Z v Minister for Immigration and Multicultural Affairs

[1998] FCA 1578

FEDERAL COURT OF AUSTRALIA

MIGRATION – application for judicial review of Refugee Review Tribunal decision –refusal to grant protection visa – Iranian citizen accused of sexual offences under Iranian law – whether enforcement of law of general application could amount to persecution for a Convention reason – whether applicant at risk of selective prosecution or excessive punishment under law of general application – whether Tribunal failed to obtain important information about a central issue for determination.

Migration Act 1958 (Cth) – ss 36, 420(2)(b), 476(1)(a) & (e)

Applicant “A” v Minister for Immigration (1997) 190 CLR 225
Minister for Immigration and Multicultural Affairs v Darboy (unreported, Moore J, Federal Court of Australia, 6 August 1998)
Perampalam v Minister for Immigration (unreported, Hill J, Federal Court of Australia, 23 October 1998)
Saleh v United States Department of Justice 962 F2d 234, 239 (1992)
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505
Tharmalingam v Minister for Immigration & Multicultural Affairs (unreported, Lindgren J, Federal Court of Australia, 19 May 1998)
Wu v Minister for Immigration and Ethnic Affairs (1997) 72 FCR 524
Yang v Carroll 852 F Supp 460, 467 (1994)

“Z” v  MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 704 of 1998

KATZ J
SYDNEY
11 DECEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 704 of 1998

BETWEEN: 

  “Z”

  APPLICANT

AND:

MINISTER FOR IMMIGRATION
& MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

  KATZ J

DATE OF ORDER:

11 DECEMBER 1998

WHERE MADE:

SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.The application be dismissed.

2.     The applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 704 of 1998

BETWEEN: 

  “Z”

  APPLICANT

AND:

MINISTER FOR IMMIGRATION
& MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

  KATZ J

DATE:

11 DECEMBER 1998

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Section 486 of the Migration Act 1958 (Cth) (“the Act”) confers on this Court jurisdiction with respect to “judicially-reviewable decisions”. Among the decisions which are reviewable by this Court in the exercise of that jurisdiction are decisions of the Refugee Review Tribunal (“the Tribunal”) (see par 475(1)(b) of the Act).

In this proceeding, review of a decision of the Tribunal is sought.

The decision concerned is one which was made by the Tribunal on 2 July 1998, consequent upon an application for review which had been made to it on 29 April 1998 by Mr Z, an Iranian national.

(Throughout these reasons, including whenever I quote from relevant documents, I substitute “Mr Z” for the true name of the applicant in this proceeding.   I do so by reason of orders made by consent by a Full Court of this Court on 19 November 1998, on appeal from a decision of mine that the true name of the applicant not be suppressed in the proceeding.)

The Tribunal’s decision affirmed an earlier decision made by a delegate of the Minister for Immigration and Multicultural Affairs (“the delegate” and “the Minister” respectively) on 27 April 1998, consequent upon an application for a protection visa which had been made to the Minister by Mr Z on 15 April 1998.  The delegate’s decision on that application had been one to refuse to grant it.

Protection visas are dealt with in s 36 of the Act, which provides as follows,

“36(1) There is a class of visas to be known as protection visas.

(2) A criterion for a protection visa is that the applicant for a visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”

(The Refugees Convention referred to in subs 36(2) is the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, while the Refugees Protocol referred to is the Protocol relating to the Status of Refugees done at New York on 31 January 1967: see the relevant definitions in subs 5(1) of the Act. I note also that criteria for a protection visa additional to that in subs 36(2) appear in Sch 2 to the Migration Regulations, under the heading, “Subclass 866—Protection”. All such criteria apply to decision-making by the Tribunal, just as much as they do to decision-making by the Minister: see subs 415(1) of the Act.)

Australia has protection obligations to a non-citizen in Australia if that non-citizen is a refugee within the meaning of par 1A(2) of the Refugees Convention as amended by the Refugees Protocol.  That paragraph refers (relevantly) to a person who is outside the country of the person’s nationality owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion and who, owing to such fear, is unwilling to avail him/herself of the protection of that country.

