Resource Person: Frances Webber
Email: francesgwebbergooglemail [dot] com
Frances Webber is a retired immigration and refugee barrister, formerly at Garden Court Chambers, London, and currently a part-time visiting lecturer at Warwick University (refugee law) and Birkbeck College, University of London (critical legal practice), general editor of Butterworths Immigration Law Service, a council member of the Institute of Race Relations (London) and contributor to the IRR Race and Refugee News Service. The following is her introduction to the topic. Below that are contacts for Professor Marshall, who is prepared to assist with specific country of origin information for persons seeking asylum on grounds of conversion, and Middle East Concern, an organization devoted the human rights of religious minorities.
This report from the Pew Research Center will be extremely useful to Refugee Status Determination adjudicators working on apostacy cases.
Apostasy is conversion to another religion or simply renouncing ones own religion. The Greek word used is ‘apostasia’, meaning ‘a falling away, defection, forsaking’. It can found a claim for refugee status if penalised severely (formally or informally), giving rise to a well-founded fear of persecution for reasons of religion. Apostasy can occur in relation to any religion, but currently, in the context of refugee law, it is generally used in relation to Islam. This is because in some Islamic countries, the penalty for apostasy is death. A Shi’ite Muslim pronouncement on apostasy (from Kayhan International, March 1986) includes the following:
An apostate - that is, one who abandons Islam and takes up atheism - may be of two types:
a. Voluntary apostate: a person whose parents, or either of them, were Muslim at the time of his or her development in the mother's womb and who takes up atheism after growing up.
b. Innate apostate: a person who is born of atheist parents and who accepts Islam after growing up, but returns to atheism later.
The penalty for voluntary apostasy for a man is to lose one's wife and possessions, and (if he does not repent) his life. Innate apostates do not lose their possessions but otherwise the penalty is the same. Female apostates are not executed but imprisoned. A Sunni Muslim pronouncement does not make these distinctions (either gender or voluntary/innate), but states that ‘Now, should the apostate (male or female) persist in his apostasy, he should be given the opportunity to repent, prior to his being put to death, out of respect for his Islam.’ (Mufti of Lebanon, Beirut, Fatwa issued 13 November 1989)
Apostasy and a Period for Repentance
In most schools (of Islam), the apostate is given the chance to return from error and follow the ordained path. If this is not done, he or (according to the Shi`a Imamiya) she will be executed. The period which is given to the apostate to return varies according to the schools but the Shi`a Imamiya are particularly harsh in that they say that whoever was born into Islam and turns away from it should be killed and no repentance accepted (Amnesty International, Law and Human Rights in the Islamic Republic of Iran, February 1980, MDE/13/03/80).
Many Muslim countries do not impose the death penalty for apostasy, since there is debate among Islamic scholars about its propriety in the light of the Qu’ranic injunction against coercion in religion. In other Muslim countries, the death penalty is on the statute book but not implemented. There is also debate about what constitutes apostasy. As Susan Musarrat Akram points out in ‘Orientalism Revisited in Asylum and Refugee Claims’ (IJRL 12 (1):7 (2000)), persecution of ‘apostates’ tends to be a political rather than a religious matter, as with the Iranian regime’s persecution of Bahá’ís and Pakistan’s of Ahmadis.But where apostasy is severely penalised, the risk of punishment founds a claim of persecution for reason of religion under the 1951 Convention. Informal punishments by family and community members will also found a claim if state agents do not provide effective protection. Renunciation of Islam is not the only type of apostasy which may attract punishment (and therefore potential international protection). Goodwin-Gill (The Refugee in International Law, 2nd edition, 1996) refers to the serious discrimination faced by Jews in Israel converting to Christianity (p45, fn58). Many refugee claims based on apostasy are ‘sur place’ claims, i.e. the applicant was not a refugee on leaving his country of nationality or habitual residence, but since departure has converted or otherwise renounced his religion and claims to face a real risk of persecution on return.
International Human Rights Law: Freedom of Religion
The right to freedom of religion is in two parts: the right to belief (or unbelief) per se and the right to manifest the belief. International human rights law recognises the first as an absolute, non-derogable right, but the second may be subjected to proportionate limitations, to avoid, for example, improper proselytising in a society where different religions co-exist (see for e.g. Kokkinakis v Greece Application no. 14307/88, 25/05/1993)
On religious freedom, the US Supreme Court has said:
‘At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State’ (Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), at p. 851).
