FEDERAL COURT OF AUSTRALIA F v Minister for Immigration & Multicultural Affairs [1999] FCA 947 MIGRATION – refugee – applicant claiming to be homosexual – whether, as a homosexual, the applicant was a member of "a particular social group" – whether Iranian Islamic Penal Code provisions dealing with homosexual acts demonstrated persecution – whether Tribunal was entitled to find there was no real chance these provisions would be enforced against the applicant. MMM v Minister for Immigration and Multicultural Affairs (Madgwick J, unreported, 22 December 1998) followed Guo Ping Gui v Minister for Immigration and Multicultural Affairs (Hely J, unreported, 11 December 1998) referred to Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 applied Regina v Immigration Appeal Tribunal, Ex parte Shah [1998] 1 WLR 74 applied Dudgeon v United Kingdom (1981) 4 EHRR 149 referred to Norris v Ireland (1989) 13 EHRR 186 referred to F v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 811 of 1998 Burchett J 9 July 1999 Sydney IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 811 of 1998 BETWEEN: F Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: BURCHETT J DATE OF ORDER: 9 JULY 1999 WHERE MADE: SYDNEY THE COURT ORDERS THAT: The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 811 of 1998 BETWEEN: F Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: BURCHETT J DATE: 9 JULY 1999 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application for the form of limited review provided for by the Migration Act 1958 (Cwth) in respect of a decision of a Refugee Review Tribunal. The Tribunal affirmed a decision not to grant a protection visa to the applicant, a citizen of Iran aged 19. 2 The applicant claims to have a "well-founded fear of being persecuted for reasons of … membership of a particular social group". He identifies that group as homosexuals. He relies on what was referred to as the Islamic Punishment Act of Iran, Article 110 of which provides: "The prescribed punishment for homosexual relations in case of intercourse is execution and the mode of execution is at the discretion of the religious judge." Curiously, the legislation provides, by Article 108, the following definition of homosexual relations: "Homosexual relations consist in having sex with a male whether through actual intercourse or otherwise." This definition, read literally, would catch a woman's sexual relations with a man, although it is difficult to believe it was intended to do so. Leaving that aside, the evidence before the Tribunal indicated that heterosexual relations outside marriage, including relations far short of adultery or fornication, could also incur drastic consequences in Iran. On the other hand, the severity of the Islamic law in question may be attenuated by the difficulty of its application to a particular case. Articles 117, 118 and 119 provide: "117 Homosexual intercourse shall be established through the testimony of four just men who have witnessed the action. 118 Homosexual intercourse shall not be established with the testimony of less than four men and the witnesses shall be whipped for false accusation. 119 Testimony of women even jointly with men shall not establish homosexual intercourse." Lesser homosexual acts are also punishable, as for instance "where a man kisses another out of lust", an offence which incurs 60 strokes of the whip. Lesbianism is punished by 100 strokes of the whip and, after the offence has been repeated three times and so punished, a fourth offence incurs execution. However, the mode of proof of lesbianism is the same as that for homosexuality, and one would assume the offence could rarely be proved, unless there were a confession. 3 The Tribunal referred to the applicant's evidence that he lived with his parents in Tehran until he fled in the circumstances to be recounted. He said he had three male friends, with whom he had started to engage in sexual activities during their last year of high school. They used to visit, particularly, the home of one of them, which was a big house with a swimming pool. They would swim together, and afterwards touch each other in the shower, and then have sexual intercourse. Specifically asked by the Tribunal about his heterosexual experience, the applicant said that, before he and his friends had started having sexual activities, they had picked up a female prostitute, an experience he did not enjoy. 4 The applicant's evidence included evidence that he had told his parents what he was doing. They were unhappy about it, and took him to a doctor, who seems to have attempted to reassure them. There were also claims "that his parents took him to doctors and psychologists several times". One obvious comment which arises from this evidence is that neither the parents, nor the doctors, nor the psychologists, ever denounced him, so that his personal experience seemed to confirm other evidence before the Tribunal that the severe Islamic law in respect of homosexuality was not zealously enforced in practice. 5 However, the applicant said another friend, not personally involved in the activities at the house with the swimming pool, gave him alarming information on a particular occasion. This was that the three friends who were so involved had been arrested. F did not ask how his informant knew about it, where precisely the arrest had occurred, what were its grounds, or what had happened to his friends after their arrest. He was told to hide, and he went to stay at his aunt's place for two or three days, but then went back to his parents' house. He arranged to obtain a passport with a substituted photograph of himself, purchased a ticket, and was given a visa for Thailand. Having made these arrangements, he was able to leave Iran some nine days after he had been warned of his friends' arrest. At no stage, then or later, did anyone tell him about what had happened to his friends. He told the Tribunal that about a week after he left, the authorities arrived at his parents' home, and his mother paid them a bribe to go away. 6 Having