In order to set the scene for the discussion which follows of the Tribunal’s account of the evidentiary material put forward by Mr Z, either to the Minister or to the Tribunal, in support of his claim for refugee status, I begin by quoting the Tribunal’s account in its statement of findings and reasons of the independent evidentiary material available to it as to the state of Iranian law relevant to Mr Z’s claim, the correctness of which material the Tribunal accepted:

“The Islamic Penal Code came into effect in 1991.  Punishments established by the law are of five kinds:

·hadd (singular) or hodud (plural), which is punishment prescribed by religious law;

…

Sexual crimes are punished under the hodud.  There are a number of sexual offences punishable by death….

There are other sexual offences which are punishable be [sic] stoning….

[Consensual s]exual intercourse between unmarried adults who are both Muslims is punishable by 100 lashes.  The couple may also be forced to marry….

…

Under Iranian law there are two kinds of marriage: permanent and temporary.  In permanent marriage no duration is specified in the marriage contract.  Mehrieh (or mehr), the ‘brideprice’ is the money (or other property) given by the husband to the wife for agreeing to marry him.  A woman must receive mehrieh in order to be able to marry.  Immediately following the marriage the wife is entitled to the mehrieh and may dispose of it in any way she desires, provided the parties to the marriage had not previously agreed on a particular timetable or instalment arrangement for payment of the mehrieh.   In practice, the wife receives the mehrieh on divorce rather than on marriage.”

I make two brief comments now about the above independent evidentiary material in so far as it related to sexual offences under Iranian law.

First, that material listed in descending order of severity three types of physical consequences for those convicted of sexual offences: death, stoning and one hundred lashes.  I assume that stoning and one hundred lashes can each cause death, but will not necessarily do so.  On the other hand, where death is the prescribed punishment, I assume some method is used which is certain of killing the offender (perhaps beheading, a method which one reads is used to punish capital sexual offences in another Islamic state, Saudi Arabia).

Secondly, it should not be thought that the fact that consensual sexual intercourse between unmarried adult Muslims is a crime in Iran is entirely surprising.  During Cromwell’s time, fornication was a statutory crime in England (see the Incest, Adultery and Fornication Act of 10 May 1650, reprinted in Firth and Rait (eds), II Acts and Ordinances of the Interregnum, 1642-1660, 387-89), although it ceased to be so on the Restoration (see Holdsworth, 6 History of the English Law (2d ed), 165-66; Blackstone, 4 Commentaries on the Laws of England, 64) and has not been so since. (Note that Blackstone was wrong to assert that, under the Cromwellian statute, a second fornication offence was a felony without benefit of clergy.) However, it would appear that legislative bodies in colonial America of like mind to the Cromwellian Parliament enacted legislation similar to the English Act of 1650: see, eg, Pollard v Lyons 91 US 225, 227-28 (1875), referring to such a Maryland statute enacted in 1715; and, even today, fornication remains a statutory crime in a not-insignificant number of American States: see 2 Am Jur 2d, “Adultery and Fornication”, § 6.

I turn now to the Tribunal’s account of the evidentiary material put forward by Mr Z, either to the Minister or to the Tribunal, in support of his claim for refugee status, with which account Mr Z took no issue in the proceeding before me.  Relevantly, it was as I summarise it in the following five paragraphs.

Mr Z is an unmarried man, now in his early thirties.  In December 1995, while living in Tehran, he met, through some friends who lived in his suburb, an unmarried woman who he was aware was a prostitute.   He began to pay her for sexual intercourse.   She had no place to which she took her customers and so he used to have sexual intercourse with her whenever it was possible for them to have access to an empty house.

The relationship between Mr Z and the woman had continued for almost a year when, on 22 December 1996, the two were together in a room at the home of a friend of Mr Z, the friend being in the other room.  Other friends were expected to visit and so, when a knock on the door was heard, Mr Z was unconcerned, thinking the other friends had arrived.  It was, however, the Komiteh (the “morals” police), which was raiding the home.  The door was kicked down and Mr Z and the woman were hit.  They were made to dress, arrested and taken to the Komiteh office, where they were detained until the following day.

