Korizad v Minister for Immigration and Multicultural Affairs

[2002] FCA 487

FEDERAL COURT OF AUSTRALIA

Korizad v Minister for Immigration & Multicultural Affairs [2002] FCA 487

MIGRATION – review of tribunal decision – persecution – loss of employment opportunities – employment opportunities existing in private sector – whether “persecution” – whether tribunal in error of law in application of law to facts as found

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

Ahmadi v Minister for Immigration & Multicultural Affairs [2001] FCA 1070 referred to

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

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

Prahastono v Minister for Immigration & Multicultural Affairs (Hill J, 8 July 1997, unreported) considered

ADNAN KORIZAD v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
W386 of 2001

RD NICHOLSON J
22 APRIL 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRLIA DISTRICT REGISTRY	W386 of 2001

BETWEEN:	ADNAN KORIZAD APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	22 APRIL 2002
WHERE MADE:	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.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRLIA DISTRICT REGISTRY	W386 of 2001

BETWEEN:	ADNAN KORIZAD APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	RD NICHOLSON J
DATE:	22 APRIL 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant applies for an order of review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 20 August 2001. The Tribunal affirmed a decision of a delegate of the respondent not to grant to the applicant a protection (class XA) visa. At the hearing leave was given for substitution of what was described as an amended application and particulars but which in fact contained amendments to the grounds of review. The application is made pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”) and was filed on 24 August 2001 and so invokes the law as it stood as at that date.

2. The applicant is a citizen of Iran.  He arrived in Australia on 15 October 2000.  The refusal by the delegate occurred on 5 June 2001. 

   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 a 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. In his arrival interview the applicant stated he was born in 1974 in Iran.  However, he was of Arab ethnicity and he stated there was discrimination against Arabs.  He had been unemployed since completing military service.  He was only able to survive and could not save to get married.  When he applied for jobs, preference was given to Persians over Arabs.  Neither he nor his family had been involved in any political activities. 

6. When he applied for his protection visa the applicant stated that:

   q  He left Iran because of discrimination against Arabs;

   q  When he drove his taxi he was frequently stopped by the authorities and when they found out he was Arab they would ask him questions about the way he dressed and about his passengers;

   q  On one occasion when he was stopped, his passenger had put a box containing satellite receivers in the boot of the taxi.  The applicant and his passenger were taken to the Basiji Headquarters.  The applicant was questioned about it.  He told the authorities the goods belonged to his passenger, but his passenger denied this.  He was released after three days when he paid the bribe.  When he complained about the arrest he was told “You are an Arab, you’d better shut up, otherwise we will disappear you”;

   q  He could not continue his studies because of the Iran/Iraq war and he is not as qualified as he would like to be;

   q  He could not get work in the better companies or garages or for the government because of his ethnicity;

   q  Just after he finished national service he got a job as a driver with the College of National Oil Company.  He was dismissed after five months and replaced with a Persian.  He got no redundancy or help finding another job;

   q  If he returns to Iran he will be accused of being a spy because he is an Arab and he will be accused of damaging Iran’s reputation by escaping from the country.

7. In his interview with a delegate, the applicant repeated his claim he had suffered discrimination against him because of his Arab ethnicity.  While he had not been physically persecuted he always felt harassed.  During his military service when involved in a car accident he had had to pay compensation, although the accident was not his fault. 

8. He said that during the 1999 parliamentary elections he was promoting a particular candidate when supporters of an opposing candidate attacked him and his car was damaged.  He had obtained a passport in order to leave Iran.  He said he wanted a better life. 

9. At the hearing he was again asked about his problem with employment and the Tribunal reasons state the following:

   “The applicant stated another problem he had occurred when he was when he was (sic) working as a driver in the College of Oil Industries.  After a few months he was replaced by a Farsi speaker.  The applicant indicated that the problems he had had in Iran were because he is Arab.  The applicant stated that if Arabic speakers have a job, they cannot get jobs for friends or relatives, whereas Farsi speakers can do so.  The applicant stated that when he goes to the employment office, he doesn’t get a job.  I put to the applicant that there is a lot unemployment (sic) in Iran and many young men of his age, Arabs and Persians, can’t find work.  The applicant agreed that this is the case.”

   Tribunal’s findings

10. The Tribunal found the applicant’s evidence was “plausible and internally consistent” and “credible and reliable”.  However, it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.  Its findings were as follows:

    (i)The Tribunal accepted that the applicant was involved in an accident with a member of the security forces in 1993, that he considered that he was not at fault and is aggrieved that he nevertheless had to go to court, and was ordered to pay compensation to the injured man, and that the injured man’s relatives and friends threatened the applicant.

