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Federal Court of Australia |
Last Updated: 22 April 2002
W68/01A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
W 68 OF 2001
LEE J
25 FEBRUARY 2002
PERTH
IN THE FEDERAL COURT OF AUSTRALIA |
|
WESTERN AUSTRALIA DISTRICT REGISTRY |
W 68 OF 2001 |
BETWEEN: |
W68/01A APPLICANT |
AND: |
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT |
JUDGE: |
LEE J |
DATE: |
25 FEBRUARY 2002 |
PLACE: |
PERTH |
In the Reasons for Judgment of his Honour Justice Lee delivered 25 February 2002, add the following to the end of [9]: "That reservation was withdrawn by Australia on 1 December 1967."
Associate:
Dated: 19 April 2002
MIGRATION - protection visa - application for review of decision of Refugee Review Tribunal - applicant exposed corruption in government agency in Iran and converted to Christianity after arrival in Australia - whether applicant faced a real risk of persecution if returned to Iran
Migration Act 1958 (Cth) ss 5, 36(2), 65, 476
Refugees Convention
Refugees Protocol
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 at [10] applied
Bastanipour v Immigration and Naturalization Service 980 F.2d 1129 (7th Cir. 1992) at 1133 cited
Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [83] cited
Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ 11; [2000] 3 All ER 449 at 469-470 cited
Minister for Immigration & Multicultural Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 575-576 referred to
Minister for Immigration & Multicultural Affairs v Y [1998] FCA 515 cited
V v The Minister for Immigration & Multicultural Affairs [1999] FCA 428; (1999) 92 FCR 355
at [32] - [33] referred to
Saliba v Minister for Ethnic Affairs (1998) 159 ALR 247 at 257 referred to
C v Minister for Immigration & Multicultural Affairs [1999] FCA 1430; (1999) 94 FCR 366 at [20] - [24] referred to
Hussain Islamic Law and Society: an introduction The Federation Press 1999
W68/01A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
W 68 OF 2001
LEE J
25 FEBRUARY 2002
PERTH
IN THE FEDERAL COURT OF AUSTRALIA |
|
WESTERN AUSTRALIA DISTRICT REGISTRY |
BETWEEN: |
W68/01A APPLICANT |
AND: |
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT |
JUDGE: |
LEE J |
DATE OF ORDER: |
25 FEBRUARY 2002 |
WHERE MADE: |
PERTH |
1. The decision of the Tribunal be set aside and the matter remitted to the Tribunal for redetermination.
2. The respondent pay the applicant's costs.
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 |
W 68 OF 2001 |
BETWEEN: |
W68/01A APPLICANT |
AND: |
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT |
JUDGE: |
LEE J |
DATE: |
25 FEBRUARY 2002 |
PLACE: |
PERTH |
1 This is an application under s 476 of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming a decision of a delegate of the respondent ("the Minister") that the applicant not be granted a "protection visa".
2 On 1 June 2000 the applicant, an Iranian national (29), entered Australia's "migration zone" by landing on Ashmore Reef. Under ss 13 and 14 of the Act, the applicant became an "unlawful non-citizen" upon entry. Pursuant to ss 189 and 196 of the Act, the applicant was placed in "immigration detention" and has remained there ever since.
3 On 20 October 2000 the applicant applied for a protection visa. Grant of the visa was refused by the delegate of the Minister on 8 December 2000. On 13 December 2000 the applicant applied to the Tribunal for review of the Minister's decision. The Tribunal made its decision on 5 March 2001.
4 Under s 65 of the Act, if the Minister is satisfied that, inter alia, the criteria for a visa prescribed by the Act have been satisfied, the Minister is to grant the visa, but if the Minister is not so satisfied, the grant of the visa is to be refused.
5 At material times, s 36(2) of the Act provided the following criterion in respect of a protection visa:
"A criterion for a protection visa is that the 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."
