High Court Cases 

High Court Auckland M No. 1803/98
13 August 1999; 19 August 1999
Smellie J

Judicial review - Reasonableness - Challenge to finding of fact

The plaintiff, a citizen of Iran, converted to Christianity subsequent to his arrival in New Zealand.  Applying the benefit of the doubt, the Refugee Status Appeals Authority (RSAA) concluded that the conversion was genuine.  The RSAA also accepted that according to the Sharia law, applicable in Iran, conversion from Islam to Christianity is officially punishable by death.  But relying on what it regarded as a thorough investigation by the Swedish Aliens Appeal Board, it concluded that the law in question for all practical purposes is never implemented; and consequently there was no real chance, if the plaintiff was obliged to return to Iran as a practising Christian, that he would either suffer persecution or even serious harassment.  On judicial review the issue was whether there was evidence before the RSAA which justified this conclusion.

Held:

1    The RSAA was justified in basing its decision on the research carried out by the Swedish Aliens Appeal Board.  It was the only document produced during the hearing which expressly addressed the situation of the plaintiff and provided ample grounds on which the RSAA could reach its conclusion that refugee status should not be accorded to the plaintiff.  There was no room to suggest that no reasonable RSAA could have reached the decision under review (see paras [17] & [21]).

Application for review dismissed

Other cases mentioned in judgment
Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223

Counsel
M I Koya for the plaintiff
A Markham for the respondent

SMELLIE J

Introduction

[1] This is an application for review of a decision of the Refugee Status Appeal Authority (RSAA) brought by the plaintiff who was refused refugee status.  The plaintiff's name was suppressed before the Authority and that suppression will continue so far as this High Court proceeding is concerned.

Background

[2] The plaintiff arrived in New Zealand on 1st October 1993 and applied for refugee status.  He claimed political persecution in his own country Iran.  He was interviewed by the Refugee Status Branch of the Immigration Service in October 1993 and by letter dated 26th January 1994 advised that his application was declined.

[3] The plaintiff appealed that decision to the RSAA.  The hearing took place in February 1996.  The decision was handed down in March 1997 dismissing the appeal.

[4] Then on 26th May 1997 the plaintiff filed a second application with the Refugee Status Branch, this time alleging fear of religious persecution in Iran.  The plaintiff claimed that during his time in New Zealand he had converted from Islam to Christianity and joined the Roman Catholic Church.

[5] The Refugee Status Branch rejected his application by letter on 31st October 1997 and the plaintiff then filed an appeal against that decision with the RSAA.  The second appeal was heard in March 1998 and in July 1998 the appeal was dismissed.

[6] This application for judicial review was then filed.  The grounds of complaint being as follows:

• The plaintiff was required to comment on matters of policy and jurisprudence without the benefit of expert knowledge or prior notice.

• That the Authority based its decision on the policy of a foreign jurisdiction, namely the Swedish Aliens Appeal Board.

• It is not known whether the decision of the Swedish Aliens Appeal Board has been reviewed on appeal in the Swedish Courts.

• In any event, the Swedish decision contravenes Article 18 of the Universal Declaration of Human Rights 1988 in that it supports restrictions on religious practices in Iran.

• By following the Swedish decision the RSAA similarly contravenes the Universal Declaration of Human Rights.

• The Authority rejected evidence advanced for the plaintiff without a proper legal or factual basis for doing so.

• The Authority made adverse findings without a factual foundation for the same.

• The interpreter used by the Authority was incompetent.

The decision of the RSAA

[8] In its decision the RSAA gave the plaintiff the benefit of the doubt and concluded that his conversion to Christianity in New Zealand was genuine.  Initially it appears there was some doubt as whether it was purely a matter of convenience to secure a basis for obtaining refugee status.  But the evidence of those who prepared the plaintiff for baptism and instructed him prior to that carried the day.

[9] Before the RSAA the plaintiff's evidence was that he had telephoned one of his 5 siblings in Iran and had been pressed as to when he was returning home.  That it was under those circumstances that he had disclosed that he could not return because of his conversion.  His evidence was that this sibling, who is female, was shocked and disapproving.  He assumed, however, that she would have told the other members of his family (his parents are both dead) and that they would have told other people, so that inevitably the fact of his conversion would have come to the attention of the Authorities.

