Refugee Status Appeals Authority
REFUGEE APPEAL NO. 70282/96
B J J
AT AUCKLANDBefore: J M Priestley QC (Chairman)
V J Shaw (Member)
Counsel for Appellant: Mr H T Sorensen
Representative for NZIS: No Appearance
Date of Hearing: 20 January 1997
Date of Decision: 10 April 1997
INTRODUCTIONThe appellant is a single man, aged 32. He is a national of Iran. He arrived in New Zealand on 6 August 1995 and claimed refugee status at Auckland International Airport. He travelled to Auckland from Kuala Lumpur on a Malaysia Airlines flight, and had destroyed a false passport en route.
A full and detailed refugee application was lodged in September 1995, which was accompanied by a written statement. The appellant was duly interviewed by the Refugee Status Branch (RSB) of the New Zealand Immigration Service in June 1996. By letter dated 2 October 1996, the RSB declined to grant the appellant refugee status. From that decision he has appealed to the Authority.
THE APPELLANT’S CASEThe appellant claims the protection of the Refugee Convention on the ground of his political opinion. He asserts that if he were to return to Iran, he would be persecuted because of his political opinion. There are three elements to the appellant’s claim. First, he asserts that both he and his father had a reputation for mild dissident attitudes which have already brought them to the attention of the Iranian authorities. Secondly, a more dangerous element, he asserts, stems from the activity and support of the Mojahedin by various members of his family. He claims that his brother, J, has for a number of years worked covertly for the Mojahedin, and that various of his in-laws (specifically the brother of his brother’s wife) are also Mojahedin activists, one of whom was granted refugee status in Germany in 1986/1987. Thirdly, the appellant claims that, at the request of his brother, J, he was involved in an abortive attempt to ferry a dissident across the Strait of Hormuz in July 1995. The appellant believes that his involvement in this episode has come to the attention of the authorities and that, as a result, he is being sought by them and his family harassed.
REFUGEE CLAIMS AND PSYCHOLOGICAL REPORTSThe appellant’s counsel submitted to the Authority a report dated 18 November 1996 from a clinical psychologist. This report constitutes a psychological assessment of the appellant. The report, in part, deals with the psychological consequences on the appellant of an encounter which his small boat had with an Iranian naval patrol on the Strait of Hormuz and the resulting death of his passenger. The clinical psychologist opines that the appellant satisfies the criteria for post-traumatic stress syndrome. The report also (page 2) comments on the affect of the appellant whilst telling parts of his narrative, which comments are permissible and reasonably helpful.
However, the last page of the clinical psychologist’s report is unfortunate inasmuch as it contains the following opinions:"a) It is my professional opinion that the information told to me by [the appellant] was the truth and I found it to be consistent with the information provided from his original application ....e) It seems likely that these past events will single [the appellant] out for persecution if returned home. In the light of the extreme oppressiveness and cruelty of the present fundamental Islamic regime in Iran, and [the appellant’s] known engagement in activities that oppose the regime, I believe that [the appellant] has a well-founded fear of persecution if returned to Iran.”Clinical psychologists are not charged with the responsibility either of assessing the credibility of refugee claimants or of determining whether claimants satisfy the criteria of the Convention. The position is analogous to that of child psychologists providing the Family Court with reports under the Guardianship Act. Psychologists of both categories can range widely but must fall short of expressing conclusions in areas which are the sole preserve of the relevant tribunal. This is not the first report (although it is the most articulate) that the Authority has received in recent times, which purports to make credibility findings. Ultimately, experts’ reports are the responsibility of counsel who present them. Care should be taken to ensure that the relevant boundaries are not crossed. If the practice persists, the Authority will be obliged to consider stern measures against those responsible.
THE APPELLANT’S NARRATIVEThe appellant’s family lives in the large Iranian city of Shiraz. His father was a builder. The appellant has three brothers and one sister. The appellant left school in 1980 when he was aged 15, shortly after the Revolution. He trained as a mechanic and a panel- beater.
In 1986, the appellant was conscripted into the Iranian army. This was during the period of the war against Iraq. After three weeks’ basic training, the appellant was assigned to the Ahvaz region, close to the Iraqi frontier. He was attached to an auxiliary transport unit, responsible for mechanical repairs to military vehicles. During the first few weeks of his military service, however, the appellant became extremely distressed by the sigh of the dead bodies of combat soldiers being transported to the rear. He resolved to remove himself from the combat zone, if not the army, as soon as possible. He reported to a military doctor, drawing attention to a problem which he had had (since childhood) with his vision. There followed a series of inspections by medical panels in both Shiraz and Tehran which resulted in the appellant being discharged from the army. He returned to civilian life.
