Hamid v Minister for Immigration & Multicultural Affairs

the claims 3 The applicant is a citizen of Iran and is of Arab ethnicity. He is a Shia Muslim. He is now twenty-four years of age. Until he arrived in Australia, he lived in Ahbaz in Iran. His parents and four siblings remain there. Between 1995 and 1997 he was employed in his father's motor car spare parts business. 4 In 1997 he commenced his two year compulsory military service with the Sepah, a paramilitary force in Ahbaz. He was unable to engage in active service due to a back injury, and he performed mainly clerical duties. He worked part-time also in his father's business. 5 It was in 1997 that the first event giving rise to his claim to be a refugee occurred. There was at the time a presidential election, for which one of the candidates was Khatami. He was a public supporter of Khatami, although the military were not allowed to support candidates, and he claimed that Sepah generally supported the opponent of Khatami namely Nategh Nori. He claimed that at this time he was arrested and severely beaten over a period of two days because of his support for Khatami, and was then released. 6 The second incident giving rise to his claim to be a refugee arose in late 1997. At that time he was detained with a number of other persons, apparently because it was believed that they had bribed their way into Sepah, a favoured form of military service, when they were not eligible for membership of Sepah. He was released after his father paid a bribe to those conducting that investigation. 7 The Tribunal accepted that the applicant had been detained with others in late 1997 because he was thought to have bribed his way into Sepah. It found that that suspicion was unrelated to any views about his political attitudes or activities. He claimed to have been released only because his father paid a bribe, but the significant matter is that the Tribunal found that his arrest on that occasion was unrelated to any Convention reason. 8 The applicant then deserted his military service for the first time. He went to stay in Teheran. After a time, during a period of amnesty for deserters, he returned to Sepah to complete his military service. 9 In late 1988, he claimed that he was questioned because of pro-democracy literature found in his rooms at the army barracks. Shortly thereafter he was arrested when he was absent without leave and was imprisoned for one week. He then deserted again and returned to Teheran. He claimed that that incident also gave rise to a well-founded fear of persecution for a Convention reason, namely his political beliefs or his imputed political beliefs. 10 The Tribunal did not accept that pro-democracy literature was found in his rooms, or that he was arrested at that time for that reason. That was a claim which was made only at the hearing, and the Tribunal regarded its timing as significant, and as indicating an invention designed to bolster his claim. It found that he was arrested because he was absent without leave and was found with a girlfriend, and for reasons unrelated to his political views and activities. 11 The final incident which, the applicant claimed, gave rise to a well-founded fear of persecution occurred whilst he was in Teheran after his second desertion from military service. It occurred during the student demonstrations in July 1999 in which the applicant claimed to have participated, although not as an organiser. He said that he was arrested at his house during the demonstrations, and for ten days was tortured and questioned by the civilian police about the identity of people coming and going from his house. He said that he was not himself accused of unlawful or forbidden activities as a student activist or as a member of an illegal freedom movement. He was arrested, apparently, on 11 July 1999 and was then released and dropped off far from his home about ten days later. The Tribunal found that that incident had occurred, but did not consider that it was indicative of any focus by the authorities upon the applicant by reason of his political views or attitudes. It reached that conclusion, essentially, on its understanding of his own evidence, namely that he was being questioned to identify those living at his house whom the authorities were seeking, rather than because of his own activities. Consequently, again, the Tribunal was not satisfied that that incident related to any conduct by the authorities concerning the applicant by reason of any political views or other Convention reason. 12 Subsequently, the applicant was taken by military intelligence to a military court and tried for desertion. He was sentenced to imprisonment for one year and two months and ordered to do his military service again from the start. He appealed, and the prison sentence was suspended. He claims that he avoided prison because a friend of his father's was prepared to guarantee his behaviour by payment of a sum of money. 13 After that event, the applicant procured a passport illegally on a "photo substituted" passport and left Iraq illegally. He arrived in Australia on 6 December 1999. On 21 March 1999 he applied for a protection visa, and as noted on 1 May 2000 that application was refused. 14 The applicant claims that he will be persecuted for his political beliefs if he were to return to Iran. He fears that he will be labelled as a corrupter, and as a spy and as a "non believer" and faces severe punishment or death if he returns to Iran. He also fears that the circumstances of his illegal departure from Iran and his desertion from military service will attract persecution if he is to return to Iran.

