FEDERAL COURT OF AUSTRALIA W405 v Minister for Immigration & Multicultural Affairs [2001] FCA 1843 Migration - judicial review - refugee - Iranian national - claim of homosexual orientation - claim of well-founded fear of persecution if returned to Iran - claim to homosexual orientation disbelieved by Tribunal - claim to fear of persecution if returned to Iran disbelieved - no ground of review established - no question of principle Migration Act 1958 (Cth) W405 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W405 of 2001 FRENCH J 20 DECEMBER 2001 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W405 OF 2001 BETWEEN: W405 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: FRENCH DATE OF ORDER: 20 DECEMBER 2001 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant is to pay the respondent's costs of the application. 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 W405 OF 2001 BETWEEN: W405 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: FRENCH DATE: 20 DECEMBER 2001 PLACE: PERTH REASONS FOR JUDGMENT 1 The applicant is a national of Iran who was born on 27 February 1976. He arrived in Australia by boat without lawful authority on 30 October 2000. He lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs ("DIMA") on 12 February 2001. A delegate of the Minister for Immigration and Multicultural Affairs refused the grant of the protection visa on 21 March 2001 and on 22 March the applicant applied for review of that decision. On 22 August 2001, the Refugee Review Tribunal ("the Tribunal") affirmed the decision not to grant a protection visa. On 31 August, the applicant filed an application in this Court seeking an order of review of the Tribunal's decision. Evidence and Claims 2 In a statement made in support of his protection visa application, the applicant presented himself and his brother as homosexual. He began by recounting an incident on 5 October 2000 when he went to the Afsari University Garrison and collected his brother. In Hor Square on the way to Rah Ahan they picked up two young men of their own age. They invited the young men to join them for a drink. At the brothers' dressmaking shop in Nazi Abad the young men became intoxicated, they played music and started dancing. During the dancing the young men took their clothes off and were observed to be wearing women's underwear. According to the applicant they asked him and his brother to have intercourse with them. They did so and liked it. 3 Because the applicant and his brother had a car he gave the young men a ride back home. On the way they were stopped at a Basiji checkpoint. Young Basijis searched their car and while searching it smelled the alcohol that had been consumed. All of them were taken to a police station on charges of drinking alcohol. One of the officers at the police station recognised the two young men and became suspicious about the applicant and his brother. He accused them of having had intercourse with the young men. They denied the accusation. The police office made a file up and said he would take them to the police forensic department to be examined. They spent that night at the police station and on the following Friday were submitted to the Social Corruption Department (Mafased). On the way the applicant gave the escorting soldiers two thousand Tomans and asked him to inform their younger brother of what had happened. Their younger brother was studying law at the University. He was in the Basiji of their suburb. He visited the applicant and his other brother later that day. He told them their problem was serious. They had to evade going to court because if they went to court the sentence would be stoning. He said he would talk to his friends in the Mafased and see if he could find a way to help them escape. 4 On Saturday 7 October the applicant and his brother were taken out of the Mafased building by two guards, one of whom was an officer and the other a soldier. They were handcuffed. When they got to a quiet street, the officer opened the handcuffs and released them. The applicant's younger brother and a friend were waiting for them in a car. Their younger brother said he had given the guards two million Tomans to help them escape. He said they could not go back home because the Mafased guards might raid the house searching for them at any moment. The applicant and his brother were then taken to the home of a friend of their younger brother where they stayed for a week. On Monday 16 October, the younger brother came with a smuggler called Touraj who charged six million Tomans to take them out of Iran. Arrangements had already been made. The people smuggler had made two forged passports and obtained two air tickets for their travel the next day to Malaysia. On the next day, which was Tuesday 17 October, the applicant and his brother went with the smuggler and flew to Malaysia. In Malaysia another smuggler took them to his house. Three days later he brought them Indonesian visas and air tickets. The applicant and his brother then flew to Indonesia and remained there for three days. Ultimately they joined a boat coming to Australia. 