In 1989, the appellant travelled to the United Arab Emirates. He worked there for approximately three years, pursuing his mechanical trade and also indulging in sporadic trading across the Strait of Hormuz. The appellant lived and worked legally in Dubai for three years, but overstayed his permit for one year, returning to Iran in approximately 1993.
In that year, the appellant’s father was arrested and detained for a short period for having made critical comments about the regime at a builders’ union meeting. Later that year, the appellant himself was critical of the government at a meeting of a panel-beaters’ co- operative. His criticism related to the scarcity of various parts and the necessity for panel-beaters to purchase parts and equipment on the black market. A few days after his criticisms, the appellant received a letter dismissing him from the union.
In 1994, the appellant’s father was again arrested for allegedly making blasphemous remarks against Ayatollah Khomeini. He was, however, released because there was not sufficient evidence. In the same year, the appellant’s brother, J, lost his job as an engineer at an oil refinery again allegedly because of anti-government activity.
It is difficult for the Authority to assess the weight and relevance of these activities. The appellant himself was never detained. The appellant’s father was detained twice but does not appear to have been subjected to torture or persecution. As for the appellant’s brother, J, it would appear from evidence referred to shortly that he was actively involved with the Mojahedin. Assessing the matters as best we can, the Authority concludes that the appellant’s father and, to some extent, the appellant were disposed to be critical of authority when they encountered difficulties or inefficiencies in their respective trades. This disposition in turn resulted in short detentions and interrogations for the father, and dismissal from his trade body for the appellant.
Throughout the hearing, the appellant was adamant that, unlike his brother, J, he was never a member of the Mojahedin. The appellant stated that in general terms he approved of the Mojahedin’s objectives and activities. He also, during the course of the hearing, gave some startling new evidence to the Authority. He stated that whilst he was in Dubai, he handled various Mojahedin documents or pamphlets which were dispatched to him from Germany by his brother-in-law’s brother, R. These documents were secreted by the appellant inside clothing and spare automobile parts which were being smuggled from Dubai across the Straits of Hormuz to distributors in Shiraz. This occurred on three occasions. Such an activity would clearly involve a degree of risk for the recipient of the consignments.
To a certain extent, the appellant’s involvement is inconsistent with his assertion that he was not an active supporter of the Mojahedin or a member of that organisation. However, the Authority is satisfied that the manner in which the appellant proffered this evidence was very much as an afterthought, and that there appeared to be no inconsistency so far as he was concerned. This evidence exemplifies an important trait of the appellant, namely to sympathise with and occasionally support the activities of opponents of the regime.
In July 1995, the appellant’s brother, J, introduced the appellant to one A, who was formerly a soldier. A was apparently in danger of imminent arrest for anti-regime activities. The request made by J of his brother was to arrange for the immediate illegal departure of A from Iran by sea across the traits of Hormuz to Dubai. Despite the obvious risks involved, the appellant was willing to assist his brother.
The appellant and A travelled by bus from Shiraz to the Gulf port of Bandar Abbas and then made a further bus journey to the smaller port of Gachin. The appellant was unable to negotiate a passage, it being the view of most of Gachin boat-owners that such a journey was too dangerous because of Iranian naval patrols in the Straits. However, the appellant was able to arrange to rent a boat and resolved to make the journey himself.
The appellant had, up to that point, no nautical experience. The journey from Gachin to Dubai involved sailing at night for several hours across the Straits, in an open boat powered by a 75hp outboard motor. The obvious problems of navigation which such a voyage entailed, especially for a person with no sailing experience, were apparently to be met by the appellant travelling in a convoy of six or seven similar boats.
The voyage duly commenced. The appellant was travelling towards the rear of the convoy, keeping the wake of the preceding vessel in sight. The lights on the Iranian coast were still visible approximately one hour later when the convoy was approached by an Iranian patrol craft, which illuminated a search-light and, on a loud-hailer, ordered the convoy to stop. All boats dispersed at speed. The appellant, at some speed, manoeuvred his craft through a turn of approximately 180º. Shots were fired but the appellant was able to elude the patrol craft. A few minutes later, the appellant became aware that his passenger A was slumped in the bottom of the boat, He was gurgling and bleeding. By the time the boat made it to the Iranian shore, A was dead.
The appellant was, of course, uncertain where he had made his landfall. However, inhabitants were able to direct him to a nearby highway. He spent the night hiding under a road bridge and was then able to travel by truck and bus to Gachin and thence to Shiraz. The appellant stated that, in his hurry to leave the boat, he accidently left his jacket behind, which contained his identification card.
The appellant’s brother, J, in Shiraz, was extremely angry and upset when he heard that the mission had failed. He, however, insisted that his brother must leave Iran without delay (particularly since he could be identified). The appellant left Shiraz immediately and with assistance from his brother, was able to make his way to Zahedan where, disguised as a barrow-vendor, he crossed illegally into Pakistan. With the assistance of a former associate whom he had met in Dubai, he was able to travel to Karachi and thence to Kuala Lumpur and New Zealand. He arrived in New Zealand approximately 20 days after the unsuccessful voyage to Dubai. An abbreviated version of the story was told by the appellant on his arrival at Auckland airport.
