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[2002] FCA 70
respondent. The application was dismissed. The applicants were ordered to pay the respondent's costs.
The Court dismissed the family's challenge to the Tribunal's refusal of protection visas. The Tribunal accepted that Sabean Mandaeans faced discrimination in Iran, but concluded that the treatment established in this case did not amount to persecution. Carr J held that persecution depends on the seriousness and context of the feared harm, and that the Tribunal had applied that approach. The Court also held that the key question was the treatment the family could expect on return, not whether religious restrictions were wrong in the abstract. It found no legal or jurisdictional error and ordered the applicants to pay the Minister's costs.
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2,104 words · generated 02/10/2026
In Mandavi v Minister for Immigration & Multicultural Affairs [2002] FCA 70, Carr J considered an application for judicial review of the Refugee Review Tribunal's refusal to grant protection visas to a family of four. The parents and their two children arrived in Australia on 22 December 2000 and applied for protection visas on 8 January 2001. A departmental delegate refused the applications on 14 February 2001. The family applied to the Tribunal for review on 21 February 2001, and the Tribunal affirmed the refusal on 22 June 2001 ([1]).
1 cited instrument linked from this judgment.
The family's claim was based principally on the father's asserted fear of persecution in Iran because the family belonged to the Sabean Mandaean religious minority. The Tribunal accepted that Sabeans experienced several forms of discrimination. These included exclusion from government employment, unequal treatment in parts of the legal system, restrictions on establishing their own schools, required Islamic studies in public schools, and social discrimination such as not being allowed to handle food in shops operated by observant Muslims ([6], Tribunal reasons numbered 9-10).
The Tribunal was not satisfied, however, that the discrimination it accepted was sufficiently serious to amount to persecution. It also made adverse credibility findings about a number of additional allegations, including claims about citizenship, the father's employment history, alleged physical punishment, and other incidents. Carr J's decision reviewed the legal ground raised, rather than re-deciding those factual claims.
The family's sole amended ground alleged that the Tribunal had erred in law in applying the Convention definition of refugee, under s 476(1)(e) of the Migration Act 1958 (Cth) ([7]). The applicants argued that the Tribunal had set the threshold too high by effectively equating persecution with physical harm, inability to earn a livelihood, or being prevented from practising religion. They also argued that the Tribunal had failed to assess whether restrictions on teaching and transmitting Sabean beliefs, and unequal penalties for religious minorities, could amount to persecution ([8]-[9]).
Carr J dismissed the application. The Court ordered the applicants to pay the respondent's costs ([26] and orders).
Carr J's central conclusion was that the Tribunal's reasons, read as a whole, showed that it had applied the correct test. The concept of persecution was a relative one, involving fact and degree, and the Tribunal had assessed the accepted treatment against that standard ([10], [15]).
An important part of the Court's analysis concerned the meaning of Gersten. Carr J did not read the Full Court's decision in Gersten v Minister for Immigration and Multicultural Affairs [2000] FCA 855 as establishing that any harm beyond a trivial or insignificant level necessarily amounts to persecution. Rather, he understood it as setting a benchmark below which persecution could not be found ([14]). He also acknowledged that Hely J had read Gersten differently in Kord v Minister for Immigration and Multicultural Affairs [2001] FCA 1163, but Carr J agreed with the proposition that, apart from Gersten, the authorities had established that the feared harm must be sufficiently serious to justify international protection ([14]). The judgment's heading describes Kord as “not followed”.
Carr J then applied that understanding to the Tribunal's reasons. The Tribunal had accepted discrimination, but had not treated the absence of physical injury as automatically dispositive. It considered the overall circumstances, including the country information, the family's allegations and the extent of the father's work as a goldsmith. Carr J concluded that the Tribunal was not requiring an impermissibly high level of detriment or harm ([13]-[15], [25]).
The Court also addressed the argument that restrictions on religious teaching and transmission had not been properly considered. The applicants relied on Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599, in which the Full Court considered religion to include both personal religious practice and practice within a like-minded community ([18]). Carr J did not treat Wang as resolving the present factual question. He emphasised the distinction between assessing laws regulating religious practice in the abstract and assessing the treatment this family might face if returned to Iran ([20]).
Carr J considered that the Tribunal must be taken to have been aware of the lack of official teaching of the Sabean religion and the prohibition on Persian-language Sabean publications. Whether these restrictions amounted to persecution was, he said, a matter of degree for the Tribunal ([21]). The Tribunal had found that the parents could teach their children the religion and that the children could practise it. Carr J read this as showing that the Tribunal had considered the parents' wish to pass on their beliefs, even though it concluded that this could happen without persecutory consequences ([22]). He held that the complaint about whether such teaching was “sufficient or practical” did not disclose legal or jurisdictional error ([23]).
