Ahwazi v Minister for Immigration and Multicultural Affairs

Federal Court of Australia|2001-12-17|Before: Carr J

introduction 1 This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 15 June 2001, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant. The applicant who is a citizen of Iran, arrived in Australia with his family comprising his wife and three children, on 9 August 2000. On 25 January 2001 they lodged an application for protection visas with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth)("the Act"). On 6 March 2001 a delegate of the respondent refused to grant protection visas and on 9 March 2001 the applicant applied for review of that decision.

the applicant's claims and the Tribunal's decision 2 At his initial arrival interview the applicant's claims were, in summary, as follows: · He had used an Iranian passport in his own name for travel en route to Australia. His passport was genuine and he had applied for it himself. The smuggler took his passport and was to mail it to the applicant's family in Iran. · He had given his passport to the smuggler as he was told that if he had the documents with him the Australian authorities might send him back to Iran. · He had previously left Iran on two occasions travelling to Dubai on a pilgrimage visa. This was seven years ago. · He lived in Ahwaz before leaving Iran to come to Australia. He had sold his house before he left, but the transfer had not been completed, so he left the house in the care of his brother. · He was a self-employed jeweller. · He had contemplated leaving Iran for a long time, had planned for three months to leave, but had not had the opportunity to do so until his departure. · He had a brother in Canada who had applied to the United Nations for refugee status in Pakistan. That had been refused, so his brother had changed his name and his story and applied again, had been successful and now lived, as he had said, in Canada. The applicant's family organised a forged birth certificate and sent it to his brother in Canada. His brother wanted to sponsor the family to come to Canada, but was not able to do this as it would have entailed revealing that he had changed his name. · His reasons for leaving Iran were as follows. He lost a brother in a bomb blast during the war in 1981. Another brother was killed in an armed robbery in the applicant's jewellery shop about 9 years ago. Gold was stolen from the shop. When this brother was killed, there was mention of this incident in the newspaper. The prosecution had said that some people were questioned, but nothing happened. The authorities in Ahwaz would not issue permits for Sabeans to work with food products, so they have limited work opportunities. Permits were not issued as Sabeans are considered unclean. His children were taught about Islam at school. · He came to Australia because hundreds of Iraqi and Iranian Sabean families have come here. In addition, their religious leader is here, so they will be able to practise their religion. · He did not want his children to be discriminated against, as he had been in the past. When asked to explain, he said that when a Muslim friend dies he is not allowed to go to the mosque to mourn or pay his respects. He did not give any other examples although invited to do so. 3 The applicant's wife was also interviewed at the initial arrival interview. Her claims were, in summary, as follows: · She left Iran because there is no respect for Sabeans there. · "All the ladies pull away" when she went to buy bread as she is supposed to be unclean. · Her son was told at school that he did not have a good religion, so she took him out of the public school and put him in a private school, but things were the same there. · People will not speak to them because they think Sabeans are unclean. · If there is an altercation between a Muslim and a Sabean, the authorities take the Muslim's side. · Sabeans cannot get government jobs or open supermarkets or food stores. · A Muslim man had wanted to marry her sister. The family refused, but the Muslim took her sister anyway. However, her brothers retrieved her and she is now married to a cousin. · A man had once touched her in the street, but she could not tell her husband because if he had confronted the man, the authorities would not have supported him. · The family received no compensation when her brother-in-law was killed in an armed robbery, but when her brother was involved in a fight with a Muslim family, her family had to pay compensation as between the families. · She had no reason to go back to Iran as she had sold her house and her gold. She was sure that the Iranian government knows that the family have left. · The family would be questioned if they returned to Iran. She does not know what the authorities would do, but they will "bother them". They may think that she is a spy to give the Australian government information about the Iranian government. 4 In his application for a protection visa, the applicant provided the following further information. · He was an ethnic Arab and a Sabean. He had lived at two addresses in Ahwaz in the last ten years. He had seven years of education, worked in a family goldsmith business from 1977 until 2000. · He had no difficulty obtaining a passport. · He left Iran because of religious persecution. Sabeans are always abused and insulted by Muslims. · His children were abused and insulted at school; they have no future because they are not allowed to go to university. They are required to learn Muslim teachings at school. · His family did not receive compensation when his brother was killed during the Iran/Iraq war. · He has been arrested a few times because he has consumed alcohol. He had to pay money because of this. · Sabeans are denied government jobs and are not allowed to work in the food industry. · In March 2000 he sold some gold to a customer and was paid with a cheque that bounced. After several demands, he told the customer that he would go to the authorities. The customer said that there would be bad consequences if he did so. The applicant went to the authorities and complained about the bad cheque. The customer