A young mullah came to speak to them at the Komiteh office and they were told they had a choice; they could either marry or be stoned (perhaps, to death; Mr Z apparently gave different versions on different occasions).  Further, if Mr Z married the woman, he would have to pay a “mehrieh” of an arm (or, perhaps, a hand; Mr Z apparently gave different versions on different occasions) and a leg (or, perhaps, only of one of them; Mr Z apparently gave different versions on different occasions) if he should afterwards divorce her.  In other words, Mr Z would suffer amputation as the price of a divorce from the woman. 

Mr Z agreed to marry the woman.  He asked, however, that the marriage be postponed for two days, in order to permit him to get his birth certificate, which was in another city.  On Mr Z’s handing over as security the papers to his 1992 Mercedes Benz car, the postponement was granted.  However, on 25 December 1996, without having married the woman, Mr Z flew from Iran to Turkey with the assistance of someone he knew at the Tehran airport.  From there, he travelled to Korea, where, unemployed, he lived with a friend for fourteen months, before travelling to Australia to make a claim for refugee status. 

Mr Z feared that, if he returned to Iran, he would suffer the punishment of stoning if he were convicted of having had consensual sexual intercourse with an unmarried woman; alternatively, if he did now marry the woman, as earlier agreed, he would have to forfeit an arm and a leg if he afterwards divorced her.

For the purpose of his application to the Tribunal (as well as of his earlier application to the Minister), Mr Z was represented by a firm of solicitors and migration agents.  It was submitted to the Tribunal on Mr Z’s behalf by the firm then representing him, based (relevantly) on the evidentiary material which I have set out in the preceding five paragraphs, that the Tribunal would be satisfied that Mr Z had a well-founded fear of being persecuted for reasons of political opinion if he should return to Iran.

As is apparent from the fact, already mentioned, that the Tribunal affirmed the delegate’s decision, the Tribunal rejected that submission.

I turn now to the manner in which the Tribunal did so.

It began by accepting Mr Z’s assertions of his having been caught with an unmarried woman and of his having agreed to marry her in order to avoid the punishment which would otherwise have been imposed on him on conviction under the Islamic Penal Code. 

However, the Tribunal rejected Mr Z’s claim that the punishment he would suffer, if he did not marry the woman and was convicted of having had consensual sexual intercourse with her, would be stoning.  As already mentioned above, the Tribunal was satisfied, based on independent evidentiary material available to it about Iranian law, that he would instead suffer a punishment of one hundred lashes.

The Tribunal was further satisfied, based on independent evidentiary material available to it about Iranian law, that that punishment would not be increased to the punishment of stoning in the particular case of an offender who had committed previous, unrelated, offences.  A conclusion on that issue was necessary because Mr Z had claimed, when confronted at the Tribunal hearing with the independent evidentiary material available to the Tribunal about the punishment for fornication under Iranian law, first, that he had committed previous, unrelated, offences and, secondly, that his punishment for the fornication offence “might” be greater by reason of his commission of those offences.

The Tribunal also rejected Mr Z’s claim that, if he did now marry the woman concerned, he would have to forfeit an arm and a leg if he should afterwards divorce her.  The Tribunal was satisfied, based on independent evidentiary material available to it about Iranian law already mentioned above, that a “mehrieh” would be required in the circumstances, but it would simply be that applicable to all other marriages.

The Tribunal then accepted that, in any event, the punishment Mr Z could face because of his sexual transgression if he returned to Iran was “serious” and “could be considered to breach fundamental human rights”.

The Tribunal decided, however, that the imposition of such a punishment on Mr Z if he returned to Iran would not amount to persecution for reasons of political opinion.  It said,

“I am of the view that if Mr Z is punished because he was found with a prostitute, it will be because he breached Iran’s sexual conduct laws.  These are laws of general application in Iran.  Whilst the punishment which is imposed for breach of these laws may amount to a breach of human rights, the issue before the Tribunal is whether such treatment amounts to persecution for a Convention reason.  In relation to the enforcement of laws of general application I note the observations of Beaumont, Hill and Heerey JJ in Applicant A [Minister for Immigration v Respondent A (1995) 57 FCR 309 at 319] which were cited with approval by Dawson J at [(1997) 142 ALR] p 343 of the High Court’s decision in that case [now reported as: Applicant A v Minister for Immigration (1997) 190 CLR 225 at 245]:

‘Since a person must establish well-founded fear of persecution for certain specified reasons in order to be a refugee within the meaning of the Convention, it follows that not all persons at risk of persecution are refugees.   And that must be so even if the persecution is harsh and totally repugnant to the fundamental values of our society and the international community.  For example, a country might have laws of general application which punish severely, perhaps even with the death penalty, conduct which would not be criminal at all in Australia.  The enforcement of such laws would doubtless be persecution, but without more it would not be persecution for one of the reasons stated in the Convention.’

