Ahwazi v Minister for Immigration and Multicultural Affairs

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