24 Feb 2016

Immigration tribunal overturns own decision in asylum seeker's case

5:11 pm on 24 February 2016

An appeals tribunal has widened the criteria for it to grant refugee status to asylum seekers objecting to compulsory military service in their home countries.

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Iran Photo: 123rf.com

The immigration and protection tribunal has overturned its own decision in the case of an asylum seeker who said he could not return to Iran, following a High Court ruling.

His lawyer, Davoud Mansouri-Rad, said the man was faced with having to pretend that he was Muslim during his two-year service and there was no suitable civilian alternative to the military service.

In a 100-page ruling, the tribunal said military service "limited his freedom not to have a belief".

It ruled he faced a real chance of suffering serious harm in the form of a limited but steady deterioration in his state of psychological health and possible physical assaults because of his lack of religious commitment.

It said the harm was of a nature and of sufficient intensity and duration to be appropriately described as 'being persecuted'.

Mr Mansouri-Rad said the precedent set in the case could affect the outcomes of other cases, including two at the Court of Appeal this autumn.

The tribunal said the teenager had got used to Western freedoms and would find it hard to keep up the necessary pretence: "The appellant had described how he became depressed by being forced to attend religious classes and perform prayers while at school. He was being forced to act in a way which he regarded as fundamentally dishonest to himself.

"It was partly for this reason, and to avoid further more serious trouble with the school authorities over his irreligious beliefs that the appellant's parents sent him to New Zealand as a young teenager."

It ruled his right to freedom of religion was being breached: "Where the objection is based on inconvenience, the feeling of irritation that one's time is better spent elsewhere cannot sensibly be described as 'harm' let alone serious harm.

"However, for those whose objection is based on matters of conscience or belief central to their identity, the involuntary performance of military service may constitute a profoundly distressing experience.

"For the above reasons, the Tribunal finds that the appellant's right to freedom of religion will be breached on a sustained and ongoing basis during his period of compulsory military service.

"He will be forced to manifest his belief by declaring his religion on induction. The enforced attendance and prayer, teaching and enforced religious practice during his period of military service amounts to coercion to have or adopt a religion or belief he does not hold."

In its earlier decision, the tribunal ruled the-then 18-year-old would face minimal interference with his rights.

It said the transient nature of the pretence to be Muslim and having to attend prayers and instruction during time-limited military service could not constitute "real harm".

"The appellant will be required to make one assertion that he is a Muslim and will be required to attend periodic Islamic classes and possibly prayers [...] Granted, it will be inconvenient and a waste of the appellant's time to have to sit through classes (and possibly prayers) in which he does not believe [...] however, the interference with the appellant's right to freedom of thought, conscience and religion will be minimal because he will not be forced to change his belief (agnosticism) merely because others might voice contrary views to him."