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Last Updated: 2 February 2018
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NOTE: THE CONFIDENTIALITY OF THE NAMES AND IDENTIFYING PARTICULARS OF THE FIRST RESPONDENTS AND OF THEIR CLAIMS OR STATUSES MUST BE MAINTAINED PURSUANT TO S 151 OF
THE IMMIGRATION ACT 2009. IN THE COURT OF APPEAL OF NEW ZEALAND
CA196/2015 [2016] NZCA 520
BETWEEN
|
REFUGEE AND PROTECTION
OFFICER Appellant
|
AND
|
CV AND CW First Respondents
THE IMMIGRATION AND PROTECTION TRIBUNAL Second Respondent
|
Hearing:
|
25 May 2016
|
Court:
|
Ellen France P, Harrison and Winkelmann JJ
|
Counsel:
|
M G Coleman and R D Garden for Appellant
F M Joychild QC, D Mansouri-Rad and L Wong for First
Respondents
No appearance for Second Respondent
|
Judgment:
|
28 October 2016 at 1 pm
|
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS OF THE COURT
(Given by Winkelmann J)
REFUGEE AND PROTECTION OFFICER v CV AND CW & ANOR [2016] NZCA 520 [28 October 2016]
Table of Contents
Para No Background [4] CW [7]
CV [10] Legal and procedural context [14] Legal framework [14] Tribunal’s rejection of CV and CW’s claims [25] Applications for judicial review and appeal to the High Court [35] First ground of appeal: Was there a breach of natural justice? [40] Analysis: First ground of appeal [41]
Second ground of appeal: Reformulation was not open to Duffy J
because of basis of claim and Tribunal’s factual findings [43]
Analysis: Second ground of appeal [47]
Third ground of appeal: Did the Judge misstate and apply the
wrong test? [56]
The judgment [57] Analysis [66] Did the Judge apply the wrong test? [68] What is the correct test? [80] Result [92]
[1] Brothers CV and CW are citizens of Iran. They have been conscripted for military service in Iran but say that if they are returned to Iran they will refuse to serve. The brothers claimed refugee status in New Zealand. Their claims were dismissed by the appellant, a refugee and protection officer (the Officer) and on appeal by the second respondent, the Immigration and Protection Tribunal
(the Tribunal).1 The Tribunal dismissed each brother’s
appeal because it did not
consider that, if CV and CW were to return to Iran, there was a real chance
they were at risk of serious harm.2
[2] CV and CW sought leave from the High Court to appeal or judicially review the Tribunal’s decisions on seven grounds. Duffy J reformulated those into three grounds on which she granted leave to bring judicial review proceedings.
Addressing those grounds, she found a number of errors in the
Tribunal’s
1 CV (Iran) [2014] NZIPT 800343 [Tribunal CV decision] at [100]; and CW (Iran) [2014] NZIPT
800440 [Tribunal CW decision] at [93].
2 Tribunal CV decision at [91]; and Tribunal CW decision at [84].
consideration of CV and CW’s claims for refugee status and
remitted the
proceedings to the Tribunal for reconsideration.3
[3] The appellant contends that Duffy J erred in reaching that
decision as follows:
(a) in reformulating the grounds of review and then allowing
the application for judicial review, the Judge did not
provide the appellant the
opportunity to respond or properly respond to those grounds;
(b) the Judge’s reformulation ignores the basis upon which CV and
CW’s claims for refugee status were advanced and
factual findings by the
Tribunal in that regard; and
(c) the Judge applied the wrong legal test for determining refugee
status.
Background
[4] CV and CW are young men in their twenties. They are of Azeri
ethnicity, an ethnic minority in Iran. The Azeris have a
different and distinct
language and culture to the predominant Islamic culture. They suffer prejudice
and discrimination in Iran.
They may not learn in their own language, are not
allowed to publish in their language, not allowed to have traditional Azeri
music
at music centres, not allowed to use Azeri names, and not allowed to
commemorate Azeri cultural traditions.
[5] Iran is a theocratic state. Religion has dominated and continues
to dominate all aspects of public life in Iran. The brothers
were born into the
Muslim faith but describe themselves as having no religion. Because they were
once members of the Islamic religion,
in Islamic terms, they are
“apostates”.
[6] Both CV and CW have claimed refugee status in New Zealand under art
18 of the International Covenant of Civil and Political
Rights (ICCPR)4
and art 1A of
3 CV v Immigration and Protection Tribunal [2015] NZHC 510, [2015] NZAR 594 [HC decision]
at [156].
4 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature
16 December 1966, entered into force 23 March 1976), art 18.
the Convention relating to the Status of Refugees (Refugee Convention).5
They do so on the basis of the following narrative concerning their life
in Iran. We set out below a very brief precis of the account
of their lives in
Iran prior to travelling to New Zealand, information which was before the
Tribunal.
CW
[7] At intermediate school CW did not dress according to the Islamic
dress code or take part in compulsory prayers. It took
him five rather than the
usual three years to progress through intermediate school because he was
forbidden to sit final exams as
punishment for not complying with the Islamic
rules. While at university, CW was politically active and took part in
demonstrations
which were violently put down by the Iranian armed
forces.
[8] On one occasion, because of views he had expressed, he was beaten
in the street by members of a paramilitary voluntary force
of Islamic loyalists
called the Basij.
[9] CW has said that he believes the best way to get change in Iran is
not to oppose the regime but “to oppose Islam because
[the] Regime is
nothing but pure Islam”. If returned to Iran, CW faces compulsory
military service. He does not wish to serve
in the Iranian army. CW came to
New Zealand in July 2011 and made an application for refugee status in May
2012.
CV
[10] At high school CV grew long hair, was clean shaven and wore fashionable clothing. During his high school years when he was walking out with his friends on the streets he was stopped by the disciplinary forces, Niroye Entezami, because of his long hair and clothing. He was arrested and detained for a week. In that time they cut his hair, tore his clothes and beat him. He was only released after
intervention by his father.
5 Convention relating to the Status of Refugees 189 UNTS 137 (opened for signature 28 July
1951, entered into force 22 April 1954), art 1A(2).
[11] CV was able to attend a preparatory camp for a national youth sports
team. However, during the camp CV talked about the Green
Movement (a reform
movement) with other players. As a result he was spoken to by the Herasat. The
Herasat are representatives of
the security and intelligence services and
maintain offices in most large public institutions in Iran, including
universities. CV
was told he was not allowed to speak about political matters
at the camp, otherwise he would be expelled from the camp and arrested.
He was
later not selected for the team and has reason to believe that is because of the
political views he expressed.
[12] In 2010 CV took and passed entry exams to allow him to study at
university.
However, the university refused his enrolment for “security
reasons”.
