Refugee Status Appeals Authority  

REFUGEE APPEAL NO. 1222/93

RE KN

AT AUCKLAND

Before:                               R.P.G. Haines (Chairman)
                                         D.R. Bates (Member)
                                         A.M. Rozdilsky (Member)

Counsel for the Appellant:    R.J. McKee

Appearing for the NZIS:        No appearance

Date of Hearing:                  20 October 1993

Date of Decision:                 5 August 1994

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DECISION
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INDEX

Introduction

The Kurds

The Appellant's Case

The Refugee Status Section Decision

The Issues

Assessment of the Appellant's Case

Issue 1 - Credibility

Issue 2 - Whether the appellant faces prosecution rather than persecution

Issue 4 - Whether a Convention reason

Race

Religion and Political Opinion

Particular Social Group

Conclusion on Issue 4 - Convention reason

Issue 3 - Whether the fear of persecution is well-founded

Application of the Exclusion Clause:  Article 1F(b)

Conclusion

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DECISION
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This is an appeal against the decision of the Refugee Status Section of the New Zealand Immigration Service declining the grant of refugee status to the appellant, a citizen of the Islamic Republic of Iran who is also a Kurd.

INTRODUCTION

At the hearing of this appeal on 20 October 1993, the Authority was asked to delay delivery of a decision until the appellant had had an opportunity to submit a forensic medical report relating to injuries said to have been sustained by him while detained by the Iranian authorities in 1992. The Authority agreed to this request and directed that the report be filed by 22 November 1993. However, it was not until 14 December 1993 that the appellant underwent a medical examination and the medical report was not issued until 2 March 1994. There appears to have been some delay in the office of the appellant’s solicitor as the report was not forwarded to the Authority until 20 April 1994.

The medical report has been taken into account by the Authority in the preparation of this decision.

THE KURDS

As the appellant’s claim to refugee status is based so much on his Kurdish identity, we intend referring to several salient aspects of the recent history of Kurds in Iran. We have drawn extensively on three excellent reports, namely Martin van Bruinessen, Agha, Shaikh and State: The Social and Political Structures of Kurdistan (1992) Zed Books; David McDowall, The Kurds (1991) Minority Rights Group; David McDowall, The Kurds: A Nation Denied (1992) Minority Rights Group.

The preface to David McDowall’s The Kurds is written by Alan Phillips who at page 5 observes:

“The Kurds are one of the major peoples of the Middle East. Unlike the Palestinians, who became a minority only because of specific political events in the mid-20th Century, the Kurds have always been divided between empires and states in the mountainous borderlands which are a cultural, geographical and political watershed. Although divided between different dialect groups, following different religious practices, and tribal confederations with varying political allegiances, the Kurds are undoubtedly a distinct community. Whatever state they live in, or are forced to flee to, they are a minority.”
The introduction to the original 1975 MRG report on the Kurds began:
“The Kurds are the fourth most numerous people in the Middle East. They constitute one of the largest races, indeed nations, in the world today to have been denied an independent state. Whatever the yardstick for national identity the Kurds measure up to it.”
The principal problem faced by the Kurds is summarized by David McDowall in The Kurds at 6:
“... the Kurds continue to claim that by race, language, and lifestyle - and perhaps above all by geography - they form a distinct community. Put quite simply they are more like each other than anybody else and they feel it.
The vast majority still live in a mountainous region, concentrated today between the Turks, Iraqi Arabs and Iranians. The governments of Turkey, Iraq and Iran, which have difficulty agreeing on a number of regional issues are utterly agreed on one point: not one of them views with any favour at all a separate Kurdish nation in their midst. With the present exception of Iraq, they view with profound disquiet any form of autonomy since this is suspect as a stepping stone to self- determination.
As nation-states themselves, with their own ideology grounded in race, or in the case of Iran in Shi’i Islam, and in defined borders, they understand very well the dangers of allowing too much head to Kurdish national feeling. It is as easy to see why they should feel thus, as it is to see the strength of the Kurdish case. Strategic security, historical experience, the difficulties already experienced with their neighbours, and the vital question of unexploited minerals leave the Kurdish case for independent nation status as unnegotiable as its justice may seem unanswerable.”
As at 1991, it was estimated that the Kurdish population of Iran alone was 5,500,000, or ten per cent of the total population: David McDowall, The Kurds: A Nation Denied 12.

We do not intend to refer to the pre-1920 historical background of the Kurdish people except to note that in the first half of the Nineteenth Century, Ottoman adminstration extended into Kurdistan

and that after the defeat of the Ottoman empire in 1918, the Treaty of Sèvres signed on 20 August 1920 brought the Kurds close to statehood. The treaty proposed that a commission composed of Allied appointees would:

“... prepare for local autonomy in those regions where the Kurdish element is preponderant lying east of the Euphrates, to the south of the still-to-be established Armenian frontier and to the north or the frontier between Turkey, Syria and Mesopotamia.”

David McDowall, The Kurds 16

As observed by David McDowall in The Kurds 16, although the Allies hedged their promise with a number of conditions which made independence conditional on the goodwill of governments who had themselves strategic interests in the area, the Kurds had some reason to be optimistic about the promises offered them. However, the defeated Ottoman government in Istanbul which had signed the treaty of Sèvres did not survive to implement it. Following a revolt in Anatolia led by Mustafa Kemal Ataturk, the Allies found themselves having to renegotiate the settlement and at a new peace conference in Lausanne in November 1922, finalized in a treaty in July 1923, Turkish control was re- established over Kurdish territory in Turkey and a Kurdish nation state failed to emerge: McDowall op cit 15-16.

The Kurds in Iran fared little better. Between the two world wars Reza Khan, the founder of the Pahlevi dynasty, suppressed separatist tendencies throughout Iran, among the Turkic tribes, the Arabs of Khuzistan as well as the Kurds. Lands were confiscated and sometimes whole tribes moved off their ancestral lands: McDowall op cit 22.

