REFUGEE APPEAL NO. 265/92
RE SA (REF: 29 JUNE 1994, REFUGEE STATUS APPEALS AUTHORITY)

AT AUCKLAND
Before: R.P.G. Haines (Chairman)

 

  D.R. Bates (Member)

 

  A.M. Rozdilsky (Member)

 

Counsel for the Appellant: Mr C.D. Adno
Appearing for the NZIS: No appearance
Date of Hearing: 20 October 1993
Date of Decision: 29 June 1994
 

DECISION

This is an appeal against the decision of the Refugee Status Section of the New Zealand Immigration Service declining the grant of refugee status to the appellant, a national of Iran.

THE APPELLANT'S CASE

The appellant is a twenty-seven year old single man from Tehran. He is a welder by occupation. He does not claim to have been politically active but does claim to have certain political and religious beliefs. In particular, he does not accept that the government of the Islamic Republic of Iran and the particular selection of Islamic beliefs used to justify both it, and the role within it of the clergy, is to be obeyed subserviently. He believes that government and religion should be in service of the people, not vice versa. Although a Moslem by religion, he is not a devout adherent and does not, for example, attend Friday prayers. On 14 February 1989, Ayatollah Khomeini pronounced his religious edict (fatwa) against Salman Rushdie, the well-known author of The Satanic Verses. In view of the death sentence thus passed on Rushdie, Iranian television and press gave extensive publicity to both the fatwa and Mr Rushdie's photograph. The appellant was curious as to the contents of the book as he wished to know what it was that Khomeini and the Iranian government wished to withhold from the public. He did not at this time have any expectation of obtaining a copy of the book as it is illegal to import it into Iran and those found in possession of it, according to the appellant's belief, have been imprisoned. In early November 1991, the appellant acquired a copy of the English version of The Satanic Verses from a truck driver friend who travelled frequently abroad in the course of his duties. The appellant, who did not read or speak English, hoped that a friend would be able to translate the book over a period of time. He had previously spoken to this friend (who could read and write English) and obtained his agreement prior to the appellant's obtaining of the book from his truck driver friend. After taking possession of the book, the appellant placed it in a bag and set off home. While waiting at a bus station, he was approached by a komiteh patrol and subjected to a routine search. The book was discovered and instantly recognized. The appellant was immediately set upon by the komiteh officers and after receiving a beating was taken to komiteh headquarters where he was held for ten days. On the first day the appellant was interrogated about how he had obtained the book, the name of his supplier and the organization he belonged to. He declined to give any information. On the second day, he was interrogated again but when he refused to provide the requested information he was repeatedly kicked and punched. He was also struck with a wooden baton. He lost consciousness. He said that apart from the first and tenth days, he was beaten once a day except for three days when he was beaten on two occasions. The blows were usually aimed at his face, his nose in particular. It was broken, became swollen and very painful. On the tenth day, the appellant was released following the intervention of an uncle who had powerful friends and, due to his wealth, a lot of influence. A bribe of 250,000 toman was paid at a time when the appellant's monthly salary was 15,000 toman. In addition to paying the bribe, the uncle was required to pledge the title deed of his shop as security. Before being released the appellant was told to report to the Revolutionary Court for trial on 30 November 1991 and was further ordered not to leave his home. The appellant was released on 24 November 1991. On 28 November 1991, the appellant was visited at home by the komiteh and served with a summons, a copy of which was produced at the appeal hearing. It required the appellant's attendance in Court on 30 November 1991 on the following charge:

"Reason for appearance: You have been accused of possessing an unauthorized book. Hence, hereby, you are advised to appear in court. According to law, non-appearance in court will result in arrest."
[English translation]

In the six day period between the appellant's release and the appointed date for his appearance in Court, he received one further visit by the komiteh who checked to see that he was still at home. The appellant believed that his fate had already been decided and that upon attending Court he would end up being imprisoned or executed. His uncle suggested that he escape without delay. As a result of arrangements made by the uncle, the appellant left Tehran by air on the same day he was supposed to appear at Court, namely 30 November 1991. The appellant had, fortuitously he claims, applied for a passport twelve months earlier and shortly before his arrest received the passport which had been issued on 9 November 1991. He claims to have experienced no problems at Tehran airport. He attributes this to the fact that his name was not then on a wanted list. The appellant travelled directly to Malaysia where, after receiving further funds from his uncle, he secured a false Maltese passport on which he arrived in New Zealand on 24 December 1991. Interviewed at the airport the appellant made no mention whatever of the facts of his case and claimed to have left Iran due to "limitations of work and social life". Specifically asked whether he had ever been arrested or detained, he answered in the negative. He was granted a thirty-day visitor permit and after consulting a solicitor lodged an application for refugee status on 23 January 1992. It was accompanied by a detailed statement containing the foregoing account.