[13] Like CW, CV did and does not wish to serve in the military. He
sought an exemption from military service but was unable
to obtain one. He
left Iran and arrived in New Zealand in 2011. He made an application for
refugee status in November 2011.
Legal and procedural context
Legal framework
[14] Section 129(1) of the Immigration Act 2009 provides that a
“person must be recognised as a refugee in accordance with
this Act if he
or she is a refugee within the meaning of the Refugee Convention”. Claims
to refugee status are determined
by a refugee and protection
officer.6
[15] The Tribunal is established under the Immigration Act as a specialist body to, among other things, hear appeals from decisions in relation to recognition as a refugee.7 The Tribunal must hear appeals de novo8 and must determine, in the
following order:9
6 Immigration Act 2009, s 127(1).
7 Section 194(1)(c).
8 Section 198(1)(a).
9 Section 198(1)(b).
(a) whether to recognise the person as a refugee under the
Refugee
Convention;
(b) whether to recognise the person as a protected person under the
Convention against torture and other cruel, inhuman or degrading
treatment or
punishment;10 and
(c) whether to recognise the person as a protected person
under the
ICCPR.
[16] Article 1A(2) of the Refugee Convention 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 as a result of such events is unable or, owing to such fear,
is unwilling to return to it.
[17] Naturally, the concept of “persecution” is central in
claims for refugee status. As observed by the Tribunal
in DS (Iran), the
Tribunal has long taken a “human rights approach” to determining
claims to refugee status.11 On that approach international human
rights law, which is centred on international treaty law as opposed to customary
international
law, is used as the framework for considering and determining the
issue of persecution in this context.
[18] Article 18 of the ICCPR, the treaty provision under which CV and
CW’s
claims fall to be considered, provides as follows:
1. Everyone shall have the right to freedom of thought, conscience
and religion. This right shall include freedom to have
or to adopt a religion
or belief of his choice, and freedom, either individually or in community with
others and in public or private,
to manifest his religion or belief in worship,
observance, practice and teaching.
10 Convention against torture and other cruel, inhuman or degrading treatment or punishment 1465
UNTS 85 (opened for signature 10 December 1984, entered into force 26 June 1987).
11 DS (Iran) [2016] NZIPT 800788 at [204].
2. No one shall be subject to coercion which would impair his freedom
to have or adopt a religion or belief of his choice.
3. Freedom to manifest one’s religion or beliefs may be subject
only to such limitations as are prescribed by law and
are necessary to protect
public safety, order, health, or morals or the fundamental rights and freedoms
of others.
[19] As argued on appeal, CV and CW’s claims to refugee status are grounded on the right to freedom of thought and conscience, and also on the right to freedom of religion. The right to freedom of religion extends to a right not to hold religious beliefs.12 The right to freedom of thought also protects the right not to hold
particular views and opinions.13 While the right to freedom of
thought, religion and
conscience is absolute, the right to manifest that religion or belief may be
subject to limitation, as provided in art 18(3), but
only to the extent
prescribed by law and which is necessary to protect the matters outlined in art
18(3).
[20] It is not in dispute, and we regard it as settled law, that when
determining whether a person is a refugee the principal
issues to be addressed
are:14
(a) Objectively, on the facts as found, is there a real chance of the
appellant being persecuted if returned to their country
of nationality?
(b) If the answer is yes, is there a Refugee Convention reason for that
persecution? In other words, is there a link between
the harm and one of the
Refugee Convention grounds: race, religion, nationality, or membership of a
particular social ground or political
opinion.
[21] Returning to what amounts to persecution for these purposes, the Tribunal routinely applies what is referred to as the “Hathaway concept” of being persecuted, namely that the alleged persecution involves the sustained or systemic violation of
core human rights, demonstrative of a failure of state
protection.15 We agree with the
12 RT (Zimbabwe) v Secretary of State for the Home Department [2012] UKSC 38, [2013] 1 AC
152 at [33]–[34].
13 At [34].
14 DS (Iran), above n 11, at [212].
15 See BV v Immigration and Protection Tribunal [2014] NZHC 283, [2014] NZAR 415 at [7].
Tribunal’s recent observation that there is considerable danger in
using concepts designed to elucidate the meaning of Refugee
Convention terms as
substitutes for the definition of refugee in the Refugee Convention.16
In DS (Iran) the Tribunal related the Hathaway concept of being
persecuted to the question posed for it in art 1A(2) as follows:
[126] ... Given its merely epexegetic nature, the concept of a sustained
or systemic violation of human rights should not
be understood as a
test. Rather, the phrase serves to highlight critical elements of the
‘being persecuted’ component
of the refugee definition. The
referencing of human rights identifies the role international human rights law
plays in providing
the overarching normative framework for analysis.
‘Systemic’ (not, as sometimes stated, systematic) identifies
that ‘being persecuted’ arises because of an anticipated failure
of the legal and other protection-relevant systems
in the claimant’s
country of origin. Finally, ‘sustained’ can be seen to serve two
functions. It references the
enduring nature of the claimant’s
predicament arising from the failure [of] state protection in the country of
origin. It
also reminds decision-makers that persecutory harm can, but not
must, encompass multiple and ongoing violations of rights.
[127] Although ‘sustained and systemic’ therefore
captures critical elements of the ‘being persecuted’
element of
the [Refugee] Convention’s refugee definition, it does not
encapsulate its entirety. The concept of
serious harm also forms a
critical and necessary element.
[22] As to what constitutes serious harm, the Tribunal has explained that
it is harm arising from breaches of human rights which,
due to their nature,
intensity or duration, are appropriately categorised as serious. In DS
(Iran) the Tribunal added these caveats:
[181] It is also necessary to bear some important caveats in mind when
discussing the role of serious harm in the inquiry:
(a) Harm need not be physical harm. Other forms of harm such as loss
of liberty, restrictions on conduct or psychological
forms of harm may
suffice.
(b) Serious harm does not necessarily arise from repetitive or
systematic acts or omissions. A single act or omission (such
as arbitrary
deprivation of life or torture) may suffice.
(c) Serious harm can arise from an accumulation of breaches of rights
none of which would, in isolation, constitute serious
harm.
(Citation omitted.)
16 DS (Iran), above n 11, at [126].
[23] The risk of being persecuted must be well founded in the sense of
there being a real as opposed to a remote or speculative
chance of it
occurring.17 This standard is entirely objective but of course the
assessment of that risk must take into account the claimant’s individual
characteristics.18
[24] Finally, the claimant needs to link the risk of serious harm to one
of the Refugee Convention grounds or, as the Tribunal
has put it, a
“causal connection [is required] between a Convention ground and the
predicament of the refugee claimant”.19 The inquiry
at this stage is often referred to as relating to the issue of
nexus.
