FEDERAL COURT OF AUSTRALIA Applicant Z v Minister for Immigration and Multicultural Affairs [2001] FCA 1714 MIGRATION – application for protection visa – meaning of "persecution" – whether Refugee Review Tribunal applied the correct test – whether Tribunal erred in law in equating persecution with "serious harm". Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 applied Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 applied Gersten v Minister for Immigration and Multicultural Affairs [2000] FCA 855 referred to Kord v Minister for Immigration and Multicultural Affairs [2001] FCA 1163 not followed APPLICANT Z v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 211 of 2001 CARR J 4 DECEMBER 2001 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 211 OF 2001 BETWEEN: APPLICANT Z Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: CARR J DATE OF ORDER: 4 DECEMBER 2001 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent'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 211 OF 2001 BETWEEN: APPLICANT Z Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: CARR J DATE: 4 DECEMBER 2001 PLACE: PERTH REASONS FOR JUDGMENT introduction 1 This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 14 May 2001, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant. The applicant, who is a citizen of Iran, arrived in Australia on 18 October 2000. On 9 November 2000 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 ("the Act"). On 13 December 2000 a delegate of the respondent refused to grant a protection visa and on 15 December 2000 the applicant applied for review of that decision. the applicant's claims and the Tribunal's decision 2 The applicant's claims, in summary, were as follows: · He was, at the time of the Tribunal's decision, 25 years of age and unmarried. · He lived in Abadan until about 1980 when he moved with his family to Ahwaz. He completed his schooling in 1995, then did two years military service, after which he worked for two years as an electrician before going into private business as a trader, an occupation which he pursued for about two years until August 2000. · He claimed often to have been assaulted by the Basiji because he had long hair and wore tight clothes. The main problem was his hair. On one occasion his T shirt was torn because it had a representation of the United Kingdom flag on it. These problems were especially bad in small towns. On another occasion, while waiting for a bus with other people, he was grabbed by a Basiji who asked him if he was a man or a woman, searched him in front of everyone and made him promise to cut his hair. · He had been unable to find full time work, adding that this was a problem common to many young people. He believed that only people who worked for the government had rights while he and others like him had none. · About five months before leaving Iran he had gone to Abadan to buy something in the market and had become involved in a demonstration against the quality of the water supply in that city. He carried a banner which said "Mayor, we want water". · When some of the demonstrators broke windows in government departments, the applicant decided to return to the home of a relative where he was staying in Abadan. He then returned to Ahwaz. · A week later his relatives in Abadan sent him a message saying that he had been identified at the demonstration and that they had been told to provide his address in Ahwaz. · The following day he went to Teheran to organise his departure from the country because he knew that his name was on a blacklist. · At the hearing before the Tribunal the applicant said that he had distributed some leaflets which had the name of the Mujahadeen-e-Khalq on the bottom. He put them under windscreen wipers of cars in parking lots and distributed some to peoples' houses. He had done this at night for two or three nights prior to the demonstration. · During the demonstration he said that he got into an argument with the police as a result of which he insulted Iranian leaders. He was then hit from behind by a policeman. · While he was in Teheran the authorities went to his home in Ahwaz; he knew that his life was in danger so he wanted to leave Iran as quickly as possible. He had a genuine Iranian passport which had been issued to him in Ahwaz. He was nervous when he left the airport, but had no other choice. · When he telephoned his family from Indonesia, his father told him that the authorities had detained him and questioned him about the applicant. the Tribunal's decision 3 Rather than attempt to summarise the Tribunal's findings and reasons, I set them out below. I have added numbered to the paragraphs to facilitate the references which I make later in these reasons. "FINDINGS AND REASONS 1. It was somewhat unclear at the hearing whether Mr Homan was claiming that he was at risk of persecution for a Convention reason because of his appearance. The problems caused by his appearance were mentioned when he was interviewed on 22 October 2000, but not in his protection visa application, nor in the written submissions he provided in support of his application for review. When I raised the issue with him at the hearing, he was clearly more interested in discussing the problems he had faced as a result of his claimed involvement in the Abadan demonstrations, stating that he had not left Iran because of the problems caused by his appearance and that he could have changed his appearance if he wanted to avoid problems. Nonetheless, I have considered whether Mr Homan has a claim against the Convention because he faced problems in Iran because of his appearance. 