    The evidence, including that given by the applicant during the hearing, suggested that the applicant was threatened not because of his ethnicity, but because of the particular circumstances in which he found himself.

    (ii)The applicant’s evidence suggested that the last time he had been threatened was in 1996, some four years before he left Iran; the applicant did not claim and the evidence before the Tribunal did not suggest that any of the threats made against him were carried out; and the applicant remained living at the same address and maintained employment as a driver until he left Iran.

    If the people who had threatened the applicant had any intention of actually harming him, they had ample opportunity before he left Iran, and the chance that these people would harm him if he returned to Iran was remote.

    (iii)The Tribunal accepted that the applicant was detained for three days when a box containing satellite receivers was discovered in the boot of his car, that the applicant was kept in a dark basement and that pressure was applied to him by playing him recordings of people being tortured, and that the applicant found this a terrifying experience at the time and that he remained affected by it.

    The applicant did not claim, and the evidence before the Tribunal did not suggest, that the Iranian authorities had any ongoing interest in the applicant as a result of them finding the box containing satellite receivers in the boot of his car, and his release under such circumstances was consistent with the authorities being satisfied that the equipment belonged to his passenger and not to him.  If the authorities considered the applicant to have been guilty of an offence, they would have charged him, or at least would only have released him if he or his family had paid a bribe.

    Any taxi driver found with satellite receivers in his car would have been detained, in a situation where the other person in the taxi denied that the goods were his.

    The independent evidence before the Tribunal indicated that the possession of satellite equipment is illegal in Iran.

    While the Tribunal accepted that the applicant remained deeply distressed by the discovery of satellite receivers in the boot of his car and its aftermath, the Tribunal was not satisfied that this gave rise to a well-founded fear of persecution for a Convention reason.

    (iv)The Tribunal accepted that the applicant and his car were attacked by a vigilante group on one occasion when he had been driving passengers involved in political campaigning, but this occurred because the group saw posters for a politician to whom they were opposed in the applicant’s car.

    The applicant’s evidence suggested that no action was taken, not because of unwillingness on behalf of the authorities, but because the offenders were no longer present and the applicant was not able to identify them, but it did not suggest that there was failure of state protection.

    There was nothing in the applicant’s evidence to suggest that he had any ongoing problems as a result of the incident when he and his car were attacked, he had not claimed that he was attacked again, nor did he claim that he was involved in political activities which might expose him to further attack or that he had provided any ongoing assistance to other people carrying out political activities or that he was committed to do so in the future.  The Tribunal was not satisfied that this incident gave rise to a well-founded fear of persecution for a Convention reason.

    (v)The Tribunal accepted that shortly after the applicant finished military service he lost a job to a Persian and that he felt he was discriminated against. 

    The evidence did not suggest that the applicant had been denied the right to employment or that he had been seriously restricted in his ability to gain work because of his ethnicity, or for any other Convention reason.

    The Tribunal was not satisfied that the particular incidents recounted by the applicant gave rise to a well-founded fear of persecution for a Convention reason either individually or cumulatively.

    (vi)The Tribunal accepted independent evidence which suggested that many Arabs in Khuzestan province live in economically depressed conditions and may have some cause to feel that they are discriminated against, but that evidence did not support a conclusion that Arab Iranians are treated in a way which could be characterised as persecution.

    (vii)The Tribunal accepted that the applicant was questioned at the airport because there was some concern about his passport, but could not conclude that this occurred because of his ethnicity.  Further, even if the applicant’s ethnicity had some part to play, the Tribunal was not satisfied that the treatment of which he complained amounted to persecution for a Convention reason.

    (viii)The evidence before the Tribunal did not support a conclusion that the applicant had been persecuted in the past because of his ethnicity or that he would suffer persecution for this reason in the future.

    (ix)The Tribunal could not be satisfied that the applicant would be seen as a spy if he returned to Iran, and the independent evidence did not suggest that he would face persecution because he travelled to Australia and applied for refugee status.

    Ground of review

11. The ground of review relied upon for the applicant is that the decision of the Tribunal involved an error of law being an incorrect application of the law to the facts as found by the Tribunal: s 476(1)(e) of the Act. This is particularised in numerous ways which will be addressed in the course of the reasoning.

    Submissions for applicant

12. The principal thrust of the submissions for the applicant was that the Tribunal had failed to give weight to the independent information supporting the applicant’s claim of discrimination against him in the course of his employment.  This relates to the finding of the Tribunal in (v) above.  Reference was also made to the applicant’s claim to the hearing concerning his position as a driver in the College of Oil Industries, quoted above from the Tribunal reasons.

