REFUGEE APPEAL NO. 70100/96
|R P G Haines (Chairman)
|A B Lawson (Member)
|S R Sage (Member)
|Appearing for the Appellant:
|Appearing for the NZIS:
|Date of Hearing:
|13 & 20 June 1997; 10 October 1997
|Date of Decision:
|28 November 1997
This is an appeal against the decision of the Refugee Status Branch of the New Zealand Immigration Service declining the grant of refugee status to the appellant, a national of the Islamic Republic of Iran.
This is the second time that the appellant has appealed to this Authority. As a consequence, this appeal can only succeed if the appellant is able to demonstrate first, that the jurisdictional criteria specified by the Terms of Reference for second or further appeals have been satisfied and second, that he is a refugee within the meaning of Article 1A(2) of the Refugee Convention and not otherwise excluded from the refugee regime.
The Refugee Status Branch and this Authority operate under Terms of Reference. The current Terms of Reference came into force on 30 August 1993. Under Part 1, the Refugee Status Branch has jurisdiction to consider a second or further refugee application only if the criteria specified by paragraph 3 are met. Paragraph 3 provides:
"A person who has previously had a claim to refugee status finally determined by the Refugee Status Section or the Authority has no right to have a further claim accepted for consideration by the Refugee Status Section, unless since the original determination, circumstances in the claimant's home country have changed to such an extent that the further claim is based on significantly different grounds to the original claim."
Under Part 2 of the Terms of Reference, the Refugee Status Appeals Authority has jurisdiction to hear an appeal where the Refugee Status Branch has concluded that the criteria stipulated by paragraph 3 have not been met. Paragraph 5(1) of the Authority's Terms of Reference confers power on the Authority:
"(f)To determine an appeal, by a person who has made a further claim to refugee status, against the decision of the RSS not to accept the claim for consideration because, since the original determination, circumstances in the claimant's home country have not changed to such an extent that the further claim is based on significantly different grounds to the original claim."
The jurisdictional issues raised by second appeals are fully canvassed in Refugee Appeal No. 2254/94 Re HB (21 September 1994) 16-25 and in Refugee Appeal No. 2245/94 Re SS (28 October 1994) and no purpose would be served by repeating what is said in these cases. The essential issue to be addressed is whether, since the original determination, ie, the first appeal:
1. Circumstances in the appellant's home country have changed.
2. To such an extent that it could be said that the further claim is based on significantly different grounds to the original claim.
To determine this issue, it is necessary to examine the factual basis of both the first and second refugee applications submitted by the appellant. However, before this is done some explanation is required of the procedural history of the appellant's refugee claim.
The appellant is a 36 year old single man who arrived in New Zealand on 19 February 1992 at Auckland International Airport where, upon questioning, he applied for refugee status. As a result, a visitor's permit was issued. A formal refugee application was subsequently lodged on 19 March 1992 through his then representative, the Refugee and Migrant Service, Auckland. The interview with the (then) Refugee Status Section of the New Zealand Immigration Service took place on 16 December 1992. By letter dated 17 May 1993 the application was declined. From this decision the appellant appealed to this Authority. The appeal was heard by a differently constituted panel of this Authority on 18 October 1994. At that hearing the appellant was represented by an immigration consultant, Mr G Leckey. In a decision delivered on 31 January 1995 (Refugee Appeal No. 1606/93), the appeal was dismissed because the appellant's claims were not believed.
From Wednesday, 15 February 1995 to Friday, 24 February 1995 the appellant held a protest at the ground floor entrance to the building in which the Authority is housed. The protest was in the form of a hunger strike and for the first three days the appellant sealed his lips by driving three safety pins through them. The protest attracted publicity in both the printed media and on television. On Friday, 24 February 1995, at the conclusion of the protest, the appellant lodged a second refugee application in which he claimed to be a refugee sur place. The appellant's written statement which accompanied the refugee application referred to the "considerable media coverage" his protest had received, and it was claimed that the coverage had caused the Iranian Embassy in Wellington to become aware of not only the appellant's protest, but also of the fact that the appellant had applied for refugee status in New Zealand and of the grounds of that application. The appellant claimed that were he now to return to Iran, he would face persecution. He also claimed to be a strong believer in democracy. Subsequently it was said that as a result of his protest activities in New Zealand, his father had been detained by the Iranian authorities and questioned about the appellant. During the course of the interrogation, the father had been shown a photograph of the appellant taken in Auckland during the protest and which had been published in an Auckland suburban newspaper.
On 11 April 1995 the appellant was interviewed by the Refugee Status Branch of the New Zealand Immigration Service in connection with his second refugee application. After a long delay, the application was declined in a letter dated 29 May 1996 on the grounds that the jurisdictional criteria specified by paragraph 3 of Part 1 of the Terms of Reference had not been satisfied in that there had been no change of circumstances which would allow it to be said that the appellant's further claim to refugee status was based on significantly different grounds to the original claim.
From the Refugee Status Branch decision dated 29 May 1996, the appellant has appealed. This appeal will be referred to as his second appeal.
The hearing of the second appeal commenced before the present panel of the Authority on 13 June 1997 and continued on 20 June 1997. Both days were fully occupied with the hearing of the appellant's evidence. The adjournment at the close of the second day was taken just prior to the appellant's re-examination by Mr Bird who has had conduct of the appellant's case since shortly after the filing of the second appeal. By consent, the hearing was adjourned to 4 August 1997. However, Mr Bird subsequently advised that owing to other pressing commitments he would be overseas and therefore unable to appear on that date. In the result, the hearing did not resume until 10 October 1997. On that date the appellant, by consent, called out of turn his only witness, namely, Mr A. The hearing of the evidence of this witness occupied just over half a day. Thereafter, the appellant's evidence resumed with his re-examination by Mr Bird. At the conclusion of the evidence, closing submissions were made orally.
Subsequent to the hearing, the appellant was afforded an opportunity to comment on case law discovered by the Authority's own researches.
The Authority wishes to record its appreciation for the careful and comprehensive submissions made by Mr Bird, first in his written Memorandum dated 11 June 1997, second in his further Memorandum dated 8 October 1997 and in his oral submissions. The responsible manner in which Mr Bird has presented his client's case has simplified the issues for determination and has allowed the Authority's inquiry to be more relevantly focused.
THE FACTUAL BASIS OF THE APPELLANT'S FIRST REFUGEE APPLICATION
As already mentioned, on 19 February 1992 when the appellant arrived at Auckland International Airport, he applied for refugee status. An interview was held at the airport and a record of what the appellant then said became part of the evidence in both the first and second refugee applications. Subsequently, the appellant tendered a two page statement handwritten in Farsi which, when translated, ran to two and a half typed pages. This will be referred to as his first statement. Subsequently, by letter dated 8 December 1992 a more comprehensive typed statement of some five and a half pages was lodged in anticipation of the first Refugee Status Branch interview scheduled for 16 December 1992. We will refer to this statement as the second statement. Subsequent to the Refugee Status Branch interview, an interview report was compiled. It is four and a half typed pages in length. It was sent to the appellant for comment and correction. By letter dated 3 March 1993, the Refugee and Migrant Service advised that the appellant had read the report and had no comments to add. Subsequently, at the hearing of the first appeal on 18 October 1994 the appellant was questioned in detail concerning his claims. There is no transcript of the hearing with the result that the salient points of the appellant's case on his first appeal must be found in the Authority's decision delivered on 31 January 1995.
We do not intend to analyse at length the differences and variations between the airport interview, the first and second statements, the evidence given at the Refugee Status Branch interview and the evidence given at the hearing of the first appeal. For the purpose of providing a narrative of the appellant's claims, we intend to refer only to the second statement, highlighting the essential elements.
The appellant's claims, as presented in his second statement filed on 9 December 1992, centred on the fact that he came from a family which was strongly pro-monarchist in that his father was a member of the Shah's political party and the six children, comprising five brothers and one sister, were encouraged by their parents to actively work for the return of the Shah and his family to Iran. As a result, the eldest brother was suspended from his job in 1982 for distributing pro-Shah pamphlets at his office. He was reinstated after three months. The sister, a school teacher was dismissed in 1983 after being found in possession of monarchist literature. The fifth eldest child was arrested in 1990 and imprisoned for six months after being caught distributing photographs and pro-Shah pamphlets at his place of work. This brother subsequently left Iran to work in Japan. It was said that he could not return to Iran. The youngest brother was arrested in November 1991 and sentenced to two years imprisonment after he too was caught distributing photographs and pro-Shah pamphlets.
For his part, the appellant was jailed for three months in January 1982 when caught distributing pro-Shah pamphlets at the high school he was then attending. After his release he continued with his schooling and later successfully completed his military service. In June 1986, following his discharge from the army, he found employment with a bank, but when the manager found out two months later that the appellant had been jailed for anti-government activities, he was dismissed.
Thereafter the appellant went into business on his own account, working as a trader, buying cheap clothes from coastal towns and selling them at a profit in other parts of Iran. Looking for a better future, he obtained a passport in March 1987 and approximately 15 months later, in June or July 1988, travelled to Turkey and then to Bulgaria in search of employment. His search was unsuccessful, as was an attempt to travel to Sweden.
At the end of July 1988, upon his return to Iran, the appellant took part in a pro-Shah demonstration in front of Tehran University. Along with about 300 other people he was arrested and detained for 10 days. During this period he was interrogated and claims that he was beaten with cables and burnt with hotplates on his right hand and left shoulder. His interrogators wanted information concerning the leaders of the demonstration. On the tenth day the appellant was released.
Thereafter the appellant went to live with one of his brothers and found employment as an auto-electrician. Subsequently the appellant moved to Kuwait where an aunt lived and there found work as a driver for a carpentry company. However, following the invasion of Kuwait by Iraq, the appellant returned to Iran. He claims that apart from his clothes and personal effects, he returned with a large quantity of books and pamphlets relating to the Shah, along with photographs of Reza Pahlavi (the Shah's son). On return to his home town he began to distribute the photographs and pamphlets to friends and also left them at houses and other buildings. In October 1990 the appellant was arrested and required to confess to his activities. When he refused he was beaten with cables and had one of his finger-nails extracted. After 10 days of interrogation the appellant was jailed for six months. He was released only after a friend surrendered the title deeds to his (the friend's) house as a bond. The appellant had to report to the authorities fortnightly.