During World War II the Russians occupied northern Iran, and the British occupied the south. The occupying forces of both powers were scheduled to withdraw from Iran by March 1946. In December 1945, Azerbaijanis captured Tabriz with Soviet encouragement, and declared a Democratic Republic of Azerbaijan. Following the Azerbaijani lead the Kurds declared the Republic of Mahabad a few days later, and in January 1946 formed a government under the Presidency of Qazi (judge) Muhammad, a respected member of a leading family of Mahabad: David McDowall op cit 22. The Mahabad republic sought complete autonomy within Iran’s frontiers. Within the republic Kurdish became the official language, periodicals appeared, and the economy benefited from direct trade with the USSR. The Mahabad government expected the USSR to stand by them but this expectation ignored widespread Kurdish suspicion of the Soviets, based on Russian’s incursion into Azerbaijan in the Nineteenth Century, and the way in which Russians had laid bare parts of Kurdistan, including the sacking in Mahabad during World War I. A number of Kurdish political groups were hostile to Qazi Muhammad’s Soviet connections. The Mahabad government also badly miscalculated Soviet interests. Although the Soviets had encouraged both Azerbaijan and Mahabad to declare autonomous republics, they were not prepared to defend them. The interests of the USSR lay in its overall relationship with Iran.

By late May 1946, the Soviets had left Iranian soil and provided no military help to the Kurdish republic. In addition, a majority of Kurds under their tribal chiefs were unwilling to support the republic given its Soviet connections. In December 1946, the Iranian army advanced on Azerbaijan where the republic collapsed almost without resistance. Soon afterwards Iranian troops entered Mahabad unopposed: David McDowall op cit 22-23.

After the fall of Mahabad the Kurdish nationalist movement went underground, and expression of Kurdish identity was banned. However, following the Iraqi revolution of 1958, Iranian Kurds became increasingly active politically, and were increasingly harassed by the authorities. In the meantime, the Kurds in Iraq who were in receipt of aid from the Shah of Iran refused to help Kurds operating inside Iran.

The downfall of the Shah in January 1979 and the disintegration of the state apparatus provided an unrivalled opportunity for Kurdish demands for autonomy, far greater than that offered to the people of Mahabad, since Soviet or other Great Power interest or physical presence was not involved. To back their demands the Kurds took over police and army barracks in the area from the erstwhile Shah’s troops, acquiring a substantial amount of arms and ammunition. However, as observed by McDowall at op cit 24:

“The Revolutionary Government in Tehran was virtually bound to reject Kurdish autonomous demands. Its mandate and the revolutionary tide on which it had risen to power, was Islamic, and central to its beliefs was the unity of the Islamic community (umma), a concept more religious than secular in nuance, and therefore less negotiable. Self-administration perhaps, but autonomy never. The only minorities recognized in the new Islamic constitution were religious ones.
The dispute was also religious. Those Kurds who were Shi’i in Kermanshah area, tended to support Khomeini in Tehran. Shaikh Izzedim Husaini, the Kurdish political and religious (Sunni) leader, opposed Khomeini’s theological justification to power since its basis was the clergy’s role of active participation in government rather than that of guides and interpreters of Islamic law to government. ...
From early 1979 until Iraq invaded Iran eighteen months later, the Kurds and Tehran played out a struggle through negotiation and armed clashes ....
...
The government was uncertain whether it wished to placate or punish the Kurds. Ever since the fall of the Shah there had been clashes between the Pasdaran (Revolutionary Guards) and Kurdish peasants backed by Komala [Revolutionary Organization of the Kurdish Toilers] and the Kurdish members of Fedayin Khalq who were seizing land previously belonging to traditional landlords around Sanadaj and Merivan. ... Throughout spring and summer the clashes between Kurds and government forces intensified, with accusations being hurled to and fro.
Major clashes in July, when government troops sought to reoccupy a police post close to the Turkish border, and in August when the government attempted to reassert its authority over Merivan, persuaded the government in favour of a military solution. On 16 August 1979 the Kurds had captured the town of Paveh. Two days later Khomeini assumed powers as Commander in Chief of the Armed Forces, and sent the army, with helicopter-gunships, phantom jets and tanks and artillery to attack and occupy Paveh, Sanadaj and Saqqiz.
The fall of these towns was a sharp reminder that the Iranian army was not in disarray, and that its defeat in conventional warfare was not a Kurdish option. The arrival of Ayatullah Khalkhali’s revolutionary court, and its summary execution of at least 70 people, was likewise a sharp reminder of the consequences of capture. Kurdish troops withdrew to the hills, and on 4 and 5 September Iranian troops reoccupied Mahabad and Sardasht.
From that time the Kurdish forces lost all the towns to the government, but retained at least freedom of movement in the countryside ....”
Throughout the Iran-Iraq war, Iranian forces continued fighting the Iranian Kurds. The KDP-Iran [Kurdistan Democratic Party of Iran] and Komala [Revolutionary Organization of the Kurdish Toilers] became increasingly dependent on Iraqi logistic, financial and other support, but never co-operated militarily with the Iraqi army. Iran, on the other hand, gave increasing support to the Iraqi KDP. The real victims were the civilian population on both sides of the border, who had to endure the harsh counter-insurgency methods employed by their own governments as well as the bombings and shelling by the other side. Both the KDP-I and Komala still controlled vast parts of the Kurdish countryside. In 1983, KDP and Iranian forces succeeded in jointly expelling the Iranian Kurds from their last “liberated areas” inside Iran. Henceforth, both the KDP-Iran and Komala had their headquarters and base camps in the evacuated zone of Iraqi Kurdistan, although their peshmergas continued carrying out operations, sometimes very successfully, deep inside Iran: Martin van Bruinessen, Agha, Shaikh and State: The Social and Political Structures of Kurdistan 38-39.

By the end of the Iran-Iraq war, the Iranian government seemed willing to negotiate with the Kurds seriously. In 1989, the KDP-Iran was invited to a round of negotiations in Vienna. It proved to be a trap. The Kurdish leader and two other Kurd representatives were shot dead while they were sitting at the negotiating table. Since there was little doubt that the killings had been carried out by the very Iranian delegates with whom the Kurds had been negotiating, it put the whole feasibility of negotiations in doubt: Martin van Bruinessen, op cit 42; David McDowall, The Kurds: A Nation Denied 78.

It is also to be noted that at the end of 1988, many of those Kurds already imprisoned perished in waves of mass killings which took place at the end of the year. The prime victims were members of Komala, for which the state had particular repugnance, deeming its Marxism to be atheistic: David McDowall, The Kurds: A Nation Denied 78.

As to Komala, the following opinion is expressed by David McDowall in The Kurds: A Nation Denied 78:

“Komala, which seemed more important in the early 1980s, has declined and, compared with the KDP-I, has a significant following only around Sanadaj. This decline followed its unification with a small communist group to make a new “Communist Party of Iran”, in which Komala represents the local Kurdish section of the party. Komala, too, has been the target of assassination. One month after the killings in Vienna in July 1989, one of Komala’s leaders was killed in Larnaca.”
As to the current situation, the following points are to be noted:

1.    The human rights of Kurds continue to be violated. In Spring 1991 there were rumours that Kurds who had been imprisoned for some time were summarily executed, as a warning to the populace against following the rebelliousness of Iraq’s Kurds: David McDowall, The Kurds: A Nation Denied 79.