Tribunal’s rejection of CV and CW’s claims
[25] The Tribunal issued separate decisions for each of CV and CW
although the content of these decisions is in almost identical
terms; we cite
from the decision concerning CW for convenience.
[26] The Tribunal accepted CV and CW’s accounts as credible. It recorded that each of the appellants, if called upon to undertake military service, would refuse to serve. The Tribunal characterised the claim to refugee status as grounded upon an objection to undertaking military service:20
At the core of the appellant’s refugee claim and the risk of serious harm he
says he faces in Iran is his obligation to undertake military
service.
[27] The Tribunal identified the circumstances in which military service can found a refugee claim, referring to its own decision in Refugee Appeal No 75378.21
Drawing on that decision, the Tribunal framed the issue for itself as whether
CV and
CW had established:22
(a) conscription was carried out in a discriminatory manner;
or
17 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429.
18 DS (Iran), above n 11, at [159].
19 Refugee Appeal No 72635/01 RSAA Auckland, 6 September 2002 at [168] (original emphasis).
20 Tribunal CW decision, above n 1, at [51].
21 At [52] citing Refugee Appeal No 75378 RSAA Auckland, 19 October 2005 at [42].
22 At [53], [55] and [65].
(b) punishment for avoiding conscription was carried out in that
manner;
or
(c) if conscripted, might CV and CW be required to take part in
internationally condemned acts.
[28] The Tribunal observed that country information establishes that all
young men in Iran are liable to be conscripted
once they turn 18
years of age. Conscientious objection to service is not recognised and no
provision is made for alternative
service. However, there was no suggestion
that conscription is conducted in a discriminatory manner in relation to one of
the Refugee
Convention grounds.
[29] The Tribunal considered the prosecution of and punishment for draft
evasion in Iran. Drawing on the country information
it had, the Tribunal noted
that desertion is punishable in Iran by imprisonment if the deserter
surrenders himself to the
authorities and that draft evaders are considered
deserters. There was a range of information as to the likely term of
imprisonment,
including information that suggested sentences of 24 to 26
months’ imprisonment and subsequent disqualification from future
government jobs.
[30] The Tribunal said it did not overlook CV and CW’s account that
their cousin, who deserted during active service, was
detained for 10 days,
beaten and tortured. But the Tribunal said “it is speculative to conclude
that [either] appellant faces
a real chance of similar
mistreatment”.23 Nor had it been established that any
punishment for military evasion or desertion was discriminatory.
[31] CV and CW expressed concern they could be conscripted into one of the extreme branches of the security or defence forces which are condemned internationally for human rights abuses. The Tribunal concluded the chances that they, as irreligious young men, would be required to serve in any of the more
extreme branches of the defence or security forces were remote and
speculative.
23 Tribunal CW decision, above n 1, at [63].
[32] The Tribunal addressed the issue of freedom of religion. It noted
that CW and CV reject Islam and have no religious beliefs,
and CW does not wish
to maintain the pretence that he has such beliefs. It accepted that attendance
at political and religious
classes and prayers are a component of military
service in Iran and attendance at prayers is expected, if not necessarily
enforced.
[33] In the cases of CV and CW the Tribunal similarly concluded that requiring either of the appellants to attend these religious observances while in the army “would be tedious and possibly even unpleasant for the [appellants] but they would not amount to a breach of [their] right to hold [their] own beliefs because such
attendances would not force [them] to change [their]
beliefs”.24
[34] All other grounds on which refugee status was sought were
dismissed.
Applications for judicial review and appeal to the High
Court
[35] CW and CV filed proceedings seeking to both appeal and judicially review the Tribunal’s decisions. They required leave to pursue either an appeal or a judicial review of the Tribunal’s decisions.25 They also had to meet arguments advanced on behalf of the Officer that the appeal and application for review were filed out of time.26 Duffy J found that the applications for leave to appeal were out of time but
that the applications for leave to review were not.27
Those findings are not the
subject of appeal.
[36] She recorded the grounds pursued on review by CV and CW as being
that the
Tribunal:28
(a) Failed to apply the test in Refugee Appeal 75378 in
determining the applicants’ respective refugee claims as conscientious
objectors to military service;
(b) Made a false assumption that the applicants will pretend to be Muslim
and that they would attend Islamic classes, rituals
and prayers against their
honestly held beliefs;
24 At [81].
25 Immigration Act, ss 245(1) and 249(3).
26 See ss 245(2) and 247(1).
27 HC decision, above n 3, at [30] and [36].
28 At [76].
(c) Failed to ascertain whether the applicants would comply with
the military requirements to pretend to be Muslim against
their honestly held
beliefs;
(d) Erred in finding it acceptable that a refugee could falsely declare a
religion that he or she did not believe;
(e) Erred in finding it acceptable that a refugee could falsely pretend
to follow a religion in order to avoid persecution; and
(f) Failed to consider that the applicants may be detained, possibly
indefinitely, upon return to Iran for draft evasion and refusing
to perform
military service.
[37] The Officer accepted that CV and CW met the test for leave to review
in respect of grounds that the Tribunal’s decision
was flawed in relation
to the issue of religious discrimination. The Officer therefore consented to
leave being granted on the issue
of whether the Tribunal erred in finding the
military requirement that CV and CW attend Islamic prayer would not
constitute
serious harm, although the Officer argued that the review should
be dismissed on its merits. This concession as it related to
leave in the High
Court encompassed grounds (b), (c), (d) and (e) of those sought to be advanced
by CW and CV. Leave on the remaining
two issues, (a) and (f), was
opposed.
[38] The Judge said that while the grounds of review as particularised in the applicant’s statement of claim could be approached discretely, she considered that they were capable of being read more roundly.29 She reformulated them as
follows:30
(a) whether conscripted military service in an army that observes a
particular religion can result in non-believers being persecuted;
(b) whether in such circumstances non-believers who refuse to serve in
order to avoid observance of a religion not of their
choosing will be
persecuted; and
(c) whether the Tribunal failed to consider these questions.
[39] After consideration of the merits of the application, Duffy J
remitted the applications to the Tribunal for reconsideration
of whether there
is a real chance of
29 At [96].
30 At [96].
CV and CW, as non-believers of Islam, being persecuted either directly or
indirectly given their political and religious objections
to
service.31
First ground of appeal: Was there a breach of natural
justice?
[40] Ms Coleman submits for the appellant that Duffy J breached natural
justice in granting leave to review and simultaneously
determining the
substantive application on reformulated grounds. She argues that the appellant
did not have adequate notice or any
opportunity to respond to those new grounds,
as they only emerged in the course of judgment. The Judge should have granted
an adjournment
to allow the appellant to respond to the reformulated grounds or
at least have allowed the parties to provide further written submissions
on the
reformulated grounds.
