DS (Iran)  NZIPT 800788
In this series, the New Zealand Centre for Human Rights Law, Policy and Practice at Auckland University’s Faculty of Law analyses and discusses cases from the past year from a human rights perspective.
D, who was in his 20s, was born in Iran. His parents were secular. By the time he was nine, he was getting into trouble at school because of his views on religion and Islam. This made him unpopular with his teachers and fellow pupils. He was often singled out for punishment and he believed his grades suffered as a result. When he completed primary school, he successfully applied for a student visa to allow him to complete his schooling in New Zealand where he had family.
When he turned 18, he became eligible for military service in Iran. While he was not opposed to serving in the military, he was concerned because he might have to serve in a branch of the armed services that committed human rights abuses. He was also opposed to supporting a regime which he considered to be a religious dictatorship. Further, as the armed forces in Iran are Islamic, he would need to declare his religion on conscription and be expected to perform certain religious rituals. He would find this difficult as it was inconsistent with his beliefs.
D’s claim of refugee and protected person status in New Zealand on the grounds of religious belief was denied by the Refugee Status Branch. He appealed unsuccessfully. Subsequently, he lodged judicial review proceedings in the High Court. Justice Venning remitted the matter back to the Tribunal for further consideration. The Tribunal found that D was a refugee for the purposes of the Refugee Convention. As a refugee, he was protected from refoulement to Iran. It followed that because he was recognised as a refugee, he was not a protected person within the meaning of the International Covenant on Civil and Political Rights as he was not in danger of being sent back to Iran.
In the course of the (lengthy) decision, the Tribunal explored a number of concepts that are central to the process of refugee determination and human rights in the context of military service. It also reformulated the human rights approach in the context of persecution.
The definition of a refugee
Article 1A(2) of the Refugee Convention defines a refugee as a person who has a “well-founded fear of persecution” on any of five grounds if he or she returns to his or her country of origin. “Well-founded” means a real, as opposed to a speculative, chance of persecution occurring. Although neither D nor the Ministry challenged this aspect of the definition, they differed on what was meant by persecution and the extent to which the personal characteristics of the claimant impacted on its assessment, the role of international human rights law and the core/ margin concept in assessing a claim of refugee status, and how a human rights approach applied to the interpretation of refugee in claims grounded in the performance of compulsory military service.
One of the major texts on the law of refugee status states that persecution constitutes “the sustained or systemic violation of basic human rights demonstrative of a failure of state protection” (see J C Hathaway, The Law of Refugee Status, Butterworths, Toronto, 1991 at 104). It does not, however, follow that a sustained or systemic breach of a human right of itself constitutes the requisite harm. The harm must be serious. As Lord Hoffman formulated it in R v Immigration Appeal Tribunal; Ex parte Shah  2 AC 629 (HL), “persecution = serious harm + the failure of State protection”. The idea of persecution meaning more than a breach of human rights is adopted by other commentators, reflected in state practice and is central to the interpretation of the European Directive on Stateless Persons as Beneficiaries of International Protection (Directive 2011/95/EU, 20 December 2011).
In this decision, the Tribunal concluded at para  that “although ‘sustained and systemic’ captures critical elements of ‘being persecuted’ in the refugee definition, it does not encapsulate its entirety” – “The concept of serious harm also forms a critical and necessary element.”
Serious harm is a significant aspect of a breach of human rights. It is the relationship between the violation of the relevant human right and its impact on the individual. The Tribunal digressed somewhat on the issue of discrimination and whether persecution will arise because of different treatment resulting (for example) from adherence to a particular religion, but (at para ) concluded that:
“Discrimination in the enjoyment of human rights by reason of possession of a Convention-protected characteristic constitutes a breach of the underlying anti-discrimination norm upon which the nexus element of the refugee definition rests, but does not, of itself, constitute being persecuted.”
Assessment of serious harm
In deciding whether harm reaches the necessary threshold, a “flagrant denial of rights” is not necessary. The flagrancy test was developed in relation to expulsion or extradition under a complementary protection regime and does not arise in a situation where the question is whether a person falls within the definition of a refugee and where the concept of persecution is connected to the specificity of the refugee predicament.