6 In s 5 of the Act, "Refugees Convention" and "Refugees Protocol" (together referred to hereafter as "the Convention") are defined respectively as "the Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and "the Protocol relating to the Status of Refugees done at New York on 31 January 1967". The term "protection obligations" is not defined in the Act and is not a term used in the Convention.
7 The Convention is a treaty pursuant to which the "Contracting States" agree to apply the provisions of the Convention to "refugees". Sub-Article 1(A) of the Convention provides the following definition of "refugee":
"For the purposes of the present Convention, the term "refugee" shall apply to any person who:...(2)...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 the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country;..."
8 Exceptions to, or cessation of, the operation of the Convention definition of refugee are set out in, inter alia, sub-Articles 1(C), (D), (E) and (F). It was not contended that any of the foregoing sub-Articles applied to the applicant.
9 As a Contracting State, Australia has the obligations imposed on Contracting States by the Convention, save for the obligations set out in Article 32, which, by a statement of reservation, Australia declined to accept when it acceded to the Convention on 22 January 1954.
10 Numerous obligations in respect of refugees are set out in the Convention, including an undertaking by a Contracting State not to discriminate against a refugee, and to offer a refugee some of the opportunities available to a national of that State. All such obligations may come within a broad meaning of "protection obligations" but in s 36(2) that term may be taken to have a meaning limited to the direct obligation to protect a refugee that Australia has accepted as a Contracting State, namely, not to penalize, or restrict the movement of, a refugee who has entered Australia without authority, having come directly from a territory where the life or freedom of that person was threatened for a Convention reason, and not to expel or return a refugee from Australia to the frontiers of territories where the life or freedom of the refugee would be so threatened.
11 The applicant's claim that he feared persecution if returned to Iran was, in part, based on events that the applicant claimed had occurred in Iran before his departure and, in part, on events that had occurred in Australia since his arrival in this country.
12 The applicant is a civil engineer. When interviewed by an officer of the Minister's department upon arrival in Australia, the applicant was asked why he had left Iran to which he replied that he had "a lot of problems regarding my job and social problems". He said his main reason was the "social problems". He recited an incident that had occurred about four months before he left Iran when he had been apprehended by a "searching unit" of "disciplinary forces" and falsely accused of being in possession of an offensive video film. He was taken to a police station and held overnight in a lock-up. He had been released after the film had been inspected by a court.
13 With regard to employment difficulties, the applicant said he could not accept the corruption and injustice that surrounded him at his place of work.
14 With the assistance of a migration agent, the applicant, in October 2000, made more detailed submissions in support of the application for a protection visa. In that account the applicant explained why he had become disillusioned with the Islam religion and had become interested in other religions. He said he had been to a Catholic Church on about three occasions to watch ceremonies from a distance. He was curious to know more about that religion. He had received a letter from the mosque at the place where he lived advising that he had been observed going to the church and warning him that turning his back on Islam would be considered a crime, and that converting from Islam was punishable by death. He had stopped going to the church when his mother begged him not to do so.
15 With regard to the matter of corruption, the applicant stated that he was employed by a government department to supervise a building project being constructed for that department by a contractor that was an arm of the security service, Sepah Pasdaran. In the course of his duties, the applicant discovered that fraudulent invoices had been rendered by the contractor and by a consultant to the contractor. The applicant had disclosed the nature and extent of the fraud to the head office of his employer. The applicant claimed that not long after he had made that complaint he was apprehended and assaulted by three unknown people, and was informed that he was disputing "Security" who could kill him at any time. He was warned to stop causing trouble on the project.
16 Some time later, when work was suspended for a "Feast holiday", the applicant prepared a full report on the conduct of the contractor and the consultant and forwarded it to his employer. He then left his place of employment and went into hiding with relatives. After two days his mother had contacted him and told him that people had come to the house and searched it and said that they would find him wherever he was. His mother advised him to get out of Iran as soon as possible. Within four days the applicant obtained a ticket for a flight out of Iran and took the chance that his name would not be on the list of people prohibited from leaving the country.