Analysis: First ground of appeal
[41] Most of the grounds as reformulated by the Judge were, we think,
merely a more concise and better conceptualised expression
of the initial six
points raised by CV and CW. It is also relevant that the appellant consented to
the grant of leave in respect
of a ground that squarely raised an issue of
discrimination on the grounds of religious belief. By its own account, the
Officer
argued before Duffy J that this ground could not succeed because of how
the claim was presented before the Tribunal. That is the
very argument now
advanced on appeal in respect of the grounds on which leave was
granted. It is therefore difficult
to see how any prejudice was caused
by the process adopted by the Judge.
[42] Finally, even if the appellant was prejudiced as it now claims, that
prejudice is cured by the hearing of this appeal.
The appellant has had full
opportunity to address this Court in respect of the merits of the reformulated
grounds.
Second ground of appeal: Reformulation was not open to Duffy J because of
basis of claim and Tribunal’s factual findings
[43] The appellant says that the claims of CV and CW for refugee status rested on their refusal to serve in the army. That in turn was based on their opposition to the
Iranian state and the possibility they would be forced to engage in
internationally
31 At [156].
condemned acts if conscripted to one of the extreme branches of the defence
and security forces.
[44] Ms Coleman submits that counsel for CV and CW, Mr
Mansouri-Rad, conceded before the Tribunal that military conscription
into the
Artesh (the regular army) would be a justified limit on the applicants’
freedom of religion and political opinion,
and consequently could not found a
refugee claim. She says there is such a concession in his written
submissions.
[45] The Officer says the Tribunal discounted the risk that CV and CW
would be forced to serve in one of the extreme branches.
Ms Coleman argues that
the Tribunal found as a fact that the basis of CV and CW’s objection to
service in the military was
political and that finding was an accurate
reflection of the brothers’ claims and evidence. The Tribunal also found
as a fact
that CV and CW would refuse to serve, so its consideration of their
predicament if forced to serve was obiter.
[46] Against this background, Ms Coleman argues the Judge was not free to reformulate the grounds of review as she did. Since CV and CW’s objection to military service was not based on the observance of religion in the regular army, the ground of review identified at (a) of the reformulated grounds (whether conscripted military service in an army that observes a particular religion can result in non-believers being persecuted) did not arise on the facts. Ms Coleman submits that it is only because the Court reformulated the claims and the grounds of review that any error in the Tribunal’s decisions can be said to arise. As the Judge recognised, the Tribunal’s reasoning in relation to whether military conscription per se can establish a ground under the Refugee Convention, the ground on which Ms Coleman argues the applications for refugee status were advanced, “is orthodox and in
keeping with established principle”.32
Analysis: Second ground of appeal
[47] We are not persuaded the Tribunal found that the brothers’
only objection to
military service was a political one. The passage in the decisions
relied upon by
32 HC decision, above n 3, at [141].
Ms Coleman is no more than the Tribunal framing for itself the issue which it
thought it needed to address. We set out the relevant
part:33
At the core of the appellant’s refugee claim and the risk of serious
harm he says he faces in Iran is his obligation to undertake
military service
... The appellant asserts that he will refuse to undertake military service
because he is opposed to the Iranian
state.
But that passage must be read in the context of the rest of the
Tribunal’s decisions in which it goes on to address the further
religious
basis for the brothers’ objections to military service.
[48] We also do not accept that the brothers’ claims were advanced
on the narrow basis the appellant contends. We have
reviewed the various
statements made by CV and CW when initially claiming refugee status and then
subsequently in the course of proceedings
before the Tribunal. Ms Joychild QC,
counsel for both CV and CW, fairly characterises the tenor of these various
statements when
she says that the brothers’ objections to military service
have as their source both political opinion and religious belief.
As each
brother has said on a number of occasions, the regime is an Islamic regime and
the army is part of that regime. The regime,
and the army in particular,
requires them to manifest Islamic religious worship and dress. Although their
objections extend to the
concern that they would be conscripted into a branch of
the defence or security forces that commits human rights abuses, that was
not
the full extent of their claims.
[49] For example, during his evidence before the Tribunal, CV was asked
if his objection extended to service in the Artesh. He
said that it did:
“In any aspect I am objecting, serving this government”.
Subsequently, CV gave the following evidence:
Q. If you did end up doing your military service a component of that is taking part in Islamic prayers, do you think that would cause problems for you?
A. Yes it would. Q. Why?
33 CW Tribunal decision, above n 1, at [51].
A. Because I don’t believe in this religion. The religion that is
ruling in that country is being forced into the brains of
people and I
don’t agree with that religion.
[50] Throughout his statements and evidence CV makes plain that he sees
Islam and the regime as inseparable and refuses to be
forced to comply with
religious rules and observances.
[51] The same is true of the nature of CW’s claim to refugee
status. In the report from his initial interview with CW,
the Officer records
that CW’s objection to performing military service appears to be based on
two limbs:
The first is that he believes he cannot perform the required Islamic prayers
and other rituals or “remain quiet” in the
military, and will be
punished for this. The second objection is his fear that he will be required
to commit violence or abuses
against Iranian citizens if drafted into a branch
of the security forces such as Entezami or Sepah.
[52] Before the Tribunal CW was asked when he first felt that he did not
want to do military service in Iran. He replied:
During school, the school authorities or officials would put us under
pressure to do prayers. I didn’t want to do it, I hated
it. And later on
I noticed that the same things are happening during the military
service.
[53] We turn next to the proposition that the Tribunal found as a fact
that CV and CW would refuse to serve on their return.
Again we do not accept
that it did. If the Tribunal had made such a finding it is difficult to see why
it then considered the situation
that CV and CW would face on their return if
they did serve. The Tribunal must have considered such conduct on the part of
CV and
CW as being in prospect because it went on to consider whether it was
reasonable to require CV and CW to evince the behaviour of
members of the
Islamic faith for the time they were in the army.
[54] Finally, we have considered the passage in Mr Mansouri-Rad’s submissions upon which Ms Coleman relies to support her submission that he conceded that military service in the Artesh would be a justified limit on CV and CW’s freedoms of religion and political opinion and so could not found a refugee claim. The relevant passage is as follows:
(a) Is military service in Iran prescribed by law and is of general
application?
Answer: Yes.
(b) Is the imposition of military service in Iran in pursuit of one of
the aims legitimated by Article 18(3), namely
public safety or national
security?
Answer: In so far as conscription to Artesh is
concerned, yes.
In so far as conscription to the LEF,
Pasdaran and Basij is concerned, no.
Clearly, we submit, recruiting for suppressing dissent and enforcement of
Islamic moral codes and laws are not necessary for public safety or
national security. Also, given serious violations of human rights by
the LEF, Pasdaran and Basij an assignment to those
forces cannot be considered as necessary for public safety or national
security.
