FEDERAL COURT OF AUSTRALIA

Ahwazi v Minister for Immigration and Multicultural Affairs [2001] FCA 1818

ABDUL REZA EBALEH AHWAZI v MINISTER FOR IMMIGRATION

AND MULTICULTURAL AFFAIRS

W 274 of 2001

CARR J

17 DECEMBER 2001

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.

REASONS FOR JUDGMENT

introduction

1                     This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 15 June 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 with his family comprising his wife and three children, on 9 August 2000.  On 25 January 2001 they lodged an application for protection visas with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth)(“the Act”).  On 6 March 2001 a delegate of the respondent refused to grant protection visas and on 9 March 2001 the applicant applied for review of that decision.

the applicant’s claims and the Tribunal’s decision

2                     At his initial arrival interview the applicant’s claims were, in summary, as follows:

·          He had used an Iranian passport in his own name for travel en route to Australia.  His passport was genuine and he had applied for it himself.  The smuggler took his passport and was to mail it to the applicant’s family in Iran.

·          He had given his passport to the smuggler as he was told that if he had the documents with him the Australian authorities might send him back to Iran.

·          He had previously left Iran on two occasions travelling to Dubai on a pilgrimage visa.  This was seven years ago. 

·          He lived in Ahwaz before leaving Iran to come to Australia.  He had sold his house before he left, but the transfer had not been completed, so he left the house in the care of his brother.

·          He was a self-employed jeweller.

·          He had contemplated leaving Iran for a long time, had planned for three months to leave, but had not had the opportunity to do so until his departure.

·          He had a brother in Canada who had applied to the United Nations for refugee status in Pakistan.  That had been refused, so his brother had changed his name and his story and applied again, had been successful and now lived, as he had said, in Canada.  The applicant’s family organised a forged birth certificate and sent it to his brother in Canada.  His brother wanted to sponsor the family to come to Canada, but was not able to do this as it would have entailed revealing that he had changed his name. 

·          His reasons for leaving Iran were as follows.  He lost a brother in a bomb blast during the war in 1981.  Another brother was killed in an armed robbery in the applicant’s jewellery shop about 9 years ago.  Gold was stolen from the shop.  When this brother was killed, there was mention of this incident in the newspaper.  The prosecution had said that some people were questioned, but nothing happened.  The authorities in Ahwaz would not issue permits for Sabeans to work with food products, so they have limited work opportunities.  Permits were not issued as Sabeans are considered unclean.  His children were taught about Islam at school.

·          He came to Australia because hundreds of Iraqi and Iranian Sabean families have come here.  In addition, their religious leader is here, so they will be able to practise their religion. 

·          He did not want his children to be discriminated against, as he had been in the past.  When asked to explain, he said that when a Muslim friend dies he is not allowed to go to the mosque to mourn or pay his respects.  He did not give any other examples although invited to do so.

3                     The applicant’s wife was also interviewed at the initial arrival interview.  Her claims were, in summary, as follows:

·          She left Iran because there is no respect for Sabeans there.

·          “All the ladies pull away” when she went to buy bread as she is supposed to be unclean.

·          Her son was told at school that he did not have a good religion, so she took him out of the public school and put him in a private school, but things were the same there. 

·          People will not speak to them because they think Sabeans are unclean.

·          If there is an altercation between a Muslim and a Sabean, the authorities take the Muslim’s side.

·          Sabeans cannot get government jobs or open supermarkets or food stores.

·          A Muslim man had wanted to marry her sister.  The family refused, but the Muslim took her sister anyway.  However, her brothers retrieved her and she is now married to a cousin.

·          A man had once touched her in the street, but she could not tell her husband because if he had confronted the man, the authorities would not have supported him.

·          The family received no compensation when her brother-in-law was killed in an armed robbery, but when her brother was involved in a fight with a Muslim family, her family had to pay compensation as between the families. 

·          She had no reason to go back to Iran as she had sold her house and her gold.  She was sure that the Iranian government knows that the family have left.

·          The family would be questioned if they returned to Iran.  She does not know what the authorities would do, but they will “bother them”.  They may think that she is a spy to give the Australian government information about the Iranian government.

4                     In his application for a protection visa, the applicant provided the following further information.

·          He was an ethnic Arab and a Sabean.  He had lived at two addresses in Ahwaz in the last ten years.  He had seven years of education, worked in a family goldsmith business from 1977 until 2000.

·          He had no difficulty obtaining a passport.

·          He left Iran because of religious persecution.  Sabeans are always abused and insulted by Muslims.

·          His children were abused and insulted at school; they have no future because they are not allowed to go to university.  They are required to learn Muslim teachings at school. 

·          His family did not receive compensation when his brother was killed during the Iran/Iraq war.

·          He has been arrested a few times because he has consumed alcohol.  He had to pay money because of this.

·          Sabeans are denied government jobs and are not allowed to work in the food industry.

·          In March 2000 he sold some gold to a customer and was paid with a cheque that bounced.  After several demands, he told the customer that he would go to the authorities.  The customer said that there would be bad consequences if he did so.  The applicant went to the authorities and complained about the bad cheque.  The customer was summonsed to court and convicted of drawing a cheque without funds to cover it, was sent to prison on the basis that he would remain there until he paid the debt.

·          The customer’s family members threatened the applicant to get him to drop the complaint.