17 The Tribunal accepted that the applicant had acted as claimed in exposing corruption and did not reject his claims that he had suffered harm as a result. Indeed, the Tribunal appeared to accept that the applicant was at risk of suffering further harm if returned to Iran.
18 Included in the material before the Tribunal was a letter from Reverend Fabb, a Minister of the Uniting Church. That letter stated that Reverend Fabb had met the applicant in early November 2000 and the applicant had stated that he wished to convert to Christianity and be baptised. As a result, the applicant had undertaken three months instruction in the Christian faith through a correspondence course and had successfully completed his lessons.
19 On 28 January 2001 the applicant had been baptised as a Christian. Reverend Fabb gave evidence to the Tribunal that based on her enquiries, she had the greatest confidence that the applicant had become a genuine follower of the Christian faith. She was a regular visitor to the detention centre and had noted that "Iranian converts" were the victims of ongoing verbal abuse, harassment and threats from Muslims at the detention centre.
20 With regard to the applicant's conversion to Christianity and his claim to fear persecution because of his apostasy, the Tribunal said as follows:
"I accept the evidence from the Reverend Fabb, and from [the applicant] himself, that he has been baptised as a Christian since his arrival at the detention centre in Port Hedland.It may be that [the applicant] is being truthful when he claims that he had Christian friends in Iran and visited a church there. However he does not claim to have had a well-founded fear of persecution because of this at the time he left Iran. He claims to have converted to Christianity since his arrival in Australia, and that this gives rise to a well-founded fear of Convention-related persecution. While I accept that he has been baptised as a Christian since his arrival in Australia I must consider whether this has arisen from a genuinely-held change in his religious beliefs. That issue is relevant because it will influence how he intends to express his religious views (if at all) if he re-enters Iran, how he might be perceived and whether, as a consequence of that perception, he might have a well-founded fear of Convention-related persecution.
In Woudneh v MILGEA (unreported, Federal Court of Australia, Gray J, 16 September 1988) the applicant (in that case an Ethiopian) had become a born again Christian since his arrival in Australia. He feared imprisonment without trial if he were returned to his country of nationality, partly for reasons of religion, and that he would be precluded from practising his born again religion there. The primary decision-maker decided that his fear of religious persecution on return was unwarranted as his conversion had occurred in Australia and would not be known to his country's authorities. However, the Court held that, in the absence of any evidence that he could conceal his faith consistently with practising it, it was not open to conclude he would not be persecuted if returned. Moreover:
[t]he mere fact of the necessity to conceal would amount to support for the proposition that the applicant had a well-founded fear of persecution on religious grounds (per Gray J at 19).
[The applicant] did not refer to his interest in Christianity or his difficulties arising from it when he was first interviewed, soon after his arrival in Australia (10 June 2000). He has explained that this was because it was just an `inside feeling' then. In his written statement to the Department of 12 October 2000, a document eight pages (forty eight paragraphs) in length, he referred in only one paragraph to `thinking of other religions' and being `curious to know more about' the religion conducted in a church. He expressed no interest in or intention of converting to Christianity in that statement. His failure to do so in an otherwise comprehensive and detailed account of his claims is not consistent with his claim to Reverend Fabb only three weeks later that he had decided to convert to Christianity while still in Iran. I also have regard to the fact that he was interviewed by a Departmental officer about his protection visa claims on 24 October 2000, and that it was less than two weeks after this that he told Reverend Fabb he wished to convert. The independent evidence cited above indicates that Christians, and particularly converts from Islam, face various forms of discrimination (in some cases very serious) in Iran. [The applicant's] own evidence indicates that he was well aware of this discrimination before he left Iran. It is open to me to infer from this that [the applicant] belatedly decided to express a wish to convert to Christianity in order to enhance his claims to be a refugee, rather than as a result of religious feeling. I note his own evidence that he did not tell his Muslim family that he was interested in Christianity while he was in Iran and that he has not told them even now that he has converted. I am not satisfied that [the applicant] intends to be a practicing [sic] Christian if he returns to Iran, and am of the view that he has greatly exaggerated his level of commitment to attend church, to proselytise and to Christianity. Therefore I am satisfied that there would be no necessity for him to conceal a Christian faith, a necessity which, in a genuine convert, might give rise to a well-founded fear of persecution."