(c) Is the imposition of military service in Iran necessary to achieve
public safety or national security? The measure adopted must,
therefore, have an inherent relationship of proportionality to the legitimate
aim.
Answer: In so far as conscription to Artesh is
concerned, yes.
In so far as conscription to the LEF,
Pasdaran and Basij is concerned, no.
[55] We do not read this as a concession but rather counsel’s attempt to link CV and CW’s objection to the Tribunal’s usual approach to claims under art 18(3) of the ICCPR; it was argument directed at one aspect only of the claim for refugee status. When read in the broader context of his submissions, it is clear that the claim to refugee status on religious and political grounds is maintained, even if the Tribunal found that the brothers were likely to be conscripted to the Artesh. We also note that in the passage relied upon, Mr Mansouri-Rad submits “suppressing dissent and enforcement of Islamic moral codes and laws are not necessary for public safety or national security”.
Third ground of appeal: Did the Judge misstate and apply the wrong
test?
[56] The appellant contends that, in allowing the appeal, Duffy J
misstated the test for refugee status in New Zealand by equating
a breach of
human rights with persecution. She thereby failed to consider the additional
requirement, well established by case
law, of serious harm.
The judgment
[57] The Judge thoroughly reviewed the principles governing
refugee claims. In the course of doing so she discussed
the decisions
of the United Kingdom Supreme Court in HJ (Iran) v Secretary of State for
the Home Department34 and RT (Zimbabwe) v Secretary of State
for the Home Department.35
[58] Drawing from her extensive discussion of the case law she set out
what she
described as a “helpful checklist for the New Zealand context” as
follows:36
(a) The Tribunal must first decide whether it is satisfied on the
evidence that a claimant comes within one of the
protections in the
[Refugee] Convention. This is a purely factual assessment that will hinge on
the reliability and credibility
of the claimant’s evidence.
(b) The next stage is to consider what will the situation of the
claimant be on her return to her home country? Included within
this enquiry are
questions as to how an individual claimant will conduct herself, if returned,
and how others will react to
what she does. This includes paying
regard to those whom she will come into contact with in private, as well as in
public.
The way she conducts herself may vary from one situation to another
with varying degrees of risk. A claimant, however, cannot and
must not be
expected to conceal aspects of herself which she is unwilling to conceal, even
from those whom she knows may disapprove
of it. If she fears being persecuted
as a result, and that fear is well-founded, she is entitled to asylum, however
unreasonable
her refusal to resort to concealment may be: “The question of
what is reasonably tolerable has no part in this enquiry”.
(c) If it is found that a claimant will in fact conceal aspects of
himself if returned, it is then necessary to consider why
he will do so. If
this will simply be in response to social pressures, or for cultural or
religious reasons of his own choosing
and not because of fear of persecution,
his claim for asylum must be rejected. But if the reason he will resort to
concealment
is that he genuinely fears that
34 HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31, [2011] 1 AC 596.
35 RT (Zimbabwe) v Secretary of State for the Home Department, above n 12.
36 HC decision, above n 3, at [140].
otherwise he will be persecuted, it will be necessary to consider whether
that fear is well-founded. This is the final and conclusive
question:
“does he have a well-founded fear of being persecuted?”
(Footnotes omitted.)
[59] The Judge identified a number of defects in the Tribunal’s
consideration of CV and CW’s claims to refugee status.
Duffy J said the
Tribunal erred when it found that the religious observance the claimants would
be compelled to participate in,
while tedious, would not constitute a breach of
the claimants’ right to follow their own beliefs because it did not force
them
to change those beliefs.37
[60] She said it was hard to see how any of the limitations allowed in
art 18(3) could be applied to this particular circumstance.38 The
Tribunal also applied an incorrect view of coercion in terms of art 18(2) when
it held that Islamic observances in the Iranian
army would not force the
applicants to change their beliefs.39
[61] The Tribunal was also wrong in law, the Judge said, to approach the
brothers’ cases by looking discretely at the question
of military
conscription and then at the question of religion as a reason for being
persecuted.40 In doing so, it asked itself the wrong questions and
therefore completely overlooked the nature of the persecution the brothers
claimed
they would suffer if they had to return to Iran. The Iranian army is a
religious army and the Iranian state offers no protection
for conscripts who
hold beliefs other than Islam.41
[62] The Tribunal also failed to ask itself whether universal
conscription of a type that requires non-believers to profess to
be Muslims,
while serving in the Iranian army, is a form of indirect persecution insofar as
it precludes non-believers from manifesting
their religious
beliefs.42
[63] There was a question of fact as to what might happen to such a
person if, at some point during their time in the military,
the military
authorities or Islamic
37 HC decision, above n 3, at [142].
38 At [144].
39 At [145].
40 At [146].
41 At [147].
42 At [148].
servicemen discovered they were non-believers.43 The Tribunal
should have asked itself whether there was a real chance of harm to
those who falsely declare themselves
to be Muslim on entering the Iranian
army and who are later discovered to be apostates. The Tribunal did not ask
itself that because
it falsely assumed CV and CW could simply manifest false
religious beliefs and keep quiet about their own
apostasy.44
[64] She said there was a separate question of whether a refusal to serve
in an Islamic army on the ground of being a non-Muslim
could result in the
brothers being persecuted.45 The Tribunal overlooked the reason for
the refusal. If the refusal is in part based on the applicants not wanting to
be coerced by
the Iranian military into religious observance of the Muslim
faith, any penalty that they may pay for this refusal can amount
to them
being indirectly persecuted for their being
non-believers.46
[65] She concluded:47
... the applicants may have a strong case for refugee status whether they
perform military service in Iran or refuse to do so. In
either case, there may
be a well-founded risk of them suffering serious harm. I am also satisfied that
the legal errors that have
been identified are responsible for the Tribunal
failing to recognise the true nature of the applicants’ claims for refugee
status.
Analysis
[66] Ms Coleman’s argument is that the Judge’s formulation of the test which we have quoted at [58] above was wrong and that she was led into error by her reliance upon the decision in HJ (Iran).48 The test she applied was drawn from HJ (Iran), a decision followed in at least one other New Zealand High Court decision: X (Iran: Apostate) v Immigration and Protection Tribunal.49 Ms Coleman argues that the test
articulated in HJ (Iran) is erroneous. It departs from
the Refugee Convention
43 At [148].
44 At [149].
45 At [150].
46 At [151].
47 At [155].
48 HJ (Iran) v Secretary of State for the Home Department, above n 34.
49 X (Iran: Apostate) v Immigration and Protection Tribunal [2014] NZHC 2779, [2015] NZAR
106 at [24]–[25].
analysis set out at [20]–[23] above in that it equates persecution with
an infringement of human rights and suggests that
any threatened
interference with a person’s conduct or identity, related to a
protected ground, will amount to persecution.
