WAHV v Minister for Immigration & Multicultural & Indigenous Affairs

APPELLANT'S RELIGION 6 The appellant and his mother belong to the religious sect known as Sabean Mandaeans. There are several cases relating to Sabean Mandaean people which have come before the Federal Court, including matters in the Full Court. While there have been comments made in some cases, notably SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80 and SBAS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 528 (Cooper J), which might suggest the treatment in Iran of Sabean Mandaeans amounts to persecution, there are comments and decisions in other cases which are to the opposite effect. For example, see the Full Court's decision in SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90 (9 May 2003), and the decision of Lander J in SBBG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1315 (17 November 2003). This decision followed a decision of the Full Court in SBBG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 121 (6 June 2003) which required a judge to consider whether the limits placed on Sabean Mandaeans in their employment, education and practice of religion, and their access to the courts etc were persecution. 7 These prior decisions, while informative, cannot be determinative of the consideration of the application of the appellant, which should be determined according to its own merits and on the evidence produced in relation to it.

tribunal's reasoning 8 The reasons of the Tribunal set out the claims made by the appellant. The appellant claimed that if he returned to Iran he would be arrested because he assaulted a government official and because he left Iran illegally. Further, he claimed he faced persecution because of his Sabean Mandaean faith. The appellant's mother did not have her own claims to be a refugee although she had told the first Tribunal that she was prevented from practising her religion. Her claim was treated as that of a dependent family member. 9 The Tribunal accepted that the appellant is a citizen of Iran and is a Sabean Mandaean. Nevertheless, it found that a significant aspect of the appellant's evidence was internally inconsistent, implausible and inconsistent with the independent evidence. It found he had considerably exaggerated and embellished some aspects of his claims and fabricated others and had done so in an attempt to bring himself within the definition of a refugee. It therefore found him not to be a reliable witness.

claims of discrimination by security forces 10 It was accepted by the Tribunal that the appellant's father owned a jewellery shop which was robbed; that the father gave the police the names of two people he suspected of involvement in the robbery; one of these people was the son of a member of the security forces; and that the father was consequently mistreated for making the complaint and a subsequent complaint. It was also accepted by the Tribunal that disparaging remarks were made about the appellant's father's religion by the father of one of the people he complained about and that that person slapped the father's face. The Tribunal then continued: 'However, in the circumstances, I cannot conclude that the essential and significant motivation for the response to [the appellant's] father's complaints in Shadegan was his religion. I am of the view that a Muslim complaining about the son of a person connected with the security forces on evidence as circumstantial as that which existed in this case would also have been given short shrift, regardless of that person's religion. In this regard, I note that the independent evidence before me indicates that the police generally protect Sabeans and do not generally discriminate against them. I cannot be satisfied that the incidents concerning the robbery of [the appellant's] father's shop give rise to a well-founded fear of persecution for a Convention reason.' 11 The Tribunal also accepted the appellant's account of further actions in relation to his father when his father moved to another city and that the appellant had been detained for two days by the security forces and questioned about how he was able to open another shop there. However, the Tribunal was also of the view that the essential and significant reason for the treatment to which the father was subjected was not his faith but retribution for his accusation that the son of a member of the security forces has robbed his shop without having solid evidence to back up the allegation. 12 Likewise, the Tribunal accepted that the local council had closed down the appellant's father's shop for a month but found this was not due to his religion but to the lack of a licence applicable to the new city.

claim in relation to military service 13 The Tribunal accepted the appellant had problems during military service because of conflict with a superior officer, who had put pressure on him to convert to Islam and had become angry when he indicated he did not intend to do so. It accepted that the appellant was not promoted and did not get as many holidays as he was entitled to as a consequence. In relation to a further claim that he had been physically assaulted and detained, the Tribunal said: 'I have difficulty accepting that this particular incident occurred. In relation to this, both [the appellant] and his mother mentioned that [the appellant] had difficulties during military service when they were first interviewed upon arrival in Australia. However, neither of them said anything about a period of detention. Indeed, the only problems that [the appellant's mother] indicated that her son had during military service was that he was harassed and could not get leave. However, for present purposes I am prepared to accept that the incident happened as described by [the appellant]. In my view, the attempt made by [the appellant's] superior officer to influence him to change his religion, although no doubt offensive to [the appellant], falls far short of treatment which could be categorised as persecution. I am also of the view that [the appellant's] failure to obtain a promotion and as many holidays as other soldiers also falls short of treatment which could be described as persecution.' The Tribunal also found that the appellant had not claimed and the evidence did not suggest that he had experienced any ongoing problems arising from the problems he had experienced during military service and that he had undertaken no further military service obligations in Iran. Therefore, that experience could not be the source of a well-founded fear of persecution for a Convention reason.

