FEDERAL COURT OF AUSTRALIA

W338/01A v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 544

Migration Act 1958 (Cth) ss 36(2), 476, 476(1)(e), 476(1)(g), 476(4)(b)

Prahastono v Minister for Immigration & Multicultural Affairs (1997) 77 FCR 260 referred to

Harirchi v Minister for Immigration & Multicultural Affairs [2001] FCA 474 referred to

Minister for Immigration & Multicultural & Indigenous Affairs v Kord [2002] FCA 334 considered

Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 referred to

Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 referred to

Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 referred to

Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293 referred to

Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 204 CLR 1 considered

Ji Dong Wang v Minister for Immigration & Multicultural Affairs [2000] FCA 511 referred to

Applicant Z v Minister for Immigration & Multicultural Affairs [2001] FCA 1714 referred to

Waterford v The Commonwealth of Australia (1987) 163 CLR 54 referred to

Minister for Immigration & Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 considered

Minister for Immigration & Multicultural Affairs v Indatissa (2001) 64 ALD 1 considered

W338/01A v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

W338 of 2001

RD NICHOLSON J

3 MAY 2002

PERTH

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 20 July 2001.  The decision affirmed a decision of a delegate of the respondent not to grant the application by the applicant for a protection (class XA) visa.  The application for review is made pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”) as it stood at the date of the filing of the application which was 31 July 2001. 

2                     The applicant arrived in Australia on 25 March 2001.  The delegate’s refusal occurred on 16 May 2001.  The applicant claimed to have resided in Iran since the age of five years. 

Relevant legislative provisions

3                     Under s 36(2) of the Act a non- citizen in Australia is eligible for a protection visa if that person is someone: “… to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”  The Refugees Convention is the Convention Relating to the Status of Refugees 1951 and the Refugees Protocol is the Protocol Relating to the Status of Refugees 1967.  The expression “Convention” will be used to mean the Convention as amended by the Protocol.  The same criterion appears in Sch 2 of the Migration Regulations items 785 and 866.

4                     Article 1a(2) of the Convention defines a “refugee” to be any person who:

“…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”.

The reasons specified in Article 1a(2) are known as Convention reasons.  The existence of such reasons threatening the life or freedom of a refugee in a territory to which it is proposed he or she be expelled or returned gives rise to a protection obligation prohibiting such expulsion or return as a consequence of Article 33 of the Convention. 

Applicant’s claims

5                     The principal factual assertions made by the applicant were:

(a)                Although he was born in Iraq, he had lived in Iran since he was five years old.

(b)               He was discriminated against in Iran because of his Iraqi background.  He was considered a foreigner in Iran and faced discrimination in all sectors including employment, health care and housing.

(c)                In 1993 or 1994, after a revolt which took place in his hometown, Qazvin, the Iranian authorities detained and beat him and raided his house because they suspected him of being an instigator of the revolt and supporter of Iraq because of his Iraqi background.

Tribunal’s findings and reasons

6                     The Tribunal made the following findings of fact:

(i)                  The applicant was an Iranian citizen, and does not have Iraqi citizenship.

(ii)                The country information does not disclose any policy of discrimination against Arabs, let alone persecution of them nor any mistreatment of people who are Iranian citizens with an Iraqi background.

(iii)               The applicant was not detained or tortured after the Qazvin revolt nor had he been accused of having a satellite dish by his neighbours or harassed, detained or tortured on other occasions because of his Arab ethnicity.

(iv)              The applicant left Iran legally on his own passport.

7                     The Tribunal made the following conclusions of fact and law:

(1)               A person such as the applicant without powerful Iranian connection or revolutionary credentials would have difficulty gaining a place in a state university or employment in the public sector and this would have unfortunate financial implications for the applicant and his family but this does not amount to persecution, as the harm incurred is not significant enough.

(2)               The applicant will not face any risk of being detained or mistreated on return to Iran because of leaving Iran and making a claim for refugee status in Australia.

(3)               Having considered the applicant’s claims, the Tribunal was not satisfied he faced any well-founded fear of persecution for reason of ethnicity or any other Convention reason.