5 When they arrived in Australia, according to the applicant, they told the Australian authorities that they had committed sodomy in Iran which was considered to be a very dangerous sin. According to Islamic and Iranian law the penalty for that sin was death, including stoning and throwing from a height. The applicant also made the point that he has been diagnosed as HIV positive and if the Iranian authorities were to find out about that and particularly because he committed sodomy, they would not release him at all. Just being an HIV positive is enough for a person to be persecuted in Iran, let alone an HIV positive person who is also homosexual. 6 The applicant stated that he believed he and his brother would be arrested upon their return to Iran and would be interrogated, persecuted and sent to the court. The court would sentence them according to Islamic law and, according to that law, the penalty for sodomy for a sane mature male is death. 7 The Tribunal hearing was conducted on 22 May 2001. The Tribunal had referred to independent country information at the hearing and sent a letter to the applicant on the following day identifying that material and inviting him to comment on it. This included an Epidemiological Fact Sheet on HIV/Aids and sexually transmitted infections for the Islamic Republic of Iran. It was a year 2000 update. Also referred to was an internet report entitled "25,000 People in Iran Are Said to Be HIV Positive". It was taken from a morning daily paper called Akhbar Eqtesad [Economic News]. This is evidently an Iranian newspaper. There was also an internet report taken from the Iran News of 3 July 1995 entitled "HIV's Raw Aggression Medicine: new look at how the AIDS virus kills". Other country information reports were also referred to and provided to the applicant. In one report dated 21 November 2000 from the Department of Foreign Affairs and Trade entitled "Treatment of Sabian Mandeans, Homosexuals, Rock Musicians and Other Matters", it was stated, inter alia: "The official position of the Iranian authorities on homosexuals remains unchanged. The act of homosexual intercourse between two consenting adults is punishable by execution for both parties. A homosexual act that does not include intercourse is punishable by flogging (100 lashes) for both parties. In practice, we are not aware of any cases of individuals being charged with or convicted of homosexual acts or execution or other forms of punishment for such. Of course, homosexuals must exercise extreme care and discretion in avoiding alerting authorities to their sexual orientation." 8 A post hearing submission was lodged with the Tribunal on 12 June 2001 on behalf of the applicant by his migration agent. It asserted that the applicant was a 24 year old Iranian practising homosexual who had contracted HIV. He fled to Australia with his brother who was also a practising homosexual. One of the apparent effects of his HIV condition was that the applicant had developed a mental disability which had been identified by doctors in Tehran. A fax from Iran in relation to this was attached with a translation. This mental condition, it was said, might well explain the confusion caused by different answers provided by the brothers to the Tribunal's questions during and since the hearing. In addition, as the Tribunal was aware, the applicant's sister-in-law had complained of her husband's homosexual behaviour and requested a divorce. The applicant's fears of persecution if returned to Iran rested on two material facts. The first was that he was clearly a homosexual. The second was that he and his brother had come to the attention of the authorities through the incident on 6 October when they were picked up with homosexual partners by a Basij patrol. The fax was in an official form which was translated with reference to the applicant as purporting to set out a diagnosis of his illness which was designated as "Adjustment Disorde (Severe Norouz)". 9 On 1 August 2001, the Tribunal sent the applicant a further letter drawing his attention to his evidence on 22 May 2001 that he had sexual intercourse with a young man called Reza who was not wearing a condom and that his brother had sexual intercourse with a young man called Hamid. Both were said to have worn female underwear. Hamid wearing red underwear and Reza wearing white underwear. The Tribunal put to the applicant at the hearing that his brother had told the Tribunal earlier that day at his own hearing exactly the opposite, namely that he had sexual intercourse with Reza who was wearing red female underwear. The information was said to indicate to the Tribunal that the applicant did not corroborate his brother's version of events and that he had fabricated his claims. By way of reply, the applicant said he had made a mistake regarding the name and colour of the underwear. It was just a mistake on his part. He said he had intended to speak the truth to the full extent of his knowledge. He advised the Tribunal that he and his brother had seen the two young men only for some hours and some nine months had elapsed since the incident. He referred to the effects on his mental state of the illness from which he suffered. He said he was very forgetful. He reasserted that if returned to Iran he would face persecution and death. The Tribunal's Findings and Reasons 10 The Tribunal