claims concerning business licence 14 In relation to a claim by the appellant that he was not able to get a business licence in his own name after the death of his father because of his religion, this was not accepted by the Tribunal because there was not independent evidence to suggest any specific policy or practice either at a national or local level to prevent Sabean Mandaeans from practising their traditional trade. 15 Likewise, the Tribunal accepted a claim by the appellant that he had paid a bribe in connection with the grant of his business licence but not that he was targeted by a corrupt official because of his religion or that he was sentenced to six months imprisonment for having a forged business licence. It found that the payment of the bribe was not itself persecution for reasons of his religion or any other Convention reason. Further, it did not accept that the appellant was refused a licence to operate his jewellery business after the death of this father or that the authorities closed down his shop. The Tribunal found that this claim was fabricated and that there was no reason why the appellant was of any adverse interest to the Iranian authorities at the time he left Iran or at the time of the hearing of the application.

claim concerning alcohol 16 The Tribunal was not satisfied the appellant was arrested for possession of alcohol as claimed. Therefore it did not accept he was accused of selling alcohol, of misleading Muslims, was physically maltreated in detention or was forced to sign an undertaking not to act wrongly again.

claim concerning assault on government official 17 The Tribunal found that if the appellant had assaulted a government official and was wanted for that reason it was not satisfied that this would give rise to a well-founded fear of persecution for a Convention reason. The Tribunal found that if the appellant was wanted for arrest the only essential and significant reason for that was because he had committed the assault against a government official and not because of any Convention reason. Further, there was nothing in the independent evidence to suggest that Sabean Mandaeans convicted of criminal offences in Iran are punished more severely than the other members of the Iranian community for reasons of their religion or other Convention reason.

claim based on illegal departure 18 The appellant's claim that he would be persecuted on return to Iran because he left the country illegally was rejected because the evidence was that he had left Iran using a passport in his own name.

claim based on religion and particular social group 19 Turning to the claims of the appellant that he was at risk because he was a Sabean Mandaean, the Tribunal accepted that members of such sect are discriminated against in Iran in a number of ways. It said: 'I accept Sabean Mandaeans are discriminated against in Iran in a number of ways. I accept that as an unofficial religious minority (albeit one that has been recognised as "People of the Book"), I accept that Sabean Mandaeans are not allowed to establish their own schools. I also accept that along with adherents of other religious minorities, Sabean Mandaeans are not accorded full equality with Muslims before the law, for example by not being accorded the same amount of compensation in the event of injury or death. I accept that Sabean Mandaeans are, along with members of other religious minorities, precluded from government employment. I accept that Sabean Mandaeans are also subjected to a certain level of social discrimination. For example, I accept that Sabean Mandaeans would not be allowed to handle food in shops operated by observant Muslims. Whilst I accept that Sabean Mandaeans face some discrimination in Iran, in my view the independent evidence does not support a conclusion that any discrimination they face is serious enough to amount to persecution. In my view, if Sabean Mandaeans did face treatment serious enough to amount to persecution, I consider that this would be referred to in reports such as the US Department of State's Annual Report on Religious Freedom. I also consider it significant that whilst the ASUTA article referred to above refers to a range of ways in which Sabean Mandaeans are discriminated against, the article does not suggest that Sabean Mandaeans are prevented from practising their religion. The article specifically indicates that Sabean Mandaeans are able to carry out their ceremonies, including baptisms, weddings and funerals. The independent evidence also does not indicate that efforts are made to convert Iranian Sabean Mandaeans to Islam. This independent evidence indicates that Sabean Mandaeans are not seen as a threat to Islam, as that they do not proselytise. Overall, I am of the view that the weight of the independent evidence before me supports a conclusion that Sabean Mandaeans in Iran are able to practise their religion and do not face treatment amounting to persecution.' 20 The Tribunal also rejected a submission that Sabean Mandaeans in Iran face similar persecution to Baha'is. It found there was no independent evidence suggesting that the Iranian Government perceives that Sabean Mandaeans should be prevented from practising their religion, that they are a political sect or that they are subject to arbitrary detention and execution for reasons of their religion, as was the case with Baha'is. 21 In relation to discrimination in employment against Sabean Mandaeans, the Tribunal found that the appellant's evidence indicated he was engaged in the remunerative self-employment in Iran. In those circumstances the Tribunal was not satisfied that he had even been denied the right to employment or that in being a jeweller he had suffered any detriments serious enough to amount to persecution for a Convention reason. 22 The Tribunal concluded generally: 'The independent evidence clearly indicates that Sabean Mandaeans encounter a range of problems in Iran. I do not wish to deny the strength of [the appellant's] belief that as a Sabean Mandaean he is discriminated against as a member of a minority religious group. However, as noted above, under section 91R(1) of the Act persecution must involve serious harm and systematic and discriminatory conduct. The expression "serious harm" includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant's capacity to subsist: s.91R(2) of the Act. In my view, the weight of the independent evidence does not indicate that that the harm to which Sabean Mandaeans in Iran are subjected generally amounts to persecution. I am not satisfied that [the appellant] has been persecuted in the past for reasons of his religion. I am not satisfied that there is a real chance that either [the appellant] or [his mother] will face harm serious enough to amount to persecution for reasons of their religion in the reasonably foreseeable future.' 23 The Tribunal therefore concluded that the appellant was not a person to whom Australia owed protection obligations.

