Gholami v Minister for Immigration & Multicultural Affairs [2001] FCA 1091

FEDERAL COURT OF AUSTRALIA

Gholami v Minister for Immigration & Multicultural Affairs [2001] FCA 1091

MIGRATION – protection visa – application for review of a decision of the Refugee Review Tribunal – application for an adjournment – where the RRT was not satisfied that the applicant is a homosexual – "giving the benefit of the doubt" to the claims of an applicant Randhwa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 considered HASSAN GHOLAMI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 125 of 2001 TAMBERLIN J PERTH 7 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 125 OF 2001

BETWEEN: HASSAN GHOLAMI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 7 AUGUST 2001

WHERE MADE: PERTH

THE COURT ORDERS THAT: The application for review is 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

WESTERN AUSTRALIA DISTRICT REGISTRY W 125 OF 2001

BETWEEN: HASSAN GHOLAMI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE: 7 AUGUST 2001

PLACE: PERTH

REASONS FOR JUDGMENT 1 This matter has come on for hearing this afternoon and an application has been made for an adjournment by counsel appearing for the applicant. The application is based on two grounds. The first ground is that during the hearing the applicant tried to explain to the Refugee Review Tribunal ("the RRT") certain matters relating to his conversion to Christianity and experiences with respect to it and, in substance, it is said that he was prevented from proceeding with this line of address. 2 The applicant has not furnished any evidence before me as to what transpired. The statement in the instructions apparently is to the effect that he tried to explain certain matters to the decision-maker, but it is not clear whether he expressed this request in any particular way or exactly what transpired. The RRT decision was made some considerable time ago, on 17 April 2001, and the hearing date was no doubt some considerable time again before the making of the decision. The applicant has had, it seems to me, ample time within which to present any argument or adduce any material relating to this matter, yet has not done so until, apparently, last Friday, when legal representatives were instructed to appear. In view of the absence of any evidence to support the allegations that have been presented to the Court, I am not satisfied that there is any proper basis on which to adjourn proceedings on this ground. 3 An application for adjournment is also sought to be supported on the ground that the applicant has gathered, on the Internet and from other sources, material relating to Christianity and to homosexuality and persecutions in respect of it, including, so it is said, material relating to the situation in Iran and in some other countries. None of this material is said to have been before the RRT, and I am not satisfied that any ground has been shown to warrant the introduction of the evidence at this stage. The investigation before the Court is as to whether there was any error in law or principle committed by the decision-maker. I am not satisfied on the assertions from the Bar table, which I accept are made on instructions, without any evidence to back them up, as to what has transpired. Accordingly, I decline the application for adjournment on either of the two bases which have been referred to above, so the matter will now proceed. 4 In this matter, the applicant is a citizen of Iran who arrived in Australia on 15 October 2000. He made an application for a protection visa, but this was refused on 12 February 2001 by a delegate of the Minister for Immigration and Multicultural Affairs. An application was made on 19 February 2001 for a review of the decision of the delegate. On 17 April 2001, the RRT made its decision affirming the decision not to grant a protection visa. The details of the legislation and the relevant principles, together with the background and evidence and claims, are set out fully in the decision under review and I will not repeat them in these reasons. 5 The claim of the applicant for protection as a refugee in this case is based on his claim that he is a homosexual and that, if he is returned to Iran, there is a real chance of persecution on the ground that he is the member of a social group which is comprised of homosexuals. The RRT rejected the proposition that the applicant is homosexual. Coupled with this, there is a relatively recent claim to the effect that he intends to become a Christian, and the applicant submitted a certificate to the RRT that he had completed a correspondence course in relation to Christianity. This claim was also considered and rejected by the RRT. 6 The grounds of review raise the question of what is meant by the expression "giving the benefit of the doubt" to the claims of an applicant. It is said that on the material before the RRT there was at least some doubt in the view of the decision-maker that the applicant was not a homosexual. It is then said that the benefit of the doubt on this question should be given to the applicant. 7 In the case of Randhwa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, Beaumont J emphasised that a liberal attitude concerning proof of persecution in the context of an application for refugee status should be taken but that it should not lead to an uncritical acceptance of any and all allegations made by applicants. In forming the view that the applicant was not a homosexual, the decision-maker in this case took into account inconsistencies between the claims initially made by the applicant and his later claims. In his initial arrival interview, the applicant did not assert that he was a homosexual and feared persecution on that basis, but rather put the case on the basis of the political activities of his brother and uncle. This latter claim was later resiled from and the homosexual claim was made and asserted on the hearing before the RRT. 8 It was not only the fact that there was a inconsistency in his story which appeared to have influenced the decision-maker. The RRT also appeared to place weight on the fact that a completely different story was raised and abandoned by the applicant. One can understand some reluctance on the part of an applicant to overtly indicate homosexuality as a basis for claiming refugee status because, perhaps, of the applicant's uncertainty in relation to the attitude to homosexuality in that country which is adjudicating on his application. Nevertheless, in this case, the initial claim was fundamentally based on political activities or beliefs, or imputed political activities or beliefs, and there was no mention of the homosexual element in the claim. The RRT found, at 15, that the applicant's statement in his initial interview that he chose Australia as his destination because "everyone in Iran said Australia is a nice place" fundamentally undermined his subsequent claim that he was "unsure" about his safety and that he thought he would be refused protection if the Australian government knew he was homosexual. The RRT further reasoned that if the applicant fled Iran fearing harm because of his homosexuality, he would choose a country of asylum where he thought his homosexuality would be accepted. The RRT concluded that "the applicant's failure to mention his homosexuality suggests to the Tribunal that he has fabricated this claim to contrive a claim for refugee status". 