W417 v Minister for Immigration and Multicultural Affairs [2002] FCA 689 (30 May 2002)

Last Updated: 30 May 2002

FEDERAL COURT OF AUSTRALIA

W417 v Minister for Immigration and Multicultural Affairs [2002] FCA 689

MIGRATION - judicial review - protection visa - Iranian asylum seeker - Muslim married to woman of Sabian Mandaean religion - children baptised in Sabian Mandaean religion - family suffering a level of harassment and discrimination - not amounting to persecution - imputed political opinion - participation in Abadan water protests - Tribunal finding not at risk of persecution - application for review on merits - no ground of review disclosed - application dismissed.

Migration Act 1958 (Cth)

W417 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W417 OF 2001

FRENCH J

30 MAY 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W417 OF 2001

BETWEEN:	W417 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	30 MAY 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W417 OF 2001

BETWEEN:	W417 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	30 MAY 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

1 The applicant and his wife and two sons who are citizens of Iran arrived in Australia by boat without lawful authority on 7 October 2000. They lodged an application for protection visas with the Department of Immigration and Multicultural Affairs on 9 March 2001. A delegate of the Minister for Immigration and Multicultural Affairs refused the grant of the visa on 2 April 2001 and on the same day they applied for review of that decision to the Refugee Review Tribunal ("the Tribunal"). On 29 August 2001, the Tribunal affirmed the decision not to grant protection visas. On 6 September 2001, an application was filed in this Court seeking an order for review of the decision of the Tribunal.

The Applicant's Claims

2 In support of his original application to the Department of Immigration and Multicultural Affairs for a protection visa for himself and his family the applicant described himself as a Muslim, married to a woman of Assyrian ethnicity and Sabian Mandaean religious affiliation. This marriage, he said, caused him a lot of trouble and harassment that he faced until the day he left Iran.

3 The applicant and his wife married in 1984 and lived in Abadan, a relatively small city where people knew each other. Because he had married a non-Muslim woman who did not become Muslim herself he was virtually excommunicated from the local, predominantly Muslim, members of the Abadan community. No one would talk to him and he was the subject of harassment. Government did nothing to protect him from that. As his children were growing up, they were harassed and mistreated by teachers and other students. They were told that they were "profane offsprings" (Najes). No one would touch them or speak to them and they were deprived of normal social relationships. He said they used to come home crying that the fellow students and sometimes the teachers told them that their mother was a "Water Worshipper". The government refused him a Job Permission Title necessary for anyone who wants to run a shop. His wife had problems when she wanted to leave the country to visit friends. When she applied for a passport she was told she had the suffix "Sobbi" (Sabian) on her surname and so was not allowed to leave the country. Her passport could only be obtained by paying a large bribe to a passport officer. He said that they had always been discriminated against by the Islamic government. On one occasion a mullah named Yazdi spoke in Friday prayers against Sabians and said they submitted themselves to Western countries and that they blackened the face of the Islamic Republic. The applicant said that because of the discrimination which he and his family faced they tried not to bring themselves to the government's attention. He supported them by working as a farm mechanic and as a salesman.

4 In 2000 a large uprising occurred in Abadan. People protested against the regime and condemned its negligent approach to their basic needs especially in relation to water. At the time of these demonstrations the applicant was out walking with his wife and children and standing on one side of the street looking at the demonstrators. Someone began filming them. The cameraman passed by him and his family and took close up shots of them. He was very afraid and sure the film was going to be used by the Ettela'at. The applicant said he did not go to his home that night. He went to a friend's home and followed the news of the uprising. He was told that Ettela'at was raiding houses in Abadan looking for some people. He was informed by his family that an Ettela'at unit came to their house looking for him.

5 These events made the applicant afraid that he was wanted by authorities. They would take the view that he had become a Moharib, a resister against the faith of Islam, because he had married a Sabian Mandaean woman and she had not become Muslim. That would be a very serious charge itself. That coupled with suspicions of his involvement in the Abadan riots would make it worse for him. He said his life was now in danger. He decided that he and his family should leave the country because he was in real danger. He contacted a smuggler who arranged his departure from Shiraz airport because of his powerful acquaintances in the airport. The smuggler assured his safe departure with false passports in return for money. The applicant said that checking procedures at Shiraz are not as strong as at Mehrabad airport in Tehran.

6 The family flew to Bahrain and then to Abu Dhabi and Indonesia. Finally they came to Australia by boat seeking asylum from the persecution which he said they now feared in Iran. The applicant said in support of his application for a visa that he feared that, if returned to Iran, he would be arrested along with his family, interrogated and tortured in connection with his wife and his participation in the Abadan riots. His wife would also face interrogation because she is a Sabian Mandaean. He would be sent to a Revolutionary Court and sentenced to a harsh and long term imprisonment.

7 The Tribunal conducted an oral hearing on 7 May 2001 at which evidence was given by the applicant, his wife and two witnesses called by the applicant. It published lengthy reasons which it is not necessary to summarise at any length here. It is sufficient to go to the Tribunal's findings and reasons.