2.    It is reported in the Amnesty International Report 1991 that in August 1990 an Iranian Kurdish activist was found shot dead on the Konya to Ankara road in Turkey. It was alleged that Iranian government agents may have carried out this killing, as well as a letter bomb attack in Sweden in September 1990 in which the wife of an Iranian Kurdish exile was killed.

3.    In September 1992, four Kurdish militants opposed to the Iranian government were shot dead in a Berlin restaurant: “Kurdish Militants Slain in Berlin”, NZ Herald, Saturday, September 19, 1992; “An Iranian Kurdish Bloodletting in Berlin”, Time, September 28, 1992, 10. The assassins were believed to be acting on behalf of Iran: Human Rights Watch World Report 1993:  Iran 303. Two weeks prior to the Berlin killings, Hojatoleslam Ali Fallahian said on Tehran television on 30 August 1992:

"We have been able to deal blows to many of the mini groups outside the country ... as you know, one of the active mini groups is the Kurdistan Democratic Party ... We were able to deal vital blows to the cadres last year.”
Amnesty International, Iran: Written Statement to the 49th Session of the United Nations Commission on Human Rights (AI Index: MDE 13/02/93) 3.
4.    In April 1993, the KDP-I accused the Iranian army of shelling its headquarters in northern Iraq in preparation for a ground attack: “Iran Shells Kurds”, NZ Herald, Wednesday, April 21, 1993.

5.    The Human Rights Watch World Report 1993: Iran at 300, 303 reports:

(a) Members of the KDP-I and the People’s Mojahedin Organization of Iran (PMOI) “are often executed for their political activities”:
“The response of the Iranian government to both the KDP-I and PMOI violence against the Islamic state has usually been wholly indiscriminate, arresting and executing suspected members or supporters who were merely exercising their rights of peaceful expression and association.”
(b) The Amnesty International publication Iran: Written Statement to the 49th Session of the United Nations Commission on Human Rights (AI Index: MDE 13/02/93) confirms that victims of political executions include members of the KDP-I, Komala and PMOI.
6.    The US Committee for Refugees World Refugee Survey 1994: Iran 103 reports that:
 
(a)    “Since the Islamic revolution in 1979, the Iranian government has dealt harshly with real or potential political opposition. Targeted groups have included leftists, monarchists, ethnic minorities including Kurds and Baluchis, and religious minorities. Torture and imprisonment are commonly used; thousands have been executed.
(b)    “Middle East Watch recorded four assassinations of Iranian exiles during 1993, as well as an attempted assassination and a disappearance, and stated that “[i]n each of these cases there were strong grounds for the belief that the authorities in Tehran were behind the action. At least 60 exiles have been killed since 1979.”
7.    The Human Rights Watch World Report 1994: Iran 286, 289 reports:
(a)    Few cases of arrests of opposition activists become public. In one rare example, in November 1993, the left wing organization Komala wrote to Middle East Watch about five of its activists who had been detained by the Revolutionary Guards in the Kurdish city of Sanandaj, on October 21. Middle East Watch was also aware of the names of other long-term prisoners in Iranian jails who continued to be held because of their political beliefs or associations, and not because of any acts of violence.
(b)    “The two most significant issues during 1993 involving the rights of ethnic or religious minorities concerned the Kurds and the Baha’is. Little reliable information was available about security force actions against Iranian Kurdistan involving human rights violations. But fighting with guerillas of the Kurdistan Democratic Party of Iran and two smaller groups apparently grew in intensity, leaving casualties on both sides. In response to the deteriorating situation, the new Interior Minister, Ali Mohammed Besharati, was put in charge of a new security force in the border zone, in October. The Law and Order Forces, composed of basij volunteers - young Islamic zealots - was described as a rapid-reaction force to deal with unrest in Kurdistan; its establishment created a concern that further rights violations would occur in a region where grave abuses had been reported over the years since the 1979 revolution.
All along Iran’s border with the Kurdish-held region of northern Iraq, Middle East Watch and other nongovernmental organizations observed the persistent shelling of border villages by Iranian forces, which caused much damage and forced an estimated 10,000 civilians to seek refuge elsewhere. Shelling and other military actions, ostensibly aimed at bases of Iranian Kurdish parties, began in March and continued on an almost daily basis throughout the rest of the year. In another breach of international humanitarian law, in July, Iranian forces seized thirteen Iraqi Kurdish civilians as hostages, to press for the return of five Iranian soldiers captured earlier by the Kurdish authorities. An exchange was arranged after some weeks of negotiation.”
                                                                                  p 291-292
Against this background it is now possible to turn to the appellant’s case.

THE APPELLANT’S CASE

The appellant is a twenty-eight year old single man who was born in Sanandaj. His family comprises his mother, father, a sister and one brother. The appellant is the eldest of the three children. In 1978, the family moved to Tehran to take advantage of the better facilities in that city including schools, hospitals and the supply of food. As a Kurdish city, Sanandaj is provided with facilities of a far inferior kind. The appellant completed his schooling in 1984 and thereafter completed two years compulsory military service. It was during the Iran-Iraq war but he was stationed south of the combat zone and did not see active service. Following his discharge he worked in his father’s shop but after completing a six month course he was employed by a government department.

When he was twelve years of age the appellant became aware that both his mother and father were involved in Kurdish separatist activities and were members of Komala which, it will be remembered, is described by Martin van Bruinessen in Agha, Shaikh and State: The Social and Political Structures of Kurdistan 35 as a left-wing underground movement called the Revolutionary Organization of Toilers, known for short as Komala. It would appear that all three children were also drawn into the separatist movement. The appellant gave the following description of his family’s activities:

1.    His father was involved in intelligence gathering to identify military personnel involved in campaigns against the Kurds. He was also involved in the transportation of weapons, the printing and distribution of Kurdish publications and the manufacture of explosives and bombs. It would seem that the manufacture of such weapons is a fairly common activity as David McDowall’s book, The Kurds: A Nation Denied at p 70 features a photograph of two men involved in a similar activity under the caption “Pesh mergas in a secret mountain hideout making grenades".

