Jahazi v Minister For Immigration And Ethnic Affairs [1995] FCA 941 (14 November 1995)

Last Updated: 26 July 2007

IN THE FEDERAL COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY )
GENERAL DIVISION ) No. WAG 32 of 1995

B E T W E E N: ALI REZA JAHAZI

Applicant

and

MINISTER FOR IMMIGRATION
AND ETHNIC AFFAIRS

Respondent

CORAM: FRENCH J.
DATE: 14 November 1995
PLACE: PERTH


REASONS FOR JUDGMENT

Background
Ali Reza Jahazi was born on 21 April 1968 at the town of Genavehe in Iran. He is a citizen of Iran. His parents live in that country as do his nine siblings. He has never married. His usual occupation is that of seaman.

Jahazi's family is not well off. However he became engaged, evidently by way of inter-family arrangement, to a young woman from a family which was considerably wealthier than his own. From May 1990 to May 1991 he did military service. From July 1991 to January 1992 he worked as a welder with the Kangan Gas Co. From January 1992 to October 1992 he worked as a photographer. In 1993, he obtained employment with the Iranian National Shipping Line. He had only been employed there for a few months when he was told that if he did not return home within three months his fiancee's family would cancel the marriage and agree to her marrying someone else. Jahazi has also said in an affidavit filed in these proceedings that his fiancee's family had demanded that he contribute $5000 to the expenses of the wedding as a condition of it going ahead.

Jahazi decided to raise money to help himself out of his difficulties by trying to sell drugs in Australia. He purchased 2 kilos of cannabis resin for that purpose. He took the drug with him on the vessel Iran Sadoughi which berthed in Esperance on 13 December 1993. On 14 December 1993, Jahazi met with persons at the Pier Hotel, Esperance, who were in fact undercover Customs Officers. He invited them to visit him on the ship. Following a meeting on board the vessel on 15 December 1993 at which he offered to sell the resin to the officers for $3,000 per kilo, he brought ashore the two blocks to complete the transaction. When he produced the resin to the officers he was arrested and charged with the importation and possession of narcotic goods of not less than the trafficable quantity. He was subsequently convicted and sentenced to a term of six years imprisonment which he is still serving at Canning Vale prison in Western Australia.

On 13 June 1994, Jahazi applied for refugee status and a Protection (Permanent) Entry Permit. The expressed basis for the application appeared at para.67 as follows:

"What do you fear would happen to you if returned to your country of nationality or habitual residence?

I will be apprehended at the Port/Airport, taken to prison and executed. Generally, trafficing (sic) more than 1 kgm of Hashish is punishable by execution. I had 2 kgm of Hashish on me. My name is known to the officials because I have been arrested before (see Qs 75 & 77) and I've been refused a clearance to work (see Q.80)."



In submissions to the Department of Immigration and Ethnic Affairs Jahazi said that his cousin and his cousin's wife had been arrested in Iran in 1979 and imprisoned for two years because of membership of the Communist Party. He claimed to have been questioned by Iranian authorities about his cousin's activities. He also told the Department that he had been previously arrested himself in 1989 and imprisoned for one week because he was caught drinking alcohol. He was released after a week due to his brother's influence. He had not been permitted to perform in a theatre production due to his long hair. He was not considered as dressing in a religious manner and could not perform publicly. He also claimed to have been refused a security clearance to work at a petro-chemical factory because of his appearance.

The application for refugee status was refused at first instance by a delegate of the Minister for Immigration and Ethnic Affairs. The delegate did not consider that Jahazi faced any real chance of persecution for a reason relevant to the Refugee Convention. The delegate concluded:

"I believe that the applicant's reason for not wishing to return to Iran is primarily based on his fear of prosecution for drug trafficking. As stated above prosecution for a criminal offence unrelated to convention grounds does not form the basis for the grant of refugee status. The applicant prior to his departure for Iran had been able to gain an education and employment on the national shipping line, therefore I find the applicant was not the target of persecution in Iran prior to his departure."



The delegate's decision refusing the application was made on 19 July 1994.

On 10 August 1994, Jahazi applied to the Refugee Review Tribunal for review of the decision. That review had not been completed on 1 September 1994 when changes to the Migration Act 1958 and the Migration Regulations took effect so that the application was then to be regarded as an application for a protection visa.