With the assistance of a friend the appellant found work in a laboratory developing photographs. However, after two months the authorities discovered that he was in employment and required that the appellant be dismissed. He said that he was unable to leave Iran at this time as the authorities had seized his passport. The appellant would subsequently deny at the first appeal hearing that his passport had been seized. Instead, he told the Authority that the passport had in fact been held by the appellant's cousin. Be that as it may, by paying a bribe to an official the appellant was able to leave Iran travelling on his own passport and he left for Malaysia on 15 February 1992. He claimed that following his arrival in New Zealand he had been advised by his family that the authorities had been looking for him, had interrogated his father and had demanded to know the appellant's whereabouts. The father had told the authorities that he did not have this information. The appellant also claimed that were he to return to Iran he would be persecuted as no matter what happened, he would continue to work for the reinstatement of the monarchy.
As to these claims, the first panel of this Authority in its decision delivered on 31 January 1995 found that the appellant was not a credible witness and the penultimate paragraph of the decision records:
"Our conclusion is, that we do not accept the appellant's account of his political activities, and punishments. We therefore find that the appellant is not in fear of persecution for a Convention reason."
RECENT DEVELOPMENTS: THE FACTUAL BASIS OF THE APPELLANT'S SECOND REFUGEE APPLICATION
The second refugee application is based on a claim that the appellant is at risk of persecution at the hands of the authorities in Iran not only for the reasons outlined in his second statement, but also for reason of his protest activity outside the Authority's premises and the publicity which his actions attracted to his claim to refugee status and to the allegations that he has made against the authorities in Iran.
Once again, it is not possible to detail all of the evidence given during a protracted three day hearing. What follows is a summary only.
It is to be remembered that the decision of the first panel of this Authority was delivered on 31 January 1995. The appellant says that on Tuesday, 14 February 1995 he learnt from his consultant, Mr Leckey, that the appeal had been dismissed. He claims that upon his return home he pondered over the matter and decided that he would hold a hunger strike outside the Authority's premises. He hoped to thereby prove that he had been imprisoned in Iran for political reasons and had been tortured. He believed that protest action was necessary to save his life. He claims that he did not think of the consequences of his actions and in particular, the consequences of the publicity he would attract. He claims that only three people knew of his intended actions, namely Mr Leckey, his girlfriend and a flatmate, Mr B, an Iranian national who had also applied for refugee status on the basis of his pro-monarchy activities in Iran. He came from the same town as the appellant and had also worked as a trader and had visited Turkey and Bulgaria.
The appellant says that on the morning of 15 February 1995 he drove into town alone, arriving outside the Authority's premises at approximately 9.00am or 10.00am. He had with him two placards made for him by Mr B. He cannot now recall what was written on the placards, but one of the newspaper clippings produced in evidence, namely the New Zealand Herald, Thursday, February 16, 1995 reports that one of the signs said:
"I came to New Zealand to save my life - after three years the New Zealand Government has decided that my life is not worth saving."
The appellant's evidence is also that as he was driving into the city he had a spontaneous idea to pin his lips together and it just so happened that there were three safety-pins already in the vehicle which would allow him to carry out his idea. He had not purchased the pins personally and had no idea why they were in his motor vehicle. After parking his vehicle in the square adjacent to St Patricks Cathedral, he inserted three safety-pins through his lower and upper lips, thereby sealing his mouth.
At this point it is convenient to introduce the fact that the appellant's protest was joined by another Iranian asylum seeker, Mr A, who also came from the appellant's town. Mr A's appeal to this Authority was dismissed on 31 January 1995, being the same date as that on which the appellant's appeal was dismissed (see Refugee Appeal No. 1804/93 Re NNB (31 January 1995)). Mr A's evidence was that on Wednesday, 15 February 1995 he went into the Refugee Status Branch (situated in a building adjacent to the Authority's premises) in order to enquire about his work permit. As he left the premises he saw the appellant's protest and after a brief discussion with him, decided that he would join the protest. He claims that he took up his station alongside the appellant at the end of the day. The appellant's evidence is that Mr A joined him at about midday.
The appellant's protest attracted immediate attention. The Authority was told that one or more television stations took an interest but there is no record of the footage taken or of the footage (if any) broadcast. There is, however, an extensive collection of press clippings to which we will refer.
On the day after the commencement of the protest the New Zealand Herald published an article entitled "Lips pinned in protest", NZ Herald, Thursday, February 16, 1995 which was in the following terms:
"Workers and visitors to a central Auckland office block were horrified yesterday by an Iranian man's bizarre protest against being refused refugee status. [The appellant] had sealed his lips by driving three safety pins through them as part of a hunger strike outside the secretariat of the Refugee Status Appeals Authority in Swanson Towers.
The 33-year-old Iranian was unable to speak without loosening the pins, but he indicated an intention to continue a round-the-clock vigil without food or liquids.
He spent most of the day by himself with a placard declaring: "I came to New Zealand to save my life - after three years the New Zealand Government has decided that my life is not worth saving".
But last night he was joined by other members of Auckland's Iranian community, one of whom said [the appellant] preferred to die in this country rather than be deported to face jail and possible execution.
An immigration consultant involved in the case, Mr Gene Leckey, angrily denied a suggestion from the Government that others might have encouraged [the appellant] to seek attention in such a way.
The suggestion came from the Minister of Immigration, Mr Maxwell, who insisted that the Iranian had received fair hearings both from his department and the appeals authority.
Mr Leckey said his client had been fuming over the authority's refusal to believe his accounts of torture during various periods of imprisonment in Iran, allegedly for activities in support of that country's deposed monarchy.
He said [the appellant] initially threatened to kill himself in the authority's offices, but Mr Leckey said he tried to dissuade him by promising to explore other avenues.
One of the [sic] these was a High Court judicial review, which he said a lawyer agreed yesterday to seek.
He also intended complaining to Mr Maxwell about the fact that the authority consists entirely of lawyers, who he said subjected refugees to "inquisitions", rather than members of the wider community.
[The appellant], who arrived in New Zealand almost exactly three years ago, said in his application for refugee status that he had been jailed three times in Iran for his political activities and tortured extensively on two of these occasions.
He said he came from a strongly pro-monarchist family which included an 18-year-old brother who was still in jail for distributing pamphlets and books and another who had fled to a hard life in Japan.
Other family members were unable to get work because of their political activities.
His application referred to scars from torture by hot metal objects, and the removal of a fingernail.
Although the fingernail had since grown back, [the appellant] yesterday pointed to marks there and on a hand and upper arm as evidence of torture".
Thus, from the outset, the appellant's protest received full publicity concerning his name, nationality, details of his refugee application including particulars relating to family members, and the allegation of torture by the Iranian authorities.
In completing the narrative of the protest, we intend to refer to the significant events as reported by the New Zealand Herald.
On the evening of Thursday 16 February 1995 the appellant was taken to Auckland Hospital by ambulance in a weak condition, see "Migrant hospitalised", NZ Herald, Friday, February 17, 1995. Also on Friday, 17 February 1995 a suburban newspaper, the Western Leader published on its front page a large photograph of the appellant's face in which the three safety-pins in his lips were graphically displayed. Beneath the photograph was an article carrying the title "Death preferred to deportation". See Western Leader, Friday, February 17, 1995. On Saturday, February 18, 1995 it was reported that the appellant was to have the safety-pins removed, see "Iranian to have pins out", NZ Herald, Saturday, February 18, 1995. On Monday, 20 February 1995 the appellant was discharged from Auckland Hospital, see "Safety-pin protester to persist", NZ Herald, Monday, February 20, 1995. In this article it is reported that Mr A (not mentioned by name, but described as "a second Iranian"), had been taken to hospital late on Friday, 17 February 1995 but was "evicted several hours later after refusing treatment". Mr Leckey is reported as saying that the authorities had asked Mr A to leave after deciding that he was not in danger. Be that as it may, the two men resumed their protest on Monday, 20 February 1995, see "Iranians keep up protest hunger strike", NZ Herald, Tuesday, February 21, 1995. It is to be noted that in this and the previous reports Mr A is described as "the man who does not want to be identified". Indeed, at no point is Mr A identified in the media by name. During the protest he was served with a removal order and on Wednesday, 22 February 1995 the New Zealand Herald reported that he (Mr A) intended appealing against the order. See "Iranian will appeal deportation", NZ Herald, Wednesday, February 22, 1995. The same report notes that:
"The men were not at their Swanson Towers protest site in Hobson Street when the New Zealand Herald visited last night".
On Thursday, 23 February 1995 the New Zealand Herald published what were said to be the comments of the Iranian Embassy on the hunger strike. We reproduce in full the article "Torture claims denied", NZ Herald, Thursday, February 23, 1995:
"The Iranian Embassy in Wellington says Auckland hunger-striker [the appellant] is using tactics of a "despicable fashion" in trying to claim refugee status in New Zealand. The embassy said last night that it would help [the appellant] return to Iran and that claims of being tortured in Iranian prisons from a man who tortured himself by sealing his lips together with safety pins were "ridiculous." The statement denies [the appellant's] claims that he was tortured. [The appellant] and a compatriot began the second week of their hunger strike yesterday."
On the same day the Western Leader published an article "Back protesting minus pins", Western Leader, Thursday, February 23, 1995.
The protest ended on Friday, 24 February 1995. At the risk of moving too far ahead in the chronology, we mention that there is one further press clipping of relevance. In this article it is reported that the appellant had learned from his mother that his father had been visited by the Iranian authorities some time in the week commencing Monday, 20 February 1995 and "taken away". See "Father of protester detained in Iran", NZ Herald, Tuesday, February 28, 1995. The text of the article is reproduced below:
"The father of one of two Iranians who have been on a hunger strike was allegedly visited last week by Iranian secret police and taken away.
An immigration consultant, Mr Gene Leckey, said he was told that yesterday by one of the two, [the appellant].
[The appellant] had telephoned his mother in Iran, and she said the secret police had called with a photograph of [the appellant] with safety pins through his lips which had appeared in an Auckland suburban newspaper.
They had removed his father for questioning and at the time of the telephone call, 28 hours later, he had not returned.
[The appellant] had not telephoned his parents again because he was "petrified" that their situation could deteriorate. The decision to publicise his father's removal was a "calculated risk" he had to take.
After consultation with the Auckland Iranian community the two men had decided to end their hunger strike, which was a protest at being denied refugee status. Fresh applications for refugee status were lodged last Friday.
Mr Leckey said they were seeking the Auckland Refugee Council's assistance to present a petition to the Government seeking asylum for all Iranian refugees. He had 67 of them on his files.
Their plight was exactly the same as the 600 Chinese and some Sri Lankans who had previously been given asylum.
Mr Leckey said the removal of [the appellant's] father would be just one of the grounds for the new application."
To return to the chronology, it is to be remembered that on Friday 24 February 1995 the protest by the appellant and Mr A came to an end. The significant point is that at the same time as ending their protest, both men filed with the Refugee Status Branch second refugee applications. The appellant's application was submitted under cover of a letter from Mr Leckey dated 24 February 1995 in which he stated that the claim for refugee status was based on "the grounds of a refugee sur place". The application comprised the following:
(a)An application for refugee status dated 24 February 1995 and signed by the appellant.