was summonsed to court and convicted of drawing a cheque without funds to cover it, was sent to prison on the basis that he would remain there until he paid the debt. · The customer's family members threatened the applicant to get him to drop the complaint. · Three days later people came to the applicant's door at 3.00am. They said that they were relatives of his customer. They threatened him so he telephoned the police. The telephone was engaged but he told the people at the door that he had called the police. They got angry, broke glass around the door and fired shots before they went away. · The next day the applicant went to the police and told them what had happened. The police came to investigate and spoke to the neighbours who denied having seen anything. · After this incident the applicant and his family where afraid; they locked the doors when they were at home. The applicant took precautions when he went to the shop and did not display gold in the display units. His brother came and stayed with him for a few days. · His wife received another threat, this time by telephone when the caller swore at her and threatened to kill her husband unless he authorised the release of the customer. He told her to have a look at the applicant's brother's grave in the cemetery. The next day the applicant went to the cemetery and saw that the tombstone had been damaged. · This incident reinforced the applicant's view that they had to leave Iran. They were scared that they would be seriously harmed. They sold their house and paid a smuggler to bring them to Australia. · His customer had not paid him because he knew that the applicant was Sabean and that Sabeans were persecuted. · In 1991 when his brother was killed in an armed robbery in the shop the gunman also shot at the applicant and at his other brother who was injured, no-one did anything. He had not mentioned this incident at his arrival interview because the smuggler had told him that he had a good case because he was from a religious minority group and not to go into a lot of detail. · He was afraid to return to Iran because he feared that either he or one of his family members will be killed by the family of the customer and that the authorities were unwilling to protect him because of his religion. He and his family might be accused of being spies because they are Sabean had left Iran. · The head of the Justice Department in Iran made a speech in which he said that Sabeans who have left Iran are spies and will be given the death penalty if caught. · His wife knew a Sabean, a friend of her brother's, who unsuccessfully sought refugee status abroad. When he returned to Iran he was apprehended and had been missing since then. · He could not live elsewhere in Iran because he will still practise his religion and will be harassed as a consequence. · He would not be able to open a gold shop and work in his occupation as he would not be able to obtain registration. · His father opened up the family shop before the Revolution. He and his family would not be safe elsewhere in Iran because the customer's family would be able to find out their location from the applicant's family in Ahwaz. 5 During his interview with the respondent's delegate the applicant made similar claims. 6 Before the hearing, further material was provided to the Tribunal and the applicant's adviser provided submissions in relation to the facts and the law. This included a letter from the applicant addressed to the Israeli Embassy, newspaper reports in relation to protests in the detention centre showing photographs of detainees including the applicant's wife, and a translation of a letter allegedly written to the applicant by his brother. In that letter it was stated that the customer who owed the applicant money had been released from prison by corrupt means and had attacked the applicant's brother. There were also claims that the applicant's brother had been detained and beaten by the intelligence services, that he had been questioned about the applicant and that the authorities knew that the applicant had applied for asylum in Australia and was considered to be a spy. Another document was signed by three people who claimed that they witnessed the applicant's brother being attacked by a group of men in August 2000 and that they knew that since the applicant left Iran, the intelligence services have questioned the applicant's brother. 7 The applicant gave evidence before the Tribunal. It is not necessary for me to summarise this evidence. During the Tribunal hearing and after a break which involved a discussion with the applicant's adviser, the applicant came up with a further claim. This was that if the applicant and his family were returned to Iran they would be killed. His defaulting customer's relatives had stabbed his brother and want to set his shop on fire. The security forces had detained his brother for several days. When asked why he had not previously mentioned anything about this, the applicant stated that during the adjournment his adviser had asked him why he had not mentioned important things and he had replied that he thought that the discussion would continue after the break. 8 The applicant also told the Tribunal that he would be in trouble when the Iran authorities find out that he has spoken against the government and has contacted the Israeli Embassy. The Iranian Government would find this out because there were Iranian spies in the detention centre. 9 The applicant called three witnesses before the Tribunal. One witness, a Mr Geazan stated that the applicant was propagating Judaism in Iran. Mr Geazan said that he thought that before the applicant left Iran, he (the applicant) had applied for a visa for Israel. The applicant was trying to get close Muslim friends to convert to Islam. 10 The Tribunal reviewed extensive independent country information about the Mandaeans or Sabeans, as they are sometimes known, and their treatment in Iran. 11 Rather than attempt to summarise the Tribunal's reasons I set them out in full below. I have added numbers to facilitate the references which I make later in these reasons. "FINDINGS AND REASONS

