Fear of Religious persecution
13 The Tribunal accepted that the appellant had been converted to Christianity and that he feared persecution for such conversion, should he return to Iran. However it concluded that he would not be at risk of persecution and that his fear was not well-founded. The basis for this conclusion appears to have been the view that only a convert who discloses his or her conversion is likely to encounter difficulty, and that the appellant was unlikely to do so.
14 The evidence concerning religious persecution is summarized below. The summary is based on the Tribunal's reasons and those of Mansfield J. His Honour appears to have had access to the country information which was before the Tribunal. The evidence showed that:
® There is some persecution of dissident clerics (presumably Islamic) and of some religious activities.
® Christians are subject to harassment.
® Some "ethnic" Christians are treated better than Iranian Christians.
® Whilst the penalty for apostasy from Islam may be death, it is only rarely imposed. Such a sentence was last passed in early 1992 . The offender was granted a reprieve but subsequently murdered.
® Those converts from Islam "… who go about their devotions quietly are generally not disturbed …".
® Harassment by the local mosque is more likely than harassment by the authorities.
® Converts, "… in almost all cases …" do not experience problems unless they declare their new religious affiliation upon return to Iran.
® Converts to Christianity are generally tolerated so long as they maintain very low profiles.
® Converts working in government and revolutionary organizations face harassment and even dismissal if it becomes known that they have converted.
15 Mansfield J considered that the Tribunal had accepted "… that, if the applicant's conversion … might become known to the authorities in Iran, he would have a well-founded fear of persecution if he returned there." Although such a finding is not express, it is probably implicit in the Tribunal's reasons. However it also found that the appellant would not draw his conversion to the authorities' attention, and that he would therefore not suffer harm. Thus, his fears were not well-founded.
16 In some ways the evidence concerning religious persecution posed more questions than it answered. The evidence indicated that a returnee to Iran who declared his or her conversion to the authorities might incur adverse consequences. This may imply that the consequences for a convert will be different, depending upon whether he or she declares the conversion to authorities upon return or the authorities find out about it by other means and at a later time. However the fact that "low profile" converts are unlikely to "… run into difficulties …" with the authorities or with the local mosque, suggests that it is not so much the formal declaration as the extent to which such conversion is publicized which will determine the likelihood of harassment.
17 The focus upon the death penalty and the relative infrequency with which it has been imposed tends to mask the possibility of lesser forms of harassment which might amount to persecution. His Honour's finding at [51] that "… converts … working in Government and revolutionary organisations face harassment and even dismissal if it becomes known that they have converted" demonstrates this possibility. It cannot be suggested that because the appellant focussed upon the death penalty in his letter to the Tribunal, he was not also fearful of lesser levels of harassment, motivated by his conversion. It is also of importance that the evidence disclosed the risk of harassment by the "local mosque" as well as by government authorities. Finally, whilst it may be possible for a person to practise his or her religion quietly and to refrain from informing the authorities of his or her conversion, that does not mean that the authorities will not find out about it.
18 The Tribunal was required to determine whether or not the appellant's subjective fear of persecution was well-founded. This question was to be considered in light of the decision of the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 571-2, where six members of the Court (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) said:
"An applicant for refugee status must also establish that his or her fear of persecution for a Convention reason is a 'well-founded' fear. This element adds an objective requirement to the requirement that an applicant must in fact hold such a fear. In Chan [(1989) 169 CLR 379 at 389], Mason CJ said:
'If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring.'
In the same case, McHugh J said … that a real chance of persecution excluded a far-fetched possibility of persecution but that as little as a 10 per cent chance of persecution may constitute a well-founded fear of persecution.
Chan is an important decision of this Court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. But to use the real chance test as a substitute for the Convention term 'well-founded fear' is to invite error.