THE DECLINE OF REFUGEE STATUS AT FIRST INSTANCE

The appellant was interviewed by the Refugee Status Section on 30 April 1992. By letter dated 27 May 1992, he was advised that his application for refugee status had been declined. The grounds given by the Refugee Status Section were expressed in the following terms:
"While it is recognized that [the appellant] has a fear of persecution and that the persecution is for United Nations Convention reason, we do not accept that his fear is well-founded for the following reasons:
...[the appellant] broke the law when in possession of a banned book. Fleeing a country to avoid facing the consequences of breaking the law of a county [sic] is fleeing from prosecution and not persecution. Fleeing from a country to avoid prosecution is not grounds for refugee status under the United Nations Convention.
[The appellant's] credibility is in doubt for the following reasons:

(a)He applied for a passport prior to 14 October 1991, issued to him 9 November 1991 and then claims he was arrested on 15 November 1991.

(b)He stated that he had received a formal notification to report to the Revolutionary Court in Iran yet was not able to produce the notification as evidence.

(c)He failed to disclose to the immigration officer at the Auckland airport when he was interviewed on his arrival in New Zealand that he had been detained in custody in Iran. He declared that he was fearful to return to Iran as there was no future and no work in Iran."

A number of the grounds relied on by the Refugee Status Section require comment.

THE CREDIBILITY FINDING

The decision explicitly accepted:

"...that [the appellant] has a fear of persecution and that the persecution is for a United Nations Convention reason...."

but went on to find that the fear of persecution was not well-founded by reason of the fact that the appellant was in fear of prosecution, not persecution. It is implicit in these findings that the appellant's account is accepted. But the letter thereafter also asserts that the appellant's credibility "is in doubt" for three stated reasons. If the Refugee Status Section were of the view that the appellant was not a credible witness, it could hardly accept, at the same time, that he had a fear of persecution and that the persecution was for a Convention reason, for such findings could only be made if central aspects of the appellant's case were accepted. The findings, as expressed, are mutually exclusive. If, on the other hand, the statement that "credibility is in doubt" means no more than that the Refugee Status Section was unsure as to the appellant's credibility, there was a duty to give the appellant the benefit of the doubt. In recent decisions of the Authority it has been said that unless it is possible to say that the decision-maker is "sure that the appellant's account is untrue", the benefit of the doubt must be given. See Refugee Appeal No. 758/92 Re WL (12 May 1994) 15. The more so where, as that case illustrates, the consequences of a wrong or mistaken rejection of the appellant as a refugee would be "disastrous", i.e. the higher the risk to the appellant (were the account true), the higher the threshold of "sureness" before it can be said that the account is untrue. See as a further example of formulating the credibility issue in Refugee Appeal No. 992/92 Re PS (12 May 1994) 8:

"However, in the end, the Authority cannot say that the appellant's credibility has been destroyed and in these circumstances the appellant must be given the benefit of the doubt."

We turn now to the three reasons given for doubting the appellant's credibility. They were:

1. The fortuitous timing of the issue of the passport on 9 November 1991 and the arrest on 14 November 1991.

2. The appellant's failure to produce the Court summons.

3. The appellant's failure to disclose to the interviewing officer at Auckland airport the fact that he (the appellant) had been detained in Iran and had instead claimed that he was fearful of returning to Iran because there was no future and no work in that country.

As to the first reason (the timing of the issue of the passport), we accept that the timing is remarkably fortuitous. However, there is no rational basis for asserting, without more, that the two events could not have coincided, or that the only explanation for the coincidence is that the appellant's account is a fabrication.

ASSESSMENT OF CREDIBILITY AND DOCUMENTARY EVIDENCE

As to the second ground (non-production of the Court summons), it must be borne in mind that the requirement of evidence should not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. This Authority has frequently applied the following statement from the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status para 196:

"It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an application can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt."