GROUNDS OF THE application 12 There were two grounds in the applicant's amended grounds of application. Ground 1 was as follows: "1. The Tribunal's decision involved an error of law involving an incorrect interpretation of the applicable law. Particulars The Tribunal misinterpreted the word "persecuted" within the meaning of Article 1A(2) of the Convention relating to the Status of Refugees in that: (a) the Tribunal held that a person is not "persecuted" unless the person is subject to serious harm; (b) the Tribunal failed to hold that a person is "persecuted" if the person is subject to harm which is not trivial or insignificant." 13 Mr J A Thomson appeared as counsel for the applicant, on a pro bono publico basis. 14 Mr Thomson submitted that the Tribunal, by misinterpreting the word "persecuted" in the manner referred to above had asked itself the wrong question in relation to the applicant's status as a refugee. Consequently the Tribunal had, so it was submitted, committed a jurisdictional error of law: Craig v South Australia (1995) 184 CLR 163 at 177-178; Minister for Immigration and Multicultural Affairs v Yusuf (2001] 180 ALR 1 at [81]. 15 Mr Thomson referred me to paragraphs numbered 10, 11, 12, 13, 15 and 17 of the Tribunal's reasons set out above. 16 He contended that although the Tribunal purported to use the word "serious" in a relative sense, there was no comment in the Tribunal's reasons which showed the standard against which "serious" was measured as a relative concept. "Against that background", so it was put, the word "serious" had to be understood in its ordinary meaning. This showed that the Tribunal contemplated that there must be serious harm or detriment before there would be persecution. 17 The applicant contended that such an interpretation was legally incorrect. In order for there to be "persecution", it was sufficient that there be discriminatory conduct against a person which caused harm or detriment that was "not trivial or insignificant": Gersten v Minister for Immigration and Multicultural Affairs [2000] FCA 855 at [42]-[48]; Kord v Minister for Immigration and Multicultural Affairs [2001] FCA 1163 at [17]-[37]; Roguinski v Minister for Immigration and Multicultural Affairs [2001] FCA 1327 at [24]-[29]; Illankovan v Minister for Immigration and Multicultural Affairs [2001] FCA 1290 at [35] to [39]. 18 In oral submissions Mr Thomson argued that the threshold for what constituted religious persecution was set at a different level to the other Convention-based reasons, relying on some observations from Chen v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at [25] and [26]. 19 Mr Thomson submitted that such an approach was consistent with the comment in Grahl-Madsen, "The Status of Refugees in International Law" (1966) at 216: "… an inability to bring up one's children in one's own faith in accordance with one's own ideals may be an intolerable burden on some persons. All the small annoyances to which such persons may be subjected can in fact add up to 'persecution'." 20 Mr Thomson also cited Kirby J in Chen at [62], where his Honour said that: "… the more modern definitions suggest that, in contemporary understanding of persecution there has been a softening of the original meaning." 21 Mr Thomson further submitted that it was "notable" that the Tribunal did not refer to these cases concerning the extent of harm necessary to satisfy the Convention concept of "persecution", but had simply referred to Mason CJ's observation in Chan v Minister for Immigration and Multicultural Affairs (1989) 169 CLR 379 at 388 that persecution required "some serious punishment or penalty or some significant detriment or advantage". That very comment, so it was submitted, had given rise to what was said to be the difficulties referred to in the above-mentioned cases.