2. From the information Mr Homan provided, it is clear that the most serious harassment he faced involved nothing more than insults and threats in the street. The fact that he was employed or in business from the time he left school until his departure for Australia, indicates that, apart from this occasional harassment, his appearance did not have a serious impact on his life in Iran. While no doubt distressing for Mr Homan, I do not believe these treatment can be considered serious harm constituting persecution within the terms of the Convention. Furthermore, there is nothing in the evidence before me which suggests that he would be more likely to experience serious harm amounting to persecution because of his appearance if he returned to Iran now than he was in the past. I am therefore not satisfied that Mr Homan has a well-founded fear of experiencing persecution in Iran because of the way he dresses and wears his hair. I also doubt that problems caused by appearance would constitute persecution for a Convention reason as I doubt that the harm suffered could be said to have occurred for any of the reasons contained in the Convention. However, as I do not consider the harm which Mr Homan may face on his return to Iran because of his appearance is serious enough to constitute persecution under the Convention, it is not necessary to reach a conclusion on this question. 3. I do not believe that Mr Homan participated in a demonstration protesting about the quality of the water in Abadan August 2000. In the first place, as noted above, the demonstrations took place in early July, not August. Secondly, I find it unlikely that someone who had had no previous involvement in politics would decide to join a protest about the quality of the water in a city which he only visited occasionally. Third, and most importantly, when he was interviewed on 22 October 2000, Mr Homan said that the police had not taken any action against the demonstrators on the day of the march. This is not correct. As Mr Homan states in his later submissions, a number of demonstrators were shot and killed by police on the day of the protest. I do not believe that Mr Homan would have said there was no police interference in the demonstration when he was interviewed on 22 October 2000 if he had been a participant. I believe that he changed his evidence after he applied for a protection visa because he had obtained more information on the demonstration and knew that his initial story was flawed. 4. And these are not the only problems with Mr Homan's evidence on this matter. His claim that the Mujahadeen-e Khalq organised the demonstrations in Abadan, made for the first time at the hearing, is at odds with the information in the reports which I have read, none of which suggest that the Mujahadeen-e Khalq played any part in the demonstrations (see sources cited above). It is also at odds with his earlier statements. When describing the demonstrators during his interview on 22 October 2000, Mr Homan said that three groups of people were involved, those who were protesting about the water, trouble-makers who robbed shops and informers. It is clear from the evidence regarding the Mujahadeen-e Khalq cited above that those associated with it face a high chance of experiencing problems with the authorities, and it is not plausible that Mr Homan would have failed to mention their role in the demonstration or his own role in distributing leaflets produced by them when describing the participants in the event during this interview. Furthermore, it is not plausible that someone who had never been involved in politics and did not support the Mujahadeen would decide to distribute leaflets bearing the Mujahadeen name in public places such as car parks or to people's homes, an act which would clearly involve a high risk of attracting the attention of the authorities and suffering serious consequences. 5. There was no mention of the alleged attack on Mr Homan by police during the demonstration which lead to him insulting Iran's leaders when he was interviewed on 22 October 2000. On the contrary, as noted above, he said that the police had not inferred with the demonstrators on the day of the demonstration and that he himself had not experienced any problems on that day. It is not plausible that he would have failed to mention that he was hit by police during the demonstration if this had occurred. And he certainly would not have said that the police did not interfere with the marchers if he had heard gunshots and had been hit on the head by a policeman. 6. Finally, even if I accepted that Mr Homan participated in the Abadan demonstration (which I do not), it is not plausible that he would have been identified and pursued across Iran because of this. According to his evidence he was one of about 50,000 participants. As he was not from the local area and had no previous political involvement, I do not believe the would (sic) have been identified by the authorities after the event as a participant. Furthermore, as noted above, information from DFAT indicates that most, if not all, of those arrested at the time of the demonstrations were detained because of their involvement or suspected involvement in violence, and most were not detained for long. None of the sources consulted suggest that there were widespread arrests of ordinary participants after the event. In these circumstances, it is not plausible that the authorities would have any continuing interest in Mr Homan. 