·          Three days later people came to the applicant’s door at 3.00am.  They said that they were relatives of his customer.  They threatened him so he telephoned the police.  The telephone was engaged but he told the people at the door that he had called the police.  They got angry, broke glass around the door and fired shots before they went away.

·          The next day the applicant went to the police and told them what had happened.  The police came to investigate and spoke to the neighbours who denied having seen anything.

·          After this incident the applicant and his family where afraid; they locked the doors when they were at home.  The applicant took precautions when he went to the shop and did not display gold in the display units.  His brother came and stayed with him for a few days.

·          His wife received another threat, this time by telephone when the caller swore at her and threatened to kill her husband unless he authorised the release of the customer.  He told her to have a look at the applicant’s brother’s grave in the cemetery.  The next day the applicant went to the cemetery and saw that the tombstone had been damaged. 

·          This incident reinforced the applicant’s view that they had to leave Iran.  They were scared that they would be seriously harmed.  They sold their house and paid a smuggler to bring them to Australia.

·          His customer had not paid him because he knew that the applicant was Sabean and that Sabeans were persecuted.

·          In 1991 when his brother was killed in an armed robbery in the shop the gunman also shot at the applicant and at his other brother who was injured, no-one did anything.  He had not mentioned this incident at his arrival interview because the smuggler had told him that he had a good case because he was from a religious minority group and not to go into a lot of detail.

·          He was afraid to return to Iran because he feared that either he or one of his family members will be killed by the family of the customer and that the authorities were unwilling to protect him because of his religion.  He and his family might be accused of being spies because they are Sabean had left Iran.

·          The head of the Justice Department in Iran made a speech in which he said that Sabeans who have left Iran are spies and will be given the death penalty if caught. 

·          His wife knew a Sabean, a friend of her brother’s, who unsuccessfully sought refugee status abroad.  When he returned to Iran he was apprehended and had been missing since then.

·          He could not live elsewhere in Iran because he will still practise his religion and will be harassed as a consequence.

·          He would not be able to open a gold shop and work in his occupation as he would not be able to obtain registration.

·          His father opened up the family shop before the Revolution.  He and his family would not be safe elsewhere in Iran because the customer’s family would be able to find out their location from the applicant’s family in Ahwaz.

5                     During his interview with the respondent’s delegate the applicant made similar claims. 

6                     Before the hearing, further material was provided to the Tribunal and the applicant’s adviser provided submissions in relation to the facts and the law.  This included a letter from the applicant addressed to the Israeli Embassy, newspaper reports in relation to protests in the detention centre showing photographs of detainees including the applicant’s wife, and a translation of a letter allegedly written to the applicant by his brother.  In that letter it was stated that the customer who owed the applicant money had been released from prison by corrupt means and had attacked the applicant’s brother.  There were also claims that the applicant’s brother had been detained and beaten by the intelligence services, that he had been questioned about the applicant and that the authorities knew that the applicant had applied for asylum in Australia and was considered to be a spy.  Another document was signed by three people who claimed that they witnessed the applicant’s brother being attacked by a group of men in August 2000 and that they knew that since the applicant left Iran, the intelligence services have questioned the applicant’s brother. 

7                     The applicant gave evidence before the Tribunal.  It is not necessary for me to summarise this evidence.  During the Tribunal hearing and after a break which involved a discussion with the applicant’s adviser, the applicant came up with a further claim.  This was that if the applicant and his family were returned to Iran they would be killed.  His defaulting customer’s relatives had stabbed his brother and want to set his shop on fire.  The security forces had detained his brother for several days.  When asked why he had not previously mentioned anything about this, the applicant stated that during the adjournment his adviser had asked him why he had not mentioned important things and he had replied that he thought that the discussion would continue after the break. 

8                     The applicant also told the Tribunal that he would be in trouble when the Iran authorities find out that he has spoken against the government and has contacted the Israeli Embassy.  The Iranian Government would find this out because there were Iranian spies in the detention centre. 

9                     The applicant called three witnesses before the Tribunal.  One witness, a Mr Geazan stated that the applicant was propagating Judaism in Iran.  Mr Geazan said that he thought that before the applicant left Iran, he (the applicant) had applied for a visa for Israel.  The applicant was trying to get close Muslim friends to convert to Islam. 

10                  The Tribunal reviewed extensive independent country information about the Mandaeans or Sabeans, as they are sometimes known, and their treatment in Iran. 

11                  Rather than attempt to summarise the Tribunal’s reasons I set them out in full below.  I have added numbers to facilitate the references which I make later in these reasons.

“FINDINGS AND REASONS

1.  The applicants claim that if they return to Iran they will be persecuted because they are Sabean Mandaean. In assessing the applicants’ Convention claims I am required to determine whether they have a well-founded fear and if so whether what they fear amounts to persecution for a Convention reason.

2.  I accept that the applicants are citizens of Iran and that they are Sabean Mandaeans. There is conflicting evidence before me as to whether Sabean Mandaeans are considered to be part of the officially recognised Christian minority in Iran. However, I accept that Sabean Mandaeans do not regard themselves as Christian and are not one of Iran's officially recognised minority religions. That said, the article published in ASUTA, referred to above, indicates that Sabean Mandaeans have been recognised as "people of the book" by The Iranian Supreme Leader Ayatollah Khamenei.