The Canadian Supreme Court has said, ‘To compel religious practice by force of law deprives the individual of the fundamental right to choose his or her mode of religious experience, or lack thereof’ (Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, ).
Human Rights Instruments and Religious Freedom
- Universal Declaration on Human Rights 1948 (UDHR) Article 18:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
- International Covenant on Civil and Political Rights 1966 (ICCPR) Article 18:
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
- General Comment No. 22: The right to freedom of thought, conscience and religion (Art. 18) 30/07/93 (CCPR/C/21/Rev.1/Add.4):
1. The right to freedom of thought, conscience and religion (which includes the freedom to hold beliefs) in article 18.1 is far-reaching and profound; it encompasses freedom of thought on all matters, personal conviction and the commitment to religion or belief, whether manifested individually or in community with others ... The fundamental character of these freedoms is also reflected in the fact that this provision cannot be derogated from, even in time of public emergency, as stated in article 4.2 of the Covenant...
5. The Committee observes that the freedom to "have or to adopt" a religion or belief necessarily entails the freedom to choose a religion or belief, including the right to replace one's current religion or belief with another or to adopt atheistic views, as well as the right to retain one's religion or belief. Article 18.2 bars coercion that would impair the right to have or adopt a religion or belief, including the use of threat of physical force or penal sanctions to compel believers or non-believers to adhere to their religious beliefs and congregations, to recant their religion or belief or to convert. Policies or practices having the same intention or effect, such as, for example, those restricting access to education, medical care, employment or the rights guaranteed by article 25 and other provisions of the Covenant, are similarly inconsistent with article 18.2. The same protection is enjoyed by holders of all beliefs of a non-religious nature.
- Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (Proclaimed by General Assembly resolution 36/55 of 25 November 1981, without a vote):
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have a religion or whatever belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have a religion or belief of his choice.
3. Freedom to manifest one's religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.
1. No one shall be subject to discrimination by any State, institution, group of persons, or person on the grounds of religion or other belief.
2. For the purposes of the present Declaration, the expression "intolerance and discrimination based on religion or belief" means any distinction, exclusion, restriction or preference based on religion or belief and having as its purpose or as its effect nullification or impairment of the recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal basis.
Discrimination between human beings on the grounds of religion or belief constitutes an affront to human dignity and a disavowal of the principles of the Charter of the United Nations, and shall be condemned as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and enunciated in detail in the International Covenants on Human Rights, and as an obstacle to friendly and peaceful relations between nations.
1. All States shall take effective measures to prevent and eliminate discrimination on the grounds of religion or belief in the recognition, exercise and enjoyment of human rights and fundamental freedoms in all fields of civil, economic, political, social and cultural life.
2. All States shall make all efforts to enact or rescind legislation where necessary to prohibit any such discrimination, and to take all appropriate measures to combat intolerance on the grounds of religion or other beliefs in this matter.
1. The parents or, as the case may be, the legal guardians of the child have the right to organize the life within the family in accordance with their religion or belief and bearing in mind the moral education in which they believe the child should be brought up.
2. Every child shall enjoy the right to have access to education in the matter of religion or belief in accordance with the wishes of his parents or, as the case may be, legal guardians, and shall not be compelled to receive teaching on religion or belief against the wishes of his parents or legal guardians, the best interests of the child being the guiding principle.
3. The child shall be protected from any form of discrimination on the ground of religion or belief. He shall be brought up in a spirit of understanding, tolerance, friendship among peoples, peace and universal brotherhood, respect for freedom of religion or belief of others, and in full consciousness that his energy and talents should be devoted to the service of his fellow men.
4. In the case of a child who is not under the care either of his parents or of legal guardians, due account shall be taken of their expressed wishes or of any other proof of their wishes in the matter of religion or belief, the best interests of the child being the guiding principle.
5. Practices of a religion or belief in which a child is brought up must not be injurious to his physical or mental health or to his full development, taking into account article 1, paragraph 3, of the present Declaration.
