FEDERAL COURT OF AUSTRALIA W410 v Minister for Immigration & Multicultural Affairs [2001] FCA 1859 MIGRATION - judicial review - refugees - applicant claiming to be practicing homosexual - aspects of applicant's account rejected by Tribunal - no repression of homosexuals in practice in Iran - whether Tribunal obliged to consider possible change in practice - whether Tribunal had regard to irrelevant considerations - whether Tribunal approach to questioning applicant irrational - application dismissed Minister for Immigration and Multicultural Affairs v Perera (2001) 183 ALR 204 W410 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W410 OF 2001 FRENCH J 20 DECEMBER 2001 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W410 OF 2001 BETWEEN: W410 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: FRENCH J 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 W410 OF 2001 BETWEEN: W410 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: FRENCH J DATE: 20 DECEMBER 2001 PLACE: PERTH REASONS FOR JUDGMENT 1 The applicant is a citizen of Iran. On 19 June 2000, he arrived by boat in Australia without lawful authority. He lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 1 March 2001. That application was refused on 26 March 2001. On 29 March 2001, the applicant applied to the Refugee Review Tribunal for a review of the decision refusing the grant of a protection visa. On 16 August 2001, the Tribunal affirmed the decision not to grant a protection visa. On 4 September, an application for review of the Tribunal's decision was filed in this Court. Evidence and Claims 2 In an interview held with an officer of the Department of Immigration and Multicultural Affairs on 30 June 2000, the applicant was asked why he had left his country of nationality. The answer recorded was: "About the place of work and my future it was not good for me to stay there." Asked why, his recorded answer was: "I am a young person. I worked all day for six days and there was not much income to go around. There wasn't any freedom to wear the type of clothes or t-shirts that we wanted to wear." Asked whether there was any other reason for leaving his country of nationality, he said "No not really". He was also asked if he had any reasons for not wishing to return to his country of nationality. Initially he did not understand the question. When it was clarified, his response was, "I do not like to go back". Asked if anything would happen if he did go back, he said "No". 3 In his application for a protection visa the applicant provided a considerably more elaborate statement of his reasons for leaving Iran. In the statement he explained that he was homosexual and set out the history of the development of that orientation. He traced it back to a time when he was twelve years old and established a close relationship with his cousin who was eleven. He said that they used to have intercourse where nobody could see them and used to do it a few times a day. He then started to have close relationships with some of his friends who were living in the same area and later on with some of his class mates. They used to go to each others homes for study and had intercourse with each other as well. When he was fourteen or fifteen years old he invited one of his class mates to his house. They started to have sex but his mother saw them and told his father. His father beat him "almost to death" and said he would kill him. His mother and his uncle interfered and his father made him promise he would never happen again. But in fact he said it did more and more. In the course of his military service the applicant said he became very close to one of his friends and they had homosexual intercourse. When his service was finished and he was discharged he found a job and did not have access to that particular friend any more as he had left the country. 4 The applicant said he used to get along well with his fellow workers and developed a relationship with one of them who was his supervisor. His supervisor was married and had a child but was also interested in homosexual sex. The applicant liked him a lot and decided to tell him everything about himself. After a few months of work his supervisor told him that he would like to raise his wages because of the relationship. He said he had sexual relationships with the supervisor over five or six months. One night, at the supervisor's home, when the supervisor's wife was out, they were having sex in his bed. They didn't hear his wife and her brothers come home. They saw the supervisor and the applicant in bed. The applicant said he was shocked and tried to find his clothes while the others started to beat the supervisor. The applicant said he was in a dangerous situation and he just escaped. He was very worried about the supervisor and hid himself in a corner of the street to see what happened. Neighbours called the police because of the disturbance and after a while police arrived and took the supervisor and his wife's brothers away with them. The applicant said he was frightened so he didn't go home as the supervisor's wife knew him and he was sure she would have informed the authorities. He went to his sister's house, called his mother and told her the story. At 8pm she called him back and told him that the authorities had come to their house asking about him. She was told that he had to present himself at a police station. He was frightened and called a friend who told him that the supervisor had been taken to the Revolutionary Court and that the authorities were looking for the applicant. The applicant realised that he was then in a terrible situation. After he consulted his sister and her husband, arrangements were made for him to leave Iran. He said he could not return to Iran because he would be taken to the Revolutionary Court and would be executed or imprisoned there for a crime against the regime and against Islam which is the law of the regime. That is why he requested asylum in Australia. 