(b)A typewritten Statement of Claim signed by the appellant and dated 24 February 1995. The document is in English, typewritten and three pages in length. In the statement the appellant claimed refugee status as a refugee sur place on the grounds of his political opinion, that political opinion being stated as "strong believer in democracy". It was said that:
"I claim Refugee Status as a Refugee sur place on the grounds of my political opinion (strong believer in democracy). I sincerely believe in democracy and have done so all my life, and believe strongly in all the provisions as outlined in the New Zealand Bill of Rights 1990".
The statement goes on to say that since his arrival in New Zealand the appellant has experienced democracy in action and is now "a confirmed democrat". The third page of the statement addresses the appellant's protest activities and the attendant publicity. The claim is that the publicity has automatically brought the appellant to the attention of the Iranian authorities and caused him to fear severe repercussions were he to return to Iran. The relevant paragraphs are as follows:
"As you may be aware, I have received considerable media coverage. This has caused the Iranian Embassy in Wellington to be aware of my protest, and my views of what happened to me in Iran. This automatically has brought me to the attention of the Iranian authorities and caused me to fear severe repercussions if I were ever returned to Iran.
The Iranian authorities are now aware of my dislike for their government and my alternative political opinion (belief in democracy), as stated earlier, people with this type of opinion are regularly persecuted and detained by the authorities in Iran, and this endorses my claim for Refugee Status as a Refugee sur place. As I have lived in democratic New Zealand for nearly three years, and have experienced freedom and democracy, I cannot return to Iran which has 99,000 people in prisons due to their opposition to the current regime."
(c)Publications by Amnesty International concerning Iran, a letter from the Minister of Foreign Affairs and Trade dated 20 October 1994 of marginal relevance, and extracts from the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status concerning the need to apply the benefit of the doubt principle in refugee determination.
Neither in the refugee application form itself (15 pages) nor in the appellant's typewritten statement is any mention made of telephone contact between the appellant and his family and relatives during the period of the protest from 15 February 1995 to 24 February 1995. However, by fax dated 28 February 1995 Mr Leckey submitted an article which had appeared in the New Zealand Herald on the same day under the heading "Father of protester detained in Iran", NZ Herald, Tuesday, February 28, 1995 the text of which has already been set out in full. It reports that the appellant's father had been taken away by Iranian secret police. According to Mr Leckey's fax, the information contained in the Herald article was conveyed to the appellant "by his mother who was in tears when [the appellant] rang her". Later, on 6 March 1995 Mr Leckey submitted by fax a further press clipping, this time taken from the Western Leader and published under the title "Protester's father quizzed by police", Western Leader, Friday, March 3, 1995. This article reproduced the large photograph originally published in the Western Leader on Friday, February 17, 1995 (featuring the safety-pins in the appellant's lips) above a caption which read:
"The Western Leader photograph that has made its way to Iran".
The fax from Mr Leckey states:
"My client is worried about his father being questioned and was surprised that a copy of the photograph from the NZ newspaper had been received and used in Iran".
The Refugee Status Branch interview in relation to the second refugee application took place on 11 April 1995. The appellant attended in person and was represented by Mr Leckey. Subsequent to the interview the appellant submitted a letter dated 10 April 1995 sent to him by an organization known as GAM, the letterhead showing a GPO Box number at Merrylands, New South Wales, Australia. It purports to confirm that the appellant has been "for the past few years, an Iranian political activist who has distinguished himself in the line of duty". The full text of the letter follows:
"To whom it may concern
This is certify that [the appellant] is, and been for the past few years, an Iranian political activist who has distinguished himself in the line of duty.
He was fortunate to have escaped the wrath of the present regime in Iran. Because of his political convictions, and having had the courage to voice them, he would be subjected to severe recriminations should he have to return to Iran. In the light of the above, and in the interest of Human Rights principles as dictated in the United Nations Charter, it would be most appreciated if every assistance could be rendered to [the appellant] in obtaining asylum in this chosen haven" [sic].
The document is signed by a person describing himself as "Officiating Officer" and is dated 10 April 1995 at Sydney. This document was submitted by Mr Leckey to the Refugee Status Branch under cover of a letter dated 18 April 1995 which relevantly states:
"...also attached the latest letter received by my client substantiating his membership of the Iranian Organisation GAM - which is the organisation which supports the Shah - it is self-explanatory".
As mentioned, after considerable delay the Refugee Status Branch declined the second refugee application by letter dated 29 May 1996. The reason for the decline was that there was nothing new in the appellant's case for refugee status in the sense that both the first and second applications were based on a claim that the Iranian authorities knew that he was a supporter of the Shah, had engaged in pro-Shah activities and although the Iranian authorities may now have a heightened awareness of the appellant, it could not be said that his second application for refugee status was based on changes in Iran of a degree that the second claim was based on significantly different grounds to the original claim. The Refugee Status Branch also suggested, without deciding, that the appellant had not acted in good faith and in this regard referred to the decision of this Authority in Refugee Appeal No. 2254/94 Re HB (21 September 1994). We will return to this case later.
About a month after the Refugee Status Branch declined the decision the appellant instructed Mr Bird.
In support of the appeal Mr Bird on 11 June 1997 filed a Memorandum which (inter alia) addresses the issue of good faith. It was submitted that when the appellant learnt the result of his first appeal he suffered a mental breakdown and his protest activities were essentially "an automatic reaction" to the news and he did not set out deliberately to create or set up grounds for a new refugee application. Mr Bird's submissions also reiterate the appellant's belief that should he return to Iran he will be persecuted because of the circumstances outlined in his first refugee application. The Authority was referred to the evidence that following the publicity given to the appellant's protest actions, his father had been detained by the authorities in Iran.
Submitted as "independent confirmation" of the appellant's claims were three summonses which had not previously been presented at any hearing of the appellant's case. It was said that they were all received on the same day by the appellant, but after the second Refugee Status Branch hearing. They were enclosed with a letter from his parents dated 27 July 1996. For each summons Mr Bird supplied an English translation. As it turned out, two of the translations were inaccurate as to the dates given, the errors being detected by the interpreter through whom all of the evidence at the second hearing was given. This is not an uncommon event given the difficulty involving translating dates from the Persian calender into the Christocentric or Gregorain calender. The dates referred to in this decision are the amended dates.
The first summons is dated 9 March 1993 and was issued by the Ministry of Justice requiring the appellant to attend the XY Court at 9.30am on 13 March 1993. The "subject of accusation" is stated to be "supporter of disbanded Pahlavi regime". It will be seen that the summons was issued approximately 13 months after the appellant left Iran and over one and a half years prior to the first appeal hearing on 18 October 1994. The only mention by the appellant of a summons, however, is recorded in the Authority's first decision dated 31 January 1995 at page 4:
"He spoke to his mother again by telephone three or four months ago on a further visit she made to Dubai, when she told him that a summons had been issued for him".
The second summons, also issued by the Ministry of Justice is dated 22 February 1995 and requires the appellant's father to attend the XY Court at 10.00am on 24 February 1995. The subject of accusation is stated to be "regarding to [the appellant's] file".
The third summons, issued by the Ministry of Justice on 23 April 1996, requires the appellant's father to report to the XY Court at 1.00pm on 25 April 1996. Once again, the subject of accusation is stated to be "regarding to [the appellant's] file".
It is said that the two summonses addressed to the appellant's father were precipitated by the receipt by the authorities in Iran of information concerning the appellant's protest activities outside the Authority's premises. The appellant believes that his father was shown a copy of the article and photograph published on the front page of the Western Leader, Friday, February 17, 1995.
The three summonses are documents of some importance and we will return to them later. As mentioned, they were received by the appellant under cover of a letter from his parents dated 27 July 1996. According to the English translation of that letter, the parents report that since the appellant's departure from Iran they have endured a hard life and have been investigated often by the authorities who accuse them of being traitors because they helped the appellant to leave the country, thereby showing that they were supporters of the Shah. Specific reference is made to the appellant's protest in New Zealand and it is said that since that protest, the family had been watched "continuously". The relevant extract from the letter is as follows:
"If you want to know about us I must say that, since you've left Iran we have a hard life. From time to time, we are frightened because the disciplinary forces say that we are traitor and we helped our son to leave the country. Therefore you still support the Royal family. After your strike in New Zealand, you don't know what they are doing to us.
They investigated me very often but they still haven't heard anything from me. After that bad fire accident we can not find those things you've asked for. I wish I had sent it to you long before but the only things which are left from your and our documents are two court notice and another one that we had found it before. We send them to you along with this letter.
After your strike we are watched continuously. You take care of your self because me and your mother and all family are thinking of you and that's because your situation is still unclear after all those years.
...Meanwhile, don't even think of coming back here because your life is in danger [sic]...."
A more recent letter from the appellant's mother, undated but received in an envelope postmarked 14 May 1997, states (inter alia) that the authorities had wanted to see the appellant's father two more times, the last time being "two and a half months ago", which the Authority understands refers to some time in February 1997. The relevant passage follows:
"On the other side we are thinking of you that after 5 years, still you don't have your residency and we know if you come back to Iran they will execute you. Meanwhile they wanted to see your father 2 more times, The last time was two and half months ago. They question him for 2 or 3 hours [sic]."
For the sake of completeness we mention that on the second day of the hearing, namely 20 June 1997, the Authority was presented with three references from Auckland residents who know the appellant. They speak well of the appellant's character and of his diligence in establishing a new life in New Zealand.
For the appellant it was submitted first, that the jurisdictional requirements for second refugee applications had been met in that circumstances in Iran have changed as a result of the appellant's protest activities in New Zealand, and that that change is such that it could now be said that the second claim to refugee status is based on significantly different grounds to the original claim. It was also submitted on his behalf that because his protest activities in New Zealand were born of desperation and were an essentially automatic reaction to news of the erroneous decline of a genuine refugee application, the appellant had acted in good faith, albeit possibly foolishly. Counsel stressed the enormous mental pressures the appellant was said to be labouring under and on the first day of the hearing the Authority was shown a range of pharmaceuticals the appellant was taking for stress. We should add that on the last day of the hearing the appellant was accompanied by a counsellor from Refugees as Survivors who, with the Authority's permission remained with the appellant during the hearing for support. The Authority was not, however, presented with any medical or psychiatric evidence. Counsel advised that he had endeavoured to persuade the counsellor to give evidence but she had responded that she did not feel that that was her role. Indeed, the only other witness called at the hearing was Mr A who related to the Authority the circumstances in which he came to join the appellant's protest and the adverse consequences which had been visited upon his own family in Iran as a result of his actions in New Zealand during the protest period.