[10] In its decision the Tribunal did not accept that the plaintiff had told his sister of his conversion.  More importantly, however, it also held that if he had told his sister, because she disapproved and because the fact of his conversion would be a matter of great embarrassment to the family it was implausible that either she or other members of the family would have noised the fact abroad so that it came to the attention of the Authorities.

[11] The plaintiff also argued that the Islamic law of Iran provides that one who ceases to be a Moslem and converts to Christianity commits a capital offence.  The RSAA accepted that such a law exists in Iran.  But relying upon what it obviously regarded as a thorough investigation by the Swedish Aliens Appeal Board, it concluded that the law in question for all practical purposes is never implemented.  And consequently there was no real chance, if the plaintiff was obliged to returned to Iran as a practising Christian, that he would either suffer persecution or even serious harassment.

The arguments in this Court

[12] Mr Koya endeavoured to persuade me that the Tribunal's conclusion rejecting the plaintiff's evidence that he had disclosed his conversion to his sister should be overturned.  The transcript does not, in fact, bear out the way the Tribunal recorded this issue.  The evidence is not that the plaintiff rang his sister to tell her of his conversion, but rather he rang her as a matter of maintaining a normal family contact and felt himself obliged to explain why he could not return when she pressed him for an answer.  That, however, in my judgment, is all rather beside the point.  The fact is the plaintiff does not know whether his sister kept the information to herself and, if she did not, how far beyond the family it has gone.  It is pure supposition on his part that the Authorities have come to know of it.  Furthermore, the inference the RSAA drew was that because the family would be embarrassed and possibly prejudiced by this information becoming common knowledge, the greater probability is that it has not been passed on.  That, in my opinion, was a conclusion well open in all the circumstances.

[13] The contention that the plaintiff was unfairly called upon to comment upon the press release of the Swedish Aliens Appeal Board is without substance.  The central contention of the Board had already been put to the plaintiff at the Refugee Status Board stage of the inquiry.  Furthermore, the transcript makes it very clear that the Authority was anxious to give both the plaintiff and his representative every opportunity to look at the document and comment upon it.  The opportunity was not taken up even after the Tribunal had gone to some lengths to point out why they regarded the document of such significance and that in fact it had been relied upon in an earlier appeal hearing to refuse refugee status.

[14] Finally, the central thrust of the appeal was that given the undisputed fact that the law of Iran provides that a convert from Islam can be prosecuted and if convicted face the death penalty, that provided a complete answer to any argument that there is no real chance that if the plaintiff returned he would be persecuted.

[15] At the end of submissions it seemed to me that there was only one issue in the case.  Namely, whether there was evidence before the Tribunal which justified it in taking the view that despite the capital offence existing in Iran the plaintiff would not be in any real danger of it being used against him if he returned as a genuine Christian convert, especially if he did not seek to evangelize or proselytize.

Decision

[16] The "Country Information", (as it is called in refugee jurisprudence), produced by the plaintiff indicated that from time to time Christians in Iran who evangelize get into trouble.  Not so much with the State but, rather, Islamic fundamentalists and vigilantes who tend to take things into their own hands.  The sources of the material provided by the plaintiff before the RSAA were from such organisations as Amnesty International, the United States State Department and a miscellany of newspaper articles and other publications.  Mr Koya criticised the Tribunal for not taking that information into account and concluding that, in fact, there would be a real danger for the plaintiff if he returned.  There was, however, no evidence that the applicant wished or intended to evangelize or proselytize and direct evidence that he was not required to by his Church.

[17] In my judgement, the RSAA was justified in basing its decision upon the research carried out by the Swedish Alien Appeals Board.

The Swedish Alien Appeals Board Press Release

[18] That document is so crucial that it is set out in full hereunder.  In summary, however, whilst acknowledging that conversion from Islam to Christianity is officially punishable by death, the document demonstrates convincingly, as a result of the investigations of a delegation that went to Iran to see for itself, that draconian law is so unlikely to be invoked that there is no real danger.  I note, in particular, the statement at the top of the second page reading:

"Today there are persons in Iran who have converted from Islam to Christianity there, and who participate in Christian activities there without the interference of Iranian authorities."

"An Iranian national, who converts from Islam to another religion, normally does not risk the kind of prosecution prescribed in the Shari'a Law, whether the conversion takes place in the home country or abroad.  There is also no significant chance that he or she would be the target of any actions from the authorities or of any serious harassment.  This assessment is based on the assumption that the conversion has come to the knowledge of the Iranian authorities."

