FEDERAL COURT OF AUSTRALIA PW87/2001 v Minister for Immigration & Multicultural Affairs [2001] FCA 1083 No question of principle Migration Act 1958 (Cth) s 476(1)(e) Puerta v Minister for Immigration & Multicultural Affairs [2001] FCA 309 followed Brakni v Minister for Immigration & Multicultural Affairs [2001] FCA 48 referred to ABC v Minister for Immigration & Multicultural Affairs [2001] FCA 955 followed Prahastono v Minister for Immigration & Multicultural Affairs (1997) 77 FCR 260 followed PW87/2001 v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 87 OF 2001 HELY J 10 AUGUST 2001 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 87 OF 2001 BETWEEN: PW87/2001 APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HELY J DATE OF ORDER: 10 AUGUST 2001 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The applicant only be referred to as PW87/2001 2. 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 W 87 OF 2001 BETWEEN: PW87/2001 APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HELY J DATE: 10 AUGUST 2001 PLACE: PERTH REASONS FOR JUDGMENT 1 This is an application under Part 8 of the Migration Act 1958 (Cth) ("the Act") for the review of a decision of the Refugee Review Tribunal ("RRT") given on 27 February 2001. By that decision, RRT affirmed the decision of the Minister's delegate not to grant a protection visa to the applicant. 2 The applicant is a citizen of Iran. He arrived in Australia in October 2000. He applied for a protection visa on the ground that he had a well-founded fear of persecution if returned to Iran by reason of his political opinion. 3 RRT said that it had "reservations" as to the credibility of the applicant's claim. RRT overcame those "reservations", and accepted as credible the following facts: "- In 1992 the applicant was detained on suspicion of being linked to the MKO; he was detained for two and half months and released when a court found the case not proved; - after this, he found it difficult to get a permanent job, though in 1998, through contacts, he got a job in sales/administration in a semi-government carpet co-operative, for which job he did not need a police clearance; - he was dismissed after several months because he did not attend group prayers and marches; after this job, the applicant worked painting houses, photographing social functions, and working as a taxi driver in his father's car; - in March 2000, a friend of his, Ali Reza, asked him if he wanted to join a political group, and the applicant accepted to do so; - the applicant's role in the group was to keep a photocopier in the basement of his parents' and his home, and to facilitate access to the photocopier by his contact in the group, Shafagh; - the applicant understood from Shafagh that there were about twenty members of the group, but the applicant did not know any others in the group apart from Shafagh; - the group wrote, copied and distributed anti-regime pamphlets; - in about August 2000, Shafagh told the applicant that two members of the group had been arrested and the applicant and Shafagh removed the photocopier from the applicant's home and took it to a disused building; - the applicant left Iran a week later using his own passport." The applicant is entitled to the full benefit of those findings, without any residual dilution flowing from the reservations which RRT expressed as to the credibility of the applicant's claims. 4 The country information before RRT established that distributing anti-government pamphlets in Iran is regarded as a serious offence. The authorities would be hostile towards people distributing anti-government leaflets, and such individuals would certainly be arrested and detained. 5 Nonetheless, RRT found: "After considering all the evidence, including the country information above, the Tribunal finds that if the applicant returns to Iran, he may face a chance of having been put on a blacklist and/or of being questioned and subsequently of being detained for his brief and marginal involvement in an anti-regime group in 2000, but that this chance would be remote. The Tribunal finds that if the applicant returns to Iran, he does not hold a well-founded fear of persecution for a Convention reason." 6 RRT appears to have relied upon the following matters in coming to this conclusion: - the applicant knew only one other person in the group, Shafagh; - his involvement was marginal, limited to allowing his parents' house to be used to house the photocopier, and keeping watch while the photocopier was in use; - his involvement only subsisted for a short time, and his interaction with other members of the group was minimal; - the photocopier was removed from his parents' home before he left Iran; - there were no visits by the authorities to his home in the week prior to his departure, nor have there been any such visits since his departure; - the fact that he could leave Iran lawfully indicates that he was not, at that time, of interest to the authorities; - he was not aware of anything adverse happening to Shafagh and/or Ali Reza after his departure. 