Finally, the Court rejected the argument that the Tribunal's failure expressly to mention heavier penalties for religious minorities meant it had ignored that information. Carr J stated that non-reference to a factor does not, by itself, establish that the Tribunal ignored it ([23]). His conclusion was that the Tribunal's decision was open on the facts it had found, so the Court would not interfere with its assessment ([25]).
The judgment's account of the legal position is deliberately bounded. It does not provide a comprehensive history of the law of persecution, but it explains how Carr J understood the authorities placed before him.
As to Gersten, Carr J rejected the reading that any non-trivial harm automatically crosses the persecution threshold. His account was that Gersten established a minimum benchmark: treatment below the level of harm that is more than trivial or insignificant cannot constitute persecution, but harm above that benchmark is not necessarily persecution without further assessment ([14]). The question remains one of seriousness and context.
Carr J noted the different reading adopted by Hely J in Kord, but did not adopt that reading. He agreed with the proposition that the authorities, leaving Gersten aside, required harm sufficiently serious to justify international protection ([14]). This is Carr J's explanation of the doctrine in this case; it should not be extended into a claim that the judgment resolved every aspect of the relationship between those authorities.
The judgment also identifies a distinction relevant to religious claims. The inquiry is not merely whether a law or restriction regulating religion is objectionable or discriminatory. The question is whether the applicant might expect treatment amounting to persecution on return ([20]). Applying that distinction, Carr J treated the restrictions on official religious teaching and Persian-language publications as matters whose seriousness had to be assessed in the circumstances ([21]).
The “after” position established by the decision is therefore limited to its holding: in this judicial review application, the Tribunal applied a correct relative test, and its conclusion that the accepted discrimination did not amount to persecution was open on the facts it found ([25]). The judgment does not state that the restrictions discussed could never amount to persecution. It determines that the Tribunal's assessment in this case disclosed no legal or jurisdictional error.
Paragraph 14: Carr J said that Gersten did not mean that any harm beyond trivial or insignificant harm must amount to persecution.
Plain English: Crossing a minimum level of seriousness does not automatically decide the case. The particular harm still has to be assessed in context.
Paragraph 15: Carr J found that the Tribunal had interpreted persecution according to established authority and had made a factual assessment using a relative test.
Plain English: The Tribunal was entitled to weigh the accepted discrimination and decide how serious it was, provided it used the right legal approach.
Paragraph 20: Carr J said the question was whether the applicants might face persecution if returned, rather than simply whether laws regulating religious practice were persecutory.
Plain English: The court's focus was the expected treatment of these applicants, not an abstract ruling on the character of Iranian laws.
Paragraph 21: Carr J treated the effect of restrictions on religious teaching and publications as a matter of degree for the Tribunal.
Plain English: The restrictions were relevant, but their legal significance depended on their practical effect and seriousness in the circumstances considered by the Tribunal.
Paragraph 23: Carr J said that the Tribunal's failure to refer to particular factors did not mean it had ignored them.
Plain English: An omitted express discussion does not, without more, prove that the decision-maker failed to consider the material.
Paragraph 25: Carr J concluded that the Tribunal's decision was open on the facts as found and that the Court should not interfere.
Plain English: The Court was reviewing legality, not substituting its own assessment of the evidence or deciding the protection claim afresh.
The decision is most directly relevant to judicial review arguments alleging that a Tribunal misunderstood the seriousness threshold for persecution. It illustrates the difference between saying that discrimination exists and establishing that the accepted discrimination is sufficiently serious, in its overall context, to amount to persecution ([14]-[15], [25]).
It is also relevant where the claim concerns religious restrictions, such as limits on religious education, publications, or passing beliefs between generations. Carr J's approach requires attention to the treatment expected on return and the effect of the restrictions in the particular case, rather than treating the existence of a restrictive law as conclusive ([20]-[23]).
The judgment may also be relevant where an applicant argues that a Tribunal's reasons are legally inadequate because they do not expressly discuss every item of country information. Carr J rejected the proposition that failure to refer to particular factors necessarily proves that they were ignored ([23]). The decision does not establish that every omission is harmless; its conclusion was tied to the complaints and reasoning before the Court.
The decision should not be read as holding that religious discrimination, restrictions on teaching, or unequal legal treatment can never amount to persecution. Its holding was that this Tribunal had applied the correct test and that its conclusion was open on its findings ([25]).
The supplied judgment contains no decisions after 8 February 2002 and provides no account of how later courts treated Mandavi. It is therefore not possible, from this source alone, to say whether later courts followed, distinguished, limited, or otherwise applied it.
The judgment itself discusses authorities that pre-date it. Carr J refers to Gersten when explaining the minimum seriousness threshold, and states that he does not adopt Hely J's reading of Gersten in Kord ([14]). He refers to Applicant Z and Ahwazi as earlier decisions in which he had considered the same question, and says he adhered to his previously expressed views ([11]-[13]). The reasons incorporated from Applicant Z are not reproduced in this judgment, so their detailed reasoning cannot be reconstructed from this text alone.
