WAEZ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

The primary Judge's decision 17 The grounds of review on which reliance was placed at first instance are as follows: "6. Pursuant to section 476(1)(e) of the Act, the Tribunal's decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal, whether or not the error appears on the record of the decision. 7. In particular - (a) the Tribunal found (Court Book, p 133) that the Applicant 'is in genuine fear of persecution on return to Iran'; (b) the Tribunal found (p 130) that the Applicant, on return to Iran, 'will most likely be charged with a criminal offence or offences' and was satisfied on the evidence that, if the Applicant is so charged, 'he will possibly face a lengthy gaol term, and may even face a death penalty'; (c) the Tribunal found (p 133) that the Applicant, on return to Iran, is likely to face 'physical mistreatment, criminal charges and a very substantial gaol term or, possibly, execution'; (d) the Tribunal stated (p 130) that it was 'not satisfied on the evidence what particular offence or offences the Applicant may have committed under Iranian law, if any'; (e) despite that express finding in ground 7(d) above, nevertheless the Tribunal said (p 130) that, in its view, the Applicant's actions would 'be criminal offences with punishment according to criminal law'; (f) the Tribunal held (p 132) that because the Applicant's genuine fear of persecution arose from a criminal offence, or offences, it was not satisfied that 'the Applicant is in genuine fear of persecution for a Convention reason'. 8. The Tribunal erred in law in holding that the Applicant's well-founded fear of persecution was not for a Convention reason, and in finding that the fear of persecution was not attributable to the Applicant's - (a) race; (b) religion; (c) membership of a particular social group; or (d) political opinion. 9. The Tribunal erred in law in not holding that the Applicant's well-founded fear of persecution was for reasons of - (a) race; (b) religion; (c) nationality; (d) membership of a particular social group, or (e) political opinion. 10. Pursuant to section 476(1)(g) of the Act, there was no evidence or other material to justify the making of the decision in ground 8 above. 11. Pursuant to section 476(4)(a) of the Act, the Tribunal was required by law to reach the decision that the well-founded fear of persecution was not for a Convention reason only if it was established that that persecution was for a reason which was not a Convention reason and there was no evidence or other material (including facts of which the Tribunal was entitled to take notice) from which the Tribunal could reasonably be satisfied that the non-Convention reason was satisfied. The Tribunal's express finding in ground 7(d) above shows that there was no evidence or other material which established to the Tribunal's satisfaction that a non-Convention reason existed. 12. Pursuant to section 476(4)(b) of the Act, the Tribunal based its decision on the existence of a particular fact, namely that the Applicant's well-founded fear of persecution was attributable to his criminal offence or offences, and that fact (namely, the criminal offence or offences) did not exist, as per the express finding stated in ground 7(d) above. 13. Pursuant to section 476(1)(e) of the Act, the Tribunal, in reaching its decision, failed to give proper account to relevant considerations in the exercise of its power, namely - (a) the contents of the letter of 31 January 2001 from Dr Al Jabiri & Associates titled 'General Submission on behalf of Iran Asylum-Seekers in Detention' (pages 46-60); and (b) the contents of the letter of 9 July 2001 from Dr Al Jabiri & Associates titled "Post-Hearing submission on Behalf of Mr Iraj Navasseri from Iran - in Detention' (pages 85-92)." 18 The reasons given by the primary Judge for rejecting those grounds are as follows: "The Hazard on Refoulement 17 The first issue raised by Mr O'Connor QC, who represented the applicant on a pro bono basis, was reflected in pars 6 and 7 of the grounds of review. The core of the complaint lay in the Tribunal's alleged failure to identify the criminal offence or offences which, in its opinion, the applicant had committed in breach of Iranian law. It could not therefore, it was said, have been satisfied that the applicant had committed any offence against Iran's criminal laws. 18 The Tribunal finding that the discharge of fire arms and the setting alight of earth moving equipment would be criminal offences under Iranian law was a finding of fact. It was plainly open to the Tribunal to determine that such acts would be punishable without having to specify which law had been breached or precisely how the offences might be characterised. The threatening discharge of a firearm to deter civil workers and the deliberate destruction of property are matters which are likely to be contrary to the criminal law in most organised societies which have such laws. While it may be said that the Tribunal's finding was inferential, it was a finding it was entitled to make. There is no basis upon which the Court can review that finding. There is no substance in these grounds of review. Persecution for a Convention Reason 19 Grounds 8 and 9 can be considered together. These were really by way of direct challenge to the Tribunal's fact findings. Counsel for the applicant referred to country information in a general submission to the Court particularly in reference to the position of Khozestan Arabs within Iran. It was said that the Tribunal had failed to give proper regard to the contents of the general submission and had looked at the incidents which precipitated the applicant's departure from Iran in isolation from reality. The applicant however had advanced no case which would support a finding that there was a real chance of persecution for any of the Convention reasons mentioned. Given the Tribunal's findings that the persecution faced by the applicant on his return to Iran would be the result of his own criminal acts in Iran, there is no room for the finding that such persecution would be for a Convention reason. 