my reasoning 22 First, in fairness to the Tribunal, it must be noted that it did not confine its references simply to Mason CJ's observations in Chan. The Tribunal referred to McHugh J's statements in that case that the notion of persecution involved selective harassment, and that in appropriate cases it may include single acts of oppression, serious violations of human rights and measures "in disregard" of human dignity. There were also references to other leading cases at p 3 of the Tribunal's reasons. 23 The first use of the expression "serious enough" of which complaint was made, was in paragraph numbered 10 above. In that paragraph the Tribunal concluded that while Sabean Mandaeans faced some discrimination in Iran, the independent evidence did not support a conclusion that such discrimination was serious enough to amount to persecution. The Tribunal gave several reasons for that conclusion. They included the fact that, if such treatment had been serious enough to amount to persecution, this would have been referred to in reports such as the USA Department of State's Annual Report on Religious Freedom. Then the Tribunal referred to the ASUTA article (previously cited by the Tribunal) which did not suggest that Sabeans Mandaeans were prevented from practising their religion or that they were physically harmed because they were of that faith. The Tribunal referred to that article as specifically indicating that Sabean Mandaeans were able to carry out their ceremonies, including baptisms, wedding and funerals. 24 Turning from the general to the particular, the Tribunal then noted that the applicants had all been baptised, the applicant husband and wife on a number of occasions. Finally, the Tribunal referred to independent evidence indicating that no efforts are made in Iran to convert Iranian Sabean Mandaeans to Islam and that they were not seen as a threat to Islam, because they do not proselytise. 25 In paragraph numbered 11 the Tribunal expressly referred to the fact that persecution was a question of fact and degree in relation to whether denial of employment or difficulties obtaining employment for a Convention reason amounted to persecution. It again referred to the ASUTA article and to the applicant husband's own evidence that he had been self-employed as a goldsmith for some 23 years. It was in that circumstance that the Tribunal made the remark that it was not satisfied that restrictions on handling food in shops, or on operating food-related businesses amounted to a detriment serious enough to amount to persecution of the applicant and his family for a Convention reason. 26 In paragraph numbered 12, the Tribunal dealt with the applicant's complaint that their children had to study Islam at public schools. The Tribunal noted that the applicant had complained about this issue to educational officials in Ahwaz. It said that the fact that the applicant felt confident enough to make such a complaint suggested that he did not fear any adverse consequences for himself or his children. The Tribunal also noted the response which the applicant received i.e. that having studied Islam would be useful if his children wanted some day to enter university. 27 Mr Thomson pointed to the last sentence of the paragraph numbered 13 in the Tribunal's reasons as demonstrating that the Tribunal had exclusively applied the test suggested by Mason CJ in Chan. But, earlier in that paragraph the Tribunal can be seen to have referred to the observations of McHugh J in Chan at 431. 28 In my view, when one reads the Tribunal's reasons as a whole, it did not incorrectly interpret the word "persecuted". In particular it recognised that the term was a relative one, involving matters of fact and degree. 29 I have recently considered this question in Applicant Z v Minister for Immigration and Multicultural Affairs [2001] FCA 1714 where I reviewed most of the authorities upon which the applicant relied in this case. In my view, Roguinski (to which I did not refer) is clearly distinguishable from the present case on the facts. I do not think that Illankovan assists the applicant in this matter. 30 Mr Thomson made two submissions in relation to Applicant Z. First he submitted, respectfully, that the decision is wrong. Secondly, he submitted that Applicant Z can be distinguished on the basis that in relation to religious persecution there is a lower threshold (an argument which I have described above). 31 In my opinion, the passages in Chen at [25] and [26] of the main judgment upon which the applicant relied, do not propose a lower threshold for what constitutes persecution. Their Honours explained that the question whether conduct was undertaken for a Convention reason "… cannot be entirely isolated from the question whether that conduct amounts to persecution." They then referred to the need for different analysis depending on the reason assigned for the discriminatory conduct in question. But I do not see anything in those paragraphs which suggests a lower threshold. 32 I shall not repeat the observations which I made in paragraphs [8] to [21] in Applicant Z but I incorporate them by reference into these reasons. I adhere to the views which I expressed in that matter. 33 In summary, I do not think that the Full Court in Gersten intended to hold that any harm which was more than trivial or insignificant amounted to persecution, but was simply establishing a benchmark below which persecution could not be found. Hely J in Kord read Gersten differently, but I agree with his observation that, but for Gersten, it had been established by the authorities that the notion of persecution requires that the harm feared must be sufficiently serious as to justify international protection. I understand that the Minister has lodged an appeal against the decision in Kord. 34 In my view, the Tribunal in this matter followed well-established authority when it interpreted the meaning of "persecution". 35 If I am wrong in my assessment of what was decided in Gersten, I do not think that the Tribunal's references in its reasons to "discrimination, detriment, harm or detriment" (respectively) not being "serious enough" was equating persecution with an impermissibly high level of discrimination, detriment or harm. Furthermore, its reasons show, in my view, that it was clearly stating a relative test. 36 In my view, this ground has not been made out.