CONCLUSIONS ON THE CHANGED CIRCUMSTANCES ISSUE THE CREDIBILITY ASSESSMENT
In deciding whether there has been a change in circumstances of the kind required by the Terms of Reference, the Authority must necessarily make a determination of the credibility of the appellant and that of his witness Mr A and of the documents which have been produced, in particular, the summonses and the correspondence from Iran. We are conscious of the fact that it is important that we not be influenced by any prior determination of the appellant's credibility, either by the Refugee Status Branch or by this Authority. We have placed entirely to one side all prior assessments of the appellant's credibility and in particular, the adverse assessment made by the Authority in the first appeal. We are mindful of Mr Bird's criticisms of that decision and in particular its regrettable use of a "conclusive" standard of proof in assessing the significance of the scars attributed by the appellant to his experiences at the hands of the authorities in Iran. We have also excluded from consideration the anonymous letters on the Immigration Service file in which various allegations are made against the appellant and Mr A.
The appellant gave evidence before the Authority for almost two full days. The Authority paid close attention to his demeanour and has made allowance for the fact that he gave his evidence through an interpreter. We have also taken into account and made allowance for the forceful submissions made by Mr Bird on the credibility issue and in particular, the mental stress said to be suffered by the appellant. The conclusion the Authority has come to, however, is that the appellant is not a credible witness and that he has not told the truth in relation to any central or important element of his case. In arriving at this finding, the Authority has taken into account the following:
1. The appellant impressed as a manipulative and insincere witness, given to inventing evidence when the occasion required. He maintained a posture of feigned sincerity, reinforced from time to time by theatrical gestures in the form of false tears and feigned distress. The Authority did not at any time detect any element of sincerity or genuineness in his evidence. Without doubt the appellant is able, at a superficial level, to induce sympathy and belief in those with whom he mixes in society. But unlike them, the Authority has had access to all of the evidence tendered by the appellant over the years, not a carefully selected version thereof, and more importantly, has had the opportunity of testing his evidence by reference to information not available to his character witnesses. In the circumstances, we give no weight to their opinions.
2. An egregious example of the appellant's lack of honesty concerns the matter of the summonses. These documents were solemnly tendered in evidence by the appellant as genuine documents which confirmed, in a very material way, his claim that prior to coming to New Zealand he had been persecuted by the authorities in Iran and that, as a consequence of his protest activities in New Zealand, the authorities in Iran had detained and questioned his father on one or more occasions. It is to be recalled that the first summons, dated 9 March 1993, is addressed to the appellant. The second and third summonses are addressed to his father and were issued on 22 September 1995 and 23 April 1996 respectively. It will be seen that the summonses were issued at intervals of two years and one year respectively and span a period of three years. Yet all three documents (and they are photocopies, not originals) contain identical printing faults. For example, there are identical line breaks, dots and other printing imperfections. These were identified by the Authority and put to the appellant for comment. It seems highly improbable, to say the least, that the imperfections in a printed summons form issued in March 1993 would appear in identical position and in identical manner in a summons issued three years later in April 1996. Asked to comment, the appellant said that he "did not know". Nor could he offer an explanation as to why the Authority was given only photocopies of the documents, not the actual forms served by the authorities in Iran.
At the end of the second day of hearing on 20 June 1997 Mr Bird advised the Authority that he was aware of the similarities in the documents to which the Authority had drawn the appellant's attention and said that he would need further time to look into the matter and in particular, to ascertain the whereabouts of the original documents. At the conclusion of the hearing on 10 October 1997, when specifically asked to address the issue of the authenticity of the summonses, Mr Bird, with commendable candour, told the Authority that he had considerable doubts as to the authenticity of the three documents and that the appellant no longer relied upon them.
We believe that the appellant, through Mr Bird, was acknowledging the inevitable. It is clear that the three documents originate from the same "parent" document, being a blank form of summons. From the parent document three summonses have been made by the appellant or someone on his behalf in order to create the impression that the documents are genuine, and thereby purporting to confirm the appellant's claim that his father has been harassed by the authorities as a result of the appellant's protest activities in New Zealand, and that the appellant himself had in truth been persecuted by the Iranian authorities prior to his departure for New Zealand in February 1992.
We regard the tender by the appellant of these three documents as a calculated attempt to mislead the Authority on a major aspect of his case. The impact of this finding on the appellant's personal credibility is, of course, considerable.
It is also impacts on the weight to be given to the claims made by the appellant's parents in their accompanying letter dated 27 July 1996, namely that as a result of the appellant's activities in New Zealand, they have suffered at the hands of the authorities. This letter of 27 July 1996 we regard as a complete fabrication, as we do the subsequent letter dated 14 May 1997.
3. Our adverse credibility finding is reinforced by the fact that on the last day of the hearing, the appellant admitted to telling deliberate lies concerning the contact he had had with his family during and immediately after the protest period.
On the first day of the hearing the appellant told the Authority that at no time between 15 February 1995 and 24 February 1995 did he leave the post he had taken up outside the Authority's premises, other than during his period in hospital. He said that on the evening of 24 February 1995, having ended his protest, he telephoned his eldest brother in Iran to enquire how his parents were. To his surprise he learnt through his brother that the authorities had some two or three days earlier detained his father for 28 hours. It was some two to three weeks after this first call that the appellant telephoned his parents and spoke to his mother. She had asked him why he had gone on protest and had also referred to the arrest of the appellant's father. His mother had told him that the authorities had accused the appellant of leaving Iran illegally and had alleged that his family had helped him to escape. The family had been accused of supporting the Shah. The appellant also learnt through his mother that the authorities had shown to his father a copy of the Western Leader picture. In relation to this evidence, the Authority had on the first day of the hearing, drawn the appellant's attention to the fact that the New Zealand Herald report of Tuesday, February 28, 1995 states that it was through the appellant's mother that he learned of his father's arrest. If the appellant's evidence was true, he had not spoken to his mother as at the date of publication of the article. The appellant said that the newspaper report was incorrect and that he had not spoken to his mother until some time after he had learnt from his older brother of his father's arrest.
In his Memorandum dated 8 October 1997, filed just prior to the last day of the hearing, the Authority was told by Mr Bird that what the appellant had earlier said concerning these telephone calls to Iran was not true. In particular it was not true that the appellant had not left his protest position, nor was it true that it was not until the evening of 24 February 1995 that the appellant learnt of his father's arrest.
Mr Bird went on to say that when he asked the appellant for an explanation for telling lies about this aspect of the case, the appellant had no explanation and that it was a spur of the moment decision. He (the appellant) felt that if he admitted that he had left his protest position, this would lead the Authority to conclude that he was not serious about his protest. He therefore falsely claimed that he had never returned to his flat in the relevant period and for that reason he had to lie about the telephone calls. The Authority was told that the true position was that late in the evening of Monday, 20 February 1995 (which would have been the date the appellant was discharged from hospital, his flatmate visited him at Swanson Towers and reported that his (the appellant's) mother had telephoned the flat asking about the appellant and enquiring "what is he doing". The mother left a message for the appellant to telephone her. This information preyed on the appellant's mind and he decided to speak to his mother. He drove home and at 12.21am on Tuesday, 21 February 1995, he telephoned her. Produced in confirmation of this new evidence was the appellant's telephone account which records that at 12.21am a call was made from the appellant's telephone to a number in Iran said to be the parents' telephone number. In this call, which lasted approximately 7 minutes, the appellant's mother was unable to speak to any extent because she cried a lot. The appellant did, however, learn from her that the authorities had visited the family home to announce that the appellant had engaged in anti-regime activities in New Zealand. At no stage in this conversation was any mention made of the father having been taken away by the authorities.
On possibly the same day, ie, Tuesday, 21 February 1995, or on the following day, the appellant went to Mr Leckey's office and told him that he was going to end his hunger strike because he was now extremely worried about his family. When the protest eventually came to an end on Friday, 24 February 1995, there was no telephone call on that date. But on the night of Saturday, 25 February 1995 or early in the morning of Sunday, 26 February 1995 the appellant was telephoned by his brother who reported, for the first time, that the authorities had arrested the father, detained him for 28 hours and had shown him the photograph of the appellant with the pins in his lips.
The appellant told the Authority, in amplification of the Memorandum, that on Monday, 27 February 1995 he had visited Mr Leckey and reported what he had been told by the brother. He asked Mr Leckey not to disclose the fact of the father's arrest. The appellant claims that contrary to these express instructions, Mr Leckey nonetheless disclosed the information and on the following day, Tuesday, February 28, 1995 the New Zealand Herald published the article, "Father of protester detained in Iran", the full text of which has been set out above.
It was stressed to the Authority during the course of the hearing that the reason for the appellant's lies concerning the telephone calls was that the appellant feared that to admit the truth, he would admit to having left his post and by inference, to not being serious about his protest. The Authority is aware, of course, that lies can be told for many reasons and the fact of a lie does not of itself indicate that a refugee claimant is not telling the truth in relation to the central aspects of the refugee claim. See Refugee Appeal No. 19/94 Re SA (17 February 1992) 6; cf R v Toia  1 NZLR 555, 559 (CA) and R v Manapouri  2 NZLR 407, 413 (CA). However, in the context of the present case, bearing in mind our assessment of the appellant as a witness, we do not accept the explanation given by the appellant for his lies on what is an important aspect of his case. Our assessment is that he will embellish his evidence and bend the facts in whatever direction he feels necessary in order to establish a case for refugee status. If anything, the news the appellant allegedly received from his mother in the early hours of 21 February 1995, if true, provided compelling evidence in support of his refugee claim. The appellant is an intelligent individual who, from his experiences in New Zealand, well understood what was required in order to establish a claim to refugee status. If there was any truth to his story, we are sure that he would have volunteered, at the first opportunity, the disturbing information that his activities in New Zealand had led to serious developments in Iran. Significantly, there is no mention of this phone call of 21 February 1995 in the statement of 24 February 1995. The fact that the appellant has chosen to tell untruths in this regard leads the Authority to the conclusion that nothing said by the appellant can be believed.
4. In this context, the letter from the GAM organization can be disposed of very shortly. It is to be recalled that this letter was advanced as confirmation of the appellant's pro-Shah activities in Iran. We record that when opening the appellant's case on the first day of the hearing, Mr Bird was asked to explain what the GAM organization was. Mr Bird's frank response was that neither he nor his client knew the answer and it was accepted that no weight could be given to the document. The appellant had written to the organization and as a result he had been provided with what was described as a "rubber-stamp letter" provided by "misguided individuals".