Here, the Refugee Status Section accepted substantial parts of the appellant's account as credible. It was unreasonable, in the absence of a clear finding that the appellant's case had been fabricated, to attack his credibility on the basis that documentary evidence in support of the claim had not been produced. This principle has been consistently applied by the Authority:

(a)Refugee Appeal No. 1/92 Re SA (30 April 1992) 55:

"Clearly there must be valid reasons to doubt the credibility of an applicant and there is no requirement that testimony which is plausible, credible and frank must be supported by external corroboration."

(b)Refugee Appeal No. 58/91 Re ZAR (27 March 1992) 9:

"This adverse finding on credibility was compounded by the Refugee Status Section further misdirecting itself. The relevant sentence reads (in part):
"It is considered that your client's claim...lacks credibility in view of the above and in the absence of evidence to the contrary".
[emphasis added]

This statement fails to give recognition to the fact that while it is a general legal principle that the burden of proof lies on the person submitting a claim, an applicant may often not be able to support his statements by documentary or other proof and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. Too high a standard of proof must not be imposed: UNHCR Handbook on Procedures and Criteria for Determining Refugee Status para 196."

(c)Refugee Appeal No. 474/92 Re KA (12 May 1994) 19:

"Inherent in the uncertain nature of these issues is the difficulty of proof. For these reasons it is unhelpful to think in conventional legal terms such as the burden of proof and the rules governing the admissibility of evidence. Often an applicant may not be able to support his or her statements by documentary or other proof and as the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status emphasizes at para 196, the cases in which an applicant can provide evidence of all his or her statements will be the exception rather than the rule. The requirement of evidence should thus not be too strictly applied."

AIRPORT INTERVIEW

As to the third ground (the appellant's failure to apply for refugee status at the airport), the Refugee Status Section have failed to address the appellant's clear and rational explanation for his failure, namely, that he was afraid he would be sent back to Iran if he disclosed the true circumstances of his case. A clear finding was required (with supporting reasons) as to whether the truthfulness of this explanation was accepted or rejected. We adopt and apply the following passage from Professor Hathaway, The Law of Refugee Status (1991) 84-85:

"... two forms of caution are appropriate before any inferences are drawn that might discount the sworn testimony of a refugee claimant.

First, the decision-maker must be sensitive to the fact that most refugees have lived experiences in their country of origin which give them good reason to distrust persons in authority. They may thus be less than forthright in their dealings with immigration and other officials, particularly soon after their arrival in an asylum state. The past practice of the Board of assessing credibility on the basis of the timeliness of the claim to refugee status, compliance with immigration laws, or the consistency of statements made on arrival with the testimony given at the hearing is thus highly suspect, and should be constrained in the contextually sensitive manner discussed previously...

Second, it is critical that a reasonable margin of appreciation be applied to any perceived flaws in the claimant's testimony. A claimant's credibility should not be impugned simply because of vagueness or inconsistencies in recounting peripheral details, since memory failures are experienced by many persons who have been the objects of persecution. Because an understandable anxiety affects most claimants compelled to recount painful facts in a formal and foreign environment, only significant concerns about the plausibility of allegations of direct relevance to the claim should be considered...."

WHETHER APPELLANT IN FEAR OF PROSECUTION, NOT PERSECUTION

The Refugee Status Section decision makes no reference to the decision of the Authority in Refugee Appeal No. 29/91 Re SK (17 February 1992) in which there is a substantial discussion of the principles by which prosecution is distinguished from persecution. We do not intend repeating what we have there said. For the purpose of the present case the following principles may be noted:

1. Refugee status may not be invoked by an individual solely on the basis that he is at risk of legitimate prosecution or punishment for breach of the ordinary criminal law.

2. However, it must be recognized that it is possible for a government with persecutory intent to use the criminal law as a means of oppressing its opponents.

3. It is relevant to enquire whether the offence comprises an attempt to criminalize the exercise of a fundamental human right, at least insofar as the criminal prohibition applies in circumstances not recognized as emergency exceptions under international human rights law. This category of offence is known as an "absolute political offence".

