FEDERAL COURT OF AUSTRALIA Chehaily-Soby v Minister for Immigration & Multicultural Affairs [2001] FCA 880 IMMIGRATION - refugees – protection visa – widow with children – Iranian national – member of Sabean sect – claimed persecution – sexual harassment by Muslim teacher – persecution of son – absence of protection from government authorities – disbelief of claims by Tribunal – in any event relocation reasonable – case turned on credibility findings – no ground of review – humanitarian considerations – not relevant to grant of protection visa – application dismissed. Migration Act 1958 (Cth) Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437 cited Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 cited YASAMIN CHEHAILY-SOBY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W95 OF 2001 FRENCH J 4 JULY 2001 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W95 OF 2001 BETWEEN: YASAMIN CHEHAILY-SOBY APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: French J DATE OF ORDER: 4 July 2001 WHERE MADE: PERTH THE COURT ORDERS THAT: The application be dismissed with 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 W95 OF 2001 BETWEEN: YASAMIN CHEHAILY-SOBY APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: French J DATE: 4 July 2001 PLACE: PERTH REASONS FOR JUDGMENT Introduction 1 The applicant is a citizen of Iran who arrived in Australia on 20 June 2000 without authorisation on a boat from Indonesia. On 23 July an application was lodged for her and her children for the issue of protection class XA visas with the Department of Immigration and Multicultural Affairs, that is to say, visas granted on the basis that their recipients are entitled to the benefit of Australia's protection obligations under the Refugee Convention. A delegate of the Minister refused the grant of the visas on 21 December and subsequently an application was made to the Refugee Review Tribunal for review of the delegate's decision. On 26 March, the Tribunal affirmed the decision not to grant protection visas. An application was made to this Court on 3 April for an order of review of the Tribunal's decision under Part 8 of the Migration Act 1958 (Cth). The Tribunal's Findings 2 The claims and evidence relied upon by the applicant are set out extensively in the Tribunal's reasons for decision. I do not propose to canvass them. The relevant considerations for the purposes of this case are based upon the findings of fact made by the Tribunal which of themselves are not open to review in these proceedings. By way of background, however, and it does not appear to be controverted, the applicant was born in Khoramshahr, Iran. Her family went to Qatar when she was three or four years old. She returned to Iran at the age of 18. She met her husband in Qatar and they married in Iran. She does not have residency in Qatar. Ten years ago her husband, who was Iranian, died of a heart attack. She has not remarried. Her mother is living in Sydney and she also has siblings, including a sister, living in Australia. 3 The substance of the applicant's claim for a protection visa is based upon her membership of a minority religion within Iran. She is a Sabean, which is a sect that focuses on St John the Baptist. It is, I think, referred to in the papers as a pre-Christian sect. It was described by an academic, Dr Buckley, from the Department of Religion at Bowdoin College in Brunswick in the United States of America, as an ancient pre-Islamic minority religion also known as the Mandaean religion which has fewer than 100,000 members worldwide based in Iran and Iraq. They originated in the Jordan area as ancient Baptists honouring John the Baptist. 4 After having reviewed at some length the various statements made from time to time by the applicant, a number of which were found to be demonstrably untrue, the Tribunal accepted that she is a member of the sect in Iran. It based that conclusion upon her name which has a reference to her religious affiliation. It examined her evidence given to the primary decision-maker and found that she had a demonstrated preparedness to tell untruths to further her claims. In making that finding, it considered her contention that she was pressured not to tell the truth by other people travelling on the boat to Australia but found that argument unconvincing as it was unclear why her lying would either help her claims or endanger other travellers. 5 The Tribunal considered her adviser's submission that there were problems with obtaining evidence at the initial interview due to her emotional state. While accepting that the situation was stressful, as it would be for any applicant, it found the evidence she gave to be quite detailed and not indicating that she was unable to state her case. As to her evidence to the Tribunal, the Tribunal found her to be "evasive and unconvincing at the hearing". These broad-brush statements do not descend to particularity. They were apparently a reference to her manner of answering questions. However, there was ample basis for the Tribunal to be concerned about her credibility from the content of the material and testimony which at various times she had proffered. 