The Tribunal's Decision
On 10 November 1994, the Refugee Review Tribunal affirmed the decision of the delegate under review holding that a protection visa should not be granted to Jahazi. After setting out the factual background and referring to the legislative framework and the terms of the Refugees Convention, the Tribunal considered the substance of Jahazi's case. It held that his fear of returning to Iran was based on his conviction in Australia of drug trafficking charges. He had not raised any other substantial matters which would cause difficulty for him should he return to Iran.

The Tribunal noted that drug trafficking is considered to be a very serious crime in Iran. The death penalty was made mandatory in 1989 for the possession of various quantities of drugs including 5 kilograms of cannabis resin. Thousands of people convicted of drug trafficking offences have been executed. The Tribunal cited references indicating that the majority of persons held in Iranian prisons are held on drug related charges. For first offenders who have not been able to distribute drugs before arrest, where the quantity of drugs would not attract the death penalty, the penalty would be confiscation of property, 74 lashes and life imprisonment. The Tribunal accepted that had Jahazi been found guilty in Iran of the offence for which he is currently serving his sentence in Australia, his punishment would have been most severe.

The Tribunal considered whether there was a real chance that Jahazi would be tried for the same or a related offence should he return to Iran. It noted that in the past countries have been reluctant to deport Iranian citizens because of likely problems encountered upon their return. The Department of Foreign Affairs and Trade had advised that under Iranian law a person convicted of a criminal offence abroad which had no connection with Iran or could not be classed as a specific violation of Islamic law would not be liable to prosecution on return to Iran even if a sentence had not been served in the country of conviction. It was noted that drug offenders in Iran are usually treated harshly as many are suspected of being connected with opposition elements and/or of being able to provide intelligence on large scale drug trafficking operations which the Iranian authorities are attempting to combat. However, the Department had not heard of cases of Iranian nationals convicted of such offences overseas being treated harshly on return, particularly when there was no direct Iranian connection.

The Tribunal observed that Jahazi's situation was complicated by the fact that at the time of his offence he was a serving crew member on board a ship owned by the Iranian Shipping Line which is run by the government. He brought drugs to Australia from Iran with the intention of selling them and in those circumstances it could not be said that the offence had no connection with Iran. Moreover there was no doubt that the Iranian authorities were aware of his conviction and the nature of the offence. In the view of the Tribunal therefore, it was possible that Jahazi might face additional punishment on his return to Iran for offences committed in Australia. While it was difficult to ascertain what that punishment might be, it was reasonable to assume that it would be severe.

The Tribunal noted that alleged drug offenders in Iran are tried in revolutionary courts characterised by lack of due process. The Tribunal considered that if tried in Iran Jahazi would not receive a fair trial and could be imprisoned or even executed without just cause. He would have no right of appeal. There was evidence that torture of prisoners is a common practice in Iran. The Tribunal however concluded as follows:

"While the Tribunal has sympathy for the applicant in that should he return to Iran it is likely he would face treatment of an extremely harsh nature, the applicant cannot be considered to be a refugee. The applicant must have well founded fear of being persecuted for one of the reasons stated in the Convention, that is, race, religion, nationality, membership of a particular social group or political opinion. The applicant's fear does not arise for any of those reasons. It arises solely out of his conviction for a criminal act and, accordingly, is outside the ambit of the Convention."



On that basis the Tribunal affirmed the decision under review that a protection visa not be granted to Jahazi.

Grounds of Review
On 26 May 1995, Lee J ordered that Jahazi's time for filing an application for an order of review of the Refugee Review Tribunal's decision be extended to 25 May 1995. An amended application filed on 24 May 1995 stood as a substituted application.

The grounds of review on the face of it reduce to the following propositions:

1.That the Tribunal erred in concluding that Jahazi's fear of persecution arose solely out of his conviction.
2.That his fear of persecution in Iran and the increased risk of such persecution arose by reason of his membership of a particular social group, namely a seaman employed by the Government owned Iranian Shipping Line.
3.Alternatively, that Jahazi's fear of persecution and the increased risk of persecution arose by reason of his membership of a particular social group, being actual or suspected drug traffickers.