Carr J also discusses Wang, a Full Court decision concerning religious practice. He identifies its treatment of religion as including both personal practice and practice within a like-minded community, then distinguishes the legal question in this case by focusing on expected treatment upon return ([18]-[20]). These are the authorities used in Mandavi; they are not evidence of later treatment of Mandavi itself.
The judgment does not set out a general formula for deciding when discriminatory treatment becomes sufficiently serious to constitute persecution. It identifies a relative test and requires harm serious enough to justify international protection, but leaves application of that standard to assessment of the facts and degree in each case ([14]-[15], [25]).
Nor does the decision determine what practical restrictions on religious teaching or publication would, in another factual setting, amount to persecution. Carr J accepted that the restrictions were relevant matters for the Tribunal to assess, but upheld the Tribunal's particular conclusion on the facts before it ([21]-[23]).
The judgment also does not decide when failure to mention country information in reasons will amount to legal or jurisdictional error. It holds only that the omissions alleged in this case did not establish that the Tribunal ignored the information ([23]). The reasons do not articulate a broader test for assessing every alleged omission.
Finally, the judgment does not resolve the wider relationship between Gersten and Kord beyond Carr J's stated interpretation and his decision not to follow Hely J's reading of Gersten ([14]). Any account of subsequent clarification or treatment would require sources beyond the judgment provided here.
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introduction 1 This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 22 June 2001, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant protection visas to the applicants. The applicants comprise a family of two parents and two children. They arrived in Australia on 22 December 2000. On 8 January 2001 they lodged an application for protection (class XA) visas with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) ("the Act"). On 14 February 2001 a delegate of the respondent refused to grant protection visas and on 21 February 2001 the applicants applied for review of that decision.
the applicant's claims and the Tribunal's decision 2 The applicant husband's claims were as follows: · He was born in 1960 in Ahwaz, Iran and (initially) claimed that he was a citizen of Iran. He was educated to year 8 level and he had been self-employed as a goldsmith "since childhood". He was an ethnic Arab and spoke Farsi and a "little Arabic". He had a number of siblings, two of whom lived in Dubai and the rest lived in Ahwaz. He stated (again initially) that he left Iran using a genuine Iranian passport issued in Ahwaz. The smuggler had taken his passport. · He was a member of a religious minority known as Sabeans. He left Iran because Sabeans have no rights in Iran and are discriminated against. They cannot obtain jobs and are denied an education. He claimed also that Sabeans are continually abused, insulted and referred to as unclean. Sabeans cannot own businesses and cannot touch food in shops. His children were abused at school. · He began planning to leave Iran a long time ago, but did not know how to do so until he found a smuggler two months before leaving. The applicants chose to come to Australia because their religious leader Sheikh Salah is here. · He could not go back to Iran as Sabeans cannot have a normal life because of all the discrimination against them. They live in fear and stress and their meeting place had been confiscated. · He did not do military service because his father was Iraqi. Following recognition of his Iranian citizenship, he paid for an exemption. 3 I shall, in the rest of these reasons generally refer to the husband applicant in the singular as representing all the applicants. 4 One issue before the Tribunal was the citizenship of the husband applicant (and hence that of his wife and two children). At his arrival interview, the applicant stated that his nationality was Iranian and that he had not done military service because he did not receive his Iranian shenas nameh (sometimes translated as birth certificate) until 1991 after which he paid for an exemption from military service. At his interview with the Minister's delegate the applicant stated that other people in the detention centre had encouraged him to claim that he was an Iraqi because he would be released from detention more quickly. He told the interviewer that he had not done so because it was not true. 5 When asked by the Tribunal whether he was an Iranian citizen, he initially confirmed that he was, but later denied it and stated that he was really an Iraqi. The applicant told the Tribunal that he was not an Iranian national, but an Iraqi who obtained Iranian identity documents by bribery. The applicant said that he obtained the Iranian birth certificate of a deceased person and had paid a bribe to have it reissued in his own name. As can be seen from the extracts below from its findings and reasons, the Tribunal found that the applicant was an Iranian citizen who had left Iran on a legally obtained passport in his own name. It also found that the applicant fabricated the claim that he was not an Iranian citizen in an attempt to enhance his claims to refugee status. The Tribunal made other, fairly strong, findings against the applicant's credibility. 6 Rather than attempt to summarise the Tribunal's findings and reasons, I set them out below in full. I have added numbers to the paragraphs to facilitate the references which I make later in these reasons. "FINDINGS AND REASONS: 1. The applicants claim that if they return to Iran they will be persecuted for reasons of their religion. In assessing the applicants' Convention claims I am required to determine whether they have a well-founded fear and if so whether what they fear amounts to persecution for a Convention reason. 