There is nothing in the evidence before me which suggests that there is any reason other than breach of sexual conduct laws for the authorities to impose a punishment on Mr Z.  In the circumstances I do not accept that Mr Z faces persecution for a Convention reason as a consequence of being found with a prostitute.  Further, I am of the view that if Mr Z is punished because he has avoided marrying the prostitute, or because having married her he then divorces her, it would also be punishment imposed for reasons of Mr Z’s breach of laws of general application and not for a Convention reason.”

Before turning to the grounds upon which Mr Z seeks review of the Tribunal’s decision, it would, I consider, be useful to discuss in some detail what the Tribunal described, in the passage from its statement of findings and reasons which I have just quoted, as “the observations of Beaumont, Hill and Heerey JJ in Applicant A”.

I should say immediately that, in my view, the Tribunal was correct to conclude, as it did, that the citation by Dawson J, who was a member of the High Court majority in the Applicant A Case, of what had been said at the Full Federal Court stage of that case by Beaumont, Hill and Heerey JJ had been an approving one.  In approving that statement by Beaumont, Hill and Heerey JJ, Dawson J had thereby been assenting to the proposition that the enforcement by a country of one of its prohibitory criminal laws of general application is not, without more, persecution for a Convention reason.  Further, that will be so even if: (a) the conduct prohibited by that law is not prohibited in Australia; and (b) the punishment for breach of the prohibition is death or something else which is harsh and totally repugnant to the fundamental values of both Australian society and the international community.  (In that event, such enforcement would, of course, involve persecution, but it would not involve persecution for a Convention reason.)

Although the Tribunal did not refer to his reasons in the course of giving its own, another member of the High Court majority in the Applicant A Case, McHugh J, had taken a somewhat different approach from that of Dawson J (and Beaumont, Hill and Heerey JJ) to the issue of the enforcement of a generally applicable criminal law.  Rather than concluding that, although the enforcement of a generally applicable criminal law may involve persecution, it will not ordinarily involve persecution for a Convention reason, McHugh J had said instead (at 258), “The enforcement of a generally applicable criminal law does not ordinarily constitute persecution.”  His Honour had then cited in support of that proposition Yang v Carroll 852 F Supp 460 at 467 (1994), a decision of Ellis J of the Federal District Court for the Eastern District of Virginia.

In concluding that “[p]unishment for violation of a generally applicable criminal law is not persecution …”, Ellis J had in turn relied on a decision of the Second Circuit Court of Appeals, Saleh v United States Department of Justice 962 F2d 234 at 239 (1992), and I turn now to that case.

Saleh, a Yemeni Muslim, had been tried by a Yemeni “Sharia” (Islamic) Court for, and convicted in absentia of, the unjustifiable homicide of another Yemeni Muslim, such unjustifiable homicide having occurred, not in the Yemen Arab Republic, but in the United States.  The Yemeni Court (which had exercised jurisdiction in the matter merely by reason of the fact that both Saleh and his victim were Yemeni Muslims) had then sentenced him to death.  Subject either to a successful appeal against conviction by Saleh (an appeal against sentence not being available) or to his being pardoned by the Yemeni President, that sentence would be carried out, unless the victim’s family agreed to accept from Saleh and was paid by him “blood money” of an amount equal to between $US186,000 and $US360,000. 

The Court of Appeals rejected Saleh’s claim that he had a well-founded fear of “persecution” in the Yemen Arab Republic within the meaning of the relevant American statute, which statute essentially adopted the definition of “refugee” contained in par 1A(2) of the Refugees Convention as amended by the Refugees Protocol.  The Court said (at 239),

“… his prosecution in Yemen reflects the nondiscriminatory application of Yemeni criminal law to his intentional killing of a fellow Yemeni Moslem.