20 In his supplementary statement to the Tribunal the applicant identified the disadvantaged position of Khozestan Arabs. At no time, however, did he suggest that the persecution which he would face if returned to Iran had any connection with his race or religion or political opinions. His complaint was that "…I will not be treated humanly or in accordance to (sic) the law in Iran. I will be treated according to the harsh Ettela'at regulations where persecution and tortures are the most usual ways they treated those who they considered to be dissenters". There is no error disclosed in the Tribunal's reasons in this respect. Remaining Grounds 21 Paragraphs 10, 11 and 12 revisit in different guise the matters raised in the earlier grounds. Paragraph 13 alleges a failure on the part of the Tribunal "to give proper account to relevant considerations in the exercise of its power". To the extent that this is a ground about the weight given to particular considerations and to particular material before it, the Tribunal's decision on these matters is one for it and not for judicial review. Conclusion 22 For the preceding reasons the application is not made out and will be dismissed."

The appeal to this Court 19 The appellant's grounds of appeal contained in his Notice of Appeal dated 14 February 2002 are as follows: (a) there was no evidence or other material to justify the making of the decision that the appellant did not have a well-founded fear of persecution by reason of his political opinion, real or imputed, if he returned to Iran within the reasonably foreseeable future; and (b) the decision involved an error of law, being an error of law involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the RRT, or both. 20 The appellant was granted leave to amend the Notice of Appeal to add a further ground of appeal, being: (c) that the RRT and the primary judge erred in that there was no evidence or other material to justify the making of their decisions (s 476(1)(g)), and in particular the RRT and the primary judge based their decisions on the existence of a particular fact and that fact did not exist (s 476(4)(b)). 21 The appellant submits that the RRT's decision that the appellant is not a refugee was based upon its finding that whilst there is a real chance that the appellant will be executed if returned to Iran, that is because he had engaged in criminal conduct which might be punished by execution under Iranian criminal law, being a law of general application. In the RRT's assessment, the case is one in which the appellant faces punishment in Iran for his criminal actions, rather than persecution for a Convention reason. The appellant submits that the RRT's assessment in this respect is infected by reviewable error pursuant to the former s 476(1)(g) of the Act considered in the light of the former s 476(4). 22 The appellant placed considerable reliance upon the decision of the Full Court in Aala v Minister for Immigration & Multicultural Affairs [2002] FCAFC 204, which was given after the dismissal of the present application at first instance. In Aala the RRT found that the appellant in that matter faced a real chance of being executed if returned to Iran, but also found that execution would be pursuant to a law of general application, and on that basis the application for a protection visa was rejected. The application for judicial review of that decision was also dismissed. Fresh evidence was adduced on the appeal from an expert in Iranian law, Dr Esmaeili, that ordinarily the offences committed by the appellant would be tried in the "common courts" where the death penalty would not be imposed. If the appellant were executed for the commission of those offences, it would be by order of the Revolutionary Courts under an Iranian law stipulating the death penalty for an economic offence committed with an "anti-government intention" otherwise the case would not be fixed in the Revolutionary Courts. The Full Court held that such a law is not a law of general application. It is targeted at those whose actions are perceived to be politically motivated. Hence the appellant's fear of persecution was founded on his political opinion. The Full Court held that the primary Judge's conclusion that there was no room for the application of s 476(1)(g) of the Act could not stand in the light of the fresh evidence of Dr Esmaeili. 23 In the present case, the RRT had before it "country information" in relation to the operation of the Iranian judicial system. That information was to the effect that the traditional court system is not independent and is subject to government and religious influence. It serves as the principal vehicle of the State to restrict freedom and reform in the society. There are several different court systems. The two most active are the traditional courts, which adjudicate civil and criminal offences, and the Islamic Revolutionary Courts. The latter were established in 1979 to try offences viewed as potentially threatening to the Islamic Republic, including threats to internal or external security, narcotics crimes, economic crimes (including hoarding and overpricing), and official corruption. Trials in the Revolutionary Courts are notorious for their disregard of international standards of fairness. According to the Department of Foreign Affairs & Trade ("DFAT") Country Profile on Iran dated March 1996, since it was established the Revolutionary Court has issued thousands of death sentences and tens of thousands of prison terms. 