In our view, this is yet another example of the appellant's deliberate plan to mislead the Authority in the hope that his lies and deceits will not be discovered. We have looked carefully at the question whether these are the actions of a genuine, but misguided refugee. We are completely satisfied that this is not the case. The appellant is a man who has never had a genuine case for refugee status, but will stop at nothing in order to manufacture a case in the hope of obtaining refugee status and thereby the prize of residence in New Zealand.
5. By way of illustration of the appellant's insincerity and lack of candour we refer to three examples:
(a)In his first statement, received by the Refugee Status Branch on 19 March 1992, the appellant stated that his fifth eldest brother, having been jailed for six months, had subsequently left for Japan. It was stated that should this brother return to Iran, "he would be in grave danger". The appellant then requested that this brother be permitted entry to New Zealand:
"I ask the honourable government of New Zealand to save my brother ... who is in Japan from that hard life and arrange him to come here".
It is not clear whether any formal visa application was ever lodged by the brother, but in the event he did not travel to New Zealand. When on the first day of the hearing the appellant was questioned about this brother, the Authority was told that he (the fifth eldest brother) had returned to Iran in 1996 and was now living in XY near to the parents' home. The appellant had been told by his mother (over the telephone) that the brother was "very sick in the head and in the bowels". The appellant said that he did not know what work his brother had found in Japan during the three to four year period of his residence there even though the brother had telephoned the appellant in New Zealand once every two months. The appellant also said that he did not know why his brother had gone to Japan, nor did he know whether his brother had had any problems with the Iranian authorities since his return to Iran. It struck the Authority that it was strange, to say the least, that the appellant, having specifically asked the New Zealand Government to "save" his brother, knew virtually nothing about his brother's circumstances and in particular his reasons for going to Japan, his activities in that country, his reasons for returning to Iran and whether, since his return, he had had difficulties with the authorities. We believe that the explanation for this aspect of the evidence is that because the appellant makes up his evidence as he goes along, gaps and weaknesses are inevitably exposed.
(b)Very much the same can be said in relation to the appellant's evidence concerning his youngest brother. In his first application (made in February 1992) it was said that this brother was at that time three months into a two year jail sentence for distributing pro-Shah literature. On the first day of the hearing of the second appeal the appellant accepted that the brother would have been released in mid to late 1993. He knew that at that time the brother had returned to live with their parents. Initially the brother had to report to the authorities once every two weeks but the appellant was unable to tell the Authority how long the reporting requirement lasted. More importantly, however, the appellant did not know whether his youngest brother had had any further problems with the authorities. It was put to the appellant that it seemed strange that even though the youngest brother was living with the appellant's parents and even though the appellant spoke to them (the parents) by telephone at regular intervals, the appellant knew nothing about his youngest brother, notwithstanding a three year period in which he had had every opportunity to find out how he was doing. To this the appellant replied that when he telephoned his parents he never asked about his youngest brother. When it was put to him that the manner in which members of his family in Iran were treated by the authorities had a direct relevance to his own refugee application in New Zealand, the appellant could only reply that his case was "different". We believe that the inherently implausible evidence given by the appellant in this regard is once again explicable by the fact that there is no element of truth to his claims.
There are further troubling aspects of the appellant's evidence concerning his youngest brother. By letter dated 8 March 1993 the appellant's father wrote to the appellant reporting that the authorities had visited on 5 March 1993 asking about the appellant's whereabouts. The letter also went on to say that the youngest brother:
"...is asking about you and gives his regards".
It is to be remembered that at this stage the youngest brother was still (allegedly) in prison serving his two year sentence. Yet there is no mention of this fact in the father's letter even though the appellant is warned not to return to Iran. One would perhaps expect there to have been a reference to the brother's imprisonment, and perhaps to the treatment he was receiving. Instead, the letter simply conveys the brother's greeting. The letter gives no hint that the brother was anywhere other than at home in XY. Asked about this, the appellant said that at about the time the letter was sent, his parents must have visited the youngest brother in jail. The problem with this claim is that in yet another letter, undated but lodged on 10 December 1992 with the Refugee Status Branch, the father reports that the family had been prohibited from visiting the brother in jail. It was therefore difficult to understand how the letter of 8 March 1993 could convey the brother's regards. The appellant said that the prohibition on visitors only applied at the beginning of the sentence. It seemed that his knowledge of his youngest brother's circumstances varied. In some respects he knew considerable detail, such as the matter of visiting privileges, but subsequent to the brother's release from jail knew virtually nothing at all of any importance. In these circumstances it was difficult for the Authority to find a "ring" of truth to the appellant's evidence.
(c)The appellant also told the Authority on the first day of the hearing that the third eldest sibling, a brother, had spoken to the appellant by telephone in approximately May 1997. He had told the appellant that the authorities had gone to their parents' home and taken away their father. The Authority enquired whether he (the appellant) had enquired when this had happened. The appellant said that he had not and explained that he had not been interested in obtaining the information because on the night of the phone call he had not been feeling well and "wasn't normal". Pressed as to whether he had obtained from the brother any indication as to how much earlier the father had been taken away, the appellant responded that he had not asked any question about this and once again repeated that he had not been feeling well that night and was always worrying about his own problems. The appellant's evidence in this regard, as in relation to the two other examples, was delivered without conviction or sincerity and the Authority does not accept that one month out from his second appeal hearing, the appellant would fail to press family members for information of some significance to his refugee application.
6. The Authority was also concerned by the fact that it seemed a remarkable coincidence that on the same day the appellant ended his strike and lodged his second refugee application (24 February 1995), the father should be required to attend the XY Court pursuant to the first summons issued on 22 February 1995. Also on 24 February 1995 the appellant had (at least prior to the dramatic reversal of evidence on the third day of the hearing) telephoned his brother and learnt that the authorities had some two or three days earlier detained his father for 28 hours. Asked whether his brother had mentioned the summons and the fact that the father was due at the XY Court on that very day, the appellant said there had been no such mention and that he and his brother "didn't talk about this". The appellant had only been told that the father had been taken away. This evidence was characterized, once more, by a distinct lack of candour and was inherently implausible. The appellant's subsequent confession to have lied about this telephone call merely reinforces the impression given at the time, namely that the claims were not believable and that false evidence was being given.
Credibility Assessment of the Appellant's Witness
We turn now to the question of the credibility of the appellant's only witness, Mr A. Mr A, the only other participant in the protest, was called (according to Mr Bird's Memorandum of 8 October 1997) to:
"...confirm [the appellant's] discussions with him, going to motivation for the protest, the question of publicity and complicity".
As already mentioned, at the time Mr A gave evidence before the Authority he had unsuccessfully appealed to this Authority, that appeal having been dismissed on 31 January 1995. See Refugee Appeal No. 1804/93 Re NNB. He had then joined in the appellant's protest, but unlike the appellant, took steps to ensure that his identity was not revealed to the media. There was a discrepancy as to when Mr A joined the protest. The appellant said that Mr A joined him at about midday on 15 February 1995. Mr A said that he joined the appellant at the end of that day. However, having joined the protest, Mr A confirmed that the appellant had not left the post other than on the occasion of the appellant's hospitalization and late in the evening on Monday, 20 February 1995, when the appellant returned to his flat in order to ring his mother in Iran. Strangely, Mr A said that when the appellant arrived back at his post after speaking to his (the appellant's) mother, the appellant did not mention to Mr A the alarming news that the appellant's protest activities had led to the Iranian authorities visiting the family home. It is to be remembered that both the witness and the appellant came from XY and during their long vigil together one would have expected some mention of what had been conveyed to the appellant by his mother. Mr A did subsequently learn of the developments because after the protest, he moved into the appellant's flat for some seven to ten days. Oddly, he did not then immediately telephone his own family to see whether they too had been visited by the authorities. He explained that as neither his name nor his photograph had been published, he held no concerns for his family. The first time he spoke to his family following the protest was on or about 20 or 21 March 1995. Although nothing was said to him during this discussion, he felt that there was something amiss and immediately telephoned a friend who lived in Tehran. Through the friend he learnt that during his protest, the authorities had visited the family home, conducted a search, seized all of his letters to his family and detained his father for a period of time. The authorities had also told his family that he (Mr A) had been protesting in New Zealand against the Iranian regime. Furthermore, he learnt that his brother, a water engineer, had been dismissed from his job and banned from working for the government. As there were hardly any jobs available in the private sector, the brother's dismissal from government employment had been a severe blow. He was also told that his sister and younger brother had been refused entry to University, and that another brother who had been wounded in the Iran-Iraq war had been denied a pension because the family had been accused of being anti-regime.
The Authority enquired of Mr A whether these disturbing developments had been included in the grounds advanced by Mr A in support of his second refugee application lodged at the conclusion of the protest on 24 February 1995. Mr Bird replied that the case had been based primarily on the grounds that Mr A had, since his arrival in New Zealand, become a firm believer in democracy. He (Mr Bird) observed that this fitted the pattern of many second refugee applications filed by Iranians represented by Mr Leckey and frankly acknowledged that the claim by Mr A was false. He further explained that at the second appeal the democracy line had been abandoned and instead Mr Leckey had advanced a case that the appellant, as a Sunni Muslim, feared persecution at the hands of Shi'ite Muslims in Iran. Mr A had refused to go along with Mr Leckey's plan as he was a Shi'ite. In the event, the appeal was dismissed on credibility grounds. See Refugee Appeal No. 70207/96 Re NN (13 February 1997). Mr Bird went on to explain that he was now acting for Mr A, and that his client had lodged a third refugee application. That application was based on the true facts, namely that Mr A's family had been considerably persecuted as a result of his protest activities in New Zealand. The Authority was told that the third application has not yet been determined. In answer to an enquiry by the Authority, Mr Bird said that Mr A was fully aware of the difficulties he might face in pursuing the third refugee application were this panel of the Authority to make an adverse credibility finding concerning his evidence.
In making a credibility assessment of Mr A, we put entirely to one side the rejection of his claims by this Authority on the first appeal, and the finding made by the Authority on the second appeal that the second refugee application was "no more than a concocted, belated attempt to find grounds that will support a second claim". It is sufficient for us to record that in his demeanour, Mr A was insincere and evasive. Through Mr Bird he has admitted that the second refugee application was based on false claims. Indeed, Mr A at no time made mention in his second refugee application of participating in the appellant's protest, nor did he mention the alleged events in Iran concerning the search of the family home, the taking away of his father for questioning and the problems now faced by his brothers and sister. Mr A claims that he never mentioned these new developments to Mr Leckey.