The concept of derogation (whether a state can suspend some of its human rights obligations because of a state of emergency), which was also suggested by the Ministry as an indicator of serious harm, was dismissed by the Tribunal as inappropriate (see para ). The question of an individual’s strength of belief as determinative of the seriousness of the harm (i.e. the individual’s personal characteristics) was then raised, the Tribunal finding, however, that this may be relevant to the risk of harm rather than indicative of the level of seriousness. In determining the level of harm, “[it] must have a quality which elevates it from a matter of domestic concern into something of international concern through the Refugee Convention” (see para ). The exercise is fundamentally evaluative in nature and to be determined on a case by case basis.
The core/margin concept
The core/margin concept has become a hot topic in international refugee law over recent years, engaging as it does the question of whether there is a hierarchy of rights. The concept is not the same as permissible limitations but has an autonomous role that describes the relationship between the act and the right. The fact that an activity (for example, hate speech) allows a permissible limitation, does not make it marginal to the right (in this case, freedom of expression). The Tribunal found that while it might be a necessary part of an investigation into whether a person is persecuted, as a concept, it is unhelpful and confusing (see para ).
Reformulation of the human rights approach to being persecuted
An inquiry requires assessment of the following issues:
- Does the claimant’s predicament 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);
- If there is an interference, does the right in principle permit any restriction? (the question of nature);
- If the restriction in principle is permitted, is the restriction lawful in terms of the relevant limitation or derogation? (the question of legality); and
- 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).
Once these issues have been addressed, the inquiry shifts to whether there is a real chance of being persecuted giving rise to a well-founded fear of persecution either by a state or non-state actor and whether, in the case of the latter, legal and other systems in the country of origin will operate to reduce the harm below the “real chance” threshold. Then, the nexus to a Convention ground becomes relevant. Such assessment does not, however, detract from the classic formulation adopted by the Tribunal:
- Objectively, on the facts, is there a real chance of the appellant being persecuted if returned to the country of nationality?
- If yes, is there a Convention reason for that persecution?
As a general proposition, it is hardly in keeping with “the purpose of the Convention that a refugee claimant is required to hide the very characteristics contained in the five Convention grounds which, alongside the concept of ‘persecution’, the drafters had expressly included in Article 1A(2) to delineate the specificity of the refugee predicament” (see para ). It will often be an activity arising as a result of the characteristic which provides the necessary nexus, and it then becomes a question of whether the ability to conceal or modify certain behaviours in the face of persecution should affect a decision of refugee determination. At para , the Tribunal said:
“In instances where a limitation on activity is permissible and the measure adopted by the state is necessary and proportionate, there may be an interference but no breach of a right [think back to the hate speech example] … Where, however, the limitation is impermissible, or permissible in principle but unlawful in application, the inquiry shifts to harm. Where a person suffers impermissible limitations on their ability to engage in conduct which is otherwise lawful and permitted for the general population, it is difficult to see why a limitation or sanction of sufficient impact could not constitute serious harm.”
Relevant human rights
The relevant rights are found in the ICCPR. They are Article 18 (freedom of religion and belief), Article 19 (freedom of opinion and expression), and Article 7 (freedom from torture and cruel, inhuman or degrading treatment or punishment).
Article 18 includes both the manifestation of belief and the right not to manifest belief (including the right not to be forced to declare one’s belief). It also permits limitations to protect public safety, order, health or morals, or the rights and freedoms of others, but any limitation must be prescribed by law. Although a state religion is permissible, a legislatively-sanctioned practice during compulsory military service not of the conscript’s choosing is not prescribed by law and is in breach of Article 18(2).
Freedom of opinion is an absolute right, whereas freedom of expression which includes the right to seek and impart information can be restricted under Article 19 in the interests of national security. Article 7 is an absolute and non-derogable right, but the level of harm required is relatively high and must be serious enough to bring it within the definition of Article 7.