3.  I accept that status as an officially recognised minority religion in Iran provides adherents of such religions with some specific benefits, such as the right to establish religious schools. That said, I do not accept that it follows from this that adherents of minority religions that are not officially recognised face persecution in Iran. In deciding whether the applicants have a well-founded fear of persecution because they are Sabean Mandaeans, I have carefully considered all of the evidence before me, including the written material in the department and Tribunal files, the oral evidence provided by the applicants and- their witnesses, the independent evidence set out above and the submissions made by Dr Al Jabiri.

4.  In his arrival interview the applicant husband claimed that Sabean Mandaeans are discriminated against in Iran. In particular, the applicant husband referred to not being able to obtain permits allowing work connected with food products, not being able to go into a mosque to mourn or pay respects when a Muslim friend dies, and having his children taught Islam at school. The applicant husband also referred to a brother who was accepted as a refugee after having originally been rejected, when he changed his name and his story. In her arrival interview, the applicant wife also referred to her children being taught Islam at school and to not being able to work in food shops. She stated that she had been ostracised by other women and that she had once been touched by a man in the street. Both the applicant husband and wife referred to the death of the applicant’s brother during the war and the killing of another brother during an armed robbery.

5.  In his application for a protection visa, the applicant husband reiterated the claims made in his entry interview. He also claimed that when his brother was killed during the Iran/Iraq war his family was not paid any compensation. The applicant also stated that Sabean Mandaeans are denied government jobs. The applicant stated that he had been arrested on a few occasions for consuming alcohol. He also referred to the incident involving a customer who had not paid him, who had gone to prison as a consequence of this and whose family had later threatened the applicant and damaged his brother's tombstone.

6.  At the hearing, the applicant husband and wife again reiterated their claims in relation to general discrimination, the requirement that their children learn about Islam at school, the killing of his brother in an armed robbery, and the threats made against the applicant by a customer who had not paid him. In addition, the applicants claimed that they would be perceived as Israeli spies if they returned to Iran.

7.  I accept that Sabean Mandaeans are discriminated against in Iran in a number of ways. I accept that as an unofficial religious minority, Sabean Mandaeans are not allowed to establish their own schools. I also accept that along with adherents of other religious minorities, Sabean Mandaeans are not accorded full equality with Muslims before the law, for example by not being accorded the same amount of compensation in the event of injury or death. I accept that Sabean Mandaeans are, along with members of other religious minorities, precluded from government employment. I also accept that Sabean Mandaean children, along with all children who attend public schools, are required to study Islam as part of the school curriculum.

8.  I accept that Sabean Mandaeans are also subjected to a certain level of social discrimination. For example, I accept that Sabean Mandaeans are not be allowed to handle food in shops operated by observant Muslims. I accept further that the authorities in Ahwaz do not issue licences for Sabean Mandaeans to operate businesses connected with food. I also accept that the applicant wife has had some distressing experiences of ostracism and discrimination in connection with her religion.

9.  That said, the applicant husband's evidence - along with that of his witnesses Mr Geazan and Mr Zahrooni - did not suggest that the applicants were particularly ostracised because they are Sabean Mandaeans. For example, as noted above, in his arrival interview the applicant husband indicated that he would not be able to go into a mosque to pay his respects if a Muslim friend died. This suggests that the applicant had Muslim friends. Mr Geazan referred to the applicant husband discussing matters with his close Muslim friends Mr Zahrooni noted that when the applicant's brother was killed, "all the goldsmiths in Ahwaz" closed their businesses and went to the applicant's shop. The applicant husband had previously indicated that his was the only goldsmith shop operated by a Sabean Mandaean in the bazaar in which he worked. Taken together, the applicant's evidence and that of his witnesses indicates that the applicant husband at any rate had Muslim friends, and that other goldsmiths did not ostracise the applicant husband because of his religion.

10.  Whilst I accept that Sabean Mandaeans face some discrimination in Iran, in my view the independent evidence does not support a conclusion that any discrimination they face is serious enough to amount to persecution. In my view, if Sabean Mandaeans did face treatment serious enough to amount to persecution, I consider that this would be referred to in reports such as the US Department of State's Annual Report on Religious Freedom. I also consider it significant that whilst the ASUTA article referred to above refers to a range of ways in which Sabean Mandaeans are discriminated against, the article does not suggest that Sabean Mandaeans are prevented from practising their religion or that they are physically harmed because they are Sabean Mandaeans. The article specifically indicates that Sabean Mandaeans are able to carry out their ceremonies, including baptisms, weddings and funerals. I note that the applicants have all been baptised, the applicant husband and wife on a number of occasions. The independent evidence also does not indicate that efforts are made to convert Iranian Sabean Mandaeans to Islam. This independent evidence indicates that Sabean Mandaeans are not seen as a threat to Islam, as that they do not proselytise.

11.  In relation to discrimination in government and food-related employment against Sabean Mandaeans, whether denial of employment or difficulties obtaining employment for a Convention reason amount to persecution is a question of fact and degree, and will depend upon all of the circumstances, and particularly upon whether there can be said to be oppression or real harm to the person. (Prahastono v MIMA unreported, Federal Court of Australia, Hill J, 8 July 1997). I note the ASUTA article which indicates that it would be economically unviable for a Sabean Mandean to be involved in a business connected with food. In addition, I note that Sabean Mandaeans are traditionally employed as smiths, goldsmiths, boat builders and carpenters. The ASUTA article notes that this has been the case ''as far back as written record[s] show”. The applicant husband's own evidence was that he was self-employed as a goldsmith for some twenty-three years. In the circumstances, I am not satisfied that restrictions on handling food in shops, or on operating food-related businesses is a detriment serious enough to amount to persecution for a Convention reason. Given the applicant husband’s long employment history as a goldsmith, and the evidence indicating that the involvement of Sabean Mandaeans in such trades pre-dates the Islamic revolution, I am not satisfied that the fact that Sabean Mandaeans are excluded from government employment amounts to persecution.