2.    The appellant's mother mother was mainly involved in the transportation of weapons with the assistance of the appellant’s younger brother. She had relatives in Iraq and it would appear that on a monthly basis weapons would be transported either from Tehran to Kordestan or from Kordestan to Tehran.

3.    The appellant's brother worked primarily with his mother. He owned a van in which concealed compartments had been built to transport the weapons.

4.    The appellant's sister, who still attended school, was primarily involved in the printing and distribution of Komala pamphlets and the like.

5.    For his part, the appellant’s principal activity was to assist his father in the manufacture of explosives though he did from time to time assist in the transportation of weapons.

The appellant said that there was one specific occasion in December 1990 when he was actively involved in a specific bombing incident. His father and others in Komala had identified a military officer who had been ordered to Kordestan to take charge of an operation which would involve the identification and arrest of a number of Kurd separatists. The appellant, his mother and five others, went to a town in Kordestan to carry out a bombing operation against this officer. The appellant’s role was to assemble the bomb whereupon it was placed in a parcel by others in the group who then left to deliver it to a specific location. According to the appellant’s account the bomb exploded at approximately 8.45 p.m. in a building occupied by the Iranian military with the result that the officer concerned and two soldiers were killed. There were no civilian casualties.

The appellant told the Authority that this was the only occasion on which he was involved in a bombing operation. We note that the appellant is recorded as saying at the Refugee Status Section interview on 7 September 1992 that he had been involved in two bombings but it is clear from the narrative which then follows in the notes that only one incident was involved. We see no significance in the apparent discrepancy. The appellant explained his participation in the bombing on the basis that as a Kurd he felt it his responsibility to take an active part in the struggle for Kurdish autonomy. He expressed to the Authority his deep feeling of resentment against the Iranian government for their long-standing and continuing campaign against the Kurdish people and in particular, the killing of innocent Kurd civilians and the imprisonment of innocent people.

Up until this time the family’s activities had gone undetected by the authorities. However, in December 1991 the appellant’s father disappeared. In January 1992, his mother disappeared. Approximately one month later the same happened to the appellant’s brother and sister. Neighbours reported seeing the brother being arrested by Pasdars (or Revolutionary Guards) and the school authorities reported to the appellant that Pasdars had arrested his sister at school and taken her away. The appellant believes, in the circumstances, that the “disappearance” of his mother and father was also the result of arrests by the authorities.

The appellant made repeated enquiries at Komiteh headquarters and the local police station as to the whereabouts of his family but was given no information. He also visited various prisons in Tehran to enquire about his family. On the third such occasion the appellant himself was arrested and questioned about his own activities and that of his family. In particular he was asked why he was looking for his family. He gained the impression that his interrogators knew that his family had been detained and were now suspicious of the appellant himself.

The appellant was held at two different locations in Tehran for a total of twenty-four to twenty-six days. At both locations he claims to have been tortured during interrogation. His claim is based on the following:

(a)    While under interrogation he was repeatedly kicked and punched.

(b)    While handcuffed he was suspended from a large iron door or door frame with his feet tied together. His legs were then pulled out at right angles whereupon he was beaten repeatedly on the soles. He said there were some fifty to sixty such beatings, each of which would last between one or two minutes.

He has scars on both wrists and on his legs. In addition, the middle finger of his left hand was fractured. The medical report dated 2 March 1994 confirms the existence of both the scars and the fracture and advises that they are consistent with the appellant’s account of the treatment he received at this time.

(c)    Each day, after interrogation, the appellant was placed back in his cell. There was no bed and only one blanket was provided. To ensure that the appellant could neither sit nor sleep the floor of the cell was flooded. It was winter time.

The appellant was released after he promised to become an informant inside the Kurdish movement. The appellant took this step as he could not withstand the torture any more. He was released in April or May 1992. One of the conditions of his release was that he report regularly to the authorities. The appellant reported on the first two occasions only. He found that he had been dismissed from work and his father’s shop confiscated by the authorities. He fled to Kordestan where members of the underground were able to assist him to escape overland to Pakistan. He eventually arrived in New Zealand on 21 June 1992 through a somewhat circuitous route through Bombay and Kuala Lumpur. He travelled on false papers and with the assistance of a helper he was apparently able to board a flight to New Zealand at Kuala Lumpur while in possession of a boarding pass only. This subsequently led to a suggestion that the airline be prosecuted for breaching s 125 of the Immigration Act 1987, which provision requires a carrier to ensure that all persons boarding the craft in the overseas port of departure “have appropriate documentation for immigration purposes, including a passport ... a visa ....”. It does not appear that this suggestion was ever acted upon.

Interviewed at Auckland Airport upon his arrival, the appellant applied for refugee status, saying that his life was in danger. He also said that his mother, father, sister and brother were dead. The interview notes record that he disclosed that his family were members of Komala and that he (the appellant) had been detained in Iran and tortured. In short, the account given by the appellant at the airport is largely the same as the account he gave both at the Refugee Status Section interview and at the hearing of this appeal. He did not, however, mention the family’s active involvement in the smuggling of arms and in the manufacture of bombs. Nor did he mention the bombing incident to which reference has been made. He was afraid disclosure of this information would lead to his expulsion to Iran.

The appellant was permitted to enter New Zealand and was granted a temporary visitor’s permit.

THE REFUGEE STATUS SECTION DECISION

The appellant was interviewed by the Refugee Status Section on 7 September 1992. In a decision dated 8 February 1993 his application for refugee status was declined. Two reasons were given:

(a)    The Refugee Status Section had “serious reservations” about the appellant’s credibility. They relied on alleged discrepancies between the account given at the airport and the account given on 7 September 1992.

Some of the alleged discrepancies are of the most minor nature and hardly justify an adverse finding of credibility. The major discrepancy relates to the appellant’s failure at the airport to mention the arms smuggling, manufacture of bombs and the carrying out of the bombing. The Refugee Status Section, while relying upon this omission, did not weigh in the balance the appellant’s compelling explanation for the omission, namely that he was afraid that if he disclosed this information at the airport he would be expelled from New Zealand and that the information would be given to the Iranian authorities. As this Authority has emphasized on repeated occasions, there are good reasons why statements made during an airport interview must be treated with caution when making a credibility assessment. In Refugee Appeal No. 265/92 Re SA (29 June 1994) we adopted and applied a lengthy passage from Professor Hathaway, The Law of Refugee Status (1991) 84-85 which includes the following paragraph:

“First, the decision-maker must be sensitive to the fact that most refugees have lived experiences in their country of origin which give them good reason to distrust persons in authority. They may thus be less than forthright in their dealings with immigration and other officials, particularly soon after their arrival in an asylum state. The past practice of the Board of assessing credibility on the basis of the timeliness of the claim to refugee status, compliance with immigration laws, or the consistency of statements made on arrival with the testimony given at the hearing is thus highly suspect, and should be constrained in the contextually sensitive manner discussed previously ...”
As will be seen, we have reached a very different conclusion as to the appellant’s credibility.