In accordance with article 1 of the present Declaration, and subject to the provisions of article 1, paragraph 3, the right to freedom of thought, conscience, religion or belief shall include, inter alia , the following freedoms:
(a) To worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes;
(b) To establish and maintain appropriate charitable or humanitarian institutions;
(c) To make, acquire and use to an adequate extent the necessary articles and materials related to the rites or customs of a religion or belief;
(d) To write, issue and disseminate relevant publications in these areas;
(e) To teach a religion or belief in places suitable for these purposes;
(f) To solicit and receive voluntary financial and other contributions from individuals and institutions;
(g) To train, appoint, elect or designate by succession appropriate leaders called for by the requirements and standards of any religion or belief;
(h) To observe days of rest and to celebrate holidays and ceremonies in accordance with the precepts of one's religion or belief;
(i) To establish and maintain communications with individuals and communities in matters of religion and belief at the national and international levels.
The rights and freedoms set forth in the present Declaration shall be accorded in national legislation in such a manner that everyone shall be able to avail himself of such rights and freedoms in practice.
Nothing in the present Declaration shall be construed as restricting or derogating from any right defined in the Universal Declaration of Human Rights and the International Covenants on Human Rights.
A Special Rapporteur on Freedom of Religion or Belief reports annually to the Human Rights Council, the Commission and the General Assembly on the state of religious tolerance and discrimination throughout the world. For the annual reports, see http://www2.ohchr.org/english/issues/religion/annual.htm. In addition, the Special Rapporteur regularly sends communications to governments on these issues, and the annual summaries of communications of the SR and governments’ responses are published on the same website. A recent report (A/HRC/7/10/Add.1) includes communications to the Indonesian and Iranian governments over their treatment of Baha’is.
- European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR), Article 9: Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
- American Convention on Human Rights, Article 12: Freedom of Conscience and Religion (adopted 22/11/1969, entry into force 18/7/1978)
1. Everyone has the right to freedom of conscience and of religion. This right includes freedom to maintain or to change one's religion or beliefs, and freedom to profess or disseminate one's religion or beliefs, either individually or together with others, in public or in private.
2. No one shall be subject to restrictions that might impair his freedom to maintain or to change his religion or beliefs.
3. Freedom to manifest one's religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others.
4. Parents or guardians, as the case may be, have the right to provide for the religious and moral education of their children or wards that is in accord with their own convictions.
- 1981 African Charter on Human and Peoples’ Rights, Article 8
Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.
- Arab Charter on Human Rights (adopted by the League of Arab States on 15 September 1994) (in force March 2008)
Article 26: Everyone has a guaranteed right to freedom of belief, thought and opinion.
Article 27: Adherents of every religion have the right to practise their religious observances and to manifest their views through expression, practice or teaching, without prejudice to the rights of others. No restrictions shall be imposed on the exercise of freedom of belief, thought and opinion except as provided by law.
The Cairo Declaration on Human Rights in Islam, adopted at the 19th Islamic Conference of Foreign Ministers in Cairo on 5 August 1990. This places human rights within an Islamic context. As such, although it contains non-discrimination principles, no protection is afforded to those forsaking Islam, which is ‘the religion of unspoiled nature (Art 10, prohibiting forced or exploitative conversion from Islam to another religion or atheism). The Declaration expressly subjects all the rights and freedoms contained within it to the Islamic Shari’ah (Art 24).
- UN General Assembly, Situation of Human Rights in the Islamic Republic of Iran: resolution adopted by the General Assembly, 24 February 2009, A/RES/63/191:
Expresses its deep concern at serious human rights violations in the Islamic Republic of Iran relating to, inter alia:
(g) Severe limitations and restrictions on freedom of religion and belief, including the provision in the proposed draft penal code that sets out a mandatory death sentence for apostasy...
UNHCR Guidance on Religion-Based Claims
- UNHCR Guidelines on International Protection No 6: Religion-Based Refugee Claims under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees (HCR/GIP/04/06, 28 April 2004):
2. The right to freedom of thought, conscience and religion is one of the fundamental rights and freedoms in international human rights law. In determining religion-based claims, it is therefore useful, inter alia, to draw on Article 18 of the 1948 Universal Declaration of Human Rights (the “Universal Declaration”) and Articles 18 and 27 of the 1966 International Covenant on Civil and Political Rights (the “International Covenant”). Also relevant are the General Comments issued by the Human Rights Committee, the 1981 Declaration on the Elimination of All Forms of Intolerance and Discrimination based on Religion or Belief, the 1992 Declaration on the Rights of
Persons belonging to National or Ethnic, Religious and Linguistic Minorities and the body of reports of the Special Rapporteur on Religious Intolerance...