She notes that HJ (Iran)
has been the subject of well-founded criticism in academic writing and
submits that it should not be applied in New Zealand. Its
application here led
Duffy J into error.
[67] Ms Coleman says that the Judge’s error is exemplified
in the following
passage in the judgment:50
[103] The above statements of principle display acceptance of a linkage
between persecution and discrimination. The second respondent
has argued that
“persecution is a strong word” and that there is a “clear
distinction between a breach of human
rights (discrimination) and a
sustained or systemic denial of core human rights (persecution)”. The
second respondent
seemingly attempts to distinguish one from the other on the
basis that discrimination is a less serious intrusion on human rights
than is
persecution. However, this argument overlooks the meaning ascribed to
“discrimination” by Lord Hoffman in ex parte Shah, who uses
the term to refer to circumstances where targeted individuals are stripped of
the enjoyment of fundamental human rights.
It is the targeted and therefore
discriminatory nature of such ill-treatment that leads to it being
persecution.
Did the Judge apply the wrong test?
[68] We address first the arguments in respect of HJ (Iran) before
addressing the test as formulated and applied by Duffy J.
[69] The refugee claimants in HJ (Iran) were gay men. All of the members of the Court agreed that where a gay man could avoid persecution only by modifying his behaviour to conceal his sexuality, he had a well-founded fear of persecution if he would not so modify his behaviour or if he would modify his behaviour but a material consideration in the decision to do so was a well-founded fear of persecution. The result of the decision is not the issue for the appellant. Rather it is the reasoning, particularly the reasoning contained in the judgment of Lord Rodger
of Earlsferry, with which the appellant takes
issue.
50 HC decision, above n 3.
[70] Lord Rodger said that it would be illegitimate to reject an
application for refugee status on the ground that the particular
applicant could
find it reasonably tolerable to act discreetly and conceal his or her sexual
identity.51 He continued:52
In short, what is protected is the applicant’s right to live freely and
openly as a gay man. That involves a wide spectrum
of conduct, going well
beyond conduct designed to attract sexual partners and maintain relationships
with them. To illustrate the
point with trivial stereotypical examples from
British society: just as male heterosexuals are free to enjoy themselves playing
rugby,
drinking beer and talking about girls with their mates, so male
homosexuals are to be free to enjoy themselves going to Kylie concerts,
drinking
exotically coloured cocktails and talking about boys with their straight
female mates. Mutatis mutandis—and
in many cases the adaptations would
obviously be great—the same must apply to other societies. In other
words, gay men are
to be as free as their straight equivalents in the society
concerned to live their lives in the way that is natural to them as gay
men,
without the fear of persecution.
[71] The appellant accepts as settled law that there is no duty on a claimant to be discreet in order to avoid harm that may result from living openly as a member of a protected class. That is a principle of long standing, at least in this jurisdiction.53
Nevertheless Ms Coleman points to and adopts academic criticism of HJ (Iran). Richard Buxton argues that the passage from the judgment of Lord Rodger quoted above makes plain that the approach in HJ (Iran) was that what is protected by art 1A(2) “is the whole spectrum of behaviour and beliefs of a member of any one of
the classes listed [in the article]”.54 The limitation
of any part of that spectrum,
however trivial it may be, will amount to persecution in terms of
the Refugee Convention. This analysis, it is argued,
shows that the Court
treated the modification of behaviour as persecutory harm — the
persecution has already occurred by the
modification. Ms Coleman adopts this
criticism and argues that the test wrongly equates a breach of human rights
(discrimination)
with serious harm (persecution).
[72] In another article the learned authors James Hathaway and Jason
Pobjoy also criticise the approach of the Supreme Court in
HJ (Iran),
describing it as both
51 HJ (Iran) v Secretary of State for the Home Department, above n 34, at [77].
52 At [78].
53 See for example Refugee Appeal No 74665/03 [2005] NZAR 60 (RSAA) at [114]; and Appellant
S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71, (2003) 216
CLR 473 at [39] per McHugh and Kirby JJ.
54 Richard Buxton “A History from Across the Pond” (2012) 44 NYUJ Int’l Law & Pol 391 at 401.
under-inclusive and over-inclusive.55 It is over-inclusive
through its characterisation of a wide range of behaviours as protected
under the Refugee Convention
and under-inclusive in its failure to identify
the endogenous stress caused by forced concealment of sexuality as the relevant
persecutory
harm.
[73] We do not read HJ (Iran) as authority for the propositions for which Ms Coleman argues it stands and for which she criticises it. The passage in Lord Rodger’s judgment is to be read in the context of the judgments overall and against the background of the issues before the Court. The appeal was focused upon the Court of Appeal’s approval, as part of the test to determine a claim to refugee status, of an inquiry as to whether discretion in matters of sexual activity and sexual identity was something the applicant could reasonably be expected to tolerate in order to avoid persecution. The decision of the Supreme Court in HJ (Iran) is first and foremost a rejection of the notion that a claimant can be denied refugee status on the grounds that he or she should conceal their membership of a persecuted group to avoid persecution. The discussion of the right to live openly and freely as a gay man is to be read in this context. There is no detailed discussion of what the Court considers to be persecution but that omission, it seems to us, is because the appeal proceeded upon the basis that an openly gay man would, on return to their country of
origin, Iran or Cameroon, be persecuted (“beaten up or
worse”).56 In other words, it
was not at issue on appeal that an openly gay man would be
persecuted.
[74] The orthodoxy of the Court’s approach emerges from the judgment of Lord Hope of Craighead and also in a later passage from the judgment of Lord Rodger. In rejecting the approach of the Court of Appeal, Lord Hope makes express reference to the stark line between what does and what does not amount to persecution, clearly not equating a discriminatory breach of human rights with
persecution.57
[75] Similarly, the test proposed by Lord Rodger provides for the inquiry
as to serious harm. He says:
55 James C Hathaway and Jason Pobjoy “Queer Cases Make Bad Law” (2012) 44 NYUJ Int’l Law
& Pol 315 at 335.
56 HJ (Iran) v Secretary of State for the Home Department, above n 34, at [58].
57 At [12].
[82] When an applicant applies for asylum on the ground of
a well-founded fear of persecution because he is gay,
the tribunal must first
ask itself whether it is satisfied on the evidence that he is gay, or that he
would be treated as gay by
potential persecutors in his country of nationality.
If so, the tribunal must then ask itself whether it is satisfied on the
available
evidence that gay people who lived openly would be liable to
persecution in the applicant’s country of nationality. If so,
the
tribunal must go on to consider what the individual applicant would do if he
were returned to that country. ...
Even in the passage of his judgment criticised by Ms Coleman, Lord Rodger
makes plain that people should be able to live their lives
“without the
fear of persecution”. This suggests to us that at no point did Lord Rodger
think the requirement of serious
harm, that is persecution, can be foregone in
the inquiry as to refugee status.