7. After considering all of the relevant evidence, I do not accept that Mr Homan distributed leaflets for the Mujahadeen-e Khalq, nor that he participated in a demonstration in Abadan in July or August 2000, nor that he was involved in scuffle with the police during this demonstration during which he insulted Iran's leaders, nor that he was pursued by the authorities because of these alleged events. I am therefore not satisfied that Mr Homan has a well-founded fear of persecution for reasons of political opinion because he participated in demonstrations in Abadan in July or August 2000. 8. I am not satisfied that Mr Homan left Iran illegally. In the first place, as I do not accept that he was of interest to the authorities because of his involvement in the Abadan demonstration, there is nothing in the evidence before me which suggests that he was of interest to the authorities for political or any other reason and therefore no reason why he would not have been able to leave Iran legally. Secondly, there is no mention of illegal departure in his 22 October 2000 interview. When his departure was discussed on that occasion he said that he had to leave quickly before he was blacklisted and that he said that he was nervous when he left from the airport, but said nothing about paying bribes to avoid problems. I believe that he would have said something about paying bribes when his departure was discussed during this interview if this claim were true. As I do not accept that Mr Homan left Iran illegally, it follows that I do not accept that he had a well-founded fear of persecution for a Convention reason because of his illegal departure. CONCLUSIONS 9. I am not satisfied that Mr Homan has a well-founded fear of persecution for any of the reasons contained in the Convention. He is therefore not someone to whom Australia has protection obligations under the Refugees Convention and is thus not entitled to a protection visa." grounds of the application and my reasoning 4 The relevant portions of the amended grounds of application were as follows: "5. The grounds of the application are that the Tribunal erred in law in applying the definition of "a refugee" as contained in the Refugees Convention to the facts as found by the Tribunal. PARTICULARS a) The Tribunal accepted that (sic) the Applicant's claims that he had received insults and threats on the streets of small towns in Iran from the Basiji (members of a volunteer paramilitary force who operated as vigilantes) by reason of his appearance (by reference to his long hair and the clothes worn by him) and that these matters were distressing to the Applicant. b) The claims made by the Applicant and apparently accepted by the Tribunal was that on at least one occasion he had been assaulted insulted searched and made to partially undress in public. c) The Tribunal considered the definition of persecution in relation to the Applicant to mean "some serious punishment or detriment or some significant disadvantage or detriment in (Iran) within the reasonably foreseeable future." d) The Tribunal noted that the Applicant had been in employment or in business and concluded that his appearance did not have a serious impact on his life and the treatment suffered did not amount to serious harm constituting persecution and that there was nothing in the evidence which would indicate that the Applicant would be more likely to experience serious harm amounting to persecution because of his appearance if he returned to Iran now than in the past. e) The Tribunal failed to apply the correct test as to the meaning of persecution under the Refugees Convention; namely that, unjustifiable and discriminatory conduct, officially tolerated, directed at the Applicant for a convention reason is persecution, unless the impact of the conduct is trivial or insignificant. f) The Tribunal failed to apply the correct test for the Applicant's fear of persecution to be well founded, namely whether there was a real chance of persecution now or in the foreseeable future if returned to Iran. The Applicant did not have to satisfy the Tribunal that he would be more likely to experience "persecution" in the future than in the past." Whether the Tribunal applied a wrong definition of "persecution" 5 The applicant was represented, on a pro bono publico basis, by Mr H Christie. 6 Mr Christie submitted that the Tribunal had failed to apply the correct test about the meaning of persecution. He argued that unjustifiable and discriminatory conduct, officially tolerated, directed at the applicant for a Convention reason amounted to persecution, unless the impact of the conduct was "trivial or insignificant" – citing Gersten v Minister for Immigration and Multicultural Affairs [2000] FCA 855 at [48] and Kord v Minister for Immigration and Multicultural Affairs [2001] FCA 1163 at [35-37]. 