recounted these facts, the Tribunal, in its reasons, referred to information furnished by the Department of Foreign Affairs and Trade that there had been no executions of homosexuals in recent years in Iran, that homosexuality was not unknown there, and that the "authorities would be unlikely to bring charges unless an individual had been notably indiscreet or was of interest to them for other reasons". The Tribunal cited confirmation of these points in material emanating from the Immigration and Refugee Board of Canada, to the effect: "Theoretically, homosexual behaviour is sharply condemned by Islam, but in practice it is [at] present, and has been in the past, for the most part tolerantly treated and frequently occurring in countries where Islam predominates. … In practice it is only public transgression of Islamic morals that is condemned, and therefore Islamic law stresses the role of eye-witnesses to an offence. The police are not allowed to go in search of possible sinners, who can only be caught red-handed, and not behind the 'veil of decency' of their closed doors. In a way, concealment is advised, because to disclose a dreadful sin would be a sin in itself. … The generally tolerant attitude toward homosexual behaviour in practice can partly be explained by the fact that it will usually take place discreetly. Moreover it does not have serious personal consequences such as, for example, heterosexuality would have." The Tribunal went on to cite information that "none of the few known executions of homosexual men and lesbians in Iran [has] been carried out on the sole basis of homosexuality or lesbianism". It said: "In a 1996 report, the Swedish Embassy in Iran noted that the situation in practice in Iran is drastically different to the impression conveyed by the Penal Code, stating that the police and justice administration do not take active measures to investigate the existence of homosexuality nor do they actively hunt homosexuals. The Embassy states that in order to risk sanctions a homosexual couple must behave with great indiscretion, almost provocatively, in a public place. The Swedish Embassy's report also stated that homosexuality is not uncommon in Iran and that homosexuals are not actively persecuted. The report further stated as far as the behaviour of homosexual persons can be taken as a relevant indication about the degree of oppression of homosexuals, the impression is that the situation in Iran is relatively tolerant. There are 'health clubs' in Tehran known to be frequented by homosexuals and it is not unusual to meet openly homosexual persons." Recent information from the Immigration and Refugee Board of Canada is stated by the Tribunal to be to the effect that it is "most unlikely that the authorities would take proceedings against a homosexual as long as he does not manifest his disposition in an open and public manner". 7 The Tribunal also made reference to information concerning the extreme difficulty of proof in any relevant prosecution in Iran, and to the view of a specialist "that legislative repression is not directed at homosexuals but at heterosexual relations outside marriage". The Tribunal mentioned evidence of the difficulty of identifying a homosexual in Iran because close physical contact between men is socially acceptable. What is not socially acceptable is close physical contact in public between men and women. Further evidence was cited that "homosexuality is a common phenomenon and is tolerated as long as it does not disturb public order and remains a private activity". This tolerance was contrasted with the attitude towards paedophilia. An expert on Iran was quoted as having stated "that sexual relations between people of the same sex is common and has been present in Iran for a long time and that there is a park in Central Tehran which is a well-known meeting place for men looking for sexual relationships with other men". The source "stated that the public and the security forces are aware of the park's reputation." 8 The Tribunal found: "I accept that [F] engaged in sexual activities with a group of his male school friends. However, I note that the activities he described were activities which are relatively common amongst young people involved in sexual experimentation. Further, [F] has had no contact whatsoever with young women his own age. His only sexual experience with a woman involved sexual intercourse with a prostitute. This was in fact his very first sexual experience. In the circumstances, I have some difficulty accepting that [F] has a settled homosexual orientation. However, for present purposes I accept [F's] claim that he is homosexual." The Tribunal also found: "I have considered [F's] claim that his friends were arrested and that he had to fleeIran in order to avoid the same fate. In relation to this, [F's] claim that his friends were arrested in a private home is quite contrary to the independent evidence before me that the Iranian authorities do not actively seek out homosexuals in order to charge them with breaching the law. Given that on [F's] own evidence neither he nor his friends had ever done anything in public to attract the attention of the authorities, I am of the view that there would be no reason for the authorities to know that [F] and his friends were engaging in sexual activities in the privacy of their homes. Whilst I note [F's] claims that a neighbour might have reported them to the authorities, given [F's] evidence that no one outside a very limited circle knew about what was going on, it is implausible that there would have been anything suspicious about a group of teenage friends going to each others' homes. I find it equally implausible that the Komiteh would have been able to discover what was going on between the friends by having the house under surveillance, as claimed by [F]. Further, I am of the view that [F's] account of how he found out about his friends' detention [is] lacking in credibility. I do not consider it plausible that [F] would not have asked his friend how he knew that the others