5. Claims based on “religion” may involve one or more of the following elements:
a) religion as belief (including non-belief);
b) religion as identity;
c) religion as a way of life...
12. Persecution for reasons of religion may ... take various forms. Depending on the particular circumstances of the case, including the effect on the individual concerned, examples could include prohibition of membership of a religious community, of worship in community with others in public or in private, of religious instruction, or serious measures of discrimination imposed on individuals because they practise their religion, belong to or are identified with a particular religious community, or have changed their faith. 8 Equally, in communities in which a dominant religion exists or where there is a close correlation between the State and religious institutions, discrimination on account of one’s failure to adopt the dominant religion or to adhere to its practices, could amount to persecution in a particular case.
13. Applying the same standard as for other Convention grounds, religious belief, identity, or way of life can be seen as so fundamental to human identity that one should not be compelled to hide, change or renounce this in order to avoid persecution. Indeed, the Convention would give no protection from persecution for reasons of religion if it was a condition that the person affected must take steps – reasonable or otherwise – to avoid offending the wishes of the persecutors. Bearing witness in words and deeds is often bound up with the existence of religious convictions.
14. Each claim requires examination on its merits on the basis of the individual’s situation. Relevant areas of enquiry include the individual profile and personal experiences of the claimant, his or her religious belief, identity and/or way of life, how important this is for the claimant, what effect the restrictions have on the individual, the nature of his or her role and activities within the religion, whether these activities have been or could be brought to the attention of the persecutor and whether they could result in treatment rising to the level of persecution. In this context, the well-founded fear “need not necessarily be based on the applicant’s own personal experience”. What, for example, happened to the claimant’s friends and relatives, other members of the same religious group, that is to say to other similarly situated individuals, “may well show that his [or her] fear that sooner or later he [or she] also will become a victim of persecution is well-founded”. Mere membership of a particular religious community will normally not be enough to substantiate a claim to refugee status. As the UNHCR Handbook notes, there may, however, be special circumstances where mere membership suffices, particularly when taking account of the overall political and religious situation in the country of origin, which may indicate a climate of genuine insecurity for the members of the religious community concerned...
17. … For the purposes of analysing an asylum claim, a distinction should be made between discrimination resulting merely in preferential treatment and discrimination amounting to persecution because, in aggregate or of itself, it seriously restricts the claimant’s enjoyment of fundamental human rights …
18. The existence of discriminatory laws will not normally in itself constitute persecution, although they can be an important, even indicative, factor which therefore needs to be taken into account. An assessment of the implementation of such laws and their effect is in any case crucial to establishing persecution.…
19. Discrimination may ... take the form of restrictions or limitations on religious belief or practice. Restrictions have, for instance, included penalties for converting to a different faith (apostasy) or for proselytising...
21. Forced compliance with religious practices … could rise to the level of persecution if it becomes an intolerable interference with the individual’s own religious belief, identity or way of life and/or if non-compliance would result in disproportionate punishment...
22. … Where the law imposes disproportionate punishment for breaches of the law (for example, imprisonment for blasphemy or practising an alternative religion, or death for adultery), whether or not for adherents of the same religion, it would constitute persecution.
c) Conversion post departure
34. Where individuals convert after their departure from the country of origin, this may have the effect of creating a sur place claim. In such situations, particular credibility concerns tend to arise and a rigorous and in depth examination of the circumstances and genuineness of the conversion will be necessary. Issues which the decision-maker will need to assess include the nature of and connection between any religious convictions held in the country of origin and those now held, any disaffection with the religion held in the country of origin, for instance, because of its position on gender issues or sexual orientation, how the claimant came to know about the new religion in the country of asylum, his or her experience of this religion, his or her mental state and the existence of corroborating evidence regarding involvement in and membership of the new religion.
35. Both the specific circumstances in the country of asylum and the individual case may justify additional probing into particular claims. Where, for example, systematic and organised conversions are carried out by local religious groups in the country of asylum for the purposes of accessing resettlement options, and/or where “coaching” or “mentoring” of claimants is commonplace, testing of knowledge is of limited value. Rather, the interviewer needs to ask open questions and try to elicit the motivations for conversion and what effect the conversion has had on the claimant’s life. The test remains, however, whether he or she would have a well-founded fear of persecution on a Convention ground if returned. Regard should therefore be had as to whether the conversion may come to the notice of the authorities of the person’s country of origin and how this is likely to be viewed by those authorities. Detailed country of origin information is required to determine whether a fear of persecution is objectively well-founded.