7 Mr Christie contended that the Tribunal had erred in law in construing (at the first page of its reasons) persecution as "… some serious punishment or penalty or some significant detriment or disadvantage in [Iran] …". It also erred, so he submitted, in defining persecution as requiring the applicant to show serious harm. my reasoning 8 In Gersten the Full Court revisited the authorities on the meaning of the word "persecution" and said at [48]: "It is inappropriate to attempt a definition of "persecution", if only because whether a particular act or threat will constitute persecution will depend on the circumstances of each case. This is a point emphasised in the Handbook on Procedures and Criteria for Determining Refugee Status (1992) published by the Office of the United High Commission for Refugees (sic). It is also a point made by Kirby J in Chen. To the extent that the Tribunal did equate persecution with significant harm and applied that as a rigid test, the Tribunal would have erred. However, we do not think that it did. In our view the Tribunal did no more than reiterate, as Mason CJ had in Chan, the proposition that persecution involves harm that is more than trivial or insignificant. The Tribunal concluded that the conduct complained of by Mr Gersten fell short of persecution in all the circumstances of the case, a conclusion with which we agree." 9 In Kord, Hely J [at 36] took the Full Court's observations as meaning that unjustifiable and discriminatory conduct, officially tolerated, directed at an applicant by reason of his race, is persecution unless the impact of that conduct on the applicant is trivial or insignificant. His Honour felt bound to follow Gersten rather than the observations of McHugh J in Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 175 ALR 585 at [65] where his Honour referred to one of the ordinary requirements of persecution as being that it "is so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it, so that flight from, or refusal to return to, that country is the understandable choice of the individual concerned", or to follow Gaudron J's observation at [24] that conduct had to be "sufficiently serious" to constitute persecution. 10 With all due respect to Hely J, I think that his Honour read too much into what the Full Court said in Gersten. In that case, I do not think that the Full Court intended to hold that any harm which was more than trivial or insignificant amounted to persecution, but was simply establishing a benchmark below which persecution could not be found. The Full Court was not, in my view, suggesting that everything above that benchmark amounted to persecution. 11 From paragraph [32] of Hely J's reasons in Kord, it can be seen that his Honour saw the Full Court in Gersten as endorsing the decision of Branson J in Kanagasabai v Minister for Immigration and Multicultural Affairs [1999] FCA 205 and accepting that persecution does not necessarily involve serious harm. 12 Again with respect to Hely J, I do not read that into the decision in Gersten. It is true that the Full Court set out in its reasons an extract from [27] of Branson J's reasons. But the Full Court dismissed the appeal, notwithstanding the Tribunal's references, in its reasons, to "serious harm" and the fact that the appellant had not been "seriously disadvantaged". Hely J at [19] also cited Hill J, sitting as a member of a Full Court, in Minister for Immigration and Multicultural Affairs v Khawar [2000] FCA 1130 as stating that persecution involves, in a general sense: "… an element of harm which is not insignificant." 13 Hill J certainly said that at [8] in that case. But, in his Honour's short summary at [77(2)] Hill J also stated that persecution "… must involve some serious detriment, disadvantage or harm …". 14 As I see it, the ratio of the Full Court's decision in Gersten is that a Tribunal would fall into error if it applied a rigid test, whether of significant harm or serious harm. 15 It is clear that in Kord, but for his view of what the Full Court decided in Gersten, Hely J would have applied a consistent line of authority and learned commentary which he set out at [20] to [36]. That clearly emerges from his Honour's comments at [18]. 16 Hely J's reasons set out and trace through a consistent line of authority and views of the learned commentators, which include Hathaway and Grahl-Madsen, to the effect that the notion of persecution in the context of the Convention implicitly requires that the harm feared must be sufficiently serious as to justify international protection. I agree, respectfully, with what (but for Gersten) Hely J considered had been established by those authorities. 17 The manner in which the Tribunal phrased the test for persecution was, as counsel for the respondent submitted, very similar to the construction proposed by Mason CJ in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 388, namely: "… some serious punishment or penalty or some significant detriment or disadvantage …". 18 In my view, the Tribunal did not err in its references to "serious harm" in paragraph numbered 2 of its reasons above. 19 In my opinion, the Tribunal did not misdirect itself in law on the meaning of the word "persecution"; it was following well established authority, including Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570 and the other authorities to which I have referred and incorporated by reference above. 