No doubt in most, perhaps all, cases … the application of the real chance test, properly understood as the clarification of the phrase 'well-founded', leads to the same result as a direct application of that phrase. … Nevertheless, it is always dangerous to treat a particular word or phrase as synonymous with a statutory term, no matter how helpful the use of that word or phrase may be in understanding the statutory term. … 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. In this and other cases, the Tribunal and the Federal Court have used the term 'real chance' not as epexegetic of 'well-founded', but as a replacement or substitution for it. Those tribunals will be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be well-founded even though the evidence does not show that persecution is more likely than not to eventuate."
19 In the present case the Tribunal disposed of the appellant's fear of religious persecution as follows:
"In respect of the Applicant's claim to fear persecution for having converted to Christianity, the Tribunal acknowledges that he has been baptised and has become a faithful member of the Christian group in the Seirra Compound. Having had the opportunity to make an assessment of the Applicant and his likely conduct on return to Iran, the Tribunal does not consider that the Applicant will bring his conversion to the attention of the Iranian authorities on return or subsequently. The Tribunal has closely examined the country information available, which indicates little prospect of problems with the authorities unless a returnee declares on return his new affiliation. The Tribunal has concluded that the Applicant would not suffer harm because of his conversion, if returned to Iran. The Tribunal finds that the Applicant has no basis to fear return to Iran on this ground."
20 This passage causes some concern. Firstly, the Tribunal appears to have focussed upon the question of whether the appellant might "… bring his conversion to the attention of the Iranian authorities on return or subsequently" rather than upon the possibility that the authorities might discover such conversion. It may be that this was merely a shorthand way of saying that he would practise his religion in a way which would be unlikely to bring him to the attention of the authorities. However the subsequent observation that there was "… little prospect of problems with the authorities unless a returnee declares on return his new affiliation" suggests otherwise. Further, the evidence referred to by Mansfield J concerning government employees demonstrates that the risk of harassment may arise if the authorities find out about a conversion. The Tribunal appears to have considered only the consequences of a declaration of conversion by the appellant and not the consequences to him, should the authorities become aware of his conversion in some other way. The possibility of action by the local mosque was also not addressed.
21 Secondly, the Tribunal appears not to have considered the seriousness of the consequences to the appellant of his conversion becoming known to the authorities. The Tribunal accepted that the penalty for apostasy might be death. The evidence demonstrated other quite serious consequences, including loss of government employment. It ought to have considered whether or not the mere possibility of a death sentence, regardless of how remote that possibility might be, could itself constitute persecution. In our view, to live under the shadow of such a threat might well do so. Further, the Tribunal ought to have considered whether or not the risk of losing the opportunity of government employment was itself sufficient to constitute persecution. We say nothing about the possibility of mere harassment which appears to be an incident of practising the Christian faith rather than of conversion from Islam. His Honour considered that the appellant had not relied upon discriminatory conduct against Christians, as opposed to converts from Islam, as a justification for his fear.
22 Thirdly, the last two sentences of the paragraph quoted above suggest strongly that the Tribunal considered, not whether the appellant had a well-founded fear of persecution, but whether or not it was likely that he would suffer persecution. The two questions, although distinct, are closely related. Perhaps the Tribunal meant that its view as to the improbability of persecution led it to infer that the appellant's fear was not well-founded. However the Tribunal's apparent failure to consider the seriousness of the possible consequences of exposure suggests strongly that the Tribunal did not consider whether the appellant's fear was well-founded.
23 We accept that it is inappropriate to read the reasons with an unduly critical eye. At pages 3 and 4 of the reasons, the Tribunal directed itself correctly as to the appropriate test prescribed in Guo. Nonetheless the evidence disclosed at least a theoretical possibility of the death penalty and the more than theoretical chance of discrimination in government employment. The Tribunal could not determine whether the appellant's fear was well-founded without considering those matters, balancing their gravity against the relative improbability of their occurrence. These matters and the absence of any explanation as to how the Tribunal proceeded from its finding that the appellant would not suffer harm to the conclusion that his fear was not well-founded lead us to conclude that the Tribunal failed to evaluate the objective basis of his fear. The failure to deal with the distinction between the disclosure by the appellant of his conversion and discovery of it by other means also suggests that the Tribunal has not fully appreciated the difficulties posed by the evidence.