The Tribunal's Findings and Reasons

8 The Tribunal found the applicants to be Iranian citizens who arrived in Australia by boat on 7 October 2000, who had travelled to Australia from Iran via Indonesia and who remained in Australia as non-citizens.

9 It referred to the applicant's claims as set out in written submissions by his adviser. It then turned to a consideration of the credibility of the applicant and his wife and their witnesses. It came to the conclusion that he and his wife were generally credible save for certain important aspects of their claims in respect of which it was not satisfied. It also accepted the evidence of their two witnesses. The Tribunal was not satisfied that the discrimination and harassment experienced in connection with the family's practice of the Sabian Mandaean faith was sufficiently serious to amount to persecution under the Convention. This led it to conclude that the family was not in genuine fear of persecution and that there was no real chance that they would face persecution on return to Iran.

10 In relation to the applicant's claims concerning the Sabian Mandaean religion, the Tribunal considered independent country information available to it including information supplied by the applicant's adviser. It was clear on the evidence that Sabian Mandaean believers and their families in Iran experience harassment and discrimination depending, inter alia, on their location and the attitudes of local officials and community members in a number of aspects of their lives including employment, education and the operation of the legal system. While accepting that the applicants lived in a clerical-led, repressive, authoritarian, fundamentalist Islamic state, the Tribunal found no reliable evidence to suggest that the Iranian government actively harasses or routinely persecutes Sabians as a community. No evidence had been located by the Department of Foreign Affairs and Trade that Sabians are pressured into converting to Islam. Nor were there any specific pressures reported on Sabian women to convert to Islam. The Tribunal therefore did not accept that there is systemic harassment or persecution of Sabians in Iran. It accepted that they do experience discrimination and harassment in a number of areas of their lives, notably employment, education and accommodation and in respect of certain aspects of the operation of the legal system.

11 Referring to the applicant's inability to obtain a work licence, the social ostracism that he and his wife suffered from their own families and former friends, and the hurting of their children at schools, the Tribunal accepted that the applicant and his wife had experienced discrimination and harassment over a considerable period. It observed that they had successfully moved between cities within Iran to mitigate the discrimination and harassment which they had faced.

12 The Tribunal accepted that the applicant's wife is and always has been a practitioner of the Sabian religion, that their children have been baptised into that faith and that they practise it. It was also accepted that the applicant himself is a Shia Muslim and that he has practised his faith during his marriage and has been married to his wife for seventeen years. Notwithstanding the harassment and discrimination which it found was experienced by the applicant and his family, the Tribunal noted that he and one of his witnesses had testified that he had a successful and good livelihood as a mechanic since he started work and that he had maintained his family well through working in family businesses. The evidence was that he was a very competent and successful mechanic and the Tribunal considered he should be able to obtain work in Abadan or Ahvaz or elsewhere in Iran in the motor repair and service industry.

13 Having examined the applicant's claims, the country evidence available and the adviser's submissions the Tribunal was not satisfied that either individually or cumulatively the treatment to which the applicant and his family had been subjected was sufficiently serious to amount to persecution under the Convention. Nor did it accept that the evidence justified the finding that he and his family had developed an adverse political profile because of their adherence to the Sabian Mandaean faith. The Tribunal concluded in this aspect of its findings:

"The Tribunal is not satisfied in these circumstances that the Applicants are in genuine fear of persecution upon return to Iran for any reason associated with the family's practice of the Sabean Mandean (sic) faith."

14 The Tribunal then turned to the applicant's participation in and possible identification at a water protest. It found that the applicant and his family attended a violent water protest by thousands of Abadan residents that occurred in Abadan in July 2000 in which a number of protesters were shot dead by police and hundreds were arrested. It found also that the applicant participated in the demonstration, that he walked in the protest and chanted slogans, and that he did so until police started firing on the protesters when he scattered with many others and left the streets. It did not accept, however, that he was identified by security authorities as he claimed. It rejected his evidence and that of his wife which it found to be thoroughly unconvincing on this issue. They did not appear to the Tribunal to be recounting events that had actually occurred. It did not believe that the applicant left his family and young children on the street at a protest that he expected to be violent, that he marched out of sight with many other protesters and that he subsequently found his family waiting for him an hour to an hour and a half later "... in the middle of a panic-stricken crowd seeking refuge from police gunfire".

15 The Tribunal found it highly implausible not only that the applicant would have been identified but also that his wife would have been able, in such a major disturbance, to notice their neighbour walking over to a cameraman pointing them out to the cameraman to film them. The manner in which their evidence was given on this matter was said to be "...entirely unconvincing and strongly indicative to the Tribunal that his claim to have been identified has been manufactured." The Tribunal was not satisfied that the applicant husband was identified as a participant in the protest or that his family's presence there was noted by the authorities. And even if they were seen and identified either as mere onlookers or with the applicant as a participant, they would in the Tribunal's view, given his low profile, have little to fear in terms of repercussions from security authorities. Because of his place in society the authorities would accept that the applicant would not have been an organiser or key figure in the protest.

