Mandavi v Minister for Immigration & Multicultural Affairs

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."

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