12.  As noted above, I accept that Sabean Mandean children - like all children who attend public schools in Iran - study Islam as part of the school curriculum. I accept that the applicant husband and wife think that this is unnecessary for their children and would prefer them not to do so. However, in my view, this requirement does not cause harm or detriment serious enough to amount to persecution for a Convention reason. I note that the applicant husband complained about this issue to education officials in Ahwaz. In my view, the fact that the applicant husband felt confident enough to make such a complaint suggests that he did not fear any adverse consequences for himself or his children. In my view, the response that he indicated that he received - that is, that having studied Islam would be useful if his children wanted some day to enter university - was both moderate and accurate. It does not suggest that the education authorities in Ahwaz had any intention of converting the applicants I children to Islam.

13.  The applicant husband claims that his children will be precluded from obtaining a university education. The independent evidence indicates that passing a test in Islamic studies is mandatory for university entrance. Whilst the independent evidence also indicates that members of minority religions can elect to sit an examination covering their own religion, I accept that this would apply to official religious minorities only. Therefore, if the applicants’ children are not able to pass an examination in Islamic studies, it is likely that they would not be able to go to university. They might also have problems with applying to attend university, as the university admission application form does not include Sabean Mandean as a religious category. Although denial of access to education may constitute persecution if imposed for a Convention reason (Chan, per McHugh J at 431), restricted access to higher education is not of itself normally regarded as amounting to persecution. This will occur only where restrictions which are imposed for a Convention reason amount to a significant detriment or disadvantage. (Chan, per Mason CJ at 388).

14.  As noted above, the independent evidence before me indicates that Sabean Mandaeans have been goldsmiths and so forth since well before the Islamic revolution. The evidence does not suggest that the Islamic revolution made any difference to the occupational choices made.by Sabean Mandaeans. This evidence suggests that Sabean Mandaeans have traditionally not sought to go to university, even before the revolution. Furthermore, there is no evidence before me to suggest that any of the applicants' children have either the potential or the desire to attend university, or that they would necessarily fail to pass an Islamic studies test and thereby be definitely excluded from university. In the circumstances, I am unable to be satisfied that the possibility that the applicants' children will be excluded from university gives rise to a well-founded fear of persecution for a Convention reason.

15.  As noted above, I accept that the applicant wife has had a number of experiences in which she has felt humiliated and ostracised because of her religion. I accept that the applicant wife has felt distressed by these experiences. However, in my view, the experiences she recounted are not indicative of either official or officially sanctioned persecution of Sabean Mandaeans. In my view, the applicant wife's experiences suggest that there are some prejudiced people in the Ahwaz community who were not well-disposed towards the applicant because of her religion. However, I am not satisfied that the applicant wife’s experiences caused her sufficient detriment or disadvantage to be characterised as persecution for a Convention reason.

16.  I note Dr AI Jabiri's comments about Sheikh Salah Chohili, the Sabean community leader who has recently returned from a visit to Ahwaz. In my view, the fact that a Sabean religious leader resident in Australia chooses to travel to Ahwaz, suggests that he does not fear persecution in Iran in general or in Ahwaz in particular. I note further Dr AI Jabiri’s comment that Sheikh Salah does not want to "risk turning them against the Sabeans of Iran”. This suggests that Sheikh Salah does not consider that the Iranian authorities have already turned against Sabean Mandaeans. I also note the letter written by Sheikh Salah. In my view, Sheikh Salah’s letter does not assist the applicants to establish that they have a well-founded fear of persecution for a Convention reason.

17.  I accept that the applicant husband’s brother was killed during the Iran/Iraq war. I accept that the family did not receive the type of compensation that would have been awarded to a Muslim family. I accept that this amounts to discrimination. However, I am not satisfied that the treatment received amounts to persecution for a Convention reason.

18.  I accept that another of the applicant husband's brothers was killed about ten years ago, in an armed robbery in their shop. I accept that no one was prosecuted in relation to this crime. However, the applicant's evidence was that the armed robbers' faces were covered and he was not able to provide a description to the police. He also stated that the police did detain and question some people in relation to the incident, although they were later released without charges. The applicant stated that even though there were a lot of people in the bazaar at the time, no one intervened when the incident occurred. In my view, it is not surprising that bystanders would not intervene in an armed robbery being carried out by masked, armed men who were obviously prepared to use their weapons. The applicant also stated that bystanders should have been able to give evidence to the police about the robbers. However, given that the applicant himself was not able to provide any description of the robbers because their faces were covered, it is not unexpected that bystanders were equally unable to provide a description to the police.

19.  In my view, there was nothing in the applicant's evidence concerning this incident to suggest that the robbery of his shop and the killing of his brother occurred because he is a Sabean Mandaean. Furthermore, there was nothing in the applicant's evidence to suggest that that police in Ahwaz did not take appropriate steps to investigate the matter. The fact that the crime has not been solved does not indicate either discrimination by the Ahwaz authorities or a failure of state protection. The perpetrators of murders and robberies are not always brought to justice, even in this country.