5 In support of his application to the Refugee Review Tribunal, the applicant's solicitor, Mr Christie sent a letter by way of submission dated 21 May 2001. He restated the applicant's claims that he was a practising homosexual in Iran and that he fled from Iran following an incident when he and his male lover were discovered in the course of sexual relations by his brother's wife and her two brothers. In the statement made by the applicant in support of his application for a protection visa, reference was made to "his" brothers. That was an error of translation. 6 In reference to his initial interview, it was said that the applicant had been told that there would be at least two further interviews. He decided not to mention anything about his homosexuality and his fear of persecution at that stage because he was too embarrassed to discuss them with a Persian-speaking female. Only two interpreters, both female, were present. He was concerned also that information provided to the authorities at that stage would not be secure and would get back to Iran. He decided to leave his claims to be made as part of his formal claim. It was also said that he had left Iran via Mehrabad airport using his own passport four days after the incident which led to his supervisor being taken into detention. He already had a passport. Air tickets from Iran and an exit visa were relatively easily obtained. On the first evening when he remained at his sister's home after the incident, it was reported back to him that police had been around to his parents' home and wanted to speak to him. It was said he has since heard from his family that two days after his departure the authorities had again visited his parents' home this time with a court order for the applicant. They also carried out a search of the house. It was submitted that it was unlikely that the initial inquiries made at the applicant's parents' home on the day of the incident would have resulted in the applicant immediately being put on the airport departure black list or if he had been that the updated list was available at the airport at the time of his departure. It would seem more likely that there was a delay in the applicant being targeted until after the authorities had obtained a confession from the supervisor. 7 Reference was made to the Islamic Penal Code and the modes of proof of sodomy. The use of confessions and other information obtained by means of torture and mistreatment was referred to. Submissions were also made about country information relied upon in recent Tribunal decisions. It was then said: "…whilst there is differing evidence as to the enforcement of laws against homosexuality, it remains an activity which is regarded as against Islam and it is disapproved of and there are very serious penalties…" It was submitted that on the limited information that the applicant had been able to obtain, the supervisor had been forced to confess and was punished by the Religious Court for his crime. If the applicant were returned to Iran, the authorities would complete their investigation and interrogate him. In reality he too would have no choice but to confess and that would be used against him to secure a conviction. Even if somehow he were not forced to confess, there would still be evidence of the supervisor and his wife's brothers which might be sufficient to satisfy a Shari'a judge that he "has the knowledge" within the terms of Iranian law to convict the applicant. 8 At the Tribunal hearing on 22 May 2001, the applicant said that he had left Iran on his own passport, which he had obtained in April 2000. He did not have a special reason to obtain a passport and had no intention of going anywhere. When he came to Australia he had signed a document with an interpreter. He told the Tribunal that after his harrowing voyage he had become aware that Australia had good relations with Iran. He was frightened at his first interview. As the interpreter was a female it was very hard for him to speak about his problems. He told the Tribunal that the interpreter advised him he would have three interviews. It was put to the applicant that the delegate at the interview had explained to him that if he later changed claims which he made at this time, this would raise doubts about his story in subsequent interviews. He denied that he was so warned. It was submitted on behalf of the applicant that there was some medical information relevant to his application on the file which would reveal that he was an active homosexual in Iran. The Tribunal indicated to the applicant's advisor at the hearing that there was nothing in the medical report attached to the Departmental file that indicated the applicant had arrived in Australia otherwise than with a clean bill of health. 