federal magistrate's reasoning 24 When the Federal Magistrates Court heard the application for review of the second Tribunal decision the only relevant ground which it could then entertain under the applicable legislation was that the Tribunal did not enter into its task in good faith: cf NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 123 FCR 298. Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 and in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1 it is now necessary to consider whether the Tribunal fell into any jurisdictional error.

grounds of appeal 25 The respondent has not objected to substituting grounds of appeal, which are threefold. The first is that the Tribunal erred in law in its application of the definition of what amounts to serious harm under s 91R of the Act. The second is that the Tribunal erred in law in its application of the definition of well-founded fear. The third is that the Tribunal erred in its decision because it was so unreasonable as to be a decision that no reasonable person could make.

'serious harm': persecution as a social group 26 Under the first ground it is initially contended that the Tribunal erred in law in its application of the definition of 'serious harm' under s 91R of the Act in finding that Sabean Mandaeans are not persecuted as a social group. 27 In support of this ground the case for the appellant is that the Tribunal had before it country information that established that not only were Sabean Mandaeans subject to serious harm but that they were persecuted. The submissions point in detail to evidence addressing the following matters: (i) Sabean Mandaeans having restricted rights to practise their religion and being only able do so subject to Muslim sensitivities. (ii) Sabean Mandaeans not having protection before the court. (iii) Sabean Mandaeans not having equal employment opportunities. (iv) Sabean Mandaeans not being able to touch food in public. (v) Sabean Mandaeans being in a similar situation to blacks in South Africa. (vi) Sabean Mandaean women being coerced into Muslim marriage on an increasingly common basis. (vii) Sabean Mandaeans not being treated humanely in hospitals. 28 In the light of this evidence from country information, the appellant's case seeks to attack the legal correctness of the conclusion in relation to Sabean Mandaeans generally on two bases. The first is that the Tribunal wrongly perceived the weight of the independent evidence and thus misapplied the definition of serious harm. Further, it is said, the Tribunal approached the matter as if the criteria listed in s 91R(2) were the only factors to be taken into account. It is common ground that s 91R(2) in its terms is a statement made without limitation to consideration of all matters. 29 The appellant's contentions rely on the statements made by McHugh J in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 429 - 431 and in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 258 - 259. The respondent contends these statements need to be understood in the statutory context of the enactment of s 91R of the Act. The appellant's case also relies upon the description of persecution given by Gaudron J in Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 204 CLR 1. The appellant's case refers additionally to the description of relevant law set out in SBAS v Minister for Immigration & Multicultural Affairs [2003] FCA 528 per Cooper J, particularly at [44] - [53]. It is common ground that following the decision of the High Court in Appellant S395/2002; Appellant S396/2002 v Minister for Immigration & Multicultural Affairs (2003) 203 ALR 112 that it is no answer to the treatment Sabean Mandaeans experienced to say they can be discrete and avoid further ill treatment by not asserting their basic rights. 30 For the respondent it is accepted that the evidence before the Tribunal was consistent with there being a degree of discrimination against Sabean Mandaeans on the ground of their religion. It is said that for that reason the Tribunal made findings in relation to discrimination extending to education, employment, access to the law and generally socially. It is said that when the Tribunal made the overall finding that Sabean Mandaeans were able to practise their religion and do not face treatment amounting to persecution it was assessing a question of fact dependent on all the circumstances. This, it is said, was consistent with s 91R of the Act. It is submitted that there is nothing to suggest that in addressing the question of 'serious harm' the Tribunal misconstrued the sections. In the circumstances it is said for the respondent that it should be found on this appeal that the appellant's claims were properly considered and dealt with; that there was no misconstruction of s 91R of the Act; and that, therefore, the decision was made without jurisdictional error. 