36. So-called “self-serving” activities do not create a well-founded fear of persecution on a Convention ground in the claimant’s country of origin, if the opportunistic nature of such activities will be apparent to all, including the authorities there, and serious adverse consequences would not result if the person were returned. Under all circumstances, however, consideration must be given as to the consequences of return to the country of origin and any potential harm that might justify refugee status or a complementary form of protection. In the event that the claim is found to be self-serving but the claimant nonetheless has a well-founded fear of persecution on return, international protection is required. Where the opportunistic nature of the action is clearly apparent, however, this could weigh heavily in the balance when considering potential durable solutions that may be available in such cases, as well as, for example, the type of residency status.
Case Law: Refugee Claims Involving Apostasy
The cases from the jurisdictions of Australia, Canada, New Zealand, the UK and the US demonstrate a progressively more sophisticated approach to the problem of apostasy, which now looks closely at the situation on the ground for converts and the pronouncements of prominent political and religious figures as well as the penal code in the country concerned. Some of the significant cases are summarised below.
In Prashar v Minister for Immigration and Multicultural Affairs  FCA 57 at  Madgwick J observed:
‘In my opinion, if persons are persecuted because they do not hold religious beliefs, that is as much persecution for reasons of religion as if somebody were persecuting them for holding a positive religious belief. The Convention protects people in relation to the subject matter of religious belief. It does not protect believers and leave non-believers to the wolves.’
In Wang v MIMA (2000) 179 ALR 1, 105 FCR 548 ; 62 ALD 373;  FCA 1599, the Federal Court of Appeal held that participation in communal religious rites could be an essential element of worship and deprivation of this by state authorities could be persecution.
A v MIMA  FCA 148: ‘… [F]or an apostate, the risk of extreme punishment will always exist…. [P]erhaps a person who has committed a capital offence of apostasy under Iranian law may be fortunate enough to escape the consequence of that conduct if returned to Iran, but … the risk of discovery, apprehension and punishment would continue and it may be sufficient to ground a well-founded fear of persecution. Furthermore, the persecution feared, of course, is not restricted to execution and may include the suffering of substantial harm or interference with life by way of deprivation of liberty, assaults and continuing harassment on account of the perceived apostasy.’
In a line of cases, the Australian courts have considered the issue of discretion in worship: whether discretion about unacceptable attributes (whether a particular religion or sexual orientation) can be demanded in order to avoid persecutory consequences, and whether the fact of discretion, and the lack of adverse consequences, can be taken into account in assessing the reality of a risk of persecution. The two issues have frequently been confused.
Woudneh v MILGEA, unreported, Gray J. G86 of 1988, 16 September 1988 (Ethiopian Marxist who became a born-again Christian): in the absence of evidence that an applicant could conceal his faith, consistently with practising it (where, for example, proselytising or public worship were essential tenets of that faith), it was not open to conclude that he would not be persecuted because his faith was unknown to the authorities. The mere fact of the necessity to conceal actual or threatened infliction of punishment would amount to support for the proposition that the applicant had a well-founded fear for reasons of religion.
This conclusion was reaffirmed in Appellant S395/2002 v MIMA; Appellant S  HCA 71 (2003) 78 ALJR 180 203 ALR 112 78 ALD 8, in the different context of sexual identity, where it was re-stated that persecution does not cease to be persecution because those persecuted can eliminate the harm by taking avoiding action. At :
‘... persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps – reasonable or otherwise – to avoid offending the wishes of the persecutors.
‘If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief. But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question. And to say to an applicant that he or she should be "discreet" about such matters is simply to use gentler terms to convey the same meaning. The question to be considered in assessing whether the applicant’s fear of persecution is well founded is what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences.’
In NAEB v MIMIA  FCAFC 79 the Federal Court of Appeal held that the fact that the appellant practised her religion discreetly, and that such practice meant no adverse consequences, could be taken into account as an indication that she would not face persecution on return, despite the fact that those who practised the religion more publicly would face persecution.