(b)    Second, the Refugee Status Section were of the view that as a result of the appellant’s involvement in the bombing, he had committed a serious non-political crime and was therefore excluded from the Convention by virtue of Article 1F(b).

This issue we address in greater detail later in this decision. It is sufficient to say that the Refugee Status Section conclusion as to both the law and the facts is incorrect.

THE ISSUES

The Inclusion Clause in Article 1A(2) of the Refugee Convention relevantly provides that a refugee is a person who:
“... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.”
In the context of this case the four principal issues are:

1.    Is the appellant genuinely in fear?

2.    If so, is it a fear of persecution?

3.    If so, is that fear well-founded?

4.    If so, is the persecution he fears persecution for a Convention reason?

In this regard we refer to our decision in Refugee Appeal No. 1/91 Re TLY and Refugee Appeal No. 2/91 Re LAB (11 July 1991).

In the same decision this Authority held that in relation to issue (3) the proper test is whether there is a real chance of persecution.

ASSESSMENT OF THE APPELLANT’S CASE

ISSUE 1 - CREDIBILITY

Notwithstanding minor discrepancies in the appellant’s account, the appellant’s credibility is accepted and the Authority finds that he has a bona fide subjective fear of persecution.

ISSUE 2 - WHETHER THE APPELLANT FACES PROSECUTION RATHER THAN PERSECUTION

Ordinarily we would accept that the treatment feared by the appellant at the hands of the Iranian authorities would amount to persecution, namely torture and possibly death. The country information to which we have already referred under the heading “The Kurds” amply supports this finding. Voluminous material from other recognized sources could be cited in support, including the United States Department of State Country Reports on Human Rights Practices for 1993: Iran (February 1994).

The facts of the present case, however, raise the issue whether the appellant faces prosecution in Iran for a criminal offence rather than persecution. This issue is directly related to the application of the Exclusion Clause provision of Article 1F(b) but before the terms of the Exclusion Clause are examined, it is necessary to first determine whether the appellant is a refugee for the purpose of the Inclusion Clause in Article 1A(2). The first issue to be determined is whether the appellant is in fear of prosecution, not persecution.

The Refugee Status decision dated 8 February 1993 makes no reference to the decision of the Authority in Refugee Appeal No. 29/91 Re SK (17 February 1992) in which there is a substantial discussion of the principles by which prosecution is distinguished from persecution. We do not intend repeating what we have there said. For the purpose of the present case the following principles may be noted:

1.    Refugee status may not be invoked by an individual solely on the basis that he is at risk of legitimate prosecution or punishment for breach of the ordinary criminal law.

2.    To identify genuine criminality from other conduct a three-fold classification is sometimes employed:

    (a)    Absolute political offence.

    (b)    Relative political offence (“délit complexe”).

    (c)    Criminal offence.

3.    In determining whether the prosecution of an individual is for an ordinary criminal offence as opposed to a relative political offence, various factors must be considered. They include:

    (a)    Whether there is a genuine political purpose to the act.

    (b)    The extent of the linkage between the act committed and the political purpose being pursued.

    (c)    Most importantly, the proportionality of the good sought to be obtained in relation to the harm inflicted through the crime.

    (d)    The object and purpose of the law.

    (e)    The nature and extent of the punishment.

Mere political motive alone is insufficient to characterize a common crime as political. Rather, it is the act, not the actor, that predominates in establishing the nature of the offence. While a political motive is essential, it is not conclusive: Gilbert, Aspects of Extradition Law (1991) 120. The most important factors are generally the remoteness of the crime from the ultimate political goal and the issue of proportionality, namely the proportionality of the good sought to be attained in relation to the harm inflicted through the crime.

Applying these principles to the present facts we find:

1.    The appellant is sincerely and honestly motivated in his commitment to the cause of Iranian Kurds.

2.    The acts in which he has participated (smuggling of arms, the manufacture of bombs and participation in the bombing incident earlier described) were directed against the Iranian state itself and not against private civilians or private interests.

3.    The target of the bombing was purely military and in particular, a high-ranking officer whom Kurdish intelligence had identified as being engaged in an operation to arrest Iranian Kurd separatists.

In this regard the facts of the present case are very different from those considered in Refugee Appeal No. 47/92 Re PS (5 August 1992) 7-12 where the Authority found that a member of a terrorist organization in the Punjab known as the Khalistan Commando Force was in fear of prosecution, not persecution, primarily because his organization was engaged in well-documented violations of human rights of innocent civilians in the Punjab itself.

4.    Iranian Kurds are denied all forms of legitimate expression of their political opinions and aspirations. They have no legitimate means of changing the theocratic dictatorship by which they are ruled. They are denied their civil and political rights guaranteed under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, 1966. This notwithstanding that the International Covenant on Civil and Political Rights, 1966 was signed by Iran on 4 April 1968, and ratified on 24 June 1975: Middle East Watch, Guardians of Thought: Limits on Freedom of Expression in Iran (August 1993) 21. As a member of the international community of nations and as a signatory to the Covenant, Iran is bound by universal norms guaranteeing:

As will be seen from the country information already cited, the present Iranian government (as the Pahlevi dynasty before it), has engaged in a concerted campaign to deny Kurds their civil and political rights. The methods used have been, and continue to be, extreme. Iranian Kurds have no democratic means to achieve their goal of political autonomy. The extreme lengths to which the Iranian authorities are prepared to go is illustrated by their military campaigns in Kordestan as well as by the persistent pattern of assassination of Kurdish leaders in countries of asylum.

5.    Typical of the reports sighted by the Authority are the statements by David McDowall in The Kurds: A Nation Denied at 78 and 79 that at the end of 1988 many Kurds already imprisoned perished in waves of mass killings which took place at the end of the year:

“The prime victims were members of Komala, for which the state had particular repugnance, deeming its Marxism to be atheistic.
And in Spring 1991, there were rumours that Kurds who had been imprisoned for some time were summarily executed, as a warning to the populace against following the rebelliousness of Iraq’s Kurds.”
6.    The bombing incident of December 1990 occurred at about the time being spoken of here and was clearly intended as a means of preventing the arrest, torture and execution of Kurds involved in or suspected of involvement in the Kurdish separatist movement in Iran. On the facts, there was proportionality between the good sought to be obtained in relationship to the harm inflicted.