24 The RRT also had before it "country information" to the effect that the death penalty is still in wide use in Iran. The DFAT Country Profile states that "Traditional Islamic (Sharia) laws allow for the death penalty in certain circumstances". As noted above, there was no specific evidence before the RRT as to the particular offences under Iranian law which the appellant had committed, or as to the punishment prescribed by Iranian law for such offences. 25 Dr Esmaeili was called to give evidence on the hearing of this appeal. It is implicit in his evidence that the appellant's conduct as found by the RRT involved the commission by the appellant of an offence or offences under Iranian law, but he did not identify the particular offence or offences involved. In Dr Esmaeili's opinion the traditional courts would not impose a death penalty for the unspecified offence(s) which the appellant had committed, but if the offence was committed with the intention of harming the government, or by way of opposition to the government, or if the consequences of the activities are so great "that they create a kind of chaos for significant problems for the government or for the regime", then the matter will be referred to the Revolutionary Court which may impose the death penalty. 26 The effect of Dr Esmaeili's evidence in the present case is that under Iranian criminal law the appellant's conduct involved the commission of offences which would not ordinarily be punishable by death, but in special circumstances the death penalty might be imposed. If the offences were committed with the intention of harming the government or the regime, or if the scale of the offences is such as to result in public chaos, then special circumstances exist such that the death penalty may be imposed. 27 In Dr Esmaeili's opinion, one would not expect the Ettela'at to be involved in the investigation of an ordinary criminal offence which would be tried in the traditional courts. If the Ettela'at is involved in the investigation of a crime, that means that the crime might have some security implication, and it might go to the Revolutionary Courts. It will be recalled that it was the Ettela'at, rather than the police, who visited the appellant's family on the night that the appellant's brother was shot (see [7] above). 28 A person may be motivated to persecute another for more than one reason. It is sufficient to establish refugee status that one of the reasons for which persecution is feared is for a Convention reason: Minister for Immigration & Multicultural Affairs v Sarrazola (2001) 107 FCR 184. 29 The enforcement of a generally applicable law does not ordinarily constitute persecution: Applicant A v Minister for Immigration & Ethnic Affairs (1996-1997) 190 CLR 225 at 258-259 (McHugh J); Wang v Minister for Immigration & Multicultural Affairs (2001) 179 ALR 1 at [50] - [68]. But where the punishment is disproportionately severe, that can result in the law in that case being persecutory for a Convention reason: Wang (supra) at [63]. Laws which apply only to a particular section of the population are not properly described as laws of general application: Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 170 ALR 553 at [19]. 30 In the present case the RRT referred to these authorities in the context of considering whether enforcement of a law of general application would ordinarily amount to persecution. Whilst the RRT did not say so in express terms, the essential thrust of the RRT's reasons is that whilst the appellant is at risk of execution if returned to Iran, the Iranian law under which the appellant may face execution is a law of general application. So much is implicit in the RRT's reasoning process extracted at [12] above. 31 There was no evidence before the RRT that the appellant's conduct exposed him to the risk of imposition of the death penalty by virtue of a law having general application. The RRT was unable to say under what law the appellant was likely to be charged. For the reasons given by the primary Judge it may have been open to the RRT to infer that the appellant's conduct was likely to be contrary to the criminal laws of Iran in a general sense, but there were no materials before the RRT which would sustain a conclusion that exposure to the risk of execution by reason of that conduct was by virtue of a law of general application. 32 On the evidence of Dr Esmaeili, the possibility of execution only arises if the purpose or the effect of the appellant's criminal conduct was to undermine the government or the regime, in which case the Revolutionary Courts could sentence the appellant to death. A law which operates in that way is either not a law of general application, because it applies only to persons who engage in what might loosely be described as anti-government activity, or because it provides for a disproportionately severe punishment when the offence is attended by that activity. 