Abad v Minister for Immigration and Multicultural Affairs [2001] FCA 1260

FEDERAL COURT OF AUSTRALIA

Abad v Minister for Immigration and Multicultural Affairs [2001] FCA 1260 MIGRATION – appeal from Refugee Review Tribunal – inconsistency in applicant's account to delegate and Tribunal – whether Tribunal was entitled to disbelieve applicant due to inconsistencies. Abebe v The Commonwealth (1999) 197 CLR 510 Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 JAVAD ALIPOUR AMIRE ABAD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NO S14 OF 2001 O'LOUGHLIN J ADELAIDE 11 MAY 2001

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 14 OF 2001

BETWEEN: JAVAD ALIPOUR AMIR ABAD

APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: O'LOUGHLIN J

DATE OF ORDER: 11 MAY 2001

WHERE MADE: ADELAIDE

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

SOUTH AUSTRALIA DISTRICT REGISTRY S 14 OF 2001

BETWEEN: JAVAD ALIPOUR AMIR ABAD

APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: O'LOUGHLIN J

DATE: 11 MAY 2001

PLACE: ADELAIDE

EX TEMPORE REASONS FOR JUDGMENT 1 The applicant in these proceedings is a citizen of Iran. He is a bachelor aged twenty-eight, who arrived in Australia illegally on 3 April 2000. His application for a protection visa was rejected by a delegate of the Minister of Immigration ("the Minister"). His application to the Refugee Review Tribunal ("the Tribunal") to review the delegate's decision was also unsuccessful. He now applies to this court to review the decision of the Tribunal. 2 His application to this court and his affidavit were written in English, but he obviously did not have any professional assistance in preparing those documents. In his application, he claimed that his case and his submissions had not been looked at properly. His supporting affidavit contained further information. He said he was amazed that whilst the migration case officer had accepted his homosexuality, the Tribunal member did not. In his affidavit he said that the Tribunal member obviously failed to appreciate the cultural significance of anything to do with homosexuality in his home country. In his affidavit he also complained that the tribunal member had not believed him when he said he was tortured by the Iranian authorities in 1994. 3 The information that was contained in the department's documents dated 8 April and 22 April 2000 were records of interviews that were conducted with Javad. They did not contain any information about his homosexuality, nor did they contain any information about him being tortured. If one were to accept what is written out and supposedly spoken by him he had no political connections which could have explained the torture and he did not suggest anything about him being homosexual. He was asked a question, "Why did you leave your country of nationality?" His answer did not refer, either to torture or to homosexuality. The answer was as follows: "Many difficulties. Human rights not respected. Many different groups. Authorities say, "You are either with us or against us." There is a group backed by someone causing problems for us. If you walk with a girl along the street then they ask, "What are you doing?" Cannot wear casual clothes, like singlets. Cannot have long hair. The group protests, has marches, burn flags. Difficult to live with them. They are known as Feshar. Women cannot go out without a veil. Must wear a long dress." 4 That was not the end of his answer, but it is enough to point out that there was no reference to torture or homosexuality. In fact, the references to walking with a girl along the street and criticising women having to wear a veil rather suggests heterosexuality. 5 In the preparation for his claim for refugee status he obtained the assistance of a migration agent and, with the help of the migration agent, a long statement was prepared on 23 June 2000. He started off by saying that at his first interview: "Just after I arrived I did not give any details of my problems in Iran. I spoke only of generalities about problems in Iran. Even now I feel afraid to speak about what happened." 6 He then set out in his written statement how he was taken away by the authorities and questioned and tortured for three months. He says that was because of his association with a man, a friend called Mehdi. He said that since his release by the authorities he has lived in fear, but he did not suggest that anything bad had happened to him since then. That statement, which was prepared with the assistance of a migration agent, was very detailed about the torture, but again made no reference to homosexuality. Javad was then interviewed by a delegate of the Minister at the Woomera Immigration Reception Processing Centre on 30 June, a week later. The delegate recited Javad's evidence about his torture and then recorded that after a break in the interview Javad's representative advised the delegate that Javad wished to make a further submission. The delegate wrote this in his report: "The applicant explained that his relationship with Mehdi was homosexual and that although nothing was ever said he felt that Mehdi's father suspected the relationship and made the false accusations about political activity to break up the relationship." 7 The delegate did not accept that Javad was of interest to the authorities. 8 The delegate talked about Javad's homosexuality and in his reasons discussed information that he had received from the Australian Department of Foreign Affairs on the subject of homosexuality in Iran. What was written was this: "Iranian interpretations of Islamic law stipulate the death penalty for homosexual acts, but recent years have seen no such executions. If the authorities become aware of practising homosexuals they could suffer severe harassment and possible imprisonment. Homosexuality is not unknown in Iran and authorities would be unlikely to bring charges unless an individual had been notably indiscreet…" 9 The delegate then went on to say in his reasons that Javad had said nobody, including his parents, knew about his homosexuality. The delegate accepted that Javad was homosexual, but concluded that as no-one knew of that he could not reasonably be seen to be a member of a particular social group – that is, a group of homosexuals. When the matter came before the Tribunal Javad added further information over and above the information he had given to the delegate. 10 He told the Tribunal that he had been a member of a group promoting the legalisation of homosexuality and that three of his friends in that group had been arrested. He also told the Tribunal that the authorities located a document in his house containing the names of members of his group and the group's aims. Finally, he also told the Tribunal about telephone calls to his home when the caller remained silent. None of this information had been previously disclosed to Australian authorities. 11 The law tells me that I must be careful not to dismiss out of hand an application for refugee status merely because of minor inconsistencies in an application for refugee status. Judges of this court have said that it must be remembered that people who are seeking refugee status may expand upon their story in the hope that it will help their cause. I am referring to the remarks of Gummow & Mayne JJ in Abebe v The Commonwealth (1999) 197 CLR 510 at 577 and approved in re Minister for Immigration and Multicultural Affairs; Ex Parte Epeabaka [2001] HCA 23 at [32] per Gleeson CJ, McHugh, Gummow and Hayne JJ. 12 The trouble with Javad, however, is that his information to the delegate and to the Tribunal cannot be regarded as minor inconsistencies. His difficulties have been created because he has told different stories to different people. He convinced one person that he was a homosexual, but the next person was not convinced he was a homosexual. This is an indication of the difficulties that he faces. 13 Judges find that questions of credibility are often based on matters of impression, and an unfavourable view taken by the Tribunal towards a person who has given different stories can often be decisive of the case. I cannot interfere unless there has been a legal error. It does not matter what I might have done if I had been the Tribunal member. What I must ask myself is this question: was it within the power of the Tribunal member to say he did not believe Javad's story? Unfortunately for Javad, the answer is yes, it was within the Tribunal's power, and that is the reason why I must dismiss his application with costs.