Grounds of review

8                     At the time of the lodgement by the applicant of his application seeking review he was unrepresented.  His application relied upon the provisions of s 476(1)(e) of the Act.  It also relied upon absence of probative evidence and failure to rationally consider probative evidence.  The latter ground is capable of being understood as a reliance upon s 476(1)(g) being the ground that there was no evidence or other material to justify the making of the decision.  That ground requires consideration in connection with s 476(4).

9                     By the time of the hearing the applicant succeeded in obtaining the assistance of pro bono counsel who filed written submissions which were before the Court at the time of the hearing.  Those submissions relied upon the absence of evidence to support the finding that the applicant did not have Iraqi citizenship, having lost it when being expelled from Iraq as a child. 

Submissions and reasoning

10                  The first submission made for the applicant was that the Tribunal erred in failing to recognise that the consistent discrimination of the character experienced by him in all aspects of his life amounted to “being persecuted” for the purposes of the Convention.  As the submissions for the applicant pointed out, the applicant had described discrimination in the form of limitations on employment; the absence of receipt of health benefits; denial of housing loans from the bank; detention at the place of the revolt in Qazvin in 1993 or 1994; and in people calling him a spy, murderer, destroyer, criminal and the shouting that they would all avenge the dead by killing him.

11                  It is accepted for the respondent that there is no doubt that such matters are theoretically capable of amounting to persecution:  cf Prahastono v Minister for Immigration & Multicultural Affairs (1997) 77 FCR 260 and Harirchi v Minister for Immigration & Multicultural Affairs [2001] FCA 474. 

12                  There is no definition of “persecution” in the Convention.  The understanding of that term derives from a number of decisions.  In Minister for Immigration & Multicultural & Indigenous Affairs v Kord [2002] FCA 334 the Full Court (Heerey, Marshall and Dowsett JJ) reviewed the relevant authority on what may constitute “persecution” as distinguished from “discrimination”:  Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225; Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559; Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293; Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 204 CLR 1.  In the latter case McHugh J said at [55]:

“[55]  Persecution involves discrimination that results in harm to an individual, but not all discrimination amounts to persecution.  With the express or tacit approval of the government, for example, some employers may refuse to employ persons on grounds of race, religion or nationality.  But discriminatory though such conduct may be, it may not amount to persecution.  Other employment may be readily available.  The Convention protects persons from persecution, not discrimination.  Nor does the infliction of harm for a Convention reason always involve persecution.  Much will depend on the form and extent of the harm.  Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purpose of the Convention.  But the infliction of many forms of economic harm and the interference with many civil rights may not reach the standard of persecution.  Similarly, while persecution always involves the notion of selective harassment or pursuit, selective harassment or pursuit may not be so intensive, repetitive or prolonged that it can be described as persecution.”

His Honour also stated:

“[60]  All these statements are descriptive rather than definitive of what constitutes persecution for the purpose of the Convention.  In particular, they do not attempt to define when the infliction or threat of harm passes beyond harassment, discrimination or tortious or unlawful conduct and becomes persecution for Convention purposes.

            …

[61]    Given the objects of the Convention, the harm or threat of harm will ordinarily be persecution only when it is done for a Convention reason and when it is so oppressive or recurrent that a person cannot be expected to tolerate it.  …”

In agreeing with orders proposed by Marshall and Dowsett JJ in Kord Heerey J stated in relation to the circumstances in that case:

“The Tribunal, citing and applying the relevant authorities, engaged in a qualitative assessment of the harm it accepted the respondent had suffered, on the implicit assumption that there was no objectively well founded fear that he would suffer harm of greater magnitude were he to be returned to Iran.  That qualitative assessment was a question of fact.  No legal error is disclosed.  I do not think it useful to be drawn into a semantic debate as to whether harm may be sufficient for the purposes of the Convention definition if it is characterised as more than “trivial or insignificant” even though less than “serious or significant”.”

