WAEO v Minister for Immigration & Multicultural Affairs [2002] FCAFC 306

FEDERAL COURT OF AUSTRALIA

WAEO v Minister for Immigration & Multicultural Affairs [2002] FCAFC 306

WAEO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 41 of 2002 SPENDER, O'LOUGHLIN AND GYLES JJ 8 MAY 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 41 OF 2002

BETWEEN: WAEO

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: SPENDER, O'LOUGHLIN AND GYLES JJ

DATE OF ORDER: 8 MAY 2002

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The Appellant pay the Respondent's costs, which costs are to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 41 OF 2002

BETWEEN: WAEO

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: SPENDER, O'LOUGHLIN AND GYLES JJ

DATE: 8 MAY 2002

PLACE: ADELAIDE

EX TEMPORE REASONS FOR JUDGMENT

O'LOUGHLIN J 1 The appellant, who is now aged twenty-six, arrived in Australia without appropriate documents approximately twelve months ago. He said that he left Iran in April 2000 and that his first interview by an officer of the Department of Immigration and Multicultural Affairs was conducted on 29 June 2000. He applied for a protection visa but his application was refused by a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister"). His subsequent applications for a review, first by the Refugee Review Tribunal and later by a judge of this court, French J, were both unsuccessful. He now seeks the intervention of this Court. 2 The substance of the appellant's claim for protection under the Refugee Convention was that he is homosexual; that he is therefore a member of a particular social group and that he faces a real chance of persecution in Iran because of his homosexuality if he were to be returned to that country. However, in his first interview with an officer of the department, he made no mention of his alleged homosexuality; nor did he suggest that he had ever been in trouble with the authorities in Iran. 3 In his subsequent application for a protection visa there was a material change in his claims. He there set out in some detail his history of homosexual activity which allegedly started when he was a child of twelve. He claimed that his family knew of his homosexuality and that his brother had threatened to report him to the authorities. He also claimed that he and his sexual partner had been discovered by the guards in an act of homosexual intercourse; later changing that claim by saying that they were only naked when the guards entered their room. Somehow, so he said, he managed to escape from the guards when their attention was distracted. It was then that he decided that he must leave Iran. 4 When the Refugee Review Tribunal ("the Tribunal") challenged him about his failure to disclose the information about his homosexuality to the departmental officer, the appellant told the Tribunal that he had not previously divulged his real reasons for leaving Iran because other people from his community group had told him that Australia was on good terms with Iran and that he should avoid telling the Australian authorities that he had escaped from the Iranian authorities. The appellant also told the Tribunal that he had not mentioned his homosexuality to the Departmental officer because both that officer and the interpreter were women, and he could not talk about what he called his problem in front of the women as he was too shy. 5 At the hearing before the Tribunal the appellant changed his story a second time. In his statement that had accompanied his application for a protection visa he said that when he was young, his cousin – a boy who was five years older – had asked him to engage in sex. He had complied with his cousin's request but he could not recall whether it was out of fear or out of need. Before the Tribunal, however, he said that when he was young he had a desire to be homosexually active, and that he was looking for someone for a partner. Despite the fact that the appellant had omitted any reference to his homosexually in his initial interview, the Tribunal was nevertheless prepared to consider his application on its merits. The Tribunal recorded in its reasons that it was aware that homosexual acts are illegal in Iran and that they could be severely punished – even by death. It then noted, on the other hand that the burden on the prosecution was heavy and that it included the need to produce four witnesses, but then the Tribunal conceded that there might be cases where this heavy burden could be met by means of collusion and dishonesty. 6 The next thing that the Tribunal did in its reasons was to refer extensively to country information about Iran and its attitude to homosexuality. The contents of the reports to which the Tribunal referred indicated that the Iranian authorities did not actively pursue people who were engaged in homosexual acts unless they publicly proclaimed their homosexuality or were gravely indiscreet. The Tribunal then proceeded to consider in some detail the personal history of the appellant as he had given it to the Tribunal. It recounted the detail of his homosexuality at school – of being caught by a teacher and taken to the principal who informed the appellant's father. This led, so the appellant said, to him throwing a stapler at the principal. The stapler missed its intended target but struck a photograph of the religious leader instead. That, rather than his sexuality, led to his instant dismissal from school. 7 I come now to the Tribunal's conclusions. The Tribunal said that it found the appellant's reasons for changing his story unconvincing. It described him as a highly unreliable witness. As to that finding, however, the tribunal had something to say, and I quote what it was that the Tribunal said: "Such a conclusion overall requires much stronger grounds and in the course of considering the applicant's later claims on their own merits, in isolation of his entry interview claims, the Tribunal found many such grounds."