6 The Tribunal considered a draft statement which had been tendered on behalf of the applicant and which she did not wish to further amend. It also made reference to contentions in that statement about her treatment by a religious Islamic teacher of her son in the town of Ahwaz. The teacher had allegedly made advances to her, had told her he liked her and wanted to marry her because his wife was sick, had said to her that it had been years since he had made love and that he wished to satisfy himself with her. Despite her complaints to the Education Department he continued to harass her and, on her account, demanded that she become Muslim and marry him, otherwise he would destroy her and she would suffer for the rest of her life because he had connections with the Sepah. Sepah is the Sepah Pasdaran or Islamic Revolutionary Guards Corps. 7 In her statement the applicant also alleged that the teacher harassed her son denigrating him in front of the other students in his class by referring to his religious affiliation and using a term of contempt for non-believers, which term was "najes". According to her statement, her son was told to get out of the class "until your mother gives me a positive answer". Although her son went and reported the matter to the principal, the principal allegedly said, "Yes, he is right, you are najes", and supported the teacher. Other incidents, including the alleged abduction of her son for a period of twenty-four hours, were set out in the statement. 8 The Tribunal said they had considered what she had said about the teacher in her statement and in her oral evidence, but in the light of its inability to accept her credibility it could not be satisfied by her evidence as to the veracity of her claims that her son was abducted in an attempt to convert him, that she had been pressured by the teacher to convert and marry him, that the teacher was a member of the Sepah or that she was dismissed from her employment because she is Sabean and would not be able to find employment because of her religion. 9 The Tribunal had regard to independent country evidence which, it found, would provide no support for her assertions that she and her children would be subjected to pressure to convert, that Sabean people are not tolerated in Iranian society and that she would find it impossible to obtain any employment because she was a Sabean or a Sabean woman. It did accept independent evidence that as a member of a minority religion she would suffer some degree of hostility and social isolation. However, it found that any such harm was not a serious punishment or penalty or a detriment or disadvantage of such significant magnitude as to constitute persecution for the purposes of the Convention. In other words, the Tribunal rejected the factual base of the applicant's claim to be a person to whom Australia owed protection obligations as one with a well-founded fear of persecution by reason of her religion. The Tribunal went on and said that even if her claims that she was facing problems in Ahwaz were true, it was satisfied that it would be reasonable in the circumstances of her case for her to live elsewhere in Iran or to return to the town of Shiraz where she had formerly lived and in making that finding it was said the Tribunal remained unconvinced of her claim that alternate opportunities of employment elsewhere would not be open to her. 10 The Tribunal referred to the employment record the applicant had given in her primary application which indicated that she had been employed in Shiraz in a variety of occupations. These comprised an assembly job in the Radio Zemon's factory in Shiraz in January 1991 and then from January 1991 to January 1994 a job in a women's clothing factory in Shiraz. From January 1994 to January 1997 she was selling silver jewellery in her own shop and working as a hairdresser in Shiraz and then in November 1999 working for handicapped people in Shiraz. The latter was apparently a reference to a hospital job. 11 The Tribunal said that it found her reasons why none of these or other employment opportunities would still be available to her to be evasive and unconvincing given the variety of jobs in which she had been previously employed. Moreover, as previously noted, the independent evidence provided no support for her assertions. Her contention that, having been revealed as a Sabean, she would find relocation to Shiraz or another place impossible, was not supported by the independent evidence that Sabean people are in general tolerated in Iranian society and recognised by the Iranian state. 12 In making its finding with regard to relocation, the Tribunal said it had considered a submission by the applicant's representative relating to the difficulty of relocation by reference to what he termed her peculiarly fragile psychological state. The Tribunal found that relocation would, in fact, mean that she would no longer face the problems she had alleged occurred in Ahwaz and that it would thus assist her to re-establish her life as it had been before she moved to Ahwaz. 