9 It seems to me that the RRT approached the question in the way indicated by Beaumont J. Whilst recognising that a liberal approach must be taken, the decision-maker nevertheless gave considerable weight to the impact on the applicant's credibility of the change in his approach. There appears to have been ample opportunity in the applicant's initial interview for him to state his true reasons for choosing Australia as a destination. Another factor which comes into play is that the obtaining of refugee status was no doubt considered by the applicant as a matter of major importance. In those circumstances, one might have expected that the claim would be squarely and fairly addressed from the outset. 10 Therefore, in examining the approach which the decision-maker took to the question of the applicant's homosexuality, I am not satisfied that any error of law or principle has been made. 11 However, the matter does not stop there. There are other factors which were considered by the decision-maker. It was accepted by the decision-maker that there were, in fact, assaults against the applicant on two occasions. The applicant said that these assaults occurred because of his homosexuality. The RRT found itself in a "positive state of disbelief" that the two assaults occurred for that reason: at 15. This is a very definite and strong view expressed by the decision-maker. There was no indication that any of the assailants in the two assaults which took place expressed any reason related to homosexuality as a basis for the attack. Nor was there any indication as to the identity of the persons involved in these attacks or as to them being the same persons involved in each case. 12 Another incident relied on was what was referred to as "the window-breaking incident". According to the applicant, the windows in his mother's house were broken and a statement was made as to stoning homosexuals. In light of its finding that it was not satisfied that the applicant is homosexual, the RRT could not be satisfied that this event happened. Even if the window-breaking incident did occur, there was no evidence before the RRT that it was carried out by any of the persons who had previously been involved in the assaults against the applicant. It is difficult to see any connection between the three incidents. 13 The decision-maker accepted that the applicant, being a homosexual, was a member of a particular social group for the purposes of the Refugees Convention as amended by the Protocol, but formed the view that she was not satisfied that there was any real chance of persecution if he were to return to Iran. It is clear from the material that there were considerable doubts entertained by the decision-maker about the applicant's credibility. The decision-maker stated, at 14, that the RRT had "significant concerns about the applicant's credibility". The major basis on which the RRT had to make the decision as to whether the applicant was a homosexual was statements from the applicant himself and, therefore, credibility was of critical importance. 14 The RRT looked at independent evidence which suggested to it that there was a considerable difference between theory and practice in the treatment of homosexuals in Iran under the Islamic penal code. The country information consulted by the RRT suggested that the Iranian authorities do not actively seek out homosexuals and the risk of prosecution for homosexuality is minimal so long as the activities are carried out discreetly. This evidence may or may not be correct. However, it was before the RRT and the RRT formed the view that it was appropriate to rely on it. That essentially is a question for the RRT, being a question of fact and degree as to the relative weight to be given to the assertions by the applicant and the independent country evidence which is referred to in the decision. 15 An additional factor which was considered by the RRT was that the applicant claimed that certain persons knew of his homosexuality and that this information could filter back to Iran and, therefore, there would be a significant threat of persecution if he were to return. There is no evidence which bears on that point and it seems to me that the RRT was justified in treating it as speculation. It considered that the chance that other detainees would pass on information about the applicant's homosexuality to the Iranian authorities was so remote as to not present any real chance. 16 The applicant also claimed, somewhat belatedly, protection on the basis that he intended to become a Christian and, as mentioned earlier, he had engaged in a correspondence course in relation to Christianity. The RRT dealt with this, entertaining some doubts that the applicant's intended conversion was genuine, but nevertheless proceeded on the basis that, even if the conversion was genuine, it was not satisfied that there was any real chance of persecution on the ground of conversion to Christianity provided that the religion was practised discreetly in Iran. In forming this view, regard was had to independent country information. 17 As mentioned earlier, the weighing of the claims of the applicant against the country information is a matter of fact and degree and an error in relation to it does not give rise to a reviewable claim. While there is nothing to satisfy me that there was any error made by the RRT, in any event, it would not progress the applicant's case on judicial review by this Court. 18 Accordingly, I am satisfied that it was open to the RRT on the material before it to reach the conclusion that it did. I cannot discern any error of law or principle in the decision and I therefore dismiss the application for review with costs.