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

THE COURT: 1 The appellant is an Iranian citizen of Arab ethnicity. In November 2000 he entered the Australian "migration zone" whilst not the holder of a visa issued under the Migration Act 1958 (Cth) ("the Act"). On 12 February 2001 he lodged an application for a protection visa with the Department of Immigration & Multicultural Affairs. That application was refused by a delegate of the Minister on 9 April 2001. On 10 April 2001 he applied to the Refugee Review Tribunal ("the RRT") for review of that decision. On 17 September 2001 the RRT affirmed the decision not to grant a protection visa to the appellant. On 24 September 2001 the appellant lodged an application in this Court for a review of the decision of the RRT. That application was dismissed by the primary Judge on 8 February 2002. This is an appeal against that order of dismissal. 2 The RRT accepted that the appellant had truthfully stated to the RRT the circumstances which led to his departure from Iran. Those circumstances are as set forth in the following paragraphs which have been largely taken from the reasons for decision of the RRT and of the primary Judge. 3 The appellant's family are Arab. They live in the rural part of the Khozestan region in Iran. The family depended upon agriculture for their living. The family inherited four hectares of land from the appellant's grandfather. Farming this land was their sole source of income. 4 In 1998-1999 two hectares of the land were acquired by the Iranian National Oil Company ("the Oil Company") without adequate compensation, and against the wishes of the appellant and his family. The family made several attempts, by appealing to the authorities, to prevent the Oil Company seizing their land and commencing oil operations. 5 As part of this process, a meeting was held at the provincial Governor-General's office at which the appellant and his father explained their concerns. The Governor-General told them he could not do anything for them, that they had no rights, and that the lands "should be handed back to the regime". The appellant pointed out that they held the deeds to the land. His father told the Governor-General that their rights were being trampled on. The Governor-General became very angry and pushed the appellant's father out of his office and insulted him. The appellant also became angry and ended up assaulting the Governor-General. Security officers were called. The appellant was struck in the face with a gun and knocked unconscious. He woke up in hospital and after treatment he was arrested and jailed from 30 December 1998 to 1 February 2000. During this time his father suffered a stroke which left him paralysed. 6 The RRT accepted that the appellant was sentenced to a relatively lengthy period of imprisonment as a result of this incident. This was due to the fact that an assault was perpetrated on the person occupying the office of Governor-General and not because of the seriousness of the physical assault itself. However, the RRT was not satisfied that the ethnicity or religion of the appellant was a factor in his being charged or sentenced. Nor was it satisfied that he was seen, through the circumstances of the assault, to be a political dissident. 7 Following the appellant's release from jail he went back to work on the remaining two hectares of the family's land. The Oil Company, however, then sent correspondence seeking to acquire the remaining two hectares. The appellant and one of his brothers promised themselves that they would not allow the Oil Company to take the remaining land from them. The Oil Company brought earthmoving vehicles in to commence levelling the land and the appellant and his brother, who were working on the land at the time, argued with the Oil Company security guards, who would not listen to them. The appellant then obtained a hunting gun and started firing shots into the air. The guards and the drivers were frightened and moved away in their light vehicles. The appellant and his brother started to burn the heavy vehicles and then ran home. That night security forces (the Ettela'at) came to their home and started firing into the air. The appellant's oldest brother began firing with his hunting gun. One of the brothers was shot, and the appellant then became very worried and fearful because he realised the situation was getting out of control. He fled to his uncle's house and explained the situation to him. His uncle went back to the appellant's home and then returned and told him that one of his brothers had been killed and the other was seriously injured and had been taken to hospital. The appellant said that his family agreed that if he were captured he would be executed as an enemy of the regime who had attacked security forces. The best he could expect would be a lashing and a lengthy jail term. He had to escape the vengeance of the security forces and flee the country. 8 The RRT accepted that the appellant's actions, some months after he was released from his jail sentence, in chasing with a rifle the Oil Company representatives off the remaining two hectares with his brother and then doing property damage to the Oil Company vehicles, flowed from their anger and desperation in seeing a source of their livelihood being unfairly and unlawfully, in their eyes, taken away from them. The RRT accepted the evidence that they were not thinking properly when they acted as they did and that they were very upset about losing their land. The RRT accepted that this land was extremely important and valuable to them, being an important source of income and having been in their family for generations, and that their family honour was at stake. They did what they did to protect their land and their honour. The RRT accepted that it was these circumstances that led to the security authorities approaching the appellant's home to arrest the appellant and his brother, Hakim. 