…

Saleh has failed to establish that he was improperly singled out for punishment under Yemeni law.  Rather, he was subjected to a sentence that is imposed upon all Yemeni Moslems convicted in Yemeni Sharia courts of unjustifiable homicide of another Yemeni Moslem.”

Finally, so far as the Applicant A Case is concerned, the third member of the High Court majority, Gummow J, did not, unlike the other two members thereof, specifically refer in his reasons for judgment to the question whether the enforcement of generally applicable criminal laws can involve either persecution for a Convention reason or persecution simpliciter.

In the result, I find nothing in the reasons for judgment of the majority of the High Court in the Applicant A Case which compelled the Tribunal, when deciding Mr Z’s application before it, or which compels me, when deciding Mr Z’s application before me, to depart from the approach of Beaumont, Hill and Heerey JJ at the Full Federal Court stage in that case.  Indeed, one of the members of the High Court majority (Dawson J) expressly adopted that approach, while another (McHugh J) took an approach which, while technically different, may be thought to amount to much the same thing in practice.  For my own part, I propose to accept as correct for the purpose of the present proceeding the approach of Beaumont, Hill and Heerey JJ, without troubling myself overmuch about whether I am technically bound to do so in the circumstances. 

I turn now to a discussion of the fact that Beaumont, Hill and Heerey JJ, in their approach to the question whether enforcement by a country of one of its prohibitory criminal laws of general application could involve persecution for a Convention reason, sounded a warning note.  That warning note was that such enforcement would not, without more, involve persecution for a Convention reason.

Their Honours did not identify those additional features which, in their view, would render enforcement by a country of one of its prohibitory criminal laws of general application persecution for a Convention reason.  However, I infer that what they had in mind was either selective prosecutions under the relevant law, the criterion of selection of persons for prosecution being those persons’ race, religion, nationality, membership of a particular social group or political opinion, or the imposition of punishments on persons convicted under the relevant law, such punishments being greater than they would otherwise have been by reason of the convicted persons’ race, religion, nationality, membership of a particular social group or political opinion.

One finds some support in the passages from Saleh which I have quoted above for the inference that that is what Beaumont, Hill and Heerey JJ had in mind.  Some support for the inference can be found as well in Australian case law, particularly in Minister for Immigration and Multicultural Affairs v Darboy (unreported, Moore J, Federal Court of Australia,  6 August 1998).

In that case, Moore J had before him an application by the Minister for review of a decision of the Tribunal that Darboy, an Iranian national, was a refugee.  Put shortly, Darboy had successfully claimed before the Tribunal to have a well-founded fear of persecution for reasons of religion because he feared that, if he returned to Iran, he would be prosecuted for the sexual offence of adultery and, on conviction, could be punished with one hundred lashes.

His Honour set aside the Tribunal’s decision, in essence, because the Tribunal had failed to consider whether it was satisfied that the relevant Iranian criminal prohibition, being a law of general application, “was applied in a way that was discriminatory” (at p 12).  Obviously, unless the Tribunal was so satisfied, the question whether the feared persecution consisting of the one hundred lashes would be persecution for reasons of religion would simply not arise on the approach of Beaumont, Hill and Heerey JJ.

(I should note that in the course of giving his reasons for judgment in Darboy, Moore J referred to a number of relevant American authorities on asylum claims, including Saleh, already referred to above.)

With my lengthy preamble now concluded, I turn at last to the grounds upon which review of the Tribunal’s decision was sought in the present proceeding, of which there were two.

The first was that the Tribunal’s decision involved a reviewable error in that (according to the amended application for review in the proceeding, which amended application was filed in Court without opposition from the Minister on the day of the hearing) the Tribunal,

“… erred in failing to find that the persecution the applicant faced in of [sic] Iran was ‘for reason [sic] of’ a Refugees Convention reason, namely membership of  the particular social group of those facing enforced marriage, religion and political opinion.”

Under what paragraph or paragraphs of subs 476(1) of the Act the alleged error just quoted was ultimately submitted to fall is not clear to me. The amended application for review nominated both limbs of par 476(1)(e) in the alternative; the written submissions for Mr Z nominated the first limb of par 476(1)(e) only; the oral submissions for Mr Z made no reference to the issue at all.