19. I note the assertion made by Ms Geazan that Iranian officials carried out the robbery and the killing of the applicant's brother. This is not a claim that the applicant husband made in his arrival interview, in his application for a protection visa, in his interview with the delegate, in his application for review, or indeed in his oral evidence concerning this matter at the hearing. Whilst the applicant husband asserted this to be the case after I had taken evidence from Ms Geazan, I am of the view that this was an attempt to account for Ms Geazan's evidence and the fact that this claim had not been made before. In my view, Ms Geazan fabricated her claim in this regard in a misguided effort to assist the applicants.

20.  The applicant husband told the delegate that following this incident he had a dispute with the taxation authorities and had been obliged to pay taxes. I accept that this is the case. The applicant husband claimed that he would not have been obliged to pay taxes if he had not been a Sabean Mandaean. In my view, the applicant husband’s assertion in this regard is an unsupported assertion. There is no independent evidence before me which indicates that in similar circumstances a Muslim shopkeeper would have been relieved of a legal obligation to pay tax. Furthermore, I am not satisfied that requiring the applicant husband to pay taxes amounts to persecution for a Convention reason or that it currently gives rise to a well-founded fear of persecution for a Convention reason

21.  I note the claim made by the applicant husband in relation to the problem he had with a customer prior to his departure from Iran. I have some difficulty with this aspect of the applicant's claims. In relation to this, whilst the applicants now claim that this incident was the catalyst for them leaving Iran, neither of them mentioned it when they were interviewed upon arrival in Australia. The applicant husband has since explained that the smuggler told them not to say too much otherwise they would be in detention longer and also told them that they had a strong case because of their religious minority status.

22.  I accept that for a variety of reasons asylum seekers may be reluctant to disclose full details of their claims on arrival in Australia. This reluctance may arise for a range of reason. In some cases, they may have been given quite specific instructions about what they should and should not say on arrival in Australia. I accept that reluctance to provide full details of claims is, in many cases, quite understandable. Accordingly, it may be, at times, inappropriate to place weight on the record of the interview. However, I consider it implausible that the applicants, when asked to mention why they had left Iran, would raise matters such as the death of the applicants' brothers during the Iran/lraq war and in a robbery some ten years ago, and that both would fail to mention an incident that had occurred within months of their departure and had led to them fearing for their lives. In the circumstances, I am unable to accept that this particular incident occurred. I note Mr Zahroni's evidence on this point, as well as the letter from Sheikh Salah. However, in my view this evidence does not outweigh the problem I have with the applicants' evidence, and I place no weight on it.

23.  In any event, even if this incident did occur, I am not satisfied that it gives rise to a well-founded fear of persecution for a Convention reason. In relation to this, I note that on the applicant husband's evidence his customer was a Muslim who had, on previous occasions, paid his debts. There was nothing in the applicant husband's evidence which leads me to conclude that his customer chose not to pay the applicant husband because he is a Sabean Mandaean. When negotiations between the applicant husband and his customer did not settle the matter, the applicant husband complained to the authorities. On the applicant husband's evidence, his customer was taken to court and sent to gaol until he could pay the debt. There is nothing in the applicant husband's evidence to suggest that the authorities treated his complaint any less favourably because he is a Sabean Mandaean.

24.  According to the applicant husband, his customer's family threatened him in order to get him to allow his customer to be released from gaol. The applicant husband's evidence clearly indicated that these threats were made for this purpose. His evidence did not suggest that he was threatened for reasons of his religion. Furthermore, according to the applicant, the authorities investigated his complaint, but were not able to take the matter further because neither the police nor the applicant husband were aware of the identity of those who had made the threats and the applicants' neighbours were not able to provide any information. It is hardly surprising that the applicants' neighbours would be unable to provide any information given that according to the applicant husband's evidence, his customer's relatives came around to his house at one o'clock in the morning. In my view, there is nothing to suggest that the authorities behaved in any way inappropriately in handling the applicant husband's complaint, or that they refused to grant him protection from attack because he is a Sabean Mandaean.

25.  The applicant husband claims that since leaving Iran, his customer has been released from prison, even though he has not paid the debt. As noted above, I am not satisfied that the applicant husband's claim in relation to the incident involving his customer is true. However, even if it is true, and even if the applicant husband's customer has now been released from prison without paying the debt, I cannot be satisfied that this had anything to do with the applicant husband's religion. In my view, if the authorities did not wish to support the applicant husband against his customer for reasons of the applicant husband’s religion, they would not have imprisoned him in the first place. In view of my finding that the Iranian authorities have not refused to protect the applicant husband in the past because of his religion, I do not accept that they would have refused protection to the applicant's husband’s brother if he has been attacked as the applicant husband now claims. Moreover, I am satisfied that the applicant husband would not be refused protection if he had any further problems with his customer in the future.