had been detained, or how or when this had occurred. I consider it would have been normal and natural for such information to have been provided, or if not, for it to have been requested by [F]. I also do not find it plausible that [F] would have taken no steps at all to discover the fate of his friends, either at the time, or since. [The comment may fairly be made that it seems very unlikely F's friends could have been executed or otherwise punished as criminals without any echo of that news coming to him.] In addition, I note that on his own evidence, [F] was in Iran for some nine days following the alleged detention of his friends. For all but two to three days of this period he was living at home with his parents. He was able to arrange to obtain a photo substituted passport, purchase an airline ticket, obtain a visa for Thailand and foreign exchange, and pay his departure tax. There is nothing in the evidence before me suggesting that any interest in [F] was shown by the authorities during this period. I am of the view that if [F's] friends had been arrested and he had been implicated as a result of this incident, the authorities would have been easily …able to find [F] prior to his departure from Iran. Further, I am of the view that had [F] genuinely feared that he was at risk of being arrested, he would not have remained at home living with his parents for most of the period prior to leaving the country. As I do not accept that [F's] friends were arrested or that the authorities had any interest in [F] for reasons of his homosexuality at the time he left Iran, I do not accept that the authorities raided [F's] home after his departure from the country. In the circumstances, I am of the view that [F] has fabricated these aspects of his claim in order to enhance his claims for refugee status. As I do not accept that [F's] friends were arrested or that he was of interest to the authorities at the time he left Iran, I do not accept that there is a real chance that [F] faces arrest if he returns to Iran because of homosexual activities he engaged in with his friends." 9 The Tribunal then turned to consider, having accepted "for present purposes" F's claim to be a homosexual, whether, although it did not think he faced punishment because of the incidents to which he had referred, there might be a real chance he would face persecution for reasons of his homosexuality upon returning to Iran. As to this, the Tribunal said: "Whilst I accept that homosexuals in Iran can be treated in a way which may amount to persecution, I do not accept that this means every homosexual person in Iran necessarily has a well-founded fear of persecution. In particular, I do not accept that the mere fact that homosexual conduct is illegal in Iran means that [F] has a well-founded fear of persecution. Although the illegality of homosexual conduct in Iran is a relevant factor to consider, I am still obliged to consider whether there is a real chance that [F] will face persecution for a Convention reason if he returns to Iran. The independent evidence set out above, which I accept, suggests that there is a considerable difference between the explicit provisions of the Islamic Penal Code in relation to homosexuality and the situation in practice. The evidence indicates that the Iranian authorities do not actively seek out homosexuals and that the risk of prosecution for homosexuality is minimal as long as homosexual activities are carried out discreetly. There is nothing in the evidence before me to indicate that a homosexual man in Iran is at risk of attracting the attention of the authorities merely for being homosexual. Indeed, the evidence suggests that homosexual activity, as long as it is not overt and public, is tolerated and not uncommon in Iran. The independent evidence further indicates that there are places in Iran where men meet other men for the purpose of initiating sexual contact. … I note that the need to be discreet in relation to sexual relationships in Iran is not limited to homosexual relationships. The independent evidence indicates that unmarried heterosexual couples who are found together are liable to severe punishment. If anything, the independent evidence suggests that it is far easier for men to be publicly affectionate towards each other in Iran than it is for a man and a woman." 10 It was for these reasons that the Tribunal affirmed the decision not to grant F a protection visa. 11 Merely to recite, as I have recited, the essentials of the reasoning of the Tribunal, is to appreciate that its decision turned entirely on its view of the particular facts of the case. It did not deny, although it expressed a readily understandable doubt, that the applicant was actually a homosexual. Nor did it deny that, in general, homosexuals may be described as a social group: see Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 265, per McHugh J; MMM v Minister for Immigration and Multicultural Affairs (Madgwick J, unreported, 22 December 1998); Guo Ping Gui v Minister for Immigration and Multicultural Affairs (Hely J, unreported, 11 December 1998). It is in accordance with settled authority to see as a member of a social group a person who identifies himself by some means with an ascertainable set of associated persons linked by shared homosexual activities. So, too, in the case of a person who is identified as such by others, though perhaps against his will. However, the mere possession of some homosexual feelings might not necessarily be enough. The ancient Sumerians, the cuneiform tablets tell us, saw themselves as the "black-haired people", and because they did so, that characteristic may have been a defining one for them. But such a shared characteristic would not normally, without more, constitute its possessor a member of a social group. As Dawson J said in Applicant A v Minister for Immigration and Ethnic Affairs at 241: "A particular social group …is a collection of persons who share a common characteristic or element which unites them and enables them to be set apart from society