A convenient summary of the considerations is to be found in Hathaway, The Law of Refugee Status 174:

“Where the motivation is genuine, the strategy credible, and the incidental harm tolerable in relation to the goal sincerely pursued, it is reasonable to view the action as more fundamentally political than criminal, and hence to assess the refugee claim on its merits.”
Our assessment of the present situation is that the appellant’s actions are, in the Iranian context, more fundamentally political than criminal and for that reason it is not possible to decline his application for refugee status on the supposed basis that he is fleeing from prosecution, not persecution.

There is also the consideration that the appellant would not receive a fair trial in Iran. The notion of a fair trial is foreign to the current Iranian legal system: United States Department of State Country Reports on Human Rights Practices for 1993: Iran 1177 (February 1994); Human Rights Watch, World Report 1994: Iran 290; Lawyers Committee for Human Rights, The Justice System of the Islamic Republic of Iran (May 1993). However, as noted in Refugee Appeal No. 29/91 Re SK (17 February 1992) 15:

“Our conclusion is that the question whether the appellant would be able to secure a fair trial is only relevant if it can be said that the process of adjudication which ignores basic standards of fairness has been set up in such a way as to result in or support political or religious repression. In other words, the abuses (which the Authority accepts are legion in the Punjab) must be Convention-related. The Convention is not an instrument to provide a remedy where the justice system of the country of origin fails to meet general standards of fairness.”
In the present case it is clear from the country information just referred to that the legal system of present-day Iran has as its principal purpose the maintenance of the political and religious dogmas of the current theocratic regime. The abuses feared by the appellant were he to be prosecuted in Iran are clearly Convention related.

ISSUE 4 - WHETHER A CONVENTION REASON

We turn now to the fourth issue, namely whether the persecution feared by the appellant is for a Convention reason. On the present facts an affirmative answer is justified on several grounds, namely the appellant’s race, religion, political opinion and membership of a particular social group. We will deal with each in turn.

RACE

Are the Kurds a race? As to the evidence, reference should be made to the quotations from David McDowell, The Kurds set out at page 2 of this decision. They will not be repeated here. The following additional passages are from David McDowall, The Kurds: A Nation Denied. The first quote is at 3:
“What is it that persuades Kurds they are one people? They do not, in all probability, belong to a single ethnic origin but to an amalgam. They do not enjoy a distinctive religion, for most of them, perhaps 85%, follow Sunni Islam, although their adherence to a number of religious orders distinguishes the loyalties of different Kurdish villages. Nor do the Kurds yet enjoy a unified language. One group of Kurds still has difficulty understanding another. Moreover, as the relatively recent history of the Kurds shows, they are torn apart by internal quarrels and disputes, many of them rooted not in the ideology of liberation, but in more ancient rivalries.
Nevertheless, the Kurds continue to claim that by race, language and lifestyle - and perhaps above all by geography - they form a distinct community. Put quite simply, they are more like each other than anybody else and they feel it.”
And again at p 11:
“The origin of the Kurdish people is uncertain. They have retained their distinct identity for at least two thousand years whilst their neighbours on the plains have suffered successive invasions and absorbed both foreign peoples and foreign cultures.”

However, it is unlikely that they are purely aboriginal, or derived from one single source. Most of them are probably the descendants of Indo-European tribes settling amongst aboriginal inhabitants in the mountains as much as four thousand years ago. Supposedly they were the mountain people in conflict with the Mesopotamian empires of Sumer, Babylon and Assyria, and the Kurds themselves believe they are descended from the Medes, although the linguistic evidence does not bear this out ...

Be that as it may, by the beginning of the Arab period (7th Century AD) the ethnic term “Kurd” was applied to an amalgam of Iranian or Iranicized tribes, some autochthonous (possibly Kardu?), some semitic, and, probably, some Armenian communities.
As with the Arabs, the question of identity is not only to do with real ethnic origin. It is also to do with imagined lineage ...
...
Arab lineage is not all imagined. Some in relationship with the plainspeople inevitably did mingle Kurd with Semitic ancestry, and it confers immense prestige on the putative descendant ... More significant than ethnic purity, however, this society referred to as Kurdish developed its own distinctive culture which, despite the many internal differences from region to region and from tribe to tribe, contrasted with the cultures surrounding it, and established its own sense of identity.”
On this evidence, the Kurds certainly believe themselves to be, and are perceived by others to be, a race.

As to the meaning of the word “race” in the Refugee Convention, it is clear that used in an international convention, it is to be interpreted in a broad and non-technical way: King- Ansell v Police [1979] 2 NZLR 531, 533 line 50 per Richmond P; 536 line 30 per Woodhouse J and 542 line 40 per Richardson J (CA). In this decision, the Court of Appeal was required to interpret the expressions “race” and “national or ethnic origins” in the (then) Race Relations Act 1971 and in the International Convention on the Elimination of All Forms of Racial Discrimination 1966 which Convention the Act was intended to implement at New Zealand domestic law level. Interpreting the word “race” Woodhouse J at 536-37 observed:

“... it is a natural use of the word [race] to speak of the English race or of the Slavs as a race, or of Germans. It is a meaning which is concerned, not with genetic processes, but with shared characteristics of a socio-political nature such as customs, philosophy and thought, history, traditions, nationality, language or residence without any reference to biological considerations.”
Richardson J at 542 line 47 said:
“The ultimate genetic ancestry of any New Zealander is not susceptible to legal proof. Race is clearly used in its popular meaning. So are the other words. The real test is whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of their colour or their racial, national or ethnic origins. That must be based on a belief shared by members of the group ...
... This conclusion is supported by the approach taken by their Lordships in the Ealing London Borough Council case. In that case, too, Lord Simon of Glaisdale (ibib, 364; 116) graphically described why Scotsmen constitute a nation and have retained their national origins. It is:
“... by reason of those most powerful elements in the creation of national spirit - tradition, folk memory, a sentiment of community. The Scots are a nation because of Bannockburn and Flodden, Culloden and the pipes of Lucknow, because of Jenny Geddes and Flora Macdonald, because of frugal living and respect for learning, because of Robert Burns and Walter Scott”.
Those shared historical bonds to which he referred are sufficient to constitute national origins. In the same way a group is identifiable in terms of its ethnic origins if it is a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms is a common racial stock. It is that combination which gives them an historically determined social identity in their own eyes and in the eyes of those outside the group. They have a distinct social identity based not simply on group cohesion and solidarity but also on their belief as to their historical antecedents.”
The decision of the Court of Appeal was that Jews in New Zealand did form a group with common ethnic origins within the meaning of the Race Relations Act 1971. It is also clear that the Court was of the view that Jews comprise a “race”. See particularly Richmond P at 535 line 15.