In Farajvand v MIMA  FCA 795, a sur place claim based on conversion from Islam to Christianity in Australia, the Federal Court said:
‘the applicant's faith, recognised by the Tribunal by his membership of an evangelical congregation on a genuine basis, carries with it necessarily, unless there is evidence or, perhaps more accurately, findings, to the contrary, the elements of manifestation and practice in community with others. To say that if he keeps a "low profile" and worships "quietly" or "cautiously" or "circumspectly", is, I think, with respect, to deny the applicant a dimension to his faith, even accepting that he is not an enthusiastic proselytiser or derider of Islam … [the Tribunal held] he can avoid persecution by restricting the disclosure of his religion and by restricting the conduct of his religion in anticipation or, if one likes, in fear of the consequences if he did otherwise. This, in my view, recognises the likely existence of persecution unless his religion is practised in a limited way.’
In W441/01A v MIMA  FCA 453, where a Tribunal had held that an Armenian Christian who had converted to Islam and then re-converted would not face persecution as there was no evidence he would seek to proselytise, the Federal Court held that the Tribunal had failed to consider the risk of persecution through attending public worship.
In SGKB v MIMIA  FCAFC 44 76 ALD 381, the lower court had held that a Christian convert would not face persecution as he would not disclose his conversion, but the full Court held that it had not considered the risk of discovery or exposure; further, by concentrating on the death penalty for apostasy (which had not been carried out for some years) the lower court had failed to have regard to lesser instances of persecutory action to which he might be subject.
In Minister for Immigration & Multicultural & Indigenous Affairs v VWBA  FCAFC 175 the Full Court by a majority held that the principles in S395/2002 v MIMA (above) were as follows: – (1) The Tribunal will err if it assesses a claim on the basis that an applicant is expected to take reasonable steps to avoid persecution if returned to his or her country of origin - its task is to assess what the applicant will do, not what he or she should do. – (2) If the Tribunal finds that a person will act in a way that will reduce a risk of persecution that would otherwise have been well-founded, the Tribunal must consider why the person will act in that way - if it fails to do so, it commits a jurisdictional error. – (3) It will err if, having found that a person will act in a way that will reduce a risk of persecution, it does not go on to consider whether the person nevertheless has a well-founded fear of persecution because, despite the conduct that reduces the risk, there is still a real risk that the person will be persecuted.
In Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs  HCA 29, the High Court held (by majority) that where someone’s faith did not require proselytising or other strong outward manifestation, the Tribunal was not required to adjudge their claim on the basis that they would seek to profess it publicly. The RRT had relied on country information which distinguished between ‘converts to Christianity who go about their devotions quietly and maintain a low profile [who] are generally not disturbed’ and persons involved in ‘aggressive outreach through proselytising by adherents of some more fundamental faiths’. It had found that any decision by the appellant to avoid proselytising in Iran or of actively seeking attention on matters of religion was not inconsistent with his beliefs and practices and he would not be constrained in the practice of his avowed faith in Iran, due to a perception that to behave more openly or aggressively would leave him at risk of persecution. Held: this conclusion was open to it on the evidence. The minority held that the majority had again fallen into the error of confusing fear of persecution with avoidance of adverse consequences.
RRT Case No. 0902782,  RRTA 968, Australia: Refugee Review Tribunal, 30 October 2009, available at: http://www.unhcr.org/refworld/docid/4b1cdf762.html: The RRT held that a non-practising Muslim who was in a relationship with a Catholic Filipina woman of Chinese origin, with whom he had a daughter, would face persecution on return to Bangladesh with his partner and daughter, owing to the combined effect of not practising, of being in a relationship with someone of different religion and race, and having a child born out of wedlock.
RRT Case No. 071246761,  RRTA 147, 9 July 2007, available at: http://www.unhcr.org/refworld/docid/47f379342.html: The RRT held that a Hazara who has clearly been living in a Western country and whose behaviour and appearance are those of a person with opinions at odds with those of the Taliban faced a real risk of serious physical harm as a perceived apostate by local people and that state authorities would be unable to provide effective protection.
Adel Mohammed Bakr Mohamed, V87-6168 (IRB), 18 November 1988: The Board accepted the principle that refugee protection could appropriately be extended to persons with an apprehension of persecution due to their decision to change their religion, while not finding such a situation in the instant case.
X (Re), 2000 CanLII 21312 (I.R.B.): The claims of a child found in an orphanage, her guardian/ de facto mother and that woman’s husband and minor son, all Iranian, based partly on conversion to Catholicism, were genuine and well founded.