13                  That the making of the qualitative assessment is a question of fact was also stated in Ji Dong Wang v Minister for Immigration & Multicultural Affairs [2000] FCA 511 at [42] relied upon by Carr J in Applicant Z v Minister for Immigration & Multicultural Affairs [2001] FCA 1714 at [21].  If the Tribunal made a wrong finding of fact, that would not give rise to a reviewable error of law: Waterford v The Commonwealth of Australia (1987) 163 CLR 54 at 77.

14                  However, here the Tribunal considered the relevant evidence and then made its finding of fact.  It concluded that the conduct relied upon by the applicant did not amount to persecution because the harm incurred was not significant enough.  There was evidence upon which it was entitled to reach that conclusion.  It specifically referred to the fact that the applicant had been able to obtain more or less steady private sector employment.  There can, therefore, be no error of law in the factual conclusion of the Tribunal.

15                  The next submission made for the applicant was that his application should have been treated as one in which he was a citizen of Iraq with no citizenship rights in Iran.  However, there was before the Tribunal DFAT advice to the effect that certain documents in the applicant’s possession were indicative of Iranian citizenship.  The Tribunal was entitled to rely on that information.  It also relied on the fact that the applicant had been issued with an Iranian passport.  It further relied on the fact that he had completed his military service in a context in which all Iranian citizens are required to complete such service.  The Tribunal was entitled to its conclusion, therefore, that the applicant was an Iranian citizen.

16                  The Tribunal went further and found that the applicant did not have Iraqi citizenship.  In relation to that the Tribunal said:

“He lost it before being expelled from Iraq as a child.  Iraqi nationality law (as cited above) indicates that nationality can be lost as a result of a ministerial decree concerning a person’s perceived loyalty to the country.  The applicant’s family was deported from Iraq in 1970 – rightly or wrongly, Iraq had clearly determined that the applicant and his family members were not or should no longer be accepted as Iraqi nationals.”

For the applicant it is said that there is no evidence to support the finding of lack of Iraqi citizenship because the finding was based upon no more than a supposition that Iraqi nationality could be lost as the result of a ministerial decree.

17                  Earlier in its reasons the Tribunal had referred to Iraq’s Law No. (46) of 1963 (Iraqi Nationality) which provided that Iraqi nationality may be lost in a number of ways.  One of those was where an Iraqi national has acquired a foreign nationality in a foreign country by his own choice (Article 11).  Article 13 of the same law provided that if an Iraqi national loses the Iraqi nationality, his children under majority shall lose it consequently.  Article 20 of the Law provided for instances where the Iraqi nationality may be withdrawn.  However, the point taken for the applicant is that there was no relevant evidence of either a ministerial decree or any other relevant action having been taken.

18                  In response to this, it was contended on behalf of the respondent that the deportation finding which the Tribunal made was enough for it to conclude that there had been a revocation of the applicant’s citizenship if he had such in Iraq.  Furthermore, to make out the no evidence ground in s 476(1)(g) the applicant would have to, in observance of s 476(4)(b), establish that the decision under review is based on the existence of a particular fact, and further, that particular fact found by the Tribunal did not exist; that is, that the expulsion did not carry with it a revocation of citizenship:  cf Minister for Immigration & Multicultural Affairs v Al-Miahi (2001) 65 ALD 141; Minister for Immigration & Multicultural Affairs v Indatissa (2001) 64 ALD 1.  In the absence of such proof brought by the applicant, the ground of review under s 476(1)(g) cannot be made out. 

19                  In any event, whether or not the applicant was additionally a citizen of Iraq is not a matter of consequence because there was a finding to which the Tribunal was entitled that he is a citizen of Iran.  The core of the applicant’s claim was that as an Iranian he had a well-founded fear of persecution because of his Arab ethnicity.  Whether or not he was also a citizen of Iraq did not lie at the foundation of his claim. 

Conclusion

20                  For these reasons I consider that the applicant is unable to make out any of the grounds of review in s 476(1) of the Act as it stood as at the date of his application.  Accordingly, the application must be dismissed.

21                  The reasons of this Court are distributed throughout the world on the Internet and, exercising appropriate caution, the Court has not identified the applicant in the title to the proceeding or in the reasons.

Associate:

Dated:              3 May 2002