Neither the credibility of Mr A nor of the appellant was assisted by evasion concerning their prior knowledge of each other in Iran. The appellant said that he could not remember Mr A's face, but had been told by Mr A that they had gone to the same primary school. For his part, Mr A said that he had not known the appellant prior to departure from Iran. He admitted, however, "to having seen him in town" and said that his face was familiar, but he said that he had not known his name. Asked if he and the appellant had attended the same primary school, Mr A said that this was not correct and that he had never seen him at any school that he (A) had attended. Asked if he had told the appellant that they had gone to the same primary school, he replied in the negative.
In view of Mr A's demeanour, his admission to having advanced his second refugee application on false claims, and the fact that at no time when pursuing his second refugee application did he ever mention the alleged misfortunes which have befallen his family since the protest, we are not prepared to give any weight to this man's evidence. All we are prepared to accept is that for an undetermined period of time, he joined the appellant in the hunger strike.
GOOD FAITH: THE FACTS
Having determined that the appellant is not a truthful witness, we turn to a separate but related issue, namely whether his protest activity was a spontaneous and essentially automatic reaction to the news that his first appeal to this Authority had been unsuccessful, or whether the protest was a stage-managed stunt designed to create a pretext for lodging a second refugee application. In other words, we need to address the issue of good faith.
On the issue of good faith it is our finding that the entire raison d'être of the appellant's protest was to artificially create a set of circumstances on which the appellant could found a second refugee application. In arriving at this conclusion we have taken into account each of the findings already made concerning the appellant's credibility. We have also taken into account the following additional factors:
1. It is the appellant's claim that at the time he took up his post on the morning of 15 February 1995, the only persons who knew of his intended protest were Mr Leckey, his girlfriend and the flatmate, Mr B. Yet on that same day, the Refugee Status Branch received a fax from a barrister, Mr Soane Foliaki in which Mr Foliaki advised that he was trying to assist the appellant with his immigration matters, recorded that the appellant had that morning commenced a hunger strike and submitted that the appellant was entitled to file a new application for refugee status. The following paragraph from Mr Foliaki's letter clearly addresses the relevant jurisdictional criteria specified by the Terms of Reference:
"It is my submission that the circumstances of the Applicant have significantly changed since the consideration of his appeal and in this respect [the appellant] is entitled to file a new application to be granted refugee status with the Refugee Status section [sic]".
The letter then goes on to advise that the further refugee application and full submissions would be filed on the following day:
"Because of the time constraints imposed upon me, I am unable to provide you with my full submissions at this time and the appropriate form required for the application. I shall provide you with this document and with my full submissions tomorrow".
In fact Mr Foliaki was not heard from again.
The appellant's account of Mr Foliaki's involvement in his case was less than satisfactory. When first referred to Mr Foliaki's letter, he said that he had never seen Mr Foliaki. Pressed on the issue, he said that he did remember that on the first day of the protest a person had seen him twice and asked whether he (the appellant) wanted assistance. Thereafter the appellant had never seen the person again. However, later in his evidence the appellant said that this person, whom he described as a "Tongan lawyer" did come the following day during the evening and at that time the appellant had told him (the lawyer) that Mr Leckey was acting for him (the appellant). The appellant could not recall whether the lawyer brought any forms with him. The Authority notes that Mr Foliaki's letter contains a degree of detail inconsistent with two brief visits, and we bear in mind that at this stage the appellant's lips were sealed and that all communications had to be through Mr A, the appellant recording his responses in writing which, in turn, were translated into English. In the circumstances we do not accept that Mr Foliaki's involvement was as casual as the appellant would have us believe. The only other inference is that Mr Foliaki sent the letter not only without instructions to do so, but for a person in respect of whom he was not acting.
2. The claimed spontaneity of the protest sits uneasily alongside a number of third party letters submitted by the appellant to the Immigration Service. These letters are dated 15 February 1995 and urge the Immigration Service to reconsider the appellant's application to stay in New Zealand. There are three such letters as well as three similar letters dated 16 February 1995. In addition there are petitions dated 15 and 16 February 1995. While it is conceivable that the 15 February 1995 documents were compiled during the course of the first day of the appellant's protest, the appellant's support group appear to have acted with remarkable speed, given that they would not have been aware of the appellant's intention to begin the hunger strike until approximately midday on 15 February 1995 at the earliest.
3. We have also taken into account the lack of candour on the part of the appellant as to whether he sought out publicity while on the hunger strike. The dramatic intensity of the protest was created by the use of three safety-pins to seal the appellant's lips. Clearly this step was taken to maximise the attention the protest would receive. The claim that the safety-pins just happened to be in the appellant's motor vehicle when he had the "spontaneous" idea to pin his lips together is not believable, and is not believed by the Authority.
The appellant said that because he felt that his life was in danger he had to hold a protest. The Authority asked him how a protest in such a public way would take his life out of danger. The appellant became evasive, but eventually settled for the explanation that when he arrived to conduct the protest, he couldn't think of anything else to do and perhaps his brain was not working properly. He could only think of striking to save his life. Asked if he had any idea as to how mounting such a protest would help save his life, he said that he did not know and that sometimes his brain did not work and he could not think properly. Yet he admitted co-operating with the television and print media representatives, and to giving interviews, either orally or in writing through the intermediary of Mr A. He had willingly disclosed his identity and the basis of his first application for refugee status. He said that he thought that the television people might have come to save his life. Asked if he was pleased to see the television crew, he said that he was not, as their involvement would bring more danger to his life. Pressed to confront the inconsistency of his evidence, the appellant eventually said that he only wanted to save his life and that he would do whatever was required in whatever way and with the assistance of whomsoever. He accepted that he had co-operated with every media representative who came to film him, photograph him or interview him, and he further accepted that he believed that he needed this publicity in order to save his life. He acknowledged that Mr A had insisted that his (Mr A's) photograph not be taken and that his name not be disclosed. Asked whether Mr A had explained to him why he had taken this stand, the appellant replied that he "did not know about that". He simply assumed that Mr A had his own reasons and the appellant did not know what those reasons were. He said that:
"When I came to start the protest, I came to save my life, I didn't think of other issues such as what would happen if my name was in the paper or my picture taken".
He claimed first that he couldn't think, then that he had told a reporter that he did not want his name published. Then he claimed that the reporters had asked him if he wanted his name disclosed, to which the appellant had replied that it was up to them. Asked by the Authority whether he knew that he had a choice as to whether his name was published, the appellant replied that at that moment he was only thinking to save his life, nothing else. He did not think what his choices were.
The appellant admitted that on either the second or third day of his protest he learnt that the Immigration Service would accept a second refugee application from him. This was prior to his admission to hospital. The appellant was asked why he had continued with his protest after receiving this information and in particular, why he had returned to the protest site after his discharge from hospital. To this he replied that it was possibly because he did not have good advice from "good counsel" and in addition, his brain was not working. He then said that he did not know what he was doing. At this stage the appellant attempted to place considerable blame on Mr Leckey and pointed out that although he had asked Mr Leckey not to disclose the fact of the father's arrest by the authorities, Mr Leckey, in breach of the express instructions had in fact disclosed the information to the newspapers.
We do not accept that the appellant was a victim of Mr Leckey in the way the appellant would have the world believe. We are quite certain that from beginning to end the appellant's actions were deliberate and well thought out. All actions taken on his behalf by Mr Leckey, his supporters and others were done with his knowledge and consent. The appellant admitted that even on the last day of the protest he co-operated with a television crew which filmed the ending of the protest and the filing of the second refugee application.
4. We also take into account the fact that in addition to the protest ending in a blaze of publicity, the second refugee application was clearly prepared with some degree of pre-meditation and with a view to taking advantage of the publicity the appellant's actions had attracted. We refer in particular to the appellant's three page type-written statement dated 24 February 1995 (which would have been prepared on some earlier date) in which the following telling paragraphs appear:
"As you may be aware, I have received considerable media coverage. This has caused the Iranian Embassy in Wellington to be aware of my protest, and my views of what happened to me in Iran. This automatically had brought me to the attention of the Iranian authorities and caused me to fear severe repercussions if I were ever returned to Iran.
The Iranian authorities are now aware of my dislike for their government and my alternative political opinion (belief in democracy). As stated earlier, people with this type of opinion are regularly persecuted and detained by the authorities in Iran, and this endorses my claim for Refugee Status as a Refugee sur place. As I have lived in democratic New Zealand for nearly three years and have experienced freedom and democracy, I cannot return to Iran which have 99,000 people in prisons due to their opposition to the current regime".
While Mr Bird is right in submitting that the refugee application form itself does not refer to the appellant's protest activities, the accompanying written statement signed by the appellant most surely does and the two documents must be read together. In addition, the refugee application form itself does refer to the appellant being a refugee sur place.
It is therefore our conclusion that the appellant has deliberately and cynically manipulated circumstances in order to provide grounds on which he could lodge a second refugee application, knowing that the grounds advanced in support of the first refugee application were entirely false.
CONCLUSIONS ON THE CHANGED CIRCUMSTANCES ISSUE THE FINDINGS OF FACT
Bearing in mind the findings that we have made on the issue of credibility, we have come to the following conclusions:
1. There was no truth to the appellant's first refugee application.
2. From Wednesday, 15 February 1995 to Friday, 24 February 1995 the appellant conducted a protest against the decision by both the Refugee Status Branch and by this Authority to reject his first refugee application.
3. The appellant deliberately and cynically manipulated circumstances in order to provide the grounds on which he could lodge a second refugee application, knowing that the grounds advanced in support of the first refugee application were entirely false.
4. His actions attracted considerable publicity.
5. Although the Authority has substantial doubts concerning the authenticity of the press statement purporting to have been released by the Iranian Embassy in Wellington, the Authority accepts that the Iranian Embassy in Wellington is aware of the appellant's protest activities, of the fact that he has applied unsuccessfully to the New Zealand authorities for refugee status and that the appellant has claimed, in the context of his first refugee application that he has been jailed three times in Iran for his political activities and tortured extensively on two of these occasions, that he claims to come from a strongly pro-Monarchist family, that an 18 year old brother was jailed for distributing pamphlets and books, that another fled to a hard life in Japan and that other family members were unable to get work because of their political activities.
6. There is a real chance that the Iranian Embassy in Wellington has passed this information to the authorities in Iran.
7. The Authority specifically rejects the claim that the appellant's family have been visited by the Iranian authorities. Specifically the Authority does not accept the claim that the appellant's father has been detained and questioned; likewise the Authority specifically rejects the claim that the appellant's father has been summonsed to appear in Court. The Authority finds that no member of the appellant's family has been questioned, detained or otherwise punished as a consequence of the appellant's activities in New Zealand.
For the purpose of this decision we will assume that findings 1, 2, 3, 4, 5 & 6 permit a finding to be made that there has been a change of circumstances in Iran sufficient to afford the Authority jurisdiction under Part 2, para 5(1)(f) of the Terms of Reference to determine the appellant's appeal on its merits.