[20] Additionally, the Swedish document is the only document that was produced during the hearing which expressly addresses the situation in which the plaintiff now is.  The document reads as follows.
 

The Aliens Appeal Board has decided to decline the applications in five cases regarding Iranian converts, i.e. persons who raise their conversion from Islam to Christianity as reason for claiming asylum in Sweden.  These decisions constitute a change of the Aliens Appeal Board's previous policy concerning Christian converts from Iran.  The decisions were taken by a full board, consisting of two chairs and four lay-persons.

Previously, the Board has taken the view that Iranians who had converted to Christianity could not be returned to Iran.  Therefore, no removal decisions have been taken in such cases.  Iran is so far the only country to which the Board has deemed that converts could not return.

During the last year, the Board has received information regarding the situation for Christians in Iran, which has led the Board to examine the situation more closely.  The Board inter alia undertook a mission to Iran last year, during which meetings were held with e.g. representatives of the Iranian Government, various Christian churches, journalists, UNHCR, lawyers and staff of the Swedish Embassy and of other Embassies in Teheran.  This provided an opportunity for these representatives to give information directly to the representatives of the Board regarding the current situation for Christians and Christian converts in Iran.

This information, together with all other information compiled from various sources, has caused the Aliens Appeals Board to reconsider its previous standpoint with regard to the feasibility of returning converts to Iran.

In this context, the Board also notes that the (Swedish) Government, in a decision of 24 August 1995, decided not to revoke the removal order concerning an Iranian national, who converted to Christianity during his/her stay in Sweden (Ju95/688).

The Board in its decision states, inter alia, that:
 

"According to the Shari'a law, applicable in Iran, conversion from Islam to Christianity is officially punishable by death.  In one case during the 1990's has the conversion - beyond other criminal accusations - been the basis for the execution of the death penalty in accordance with Shari'a Law.  In this case the death penalty was later revoked by the Supreme Court.  In a few cases converts have been killed under unknown circumstances.  All such cases concerned proselytising priests.

It is rare that Iranian asylum seekers convert to Christianity in other countries but the Netherlands and Sweden.  According to concerted information from Christian churches in Iran, there is no real chance of persecution upon return to Iran of persons who have claimed conversion as ground for asylum in Sweden.  Some 3-4 years ago converts would probably have been exposed to various kinds of punishment, in case the conversions had become to the knowledge of the authorities in Iran ./.../.  Today there are persons in Iran who have converted from Islam to Christianity there, and who participate in Christian activities there without the interference of Iranian authorities."

"Conversion from Islam to Christianity is according to Iranian authorities not possible, and a conversion abroad is considered by the authorities as a "technical" act, in the purpose of obtaining asylum, which therefore does not mean that the person in question risks any serious harassment upon return.  The concept of 'taqieh", which is widely accepted in Iran, makes it legitimate to lie in order to achieve certain purposes.  This means that there is a high level of acceptance in Iran of the lie as a means to obtain a purpose, such as seeking asylum in the west.  Iranian nationals who have converted from Islam to another religion, and who keeps the conversion a personal matter, does not attract the attention of the authorities.
 
 

In summary, the Aliens Appeals Board makes the following assessment:
 
"An Iranian national, who converts from Islam to another religion, normally does not risk the kind of prosecution prescribed in the Shari'a Law, whether the conversion takes place in the home country or abroad.  There is also no significant chance that he or she would be the target of any actions from the authorities or of any serious harassment.  This assessment is based on the assumption that the conversion has come to the knowledge of the Iranian authorities."
 
 
In the decision the Board also states the following:
 
"Taking into account the knowledge the Board has of the Iranian society and the position of Iranian nationals vis-a-vis Islam, the Board concludes that the sincerity of a conversion from Islam to any other religion which takes place abroad, e.g. in connection with an application for asylum, can be seriously questioned."

[22] The relief claimed here is refused.

Costs

[23] I was not informed whether or not the plaintiff had brought this action on legal aid.  If that be the case there is no room for an award of costs.  Alternatively, if the Minister seeks costs he will have leave to file a memorandum, which is to be no more than 2 pages within 7 days.  The plaintiff may reply within 7 days, again in a memorandum no longer than 2 pages.
 

Solicitor for the plaintiff:  M I Koya (Auckland)
Solicitor for the respondent:  Crown Solicitor (Auckland)