21 The foregoing reasons show that the Tribunal was not satisfied by the material before it that it could state affirmatively that the applicant had made a genuine conversion to Christianity. The Tribunal did not find that the applicant had made a fraudulent pretence of such a conversion and, indeed, that proposition was not put to the applicant. With regard to Reverend Fabb's evidence to the Tribunal that she had been particularly impressed by the applicant's sincerity and had no doubt about the genuineness of his faith, the Tribunal made no adverse comment on the witness or her testimony. Insofar as the Tribunal said it was not satisfied on the "genuineness" of the applicant's conversion, it based its reluctance on what the Tribunal perceived to be a failure by the applicant to take the opportunity in the statement prepared in support of his application for a protection visa to state that whilst in Iran he had an interest in, or intention of, converting to Christianity, and his failure to tell his family that he was interested in Christianity or had converted. Another mind examining the relevant paragraphs of the applicant's statement may have thought that little, if any, foundation was provided therein for hesitation as to the "genuineness" of the applicant's conversion.
22 The relevant paragraphs of the applicant's statement read as follows:
"At the beginning [of my employment] everything seem[ed] to be all right but after while problems started. These included:1. Objections to me shaving my beard and moustache
2. Objection to wearing short sleeves and colorful clothes
3. Compulsory daily prayer
4. Compulsory participation in the local Basijilis group and their political activities
I did not participate in any of the above as my opinion was different and I wanted to be free. I was questioned few times why I do not join the daily prayer but I did not pay any attention to these questions. I remembered the situation of my cousin and the way they treated her. I hated the regime and I was disgusted when I saw how they used Islam and religion and eventually this made me hate Islam as well.
I was thinking of other religions and I went to a church for about three times to watch their ceremonies from distance. I was curious to know more about this religion. But this caused me some problems as I received a letter from the mosque where I lived that I had been seen going to the church and they warned me that turning my back to Islam was considered as a crime and if I do the same they will treat me by the law. They threatened to kill me as they mentioned that in Islam whoever converts from Islam to any other religion is punishable by death. I stopped going to the church as my mother begged me not to do so."
23 With regard to the failure of the applicant to tell "his Muslim family" that he was interested in Christianity whilst in Iran, or to tell them that he had converted whilst in Australia, again another mind may have thought that provided little cause not to be satisfied as to the "genuineness" of the applicant's claim of conversion, the applicant having provided an explanation to the Tribunal that was not rejected, namely, that he had not disclosed his actions to his family because, as Muslims, they would not accept it.
24 In any event the Tribunal purported to consider whether, notwithstanding the absence of a positive finding by the Tribunal that the applicant was a "genuine" convert to Christianity, the applicant, if returned to Iran, may be perceived by Iranian authorities to be an apostate. In that regard the Tribunal said as follows:
"I have also considered whether, despite my finding that [the applicant] is not a genuine convert to Christianity, he might be perceived as one in Iran. [The applicant] claimed that information had been sent to Iran by fellow detainees at the Port Hedland detention centre that he and other detainees had converted to Christianity. However he later conceded that it was possible that this was just a rumour, and had not occurred. I have considered his adviser's submission that there is no guarantee that news of his conversion has not been leaked to Iran. That is true. However it appears that there is nothing more than a rumour on which to base a conclusion that it has been leaked, nor any evidence at all that (even if it was) such information was passed to anyone who might be motivated to harm [the applicant] because of it and was in a position to do so. In the absence of any more convincing evidence that [the applicant] has been identified by other detainees to the Iranian authorities as a person who has converted to Christianity in Australia, I cannot be satisfied that this has occurred.[The applicant] has also claimed that he was told that an arrest warrant was issued for him at least four days before he left Iran, and initially stated at the hearing that it was issued because of his apostasy. He later claimed that the `real reason' it was issued was because he had exposed embezzlement. Even if I accept that there was an arrest warrant, I have regard to his own evidence at the hearing that his family was not told the charge to which it related. Therefore his claim that it was either because he was an apostate or because he exposed embezzlement is no more than speculation, and I cannot be satisfied that it was because he was believed to be an apostate."