THE INCLUSION CLAUSE 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."
Subject to what we have to say later in this decision on the issue of good faith, in terms of Refugee Appeal No. 70074/96 Re ELLM (17 September 1996) the principal issues are:
1. Objectively, on the facts as found, is there a real chance of the appellant being persecuted if returned to the country of nationality?
2. If the answer is Yes, is there a Convention reason for that persecution?
THE ASSESSMENT OF THE APPELLANT'S CASE
This case falls to be assessed according to our finding that prior to his arrival in New Zealand, the appellant had never taken part in pro-monarchy or anti-regime activities in Iran and that neither he nor any member of his family has ever come to the attention of the Iranian authorities. Our assessment must, however, take into account the fact that as a result of the appellant's actions in New Zealand in the period 15 February 1995 to 24 February 1995, the Iranian Embassy in Wellington and the authorities in Iran are aware of the following facts (we refer in particular to the article published in the NZ Herald on Thursday, February 16, 1995, the text of which has already been set out in full):
(a)That the appellant has applied for refugee status in New Zealand and that he has claimed that he has been jailed three times in Iran for his political activities and tortured extensively on two of those occasions;
(b)That he claims to come from a strongly pro-monarchist family, that an 18 year old brother has been jailed in Iran for distributing pamphlets and books and that another brother had to flee Iran to a hard life in Japan;
(c)That other family members were unable to get work because of their political activities;
(d)That following the decline of his refugee claim, the appellant held a hunger strike in Auckland outside the premises of the Refugee Status Appeals Authority, dramatized the strike by sealing his lips with safety-pins, was subsequently hospitalized and later lodged a second refugee application based on the publicity received by him during the strike and on the claim that his actions have now put him at real risk of persecution were he to return to Iran. In support of this second claim the appellant alleges that as a consequence of his protest actions in New Zealand, his family in Iran have been visited by the authorities and that his father has been taken away for questioning.
Our findings also require us to determine this case on the basis that the comments of the Iranian Embassy, Wellington as reported in the article "Torture claims denied", NZ Herald, Thursday, February 23, 1995 reflect the attitude of the Iranian authorities to the appellant's actions. The full text of this article has already been set out earlier in this decision, but for the sake of convenience it is reproduced below:
"The Iranian Embassy in Wellington says Auckland hunger-striker [the appellant] is using tactics of a "despicable fashion" in trying to claim refugee status in New Zealand. The embassy said last night that it would help [the appellant] return to Iran and that claims of being tortured in Iranian prisons from a man who tortured himself by sealing his lips together with safety pins were "ridiculous." The statement denies [the appellant's] claims that he was tortured. [The appellant] and a compatriot began the second week of their hunger strike yesterday."
This article was clearly based on the press release purportedly issued by the Wellington Embassy on 21 February 1995 which is in the following terms:
"The Embassy of Islamic Republic Of Iran Concerning recent news of an Iranian Hunger striker [the appellant] in Auckland Which has been published in the newspapers would like to comment that:
claiming of being tortured in Iranian prisons by a person who is now being tortured by himself with sealing his lips with safety pins is very ridiculous. Obviously, his action is just for receiving advantages of the refugee status but in a despicable fashion.
The Embassy of I.R. of Iran refutes any [the appellant] claims and denies all of his accusations. He does not have any problem returning to Iran and we are ready to help him in this matter [sic]."
In assessing the risk to the appellant were he to return to Iran the Authority intends to rely on a report prepared by the Australian Department for Foreign Affairs and Trade (Refugees, Immigration and Asylum Section). The report is entitled, Country Profile for Use in Refugee Determination: Islamic Republic of Iran (March 1996). A copy of this report was provided to the appellant prior to the resumption of the hearing on 10 October 1997 and the Authority has taken into account the appellant's submissions on this document. We set out in full certain relevant paragraphs:
"188.8.131.52 The act of applying for asylum abroad is not, in itself, an offence in Iran. However, if an asylum seeker departed Iran illegally and/or was a fugitive from justice, it is not uncommon for close family members to be questioned by the authorities and in some cases for harassment to occur. At worst, knowledge that an individual has sought political asylum abroad would not result in much more than verbal harassment, unless the asylum-seeker concerned had a high opposition political profile
1.7.7 Deportations to Iran
184.108.40.206 Deportations of Iranian asylum seekers to Iran now take place routinely from a number of Western countries. Of those countries which undertake routine deportations, none has seen evidence of reprisals or persecution directed at returnees...
3.2 "Sur Place" Claims
3.2.1 Media publicity in Australia might permit the Iranian Embassy to identify applicants as greater opponents of the Government than they really are, thus given them an imputed political profile in Iran. Those with a weak case, but who deliberately seek to a build a "sur place" case through the media or some public act of defiance, would, if rejected and deported to Iran, probably face intensive questioning and a brief period of detention. If, while abroad, they had performed some act of violent protest against Iranian Government interests and/or the Government's representatives or if they had publicly insulted Imam Khomeini, Islam or the current leadership, they would be at considerable risk of facing harsher treatment. However, non-violent activities such as participation in anti-Government demonstrations in a minor capacity, the writing of abusive letters to the Iranian Embassy or distribution of anti-regime pamphlets would not necessarily lead to heavy or harsh punishment.
3.2.2 An individual, who had tried to establish a "sur place" case in such an opportunistic fashion and had his/her claim rejected could be subjected, on return to Iran, to intensive questioning. The individual would simply have to apologise to the authorities explaining to them that the purpose of his activities abroad had been nothing more than a ploy to gain residency in that country, in order to achieve a better life economically. If the individual had no particular history of political opposition, the authorities would most likely let that person off with a fine and perhaps a brief prison sentence. They would be unlikely to suffer harsher treatment. There are numerous examples of Iranians who participated in anti-regime demonstrations and other activities in a relatively minor capacity, while resident abroad, and after being interviewed on return, were permitted to resume normal life in Iran."
The Authority accepts the assessments made in these paragraphs.
We note that at no time during his protests has the appellant been violent, nor has he publicly insulted Khomeini, Islam or the current leadership. We therefore find that upon his return to Iran there is a real chance only that he will face intensive questioning and a brief period of detention. There is also the risk of a fine. Thereafter he will be permitted to resume normal life in Iran. There is only a remote, speculative chance that he will suffer harsher treatment. It follows that the appellant's fear of persecution is not well-founded. Intensive questioning, a brief period of detention and a fine do not in any way amount to persecution because there is absent the necessary degree of intensity, severity or hardship to the punishment. See generally Professor James C Hathaway, The Law of Refugee Status (1991) 99-124. As observed by Professor Guy S Goodwin-Gill in The Refugee in International Law (2d ed 1996) 67-68, it remains very much a question of degree and proportion whether the anticipated measures amount to persecution. The facts in the present case not only fall short of the intensity and severity of treatment inherent in the concept of persecution, they fall a very, very long way short. In our opinion, it would be fanciful to suggest that the punishment anticipated by the Authority amounts to persecution.
It follows that the first issue is answered in the negative. Objectively, on the facts as found, the appellant's fear of persecution is not well-founded in that there is no real chance of the appellant being persecuted if he returns to Iran.
Strictly speaking, in view of this finding the second issue (ie, whether there is a Convention reason for the anticipated persecution) does not arise. Our view nonetheless is that were the appellant to be punished upon his return to Iran, it would not be for reason of his political opinion, actual or imputed. See generally the discussion of this topic in the DFAT Country Profile and in particular paragraph 3.3.4. In addition, it is well recognized in Iran that it is culturally appropriate to lie in order to secure advantages in life and in particular, material advantages. See the Country Profile at para 1.31:
"1.31 The concept of "Taghieh"
1.31.1 The concept of "taghieh" was first developed and practised by Imam Jaafar Sadegh, one of the leading founders of Shiite thought. Iranians are in fact Jaafari Shiites and Iranian Islam practice relies heavily on his teachings and instructions.
1.31.2 Jaafar Sedegh lived during the Ommayed dynasty. In spite of his animosity towards the rules at the time, he was seen to praise them and to treat the authorities with respect. When he was asked for an explanation, he said one should practice "taghieh" when one is in position of weakness. This concept meant it was justified to lie or to conceal your beliefs when circumstances are not favourable for you or to fool your enemy. According to Jaafar Sadegh, it was acceptable to deny your faith, as he did, even if you were not in physical danger, to mislead enemies or advance your cause. The concept was shared by Bahais in the first century following Sheik Bahai's (founder of faith) death, but has since been forbidden by the sect.
1.31.3 Ayatollah Khomeini referred to the acceptability and usefulness of "taghieh" several times during his leadership of Iran. Recently other officials have done the same. The concept can be used to justify misrepresentations that are seen to be in the interest of those making them.
1.31.4 Based on this principle, the explanation of an unsuccessful asylum seeker re-entering Iran, that he/she had merely sought refugee status abroad as a ploy to secure a better life materially, would be readily accepted by the authorities."
Para 1.31.4 is particularly relevant to the appellant's case and the Authority can in the circumstances see no basis for finding a Convention reason for the somewhat mild punishment faced by the appellant on his return to Iran.
Both the inclusion clause issues having been answered in the negative, it follows that this second appeal must fail.
However, for the sake of completeness we intend addressing the issue of good faith.
ALTERNATIVE GROUND FOR THE DECLINE OF REFUGEE STATUS: THE ABSENCE OF GOOD FAITH
As it is our finding that the appellant did not act in good faith in creating the circumstances on which his second application for refugee status are based, he is not a person to whom the Refugee Convention applies. His second appeal must fail for this additional but separate reason.
The good faith requirement in sur place refugee claims is fully discussed in Refugee Appeal No. 2254/94 Re HB (21 September 1994), now reported in (1995) IJRL 332. In that case the Authority was called on to rule (36; 334):
"...whether a person may become a refugee sur place as a result of his or her own actions and whether there is any requirement that those actions be carried out in good faith; or is it possible for refugee status to be granted to an individual who, having no well-founded fear of persecution, deliberately creates circumstances exclusively for the purpose of subsequently justifying a claim for refugee status. Put another way, are issues of good and bad faith relevant to determining whether a refugee claimant in a sur place situation is eligible for refugee status. It is an important issue given the limitless potential for non-refugees to manipulate circumstances to their advantage in order to secure a status to which they would not otherwise be entitled".
The Authority concluded that there is a good faith requirement. At p 59; 352 it ruled:
"We intend adopting and applying the three-part classification devised by Grahl-Madsen, namely:
(1)Actions undertaken out of genuine political motives.
