iranian authorities are responsible for the implementation of the system of detention and interrogation of returnees, and any other action taken against them, the Tribunal notes that there are no effective protection measures available to the applicant in Iran.[50]
[50] Ss 5J(2) and 5LA.
106. The Tribunal has additionally considered whether the applicant could take reasonable steps to modify her behaviour[51] so as to avoid a real chance of persecution were she to return to Iran and finds that she could not do so, other than by altering her stated religious beliefs, including by renouncing her religious conversion, as she herself stated in her interview before the department.
[51] S 5J(3).
107. For the above reasons, the Tribunal finds that the applicant has a well-founded fear of persecution in Iran and is a refugee within the meaning of s 5H(1) of the Act.
Protection in a third country
108. Under section 36(3) of the Act, Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently, and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. Based on the evidence before it, the Tribunal finds that the applicant does not have a right to enter and reside in a third country and s 36(3) is therefore not applicable.
Conclusion
109. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
110. The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Act.
Date of hearing: N/A
Representative for the applicant: Dr Arash Mehrafrooz (MARN: 2318129)
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.
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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.
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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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