REFUGEE AND PROTECTION OFFICER v CV AND CW & ANOR [2016] NZCA 520

REFUGEE AND PROTECTION OFFICER v CV AND CW & ANOR [2016] NZCA 520 [28 October 2016]NOTE: THE CONFIDENTIALITY OF THE NAMES AND IDENTIFYINGPARTICULARS OF THE FIRST RESPONDENTS AND OF THEIR CLAIMSOR STATUSES MUST BE MAINTAINED PURSUANT TO S 151 OFTHE IMMIGRATION ACT 2009.IN THE COURT OF APPEAL OF NEW ZEALANDCA196/2015[2016] NZCA 520BETWEEN REFUGEE AND PROTECTIONOFFICERAppellantAND CV AND CWFirst RespondentsTHE IMMIGRATION ANDPROTECTION TRIBUNALSecond RespondentHearing: 25 May 2016Court: Ellen France P, Harrison and Winkelmann JJCounsel: M G Coleman and R D Garden for AppellantF M Joychild QC, D Mansouri-Rad and L Wong for FirstRespondentsNo appearance for Second RespondentJudgment: 28 October 2016 at 1 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Winkelmann J)Table of ContentsPara NoBackground [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 Jbecause 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 thewrong 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 notconsider 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 reviewthe 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's1 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 theproceedings 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'sclaims 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 theIslamic 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 of3 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 tooppose the regime but "to oppose Islam because [the] Regime is nothing but pureIslam". If returned to Iran, CW faces compulsory military service. He does not wishto 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 contextLegal framework[14] Section 129(1) of the Immigration Act 2009 provides that a "person must berecognised as a refugee in accordance with this Act if he or she is a refugee withinthe meaning of the Refugee Convention". Claims to refugee status are determinedby 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:96 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 "humanrights 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'sclaims 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 tosuch 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 onthe 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 the12 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 conceptsdesigned 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 orsystemic 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 humanrights identifies the role international human rights law plays in providingthe overarching normative framework for analysis. 'Systemic' (not, as sometimes stated, systematic) identifies that 'being persecuted' arisesbecause 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'spredicament 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'srefugee 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 accountthe 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 refugeeclaimant".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 thateach 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:20At the core of the appellant's refugee claim and the risk of serious harm hesays 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 75378.21Drawing 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; or17 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 thatsuggested sentences of 24 to 26 months' imprisonment and subsequentdisqualification 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 wouldnot amount to a breach of [their] right to hold [their] own beliefs because suchattendances 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 reviewthe 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 theapplicants' respective refugee claims as conscientious objectors tomilitary 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 inrespect of grounds that the Tribunal's decision was flawed in relation to the issue ofreligious 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 theapplicant's statement of claim could be approached discretely, she considered thatthey 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 of29 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.31First 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 ofbasis 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 internationally31 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 regulararmy) would be a justified limit on the applicants' freedom of religion and politicalopinion, 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 andevidence. 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 tomilitary 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 thatany 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 Colemanargues the applications for refugee status were advanced, "is orthodox and in keeping with established principle".32Analysis: Second ground of appeal[47] We are not persuaded the Tribunal found that the brothers' only objection tomilitary service was a political one. The passage in the decisions relied upon by32 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:33At 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 Theappellant 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 tomilitary service.[48] We also do not accept that the brothers' claims were advanced on the narrowbasis 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 thebrothers' objections to military service have as their source both political opinion andreligious 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 hisobjection 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 withthat 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 reportfrom his initial interview with CW, the Officer records that CW's objection toperforming military service appears to be based on two limbs:The first is that he believes he cannot perform the required Islamic prayersand other rituals or "remain quiet" in the military, and will be punished forthis. 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 pressureto 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 submissionsupon which Ms Coleman relies to support her submission that he conceded thatmilitary service in the Artesh would be a justified limit on CV and CW's freedoms ofreligion and political opinion and so could not found a refugee claim. The relevant passage is as follows:27. In order to establish the legitimacy under Article 18(3), there are three questions which need to be answered in affirmative:(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 andBasij an assignment to those forces cannot be considered as necessary for public safetyor 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 theICCPR; 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 ornational 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 andRT (Zimbabwe) v Secretary of State for the Home Department.35[58] Drawing from her extensive discussion of the case law she set out what shedescribed 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 willhinge 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 thisenquiry".(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 that34 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 conclusivequestion: "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 Islamic37 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 Tribunalfailing to recognise the true nature of the applicants' claims for refugeestatus.Analysis[66] Ms Coleman's argument is that the Judge's formulation of the test which wehave 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 Convention43 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 infringementof human rights and suggests that any threatened interference with a person'sconduct 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 followingpassage in the judgment:50[103] The above statements of principle display acceptance of a linkage between persecution and discrimination. The second respondent has arguedthat "persecution is a strong word" and that there is a "clear distinctionbetween a breach of human rights (discrimination) and a sustained or systemic denial of core human rights (persecution)". The second respondentseemingly 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:52In short, what is protected is the applicant's right to live freely and openly asa 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.53Nevertheless 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 ofthe 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 both51 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 andagainst the background of the issues before the Court. The appeal was focused uponthe Court of Appeal's approval, as part of the test to determine a claim to refugeestatus, 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 oforigin, 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 ofLord 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 inthe applicant's country of nationality. If so, the tribunal must go on toconsider what the individual applicant would do if he were returned to thatcountry. Even in the passage of his judgment criticised by Ms Coleman, Lord Rodger makesplain 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 abreach of the claimant's human rights. The Tribunal came to the same view as havewe, 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] Conventiongrounds which, alongside the concept of 'persecution', the drafters hadexpressly 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 their58 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 towrongly equate discrimination in breach of human rights with persecution.[78] However, when regard is had to the Judge's discussion of how the principle isto 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 resultwill 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 that59 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 aninterference 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 theTribunal's own jurisprudence but, more importantly, it conforms with the inquiryunder 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 concealingsomething 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 for61 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 theHigh 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 inthe 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 theydid serve, the Tribunal's approach was to impose upon CV and CWan 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 thearmy) was lawful. On the "serve" scenario, it had to considerwhether 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 inCP (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" inconnection 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 theinterpretation of the refugee definition. For example, 'core' is sometimes used as a synonym for 'basic' or 'fundamental' when describing those normsof international human rights law which are accepted as underpinning theRefugee 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 distantrelationship. On other occasions, the term 'margin' is used to describe thetrivial 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:64the orthodox inquiry into whether there is a risk of a prospective breach ofthe claimant's human rights Should such risk be established, this does notnecessarily 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 theTribunal'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:661. 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; and65 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 andAtasoy 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 Tribunaldeclined to adopt that analysis and applied the "orthodox" analysis applied in thiscase.70 The Tribunal's approach to the significance of universal conscription in thecircumstances 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 RespondentMansouri Law Office, Auckland for First Respondents67 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].