In the present case the Authority has no hesitation in classifying the offence alleged against the appellant as an absolute political offence and for that reason it is not possible to decline his application for refugee status on the supposed basis that he is fleeing from prosecution and not persecution. The International Covenant on Civil and Political Rights 1966 was signed by Iran on 4 April 1968, and ratified on 24 June 1975: Middle East Watch, Guardians of Thought: Limits on Freedom of Expression in Iran (August 1993) 21. As a member of the international community of nations and as a signatory to the Covenant, Iran is bound by universal norms guaranteeing freedom of thought, conscience, religion and expression. Article 18 of the Covenant reads in part:

"1.Everyone shall have the right to freedom of thought, conscience and religion..."

Article 19 reads in part:

"1.Everyone shall have the right to hold opinions without inference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a)For the respect of the rights or reputations of others;

(b)For the protection of national security or of public order (ordre public), or of public health or morals."

We can find nothing in Article 19(3) of the Covenant that would justify the prosecution and punishment of the appellant for the possession of The Satanic Verses. See further, Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (1993) 353-358. As observed at 336 of this text, freedom of opinion and expression is not infrequently termed the core of the Covenant and the touchstone for all other rights guaranteed therein.

THE ISSUES

The Inclusion Clause in Article 1A(2) of the Refugee Convention relevantly provides that a refugee is a 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 is unable or, owing to such fear, is unwilling to return to it."

In the context of this case the four principal issues are:

1. Is the appellant genuinely in fear?

2. if so, is it a fear of persecution?

3. If so, is that fear well-founded?

4. if so, is the persecution he fears persecution for a Convention reason?

In this regard we refer to our decision in Refugee Appeal No. 1/91 Re TLY and Refugee Appeal No. 2/91 Re LAB (11 July 1991). In the same decision this Authority held that in relation to issue (3) the proper test is whether there is a real chance of persecution.

ASSESSMENT OF THE APPELLANT'S CASE

We have decided to accept the appellant as a credible witness notwithstanding minor discrepancies in his account as these are due, in the main, to translation errors. As to the fact that his passport was issued days before his arrest, we have already described this circumstance as remarkably fortuitous. But standing on its own, no adverse inference can be drawn and at worst, the appellant would need to receive the benefit of the doubt. As to the inconsistent account given at the airport interview, we have already explained that the appellant's explanation is both clear and credible, namely that he was afraid of being returned to Iran and honestly (but mistakenly) withheld the true circumstances from the interviewing officer. It could also be said that the appellant was fortunate indeed to have an uncle with sufficient influence and wealth to secure his (the appellant's) release. However, corruption and bribery in Iran is common and the appellant's account is consistent with known facts. See, for example, the United States Department of State Country Reports on Human Rights Practices for 1993: Iran (February 1994) 1176 ("widespread corruption and black-market activities continue"). This credibility finding distinguishes the present case from Refugee Appeal No. 744/92 Re HB (30 March 1994), a case in which a claim to refugee status by an Iranian national based on the alleged discovery in his possession of The Satanic Verses failed on the threshold issue of credibility. Returning the four issues for determination, the Authority finds in relation to the first that the appellant has a bona fide subjective fear of persecution. As to the second, we accept also that the lengthy term of imprisonment feared by him would amount to persecution in that such penalty is grossly disproportionate for an offence based on the appellant's exercise of a basic human right explicitly recognized in an international Covenant to which Iran itself is a party. See further, Hathaway, The Law of Refugee Status (1991) 112 et seq. While freedom of opinion, expression and information is ranked second in the hierarchy of rights (see Hathaway, The Law of Refugee Status (1991) 109) recognition must be given to the importance of the right, the degree of its infringement (namely the absolute prohibition on possession of The Satanic Verses) and the arbitrary nature of the administration of "justice" in Iran. It is acknowledged that little, if anything, is known of the punishment prescribed by Iranian law for the possession of The Satanic Verses. What is known is that the justice system of the Islamic Republic of Iran falls far short of internationally accepted standards. See Lawyers Committee for Human Rights, The Justice System of the Islamic Republic of Iran (May 1993) and Department of State Country Reports on Human Rights Practices for 1993: Iran (February 1994) 1176, 1177 from which the following quote is taken:

"In January the Special Representative reported that trials in Iran continue to fall far short of internationally-accepted standards. Trials by revolutionary courts, especially, cannot be considered fair or public. Some trials are conducted in secret. If the trial is staged publicly, it is generally because the prisoner has already been forced to confess to a crime. Persons tried by the revolutionary courts (including drug trafficking cases) enjoy virtually no procedural or substantive safeguards. The accused are often indicted under broad and all-encompassing charges such as "moral corruption", "antirevolutionary behavior", and "siding with global arrogance". Trials lasting 5 minutes and less are common.