7 At CB 117, in its preliminary observations, RRT addressed the notion of a "real chance" of persecution. It said: "A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A 'real chance' is one that is not remote or insubstantial or a far fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent." It is vital not to conflate this test with a conscious or unconscious adoption of an alternative that there must be a risk of persecution shown on the probabilities, because that would involve an incorrect and more onerous test. 8 The applicant did not submit that the process of reasoning referred to above demonstrated any departure from, or failure to understand, the "real chance" test. Puerta v Minister for Immigration & Multicultural Affairs [2001] FCA 309 is a decision of a Full Court which considered whether the use of the word "remote" in a context similar to the present signified any legal error, and rejected a submission to that effect. Even if the process of reasoning adopted by the Tribunal be regarded as less than convincing, the fact that: "Conclusions of facts drawn by the Tribunal are unreasonable or may seem to be unreasonable to another, or that other minds would not have reached the same conclusion …" does not ground judicial review under s 476 of the Act: Brakni v Minister for Immigration & Multicultural Affairs [2001] FCA 48 at [10]. Grounds of review 9 The Amended Application for an Order of Review contains two grounds of review. Ground 1 is expressed in a number of different ways. In his oral submissions, Mr Barker QC, counsel for the applicant, accepted that these were different ways of expressing two errors which the Tribunal made. Those errors were: - RRT failed to take into account a relevant consideration, namely the modus operandi or inherent nature of cell groups when assessing the likelihood of the applicant's name being revealed to the authorities under torture; - RRT failed to consider the cumulative effect of the conduct of the applicant in 1992, 1998 as well as in 2000 in assessing whether he has a well-founded fear of persecution if returned to Iran. 10 There is no substance in the first of these contentions. Even if RRT misunderstood how a cell group operates, and misunderstood what might happen if one member of a cell is arrested, this would not rise above a factual error, and would not constitute a ground of review. 11 As to the second of those matters, RRT was required to assess whether the applicant faced a well-founded fear of persecution if he were returned to Iran having regard to its findings as to his background in a combined and cumulative sense. In ABC v Minister for Immigration & Multicultural Affairs [2001] FCA 955 Stone J said: "In determining if the applicants are refugees within this definition what is likely to occur if they are returned to Iran is clearly a relevant consideration that the Tribunal is obliged to take into account. In doing so it will need to consider what has occurred in the past and the evidence put before it on that point. However, this obligation does not detract from the entitlement of the Tribunal to assess the evidence presented by the applicant and accord that evidence such weight as it thinks fit – even if it gives certain evidence no weight at all." I respectfully agree. 12 Mr Barker QC submitted that the use of stock phrases such as "having considered the evidence as a whole" cannot operate to immunise the Tribunal's decision from judicial review. I agree that if an examination of the Tribunal's reasons, and other relevant materials, demonstrates that RRT did not consider the evidence as a whole, then use of stock phrases will not immunise its decision from judicial review. On the other hand, the use of such phrase is not necessarily without significance, as it may be an accurate statement of the Tribunal's reasoning process. Mr Barker further submits that a consideration of the Tribunal's reasons as a whole indicates that it had drawn a line under the occurrences of 1992 and 1998, and not taken them into account in determining whether the applicant faces a real risk of persecution. That is said to follow from the Tribunal's concentration upon the events of 2000. 13 The application for a protection visa was accompanied by a statutory declaration which contained the applicant's account of his experiences, including the occurrences of 1992 and 1998. It will be recalled that the applicant was able to leave Iran legally, thus he had not been blacklisted by reason of the 1992 and 1998 events. Paragraph 11 of his statutory declaration was as follows: "I left Iran on 17 August 2000. About one week prior, the contact told me that two members of the group had been detained in Karaj and that I was in danger. We went to my house and took the photocopier. The contact told me our names would be disclosed to the intelligence by those who had been arrested, and so I knew I had to leave immediately before I was blacklisted." The application also stated that: "I was arrested once before, if I was arrested this time it would be bad for me." 14 The applicant's claim was that he left Iran because of what happened in 2000. It was those events which were the catalyst for his departure. Because of those events he left Iran before he was blacklisted, he not having been on a blacklist by reason of the 1992 or 1998 activities. 