Mohajery and Ors v. Canada (Minister of Citizenship and Immigration), 2007 FC 185, Canada: Federal Court, 19 February 2007, available at: http://www.unhcr.org/refworld/docid/48abd5600.html: On a judicial review of refusal of an asylum claim based on conversion to Christianity in Iran, the Federal Court held that while the Board was entitled to disbelieve the appellants’ account of conversion and persecution in Iran, it had failed to deal with the sur place claim arising out of their Christian activities in Canada and the risk this might give rise to in Iran.
Ghasemian v. Canada (Minister of Citizenship and Immigration), 2003 FC 1266, available at: http://decisions.fct-cf.gc.ca/en/2003/2003fc1266/2003fc1266.html: Even if motives for conversion are not genuine, the consequential imputation of apostasy by the authorities in Iran may nonetheless be sufficient to bring an applicant within the scope of the convention definition.
Refugee Appeal No 74911 (1 September 2004), Refugee Appeal No 75368-71 (12 July 2005), Refugee Appeal No 75376 (11 September 2006), Refugee Appeal Nos 76083-5 (27 June 2008), New Zealand: Refugee Status Appeals Authority: (1) while conversion from Islam to Christianity is considered apostasy under Sharia law in Iran and is punishable in principle by death, executions are not now performed in practice and have not been since the mid 1990s; (2) mere apostates who do not publicly proselytise face minor intimidation and harassment such as loss of employment, checking of identities at church and official summonses for questioning and reprimanding for being influenced to reconvert to Islam; (3) an apostate is at remote risk of persecution either through lengthy detention or coupled with serious mistreatment; and (4) Christianity is an officially recognised religion in Iran, with about 15,000 Muslim converts, who are able to practice their Christianity and who, if they do so in an unobtrusive manner, will avoid serious problems. (Referred to in F v. Refugee Status Appeals Authority and Minister of Immigration,  NZHC 788, High Court, 28 May 2008, available at: http://www.unhcr.org/refworld/docid/48ef71942.html)
Refugee Appeal No. 73945, NZRSAA, 27 June 2006: The appellants, Iranian converts, suffered a real chance of persecution because their conversion had come to the attention of Iranian authorities through attending a church, participating in bible study, sharing their faith with others in their personal, work and school spheres, wishing to pray and worship in a free and unrestrained manner, having a genuine and on-going commitment to the Christian faith, being evangelical and proselytising in a manner consistent with their respective personalities, attending an evangelical church similar to the one they presently attend, and not being capable or willing to confine the practice of their religion in attending a place of worship to the private realm.
Refugee Appeal No. 76204, NZRSAA, 16 February 2009, available at: http://www.unhcr.org/refworld/docid/4a76b1e52.html: Iranians claimed conversion to Christianity was not genuine but the publicity given to his case in New Zealand and overseas by his supporters has identified him as an apostate, for which he faces a real risk of persecution. ‘It is ironic that the appellant’s supporters, being unaware of the true facts, have inadvertently created the grounds for a refugee claim which was otherwise without foundation and fraudulent.’
Refugee Appeal No. 76367, NZRSAA, 5 October 2009, available at: http://www.unhcr.org/refworld/docid/4afc2f602.html: Iranian apostate convert to Christianity who sent Christian materials back to sister in Iran had well-founded fear of being persecuted for reasons of religion.
Refugee Appeal No. 76385, NZRSAA, 17 September 2009, available at: http://www.unhcr.org/refworld/docid/4ad4ad242.html: A Saudi convert to Christianity would have difficulty manifesting his religion, as there are no churches, and one whose conversion was known to the authorities faced a real chance of serious harm in the form of arbitrary detention, serious physical mistreatment and long-term harassment, amounting to persecution.
Refugee Appeal No. 76219, NZRSAA, 29 June 2009, available at: http://www.unhcr.org/refworld/docid/4a5dd3f22.html: An Egyptian Coptic Christian who was forcibly converted to Islam and has since re-converted to Christianity faced a real risk of persecution on return to Egypt since a replacement ID card would disclose not just his (Christian) religion but also the fact that he formerly embraced Islam, exposing him to official harassment (including arbitrary detention and ill-treatment) and informal acts of violence as an apostate.