at large. That is to say, not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society." Similarly, Gummow J (at 285) referred to "divisions of the population which may be made for demographic purposes", and then added: "However, numerous individuals with similar characteristics or aspirations in my view do not comprise a particular social group of which they are members. I agree with the statement in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 569: 'There must be a common unifying element binding the members together before there is a social group of that kind. When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that it is "for reasons of" his membership of that group.'" In Regina v Immigration Appeal Tribunal, Ex parte Shah [1998] 1 WLR 74 at 87 Waite LJ (with whom Henry and Staughton LJJ expressed general agreement) summarised his understanding of the view taken by the majority of the High Court in A v Minister of Immigration and Ethnic Affairs as follows: "The Convention emphasises that the group must be a 'particular' and 'social' group. This means that the members of the group must share something which unites them, and which sets them apart from the rest of society and is recognised as such by society generally." Henry LJ (at 91) separately expressed his own agreement with the passage I have quoted from the judgment of Dawson J, as well as with a passage to similar effect in the judgment of McHugh J (at 264-265). 12 If, of course, a "particular social group" were defined by reference to sexual feelings or some other personal characteristic of its members which had not been expressed in any significant way, it would generally be difficult to see membership of that group as a focus for persecution. The evidence in this case to which the Tribunal referred does not suggest that anything short of homosexual activity could be penalised in Iran. What the Tribunal doubted, while accepting it for the purposes of the case, was that F had any such settled sexual orientation as could put him at risk if he were back in Iran. Cf the remarks of McHugh J in Applicant A at 257. 13 Although these matters were debated before me, the decision, as I have indicated, does not turn upon them. That is because the Tribunal simply did not accept F's evidence concerning the arrest of his friends and the threat of arrest to himself, while, at the same time, it did accept the reliability of the material it had obtained suggesting there is only a remote chance any persecution would in practice face the applicant, if he is a homosexual, in Iran. The facts are, of course, for the Tribunal. Its rejection of the applicant's evidence was plainly based on rational grounds, and it had the benefit of hearing and seeing him. It was entitled to accept information emanating from authoritative sources in Australia, Canada and elsewhere to the effect that homosexuality is not uncommon in Iran and that the severe provisions of the Islamic Penal Code are not enforced, except in rare cases concerning persons who are notably indiscreet. All persons in Iran, whatever their sexual orientation, have to be discreet in sexual matters, and I can see no error of law in the Tribunal's acceptance of this evidence. Indeed, the decision of Madgwick J in MMM v Minister fully justifies the Tribunal's approach. 14 It cannot reasonably be maintained that, simply because a country's law restricts sexual activity between consenting adults, those who do not wish to obey it are ipso facto persecuted, whether it is enforced by the authorities or not. The Convention offering hope to refugees is concerned with a real chance of persecution: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. At the time the nations entered into it, many of them (including states of Australia, Europe, and the United States) had laws penalising forms of homosexual activity: see the remarks of Madgwick J in MMM v Minister at 6-7. In support of a contention that the mere existence of the Islamic Penal Code, irrespective of the failure of the Iranian authorities to enforce it, required the Tribunal to find in the applicant's favour, I was referred to Dudgeon v United Kingdom (1981) 4 EHRR 149 and to Norris v Ireland (1989) 13 EHRR 186. But these were cases concerning human rights, not cases where the definition of a refugee was in question. Even so, the judgment of the European Court of Human Rights in Dudgeon lends little support to so wide a contention. The judgment demonstrates the existence in European countries of laws directed at forms of homosexual activity, and includes the statement (at 168): "The Court has already acknowledged the legitimate necessity in a democratic society for some degree of control over homosexual conduct … ." What the Court (by majority) ruled (at 168) was that, in the particular circumstances of Northern Ireland, it was not "necessary", within Article 8 of the European Convention on Human Rights, to maintain in force legislation "in so far as it has the general effect of criminalising private homosexual relations between adult males capable of valid consent". In Norris, the Court applied Dudgeon to Ireland. These cases do not suggest that, in the different circumstances of other countries, or even in Ireland, the mere existence of such a law would demonstrate the persecution of homosexuals. Nor do they suggest that a need to confine homosexual activities to situations of privacy would inevitably be a denial of a human right, much less that it would involve persecution. 15 The application must be dismissed, and having regard to the clarity and completeness of the coverage of the issues in the Tribunal's reasons, I do not think it is a case where I should make any other order than that the application be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett. Associate: Dated: 9 July 1999 Counsel for the Applicant: Mr N C Poynder Solicitor for the Applicant: Legal Aid Commission Counsel for the Respondent: Mr S Lloyd Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 2 February 1999 Date of Judgment: 9 July 1999