13 At the end of its reasons under the heading "Humanitarian considerations", the Tribunal said: The applicant's representative has put forward claims as to the poor psychological state of the applicant. The Tribunal further appreciates that the applicant is a single mother and member of a minority religion in an Islamic state. However the Tribunal's role is limited to determining whether an applicant satisfies the criteria for the grant of a protection visa. A consideration of the applicant's circumstances on humanitarian grounds is a matter solely within the Minister's discretion." Grounds of Review 14 The grounds upon which an order of review is sought are set out in the substituted application, the first of those being that the Tribunal erred in law in applying the test as to whether the applicant had a well-founded fear of persecution if returned to Iran in that the Tribunal was required, but failed to consider, the applicant's claims as a whole and cumulatively, namely, the applicant, both as a member of a minority religion and as a single mother in Iran, had a well-founded fear of persecution. 15 This ground was particularised in three respects: 1. The Tribunal acknowledged that the applicant was a member of a minority religion and accepted that the applicant was at risk of suffering some degree of hostility and social isolation for this reason, but determined that by itself this did not amount to persecution. 2. The Tribunal further acknowledged that the applicant was a single mother and acknowledged that might be a humanitarian factor in her favour. 3. The Tribunal failed to consider and determine whether the discrimination or persecution by reason of a Convention reason, namely, as a member of a social group, and therefore did not consider the disadvantages that the applicant might suffer for this reason as part of her claims. 16 The way this was put briefly in the written submissions was that the Tribunal accepted that as a Sabean, the applicant was subject to some discrimination, described by the Tribunal as some hostility and social isolation. It also accepted that being a single mother in an Islamic state might cause her problems but considered this only in the context of a humanitarian claim. The complaint, as submitted, was that the Tribunal failed to consider whether discrimination or harassment directed towards the applicant as a result of being a single mother in Iran could be persecution for a Convention reason, namely, persecution by reason of membership of a social group comprising single mothers and, alternatively, single mothers who are also members of a minority religion. 17 The case was never put on that basis to the Tribunal and it is plain that the reference under the heading "Humanitarian considerations" which I have already quoted, is to the applicant's status as a single mother as a factor in any humanitarian consideration that might be given to her application. The reference to her status as a widow with children was plainly relevant and no doubt still is relevant to the question whether there are humanitarian reasons for admitting her into this country. However, that reference was not made, in my opinion, on the basis that the Tribunal was identifying her as a member of a particular social group for the purposes of the Convention or that it was linking that status to any Convention-based persecution. There was nothing in the facts that the Tribunal found which would support such a characterisation. The alleged treatment that she received at the hands of the religious teacher, even if it were believed, which it was not, would not on the face of it amount to persecution for a Convention reason and there was nothing to say that she would not receive adequate protection from the state if a complaint were made. In any event, that was not an issue that was raised and, moreover, the primary evidence upon which that contention is now based, was not accepted by the Tribunal. It rejected various elements of her assertions about her treatment by the religious teacher. 18 So the issue was never before the Tribunal in the way that it is now raised and the facts found by the Tribunal do not give rise to that issue. The reference by the Tribunal to her status as a single mother under the heading "Humanitarian considerations" is relevant to those considerations and not relevant to any issue of eligibility for a protection visa by reason of refugee status. The reference to the membership of a minority religion in an Islamic state is no doubt linked to the earlier finding of the Tribunal that there would be some degree of hostility and social isolation by reason of that fact and that is also no doubt a factor to be considered along with her status as a widow with children in determining whether there are humanitarian reasons for admission to Australia. 19 As the Tribunal properly said, its role was limited to determining whether the applicant satisfied the criteria for the grant of a protection visa. And similarly, the role of this Court is limited to determining whether the Tribunal erred in the discharge of that function. For those reasons the first ground must fail. 20 The second ground of the application was expressed thus: "The Tribunal erred in law in applying the test as to whether the Applicant could reasonably relocate if returned to Iran. …" Although the Tribunal stated that it was reasonable for the applicant to relocate, the test actually applied by the Tribunal was whether the applicant was at risk of suffering persecution if she lived away from Ahwaz. At least the Tribunal was required to consider whether it was reasonable for a member of a civilian community and a single mother to be expected to live away from the community. 