31 There is nothing in the reasoning of the Tribunal which expressly demonstrates an error of law in the Tribunal's understanding or application of the concept of 'serious harm' either generally or in relation to the appellant's claim in relation to a persecution because of his religion. Rather, the case for the appellant is that such error can be inferred from the Tribunal failing to find there was a well-founded fear based on persecution from that source. 32 Turning to the paragraphs of s 91R(2), it was open to the Tribunal to find that none of the matters (i) to (vii) listed above fell within s 91R(2) of the Act. It was open to find, for example, that the evidence in the country information did not establish 'significant' conditions or 'threaten a capacity to subsist'. 33 Having permissibly reached that point it was open to the Tribunal to take the colour of 'serious harm' beyond the list of matters in s 91R(2) as requiring something in the same serious character. It was not obliged to accept all the country information. In any event it was open to it to consider that none of that evidence could establish any degree of seriousness on matters not in s 91R(2). 34 Therefore I do not consider the argument that the Tribunal misapplied the concept of serious harm can be made out. It is apparent the Tribunal did not consider that the evidence established the requisite of seriousness on any matter, and that conclusion was open to it. Furthermore, all the dicta relied upon in relation to the nature of persecution must be understood in the context of the enactment of s 91R and cannot be read as now alone setting the applicable standard.

'serious harm': evidence relating to appellant and his family 35 The appellant's specific claims were: (a) the general claim of persecution of Sabean Mandaeans; (b) claims related to his military service in 1995, in which he had been discriminated against and mistreated by an officer; (c) difficulties in the conduct of business, both relating to his father's conduct of the business before his father's death, and thereafter the appellant's own business; (d) events when he had been arrested, detained and mistreated (amounting to torture) when he was found with alcohol in his home. (e) difficulties arising out of his business licence and difficulties involving a government official with whom the appellant had an argument and whom he assaulted. In his entry interview the appellant did not refer to the detention and torture aspects in (d) nor to the matters (e) and that was part of the reason for adverse credibility findings against him. 36 The claim in (a) has been dealt with in the preceding section of these reasons. 37 The claim in relation to (b) was resolved on the alternative ground that there were no systemic on-going problems arising from military service. That was open to the Tribunal. 38 The claim in relation to (c) was dealt with on the basis that the Tribunal did not accept the appellant had been arrested and imprisoned for six months or that his business had been closed down by authorities. 39 In relation to (d) the Tribunal disposed of this evidence on a rational basis, namely, that it was highly implausible that a person who had notice that the police wanted to search his house would not have taken the opportunity to dispose of the alcohol. 40 In relation to (e) this was, in any event, disposed of on the alternative ground that even if it had occurred it would not have given rise to a well-founded fear of persecution for a Convention reason. Substantively, in any event, the evidence was dealt with on a rational basis and not accepted. 41 I accept the submission for the respondent that the Tribunal's findings in respect of each of the above matters were based in evidence and in some cases in the unfavourable view of the appellant's credibility. There is, therefore, no basis on which to find error of law in misunderstanding the concept of 'serious harm' in s 91R of the Act in relation to the evidence concerning the appellant and his family.