[76] We note that in DS (Iran) the (New Zealand) Tribunal addressed similar arguments to those made before us: that HJ (Iran) stood as authority for a new and erroneous approach to the issue of persecutory harm. The HJ (Iran) approach, it was argued, was that if a society did not protect the right to live openly and freely as a member of a protected class, such would amount to serious harm as it would be a breach of the claimant’s human rights. The Tribunal came to the same view as have we, rejecting the argument that HJ (Iran) was authority for that proposition.
It said:58
[216] Further, it seems that the dicta in [HJ (Iran)] about
“the right to live freely and openly” is no more than the natural
corollary of the Courts’ rejection of
any requirement to be discreet or to
modify behaviour so as to avoid persecution. Rather than signalling any
re-ordering of the
analysis along nexus-based lines, the Court was merely
asserting the surely uncontroversial general proposition that it is hardly
in
keeping with the purpose of the [Refugee] Convention that a refugee claimant is
required to hide the very characteristics contained
in the five [Refugee]
Convention grounds which, alongside the concept of ‘persecution’,
the drafters had expressly included
Article 1A(2) to delineate the specificity
of the refugee predicament.
[77] The next issue is whether the Judge extracted the wrong test from her review of the authorities including her consideration of HJ (Iran). We agree with Ms Coleman that the test set out at [58] as proposed by the Judge is not helpful. It mixes up elements of the inquiry and, in particular at (b), it mixes the
forward-looking assessment as to the predicament of the claimant on
return to their
58 DS (Iran), above n 11.
country of origin with the related but separate inquiries as to whether they
would face a risk of serious harm or persecution and,
if so, whether that
persecution is connected to a Refugee Convention ground. This has the
potential to lead fact-finders
into error. We also agree that [103] of Duffy
J’s judgment appears to wrongly equate discrimination in breach of human
rights
with persecution.
[78] However, when regard is had to the Judge’s discussion of how
the principle is to be applied, it becomes clear she had
in mind the need for
the claimants to establish the required level of risk of serious harm and that
she did not equate discrimination
with persecution. She referred to the need
for a claimant to establish a risk of serious harm several times in the course
of the
judgment, including in the following passage:59
[145] ... The Tribunal found that Islamic observances in the Iranian Army
would not force the applicants to change their beliefs.
However, this is an
incorrect view of what constitutes coercion under Art 18(2) of the ICCPR. Those
non-believers, who submit to
Islamic observances unwillingly, are being coerced
into religious observance against their own beliefs. If they act in this way
for fear of otherwise suffering serious harm from the military authority, from
other recruits or both as the case may be then, because
the coercion comes from
an arm of the Iranian government, all the elements of being persecuted will be
made out. If they do not
so submit, the next question is, will they suffer
serious harm as a result? If they will, the result will be indirect persecution
for a religious reason. When the applicants’ cases are looked at in the
round, this seems to me to be the crux of their claims
for refugee
status.
(Footnotes omitted.)
[79] The Judge added as a footnote to this paragraph:
A person will have a well founded risk of being persecuted if: (a) he fears
or he will suffer serious harm should the protected belief
be discovered; and
(b) the home country offers him no protection from harm.
What is the correct test?
[80] Ms Coleman invited us to restate the appropriate test to clear up any confusion created by HJ (Iran) and by the test as articulated by Duffy J. She refers
us to a recent restatement of the test by the Tribunal in DS (Iran)
and submits that
59 HC decision, above n 3.
this Court should endorse that test with some slight amendments as to its
expression, although by way of clarification only.
[81] We have hesitated to venture into this area. Our review of the authorities suggests to us that most of the principles to be applied are well settled. Our review also provides evidence of a risk that lengthy discussion of settled principle can confuse rather than clarify. However, because academic writing we have cited suggests that all may not be thought to be settled following HJ (Iran), a view perhaps now also encouraged by the test as formulated (but not as applied) by Duffy J, we have decided to address the test now applied by the Tribunal in DS
(Iran). The test articulated by the Tribunal was as
follows:60
(a) Does the claimant’s predicament, as found, indicate there will
be an interference with a basic human right or rights
in the form of a
restriction on its exercise or enjoyment? (the question of scope).
(b) If there will be interference, does the right in principle permit any
restriction? (the question of nature).
(c) If the restriction is in principle permitted, is the restriction at
issue lawful in terms of the relevant limitation or derogation
clause? (the
question of legality).
(d) If the restriction is not permitted in principle, or is permitted but
applied unlawfully, will the breach of the right cause
some form of serious harm
to the claimant? (the question of impact).
[82] We agree that this test accords with the authorities referred to us
and with the Tribunal’s own jurisprudence but,
more importantly, it
conforms with the inquiry under art 1A. We also accept that the minor amendment
suggested by Ms Coleman submits
would assist in relating the test to the art 1A
inquiry. Accordingly, the test is:
(a) Objectively, on the facts as found, what will be the predicament of the claimant if returned to their country of
nationality?
60 DS (Iran), above n 11, at [203].
(b) Is there a real chance of the claimant being persecuted
if returned to their country of nationality? This requires
the decision-maker
to ask:
(i) What fundamental human right is at issue or what right is the
claimant seeking to exercise?
(ii) Is that right breached? Depending on the right at issue, this may
require assessment of whether the right in principle
permits any
restrictions and, if so, whether the restriction at issue is lawful in terms of
the relevant limitation or derogation
clause.
(iii) If the right is breached, will the breach cause serious harm to the
claimant such that it amounts to being persecuted?
(iv) Is the fear of being persecuted well founded?
(v) If yes, is there a Convention reason for that
persecution?
This is the approach to be applied by the Tribunal on reconsideration of the
claims.
[83] As to the approach to concealment, we note that the approach set out in HJ (Iran) was approved by the Judge in this case and by Venning J in X (Iran: Apostate) v Immigration and Protection Tribunal.61 We agree that the framework set out there may assist in analysis. But we caution that even if the evidence establishes the claimant will conceal his or her membership of the protected class for reasons unrelated to fear of persecution, the fact-finder must still go on to consider whether,
notwithstanding that voluntary concealment, the claimant has a well-founded fear of persecution. In making that observation we bear in mind the difficulty of concealing something which is an integral part of a person, such as a claimant’s religion or their sexuality, although we do not limit our observation to those issues. Ultimately, the
predicament of a claimant on return to their country of origin is a
question of fact for
61 X (Iran: Apostate) v Immigration and Protection Tribunal, above n 49, at [24]–[25].
the fact-finder to determine and it is important that legal tests and
constructs do not obscure the fundamental inquiry under art
1A.