the tribunal's reasons 15 The Tribunal accepted much of the applicant's claims. It also accurately described the foundation for his claims when considering them. 16 In particular, the Tribunal accepted that the applicant had been detained as a result of his pro Khatami activities during the presidential elections in 1997. It found that, apart from that incident, the applicant has not faced any mistreatment or harassment by reason of his real or imputed political opinions. The detention in late 1997, it found, was not for any Convention reason but for suspected manipulation of entry to Sepal. The arrest in late 1998, it found, was in relation to what is viewed in Iran as illicit sexual behaviour, and not for any Convention reason. It also found that his detention in Teheran following the July 1999 demonstrations was not for any expression of political opinion, real or imputed, but because it was thought that he possessed certain information. The Tribunal accepted that in the course of that interrogation the applicant may have been called a corruptor and an unbeliever by way of abuse, but no charges were levelled against him or punishment imposed for that reason. 17 The Tribunal then addressed his claim that he may be treated as a spy in light of his desertion, his illegal departure, his application for asylum and his previous political activities. It first considered the consequences of his desertion. It concluded, following a review of the independent country information concerning Iran, that:

"… punishment for desertion ranges from no punishment at all, to the deserter having to repeat the military service all over again, or to the deserter paying a fine and gaining a complete exemption from further service. In the latter case this even occurs at the airport when deserters return from abroad. Amnesties have been granted from time to time in order to entice deserters back into service. The applicant took advantage of one such amnesty in 1998." 18 It noted a further amnesty announced in the year 2000 indicated the current lenient attitude of the authorities towards those who desert from military service. It was not satisfied that the applicant would receive any mistreatment on this score, if he were to return to Iran, by reason of his actual or imputed political beliefs. It specifically addressed the nature of the punishments which may confront the applicant for his desertion. Again, in the light of his previous history and country information, it found that the applicant had received favourable treatment namely, a suspended sentence, owing to the intervention of an influential family friend. It added:

"This was notwithstanding the applicant's claims to being viewed with distrust by conservative elements within Sepah as a result of his support for President Khatami and the progressive literature, such as the paper Salaam, which he claims was found in his Sepah quarters. This also occurred after the applicant's attendance at the July 1999 student demonstrations. No doubt, as a result of his third desertion the applicant may well face more severe punishment than was imposed in the past. At the very least, he may have to serve the suspended sentence of imprisonment. But, having regard to his experience in the past, the chance of him being punished out of proportion by reason of his real or imputed political views is remote." 19 The Tribunal also did not accept that the applicant might be treated as a spy if he were to return to Iran, or that he may be subject to persecution because of his illegal departure from Iran. After reviewing independent country information, it concluded:

"There is no evidence before me to sustain the claim that the applicant will be imputed with a political opinion by the regime in Iran upon his return. Also there is no evidence that he is in any danger of being charged with apostasy or other religious crimes. He is a Shi'ite Muslim, the majority religion in Iran. His claim that he might be seen as a spy is without foundation. There is no evidence that he worked in a sensitive military establishment. Nor is there any information to suggest that Iran views Australia as a potential enemy." 20 The Tribunal also concluded that there was no evidence that the applicant would face a heavier fine or other punishment for his illegal departure from Iran. It accepted that he may be regarded as having fled military service, and that that might compound his sentence for illegal departure from Iran, but if that occurred it would not be for a Convention reason. 21 Consequently, it was not satisfied that the applicant has a well-founded fear of persecution in Iran on the ground of his political opinion, or an imputed political opinion.