The decision in King-Ansell was specifically approved by the House of Lords in Mandla v Dowell Lee [1983] 2 AC 548, 563-564, a decision holding that Sikhs are a group defined by reference to ethnic origins for the purpose of the Race Relations Act 1976 (UK).

There is apparently little in the travaux préparatoires of the Refugee Convention to assist in the interpretation of the meaning of “race”.

However, Grahl-Madsen in The Status of Refugees in International Law (Volume 1 1966) 217 expresses the following opinion:

“As we have seen, “race” and “religion” were mentioned together in SHAEF Administrative Memorandum No. 39. This was natural, as the provision aimed at helping the Jewish victims of Nazi persecution, of whom some were persecuted because of their Jewish race, some because of their Jewish religion, and some for both reasons.
The origin of the phrase makes it quite clear that the word “race” in the present context denotes not only the major ethnic groups, such as Europeans (“the white race”), Africans (“the black race”), Mongols (“the yellow race”), Red Indians, etc, but also groups which are less easily differentiated, such as Jews, gipsies, etc. In the present context the word “race” is therefore referring to social prejudice rather than to a more or less scientific division of mankind. In other words, the term “race”, as used in Article 1A(2), is a social more than an ethnographic concept, and is applicable whenever a person is persecuted because of his ethnic origin.”
The significance of this historical context is emphasized by Professor Hathaway in The Law of Refugee Status (1991) 141. Having acknowledged that the drafters of the Convention did not specifically define the term “race”, he points out that the intent of the drafters of the Convention was to include those Jewish victims of Nazism who had been persecuted because of their ethnicity, whether or not they actively practised their religion:
“This historical rationale is important, because it legitimizes the attribution of a broad social meaning to the term “race” which includes all persons of identifiable ethnicity.”
Professor Hathaway op cit 142 also emphasizes that a broad interpretation of race is not only historically defensible, but is also consistent with modern international usage. In particular, both he and other commentators refer to the widely accepted International Convention on the Elimination of All Forms of Racial Discrimination 1966 (Brownlie, Basic Documents on Human Rights (3rd ed 1992) 148). Article 1 of that Convention defines the term “racial discrimination” as meaning:
“... any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin ....”
To same effect see Goodwin-Gill, The Refugee in International Law (1983) 27. He argues that the broad meaning contained in Article 1 of the Convention on the Elimination of All Forms of Racial Discrimination can be considered valid also for the purpose of the 1951 Refugee Convention.

In these circumstances we see no reason why we should not adopt, for the purpose of the Refugee Convention, the construction of “race” and “ethnic origin” favoured by the Court of Appeal in King-Ansell v Police [1979] 2 NZLR 531.

On the facts, we find that there is only one conclusion available, namely that the Kurds are a “race” and that the persecution feared by the appellant in Iran is due, in part, to his race. That there is an overlap between this Convention ground and others presents no difficulty. We adopt the following observations by Professor Hathaway in The Law of Refugee Status 141:

“The possibility of overlap between race and other enumerated factors such as religion, nationality, and membership of a particular social group is thus clear, but presents no real problem since claims may be based on one or a combination of forms of civil or political disfranchisement.”

RELIGION AND POLITICAL OPINION

The appellant is a Sunni Moslem and supports a political organization (Komala) which has an explicitly secular programme. The Iranian regime, on the other hand, is a theocratic state based on Shi’ite Islam. In such a state there is no differentiation between spiritual and temporal authority and Shi’ite Islam has become the overwhelming ideological force for social control. This point has been made by the Authority on several occasions. See, for example, Refugee Appeal No. 58/91 Re ZAR (27 March 1992) 12 and Refugee Appeal No. 300/92 Re MSM (1 March 1994) 14-15. Therefore, any offence alleged against the appellant is at once an offence not only against the state, but also against Allah. Even the Kurds who, at the end of the Gulf War fled east across the Iranian border, were accused, as Sunni Moslems, of “anti-Islamic behaviour”: Lawyers Committee for Human Rights, Asylum Under Attack: A Report on the Protection of Iraqi Refugees and Displaced Persons One Year After the Humanitarian Emergency in Iraq (1992) 51.

There is therefore a substantial religious component to the appellant’s case.

Finally, there is indisputably a substantial “political opinion” component as well for reasons which are self-evident from the appellant’s actions in participating in an armed struggle against the Iranian government.

PARTICULAR SOCIAL GROUP

The appellant is also entitled to rely on the fact that one reason for the interest of the Iranian authorities in him arises from the fact that his entire family have been arrested and that he, as a member of that family, has fallen under suspicion particularly as a consequence of his persistent efforts to ascertain the fate of his mother, father, brother and sister. This Authority has on numerous occasions accepted that the immediate family comprises a particular social group for the purpose of the Convention. See, for example, Refugee Appeal No. 17/92 Re SSS (9 July 1992); Refugee Appeal No. 142/92 Re NMK (15 February 1993); Refugee Appeal No. 135/92 Re RS (18 June 1993) and Refugee Appeal No. 547/92 Re NS (7 October 1993).

CONCLUSION ON ISSUE 4 - CONVENTION REASON

We accept that the persecution feared by the appellant is for a Convention reason, or for a series of overlapping Convention reasons, namely his race, religion, political opinion and membership of a particular social group. An affirmative finding is therefore made in relation to issue 4.

ISSUE 3 - WHETHER THE FEAR OF PERSECUTION IS WELL-FOUNDED

We turn now to the third issue, namely whether the appellant’s fear of persecution is well- founded. We believe that only an affirmative answer can be given for the following reasons:

(a)    Every member of the appellant’s family has been arrested by the Iranian authorities. While no reason has been given, it is plain that the cause of arrest is their participation in anti-government activities.

(b)    On making enquiries as to their whereabouts, the appellant himself was arrested and if not then under suspicion, he certainly fell under suspicion.