I should also point out at this stage that the ultimate formulation of the particular social group to which it was submitted Mr Z belonged for present purposes bore no resemblance to that identified in the amended application for review.  In the written submissions filed on Mr Z’s behalf, the formulation was instead “those single Iranians who are required, on penalty, to marry in consequence of relationship with a member of the opposite sex”.  During the oral submissions in chief on Mr Z’s behalf, a number of other different formulations were successively relied upon and during the oral submissions in reply on Mr Z’s behalf, the formulation finally became “single adult male Iranians, inherently possessed of sexual drive”. 

Consistent with what I have said above I understand to be the approach taken by Beaumont, Hill and Heerey JJ at the Full Federal Court stage in the Applicant A Case, which approach I have also said above I am entitled to and do accept as correct for the purpose of this proceeding, in order for Mr Z’s first ground of review to succeed, it would be necessary for him to show, in effect, that the Tribunal had been legally compelled on the evidentiary material before it to find either that a prosecution of Mr Z for fornication on his return to Iran would be a selective one, that his punishment on conviction for fornication (including a forced marriage) would exceed the usual “tariff” or that the “mehrieh” required of him would be more onerous than usual.  Further, it would be necessary for him to show that the Tribunal had been legally compelled on the evidentiary material before it to find that the relevant event would occur for a Convention reason. 

Those things, however, Mr Z did not seek to show.

Instead, it was submitted in the written submissions on his behalf that “[i]t is not adequate to assert that such requirements and penalties [viz, marriage and flogging on conviction for fornication] are uniform for the whole community under Iranian law”.  (The “mehrieh” was not mentioned in the written submissions.) What the Tribunal had been required to do, so the written submissions continued, was to make a judgment on whether those requirements and penalties breached “certain basic rights … which all states are bound to respect as a minimum condition of legitimacy” (those words being quoted from Hathaway, The Law of Refugee Status, 106) and, if satisfied that they did, then consider whether their non-discriminatory imposition on Mr Z would be for a Convention reason.  It was also implicit in the submissions that the Tribunal had been legally compelled on the evidentiary material before it to find both that those requirements and penalties did breach certain basic rights which all states are bound to respect as a minimum condition of legitimacy and that their non-discriminatory imposition on Mr Z would be for a Convention reason.

Support for the existence of a requirement to make a qualitative judgment on those requirements and penalties and, if satisfied they were of a certain character, to proceed to consider the “Convention reason” issue, even though those “requirements and penalties are uniform for the whole community under Iranian law”, was said to be found in the passage from Hathaway from which I have quoted above.  Hathaway’s view was to be preferred, so it was said in oral submissions, to that of Dawson J in the Applicant A Case. 

I reject the submissions set out in the preceding two paragraphs.

As I have already pointed out above, I am not here concerned with the view only of a single Justice of the High Court (Dawson J), but with the view also of a unanimous Full Court of this Court (Beaumont, Hill and Heerey JJ), which latter view I consider I should accept as correct for the purpose of the present proceeding.  That view necessitates rejection of the submissions.

Further, the passage from Hathaway relied upon does not support the submissions which were based upon it.  It appeared in the chapter of Hathaway’s book dealing with the concept of persecution, not in the chapter dealing with the nexus between persecution, on the one hand, and civil or political status, on the other.  In any event, no reason whatever appears to think that Beaumont, Hill and Heerey JJ (or Dawson J) would disagree with the proposition that the imposition of punishment for breach of a law of general application, which punishment itself breaches certain basic rights which all states are bound to respect as a minimum condition of legitimacy, involves persecution.  Instead, what their Honours were asserting, as I understand them, was that such persecution, if non-discriminatory, could not be said to be for a Convention reason.

As well as relying on Hathaway, counsel for Mr Z also sought to gain support for his argument regarding the first ground of review from the reasons for judgment of Lee J (as one member of a Full Court) in Wu v Minister for Immigration and Ethnic Affairs (1997) 72 FCR 524 at 526, and of Lindgren J in Tharmalingam v Minister for Immigration and Multicultural Affairs (unreported, Lindgren J, Federal Court of Australia, 19 May 1998).

It is sufficient for present purposes that I refer only to the reasons of Lindgren J, because, in them, his Honour summarised with approval the effect of Lee J’s reasons.  He did so as follows,

“Where there is extra-judicial or unduly severe punishment, the inference is open that the punishment is imposed, not for contravention of the criminal law, but for a Convention reason….”