the grounds of review 22 The applicant appeared in person. His grounds of review are expressed simply in terms of ss 476(1)(a), 476(1)(e) and 476(1)(g) of the Act. No particularity of those claims is then provided. At the hearing, again, the applicant really provided no particularity of his claims. Much of his submissions were directed to rearguing the merits of his claim and to endeavouring to stress to the Court the significance of the detriment to which he fears he will be exposed if he were to return to Iran. It is clear that the Court's powers and functions upon review are to determine whether the Tribunal erred on one of the grounds specified in s 476(1) of the Act. It is not empowered to grant merits review. I have endeavoured to identify from the applicant's understandably discursive submissions, bearing in mind his lack of legal training and lack of representation, whether any such ground was identified by him. 23 The applicant contended that the Tribunal had misapprehended his claims to have been arrested in late 1997 and in 1998 by the authorities as incidents suggesting a more pervasive political persecution. If that misapprehension existed, putting the applicant's contention at the highest, it might be argued that the Tribunal erred in law in failing to address his claims as they were expressed. However, the applicant was unable to point to any particular passage in which his claims, as now put forward by him, were expressed to the Tribunal. I have considered his original claims, as expressed in his application and in his original interview, and in his subsequent interview with the authorities. I do not accept that the Tribunal has misapprehended the applicant's claims as to why he was arrested in late 1997 in connection with his engagement or enlistment in Sepah, or in late 1998 in connection with his being absent without leave, as the applicant contends. The fact that he was required to pay a bribe to be released does not indicate, as the Tribunal found, that he was required to do so because he was being persecuted or mistreated for his political views or activities. The Tribunal in fact noted that the applicant had said that they only wanted the money. Consequently, that ground of review has not been made out. 24 The applicant also contended that the Tribunal had erred in failing to consider his claim that he was a spy or might be at risk of being treated as a spy. He claimed in submissions that because of the nature of his military service, he was exposed to significant military secrets and that the mere fact of him deserting from that military location meant that he was at risk of being treated as a spy because of his access to those secrets. Again, putting the claim at its highest, it might be argued again that the Tribunal failed to apprehend accurately the nature of his claim. He also contended that the Tribunal's finding that there was no evidence that he worked in a sensitive military establishment was a finding about a particular fact which did not exist, so as to enliven ss 476(1)(g) and 476(4)(b) of the Act. However, I do not consider that either of those grounds are made out. In my judgment it is not established that the Tribunal failed to recognise or identify the claim that the applicant might be treated as a spy upon his return to Iran. In his initial statement dated 21 March 2000 in support of his claim for a protection visa, he claimed that he was being harassed generally by the intelligence services because of his known political beliefs. As I have found, the Tribunal did not accept that claim, but it did not misunderstand the nature of the claim. In his interview with an officer of the respondent on 23 March 2000, he claimed to have served in the stores of one of the main barracks in the country, and so claimed that he could be accused of being a spy taking military secrets out of the country. The Tribunal recorded that claim in its reasons, and has not overlooked it. It indicated that it had difficulty in accepting that the applicant's political leanings and activities were as extensive as he claimed. 25 It is correct that the Tribunal rejected the applicant's claim that he might be seen as a spy on the basis that it was without foundation. It did find that there is no evidence that he worked in a sensitive military establishment. The applicant, upon questioning, acknowledged however that there was no evidence before the Tribunal that he worked in a sensitive military establishment and that he did not make that claim in any of his interviews. He submitted that the Tribunal should have perceived that fact from the nature of the military service he was undertaking. Given that acknowledgment, in my view there is no merit in the ground of review invoked under s 476(1)(g) of the Act. 26 The applicant also complained about the Tribunal's consideration of his arrest and mistreatment in July 1999. He submitted that there were degrees of involvement in those demonstrations, and in the student activities, and that the Tribunal had misapprehended his complaint because he had in fact been involved in the demonstrations. It is unclear whether that misapprehension, even if made out, would rise to the ground of review available under s 476(1)(e). It is not necessary to decide that. That is because the Tribunal found that his detention at that time was not by reason of any expression of political opinion, but by reason of information he was thought to have possessed. The applicant specifically accepted that the Tribunal accurately recorded what he had reported at interview that:

"… he had not been recognised by police whilst at the demonstration. Rather he thinks that his nosey neighbours reported people coming and going from his house. The applicant said that for 10 continuous days he was tortured and questioned by the civilian police about the identity of the people coming and going from his house. …" 27 That material indicates, in my view, that the Tribunal did not misapprehend his claim as he now submits. In addition, the finding of the Tribunal that the reason for the applicant's arrest in July 1999 was not a Convention related reason is not one which can properly be attacked under s 476(1)(g) as being a finding upon which there was no other evidence or material to justify the making of that finding. 28 There is one further aspect of the applicant's contentions which may give rise to a ground of review. As noted, the Tribunal accepted that the applicant's detention in 1997 during the presidential election was by reason of expression of his political opinion. The Tribunal added:

"However, he returned to his former position and nothing further resulted from it." 29 Later in its reasons, it observed:

"I further accept that during the Presidential elections in 1997 he was first detained as a result of his pro Khatami activities. His participation in a political campaign was in breach of army regulations, ostensibly a law of general application. However, I accept that the Sepah had its own candidate and that the law may have been enforced selectively because he supported the other candidate. I accept that he was detained, beaten and then released to go back to his job. However, I have difficulty in accepting that the applicant's progressive leanings and activity were as extensive as he claimed in the DIMA interview of 23 March 2000, and before the hearing of the Tribunal. The applicant was not a member of a progressive political or lobby group, and was not a regular associate of activists or students with whom he discussed these issues." 30 It can be seen that the Tribunal accepted that, in 1997, the applicant had and expressed political views and that he was detained and beaten because of his expression of them. Counsel for the respondent acknowledged that the arrest and beating by reason of political views in 1997 would constitute conduct sufficient to constitute persecution under the Convention: see Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 388 per Mason CJ, 399 per Dawson J and 429-430 per McHugh J. The Tribunal does not clearly indicate whether that detention was because he was in breach of military regulation, or whether it was simply because he was in a position where he was vulnerable to detention, being a member of the armed forces, and those forces were seeking to suppress his political opinion. 31 Whatever the extent of the applicant's political leanings or activities, they were at the time sufficient to attract the attention of the authorities and for the applicant to be arrested and beaten because of them. In the light of that finding (bearing in mind that the Tribunal found that the later experiences of the applicant were not Convention related), it was necessary for the Tribunal to determine whether it was satisfied that the applicant now had a well-founded fear of being persecuted for those political beliefs if he were to return to Iran. As explained in Chan and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo), that question has two aspects, namely the existence of a subjective fear on the part of the applicant that he will be subject to persecution for those beliefs, and that his fear is "well founded". The Tribunal has not expressly made a finding whether the applicant has such a fear of persecution, although it appears that it assumed in his favour that he has such a fear. It has largely referred to objective matters in dealing with the claims. But it clearly was not satisfied that the applicant has a well-founded fear of persecution for a Convention reason. 32 What is unclear is how it arrived at that conclusion. As noted, the only part of the Tribunal's reasons which deals explicitly with this aspect of his claim (before the conclusion) is in the following passage:

"The brief detention in 1997 because of his campaign activities was by reason of the expression of his political opinion. However, he returned to his former position and nothing further resulted from it." 33 Later in its reasons, the Tribunal did say that there was no evidence to sustain the claim that the applicant will be imputed with a political opinion by the regime in Iran upon his return. That passage is quoted in par 19 above. It also expressed the general conclusion that it was not satisfied that the applicant has a well-founded fear of persecution in Iran on the ground of his political opinion or any imputed political opinion. In my view, those passages are to be read as reflecting the Tribunal's conclusions based upon its earlier reasons. Those reasons include the finding about the detention in 1997 set out in this paragraph. In context, I do not consider that they represent any additional reasoning specifically concerning the significance of the applicant being detained and beaten for his political beliefs in 1997. 34 In Guo, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said at 572:

"A fear is 'well-founded' when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation." 35 The difficulty is in determining, given the sparsity of its reasons on this aspect, whether the Tribunal did approach the question in that manner. To say that nothing came of that incident may mean no more than that the applicant "got the message" and suppressed expression of his political beliefs. Indeed, that is what he claimed (at the hearing of this appeal) had occurred. 36 In the two interviews of which a written record is included in the material before me, no such claim was made. The third interview took place at the hearing before the Tribunal on 23 June 2000. By consent, I have read a transcript record of that interview. It does not disclose that the applicant claimed that he was only released from detention after giving an assurance not to engage in political activities. Aspects of that transcript do, however, reinforce the applicant's claim that he will need to suppress his political opinion if returned to Iran in order to avoid further persecution. For example, at p 11 of that transcript, he states through his interpreter that:

"It is the law that says no army organisation has the right to attend or join any political activities, but on the other hand, it is Mesaranian Satteri, the Sapar director, Sapar's leader that says we would pull people's tongue out of their throats and we would cut people's hands and it is also Mr Nakvi that says it is all right to let the people who are opponents - to let their blood flow." 37 Despite the applicant's claim that he had that fear, the Tribunal does not appear to have addressed it specifically in its reasons. Moreover, the Tribunal does not expressly refer to any independent country information about Iran that may contradict the applicant's claim that he will face persecution if he continues to express his political opinion. To the contrary, its reasons include the following quotation from The Economist, 'Iran Politics - Reformists vs Conservative factions', dated 13 August 1999:

"The violent unrest in Tehran and in other main cities in July has opened a new, crucial phase in the political confrontation between the country's reformist and conservative factions (the terms 'reformists' and 'conservatives' denote the two broad coalitions of political forces currently engaged in the political power struggle). The Reformists (sometimes referred to as leftists) support President Khatami's drive to liberalise and democratise the Islamic Republic's political and social structures and improive (sic) diplomatic links with the West. The conservatives (also referred to as the right, and as the clerical establishment) are fighting to prevent what they view as the reformists' efforts to dilute Iran's Islamic identity and the concept of veleyat-e faqih; the absolute rule of the most senior cleric. They have considerably less popular support than the reformists but have considerable influence within many of Iran's political structures and are associated with supreme leader Ayatollah Khamenei. The power struggle has been in train for some years, but the continuing obstruction of measures initiated by the reformist president, Seyyed Mohammad Khatami, has lead to mounting frustration among his supporters which is proving difficult to contain." 38 On its findings in relation to incidents complained of by the applicant subsequent to the detention in 1997, the Tribunal found that nothing of relevance to his claim had happened to the applicant between then and his departure for Australia due to his political beliefs. If the Tribunal has, because of its finding that "nothing came of" that incident of detention and beating in 1997, considered whether the applicant no longer has a genuine fear of such an event occurring in the future, then its reasons do not disclose that it addressed that question. If it did not address that question at all, in my view it may have failed to consider the applicant's claim in accordance with the Act, as explained in Guo. If the Tribunal accepted that the applicant does genuinely fear persecution by reason of his political beliefs (as I suspect it did), then the Tribunal does not proceed to explain whether there is no real chance that the expression of his political opinion may in the future lead to the applicant again being detained and beaten for those beliefs. The simple finding was that no such event had occurred in the period before he left for Australia. The fact of such a detention and beating having occurred, as found by the Tribunal, for reasons of the applicant's political beliefs may be information relevant to determining whether his fear of such mistreatment occurring again in the future is well-founded. So, too, may be independent country information. 39 In Guo, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 574-575 pointed out that past events often provide a reliable basis for determining the probability of their recurrence. Their Honours added:

"The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur." 40 What does not emerge from the Tribunal's reasons is whether it has considered, having regard to that experience of the applicant, what is likely to occur to him in Iran in the future. When it was dealing with that experience, it did say (as noted in par 29 above) that the applicant's progressive leanings and activities were as extensive as he claimed. It noted that he was not a member of a progressive political group, nor a regular associate of activists. 41 I am therefore in some doubt whether the Tribunal failed to consider the applicant's claim in accordance with the requirements of the Act and the Convention, as explained by the High Court in Guo. 42 I do not need finally to decide that question. In my judgment, I should allow the application in any event as I do not consider that the Tribunal's reasons, in its consideration of this aspect of the applicant's claim, satisfy the requirements of s 430(1) of the Act. The failure to provide reasons as required by s 430(1) of the Act may amount to a failure to comply with a procedure required by the Act to be complied with in connection with the making of the decision under s 476(1)(a): see Minister for Immigration and Multicultural Affairs v Singh (2000) 175 ALR 503 ("Singh"). In this joint judgment, Black CJ, Sundberg, Katz and Hely JJ at 512-516 [44-65] discussed the content of the obligation under s 430. A fact is material for the purposes of s 430(1)(c) if the decision in the practical circumstances of the particular case turns upon whether that fact exists: Singh at 515 [57]. Having accepted that the applicant had been detained and beaten for his political views in 1997, it was in my judgment incumbent upon the Tribunal to make findings as to why the applicant does not remain at real risk of similar victimisation at the time of his application. There are no findings to explain that, whether by reference to changed political circumstances or a changed political profile by the applicant. The reference to him not having the high political profile which he claimed in evidence to the Tribunal was not said to have represented a change in his views from 1997. Nor does the Tribunal identify any evidence under s 430(1)(d) upon which it could have made any finding that the risk to the applicant in 1997 due to his political views is no longer a real risk. Of course, that is not to say that the Tribunal did not have material before it which may properly have led to that conclusion, if that was in fact the conclusion of the Tribunal on that aspect. That is a matter for the Tribunal. 43 However, for the reasons given, I consider that the applicant has made out the ground of review available under s 476(1)(a) of the Act. I accordingly set aside the decision of the Tribunal and remit the matter to the Tribunal for reconsideration. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: Dated: 6 February 2001 Counsel for the Applicant: The applicant appeared in person

Counsel for the Respondent: Ms S Maharaj with her Ms K Southcott