began by referring to the general geography of Iran and its recent history following the fall of the Shah of Iran and the Islamic Revolution in April 1979. It referred to the current President, Khatemi, who was described as a moderate. He was said to be "aiming for freedom within the framework of the constitution and the Islamic regime". The Tribunal accepted that there were conservative elements in Iranian politics opposed to reformers such as President Khatemi. The Tribunal accepted also that Iran is a controlled society and that perceived infringements of and offences against the State can be severely punished. This did not mean, however, that the applicant as a national of Iran was by that fact alone a refugee. It was necessary to establish that the fear he said he held was a well-founded fear of persecution for a Convention reason. It referred to the applicant's claim that due to his homosexuality and the incident that occurred with the two young men and his brother in Iran he would be persecuted. He did not claim persecution for leaving the military for non-completion of his military service. He expected to be given an additional period of service for breaching that law. He did not suggest any Convention reason in its enforcement. 11 The Tribunal accepted that homosexual intercourse was theoretically punishable by death in Iran, but observed that the Department of Foreign Affairs and Trade had advised it was not aware of any cases of individuals being charged with or convicted or such acts or being executed or otherwise punished. It referred to the statement that homosexuals had to exercise extreme care and discretion to avoid alerting the authorities to their sexual orientation. Although it had been argued on behalf of the applicant that the report was outdated and not relevant the Tribunal found it to be supported by other evidence. 12 A representative of the Swedish Amnesty Group for Gay and Lesbian Concerns, told the Immigration and Refugee Board of Canada in February 1998 that none of the few known executions of homosexuals and lesbians in Iran had been carried out on the sole basis of homosexuality or lesbianism. One reason for this was that a conviction for homosexual intercourse requires the testimony of four men. There was other advice to like effect which was also referred to. 13 The Tribunal referred to general principles of the assessment of the credibility of asylum seekers. The Tribunal referred to the evidence given by the applicant's brother and the inconsistent testimony about the colour of underpants worn by the young men with whom the applicants had intercourse. The Tribunal said: "I find this applicant is not a credible witness and reject his claims. I reject the applicant's explanation for this inconsistency that he suffers from memory problems, has a nervous condition and has suffered a traumatic 9 months since leaving Iran all of which affect his recollections." The Tribunal referred to the medical report in relation to his nervous condition which claimed that he had an adjustment disorder. The translator could not find a meaning for the word "severe norouz" but stated it was a psychiatric disorder. The evidence was that the applicant had continued in the army until he had left for Australia in October 2000. When in the army he was exempt from campaigns, nevertheless the medical report indicates that whatever psychiatric disorder he had it did not sufficiently warrant a medical discharge. The Tribunal placed little weight on the medical report. It had not had the benefit of questioning the author in relation to the effects an adjustment disorder had on the applicant. When giving his evidence at the hearing and describing the sequence of events, the applicant had been confident. He had not provided any information previously to the Tribunal or the Department that he had had any problems regarding his nerves or his memory or that he had any psychiatric disorder. The Tribunal was not satisfied that the medical report was evidence that the applicant's disorder was of such magnitude it affected his recollection of events. 14 The Tribunal went on to refer to minor inconsistencies in the evidence of the brothers relating to the wearing of condoms. It placed little weight on this inconsistency. It then referred to the clothing worn by the young men and the applicant's clear recollection of some elements of it and of the type of alcoholic drink consumed. He did not have difficulty recalling the types of shoes worn by the young men. The Tribunal said: "Further both brothers were confident when giving their answers. They both recalled the names of the boys involved, but both of them indicated having sexual intercourse with the same person. This contradiction in oral evidence between the brothers is not minor or insignificant. Further, both brothers were most definite about the colour of the female underwear worn by their respective partner." The contradictions in evidence were said to go to matters lying at the very heart and substance of the claims for refugee status. The Tribunal placed weight on the inconsistency of the brothers naming the actual partner with whom they had sexual intercourse. If such an event had occurred, the identity of such a person would not be mistaken especially as both brothers had such vivid recollection of so many other details. Their incorrect responses to the colour of the female underwear and the identity of the sexual partner satisfied the Tribunal that the brothers had fabricated their story in order to enhance their claims for refugee status. 