26.  The applicants claim that they are at risk of persecution in Iran because they have sought refugee status in Australia. They claim that the former head of the judiciary, Mr Yazdi, said that Sabean Mandaeans who left Iran and applied for asylum abroad would be treated as spies. I do not accept the applicants' claim in this regard. There is no independent evidence before me to suggest that the Iranian authorities take an adverse view of people who seek asylum abroad, whether they be Sabean Mandaeans or adherents of other religions. In the circumstances, I am not satisfied that a Sabean Mandaean disappeared when returned to Iran after seeking asylum abroad. Nor am I satisfied that the applicant husband's brother has been arrested and questioned about the applicant husband. I am of the view that this claim has been fabricated in an attempt to enhance the applicants' claims to refugee status. I note the letters allegedly written by the applicant husband's brother and the letter signed by other people. However, I am of the view that it would be a straightforward matter to contrive such letters and I place no weight on them.

27.  I note the evidence Mr Geazan gave at the hearing, that is, that the applicant husband was "propagating Judaism" amongst his friends, that he applied for an Israeli visa before he left Iran and that he is at risk of persecution in Iran for these reasons. I reject Mr Geazan's evidence in this regard. The applicant husband did not make any such claims himself, either in his application for a protection visa, or earlier in the hearing. I am of the view that Mr Geazan fabricated these claims because he thought that they would enhance the applicants, claims to refugee status.

28.  I note the letter that the applicant husband has faxed to the Israeli Embassy. I do not accept that the letter gives rise to a well-founded fear of persecution for a Convention reason. I am of the view that the chance that there are Iranian spies in the detention centre who would tell the Iranian authorities that the applicant husband had written this letter is remote and insubstantial. Furthermore, given that I do not accept that Sabean Mandaeans are perceived as spies - Israeli or otherwise, either in Iran or having left Iran - I do not accept the assertion made by the applicant in this letter. I am of the view that if by some remote chance the Iranian authorities did somehow become aware of the applicant's letter, they would perceive it as no more than an attempt by the applicant to be allowed to remain in Australia. I am not satisfied that it would lead the Iranian authorities to persecute the applicants for reasons of their religion or for any other Convention reason.

29.  I accept that the applicant has a brother who was accepted as a refugee in Canada. Whilst the applicant claimed during the hearing that he had been questioned about his brother in the past, this is not a claim that he made in his application for a protection visa. I note that the applicant has travelled out of Iran and returned to that country on two occasions since his brother has been a refugee. The applicant husband has not claimed to have been detained on any occasion in connection with his brother. Overall, I am not satisfied that the applicant husband was of any interest to the Iranian authorities because of his brother at the time he left Iran or that he is of any interest to them currently for this reason.

30.  I accept that the Iranian authorities have come to the applicants’ home on two occasions when the applicant husband has been consuming alcohol. I accept that the applicant husband has paid them bribes to go away. There is ample independent evidence confirming that alcohol is banned in Iran. (See, for example Reuter Business Briefing Electronic Download sourced from Reuters News Service "Iran court fighting west influence holds youth” 8 January 1997 CX21082). There is nothing in his evidence to suggest that the applicant was treated any worse on these occasions than a Muslim would have been treated in the same circumstances. Indeed, I am of the view that the applicant was treated rather leniently. I am not satisfied that the incidents described by the applicant husband amount to persecution for a Convention reason or that they currently give rise to a well-founded fear of persecution for a Convention reason.

31.  Overall, having considered the applicants' claims both individually or cumulatively, I am not satisfied that the applicants have a well-founded fear of persecution because they are Sabean Mandaean or because they have applied for asylum in Australia.

CONCLUSION

32.  Having considered the evidence as a whole, the Tribunal is not satisfied that the applicants are persons to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicants do not satisfy the criterion set out in 5.36(2) of the Act for a protection visa.” 

GROUNDS OF THE application

12                  There were two grounds in the applicant’s amended grounds of application.  Ground 1 was as follows:

“1.       The Tribunal’s decision involved an error of law involving an incorrect interpretation of the applicable law.

Particulars

            The Tribunal misinterpreted the word “persecuted” within the meaning of Article 1A(2) of the Convention relating to the Status of Refugees in that:

            (a)        the Tribunal held that a person is not “persecuted” unless the person is subject to serious harm;

            (b)        the Tribunal failed to hold that a person is “persecuted” if the person is subject to harm which is not trivial or insignificant.”

13                  Mr J A Thomson appeared as counsel for the applicant, on a pro bono publico basis. 

14                  Mr Thomson submitted that the Tribunal, by misinterpreting the word “persecuted” in the manner referred to above had asked itself the wrong question in relation to the applicant’s status as a refugee.  Consequently the Tribunal had, so it was submitted, committed a jurisdictional error of law: Craig v South Australia (1995) 184 CLR 163 at 177-178; Minister for Immigration and Multicultural Affairs v Yusuf (2001] 180 ALR 1 at [81].

15                  Mr Thomson referred me to paragraphs numbered 10, 11, 12, 13, 15 and 17 of the Tribunal’s reasons set out above. 

16                  He contended that although the Tribunal purported to use the word “serious” in a relative sense, there was no comment in the Tribunal’s reasons which showed the standard against which “serious” was measured as a relative concept.  “Against that background”, so it was put, the word “serious” had to be understood in its ordinary meaning.  This showed that the Tribunal contemplated that there must be serious harm or detriment before there would be persecution. 

17                  The applicant contended that such an interpretation was legally incorrect.  In order for there to be “persecution”, it was sufficient that there be discriminatory conduct against a person which caused harm or detriment that was “not trivial or insignificant”: Gersten v Minister for Immigration and Multicultural Affairs [2000] FCA 855 at [42]–[48]; Kord v Minister for Immigration and Multicultural Affairs [2001] FCA 1163 at [17]-[37]; Roguinski v Minister for Immigration and Multicultural Affairs [2001] FCA 1327 at [24]-[29]; Illankovan v Minister for Immigration and Multicultural Affairs [2001] FCA 1290 at [35] to [39]. 