25 Counsel for the applicant submitted that the Tribunal erred in the manner in which it determined this issue, thereby providing ground for review of the Tribunal's decision under s 476(1) of the Act.
26 The Tribunal accepted that "converts from Islam, face various forms of discrimination (in some cases very serious) in Iran" and that the "necessity [for] a genuine convert [to conceal a Christian faith] might give rise to a well-founded fear of persecution". Therefore, the Tribunal had to consider whether a real risk of persecution arose as a result of the applicant having undergone baptism as a Christian. The Tribunal accepted that it was possible that news of the applicant's conversion to Christianity had been "leaked to Iran". The Tribunal appeared to consider, however, that unless the Tribunal was satisfied positively that such an event had occurred, the Tribunal was not required to assess whether the applicant faced a risk of persecution in that regard and, therefore, whether the applicant's fear of persecution could be said to be well-founded. As discussed below, that approach did not comply with the decision-making obligation imposed on the Tribunal by the Act.
27 Further, it may be said that, in assessing the degree of risk of persecution facing the applicant, the Tribunal failed to recognise the materiality of, and the requirement to consider, the prospect that a warrant for the arrest of the applicant had been issued several days before the applicant left Iran. The Tribunal did not find that the warrant had not issued. It said that the ground for issue of the warrant was "no more than speculation" and that the Tribunal could not be "satisfied that it was because [the applicant] was believed to be an apostate".
28 Putting to one side whether the Tribunal misunderstood the issue raised by the applicant's claim that the real reason for the issue of a warrant alleging apostasy was to neutralise the attempt of the applicant to expose fraudulent conduct involving persons in authority, the Tribunal appeared to be of the opinion that, unless it found positively that the warrant alleged apostasy on the part of the applicant, the Tribunal was not obliged to consider whether any risk of persecution confronted the applicant by reason of the issue of the warrant. It may be said that whatever ground was relied upon by Iranian authorities for the issue of the warrant, in the light of the Tribunal's acceptance of the balance of the applicant's claim that he had exposed corruption and was the target of retaliatory action thereafter, the issue of a warrant against the applicant was likely to be a significant factor in assessing whether a real risk of persecution faced the applicant if he returned to Iran. The issue of a warrant would involve the use of the machinery of the State against the applicant and suggest that, under the authority of the State, prejudicial action may be taken against him. That would raise the prospect that such action had been taken for reason of imputed political opinion and could not be characterised as an act by individuals in revenge for the exposure of their corrupt activities.
29 The Tribunal dealt with the point in the following manner in its reasons:
"I accept that corrupt figures within the Dez Ab company may wish to take some sort of revenge on [the applicant] for exposing corruption within the firm, and that their wish to do so may be shared by pasdars in Ahwaz who participated in their corrupt activities. As I have found that no arrest warrant had been issued for [the applicant] when he left Iran, I doubt that he may face trial on trumped up charges in the reasonably foreseeable future, based on allegations made by these people about his religious or political views..."
As noted above, the Tribunal had not made a positive finding that a warrant for the arrest of the applicant had not issued. The reference to an earlier "finding" that no arrest warrant had been issued was, at best, a reference to the failure of the Tribunal to be satisfied that such a warrant had issued.
30 In addition to the foregoing, counsel for the applicant submitted that the Tribunal had before it other information not addressed by the Tribunal, being material relevant to assessing the risk that the applicant may be perceived by Iranian authorities to be an apostate and suffer harm as a consequence. The applicant had presented to the Tribunal a letter to the applicant from his brother in Iran, a translation of which stated that "Basij forces" came repeatedly to the applicant's home after his departure from Iran and alleged that the applicant was "murtad", (i.e. an apostate).