[84] We also clarify that the test we have set out does not displace the
simple two-stage framework set out above at [20]. It
simply creates a staged
pathway through that process.
[85] We do not propose to attempt an application of the test in this
case. In the High Court the Judge expressed views as to
errors in the
Tribunal’s approach and commented on the merits of CV and CW’s
claims to refugee status. We do not see
it as the role of this Court, on this
appeal, to express views as to the merits of those claims. However, we agree
generally with
the deficiencies the Judge identified in the Tribunal’s
analysis. In particular we consider:
(a) Given the religious objections CV and CW had to service in the
armed forces, the Tribunal should have addressed whether
the consequences of
refusing to serve were an indirect form of persecution for CV and
CW.
(b) As to the Tribunal’s assessment of CV and CW’s
predicament if they did serve, the Tribunal’s approach
was to impose upon
CV and CW an obligation to conceal their non-belief. Ms Coleman argued the
issue of concealment did not arise
on the facts of this case. But we agree
with the Judge that on the Tribunal’s approach it did. The
Tribunal assumed
that if CV and CW did serve they could conceal their
lack of religious belief by manifesting the Islamic faith. The Tribunal
was
wrong to proceed upon that basis. It was required to assess the predicament of
CV and CW, if they did serve, also on the basis
that they would not conceal
their lack of religious belief.
(c) On either scenario, serve or refuse to serve, the Tribunal had to address whether the right in question permitted any restriction and, if so, whether any restriction in the case of the claimants (compulsory military service and/or compulsory religious observance when in the
army) was lawful. On the “serve” scenario, it had to consider
whether the compulsory religious observances were in breach
of art 18(2) of the
ICCPR.
[86] The Tribunal apparently viewed the forced manifestation of religious
belief in the form of prayers and other observances
as a minor irritation and as
not reaching the threshold of serious harm. It did this in reliance upon its
own earlier decision in
CP (Iran).62 In that decision the
Tribunal characterised the requirement that the claimant pretend to be Muslim on
enlistment into the army as
such a fleeting and insignificant breach of the
right that it would not amount to persecution.63 It said that it
lay only at the margins and not the core of the right.
[87] The Tribunal originally employed the language of “core”
and “margin” in connection with protected
rights when responding to
and rejecting overseas jurisprudence which suggested there was an expectation of
concealment or behaviour
modification as a permissible antidote to the
refugee predicament. But as the Tribunal explained in DS (Iran),
its use has caused confusion:
[190] Difficulty has arisen because the core/margin concept has
been utilised to describe different aspects of the human
rights approach to the
interpretation of the refugee definition. For example, ‘core’ is
sometimes used as a synonym
for ‘basic’ or ‘fundamental’
when describing those norms of international human rights law which are accepted
as underpinning the Refugee Convention. In other contexts ‘core’ is
used to describe a closeness of relationship between
a proposed action and a
‘basic’ or ‘fundamental’ human right, in distinction
to ‘margin’
which describes a more distant relationship. On
other occasions, the term ‘margin’ is used to describe the trivial
consequence of a violation of the right itself for the individual
concerned.
(Citations omitted.)
[88] The Tribunal has decided to abandon the language and concepts of
core and margin, recognising the analytical process for
what it essentially
is:64
the orthodox inquiry into whether there is a risk of a prospective breach of
the claimant’s human rights ... Should such risk
be established, this does
not necessarily amount to being persecuted and an inquiry into the existence of
some form of serious harm
is to follow.
62 CP (Iran) [2013] NZIPT 800452.
63 At [63].
64 DS (Iran), above n 11, at [201].
[89] We agree, from our review of the authorities, that this is a concept
which causes confusion. We think it exemplifies
the danger of
allowing Tribunal or Judge-made concepts to obscure the fundamental inquiry
under art 1A. In this case, we consider
its application has led the Tribunal
into error in that it has diverted the Tribunal from the necessary
analysis.
[90] Finally we note that in her decision Duffy J characterised as
orthodox the Tribunal’s finding that universal military
conscription
per se did not amount to persecution, although service was objected to on the
ground of religion or conscience.65 The Tribunal applied the
following principles:66
1. Persons who claim refugee status on the basis of a refusal to
perform military service are neither refugees per se nor excluded from
protection.
2. There is, in general, no right to refugee status arising from
objections based on religion or conscience, where the state
fails to recognise
that belief by providing for an alternative form of service. While the
existence of any alternative service
provision may be a relevant factor
in considering whether or not the level of punishment amounts to persecution,
its absence
does not per se establish persecution.
3. Conscription laws are laws of general application and the
infliction of punishment for their breach is not motivated by
the belief of the
claimant. There is, therefore, no nexus between the punishment and a [Refugee]
Convention ground.
4. Nevertheless, a valid claim for refugee status on the basis of
conscientious objection may be made where:
(a) conscription is conducted in a discriminatory manner in
relation to one of the five [Refugee] Convention grounds;
(b) prosecution or punishment for evasion or desertion is biased in
relation to one of the five [Refugee] Convention grounds;
and
(c) the objection relates to being required to participate in
military action where the military engages in internationally
condemned acts.
In such cases it is necessary to distinguish between cases:
(i) where the internationally condemned acts were carried out as
a matter of government policy. If so, all conscripts
face a real chance of
being required to so act; and
65 HC decision, above n 3, at [141].
66 CW Tribunal decision, above n 1, at [52] citing Refugee Appeal No 75378, above n 21.
(ii) those where the state encourages or is unable to control
sections of its armed forces. In such circumstances
a refugee claimant
is required to show there is a real chance he/she will be personally
involved.
[91] The Tribunal has since noted in DS (Iran) a recent shift in thinking on the issue of compulsory military service in decisions of the United Nations Human Rights Committee.67 For example in Min-Kyu Jeong v Republic of Korea68 and
Atasoy v Turkey,69 the Committee has held that the right to
conscientious objection is
inherent in art 18(1), such that any failure to provide for a proportionate
form of alternative service amounts to a breach of art
18(1). In DS (Iran)
the Tribunal declined to adopt that analysis and applied the
“orthodox” analysis applied in this case.70 The
Tribunal’s approach to the significance of universal conscription in the
circumstances of this case was not an issue argued
before us. It is an issue we
leave for another day.
Result
[92] The appeal is dismissed.
[93] We make no order as to costs.
Solicitors:
Crown Law Office, Wellington for Appellant and Second Respondent
Mansouri Law Office, Auckland for First
Respondents
67 DS (Iran), above n 11, at [246]–[247].
68 Min-Kyu Jeong v Republic of Korea CCPR/C/101/D/1642-1741/2007 (2011) at [7.3].
69 Atasoy v Turkey CCPR/C/104/D/1853-1854/2008 (2012) at [10.4]–[10.5].
70 DS (Iran), above n 11, at [257].
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