9 In relation to the incident involving his supervisor, the supervisor's wife and her brothers, the Tribunal put it to the applicant that it was implausible that they would not attack him and his lover when caught in this situation. He responded that when they saw the supervisor they were concerned about him. It was put to him that it was unlikely that in such a situation he would be able to get dressed, put on his tee-shirt, trousers and shoes and leave the apartment. He simply stated that he waited at the corner of the street in the park and saw the police arrive. He did not know from where they came, but noticed the police car and the two brothers in the police car and went. The police did not go hunting around the neighbourhood looking for him. He was hiding in a place where he could not be seen. Findings and Conclusions 10 The Tribunal saw no medical evidence to support the conclusion that the applicant was an active homosexual. The medical evidence indicated a man who arrived in Australia with no health problems. It did accept, however, that since he had been in Australia he had received treatment from nurses at the detention centre. From his description of the treatment he received the Tribunal accepted that the applicant had been homosexually active since his arrival in this country. It did not follow that such activity was evidence of his active homosexuality in Iran. The Tribunal referred to the first interview at which the applicant did not raise any claim that he was an active homosexual who had fled from Iran in fear of punishment for that activity. It was acknowledged that the first interview was not conducted in the most advantageous conditions for a person who had arrived by boat. The Tribunal did not, however, accept that he had difficulty recounting his story because a female interpreter was present at the interview. He had had no difficulty speaking of his experiences to the Tribunal. Nor did the Tribunal accept that it was fear, embarrassment or foolish misunderstanding which led to the applicant making no relevant claims at the original interview. It did not believe that a non-genuine refugee would not make some claim to be a refugee at this time. Nor did it accept that the applicant was unsure whether information would be kept confidential or that he would be able to make further claims at a later stage. He had had some days and weeks between leaving Iran and arriving in Australia in which to think about why he was undertaking such a journey. The Tribunal accepted that there could be a variety of reasons for not raising the primary claim from the outset but the failure to mention the homosexual issue was a factor going to credibility. There was nothing to suggest any interpreting difficulties or that he was not made aware of the preamble to his interview which stated that: "This interview is your opportunity to provide any reasons why you should not be removed from Australia. If you do not answer questions a decision may be made on the basis of the information we have. You are expected to give true and correct answers to the questions I ask. You should understand that if the information you give at any future interview is different from what you tell me now, this could raise doubts about the reliability of what you have said." The applicant was asked after the preamble if he understood what he had been told and he said that he did. The Tribunal did not accept that if, as claimed, he was fearful of possible consequences in Iran on account of his homosexual activities, he would have made claims of the nature made in the original interview when he told the Department he did not fear returning and that he was not able to wear the type of clothes he thought acceptable. 11 In relation to the incident involving his supervisor, the Tribunal said: "I have had the advantage of direct observation of the applicant at the time of giving his evidence in relation to this incident. I note his attitude of amusement whilst recalling this incident. I have great difficulty in believing a wronged wife and her shamed male family members would allow the applicant to dress and then leave the apartment without any incident." In the event, the Tribunal did not accept that the incident occurred nor did it accept the applicant's subsequent reasons for fleeing from Iran. The Tribunal was of the view that after being in the detention centre for some months the applicant had made additional claims in order to enhance his claim for refugee status when he realised the claims he made would not assist his endeavours to remain in Australia. The Tribunal was satisfied that he had fabricated the claims in his written application to the Department and that he did not have a well-founded fear of persecution by reason of his homosexuality or any other Convention reason when he left Iran. 12 The Tribunal then considered the alternative hypothesis that he was an active homosexual in Iran. It accepted that homosexuals form a particular social group in Iran. The evidence, however, suggested that the severe penalties which may in theory be imposed on homosexuals