15 The Tribunal considered the various events on which the applicant relied in their chronological sequence. It pointed out that after the 1992 incident the applicant was released when the court found that there was no case against him and he was not detained or questioned again in the eight years he remained in Iran after the release. RRT has, in my view, assessed the applicant's behaviour and actions as part of a cumulative continuum and then considered the country information insofar as it bore upon the applicant's position. In my view, a consideration of the reasons as a whole demonstrates that the Tribunal came to the conclusion which it did, as it said, "after considering all the evidence", including the events of 1992 and 1998. There was an understandable focus upon the events of 2000 because on the applicant's case it was those events which would result in his blacklisting. It is the fact or prospect of blacklisting which is intimately connected with the claimed well-founded fear of persecution should the applicant return to Iran. Ground 1 is not made out. Ground 2 16 Ground 2 is that RRT made an error of law pursuant to s 476(1)(e) when it incorrectly applied the law (as to what constitutes persecution) to the facts as found regarding the applicant's access to employment of his choice. RRT found as a matter of law that inability to practice chosen employment does not constitute persecution for a religious reason. It was submitted that a correct application of the law to the facts would have found that the denial of access of employment and to professions on the basis of a Convention reason can and did constitute persecution in the circumstances of the case. 17 Mr Barker QC did not elaborate upon this contention in his submissions. 18 The applicant claimed that he could not get a "government or public service or permanent job" because of the "records" that he had, so he was earning his living doing part time and "unofficial" work, sometimes working "on a car", "sometimes working as a photographer of social functions, and sometimes working as a house painter". 19 RRT found that the applicant exaggerated the impact of his "record" on his ability to work, as he had a job in his uncle's hardware company, and in 1998 he obtained a job, albeit with the help of contacts, in a semi-government carpet co-operative. RRT noted that the applicant lost his job in the carpet co-operative because he did not attend mass prayers, and the country information indicates that applicants for public sector employment are screened for their adherence to Islam. RRT said: "… the Tribunal notes too that after he was dismissed from this job, he was not deprived for a Convention reason of his basic right to earn a livelihood since he worked in the private sector with cars, he photographed functions and he worked as a house painter. After considering the evidence, the Tribunal finds that if the applicant returns to Iran, he will not face a real chance of not being able to find a job because of religion such as will amount to persecution for a religious reason." 20 No error of law is revealed by this finding or the process of reasoning by which it was reached. Whether a person suffers persecution by reason of his inability to practice his chosen employment is a question of fact and degree. 21 In Prahastono v Minister for Immigration & Multicultural Affairs (1997) 77 FCR 260 at 267-268 Hill J explained the true position as follows: "Discrimination in employment may constitute persecution in the relevant sense if for a Convention reason. However, whether it does so depends on all the circumstances. Clearly in an economy where there was no private enterprise at all, inability to obtain government employment for a Convention reason would constitute discrimination because that would constitute an 'act of oppression', to adopt the language of Mc Hugh J in Chan. And it would be just as much oppressive and thus involve persecution if, instead of there being no ability to obtain employment, there is ability to obtain employment but limited to jobs which are dangerous or demeaning to the person employed to do them. If, on the other hand, there existed a mixed economy, so that government employment merely competed with private employment and exclusion from government employment would not result or be likely to result in the person seeking work being unable to obtain appropriate work and thus an appropriate living, then it is hard to see that the refusal to permit employment would constitute persecution. That would not be oppressive, at least to any significant extent. Thus, generally whether a restriction on employment amounts to persecution in a Convention sense will depend on all the circumstances, and particularly upon whether there can be said to be oppression or real harm to the person." As the quoted passage shows, whether discrimination in relation to employment amounts to persecution involves matters of fact and degree, involving the appraisal and weighing of circumstances. 22 The appraisal and weighing of circumstances is a responsibility which is committed to RRT. It was open to RRT to come to the conclusion which it did. There is no reviewable error. Conclusion 23 The application should be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely. Associate: Dated: 10 August 2001 Counsel for the Applicant: Mr M L Barker QC Counsel for the Respondent: Mr M Ritter Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 August 2001 Date of Judgment: 10 August 2001