ground 2 37 Ground 2 was in the following terms: "2. The Tribunal's decision involved an error of law involving an incorrect application of the law to the facts as found by the Tribunal. Particulars The Tribunal held that: (a) the Applicant and his family were from Iran; (b) the Applicant held the religious beliefs of a Sabean Mandean; (c) Sabean Mandeans are discriminated against in Iran in a number of ways including as follows: (i) they are not accorded full equality with Muslims before the law, eg they are not accorded the same amount of compensation in the event of injury or death; (ii) they are precluded from government employment; (iii) they are not allowed to establish their own schools; (iv) they are not permitted to handle food in shops operated by observant Muslims; (v) children who are Sabean Mandean and attend public schools are required to study Islam and if they do not study Islam may encounter problems in attending university; and (d) the Applicant and his immediate family had in fact been subject to discriminatory action due to being Sabean Mandean in the following ways: (i) the Applicant's family did not receive the same amount of compensation which a Muslim family would have received for the death of a member of the Applicant's family; (ii) the Applicant's wife had been humiliated and ostracised on a number of occasions; (iii) the Applicant's children would possibly be excluded from university due to their limited educational opportunities. Having so held, the Tribunal erred in law in holding that the Applicant and his family did not have a well-founded fear of persecution for the purposes of Article 1A(2) of the Convention relating to the Status of Refugees". 38 I consider that this ground, to a considerable extent, overlaps with Ground 1. This can be seen, in part, from the applicant's submissions both written and oral. These included a submission that the only way in which the Tribunal could have reached its conclusion was by impliedly holding that a person was not persecuted if the person did not suffer serious or significant harm. 39 Then it was said that although the Tribunal formally referred to the cumulative effects of the applicant's claims, it did not "substantively consider these cumulative effects". Instead, so it was put, the Tribunal had simply adopted the approach of dealing with the effect of each suggested element of persecution, saying that each element was not serious enough. The applicant submitted that the Tribunal should have considered the aggregated effect of all elements of persecution which it accepted. Its failure to do so represented, so the applicant contended, a misapplication of the law to the applicant's claims of persecution.

my reasoning 40 At paragraph numbered 32 of its reasons set out above the Tribunal said that it had considered the applicant's claims both individually or cumulatively. 41 There is nothing elsewhere in the Tribunal's reasons to suggest that it had not done so. In fact, the Tribunal's reasons comprise a meticulous analysis of all of the applicant's claims. It can be seen to have formed a very clear picture of the family's way of life in Iran and also the general situation of Sabean Mandaeans in Iran. In the absence of any evidence that the Tribunal did not consider the claims cumulatively, the authorities show that its reasons must be read beneficially and it must be taken to have done so. 42 I have already dealt with the submissions concerning the Tribunal's approach to discrimination in employment, education and the handling of food in shops. 43 The further matters raised in this ground relate to the fact that the applicant's family received less compensation when one of his brother's was killed, the social humiliation and ostracism of the applicant's wife on a number of occasions and the possibility that the applicant's children might be excluded from university due to their limited educational opportunity. 44 The evidence shows that the applicant's brother was killed some ten years ago during the Iran/Iraq war. I have already dealt above with the other two further matters. 45 Whether the particular matters of which the applicant complained amounted to persecution within the meaning of the Convention was a question of fact and degree for the Tribunal. I think that its conclusion was open to it on the facts as found. I do not think it is for this Court to interfere with its assessment in that respect: Ji Dong Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 511 at [42], Prahastano v Minister for Immigration and Multicultural Affairs [1997] FCA 586. 46 In my opinion, the matters raised by this ground go to questions of fact and degree i.e. the merits of the Tribunal's decision. They do not raise any legal or jurisdictional error. 47 I do not think that ground 2 has been made out.

Conclusion 48 For the foregoing reasons, the application will be dismissed with costs.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

Counsel for the Applicant: Mr J A Thomson who appeared on a pro bono publico basis

Solicitor for the Respondent: Australian Government Solicitor

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (10)

Cited By (3)