under Iranian law are not in face enforced. One reason for this was 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. While theoretically punishable by death, in practice there have been no executions for homosexual conduct in Iran in recent years. Independent country information indicated there was minimal harassment of homosexuals. The independent country information indicated to the Tribunal that the police and justice administration in Iran do not take active measures to investigate the existence of homosexuality and that the situation in practice is drastically different from the impression conveyed by the Shari'a inspired Penal Code. The Tribunal concluded, in this respect, that even if it were to accept that the applicant was a homosexual as claimed, it would not accept that he had a well-founded fear of being persecuted by reason of his homosexuality if he returned to Iran now or in the reasonably foreseeable future. The Application for Review 13 An amended application for an order of review of the decision was filed on 16 November 2001. The grounds of the amended application were as follows: "5(1) The Refugee Review Tribunal (the Tribunal) did not have jurisdiction to make the decision it made, because the Tribunal took into account an irrelevant consideration. Particulars (a) In assessing the credibility of the applicant's evidence, the Tribunal took into account the findings on credibility made by the respondent's delegate, who had rejected the application for a protection visa. (Court Book 147.1). (b) The findings on credibility of the delegate were irrelevant to the inquiry the Tribunal had to conduct under s 414 of the Migration Act. (2) The decision of the Tribunal involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal. Particulars (a) In the circumstances of this application, the Tribunal was required to determine whether the applicant had a well founded fear of persecution on the basis of being a member of a particular social group, homosexual men, if returned to Iran. (b) The Tribunal either accepted or did not reject the applicant's evidence and/or contentions that: (i) The applicant was a homosexual male. (ii) The applicant had been engaging in homosexual intercourse both in Iran and Australia. (iii) The statutory punishment for homosexual intercourse in Iran involved imprisonment or death. (iv) Homosexuals in Iran form a recognisable social group and can be subject to persecution. (CB138.3) (c) If the law was properly interpreted, the Tribunal needed to make a finding on whether there was a real chance the applicant's confession of and engagement in homosexual intercourse in Iran and Australia would be discovered upon his return to Iran and if so whether it could lead to persecution. (d) In error, the Tribunal failed to make a finding on this issue. (3) The decision of the Tribunal involved a incorrect interpretation of the applicable law. Particulars (a) The Tribunal accepted or at least did not reject that the applicant was a homosexual man from Iran who had engaged in homosexual intercourse in Iran and Australia, that homosexual men formed a particular social group in Iran and that the statutory punishment for engaging in homosexual intercourse in Iran was imprisonment or death. (b) Given these findings, the Tribunal's conclusion that the applicant did not have a well founded fear of persecution if returned to Iran showed the Tribunal either misunderstood the law or failed to correctly apply it to the facts as found by the Tribunal. (4) The Tribunal did not have jurisdiction to make its decision in that it failed to take into account a relevant consideration. Particulars (a) The Tribunal purported to find that the applicant did not face a well founded fear of persecution on the basis of being a member of the social group of homosexual men because there is currently no repression of homosexuality in practice in Iran. (CB 150/151). (b) The Tribunal was required to consider whether the applicant had a well founded fear of being persecuted by reason of his homosexuality if returned to Iran now or in the reasonably foreseeable future. (c) The Tribunal was obliged to consider the reasons for the practice, referred to in (a) above, which it found currently existed in Iran and analyse whether it was other than fanciful that the practice could change in the reasonably foreseeable future (d) In error, the Tribunal did not take into account this relevant consideration. (5) The Tribunal did not have jurisdiction to make the decision it purported to make. Particulars (a) In carrying out the inquiry the Tribunal was required to undertake, the Tribunal was obliged to carry out its functions rationally. (b) The Tribunal did not carry out its functions rationally as is demonstrated by: (i) The way in which the Tribunal questioned the applicant about the plausibility of the situation he described when caught with his lover in Iran. (CB 140.5) (ii) The Tribunal's failure to appreciate there could be a difference between the applicant recounting his life story to the female interpreter present at this first interview in Australia, as opposed to the Tribunal constituted by a female member. (CB 147.5). (iii) There being no basis for the Tribunal not to accept the applicant was unsure whether any