21 In the written submissions it was said that while the Tribunal had disbelieved her specific claims it did accept the possibility that they might be true and therefore correctly went on to consider whether it was reasonable for her to relocate away from Ahwaz. Let me interpolate at this point that I do not accept that characterisation of the Tribunal's findings. I do not think it did accept the possibility that they might be true. It was rather an unequivocal rejection of her claims and then a statement that said, in effect, even so she could have relocated. There is nothing, in my view, in the Tribunal's reasons from which to discern its acceptance of any risk of persecution which might support a well-founded fear. The reference to relocation is, in the true sense, hypothetical. 22 Nevertheless, it is said the Tribunal applied the wrong test for relocation. It only considered whether it would be possible in the sense of whether the applicant could financially survive and obtain employment in the town where she had previously lived. Plainly, inability to obtain employment by reason of her religion would make it impossible to relocate and would probably, in itself, it was submitted, give rise to a well-founded fear of persecution. However, it was said the Tribunal was required to look further than matters which amount to persecution and was required to consider the range of appropriate factors as to whether it was reasonable for her to relocate. Such factors as a minimum would be expected to include the existence of community and religious support or whether it was reasonable for her to live away from that support. 23 Reference was made in submissions to the judgment of the Full Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. In that case the Court pointed out that in considering the issue of relocation it is necessary to consider whether as a practical matter the part of the country in which protection is available is reasonably accessible to the person. In the context of refugee law, the practical realities facing a person who claims to be a refugee must be carefully considered. Moreover, the Court observed that the range of realities that may need to be considered would extend beyond physical or financial barriers preventing an applicant for refugee status from reaching safety within the country of nationality and would extend to other circumstances. 24 The Tribunal pointed to the applicant's ability to return to Shiraz where she had formerly lived. It considered the question of alternative opportunities for employment and found that the independent evidence provided no support for her assertions that she would find it impossible to find any employment either as a Sabean or a Sabean woman. The Tribunal in these circumstances was not obliged to undertake a detailed analysis of the reasonableness of relocation as she had after all lived in Shiraz previously and there was nothing to suggest that she would not resume living in that town under current circumstances. Ultimately this ground is answered by the fact that the Tribunal's consideration of it was entirely hypothetical and even if it were found to have erred in relation to the way it posed the question for itself in connection with relocation, the primary finding which rejected the existence of any well-founded fear of persecution would stand, and on that basis defeat her claim. 25 The grounds of the application also include a ground which sought to, as it were, wrap up the two points I have just mentioned, as jurisdictional points based upon the approach recently outlined by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at pars 80 to 83. Given the observations I have already made about these two grounds, there is no error of law or matter going to jurisdiction in the Yusuf sense and ground (c) provides no basis upon which the two points which are what this application is about can be elevated into a viable ground of review. 26 The case is obviously a sad one and I am told by counsel for the Minister that there have been previous applications by this applicant for entry into Australia from outside Australia. She has her mother and other members of her family here. She is a widow with two children. Plainly her case is one which requires serious consideration on humanitarian grounds. However, that is not a matter which can inform in any way the disposition of the present application which is for an order of review of the Tribunal's determination upon the grounds set out in Part 8 of the Migration Act. The application must, for the reasons I have indicated, be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: July 2001 Counsel for the Applicant: Mr HNH Christie Solicitor for the Applicant: Legal Aid of Western Australia Counsel for the Respondent: Mr SA Walker Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 4 July 2001 Date of Judgment: 4 July 2001