2. When determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the credibility of the applicant. When assessing credibility, the Tribunal must be sensitive to the difficulties often faced by asylum seekers and should give the benefit of the doubt to those who are generally credible, but unable to substantiate all of their claims. However, the Tribunal is not required to accept uncritically any and all allegations made by an applicant. In addition, it is not necessary for the Tribunal to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. Moreover, the Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality. See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J. See also Shu Min Pan v MIMA, (unreported, Federal Court 23 January 1997 RD Nicholson J at p 10), Chan per McHugh J at 428 and Kopalapillai v MIMA (1998) 86 FCR 547. If the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true. (See MIMA v Rajalingam (1999) FCR 220). 3. In my view, significant aspects of the applicants' evidence were internally inconsistent, inconsistent with the independent evidence, implausible and exaggerated. I consider that the applicants fabricated some aspects of their claims in an attempt to bring themselves within the definition of a refugee. I do not consider that either the applicant husband or the applicant wife were credible or reliable witnesses. 4. It has been submitted that problems with the applicant husband's evidence have arisen because of the use of a Persian rather than an Arabic interpreter at his interviews and at the hearing. In relation to this, I note that in material provided to the Department upon entry to Australia, the applicant husband claimed that he spoke a "little Arabic". In his application for a protection visa, the applicant husband lists Farsi and Arabic in response to a question asking him to list his languages/dialects in order of preference. This suggests that the applicant husband is in fact more comfortable speaking Persian than speaking Arabic. As noted above, a Persian interpreter was initially requested for the Tribunal hearing in a letter which did not reach the Tribunal until after the hearing had been organised, the interpreter booked and I had travelled to Derby to conduct the hearing. When I was advised at the beginning of the hearing that the applicant wanted an Arabic interpreter, I immediately offered to cancel the hearing and re-schedule it to take place in the following fortnight by video-link from Sydney. 5. However, as noted above, the applicant husband insisted on proceeding with the hearing. He indicated that he had no difficulty understanding the interpreter that was used. This was checked with him on several occasions during the hearing. The interpreter used by the Tribunal is very experienced in interpreting in Tribunal hearings. She is extremely professional. I am completely satisfied that if the interpreter had had any difficulty understanding the applicant, she would have advised me of this. During the hearing, I observed that the applicant responded to the questions that were asked. There was nothing in the manner in which he answered questions to suggest that he had any difficulty whatsoever understanding my questions or communicating answers. Indeed, at the end of the hearing, the applicant continued to repeat things that he had previously said and I needed to indicate very firmly that the hearing was concluded. In the circumstances, I do not accept that any problems with the applicant's evidence at the hearing - or indeed prior to the hearing - result from the use of a Persian interpreter. 6. At the hearing the applicant husband claimed that he is not an Iranian national, but an Iraqi who obtained Iranian identity documents by bribery. I do not accept that this is the case. In relation to this, I consider it significant that when he first arrived in Australia, the applicant stated that his nationality was Iranian. He further stated that he had not done military service because he did not receive an Iranian birth certificate until 1991, and that he then paid for an exemption. During his interview with the delegate, the applicant husband stated that other people in the detention centre had encouraged him to claim that he was an Iraqi because he would be released from detention more quickly. He indicated that he had not done so because this was not true. 7. I accept that the applicant husband's father was originally Iraqi and that it took until 1991 or thereabouts for the applicant husband's father and his children to obtain Iranian citizenship. However, the applicant husband has indicated that he has a shenas nameh, which is the official Iranian identity document that is sometimes translated as "birth certificate". The independent evidence before me clearly indicates that this document is evidence that the holder is an Iranian citizen. I note that the applicant husband was able to obtain an Iranian passport which he has used on two occasions to leave Iran and on one occasion to re-enter Iran. The fact that the applicant husband was able to obtain a passport in his own name, which he was then able to use, is also strong evidence that the Iranian government acknowledges him to be an Iranian national. 