The right to a defense counsel is theoretically provided for in Iranian law and in the Constitution, but in the revolutionary courts defendants are not known to have access to a lawyer; moreover, they are not able to call witnesses on their behalf or to appeal. Courts have failed to investigate allegations by defendants that they were subjected to torture during pretrial detention. Some persons have been imprisoned beyond the limit of their sentence and even executed after the formal expiration of their prison term."

Addressing now the issue of well-foundedness, recognition must be given to the extreme, if not fanatical, intensity behind the fatwa. Not only has Salman Rushdie been sentenced to death, but also Hitoshi Igarashi, the Japanese translator of The Satanic Verses, was stabbed to death in July 1991 by an unknown assailant who evaded capture. In the same month, Ettore Capriolo, the Italian translator of the book, was stabbed and injured, and has also been forced to live under police protection. Around the world, numerous book stores carrying the book have been bombed and its publishers threatened: Middle East Watch, Guardians of Thought: Limits on Freedom of Expression in Iran (August 1993) 89. In October 1993, William Nygaard, the Norwegian publisher of The Satanic Verses and long-time friend of Salman Rushdie was shot and seriously injured: NZ Herald, Tuesday, October 12, 1993; Time, October 25, 1993, 15. Those Iranians in exile who have condemned the fatwa have themselves been subjected to intense vilification in the Iranian press for being instruments of Western culture and interests, enemies of Islam and the Islamic revolution, monarchists and imperialist lackeys. Their work has been banned in Iran by the pronouncement of a senior cleric, and the terms of the original fatwa extended to them by the official news organ of Supreme Religious Leader Ayatollah Khamenei: Middle East Watch, Guardians of Thought: Limits on Freedom of Expression in Iran (August 1993) 91. Given the lengths that the Iranian government has gone to to enforce the ban on Rushdie's book and to attack those responsible for its publication and dissemination, both inside and outside Iran, there is no doubt that there is a real chance of persecution were the appellant to return to Iran. The third issue is answered in the affirmative. Addressing now the final issue, namely whether the persecution feared by the appellant is for a Convention reason, this too must be answered in his favour. The relevant Convention grounds are political opinion and religion. In a theocratic state such as Iran, religion and politics are inseparable, a point we have made on repeated occasions. See, for example, Refugee Appeal No. 452/92 Re FCS (11 December 1992) and Refugee Appeal No. 300/92 Re MSM (1 March 1994). The point is underlined by Middle East Watch, Guardians of Thought: Limits on Freedom of Expression in Iran (August 1993) 89, commenting specifically on the fatwa against Salman Rushdie:

"In reality, it is not possible to draw a line of separation between the Iranian government and Ayatollah Khomeini's fatwa. In a system of governments based on velayat-e faqih [mandate of the Jurists of Islamic law and faith], there is no authority superior to that of the supreme religious leader. Since February 1989, the fatwa has been reaffirmed by the new Supreme Religious Leader Ayatollah Ali Khamenei, president Rafsanjani, Head of the Judiciary Ayatollah Yazdi, and members of the parliament. On February 17, 1993, for example, two-thirds of the Majlis, endorsed the death sentence against Rushdie. The $1 million reward offered on February 15, 1989 by Hojatoleslam Hassan Sane'i, an influential Iranian cleric at the head of the semi-autonomous Fifteenth of Khordad Foundation and former aid to Ayatollah Khomeini, to anyone who kills Salman Rushdie has been twice increased-in March 1991 to $2 million, and in February 1993 by an unspecified amount. In sum, the Iranian government is responsible for the fatwa."

CONCLUSION

In summary our conclusions are as follows:

1. The appellant holds a bona fide subjective fear of returning to Iran.

2. The harm feared by him is of sufficient gravity to constitute persecution.

3. His fear is well-founded and there is a real chance that the harm feared could occur were he to return to Iran.

4. The harm feared by the appellant is connected with or related to one of the five Convention reasons, namely his religion and political opinion.

For these reasons we find that the appellant is a refugee within the meaning of Article 1A(2) of the Refugee Convention. Refugee status is granted. The appeal is allowed. (Chairman)  
 
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