20 Alternatively, if I am wrong in my assessment of what was decided in Gersten, I would hold that despite its reference to "serious harm" the Tribunal did not equate persecution with an impermissibly high level of harm and apply that as a rigid test any more than the Tribunal did in Gersten. Its findings indicate that any "harm" which the applicant sustained was not more than trivial or insignificant. 21 I should add that whether the particular matters of which the applicant complained amounted to persecution within the meaning of the Convention was a question of fact for the Tribunal. It is not for this Court to interfere with its assessment in that respect, see for example Ji Dong Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 511 at [42]. Whether the Tribunal applied the correct test for a well-founded fear 22 This part of the applicant's submission focussed on one sentence in paragraph numbered 2 above of the Tribunal's reasons. That sentence read: "Furthermore, there is nothing in the evidence before me which suggests that he would be more likely to experience serious harm amounting to persecution because of his appearance if he returned to Iran now than he was in the past." 23 The applicant submitted that the Tribunal had failed to apply the correct test for his fear of persecution to be well-founded, namely, whether there was a real chance of persecution now or in the foreseeable future if returned to Iran. 24 The applicant submitted that he did not have to satisfy the Tribunal that he would be more likely to experience persecution in the future than in the past. What has happened in the past, so it was put, is an indicator of what may happen in the future, but the test must always be whether the applicant is at a real risk of suffering persecution in the foreseeable future if returned to Iran. For instance, so the applicant argued, if an applicant establishes that he has suffered an incident amounting to persecution in the past, it is not helpful to determine that he is less likely to experience such an incident of persecution in the future. In other words, so the applicant submitted, it is not the correct test to compare the relative likelihood of the risks in the past and the risks in the future. my reasoning 25 In my view, these submissions amount to an over-critical examination of the Tribunal's reasons. Mr Christie acknowledged during the course of his oral submissions this morning that this ground, on its own, would not be maintainable. In my opinion this second ground gains nothing from being accompanied by what he described as the "major error of law" which I have discussed above. 26 Immediately before the sentence complained of, the Tribunal held that the most serious harassment the applicant had faced involved nothing more than insults and threats in the street. The fact that the applicant had been employed or in business from the time he left school until his departure for Australia indicated, so the Tribunal found, that apart from this occasional harassment, his appearance did not have a serious impact on his life in Iran. The Tribunal held that while such insults and threats were distressing for the applicant, this treatment could not be considered serious harm constituting persecution within the terms of the Convention. 27 As I read the sentence complained of, the Tribunal was simply observing that having found that the applicant had not suffered persecution in the past, there was no evidence to suggest that the likelihood of the applicant suffering persecution in the future was any different than it had been. That is, the applicant had not suffered persecution because of his appearance in the past, and there was no evidence to suggest any change in that situation if he returned to Iran. The Tribunal, earlier in its reasons, had referred to the requirement of a real chance of persecution. In my view, it applied that test in relation to the applicant's complaints about alleged harassment he had encountered as a result of the way he dressed and wore his hair. The chances of future persecution were no different. On that basis the Tribunal expressly found that the applicant did not have a well-founded fear of persecution in Iran because of the way he dressed and wore his hair. In my view, the Tribunal's approach to the relevance of past events, when determining what was likely to occur in future, was in accordance with that suggested by the High Court in Guo, a case in which (see p 572) a caution was issued against replacing or substituting the term "real chance" for the term "well-founded". 28 It would appear (see paragraph numbered 1 of the Tribunal's reasons above) that these particular claims were relatively minor in the scheme of things, that the applicant told the Tribunal that he had not left Iran because of the problems caused by his appearance, and also told the Tribunal that he could have changed his appearance if he wanted to avoid problems. 29 I do not think that the Tribunal fell into any reviewable error when it applied the test for a well-founded fear of persecution. Conclusion 30 For the foregoing reasons, the application will be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr. A/g Associate: Dated: 4 December 2001 Counsel for the Applicant: Mr H Christie (who appeared on a pro bono publico basis) Solicitor for the Applicant: Messrs Christie & Strbac Counsel for the Respondent: Mr A A Jenshel Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 18 October 2001and 4 December 2001 Date of Judgment: 4 December 2001