31 Such information was relevant not only to the reality of the risk that Iranian authorities would perceive the applicant to be an apostate, but also to the reality of the risk that, in the applicant's case, action of a persecutory nature would be taken in respect of that perception. The reasons of the Tribunal do not refer to the letter and it must be assumed that the letter and its ramifications were not considered. (Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 per Gleeson CJ at [10]).
32 Apostasy involves abandonment of belief in Islam. Formal conversion to another religion is not a requirement. An apostate may be an atheist who has rejected Islam. (See: Hussain Islamic Law and Society: an introduction The Federation Press 1999 at p.138.) The Tribunal acknowledged that in Iran apostasy is a capital offence and, for an apostate, the risk of extreme punishment will always exist.
33 The Tribunal, however, limited its consideration of whether the applicant had a well-founded fear of persecution by reason of his claim of apostasy to the question whether the applicant had made a true conversion from Islam to a Christian religion. The real question was whether there was a risk that the enforcers of Shariah law in Iran could treat the applicant as a person who had abandoned Islam. In that regard a material consideration would be whether there were any indicia of apostasy that would damn the applicant as an apostate in the eyes of an Iranian religious Judge. In the applicant's case such a circumstance existed in that the applicant had been baptised, thereby overtly renouncing Islam.
34 Insofar as the Tribunal considered whether there was such a risk, the Tribunal purported to determine that unless the Tribunal was satisfied that at the time of the decision the Iranian authorities were aware that the applicant had converted to Christianity in Australia, the applicant's fear of future persecution could not be well-founded.
35 Perhaps a person who has committed a capital offence of apostasy under Iranian law may be fortunate enough to escape the consequence of that conduct if returned to Iran, but, as the Tribunal acknowledged, the risk of discovery, apprehension and punishment would continue and it may be sufficient to ground a well-founded fear of persecution. (See: Bastanipour v Immigration and Naturalization Service 980 F.2d 1129 (7th Cir. 1992) at 1133.) Furthermore, the persecution feared, of course, is not restricted to execution and may include the suffering of substantial harm or interference with life by way of deprivation of liberty, assaults and continuing harassment on account of the perceived apostasy.
36 Whether the applicant had committed himself in mind and body to a conversion to Christianity was a relevant matter for the Tribunal to consider in assessing whether there was a risk that the applicant may be persecuted in future by reason of the observance by him in Iran of his religious beliefs, but an assessment of the degree of commitment to conversion would not determine the extent of the risk to persecution. As the United States Court of Appeals (7th Circuit) said in Bastanipour at 1132, a case involving an Iranian who had renounced Islam and, although not baptised, had satisfied witnesses whose evidence was not rejected, that he believed in Christianity rather than Islam:
"Whether Bastanipour believes the tenets of Christianity in his heart of hearts or, as hinted but not found by the Board, is acting opportunistically (though at great risk to himself) in the hope of staving off deportation would not, we imagine, matter to an Iranian religious judge."
37 Counsel for the Minister submitted that the Tribunal was "unsatisfied" by the evidence before it and was entitled so to be, but, even if that be so, the submission does not confront the substance of the ground adumbrated by the applicant.
38 In determining whether the applicant's fear that he would suffer persecution if returned to Iran was well-founded, the Tribunal had to look at all matters relevant thereto and ask itself whether there was a real risk that such persecution may occur. Notwithstanding that the Tribunal may not have been persuaded that past facts relied upon by the applicant as the grounds for his fear of persecution had occurred, as claimed by the applicant, an assessment of the degree of risk of persecution facing the applicant in future had to take those claims of past events into account. That is to say, the Tribunal could not exclude relevant matters from its consideration.
