PW87/2001 v Minister for Immigration & Multicultural Affairs

Grounds of review 9 The Amended Application for an Order of Review contains two grounds of review. Ground 1 is expressed in a number of different ways. In his oral submissions, Mr Barker QC, counsel for the applicant, accepted that these were different ways of expressing two errors which the Tribunal made. Those errors were: - RRT failed to take into account a relevant consideration, namely the modus operandi or inherent nature of cell groups when assessing the likelihood of the applicant's name being revealed to the authorities under torture; - RRT failed to consider the cumulative effect of the conduct of the applicant in 1992, 1998 as well as in 2000 in assessing whether he has a well-founded fear of persecution if returned to Iran. 10 There is no substance in the first of these contentions. Even if RRT misunderstood how a cell group operates, and misunderstood what might happen if one member of a cell is arrested, this would not rise above a factual error, and would not constitute a ground of review. 11 As to the second of those matters, RRT was required to assess whether the applicant faced a well-founded fear of persecution if he were returned to Iran having regard to its findings as to his background in a combined and cumulative sense. In ABC v Minister for Immigration & Multicultural Affairs [2001] FCA 955 Stone J said: "In determining if the applicants are refugees within this definition what is likely to occur if they are returned to Iran is clearly a relevant consideration that the Tribunal is obliged to take into account. In doing so it will need to consider what has occurred in the past and the evidence put before it on that point. However, this obligation does not detract from the entitlement of the Tribunal to assess the evidence presented by the applicant and accord that evidence such weight as it thinks fit - even if it gives certain evidence no weight at all." I respectfully agree. 12 Mr Barker QC submitted that the use of stock phrases such as "having considered the evidence as a whole" cannot operate to immunise the Tribunal's decision from judicial review. I agree that if an examination of the Tribunal's reasons, and other relevant materials, demonstrates that RRT did not consider the evidence as a whole, then use of stock phrases will not immunise its decision from judicial review. On the other hand, the use of such phrase is not necessarily without significance, as it may be an accurate statement of the Tribunal's reasoning process. Mr Barker further submits that a consideration of the Tribunal's reasons as a whole indicates that it had drawn a line under the occurrences of 1992 and 1998, and not taken them into account in determining whether the applicant faces a real risk of persecution. That is said to follow from the Tribunal's concentration upon the events of 2000. 13 The application for a protection visa was accompanied by a statutory declaration which contained the applicant's account of his experiences, including the occurrences of 1992 and 1998. It will be recalled that the applicant was able to leave Iran legally, thus he had not been blacklisted by reason of the 1992 and 1998 events. Paragraph 11 of his statutory declaration was as follows: "I left Iran on 17 August 2000. About one week prior, the contact told me that two members of the group had been detained in Karaj and that I was in danger. We went to my house and took the photocopier. The contact told me our names would be disclosed to the intelligence by those who had been arrested, and so I knew I had to leave immediately before I was blacklisted." The application also stated that: "I was arrested once before, if I was arrested this time it would be bad for me." 14 The applicant's claim was that he left Iran because of what happened in 2000. It was those events which were the catalyst for his departure. Because of those events he left Iran before he was blacklisted, he not having been on a blacklist by reason of the 1992 or 1998 activities. 15 The Tribunal considered the various events on which the applicant relied in their chronological sequence. It pointed out that after the 1992 incident the applicant was released when the court found that there was no case against him and he was not detained or questioned again in the eight years he remained in Iran after the release. RRT has, in my view, assessed the applicant's behaviour and actions as part of a cumulative continuum and then considered the country information insofar as it bore upon the applicant's position. In my view, a consideration of the reasons as a whole demonstrates that the Tribunal came to the conclusion which it did, as it said, "after considering all the evidence", including the events of 1992 and 1998. There was an understandable focus upon the events of 2000 because on the applicant's case it was those events which would result in his blacklisting. It is the fact or prospect of blacklisting which is intimately connected with the claimed well-founded fear of persecution should the applicant return to Iran. Ground 1 is not made out.

Ground 2 16 Ground 2 is that RRT made an error of law pursuant to s 476(1)(e) when it incorrectly applied the law (as to what constitutes persecution) to the facts as found regarding the applicant's access to employment of his choice. RRT found as a matter of law that inability to practice chosen employment does not constitute persecution for a religious reason. It was submitted that a correct application of the law to the facts would have found that the denial of access of employment and to professions on the basis of a Convention reason can and did constitute persecution in the circumstances of the case. 17 Mr Barker QC did not elaborate upon this contention in his submissions. 18 The applicant claimed that he could not get a "government or public service or permanent job" because of the "records" that he had, so he was earning his living doing part time and "unofficial" work, sometimes working "on a car", "sometimes working as a photographer of social functions, and sometimes working as a house painter". 19 RRT found that the applicant exaggerated the impact of his "record" on his ability to work, as he had a job in his uncle's hardware company, and in 1998 he obtained a job, albeit with the help of contacts, in a semi-government carpet co-operative. RRT noted that the applicant lost his job in the carpet co-operative because he did not attend mass prayers, and the country information indicates that applicants for public sector employment are screened for their adherence to Islam. RRT said: "… the Tribunal notes too that after he was dismissed from this job, he was not deprived for a Convention reason of his basic right to earn a livelihood since he worked in the private sector with cars, he photographed functions and he worked as a house painter. After considering the evidence, the Tribunal finds that if the applicant returns to Iran, he will not face a real chance of not being able to find a job because of religion such as will amount to persecution for a religious reason." 20 No error of law is revealed by this finding or the process of reasoning by which it was reached. Whether a person suffers persecution by reason of his inability to practice his chosen employment is a question of fact and degree. 21 In Prahastono v Minister for Immigration & Multicultural Affairs (1997) 77 FCR 260 at 267-268 Hill J explained the true position as follows: "Discrimination in employment may constitute persecution in the relevant sense if for a Convention reason. However, whether it does so depends on all the circumstances. Clearly in an economy where there was no private enterprise at all, inability to obtain government employment for a Convention reason would constitute discrimination because that would constitute an 'act of oppression', to adopt the language of Mc Hugh J in Chan. And it would be just as much oppressive and thus involve persecution if, instead of there being no ability to obtain employment, there is ability to obtain employment but limited to jobs which are dangerous or demeaning to the person employed to do them. If, on the other hand, there existed a mixed economy, so that government employment merely competed with private employment and exclusion from government employment would not result or be likely to result in the person seeking work being unable to obtain appropriate work and thus an appropriate living, then it is hard to see that the refusal to permit employment would constitute persecution. That would not be oppressive, at least to any significant extent. Thus, generally whether a restriction on employment amounts to persecution in a Convention sense will depend on all the circumstances, and particularly upon whether there can be said to be oppression or real harm to the person." As the quoted passage shows, whether discrimination in relation to employment amounts to persecution involves matters of fact and degree, involving the appraisal and weighing of circumstances. 22 The appraisal and weighing of circumstances is a responsibility which is committed to RRT. It was open to RRT to come to the conclusion which it did. There is no reviewable error.

Conclusion 23 The application should be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Solicitor for the Respondent: Australian Government Solicitor