8. It is possible that the applicant's father paid bribes in connection with the issue of the shenas nameh to his family. However, in my view, this does not mean that the applicant is not entitled to his shenas nameh or that there is anything in any way illegitimate about his Iranian citizenship. I find that the applicant husband is an Iranian citizen and that he left Iran on a legally obtained passport in his own name. I am of the view that he fabricated the claim that he is not an Iranian citizen in an attempt to enhance his claims to refugee status. In my view, the applicant husband's preparedness to fabricate a claim in relation to his citizenship adversely affects his credibility as a whole. In my view, it indicates that the applicant is prepared to say anything, no matter how untrue, if he thinks it will assist his case. 9. I accept that Sabean Mandaeans are discriminated against in Iran in a number of ways. I accept that as an unofficial religious minority, I accept (sic) that Sabean Mandaeans are not allowed to establish their own schools. I also accept that along with adherents of other religious minorities, Sabean Mandaeans are not accorded full equality with Muslims before the law, for example by not being accorded the same amount of compensation in the event of injury or death. I accept that Sabean Mandaeans are, along with members of other religious minorities, precluded from government employment. I also accept that Sabean Mandaean children, along with all children who attend public schools, are required to study Islam as part of the school curriculum. 10. I accept that Sabean Mandaeans are also subjected to a certain level of social discrimination. For example, I accept that Sabean Mandaeans are not be (sic) allowed to handle food in shops operated by observant Muslims. Whilst I accept that Sabean Mandaeans face some discrimination in Iran, in my view the independent evidence does not support a conclusion that any discrimination they face is serious enough to amount to persecution. In my view, if Sabean Mandaeans did face treatment serious enough to amount to persecution, I consider that this would be referred to in reports such as the US Department of State's Annual Report on Religious Freedom. I also consider it significant that whilst the ASUTA article referred to above refers to a range of ways in which Sabean Mandaeans are discriminated against, the article does not suggest that Sabean Mandaeans are prevented from practising their religion or that they are physically harmed because they are Sabean Mandeans. The article specifically indicates that Sabean Mandaeans are able to carry out their ceremonies, including baptisms, weddings and funerals. The independent evidence also does not indicate that efforts are made to convert Iranian Sabean Mandeans to Islam. This independent evidence indicates that Sabean Mandaeans are not seen as a threat to Islam, as that (sic) they do not proselytise. Overall, I am of the view that the independent evidence before me supports a conclusion that Sabean Mandeans in Iran are able to practise their religion. I do not accept the applicants' claims that people throw stones or glass at them when they are performing their ceremonies. Nor do I accept that Sabean women are frequently kidnapped. 11. The applicant husband has provided inconsistent evidence concerning his employment. In his application for a protection visa, he indicated that he had worked as a goldsmith in a shop for some twenty years. The applicant husband initially claimed that he was not able to obtain registration to run this business, but later acknowledged to the delegate that his business was registered prior to his departure from Iran. However, at the hearing the applicant husband made a new claim, that is, that he did not operate his shop until two years before he left Iran, that he had only worked in the city for three or four years, and that prior to this he worked in villages so that he would not be recognised. I do not accept the applicant husband's claims in this regard. In my view, if the applicant had had to operate his business secretly for a period of some eighteen years, he would have mentioned this to his adviser. 12. I find that the applicant was self-employed as a goldsmith in a shop in Ahwaz for twenty years prior to his departure from Iran. I do not accept that the applicant was unable to get registration for this business until two years before his departure. I consider it implausible that the local authorities would allow an unregistered business to operate in the same location for eighteen years. I am of the view that the applicant husband's evidence at the hearing in relation to his employment is another example of his preparedness to make new claims if he thinks this will assist his case, with little regard for the truth. As I do not accept that the applicant husband's business was ever unregistered, I do not accept that he had to pay bribes to keep it open. 13. In relation to discrimination in employment against Sabean Mandeans, whether denial of employment or difficulties obtaining employment for a Convention reason amount to persecution is a question of fact and degree, and will depend upon all of the circumstances, and particularly upon whether there can be said to be oppression or real harm to the person. (Prahastono v MIMA unreported, Federal Court of Australia, Hill J, 8 July 1997). I note the ASUTA article which indicates that it would be economically unviable for a Sabean Mandean to be involved in a business connected with food. In addition, I note that Sabean Mandeans are traditionally employed as smiths, goldsmiths, boat builders and carpenters. The ASUTA article notes that this has been the case ''as far back as written record[s] show". In my view, the applicant husband was self-employed as a goldsmith for some twenty years. In the circumstances, I am not satisfied that the applicant husband has been denied the right to employment or that in being a goldsmith he has suffered any detriment serious enough to amount to persecution for a Convention reason. The independent evidence suggests that the involvement of Sabean Mandeans in trades including that of goldsmith pre-dates the Islamic revolution. 14. As noted above, I accept that Sabean Mandean children - like all children who attend public schools in Iran - study Islam as part of the school curriculum. I accept that the applicant husband and wife would prefer their children not to do so. However, I do not consider that this requirement is persecutory. In my view, learning about Islam does not disadvantage the applicant children. It does not prevent their parents from teaching them about the Sabean Mandean religion. Nor does it prevent the children from practising their religion. The independent evidence does not suggest that Sabean Mandean women or children are kidnapped and forcibly converted to Islam. I therefore do not accept that the applicant children were told that they would be forced to convert to Islam, or that they were told to change their names. 