9 The RRT did not accept that the Iranian authorities would attribute a dissident political opinion to the appellant or his family on the facts found by the RRT. The RRT stated that the authorities would be aware that the appellant was an unsophisticated, illiterate, peasant farmer. There was insufficient evidence to convince the RRT that the appellant's ethnicity or religion, or that of his family, had anything to do with the Oil Company's actions or the position later adopted by the Governor-General and the Ministry of Justice, to which the appellant's elder brother unsuccessfully complained. Nor was the RRT satisfied on the evidence that on return to Iran the authorities would persecute the appellant for reason of his membership of a particular social group, by virtue of his ethnic Arab background, his religion or an imputed dissident political opinion. The RRT was unable on the evidence to make a positive finding whether the actions of the Oil Company in taking the appellant's family's land were legally or illegally undertaken. However, the RRT concluded that the only reason that the appellant's family's land was taken was that the government needed it to explore for oil. 10 The RRT found that on return to Iran, it is likely that the appellant will face interrogation and physical mistreatment, possibly by the Ettela'at, and will most likely be charged with a criminal offence or offences, although the RRT could not be certain what particular offence or offences the appellant may have committed under Iranian law, if any. Nonetheless, the RRT was satisfied on the evidence that if the appellant were charged with a criminal offence or offences, he would possibly face a lengthy jail term, and may even face the death penalty, for his actions in seeking to prevent his family's lands from being taken and used for oil exploration, the serious property damage he caused and because he or his family resisted arrest. 11 The RRT was not satisfied on the evidence that the appellant would be perceived by the Ettela'at, or other Iranian security authorities, as a political dissident because of his activities. The RRT considered that his actions would be perceived by the Iranian authorities as criminal responses to the Oil Company's seizure and use of his family's land. Whilst the RRT did not have sufficient evidence as to the particular law under which the appellant was likely to be charged by the Iranian authorities, it nonetheless came to the conclusion that the appellant faced punishment for criminal offences according to Iranian criminal law. 12 The RRT was not satisfied that the Iranian authorities would selectively enforce their criminal laws against the appellant on his return to Iran. The RRT noted that the appellant had attracted adverse attention from law enforcement authorities only because he assaulted the Governor-General, expelled Oil Company representatives by firing his rifle in the air and set fire to their vehicles and because he later avoided arrest when the Ettela'at came to his home. 13 The RRT said: "The Tribunal does not have any convincing evidence before it that the likely enforcement of criminal laws against the applicant will be for the purpose of oppressing an Iranian of ethnic Arab descent, being a member of a particular social group in Iran, or because of his religion or any imputed political opinion. In these circumstances the Tribunal is not satisfied that the applicant is in genuine fear of persecution for a Convention reason." 14 The appellant left Iran on his own Iranian passport, although his uncle may have facilitated his departure from the airport through bribery. The RRT accepted, on the country information available, that if the Iranian authorities discover that the appellant departed from Iran as a fugitive he may receive a jail term. However, the RRT considered that the application of this law against the appellant would not constitute persecution under the Convention as it is a law of general application and would not, on the facts found by the RRT, be enforced by the Iranian authorities in a discriminatory way against the appellant. 15 Country information available to the RRT suggested that the mere act of applying for asylum abroad is not an offence under Iranian law, and in the circumstances, would not be likely to give rise to much more than verbal harassment. 16 The RRT concluded that the appellant was in genuine fear of persecution if returned to Iran by reason of the circumstances which are outlined above. However, taking into account all of his circumstances, the RRT was not satisfied that there was a real chance that he would suffer persecution under the Convention if so returned. Nonetheless, the RRT concluded its consideration of the matter with the following observations: "The facts found by the Tribunal in this matter establish that the applicant is likely to face on return to Iran physical mistreatment, criminal charges and a very substantial jail term or, possibly, execution for his conduct in chasing off the family lands Oil Company representatives with his rifle, damaging the Oil Company's property, resisting arrest and fleeing the country. His conduct and that of his deceased brother Hakim, which the family recognised was a mistake, was motivated at a time of high emotion, by strong anger at the treatment he and his family had suffered and the unfairness of the offer of compensation, the loss of a valuable asset and source of income and by family honour. Arising out of their attempt to keep their lands, there are a number of tragic circumstances that have befallen his family. The applicant's brother was killed by security forces, another brother is in jail for 20 years, his father has suffered a stroke, resulting in partial paralysis of his body, and the applicant, a young man, has suffered a year in jail and fled his country and can expect severe repercussions on return to Iran. The Tribunal draws these matters to the attention of the Minister for his consideration."