15 The reference to alcohol and being inebriated was held to be a late invention in order to overcome a major contradiction. The Tribunal did not accept that the incident claimed by the applicant had occurred. The Tribunal was of the view that both brothers were colluding in order to enhance their claims. It did not accept that they were involved in any homosexual activity as claimed. Not accepting the applicant as a witness of truth, the Tribunal was not satisfied that he was a homosexual despite his HIV positive status. So while accepting that he was HIV positive, the Tribunal did not accept that he would be persecuted in Iran for being HIV positive. 16 The Tribunal went on to consider whether the applicant would have a well-founded fear of being persecuted in Iran by reason of homosexuality if such were found to exist. The homosexual members of a particular society were said to be able to form a "particular social group" for the purposes of the Convention if they were perceived in that society to have characteristics or attributes that united them as a group and distinguished them from society as a whole. The evidence available to the Tribunal indicated that there is and identifiable homosexual community in Iran which forms a cognisable social group within that country. However the severe penalties which may in theory be imposed on homosexuals under Iranian law are not in fact enforced. One reason is that a conviction for homosexual intercourse in Iran requires the testimony of four male witnesses or, alternatively, four confessions from each of the active partners. The police and justice administration in Iran did not take active measures to investigate the existence of homosexuality and in that situation, in practice, Iran was drastically different from the impression conveyed by the Shari'a inspired Penal Code. The Tribunal concluded by referring to the applicant's claim that he left Iran with an illegal passport. It was the Tribunal's view that the applicant fabricated that claim in an attempt to create for himself the profile of a refugee. The Tribunal was not satisfied that the Iranian authorities had any adverse interest in the applicant at the time he left Iran or that they had any adverse interest in him currently. The Application for Review 17 The application for review of the Tribunal's decision recited without particularisation two grounds available under s 476 of the Migration Act 1958 (Cth): "a) There was no evidence or other material to justify the making of the decision that the applicant did not have a well-founded fears (sic) of persecution by reason of homosextuality (sic) if he returned to Iran within the reasonably foreseeable future. b) The decision involved an error of law, being an error of law involving the incorrect interpretation [of] the applicable law of (sic) an incorrect application of the law to the facts as found by Tribunal or both." The Contentions on the Application for Review 18 On the hearing of his application for review before this Court, the applicant represented himself. The limited powers of the Court to interfere with the Tribunal's decision were explained to him. In his submissions he referred to his brother as suffering from severe depression. He said that due to this depression he could not concentrate and sometimes became forgetful. The Tribunal member in her decision had not considered the mental situation or psychological situation of his brother and didn't investigate the backgrounds and records of that problem. The relevant documents however had been placed before the Tribunal. The applicant asked the Court to consider that they had provided the relevant documents and the Tribunal member did not take them into account. He also submitted that the Tribunal member had said that if they were returned to Iran there was no fear of persecution. He submitted that if the government did not execute them, they would definitely inflict a flogging. He asked whether this would not be considered as discrimination in comparison to what is happening in other societies and other countries. 19 In the event it was apparent that the Tribunal decision turned entirely upon its assessment of the credibility of the applicant. It made strong findings adverse to him in that respect. He has been unable to point to any basis upon which this Court could find a ground of review made out, whether in terms of those in the application for review or otherwise, which would justify interference with the Tribunal's decision. 20 In the circumstances, the application must be dismissed with costs. I certify that the preceding twenty-twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French . Associate: Dated: 20 December 2001 Solicitor for the Applicant: W405 appeared in person Counsel for the Respondent: Mr PR Macliver Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 22 November 2001 Date of Judgment: 20 December 2001