SDAH v Minister for Immigration & Multicultural & Indigenous Affairs

THE COURT 1 The appellant, his wife and two children arrived in Australia on 20 April 2001. They were and are "unlawful non-citizens" for the purposes of the Migration Act 1958 (Cth) ("the Act"). They were taken into detention. 2 On 28 July 2001, the appellant lodged an application for a protection visa. In order to obtain such a visa the respondent had to be satisfied that the appellant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol: s 36(2) of the Act. In general terms the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") had to be satisfied that the appellant was a "refugee" as defined in the Convention being a person who: "…owing to a well-founded fear of being persecuted by reason of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." 3 On 13 September 2001, a delegate of the Minister refused to grant the appellant a visa. On 21 September 2001, the appellant sought a review of that decision from the Refugee Review Tribunal. The Tribunal gave its decision on 6 March 2002. 4 The appellant is a citizen of Iran. He and his family are members of the Mandaean religion (also called the Sabaean, Sabian, Sobian, Sabean or Sobbi religion). This is a relatively ancient gnostic or mystical religion having links to Judaism and Christianity, but being separate from both. The appellant claimed to have a well-founded fear of persecution in Iran by reason of his religion. 5 The persecution alleged by the appellant, supported by his wife, fell into two categories. The first was what might be described as general discrimination. This includes general abuse and vilification from Moslem neighbours, attempts to convert the appellant's children to the Moslem religion, inability to obtain government employment, destruction of cemeteries and so on. It would appear that the Tribunal accepted that these allegations were true, at least to the extent that they were supported by independent sources. So, for example, the Tribunal found: "Members of all religious minorities suffer various degrees of officially sanctioned discrimination, particularly in the areas of employment, education, and housing. Applicants for public-sector employment are screened for their adherence to Islam. The law stipulates penalties for government workers who do not observe 'Islam's principles and rules'. Religious minorities cannot serve in the army, the judiciary and the security services." 6 The Tribunal referred to and quoted from a DFAT cable which provided in part: "The Sobbis feel threatened mainly because of discrimination by the Iranian authorities, which results from the fact that their religion is not officially recognised in Iran. Sobbi children are unable to attend Iranian government schools, but are obliged to study Islam as part of the general curriculum (nb: recognised religious minorities such as Christians are able to attend classes in their own religion at school, but Sobbis do not have this privilege). Because of their religion Sobbis cannot be employed in government jobs and it is very difficult for them to enter university. (nb: only members of recognised religions are able to sit university entrance exams in Iran.) Some Sobbis are able to enter university by claiming to be Moslems (Sobbis are prepared to conceal their religion when necessary, this is not contrary to their beliefs). Sobbis can have similar problems if they work in non-government jobs alongside Moslems." 7 The Tribunal concluded: "The Tribunal finds that as a religious minority in Iran, the Sabiab/Mandaeans community faces some discrimination, and that as individuals , Sabian/Mandaeans may thus face some discrimination". 8 However, the Tribunal concluded that this discrimination did not constitute "persecution" for the purposes of the Convention. The Tribunal concluded: "The Tribunal finds that these occurrences are unpleasant but do not consider that such treatment amounts to 'serious punishment or penalty' or 'significant detriment or disadvantage' [see McHugh J in Chan's Case] and therefore does not amount to persecution for the purposes of the Convention." 9 The reference by the Tribunal to the judgment of McHugh J in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ("Chan") would appear to be an error. The citation to which the Tribunal was referring would appear to be the judgment of Mason CJ at 388. If restrictions on employment and education are not "serious punishment or disadvantage" then McHugh J may be to the contrary of the Tribunal's conclusions: see at 431 where his Honour accepts that the denial of access to employment to the professions and to education may constitute persecution if imposed for a Convention reason. On the other hand, the comments of Mason CJ were adopted with apparent approval by McHugh and Gummow JJ in Minister for Immigration and Multicultural Affairs v Naima Khawar & Ors (2002) 187 ALR 574 at [76]. Further, the Tribunal did not refer to s 91R of the Act which does limit "persecution" under the Act to "serious harm", whether or not the word has that meaning under the Convention. The question whether the Tribunal was in error in characterising the discrimination as not being "persecution" is not raised on the appeal and we do not comment further. 10 The second category of persecution alleged by the appellant and his wife involved various specific events of discrimination. These specific allegations were rejected by the Tribunal on credibility grounds. In relation to the specific allegations made by the appellant: "Specifically, the Tribunal does not accept as credible the applicant's claim that: · The applicant was accused of sexual assault by the husband of a customer · The applicant was taken before the court and had to pay a substantial fee · A neighbour exposed her breasts and accused the applicant of assaulting her and that the applicant had ensuing problems with his neighbours and the police."