15. I accept that the applicant children have had some difficulties at school, and that these difficulties have focussed on their religion. I accept that they have been called names and that there are children who won't play with them. In my view, the difficulties described by the children are in the nature of teasing. Unfortunately, teasing children who are different is not an uncommon phenomenon amongst school children, in Australia as well as elsewhere. In my view, the behaviour described by the children falls short of treatment that could be characterised as persecution. 16. The applicant husband claims that he was subjected to lashes because he placed a bangle on the arm of a Muslim woman. I do not accept the applicant husband's claim in this regard. Firstly, neither the applicant husband or the applicant wife mentioned this incident in their entry interview. In my view, given other claims that the applicants made during this interview, it is implausible that at least one of them would not have mentioned a recent incident of such great significance, if it had in fact occurred. Secondly, neither in his application for a protection visa or in his interview with the delegate did the applicant husband mention anything about being arrested and taken to court before this punishment was inflicted upon him. This was only a claim which was made at the hearing. In my view, if the applicant had gone through this whole process, he would have referred to it an earlier stage. 17. Thirdly, the applicant husband claimed that he had scars from the lashes he received. During the hearing, without being asked to do so, he lifted his shirt and showed me a scar which he claimed had been caused by the lashes. However, this scar is referred to in the applicant's medical report as being the result of a knife wound. The applicant husband agreed that this was the case when I pointed this out to him, and further agreed that this was the case in response to a notice under section 424A of the Act. In that response the applicant husband stated that he was prepared to be examined by a specialist to determine the effect of being lashed. In relation this, the medical report (sic). However, in my view, the applicant's preparedness to claim that the scar was related to the lashes until the evidence that this was not so was pointed out to him adversely affects his general credibility in relation to this issue. I do not consider that any further medical examination would be of assistance to me in relation to this matter. Overall, I find the applicant husband's evidence in relation to the alleged lashes to be unconvincing. I cannot be satisfied that he was lashed for the reason he has claimed, or at all. 18. The applicant claims that he was told that (sic) to close his shop on Mohammad's birthday, even though shops owned by Muslims were open. Given my problems with the applicant's general credibility and his propensity to fabricate claims, I cannot be satisfied that this incident occurred. However, even if it did, there is no evidence before me to suggest that that (sic) the applicant suffered any ongoing consequences as a result of this incident. In my view, the incident does not amount to persecution, nor does it give rise to a well-founded fear of persecution for a Convention reason. 19. The applicant claims that his car was stolen and that the incident was not investigated because he is a Sabean Mandean. I accept that the applicant's car was stolen on one occasion. However, the independent evidence before me does not suggest that the Iranian authorities refuse to deal with criminal offences just because the victims are Sabean Mandeans. In the circumstances, I cannot be satisfied that the authorities refused to investigate the applicant's complaint, or that this currently gives rise to a well-founded fear of persecution. 20. The applicant husband claims to have been a victim of extortion. Given the applicant husband's general lack of credibility, I am not satisfied that this ever happened to him. I accept that extortion can, depending on the circumstances, amount to persecution. However, even if the applicant husband was extorted, I consider the most likely reason to be because he owned a business dealing in gold, an extremely precious commodity. Furthermore, given that the applicant husband was in business in the same location for some twenty years, it is clear that if he was extorted he was not intimidated into closing his business or moving it elsewhere. In the circumstances, even if the applicant husband was extorted, I am not satisfied that this amounted to persecution for a Convention reason, or that it gives rise to a well-founded fear of persecution for a Convention reason. 21. The applicant wife claimed that the family could be persecuted on return to Iran because they have applied for refugee status in Australia. In relation to this, the independent evidence before me does not suggest that the Iranian authorities take an adverse interest in a person because he or she has applied for refugee status abroad. I am therefore not satisfied that the applicants have a well-founded fear of persecution because they have applied for refugee status in Australia. 22. Overall, having considered the applicants' claims individually and cumulatively, I am not satisfied that the applicants have a well-founded fear of persecution for a Convention reason. CONCLUSION 23. Having considered the evidence as a whole, the Tribunal is not satisfied that the applicants are persons to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicants do not satisfy the criterion set out in s.36(2) of the Act for a protection visa."