I can see nothing in the proposition I have just quoted which departs from what I understand to be the approach of Beaumont, Hill and Heerey JJ at the Full Federal Court stage in the Applicant A Case, nor can I imagine that Lee J intended to depart from that approach, especially since he did not say so, although he had referred earlier in his reasons to the Full Federal Court’s decision (the High Court’s decision in the matter having not yet been handed down).

Before leaving Mr Z’s first ground of review, there is one further matter to which I wish to refer in connection with it.

I have already mentioned above that Mr Z’s case before the Tribunal was put by the firm of solicitors and migration agents then representing him on the basis that Mr Z had a well-founded fear of being persecuted if he should return to Iran for reasons (solely) of political opinion.  No claim was then made that Mr Z had a well-founded fear of being persecuted if he should return to Iran, either for reasons of: (a) membership of a particular social group; or (b) religion.

If I had accepted the submissions made on Mr Z’s behalf that among the things the Tribunal had been required to do in the circumstances was to consider whether the non-discriminatory imposition on Mr Z of the requirement of marriage (and the “mehrieh”) and the penalty of flogging would be for a Convention reason, a question would have arisen whether I should consider whether the Tribunal had erred by not finding that such conduct would be for either of the two Convention reasons which had not been relied upon before the Tribunal.

In answering that question, I would have gained assistance from the reasons for judgment of Hill J in Perampalam v Minister for Immigration (unreported, Hill J, Federal Court of Australia, 23 October 1998).

In Perampalam, Hill J was confronted with a situation in which an applicant before him had claimed before the Tribunal to have a well-founded fear of persecution for reasons of membership of a particular social group.  That claim having failed before the Tribunal, the applicant then sought to argue before Hill J that the Tribunal had erred in a reviewable way by failing to find that the applicant had a well-founded fear of persecution for reasons of membership of another particular social group.  As to that attempted argument, Hill J said (at 15-16),

“… one of the arguments advanced on behalf of the Applicant was that the Tribunal should have considered whether the extortion in question directed at the Applicant was directed at her because of her membership of a social group; namely wealthy persons or wealthy Tamils.

The problem with this argument … is that the case was argued [before the Tribunal] on the basis that the harassment or persecution of the Applicant was because of her membership of a particular social group, namely a group comprising her own family.

I have no difficulty in accepting a proposition that a family of persons may constitute a social group.  But what is relevant here is not so much the fact that the Tribunal found that the conduct directed at the Applicant was not directed at her by reason of her membership of that family and therefore social group.  What is complained of is that the Tribunal should have gone ahead and considered other possible social groups, notwithstanding that the Applicant had at no time suggested any other social group but that of her family.

There may be cases (it is unnecessary to decide here) where an error of law may be the subject of review, notwithstanding that it was [not] raised in the Tribunal before.  But the material before me makes it abundantly clear what the case was for the Applicant so far as concerns membership of a social group.  It was only the one matter that the Tribunal was called upon to consider, namely whether what was directed at the Applicant was directed at her because of her family membership.  Given the way the case was run, it is hard to see that the Tribunal can be accused of error for not considering other social groups no matter how remote they might be and whether the conduct directed at the Applicant arose because of membership of that social group.”

It should be added that the applicant in Perampalam had been professionally represented before the Tribunal (see Hill J’s reasons at 5).

I turn now to Mr Z’s second ground of review.

In effect, it was that the Tribunal had failed to observe procedures that were required by the Act or the regulations to be observed in connection with the making of its decision (see par 476(1)(a) of the Act). As particularised in the amended application for review, the specific procedure not observed was “mak[ing] enquiry before controverting [sic] specific evidence as to the penalty for those who divorced from a forced marriage”. When I asked counsel for Mr Z during oral argument which provision or provisions of the Act or the regulations required the Tribunal to observe the procedure of making enquiry before finding to the contrary of specific evidence as to the penalty for those who divorced from a forced marriage, I was told it was par 420(2)(b) of the Act, which requires the Tribunal to act, in reviewing a decision, according to substantial justice and the merits of the case.