39 As Gleeson CJ and McHugh J stated in Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [83], the fact that an applicant:
"...might fail to make out an affirmative case in respect of one or more of the above steps did not necessarily mean that [the] claim for refugee status must fail. As [Minister for Immigration & Multicultural Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 575-576] makes clear, even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution. The Tribunal `must take into account the chance that the applicant was so [persecuted] when determining whether there is a well-founded fear of future persecution' [Guo at 576]."
40 As stated by Brooke LJ, with whom Robert Walker LJ concurred, in Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ 11; [2000] 3 All ER 449 at 469-470:
"For the reasons much more fully explained in the Australian cases, when considering whether there is [a real risk] of persecution for a convention reason if an asylum-seeker is returned, it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision-maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur."
41 Of course, if by reason of patent inconsistencies or dishonest statements in an applicant's account, the Tribunal forms a positive view that the applicant is not a credible witness in respect of claimed events, the Tribunal is not bound, as it otherwise would be, to consider whether, if those events had occurred as claimed, there was a real chance that the persecutory events feared by the applicant may occur in the future. (See: Abebe per Gleeson CJ and McHugh J at [85]; Guo per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ at 576).
42 As noted above, this was not such a case. The Tribunal did not find that the applicant was dishonest or untrustworthy and, indeed, accepted most of the applicant's account.
43 Counsel for the applicant also submitted that the Tribunal erred in concluding that the risk of harm facing the applicant in Iran, by reason of the exposure by him of corruption in a government agency, could not be harm inflicted for political opinion.
44 The applicant had claimed that his disclosure of corruption would be seen as a political act because it would be seen as criticism of the regime.
45 The Tribunal's reasons read as follows:
"I am satisfied that [the applicant] has exposed to a government department the details of corrupt activities by particular members of the security forces in Ahwaz and a private firm. However [the applicant] has not claimed that the type of corrupt behaviour he exposed so permeated government as to be part of its very fabric. If he had believed that it was, it is unlikely that [the applicant] would have made a report about the corruption to a government department. [The applicant] has also given evidence to the Tribunal that he expected that government department to deal with the corrupt activities by dismissing some or all of the people involved, or replacing the `whole system'. In other words, from his knowledge of that department, it would take appropriately vigorous steps to end the corruption. I am satisfied, and so find, that this signifies that the corrupt behaviour exposed by [the applicant] did not permeate the government, and was not part of its `very fabric'. Thus his act in exposing corruption would not be regarded by the Iranian authorities as an expression of a political opinion which should be silenced by persecutory treatment.I accept that corrupt figures within the Dez Ab company may wish to take some sort of revenge on [the applicant] for exposing corruption within the firm, and that their wish to do so may be shared by pasdars in Ahwaz who participated in their corrupt activities. As I have found that no arrest warrant had been issued for [the applicant] when he left Iran, I doubt that he may face trial on trumped up charges in the reasonably foreseeable future, based on allegations made by these people about his religious or political views. In any case, his evidence to this Tribunal made quite clear that the corrupt individuals do not want to harm him, in reality, because of any particular political or religious opinion imputed to him, but want to take revenge on him for exposing their activities. Even if they were aware that [the applicant] had re-entered Iran, and were able to locate and harm him, I am not satisfied that their actions might be for any of the Convention reasons."
46 Authoritative material before the Tribunal informed the Tribunal that Sepah Pasdaran forms part of the governing authority of Iran. It is a military force, known as the Islamic Revolutionary Guards Corps, responsible for internal security and upholding the revolutionary ideals of the regime. It constitutes part of the apparatus of the State at the highest level. It is an instrument of State power. A person who alleged impropriety in that organisation may be perceived as a person whose challenge to the authority of that organ of State was inspired by political opinion.
47 The Tribunal stated that unless the corruption of an arm of State was part of the "very fabric" of government, exposure of that corruption could not be seen by a State authority as an expression of political opinion. The Tribunal appeared to conclude that unless the corrupt behaviour exposed by the applicant "permeated the government", the risk of serious harm facing the applicant would not be in respect of harm to be inflicted for imputed political opinion.