18                  In oral submissions Mr Thomson argued that the threshold for what constituted religious persecution was set at a different level to the other Convention-based reasons, relying on some observations from Chen v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at [25] and [26].

19                  Mr Thomson submitted that such an approach was consistent with the comment in Grahl-Madsen, “The Status of Refugees in International Law” (1966) at 216:

“… an inability to bring up one’s children in one’s own faith in accordance with one’s own ideals may be an intolerable burden on some persons.  All the small annoyances to which such persons may be subjected can in fact add up to ‘persecution’.”

20                  Mr Thomson also cited Kirby J in Chen at [62], where his Honour said that:

“… the more modern definitions suggest that, in contemporary understanding of persecution there has been a softening of the original meaning.”

21                  Mr Thomson further submitted that it was “notable” that the Tribunal did not refer to these cases concerning the extent of harm necessary to satisfy the Convention concept of “persecution”, but had simply referred to Mason CJ’s observation in Chan v Minister for Immigration and Multicultural Affairs (1989) 169 CLR 379 at 388 that persecution required “some serious punishment or penalty or some significant detriment or advantage”.  That very comment, so it was submitted, had given rise to what was said to be the difficulties referred to in the above-mentioned cases. 

my reasoning

22                  First, in fairness to the Tribunal, it must be noted that it did not confine its references simply to Mason CJ’s observations in Chan.  The Tribunal referred to McHugh J’s statements in that case that the notion of persecution involved selective harassment, and that in appropriate cases it may include single acts of oppression, serious violations of human rights and measures “in disregard” of human dignity.  There were also references to other leading cases at p 3 of the Tribunal’s reasons. 

23                  The first use of the expression “serious enough” of which complaint was made, was in paragraph numbered 10 above.  In that paragraph the Tribunal concluded that while Sabean Mandaeans faced some discrimination in Iran, the independent evidence did not support a conclusion that such discrimination was serious enough to amount to persecution.  The Tribunal gave several reasons for that conclusion.  They included the fact that, if such treatment had been serious enough to amount to persecution, this would have been referred to in reports such as the USA Department of State’s Annual Report on Religious Freedom.  Then the Tribunal referred to the ASUTA article (previously cited by the Tribunal) which did not suggest that Sabeans Mandaeans were prevented from practising their religion or that they were physically harmed because they were of that faith.  The Tribunal referred to that article as specifically indicating that Sabean Mandaeans were able to carry out their ceremonies, including baptisms, wedding and funerals. 

24                  Turning from the general to the particular, the Tribunal then noted that the applicants had all been baptised, the applicant husband and wife on a number of occasions.  Finally, the Tribunal referred to independent evidence indicating that no efforts are made in Iran to convert Iranian Sabean Mandaeans to Islam and that they were not seen as a threat to Islam, because they do not proselytise. 

25                  In paragraph numbered 11 the Tribunal expressly referred to the fact that persecution was a question of fact and degree in relation to whether denial of employment or difficulties obtaining employment for a Convention reason amounted to persecution.  It again referred to the ASUTA article and to the applicant husband’s own evidence that he had been self-employed as a goldsmith for some 23 years.  It was in that circumstance that the Tribunal made the remark that it was not satisfied that restrictions on handling food in shops, or on operating food-related businesses amounted to a detriment serious enough to amount to persecution of the applicant and his family for a Convention reason.

26                  In paragraph numbered 12, the Tribunal dealt with the applicant’s complaint that their children had to study Islam at public schools.  The Tribunal noted that the applicant had complained about this issue to educational officials in Ahwaz.  It said that the fact that the applicant felt confident enough to make such a complaint suggested that he did not fear any adverse consequences for himself or his children.  The Tribunal also noted the response which the applicant received i.e. that having studied Islam would be useful if his children wanted some day to enter university. 

27                  Mr Thomson pointed to the last sentence of the paragraph numbered 13 in the Tribunal’s reasons as demonstrating that the Tribunal had exclusively applied the test suggested by Mason CJ in Chan.  But, earlier in that paragraph the Tribunal can be seen to have referred to the observations of McHugh J in Chan at 431. 

28                  In my view, when one reads the Tribunal’s reasons as a whole, it did not incorrectly interpret the word “persecuted”.  In particular it recognised that the term was a relative one, involving matters of fact and degree. 

29                  I have recently considered this question in Applicant Z v Minister for Immigration and Multicultural Affairs [2001] FCA 1714 where I reviewed most of the authorities upon which the applicant relied in this case.  In my view, Roguinski (to which I did not refer) is clearly distinguishable from the present case on the facts.  I do not think that Illankovan assists the applicant in this matter. 

30                  Mr Thomson made two submissions in relation to Applicant Z.  First he submitted, respectfully, that the decision is wrong.  Secondly, he submitted that Applicant Z can be distinguished on the basis that in relation to religious persecution there is a lower threshold (an argument which I have described above). 