The Submissions
It was submitted on Jahazi's behalf that on the evidence before the Tribunal his fear of persecution arose not merely because of his criminal acts but also because of his employment as a seaman for the Iranian Shipping Line. While the Tribunal had accepted that he would be likely to be persecuted if returned to Iran, it found that his fear of persecution arose solely out of his conviction. To constitute a particular social group, the group in question must be a recognisable group within a society which shares some interest or experience in common and must have a recognisable existence independent of the persecution complained of. Membership of the particular social group should not be narrowly defined. It includes groups defined by employment or profession and therefore would extend to seamen employed by the Iranian Shipping Line.

The Convention requirement that Jahazi have a well founded fear of being persecuted for reasons of his membership of a particular social group did not require that membership of that group be the sole reason supporting the fear of persecution. The fact that membership of a particular social group was a contributory cause to a well founded fear of persecution still brought it within the Convention. The focus of Jahazi's argument related to Jahazi's status as a seaman employed by the Iranian Shipping Line. The fact that he might be subject to special punishment by reason of being a convicted drug trafficker was not pressed as a Convention reason.

Jahazi's contentions were formulated in terms of error of law, taking into account irrelevant considerations and failure to take into account a relevant consideration.

The Minister's response dealt generally with the question of improper exercise of power through failing to take into account relevant considerations or taking into account irrelevant considerations. To come within the Convention definition of a refugee, it was said an applicant must show a well-founded fear of persecution for a specified reason which, for the purposes of this case, was membership of a particular social group. It did not follow that the more abhorrent the persecution the more likely it was that targets of that persecution were members of a particular social group. It is the whole group which must be attacked and the individual persecuted because he belongs to that group.

Legislative Framework
The grant of visas is authorised by s.29 of the Migration Act 1958 which provides in part:

"29(1) Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following:

(a)travel to and enter Australia;

(b) remain in Australia."



There are prescribed classes of visa (s.31(1)). In addition, the Act itself specifies certain classes of visa. The regulations may prescribe criteria for visas of specified classes (s.31(3)). Section 36 specifies a class of visa known as "protection visas". A criterion for a protection visa is that an applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (s.36(2)).

Regulations are authorised to provide that visas or visas of specified classes may only be granted in specified circumstances.

Regulation 2.04 of the Migration Regulations provides that for the purposes of s.40 and subject to the Regulations, the only circumstances in which a visa of a particular class may be granted to a person who has satisfied the criteria in a relevant Part of Schedule 2 are the circumstances set out in that Part.

Schedule 2 sets out various subclasses of visa. Subclass 866 is the Protection (Residence) Visa. Clause 866.211 of subclass 866 states:

"866.211 The applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and:

(a)makes specific claims under the Refugees Convention; or

(b)claims to be a member of the family unit of a person who:

(i)has made specific claims under the Refugees Convention; and

(ii)is an applicant for a Protection (Class AZ) visa."



It is also a criterion that the Minister must be satisfied that the applicant is a person to whom Australia has protection obligations under the Refugee Convention (866.221).

The Refugees Convention is the Convention Relating to the Status of Refugees 1954 which is to be read with the Protocol Relating to the Status of Refugees 1973. Article 1 of the Convention, read with the Protocol, defines a refugee as a person who fulfils the following conditions:

"...owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside of 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it."



Particular Social Group
The question whether Jahazi had a well founded fear of persecution because of his membership of a particular social group was not expressly considered by the Tribunal. It found that there was a possibility that he might face severe additional punishment on his return to Iran. That finding was based upon the proposition that because he was, at the time of the offence, a serving crew member on board an Iranian Government owned ship who brought drugs to Australia from Iran with the intention of selling them there was a "connection with Iran" which might expose him to that additional punishment.

Counsel for Jahazi accepted that the critical issue in this case was whether or not his client could be brought within the Convention definition of refugee by reason of his membership of the social group defined as employees of the Iranian Shipping Line. The contention that being an actual or suspected drug trafficker could constitute membership of a particular social group for Convention purposes was not pressed.