33 Aala (supra) at [49] establishes that a conclusion that there is a real chance of execution pursuant to a law of general application is a finding about a state of affairs, and is thus a finding of fact. The RRT's decision in the present case was based on the existence of that fact as its finding in that respect was critical to the decision reached: Minister for Immigration & Multicultural Affairs v Rajamanikkam (2002) 190 ALR 402. The appellant has adduced evidence from Dr Esmaeili which leads to the conclusion that the supposed fact does not exist. The ground of review provided for in s 476(1)(g) is thus established. It was submitted that we should not follow Aala, but it is a recent, and unanimous, decision of a Full Court given in circumstances very similar to the present, and we are not satisfied that it is obviously wrong. 34 The RRT's finding quoted at [13] above that the RRT did not have any convincing evidence before it that the likely enforcement of criminal laws against the appellant will be because of any political opinion imputed to the appellant is inextricably bound up with the RRT's conclusion that the appellant's exposure to the risk of execution flowed from the application of a law of general application. As that conclusion was infected by reviewable error the quoted finding does not provide an independent reason for the conclusion which the RRT reached. It does not deny the proposition that the RRT based its decision on the supposed fact that the risk of execution arises under a law of general application, nor does it indicate that there is not practical utility in remission of the matter to the RRT for reconsideration according to law. 35 In addition to the foregoing the appeal may also be upheld on grounds for review that arose under former ss 476(1)(b), (c) or (e) of the Act. 36 The RRT accepted authoritative material provided in the United States State Department's Country Reports on Human Rights Practices 2000 (Iran) to the effect that security forces such as Etela'at committed numerous serious human rights abuses including extra-judicial killings and summary executions, disappearances and wide-spread use of torture and engaged in repression by arbitrary arrest and prolonged detention. Obviously such conduct could not be characterised as random or irrational abuses of power. The acts of the security forces gave effect to an assessment of what was required to perform the function of protecting the security of the state and the "revolution". Country information before the RRT instructed it that such agents of the regime acted with impunity and, indeed, with the tacit authority of a regime that suppressed ruthlessly any act of political dissent perceived to be involved in an affront or threat to the authority of the regime. 37 Proper interpretation and application of the relevant law as explained by the High Court in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 and Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 571-575, required the RRT to consider the foregoing material and determine whether, if returned to Iran, the appellant faced a real risk of persecution at the hands of security forces for reason of imputed political opinion. Given that the RRT accepted that it was likely that if returned to Iran the appellant would face interrogation and physical mistreatment at the hands of security forces, including Etela'at, the RRT had to assess whether there was a real risk that that conduct by such an agency of a type described in the foregoing report may befall the appellant and cause him significant harm or detriment. This the RRT failed to do. By that omission the RRT failed to interpret or apply correctly the relevant law, failed to have regard to the correct question it had to determine, or failed to take into account considerations relevant to the proper determination of that question. Accordingly ground for review arose under s 476(1)(b), (c) or (e) of the Act. (See: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 per Gleeson CJ at [10], McHugh, Gummow and Hayne JJ at [76]-[83]). 38 Finally, the materials before the RRT raised an issue as to whether the appellant would suffer persecution if returned to Iran by reason of his membership of a particular social group, namely his family. The land which the Oil Company wanted to exploit was family property, and the actions taken, including the shooting of the appellant's brother, were all directed at the appellant's family, for it was they who stood in the Oil Company's way. 39 The appellant's family may be a particular social group: Minister for Immigration & Multicultural Affairs v Sarrazola (1999) 95 FCR 517 (Full Court); Minister for Immigration & Multicultural Affairs v Sarrazola (2001) 107 FCR 184. Whether the family is a particular social group, and whether there was a real chance of persecution by reason of the appellant's family membership were issues which the RRT was required to address, but which were not addressed. That failure gives rise to a further reviewable error on the part of the RRT. 40 Reconsideration of this issue by the RRT will involve consideration of the effect, if any, of s 91R and s 91S of the Act which came into effect after the RRT's decision under review.

41 The appeal should be upheld, and the matter remitted to the RRT for reconsideration according to law. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Counsel for the Appellant: R K O'Connor QC, J J Hockley (pro bono publico) Counsel for the Respondent: A A Jenshel

Solicitor for the Respondent: Australian Government Solicitor

Date of Written Submissions: 12 September 2002; 1, 4 October 2002