31                  In my opinion, the passages in Chen at [25] and [26] of the main judgment upon which the applicant relied, do not propose a lower threshold for what constitutes persecution.  Their Honours explained that the question whether conduct was undertaken for a Convention reason “… cannot be entirely isolated from the question whether that conduct amounts to persecution.”  They then referred to the need for different analysis depending on the reason assigned for the discriminatory conduct in question.  But I do not see anything in those paragraphs which suggests a lower threshold. 

32                  I shall not repeat the observations which I made in paragraphs [8] to [21] in Applicant Z but I incorporate them by reference into these reasons.  I adhere to the views which I expressed in that matter.  

33                 In summary, I do not think that the Full Court in Gersten 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.  Hely J in Kord read Gersten differently, but I agree with his observation that, but for Gersten, it had been established by the authorities that the notion of persecution requires that the harm feared must be sufficiently serious as to justify international protection.  I understand that the Minister has lodged an appeal against the decision in Kord. 

34                 In my view, the Tribunal in this matter followed well-established authority when it interpreted the meaning of “persecution”.

35                  If I am wrong in my assessment of what was decided in Gersten, I do not think that the Tribunal’s references in its reasons to “discrimination, detriment, harm or detriment” (respectively) not being “serious enough” was equating persecution with an impermissibly high level of discrimination, detriment or harm.  Furthermore, its reasons show, in my view, that it was clearly stating a relative test. 

36                  In my view, this ground has not been made out.

ground 2

37                  Ground 2 was in the following terms:

“2.    The Tribunal’s decision involved an error of law involving an incorrect application of the law to the facts as found by the Tribunal.

Particulars

         The Tribunal held that:

         (a)     the Applicant and his family were from Iran;

         (b)     the Applicant held the religious beliefs of a Sabean Mandean;

         (c)     Sabean Mandeans are discriminated against in Iran in a number of ways including as follows:

                  (i)      they are not accorded full equality with Muslims before the law, eg they are not accorded the same amount of compensation in the event of injury or death;

                  (ii)     they are precluded from government employment;

                  (iii)    they are not allowed to establish their own schools;

                  (iv)    they are not permitted to handle food in shops operated by observant Muslims;

                  (v)     children who are Sabean Mandean and attend public schools are required to study Islam and if they do not study Islam may encounter problems in attending university; and

         (d)     the Applicant and his immediate family had in fact been subject to discriminatory action due to being Sabean Mandean in the following ways:

                  (i)      the Applicant’s family did not receive the same amount of compensation which a Muslim family would have received for the death of a member of the Applicant’s family;

                  (ii)     the Applicant’s wife had been humiliated and ostracised on a number of occasions;

                  (iii)    the Applicant’s children would possibly be excluded from university due to their limited educational opportunities.

                  Having so held, the Tribunal erred in law in holding that the Applicant and his family did not have a well-founded fear of persecution for the purposes of Article 1A(2) of the Convention relating to the Status of Refugees”.

38                  I consider that this ground, to a considerable extent, overlaps with Ground 1.  This can be seen, in part, from the applicant’s submissions both written and oral.  These included a submission that the only way in which the Tribunal could have reached its conclusion was by impliedly holding that a person was not persecuted if the person did not suffer serious or significant harm. 

39                  Then it was said that although the Tribunal formally referred to the cumulative effects of the applicant’s claims, it did not “substantively consider these cumulative effects”.  Instead, so it was put, the Tribunal had simply adopted the approach of dealing with the effect of each suggested element of persecution, saying that each element was not serious enough.  The applicant submitted that the Tribunal should have considered the aggregated effect of all elements of persecution which it accepted.  Its failure to do so represented, so the applicant contended, a misapplication of the law to the applicant’s claims of persecution.

my reasoning

40                  At paragraph numbered 32 of its reasons set out above the Tribunal said that it had considered the applicant’s claims both individually or cumulatively. 

41                  There is nothing elsewhere in the Tribunal’s reasons to suggest that it had not done so.  In fact, the Tribunal’s reasons comprise a meticulous analysis of all of the applicant’s claims.  It can be seen to have formed a very clear picture of the family’s way of life in Iran and also the general situation of Sabean Mandaeans in Iran.  In the absence of any evidence that the Tribunal did not consider the claims cumulatively, the authorities show that its reasons must be read beneficially and it must be taken to have done so.

42                  I have already dealt with the submissions concerning the Tribunal’s approach to discrimination in employment, education and the handling of food in shops. 

43                  The further matters raised in this ground relate to the fact that the applicant’s family received less compensation when one of his brother’s was killed, the social humiliation and ostracism of the applicant’s wife on a number of occasions and the possibility that the applicant’s children might be excluded from university due to their limited educational opportunity. 

44                  The evidence shows that the applicant’s brother was killed some ten years ago during the Iran/Iraq war.  I have already dealt above with the other two further matters.

45                 Whether the particular matters of which the applicant complained amounted to persecution within the meaning of the Convention was a question of fact and degree for the Tribunal.  I think that its conclusion was open to it on the facts as found.  I do not think it is for this Court to interfere with its assessment in that respect: Ji Dong Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 511 at [42], Prahastano v Minister for Immigration and Multicultural Affairs [1997] FCA 586. 

46                  In my opinion, the matters raised by this ground go to questions of fact and degree i.e. the merits of the Tribunal’s decision.  They do not raise any legal or jurisdictional error.

47                  I do not think that ground 2 has been made out.

Conclusion

48                  For the foregoing reasons, the application will be dismissed with costs.

A/g Associate:

Dated:              17 December 2001