13. Reliance was placed for the applicant on the decision in Ahmadi v Minister for Immigration & Multicultural Affairs [2001] FCA 1070, where the Court (Wilcox J) accepted a submission from present counsel for the applicant to the effect that a conclusion by a tribunal that exclusion from government employment would not constitute “persecution”, within the meaning of the Convention, if any kind of private employment was available, was correct. Wilcox J said:

    “The question whether particular adverse treatment of a person constitutes “persecution”, within the meaning of the Convention, is a question of degree.  There may be cases – indeed they will probably be common – in which denial of access to government employment is no more that an irritation and nuisance; reasonably satisfactory, comparable employment is available in the private sector.  On the other extreme, there may be cases where the denial has the effect of wasting a person’s training and qualifications and destroying any prospect of the person following his or her chosen occupation.  It may be small consolation that the person has access to less satisfying, and less remunerative, employment in the private sector.”

    In the case before his Honour the applicant had emerged after sixteen years education with qualifications in a specialised field and in relation to which opportunities were substantially, if not wholly, confined to the public sector from which he would be likely to be totally excluded.  His Honour found that upon those facts a real question arose before the Tribunal as to whether the harm suffered by the applicant amounted to “persecution” within the meaning of the Convention, a question of degree which the Tribunal had not addressed.  Additionally, it was said that the Tribunal had failed to take into account that there was evidence that the alleged persecution in relation to his employment which the applicant had suffered as a result was officially sanctioned. 

    Reasoning

14. In the course of setting out the reasoning of the Court reference is made to submissions made on behalf of the respondent. 

15. 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”.”

16. For the applicant, the essence of the case is that the Tribunal failed to engage in such qualitative assessment here.  The respondent contends that such assessment was engaged in so that the law was not misapplied to the facts as found. 

17. It is apparent from a reading of the reasons of the Tribunal in relation to finding (v) above that the Tribunal in the present case did engage in the qualitative assessment required.  Those reasons start by acknowledging that where the 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”.  This was supported by reference to the decision of Hill J in Prahastono v Minister for Immigration & Multicultural Affairs (Hill J, 8 July 1997, unreported).  After reviewing and referring to passages from Chan and other authorities in this Court, Hill J said:

    “In my view, the true position can be explained as follows.  Discrimination in employment may constitute persecution in the relevant sense if for a Convention reason.  However, whether it does so depends on all the circumstances.  Clearly, in an economy where there was no private enterprise at all, inability to obtain government employment for a convention reason would constitute discrimination because that would constitute an “act of oppression”, to adopt the language of McHugh J in Chan.  And it would be just as much oppressive and thus involve persecution if, instead of there being no ability to obtain employment, there is ability to obtain employment but limited to jobs which are dangerous or demeaning to the person employed to do them.  If, on the other hand, there existed a mixed economy, so that government employment merely competed with private employment and exclusion from government employment would not result or be likely to result in the person seeking work being unable to obtain appropriate work and thus an appropriate living, then it is hard to see that the refusal to permit employment would constitute persecution.  That would not be oppressive, at least to any significant extent.  Thus, generally, whether restriction on employment amounts to persecution in a Convention sense will depend upon all the circumstances, and particularly upon whether there can be said to be oppression or real harm to the person.”

1. The Tribunal then turned to the application of that law to the facts.  It referred to the fact that the applicant had ongoing employment as a driver (private sector employment).  It said that “the evidence does not suggest that the applicant has been denied the right to employment or that he has been seriously restricted in his ability to gain work because of his ethnicity, or for any other Convention reason”.  The reference to “seriously” is the element of qualitative assessment.  It was made against the statement of the following fact that unemployment in Iran is very high and the agreement of the applicant in the course of the hearing that many young men are in his situation are both Arabs and Persians. 

2. It follows in my view that the findings which the Tribunal made were clearly open to it in application of the law which it had to apply.  There was no misapplication of that law to the facts as found. 

3. In reality the submissions for the applicant invite the Court to re-enter the assessment of the facts and thus engage itself in the merits by giving greater weight to the evidence which favoured a contrary conclusion than that which the Tribunal did.  That is not a course upon which the Court has jurisdiction to embark. 

   Conclusion

4. For these reasons I consider that the application must be dismissed.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Associate:

Dated:            22 April 2002

Pro Bono Counsel for the Applicant:	Mr DPA Moen
Counsel for the Respondent:	Mr PR Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 March 2002
Date of Judgment:	22 April 2002