grounds of the application and the applicant'S submissions 7 In his amended application the applicant relied upon only one ground. That ground was that the Tribunal had erred in law in applying the definition of "refugee" as contained in the Refugees Convention to the facts as found by it - see s 476(1)(e) of the Act. 8 In submissions which were substantially similar to the particulars of that ground provided in the application, the applicant advanced the following arguments: (1) The Tribunal had specifically accepted the applicant's claim that Sabeans are discriminated against in Iran in a number of ways including the following: (a) They are not allowed to establish their own schools; (b) They are not accorded full equality before the law, with lesser compensation in the event of injury or death; (c) They are precluded from Government employment, and it would not be economically viable for a Sabean to be involved in a business connected with food; (d) Sabean children attending public schools are required to study Islam; and (e) Sabeans are not allowed to handle merchandise (particularly food) in shops. 9 [In his written submissions the respondent acknowledged that the Tribunal had accepted the above claims.] (2) The Tribunal also had accepted that the applicant's children had difficulties in school, which included claims by his daughter that she was required to wear a chador, and by his son that he was poked with sharp pens, that other children sang offensive songs about Sabeans, that he was "hassled" to change his name and forced against his wishes to pray like a Muslim. The Tribunal had described these matters as being in the nature of teasing. The Tribunal further found that learning about Islam did not disadvantage the applicant's children and that it did not prevent the parents from teaching the children about the Sabean religion or the children from practising their religion. (3) The Tribunal had referred with approval and appeared to accept the information contained in the ASUTA article and in the United States State Department Report on Religious Freedom (2000). (4) There was information in the ASUTA article that: (a) as an unrecognised minority religion in Iran, Sabeans were not able to have their own private schools; (b) it was illegal for Sabeans to print religious material in Persian; (c) the Sabean language was now dead except for the very few scholars and elderly people who still understood it; (d) Sabeans were not allowed by law to provide any religious instruction; (e) religious minorities received lower awards in injury and death law suits and they also incurred heavier punishment than Muslims; (f) members of unrecognised religious minorities could not stand for Parliament; (g) Sabeans lived a day to day, barely tolerable, existence. So long as they kept a low profile, did not pursue harassment charges and accepted discrimination, they were able to continue to exist under a second-class status similar to the blacks in South Africa; (h) Sabeans in Iran were denied basic human rights and suffered from harassment and persecution. (5) The United States State Department Report on Religious Freedom (2000) recorded that religious minorities in Iran were barred from being elected to a representative body (save for seats reserved for them in the Constitution), that all religious minorities suffered varying degrees of officially-sanctioned discrimination, particularly in the areas of employment, education and housing, that recognised religious minorities were allowed to provide religious instruction in non-Persian languages, but often came under pressure when conducting instruction in Persian, and that religious minorities suffered discrimination in the legal system, receiving lower awards in injury and death suits and incurring heavier punishments than Muslims. (6) The Tribunal had referred to and had purported to rely on information contained in the ASUTA article and the United States State Department Report in making a finding that it accepted that Sabeans were discriminated against, but that such discrimination was not sufficiently serious so as to amount to persecution. The applicant submitted that although the Tribunal quoted selectively from the United States State Department Report and ASUTA article, it did not indicate that only part of the information contained in those sources could be believed or that it rejected other parts of that information. Accordingly, so it was put, in the absence of any indication that the country information was not accepted or only accepted in part, it had to be assumed that the country information from those sources was accepted by the Tribunal. (7) Some of the matters contained in the above-mentioned material indicated discrimination for religious reasons, which by any acceptable standards, so the applicant contended, was quite appalling and highly demeaning to the victim. An example was the concept that food (and indeed any item of merchandise) would be polluted if touched by a Sabean. Other rules prevented the continuation of the Sabean religion. For example the prohibition on teaching or discussing the Sabean religion in Persian, effectively prevented the applicant, so it was submitted, from passing on his religion and his religious beliefs to his children. The provision in the Iranian legal system that members of religious minorities received heavier punishments than Muslims indicated that Sabeans were discriminated against in a way that affected or potentially affected their personal liberty. (8) The Tribunal had erred in equating persecution of Sabeans to mean being physically harmed, being prevented from earning any livelihood or being prevented from practising (but not from teaching or passing on) their religion. (9) The applicant contended that the Tribunal had failed to apply the correct test as to the meaning of persecution under the Convention, namely, that unjustifiable and discriminatory conduct, officially tolerated, directed at the applicant for a Convention reason, was persecution, unless the impact of the conduct was trivial or insignificant. The applicant relied upon the decision of a Full Court of this Court in Gersten v Minister for Immigration and Multicultural Affairs [2000] FCA 855 and the decision of Hely J in Kord v Minister for Immigration and Multicultural Affairs [2001] FCA 1163. (10) Although the Tribunal had found that the applicant could teach his children his religion, it did not address whether this was "sufficient or practical" in circumstances where the country information indicated that both official teaching and texts in Persian were prohibited. The applicant submitted that it was "… surely a fundamental part of religion, not only to be entitled currently to practise it, but for the members of a closed religion to have an effective means of passing on the beliefs and teachings to future generations." (11) The Tribunal had expressly referred to that part of the country information which indicated that religious minorities were discriminated in the legal system by receiving lesser compensation, but had not referred to the accompanying information that members of religious minorities also received heavier penalties than Muslims. The applicant submitted that it appeared that the Tribunal did not consider whether heavier penalties could amount to physical harm when finding that such discrimination did not amount to persecution.