16 The Tribunal referred then to the departure of the applicant and his family from Iran. His testimony concerning his departure from Shiraz airport was found to be "unsatisfactory, evasive and most implausible". It did not accept that he could have passed through immigration and security officials not knowing, as he claimed in evidence, under what name or identity he was travelling out of Iran.

17 The Tribunal regarded the applicant and his wife as having used the water protest issue to improve their claim for protection. It found on all the evidence that they do not have a genuine fear of persecution arising out of the applicant's husband's identification at the water protest. The Tribunal was not satisfied that they had a genuine fear of persecutory action on any relevant ground. It said:

"The Tribunal finds, on all the evidence, that the Applicants do not have a genuine fear of persecution arising out of the Applicant husband's identification at the water protest. The Tribunal is not satisfied that the Applicants have a genuine fear of persecutory action from the Iranian authorities for reason of an imputed political opinion through the Applicant husband's participation in the water protest nor as an implicit `moharib' through the Applicant husband's marriage to a non-Muslim nor his failure to convert his wife from the Sabean faith to Islam nor that he may be perceived to have Sabean tendencies himself. The Tribunal finds on the evidence that the Iranian security authorities have not been seeking out the Applicant husband or his family and that they would not take any action against them on return to Iran. The Tribunal is also not satisfied on the evidence that the Applicant husband would be of extra interest to the authorities because of his wife's religion, even if they knew he had participated in the water protest. As indicated, the Tribunal finds on the evidence that the security authorities did not identify him at the water protest and are unaware of the Applicant husband's participation in it. The Tribunal has examined the totality of the claims of the Applicants and considered whether, in combination, their claims ground a well-founded fear of persecution. However, the Tribunal is not satisfied that the evidence discloses such a fear of persecution under the Convention."

18 The Tribunal did not accept that the applicants would face any serious difficulty with the Iranian authorities upon their return to Iran. And as to the act of applying for asylum abroad, the country information suggested that this was not, in itself, an offence and not much more than verbal harassment would occur unless the asylum seeker had an opposition political profile which the Tribunal did not consider the applicant or his wife to have. In its last paragraph before stating its formal finding, the Tribunal said:

"Having given this matter the closest consideration, the Tribunal is not satisfied, on the evidence, that the Applicants have a genuine fear of persecution on return to Iran. The Tribunal is also not satisfied that there is a real chance of persecution occurring for a Convention reason. In the circumstances, the Tribunal is not satisfied that the Applicants have a well-founded fear of persecution under the Convention."

The Applicant's Submissions

19 The applicant appeared on his own behalf on the hearing of the review before this Court. He began by saying that the Tribunal had disregarded the important fact that he had married a non-Muslim. He said that according to the reports that his legal representative had provided, if a Muslim marries a Sabae or Sabaean in Iran, unless that person converts to Islam first, their marriage is not considered as official and cannot be registered. If the authorities find out about such a marriage, the people concerned will be in trouble and especially the non-Muslim woman. Her punishment, according to Islamic rules in Iran, would be to be stoned. The applicant asserted his belief that the decision made by the Tribunal did not consider all the facts and that both he and his wife had been persecuted in Iran for sixteen years. He referred to country information sent to the Tribunal and asked why the Tribunal did not accept those reports. He said also that the Tribunal failed to consider the suffering and pressure the family was under "... because a human being is a social creation and they need to be in contact with other people in society".

20 He then said that the Tribunal unjustly dealt with the question of his children. He did not know where the Tribunal member obtained information that in birth certificates in Iran people's religion is mentioned. He said this was information he did not know about. He said the Tribunal member said that under Iranian birth certificates the person's religion is mentioned. In his childrens' birth certificate their religion had been mentioned as Muslim and on that basis it was asserted that they had no problems at school. I was asked to infer that the Tribunal member made a decision based on wrong information.

21 Turning to the Abadan incident and the alleged filming of himself at the protest, he said in effect that the Iranian government would treat people badly on the provocation of the "slightest opposition to the government". If he were to be arrested they would find out about his marriage to a non-Muslim and they would apply, according to Islamic rule, the relevant punishment.

22 In connection with his passport, he said he had explained to the Tribunal member that they obtained his wife's passport by paying bribes. He already had his own passport at the time. But he had not mentioned his wife's name in his birth certificate nor was his name mentioned on hers as his spouse. They did not have an official marriage certificate. As a result in his passport he was concerned as a single person. They had to pay a bribe for his wife's passport and that meant they had an illegal departure.

Conclusion

23 All of the arguments that were put by the applicant went to the merits of the decision. No ground of review was disclosed, nor can I discern any reviewable error. In the circumstances the application must be dismissed.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Acting Associate:

Dated: 30 May 2002

	The applicant appeared on his own behalf.
Counsel for the Respondent:	Ms LB Price
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 April 2002
Date of Judgment:	30 May 2002