Secretary of State for the Home Department v Ahmed EWCA Civ 3003: Pakistani Ahmadi (considered apostate by authorities and by mainstream Muslims) who intended to propagate his beliefs faced a real risk of religious persecution, entitled him to refugee status. http://www.bailii.org/ew/cases/EWCA/Civ/1999/3003.html
Shirazi v Secretary of State for the Home Department EWCA Civ 1562 (06 November 2003)(UK Court of Appeal) http://www.bailii.org/ew/cases/EWCA/Civ/2003/1562.html: Great caution [was] appropriate in deciding on the genuineness of conversions from Islam to Christianity in the context of refugee claims based on apostasy.
FS and Others (Iran - Christian Converts) Iran v. Secretary of State for the Home Department, CG  UKIAT 00303, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 17 November 2004, available at: http://www.unhcr.org/refworld/docid/42c934fb4.html: A distinction was drawn between the ordinary discreet convert to Protestant Christianity, who would be able to practise Christianity (including attending church) without untoward risk, and the more active convert, pastor, church leader, proselytiser or evangelist, who would be at real risk.
SZ and JM (Christians - FS Confirmed) Iran v. Secretary of State for the Home Department, CG UKAIT 00082, UK AIT/IAA, 12 November 2008, available at: http://www.unhcr.org/refworld/docid/491af9092.html: The distinction drawn in FS and others (above) still held good, and generally the situation of ordinary converts to Christianity did not amount to persecution. Conditions for Christians in Iran have not deteriorated sufficiently to necessitate a change in the guidance in FS and others (Iran - Christian Converts)(above). It remains to be seen whether the proposed inclusion of apostasy in the amended criminal code will make a material difference. The amendments to the code are part of a wholesale change in the criminal law and not solely aimed at converts. The proposals are still before Parliament. 'Proselytising' and 'evangelising' are not terms of art and distinctions should not be drawn between them.
But the appellant JM, as a convert to Roman Catholicism, would not be able to practise his religion in Iran on return. To deprive him, as an actively practising Roman Catholic, of any meaningful contact with his church, and any of the accepted essential elements of that sacramental religion, is to require him to live a life that he could not reasonably be expected to tolerate. It would partially suppress his religious identity. Held: JM qualified for refugee status.
NM (Christian Converts) Afghanistan CG  UKAIT 00045: An Afghan claimant who can demonstrate that he has genuinely converted to Christianity from Islam is likely to be able to show that he is at real risk of serious ill-treatment amounting to persecution or a breach of his Article 3 ECHR rights on return to Afghanistan.
Elnager v INS 930 F.2d 784 (9th circuit, 1990): An Egyptian Claimant lost his claim based on conversion to Christianity on the basis that there was nothing in Egyptian law or policy mandating any penalty for conversion, and there was a tradition of tolerance for religious minorities and for religious conversion there.
Bastanipour v INS 980 F.2d 1129 (7th circuit, 1992): The Iranian Claimant’s apostasy, combined with his drugs conviction in the US and his brother’s oppositional activities, combined to give rise to a well-founded fear of persecution in Iran.
Michael Kagan, Refugee credibility assessment and the “religious imposter” problem: A case study of Eritrean Pentecostal claims in Egypt, CMRS Working Paper No. 9, The American University in Cairo, December 2009
- An important and useful paper on the problems of assessing the credibility of claims to be members of persecuted religious minorities. Kagan reveals that over three-quarters of UNHCR's refusals of religion-based refugee claims are based on negative credibility assessment. Using a sample of transcripts of refugee status determination (RSD) interviews by UNHCR in Cairo, Kagan shows some of the pitfalls of attempting to test religious belief through testing religious knowledge, analysing some of the assumptions behind such questioning (such as the assumption that a genuine believer is likely to be more knowledgeable about matters of religious doctrine than a religious imposter). He offers as a better approach the 'eyes of the persecutor' perspective, which leads interviewers to focus more on objectively observable signs of religious faith such as church attendance.
- A report which highlights administrative discrimination on religious grounds in Egypt.
Senior Fellow, Center for Religious Freedom, Hudson Institute, Washington DC
pmarshall [at] hudson [dot] org
Dr. Paul Marshall is the author and editor of over twenty books, the general editor of Religious Freedom in the World, and is an expert on the effects of blasphemy, apostasy and insulting religion accusations in the Muslim majority world. Amongst his books that deal with this issue in the are Radical Islam’s Rules (2005), Religious Freedom in the World: A Global Survey (2008) and Silenced: How Blasphemy and Apostasy Codes are Choking Freedom Worldwide (2011, Oxford University Press), which details the growing effects of blasphemy and apostasy laws and accusations.
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