In order to deal with this ground of review, I must mention that a Ms Razmara, who described herself as a “CSS Worker”, had written, on the letterhead of the “Iranian Community Organisation”, said to be located in Parramatta, New South Wales, an undated letter relied upon by Mr Z before the Tribunal.  Although the letter was addressed “To whom it may concern”, it was plainly written as a submission to the Tribunal on Mr Z’s behalf.  It began by saying that the Organisation “can confirm some of the statements made by Mr Z”.  It then discussed the position regarding the “mehrieh” to be paid by a man who, having committed with a prostitute the offence of fornication and having been forced to marry her, afterwards divorced her.  It asserted that the “mehrieh” concerned was an arm and a leg.  It then repeated as fact a number of the assertions about his personal situation made by Mr Z in support of his claim for refugee status, including assertions of the occurrence of two incidents.  The Tribunal ultimately disbelieved that those two incidents had occurred, considering them to have been “fabricated … after his [viz, Mr Z’s] primary application was rejected in order to enhance his claims for refugee status”.  It was as a result of one of those fabricated incidents that Mr Z claimed before the Tribunal to fear being put to death if he should return to Iran and, consistent with that claim by him, Ms Razmara’s letter concluded by expressing the belief that Mr Z would be executed if he returned to Iran and saying “I urge you to give Mr Z a chance to live”.

(I note incidentally that there has been no challenge in these proceedings to the Tribunal’s finding that Mr Z, after his primary application had been rejected, had fabricated the two incidents concerned in order to enhance his claim for refugee status.)

As is plain from what I have said earlier in these reasons, the Tribunal found to the contrary of Ms Razmara’s assertion in the letter regarding the “mehrieh”, saying, in connection with her assertion, that it was “unable to accept Ms Razmara as an expert on such issues”.

In the written submissions for Mr Z, it was submitted concerning this ground of review that Ms Razmara’s assertion regarding the “mehrieh” was “cogent” and supported Mr Z’s claims and that therefore further enquiry by the Tribunal was required before it could find to the contrary of her assertion.  In the oral submissions for Mr Z, it was submitted that that conclusion followed from the decision of a Full Court of this Court in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505.

In Sun’s Case,  Wilcox J, with whom Burchett J relevantly agreed (at 554), held in effect

(at 548) that a failure by the Tribunal to obtain important information on a central issue for determination before it, which information it knows to be readily available, can amount to a breach by the Tribunal of its duty under par 420(2)(b) of the Act to act, in reviewing a decision, according to substantial justice. His Honour held further that such breach is reviewable under par 476(1)(a) of the Act.

In my view, the fact that a person who claimed no expertise in Iranian law had provided a letter which was, in effect, a submission to the Tribunal on Mr Z’s behalf, purporting (relevantly) to do no more than corroborate Mr Z’s own assertion regarding the state of Iranian law concerning “mehrieh”, could not enliven in the Tribunal a duty to enquire of the sort referred to in Sun’s Case and I therefore reject this ground of review.

Even leaving aside the fact that the relevant assertion in the letter bore no hallmark of being “cogent”, as was submitted before me on Mr Z’s behalf, that assertion did not relate to a central issue for determination before the Tribunal, for the reasons I have already given above in connection with Mr Z’s first ground of review.  The issue of the nature of the “mehrieh” obligation where forced marriages are concerned was peripheral, unless it was the case that Mr Z was at risk of being singled out for an excessive “mehrieh” obligation for a Convention reason.  However, it was not suggested in the evidentiary material before the Tribunal that that was so and, indeed, Ms Razmara’s own letter, to the extent that it had any persuasive force at all, tended to support the conclusion that Mr Z was not at risk of being singled out for an excessive “mehrieh” obligation, whether for a Convention or any other reason, but would rather have applied to him the usual obligation in such circumstances.

In the circumstances, Mr Z’s application is dismissed with costs.

I certify that this and the preceding sixteen
(16) pages are a true copy of the reasons for
judgment of the Honourable Justice Katz.

Associate:
Date:   11 December 1998

Counsel for the applicant:  Mr S.C. Churches
Solicitor for the applicant:  Legal Aid Commission
Counsel for the respondent:  Mr T. Reilly
Solicitor for the respondent:     Australian Government Solicitor
Date of hearing:  18 November 1998
Date of judgment:  11 December 1998