my reasoning 10 In my view, when one reads the Tribunal's reasons as a whole, it can be seen that it applied the correct test for persecution. In particular, it recognised that the term was a relative one, involving matters of fact and degree. 11 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. I also considered the same question in Ahwazi v Minister for Immigration and Multicultural Affairs [2001] FCA 1818. 12 Mr H Christie, counsel for the applicant, submitted that I was wrong in both cases. He acknowledged that the facts of the present matter were "very substantially similar" and "largely indistinguishable" from those in Ahwazi. 13 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 and which I repeated in Ahwazi. 14 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 observations 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. 15 In my view, the Tribunal in this matter followed well-established authority when it interpreted the meaning of "persecution" and assessed the facts of the present matter in relation to that term. I do not think that the Tribunal was equating persecution with an impermissibly high level of discrimination, detriment or harm. Its reasons show that it was clearly stating and applying a relative test and making a factual assessment. 16 In oral argument, Mr Christie referred to the view of strict Muslims that it was unclean to touch merchandise and in particular food which had been handled by a non-believer as a "fairly horrendous state of affairs". In my opinion, that submission trespasses into the merits. It does not, in my view, constitute a factor which, either taken on its own or cumulatively with all other relevant factors, compels the conclusion that the applicant faces a real chance of persecution. 17 The same applies, in my opinion, to the complaints summarised in sub-paragraphs 8(10) and (11) above. At paragraph numbered 10 of its reasons the Tribunal found, on the basis of independent evidence, that Sabeans in Iran were able to practise their religion. This included carrying out their ceremonies, including baptisms, wedding and funerals. The Tribunal noted that the independent evidence did not indicate that efforts were made to convert Iranian Sabeans to Islam and that such persons were not seen as a threat to Islam as they do not proselytize. 18 In support of the submission summarised at paragraph 8(10) above, Mr Christie cited Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599, a decision of a Full Court of this Court. In Wang, the appellant had practised his protestant Christian religion in the People's Republic of China by attending regularly at an unregistered church and also at religious meetings at other places, some on a monthly basis. As a result of this he was most severely treated (including being detained and beaten on several occasions, on one of which he was rendered unconscious and was hospitalised). The Full Court noted (see Merkel J at [81], Wilcox and Gray JJ agreeing) that there were two elements to the concept of religion for the purposes of Art 1A(2) of the Convention. The first was the manifestation or practice of the personal faith or doctrine. The second was the manifestation or practice of that faith or doctrine in a like-minded community. One of the errors which the Full Court identified as having been made by the Tribunal in that case was its failure to consider whether persecution of the appellant by reason of his past and intended practice of his religion at an unregistered church, being the practice of his religion in a like-minded community, constituted persecution for reasons of religion. 19 Mr Christie submitted that, in like manner, the Tribunal in the present case had erred in law by failing to consider whether the Iranian laws which, in his submission, seriously curtailed the Sabean religion being taught and passed on from one generation to another were persecutory. 20 The first observation which I would make in relation to that submission is that, as the Full Court pointed out in Wang (at [94] to [96]), the question is whether the treatment which the applicant might expect to face if he returned to Iran amounted to persecution, not simply whether the laws regulating religious practice were persecutory. 21 The Tribunal must be taken to have been aware of the lack of official teaching of the Sabean religion and the prohibition of Sabean publications in the Persian language. Whether that discrimination amounted to persecution was, in my opinion, a matter of degree for the Tribunal to assess. 22 At paragraph numbered 14 of its reasons the Tribunal found that the applicant husband and wife were not prevented from teaching their children the Sabean religion and nor were the children prevented from practising that religion. The Tribunal can thus be seen not only to have considered the applicant's wish that Sabean beliefs and teachings be passed on to his children, but to have concluded that this was possible without persecutory consequences. 23 The applicant's complaint that the Tribunal had not considered whether the parents' ability to teach the children was "sufficient or practical" in circumstances where both official teaching and texts in Persian were prohibited, does not in my view, expose any error of law or jurisdictional error. The same applies, in my opinion, to the complaint that the Tribunal had not considered information that members of religious minorities received heavier penalties than Muslims. Also, the mere fact that the Tribunal did not refer to these factors does not mean that it ignored them. 24 As I raised with Mr Christie at the hearing, there was a third principal source of independent information, not mentioned in the applicant's submissions. That was information from the Department of Foreign Affairs and Trade which referred to Sobian Mandians. (It was common ground that these were the same as Sabeans). That information included the following: "They are an accepted religious minority in Iran, falling under the mantle of the Christian religion, one of the religions recognised in the Iranian Constitution. Sobians appear to be allowed to perform their ceremonies, (e.g. baptism and marriages which are partly performed in a river) largely unhindered, as long as they observe Muslim sensitivities."
Conclusion 25 In summary, I do not think that the Tribunal interpreted "persecution" as requiring an impermissibly high level of discrimination, detriment or harm. 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 that it is for this Court to interfere with its assessment in that respect. In my opinion, the Tribunal did not make any legal or jurisdictional error. 26 For the foregoing reasons, the application will be dismissed with costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.
Solicitors for the Applicant: Messrs Christie & Strbac
Solicitors for the Respondent: Australian Government Solicitor
Mandavi
Minister for Immigration & Multicultural Affairs
(1994) 52 FCR 437
(1998) 86 FCR 547
The application was dismissed. The applicants were ordered to pay the respondent's costs.