48 Where, as in Iran, broad powers are vested in a body such as Sepah Pasdaran for the purpose of preserving a political system, the use of such powers, however used and wherever directed, may be regarded as an exercise undertaken for the protection of the "revolution". Exposure of corruption of persons able to exercise that power may be regarded as a challenge to the authority of the Iranian State, reflecting a political opinion hostile to the regime.
49 The proper question to be determined in such a circumstance will be whether the State is unwilling or unable to protect the applicant from harm at the hands of those in a position of power whose conduct has been challenged by the disclosures of the applicant.
50 The Tribunal appears to have treated criminal acts of revenge and acts of persecution for reason of political opinion as mutually exclusive. As noted above, the Tribunal was obliged to determine whether the applicant faced harm from officers of a State apparatus who habitually exercised arbitrary powers and to whom the acts of the applicant may be perceived as a challenge to their power and authority.
51 The fact that the report by the applicant of the corruption of security personnel brought no control by the State of the persons identified, reflected the extent of the power that such officers would seek to protect, and raised squarely before the Tribunal whether the accepted fear of harm held by the applicant was a fear of harm inflicted for political opinion. As in Minister for Immigration & Multicultural Affairs v Y [1998] FCA 515, a case referred to by the Tribunal in its reasons, the criminal acts of revenge that occurred in that case, after the applicant had complained to appropriate authorities in respect of police conduct, were capable of being regarded as persecution for political opinion where the acts were carried out in response to a challenge to the power of a State authority as exercised by individuals, albeit a power of the State that had been abused.
52 Clearly, the act of the applicant could have been seen as an expression of opposition to a regime that allowed such corruption to flourish or that was unable to extirpate it by reason of the extent of the power exercisable by those engaging in the corrupt acts. (See: V v The Minister for Immigration & Multicultural Affairs [1999] FCA 428; (1999) 92 FCR 355 per Hill J at [32] - [33]; Saliba v Minister for Ethnic Affairs (1998) 159 ALR 247 per Sackville J at 257; C v Minister for Immigration & Multicultural Affairs [1999] FCA 1430; (1999) 94 FCR 366 per Wilcox J at [20] - [24].)
53 The Tribunal misunderstood the question it had to address by misdirecting itself that persecution for political opinion could not follow from the exposure of corruption of an organ of State unless it could be shown that such corruption was endemic to the operation of government. The question that had to be answered was whether the exposure of corruption of an organ of State could be perceived by those exercising broad powers as a challenge to State authority and as an act inspired by political opinion.
54 That, of course, was a question of fact involving consideration of the position of the State organ in the hierarchy of State power, the degree of immunity from scrutiny or control and the extent of the powers exercisable without accountability. The fact that harmful conduct by officers of a State authority, carried out in an attempt to silence the applicant, may be criminal, would not mean that such conduct could not, at the same time, be conduct designed to maintain the political "status quo". As Wilcox J stated in V at [17], there is no dichotomy between criminal activity and persecution.
55 For the foregoing reasons, the decision of the Tribunal involved an error of law in the making of the decision by reason of the Tribunal failing to interpret the relevant law correctly and, thereby, failing to determine according to law whether Australia has "protection obligations" to the applicant. Alternatively, a jurisdictional error occurred when the Tribunal failed to have regard to the correct question or, in determining such a question, failed to take into account considerations relevant to that deliberation. It follows that ground for review has been established under s 476(1)(b), (c) or (e) of the Act. (See: Yusuf per Gleeson CJ at [10], McHugh, Gummow, Hayne JJ at [76]-[83]).
56 The decision of the Tribunal must be set aside and the matter returned to the Tribunal for redetermination.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. |
Associate:
Dated: 25 February 2002
Counsel for the Applicant: |
R E Lindsay (pro bono publico) |
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Solicitor for the Applicant: |
Sally Gaunt & Associates (pro bono publico) |
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Counsel for the Respondent: |
A A Jenshel |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
12 September 2001 |
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Date of Judgment: |
25 February 2002 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2002/148.html