Subsequent to the appellant’s flight to New Zealand, it appears that his brother J and J’s wife also went into hiding. For a considerable period of time, the appellant was uncertain as to his brother’s whereabouts. However, approximately one month before the Authority’s hearing, the appellant was informed that his brother, J, and his wife were in Pakistan.
Fresh information was given to the Authority at its hearing which was not supplied to the RSB hearing in June 1996. This information, in the main, comes from Germany. Two brothers of the appellant’s sister-in-law, A and R, are currently resident in Germany. R appears to have been granted refugee status. R and A are actively involved in Mojahedin opposition groups based in Germany. Photographs were supplied of R participating in anti-regime demonstrations in Germany. A letter was supplied from the German-based Mojahedin to the effect that the appellant’s brother, J, had been secretly involved with the Mojahedin for some time. Confirmation of R’s refugee status in Germany was also supplied. Finally, a death certificate for the younger brother of the appellant’s sister-in- law was supplied. It was stated that this man was killed by Komiteh in January 1996, whilst trying to protect his sister from a forcible entry into her parents’ home.
The appellant told the Authority that R in Germany was not prepared to supply any of this information until such time as he knew that J (the appellant’s brother) had safely left Iran. Further information included an assertion by the appellant that approximately one year ago there had been a night raid by the Komiteh on his parents’ home and that the appellant’s father had been taken away in his pyjamas and detained for a day, whilst the authorities insisted that he take steps to bring about the return of his two sons, the appellant and J, to Iran.
The appellant told the Authority that it was not until recently that he was aware of the extent of his brother J’s Mojahedin involvement. He had had his suspicions but was not aware, until informed by R and his associates, that his brother had been a Mojahedin operative for so many years. This new information raises further fears in the appellant’s mind as to the precise identity of A, whom he was tyring to smuggle out of Iran.
THE ISSUESThe Inclusion Clause in Article 1A(2) of the Refugee Convention relevantly provides that a refugee is a person who:-"... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it."In 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?
DECISIONThere can be no doubt that, if the appellant’s narrative is true, he would stand a real chance of persecution if he were to return to Iran on the ground of his political opinion. His brother, J, who has recently fled from Iran, appears to have been a Mojahedin member. The appellant himself, at J’s request, unsuccessfully tried to smuggle A out of Iran. There is a risk that, either as a result of the carelessness of leaving his jacket in the boat or otherwise, the appellant’s identity may have been discovered. Additionally, the appellant is closely linked by marriage to other Mojahedin members who have been actively operating against the regime from a foreign country for the last decade and whose activities and identities are almost certainly known to the Iranian authorities. Added to all that is the appellant’s own personality and personal beliefs which have already led him into minor brushes with the authorities, coupled with his clear disposition to assist opponents to the regime.
It is not necessary for us to recite country information on Iran. It is well known that Mojahedin members are ruthlessly pursued by the regime and are imprisoned, tortured and executed. Given the appellant’s history, there would be a real chance of him being persecuted on the grounds of a perceived Mojahedin association if he were to return to Iran. The assessment which confronts the Authority is whether the appellant’s tale is true.
One member of the Authority considers that it is improbably that a person with no nautical experience would hazard a voyage of the type described for no apparent personal gain and at a brother’s request. The other member of the Authority, however, is inclined to believe that story. That member, however, has serious doubts about the veracity of the provided information dealing with the appellant’s association with his sister-in-law’s family and on-going interest in the appellant’s family by the authorities. It seems strange to that member that such information was not provided long ago. The first member of the Authority, however, sees an overall consistency with that new information, particularly given the secretiveness and distrust of many Iranian claimants and the added problem of Mojahedin members in Germany wanting to protect J’s position.
Having grappled with the issue of credibility as best we can, we consider that it is more likely than not that the appellant, through his brother J and his sister-in-law’s family, has a potential identification with the Mojahedin. We are also left in the position of having sufficient doubts about the truth or otherwise of the appellant’s unsuccessful voyage with A across the Straits of Hormuz as to be unable to reject his account as being fabrication or fanciful. It is clear refugee jurisprudence that the benefit of such doubts must be given to an appellant. In the round, we do not have sufficient reason to make an adverse credibility finding against the appellant. Indeed, certain features of this story and occasional glimpses of his personality are consistent with a man who, through family obligation, would from time to time, give support to the Mojahedin.
For these reasons, therefore, we are satisfied that the appellant has a well-founded fear of persecution on the ground of his political belief. He satisfies the criteria of the Convention. He is entitled to refugee status. The appeal is allowed.
“J M Priestley QC”