'Well-founded fear' 42 On this ground the contention for the appellant turns to the findings by the Tribunal that the appellant's father was robbed and had been mistreated as a result of reporting the robbery and had been further mistreated when the family moved to another city. The argument then turns to the specific terms of the finding of the Tribunal, namely, that the independent evidence before it 'indicates that the police generally protect Sabeans and do not generally discriminate against them'. This is said to be a quotation of part only of the country information before the Tribunal in which it was said 'the police will generally protect Sobbis and generally do not discriminate against them, but Sobbis often have problems in the courts'. It is said that these additional words in the original material are significant, particularly in the context of other country information to the effect that 'different rules apply to Sobbis for the payment of "blood money"'; that 'the judiciary suffers from government and religious influence, and does not ensure that citizens receive due process or fare trials' and that 'religious minorities suffer discrimination in the legal system, receiving lower awards in injury and death law suits, and incurring heavier punishments, than Muslims'. 43 In taking this approach it is said for the appellant that the Tribunal failed to properly apply the concept of 'well-founded fear': see Ibrahim per Gaudron J at 6 - 7, at [16] in particular; Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 571 - 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ; Chan at 389 per Mason CJ and McHugh J. 44 There is nothing apparent in the reasoning of the Tribunal to support the contention that it fell into error of law in misconceiving and misapplying the concept of 'well-founded fear' of persecution. On the contrary, the argument for the appellant on this aspect verges into the area of inviting this Court to impermissibly engage in merits review. Furthermore, it assumes that anything which was in the country information before the Tribunal should have been accepted by it, whereas that was patently not the case.

unreasonableness 45 Under the Act as it stood until amended with effect from 2 October 2001, unreasonableness was not a ground upon which an application for review could be argued: s 476(2) as it then stood. Since then unreasonableness can arise only so far as it may go to existence of a jurisdictional error: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351, at [82]. It may be that 'to make an erroneous finding or to reach a mistaken conclusion' involves making a decision which is so unreasonable that no reasonable person would make it. Here it is not essential for the ground to be cast in terms of unreasonableness; the point sought to be raised is that conclusion reached by the Tribunal was unsupported by any evidence or involved a failure to consider other relevant evidence: cf SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 at 18 - 20. 46 It is submitted for the appellant that there was no basis on which the appellant should be disbelieved on the existence of his well-founded fear and that, therefore, the Tribunal's conclusions fell into error of law as being unreasonable. 47 In relation to the finding concerning the appellant's version of his arrest and imprisonment in relation to business licence, it is said that the evidence is that the judicial system suppressed minorities and it showed that if Sabean Mandaeans do not comply with requests for the donation they do not live for long. 48 In relation to the finding that the appellant was not refused a licence, it is said this is contrary to the only evidence available to it. 49 In relation to the police finding alcohol at his home, the Tribunal is said to have under-weighted his reasons for not speaking of the incident. The inconsistency which was found was one which had already been explained. 50 The formulation of these submissions itself discloses the invitations they contain for this Court to (impermissibly) reconsider the merits of the Tribunal findings. This not a case where there was no evidence (and this has been addressed in considering the prior grounds). It is also a case where the appellant's credibility was in issue. In such circumstances a ground of unreasonableness could not be made out.

CONCLUSION 51 For these reasons I consider the appeal cannot succeed. 52 However, it was drawn to the attention of the Court in closing submissions that a large number of applications by Sabean Mandaeans for protection visas have recently been accepted by the Tribunal in applications by other persons. While each application must be considered on its merits, it would seem that the country information presently available to the Tribunal may be persuasive of the existence of a well-founded fear of persecution. That is, it may now be the case that the country information relating to Sabean Mandaeans demonstrates circumstances of persecution in relation to Sabean Mandaeans generally. If that is the case then this would be an instance where it would be appropriate for the respondent to exercise her powers to reconsider the appellant's position pursuant to s 417 of the Act. The finding on this appeal that the first limb of ground 1 does not succeed does not mean that it may not be open to the Minister in the light of present country information to take a different view of the state of general persecution concerning Sabean Mandaeans in Iran. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Associate: Dated: 30 April 2004 Pro Bono Counsel for the Appellant: Mr P Charman

Pro Bono Solicitor for the Appellant: Refugee Advocacy Service of South Australia

Counsel for the Respondent: Mr JD Allanson

Solicitor for the Respondent: Blake Dawson Waldron

Date of Hearing: 18 December 2003

Date of Judgment: 30 April 2004