(2)Actions committed unwittingly, or unwillingly (e.g. as a result of provocation), but which nevertheless may lead to persecution "for reasons of" (alleged or implied) political opinion.
(3)Actions undertaken for the sole purpose of creating a pretext for invoking fear of persecution.
Our decision to interpret the Refugee Convention as requiring, implicitly, good faith on the part of the asylum seeker turns on a value judgment that the Refugee Convention was intended to protect only those in genuine need of surrogate international protection and that the system must be protected from those who would seek, in a sur place situation, to deliberately manipulate circumstances merely to achieve the advantages which recognition as a refugee confers. The sooner abuses of this kind are detected and eliminated, the longer the integrity of the refugee status determination procedures and the protection afforded by the Convention will enable the bona fide asylum seeker to escape persecution. Clearly this is the underlying assumption of the Convention.
However, the good faith principle must be applied with caution, not zeal. The precise application of Grahl-Madsen's third category must be determined on a case-by-case basis. It may be that a balancing exercise is called for and a careful assessment made of all the circumstances, including the degree of bad faith, the nature of the harm feared and the degree of risk. See, for example, the earlier discussion of Bastanipour and the passage cited from Hathaway, The Law of Refugee Status 39. We anticipate that only in clear cases (and the present case is undoubtedly one) will an asylum seeker fall outside of the Refugee Convention by reason of an absence of good faith."
For the appellant, Mr Bird did not challenge the correctness of Refugee Appeal No. 2254/94 Re HB. Rather, it was submitted that as the appellant had acted in good faith, Refugee Appeal No. 2254/94 Re HB had no application.
In view of the findings of fact made by the Authority, this submission must fail. The appellant's actions clearly fall within the third Grahl-Madsen class. That is, the appellant set out to deliberately manipulate circumstances in order to achieve the advantages which recognition as a refugee confers. His actions were cynical and deliberate. The following comment from Refugee Appeal No. 2254/94 Re HB at 36; 352 has direct application to the present facts:
"What must be recognized, however, is that a person who, not being at risk of fundamental marginalization or disfranchisement in the country of origin, wilfully creates a set of circumstances simply as a means of accessing the benefits of the Refugee Convention cannot be said to be a refugee for the purpose of the Refugee Convention".
It is therefore our conclusion that even if we are wrong as to the well-foundedness of the appellant's fear of persecution and as to the absence of a Convention reason for the anticipated punishment, the appellant's manipulation of events has placed him in the situation that he is simply not a refugee for the purpose of the Refugee Convention. If a balancing exercise is in law a necessary part of the assessment, an issue expressly left open in Refugee Appeal No. 2254/94 Re HB at 59-60, the facts in the present case lead to a very clear result, just as they did in Refugee Appeal No. 2254/94 Re HB itself. The degree of bad faith is high and the harm (questioning by the authorities, brief detention and the risk of a fine) a very long distance from being properly described as persecution.
We wish only to add that subsequent to the Authority's decision in Refugee Appeal No. 2254/94 Re HB ( 21 September 1997) the Australian law as discussed in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 (FC:FC) and Heshmati v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 123 (FC:FC) has continued to develop consistently in favour of excluding from consideration actions of asylum-seekers taken in bad faith. See in particular Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 (FC:FC). There the two appellants participated in a rooftop demonstration at the Port Hedland Detention Centre. During the demonstration, both appellants jumped from the roof as part of their protest, sustaining injuries which, in the case of the female appellant, rendered her a paraplegic. It was found that the appellants had engaged in the demonstration for the sole purpose of obtaining refugee status and at first instance, applying the principles outlined in Somaghi and Heshmati, it was held that the appellants were not entitled to rely upon the events which took place in Port Hedland to justify a claim to refugee status. On appeal, the Full Court of the Federal Court of Australia upheld the primary Judge's decision, observing at 238-239 that it was for the decision-maker to decide whether to take the matter of the Port Hedland demonstrations into account and, if he did, the weight to be attributed to it. It was not a matter which the decision-maker was bound, as a matter of law, to take into account.
In the United Kingdom there is now the decision of M v Secretary of State for the Home Department  1 WLR 507;  1 All ER 870 (CA). In this case, the special adjudicator, having rejected entirely the applicant's evidence, was asked to consider the risk to the applicant of having made an asylum application which failed and then being returned to Zaire as a deportee. On the facts, it was held that the applicant was not at risk of arrest. On appeal, the Immigration Appeal Tribunal held that a person who put forward a fraudulent and baseless claim for asylum was not able to bring himself within the Refugee Convention. On further appeal to the Court of Appeal on a question of law only, the issue for determination was the extent to which, if at all, a person whose claim for asylum has been found to be fraudulent, can nevertheless benefit from the terms of the Convention in the light of the observations of Laws J in R v Immigration Appeal Tribunal, Ex parte Senga (unreported), 9 March 1994. In this decision Laws J firmly rejected an Immigration Appeal Tribunal holding that an asylum seeker whose case had failed on the merits, could never subsequently seek asylum on the grounds that the making of the asylum application itself had created the possibility of persecution for a Convention reason. Laws J held:
"With respect to the chairman it seems to me to be erroneous as a matter of law to hold that there can never be a case in which, by the very act of claiming asylum, an applicant puts himself at risk of persecution. Whether and in what circumstances such a state of affairs would arise is, of course, something else altogether. But the chairman has held that in principle no such case can arise. In that he was in error and the decision falls to be quashed".
With this holding, we respectfully agree. What is significant for present purposes, however, is that Laws J did not address the question whether there is a good faith requirement. Indeed he expressly left open the circumstances in which the very fact of making the asylum application might lead to recognition as a refugee. Applications for refugee status can fail for many reasons, not all of which bear on the issue of good faith. For example, the application may fail because on the facts then known, the fear is not well-founded. Or it may be that the anticipated treatment does not reach the requisite degree of hardship to be properly stigmatized as persecution. In other cases, although the fear of persecution might be well-founded, there may be absent a Convention reason. Other cases might fail on credibility grounds. It would certainly not follow that in such cases the application has been brought in bad faith. The good faith principle as discussed by Grahl-Madsen and as applied by this Authority is relevant only to those cases where the actions have been undertaken for the sole purpose of creating a pretext for claiming a well-founded fear of persecution for a Convention reason, or as expressed in Refugee Appeal No. 2254/94 Re HB at 59; 352, where the refugee claimant has deliberately manipulated circumstances merely to achieve the advantages which recognition as a refugee confers. The holding of Laws J in Ex parte Senga is, on this analysis, not inconsistent with the first and second categories of the three-part Grahl-Madsen classification. It is clear that Laws J was not called upon to address the question whether there is a good faith requirement. Nor was the Court of Appeal in M v Secretary of State for the Home Department. Indeed, the three separate judgments delivered by Butler-Sloss, Millett and Ward LJJ do not even discuss the relevant English cases (even though cited in argument), nor is there any mention of the relevant Australian, Canadian, European, New Zealand and USA jurisprudence. The submission for the Secretary of State was that there was a distinction in principle between the making of a claim which the applicant cannot prove to the required standard and the making of a fraudulent claim which is discovered to be false. In the latter case, it was argued that, unlike the former, there is a question of principle that an applicant ought not, as a matter of public policy, to be able to rely upon the fact of a false claim to prove his claim to asylum: 510H; 874b. Butler-Sloss LJ at 511A; 874c described this submission as "unnecessarily complicated" and was of the view that it created a "probably unworkable" distinction between highly theoretical possibilities. He answered the submission in the following terms (511B; 875d):
"If the applicant made a bogus application for asylum in order to create a climate in which he might then assert that by the making of the application he had made himself at risk in being returned to his homeland, his application would be likely to be treated as self-serving and rejected on that ground. In a fraudulent application based upon false facts in which the applicant's story is disbelieved, his credibility would be called into question and, even if he can establish he did not set up the application for asylum to create a danger of persecution, he would be likely to find it extremely difficult to demonstrate to the required standard a genuine subjective fear coming within the definition of the Convention ...."
In this passage it would appear that two separate points are made:
(d)If a bogus asylum application is made in order to create a risk of persecution on return to the country of origin, the application "would be likely" to be treated as self-serving and rejected on that ground;
(e)Even if the asylum application was not made in order to create a risk of persecution, but the application is nevertheless "fraudulent" in that it is based upon false facts, even if the applicant can establish that he did not set up the application for asylum to create a danger of persecution, the applicant would "likely" find it extremely difficult to establish a genuine subjective fear of persecution.
As the case law in both New Zealand and Australia has developed, the good faith principle would attach only to (a). Certainly in New Zealand, we have not been called upon to decide whether, if at all, the good faith principle can attach to the situation described in (b). As to the holding in (a), the judgment does not explain how, as a matter of principle a "self-serving" asylum application can be rejected. In other words the judgment of Butler-Sloss LJ states the result, but not the principle. In New Zealand the principle is to be found in the good faith requirement. The explanation for the lack of articulation of principle may be that on the facts, the Court of Appeal was not called upon to decide the issue of good faith. M's case fell within category (b) and it is in this context that the following observations by Butler-Sloss LJ at 511E, 575g must be seen:
"An unsuccessful claim for asylum may be seen within a spectrum ranging from a truthful but over-optimistic account through various degrees of inaccuracy to a totally false and fraudulent story. The making of a false claim cannot act as a total barrier to reconsideration of the applicant's status as a possible refugee, but the further along the spectrum of falsehood and bogus claims the infinitely more difficult it would be to prove to the requisite standard the requirements of the Convention. It is important not to underestimate the difficulties for an applicant after exposure of his bogus claim for asylum. Neither the Secretary of State nor the appellate tribunals are expected to suspend disbelief in the assessment of asylum applications"
In the particular case, the finding at first instance was that M had no genuine subjective fear and his case therefore foundered on this point: 512C; 875d.
The separate judgments delivered by Millett and Ward LJJ advance the issue no further as the facts of the case did not require them to address the issue of good faith. Put another way, the judgments address only issue (b). In the result, while we find nothing of assistance in M v Secretary of State for the Home Department  1 WLR 507;  1 All ER 870 (CA), we see nothing inconsistent between it and the jurisprudence that has evolved on the good faith issue in both New Zealand and Australia.
We find that the appellant is not a refugee within the meaning of Article 1A(2) of the Refugee Convention for the following three reasons:
1. Objectively, on the facts as found the appellant's fear of persecution is not well-founded in that there is absent a real chance of the appellant being persecuted if returned to Iran.
2. On the facts, no Convention reason is present.
3. In any event, as the appellant did not act in good faith in creating the circumstances on which he has based his second application for refugee status, he is not a person to whom the Refugee Convention applies.
Refugee status is declined. The appeal is dismissed.
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