Human rights in the context of military service
The practice of compulsory military service is gradually being phased out during peace time in most countries. Conscientious objection and religion for the purposes of Article 18 therefore only become an issue in states which have compulsory military service.
The general approach to conscientious objection as a ground of refugee status is outlined in Refugee Appeal No 75378 (19/10/2005). The following propositions emerge from this case:
- While there is nothing unlawful about a state imposing a policy of compulsory military service, a claim of refugee status is still available.
- Entitlement to a claim of refugee status is viewed through Article 18 of ICCPR.
- Article 18 covers both religious and secular beliefs but it must amount to a belief. Personal inconvenience is insufficient.
- Whether or not coercion to perform military service amounts to a violation of Article 18 depends on whether the policy of the state is a permissible limitation under the ICCPR. It must be prescribed by law, in pursuit of a legitimate aim and necessary and proportionate in a democratic society.
- If the limitation meets these criteria, the freedom to manifest belief gives way to the limitation.
- The lack of provision of alternative forms of service for persons with genuinely held beliefs against performing military service does not give rise to a claim, although the lack of provision of such alternatives will be a relevant factor in assessing whether a claimant is being persecuted.
Although subsequently an attempt (supported by the majority of the Human Rights Committee) had been made to argue that failure to provide for an alternative form of service amounts to a breach of Article 18, the Tribunal did not agree. Lack of alternative forms of service, without more, does not amount to an impermissible limitation on the manifestation of belief of conscientious objectors who refuse to be conscripted (see para ).
Service in the military, however, is not a “human rights free-zone” and will arise most often in relation to freedom of belief. While rights are not suspended, whether interference is permissible will be shaped by the specific context. To be permissible, any interference must be necessary to maintain military discipline, proportionate and limit the right no more than necessary.
Assessment of claim to refugee status
In assessing D’s claim, the Tribunal dismissed the argument that he would be required to commit human rights abuses if he was conscripted as speculative and not meeting the “real chance” threshold. It was more amenable to the claim that he would be required to perform Islamic prayers and rituals in the course of his military service, describing this as “pregnant with moral concern” (see para ). It went on to note that the fact that he would serve in the military if Iran was attacked did not diminish his objection to serving under the current regime.
The consequence of having to declare his belief was not just a technical breach. To avoid a charge of apostasy, D may have to declare he was a Muslim and take part in religious observances relating to beliefs that he did not hold. The enforcement of such requirements is an impermissible limitation on D’s freedom to manifest his belief and not necessary to maintain military discipline: “The organised programme of forced religious observance and practice effectively renders the right of person born Muslim not to believe in Islam a nullity for the duration of their period of compulsory military service” (see para ). It followed that conscription would amount to a breach of Article 18.
In relation to Article 19, the Tribunal found that, while conscription did not impact on the right to hold certain opinions, D’s right to freedom of expression was not beyond what was necessary to maintain military discipline.
Article 7 allows no derogation and offers absolute protection. It follows that, to justify treatment falling into this category, there needs to be a clear and compelling link between the treatment and military efficacy. Given that this could not be established, it followed that mental or physical suffering inflicted as punishment for non-compliance was also not justified. However, it had to reach the necessary level of severity. Taking into account the depression D had suffered as a result of his experiences in school, there was a real chance that he may become depressed again and the risk of assault during his period of service, the Tribunal found that a real risk of serious harm arose on the facts.
The Tribunal concluded that D had a well-founded fear of persecution and a real chance of suffering serious physical and mental harm of sufficient intensity to meet the necessary threshold. As this was because of his belief, there was a Convention reason for persecution and he was entitled to be recognised as a refugee under section 129 of the Immigration Act.
As a refugee, he could not be deported from New Zealand, so he was not a protected person for the purpose of the Convention Against Torture or the ICCPR.
This case can be found at www.nzlii.org/nz/cases/NZIPT/2016/800788.html. This case summary was prepared by the New Zealand Centre for Human Rights Law, Policy and Practice at the Faculty of Law, Auckland University, and is reproduced here with permission.