(c)    The appellant has already been detained for just under a month and tortured.

(d)    A condition of his release was the signing of an undertaking to become an informant and to report to the authorities as required. The appellant has breached both parts of the undertaking.

(e)    Gross and persistent violations of human rights occur in the Islamic Republic of Iran. Human Rights Watch World Report 1994: Iran 286, 287 states that:

“Most serious of all, with respect to “the right to life, liberty and security of person”, enshrined in Article 3 of the Universal Declaration of Human Rights Iran’s record remained one of the world’s worst. An exceptionally high rate of judicial executions, following unfair trials; the hunting down, and murder, of exiled opponents; and the arbitrary detention of citizens on flimsy charges, added up to a flagrant defiance of the letter and spirit of the Universal Declaration.”
To similar effect see United States Department of State Country Reports on Human Rights Practices for 1993: Iran (February 1994) 1176 and the decisions of this Authority, examples of which are Refugee Appeal No. 452/92 Re FCS (11 December 1992) 11-13 and Refugee Appeal No. 265/92 Re SA (29 June 1994) 12-13. Reference should also be made to the country information recited earlier in this decision under the heading “The Kurds”.

Ordinarily, the affirmative findings we have made in relation to each of the four issues would result in a determination that the appellant is a refugee. However, the final issue for consideration is the application of the exclusion clause of Article 1F.

APPLICATION OF THE EXCLUSION CLAUSE: ARTICLE 1F(b)

Article 1F(b) of the Refugee Convention excludes certain categories of persons from the protection of the Convention. It provides:

“F The provisions of this Convention shall not apply to any person with respect of whom there are serious reasons for considering that:
(a) ...
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) ...”
The application of this Article was considered at length in Refugee Appeal No. 29/91 Re SK (17 February 1992) 22-43. The conclusions reached there were as follows:
“a) That while extradition cases dealing with the political offence exception are informative, they must be treated with caution.
b) The preferable test is that advanced by Goodwin-Gill in The Refugee in International Law (1983) at 60-62 as approved and explained in McMullen v. INS 788 F. 2d 591 (9th Cir. 1986) namely:
“The nature and purpose of the offence require examination, including whether it was committed out of genuine political motives or merely for personal reasons or gain, whether it was directed towards a modification of the political organization or the very structure of the state, and whether there is a close and direct causal link between the crime committed and its alleged political purpose and object. The political element should in principle outweigh the common law character of the offence, which may not be the case if the acts committed are grossly disproportionate to the objective, or are of an atrocious or barbarous nature.”
c) The Authority is particularly attracted to this test because it is very similar, if not identical, to the test adopted in the context of the Prosecution or Persecution issue. There is considerable merit in ensuring that a consistent test is applied in both contexts, bearing in mind their very close inter-relationship, as the facts of the present case demonstrate.
d) The conclusion the Authority has arrived at is further reinforced by the fact that the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status contains a very similar test. It is not clear whether the Goodwin-Gill formulation preceded the Handbook formulation or vice versa:
“152 ... In determining whether an offence is 'non-political’ or is, on the contrary, a 'political’ crime, regard should be given in the first place to its nature and purpose, i.e. whether it has been committed out of genuine political motives and not merely for personal reasons or gain. There should also be a close and direct causal link between the crime committed and its alleged political purpose and object. The political element of the offence should also outweigh its common law character. This would not be the case if the acts committed are grossly out of proportion to the alleged objective. The political nature of the offence is also more difficult to accept if it involves acts of an atrocious nature ...”
“156 In applying this exclusion clause, it is also necessary to strike a balance between the nature of the offence presumed to have been committed by the applicant and the degree of persecution feared. If a person has well-founded fear of very severe persecution, e.g. persecution endangering his life or freedom, a crime must be very grave in order to exclude him. If the persecution feared is less serious, it will be necessary to have regard to the nature of the crime or crimes presumed to have been committed in order to establish whether the applicant is not in reality a fugitive from justice or whether his criminal character does not outweigh his character as a bona fide refugee.”
e) The Authority’s conclusions also find support in the Swiss test as explained and recommended in Gilbert, Aspects of Extradition Law (1991) at 150:
“As was suggested above in Section 6.4.5, the Swiss approach is the best of the current methods of applying the political offence exemption. It can test any and every political motivated offence. It requires that the offence is sufficiently proximate to the ultimate goal of the fugitive offender and his organization. This remoteness test rules out most terrorist crimes in the politically complex western industrialized societies which is the aim, anyway, of most of the treaties and statutes so far considered and rejected as failures. And it retains judicial discretion while demanding the much more stringent final hurdle that the offence be proportionate to the goal: authority already exists to suggest that homicide, no matter what crime it results from, will rarely be proportionate. Finally, the test is simple, unlike the positive guidelines of H.R. 3347 and it does not create more difficulties that it solves.”
f) The expression “serious reasons for considering” as employed by Article 1F of the Convention requires evidence establishing only probable cause.”
It will be seen that much the same test has been applied in relation to the prosecution/persecution issue. As we have concluded that this is a case not of prosecution, but of persecution, we accordingly find that there are no serious reasons for considering that the appellant has committed a serious non-political crime outside New Zealand.

Also to be taken into account in this context is the factor referred to by Professor Hathaway in The Law of Refugee Status 224, namely that the risks associated with exclusion from refugee status must not outweigh the harm that would be done by returning the claimant to face prosecution or punishment, i.e. the heinous nature of the persecution anticipated counters the logic of return. The appellant’s fate, if returned to Iran, would be a truly terrible one. It is inevitable that he would be subjected to torture of a most severe degree and either imprisoned for life or executed. This factor has been taken into account by the Authority in its decision that the provisions of Article 1F(b) have no application to the appellant’s case.

CONCLUSION

In summary our conclusions are as follows:

1.    The appellant holds a bona fide subjective fear of returning to Iran.

2.    The harm feared by him is of sufficient gravity to constitute persecution.

3.    The appellant faces persecution, not prosecution.

4.    There is a real chance of the feared harm occurring were he to return to Iran.

5.    The harm feared by the appellant is connected with or related to one of the five Convention reasons, namely his race, religion, political opinion and membership of a particular social group (his family).

6.    The appellant is not excluded from the Refugee Convention by virtue of Article 1F(b).

For these reasons we find that the appellant is a refugee within the meaning of Article 1A(2) of the Refugee Convention. Refugee status is granted. The appeal is allowed.

“R P G Haines”

..................................

[Chairman]