The scope of the term "particular social group" in the Convention was considered by the Full Court in Morato v. Minister for Immigration and Ethnic Affairs [1992] FCA 637; (1992) 39 FCR 401. A minimum requirement for the identification of a particular social group is the existence of a "cognisable group in a society, and cognisable to the extent that there may be a well founded fear of persecution by reason of membership of such a group" (at 406 Black CJ, French J agreeing). Lockhart J came to a similar conclusion:

"In my opinion for a person to be a member of a "particular social group" within the meaning of the Convention and Protocol what is required is that he or she belongs to or is identified with a recognisable or cognisable group within a society that shares some interest or experience in common. I do not think it wise, necessary or desirable to further define the expression. It must be borne in mind, however, that the question is whether a person's well-founded fear of persecution is for reasons of membership of a particular social group. The membership of the group is the touchstone of the test of refugee status." (at 416)

It has been said that all groups defined by employment or profession fall within the social group category since freedom to choose one's occupation is a basic right - Hathaway, The Law of Refugee Status p.168. In principle there is no reason why the employees of an organisation out of favour with a current regime could not constitute a particular social group for convention purposes. Former civil servants of a government overthrown by a regime now in power might also fall into such a category. Having regard to the breadth of the concept of a particular social group as enunciated by the Full Court in Morato it cannot be said that the employees of the Iranian Shipping Line do not constitute a particular social group capable of attracting Convention protection. The real question then is one of connection between membership of that group and the feared persecution in this case.

The motivation of the persecution of members of a particular social group which will attract Convention protection is membership of that group. The membership of the group must provide the reason for the persecution. A person must have a well-founded fear of persecution because he belongs to the relevant group - Ram v. Minister for Immigration and Ethnic Affairs [1995] FCA 1333; (1995) 130 ALR 314 at 317 (Burchett J, O'Loughlin J agreeing). This is not, in my opinion to exclude the possibility that the occasion for persecution is something other than membership of the group. For example, an individual might commit a minor offence which is harshly punished because he is a member of a particular social group. To require that a feared persecution arises solely for a Convention reason would be artificially to narrow the scope of the protection. It would be an inadequate response to the possible varieties of and excuses for the oppression of target groups within a repressive society.

In the present case the Tribunal's findings supported the inference of a causal connection between the possibility of severe punishment upon Jahazi's return to Iran and his former employment by the Iranian Shipping Line. But a bare causal connection is not, in my opinion, sufficient to attract Convention protection. The question whether a particular causal connection between persecution and membership of a group attracts Convention protection will be resolved not merely by the logic of causality but as a matter of evaluation which has regard to the policy of the Convention. While it is not necessary that the fear of persecution be solely attributable to membership of a relevant social group, a decision-maker can have regard to the extent to which membership of the relevant group is a factor in the risk of persecution.

In the present case, the risk to which Jahazi is exposed if returned to Iran arises, on the Tribunal's factual analysis, because the offence of which he was convicted had a connection with Iran. That connection in this case was established by virtue of his employment by the Iranian Shipping Line. Such a connection might be otherwise established in other cases. Membership of the group is the occasion of the connection and to that extent there is a causal connection between that membership and the apprehended harm. But the fear of persecution in this case is not attributable to membership of the group in any sense relevant to the policy of the Convention. If Jahazi is persecuted upon his return to Iran it will be because he has been convicted of an offence which had a connection with an Iranian government organisation which in this case happened to be the Iranian Shipping Line of which he was an employee. There is, of course, no suggestion that the Iranian Government has any policy or practice of persecuting the employees of its own shipping line.

In my opinion Jahazi has failed to show any error in the reasoning of the Tribunal or any basis upon which he could properly be said to attract Convention protection. Nevertheless, the risk to which he may be exposed upon his return to Iran is a matter of serious concern. The possibility that he might be subjected to trial without due process, to imprisonment and to torture are not matters which can lightly be put aside by any country with an humanitarian tradition. The question whether or not he can be returned to another country or permitted to remain for a time in Australia on some other basis is not before this Court. The question before this Court is whether or not the Refugee Review Tribunal erred in finding that he did not attract the protection of the Refugee Convention. In my opinion he has not shown any error and his application must be dismissed with costs.

I certify that this and the preceding
sixteen (16) pages are a true copy of the Reasons for Judgment of his Honour Justice French.

Associate:
Date:

Counsel for the Applicant: Mr H. Christie
Solicitor for the Applicant: Carol A. Bahemia

Counsel for the Respondent: Mr S. Bhojani
Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 27 October 1995
Date of Judgment: 14 November 1995