information provided at his first interview would be kept confidential, when there was no evidence to the contrary. (CB 147.3). (iv) The Tribunal's "surprise" that the applicant did not at least make some reference in his initial interview to his homosexual practices in Iran, which showed the Tribunal failed to comprehend the applicant had travelled from a country in which a confession of engagement in homosexual practices could lead to imprisonment or death. (CB 147.5)." Ground 1 - Irrelevant Considerations and Lack of Jurisdiction 14 This ground turns on a paragraph in the Tribunal's decision which is in the following terms: "At his 1st interview the applicant did not tell the department he was an active homosexual who fled Iran in fear of punishment for homosexual activity. The Minister's delegate placed emphasis on the fact that in his initial interview the applicant made no mention of his major claim of being caught in a homosexual encounter with his employer. The delegate found this went to the genuineness of these claims and so to the applicant's credibility. While noting the judicial caution over the use of information from such an interview, the account of the first interview forms part of the information before this Tribunal." It was submitted for the applicant that it was the duty of the Tribunal to conduct a review of the decision refusing a protection visa on the merits. The findings of the delegate on matters of law and fact and, in particular, on findings of credibility were wholly irrelevant to that review. The structure and content of the Tribunal's reasons and the way in which the Tribunal referred to the findings of the delegate left, it was said, no doubt that the Tribunal took into account the findings of the delegate on credibility. In so doing, it is said to have taken into account an irrelevant consideration. 15 It may be noted in this context that the principal written submission made to the Tribunal on behalf of the applicant on 21 May 2001, put his arguments in part on the basis of rebuttals of the delegate's findings (CB 89 and CB 90). As a general proposition the opinions of the delegate expressed in the record of decision on the primary application are not relevant to the Tribunal's determination. There may of course be circumstances in which the applicant's own reaction to the delegate's findings and mode of argument to the Tribunal incorporate them by reference. In my opinion, however, there is nothing in the reasons to suggest that the Tribunal did not base its findings entirely on its own view of the factual material. On the question of the applicant's failure to mention his homosexuality and fear of persecution based thereon at the initial interview, the Tribunal obviously gave its own consideration to that failure. 16 In my opinion this ground is not made out. Ground 2 - Error of Law 17 This ground raised a refugee sur place claim. It was put that the Tribunal should have made a finding on whether there was a real chance that the applicant's confession of and engagement in homosexual intercourse in Iran and Australia would be discovered upon his return to Iran and, if so, whether it could lead to persecution. The submissions on this ground referred to the following findings of the Tribunal: (a) The applicant is an Iranian national. (b) International reports have criticised the ways in which the conformity to the Iranian government's version of Islam dominates over individual rights and the fact that citizens of Iran are not free to determine their own lives. (c) The applicant has been homosexually active since his arrival in Australia. (d) The assertion that the applicant was an active homosexual in Iran was not rejected by the Tribunal even though it rejected his claim of being caught having homosexual intercourse with his former lover. (e) That there is an identifiable homosexual community in Iran which forms a cognisable social group within that country. (f) That there are severe penalties which may be imposed on homosexuals under Iranian law and that homosexuality is theoretically punishable by death in Iran. (g) That the Tribunal did not accept the applicant was of any interest to the Iranian authorities at the time he left Iran. 18 In my opinion this ground cannot be made out. The Tribunal considered the hypothesis that the applicant was an active homosexual in Iran and concluded, as a matter of fact, that there was no persecution of homosexuals in that country notwithstanding the provisions of its Shari'a law. That consideration subsumes the real chance assessment which, it is said, the Tribunal had failed to undertake. Ground 2 is not made out. Ground 3 - Incorrect Interpretation of the Applicable Law 19 As the particulars of this ground disclose, it seeks to challenge directly the fact finding of the Tribunal that the applicant did not have a well-founded fear of persecution if returned to Iran. The Tribunal's reasoning in coming to that conclusion has already been outlined. That reasoning does not disclose any underlying misinterpretation of the law as suggested in the particulars to ground 3. As already pointed out in relation to ground 2, the Tribunal undertook a real chance analysis based on the hypothesis, which it did not accept, that the applicant was an active homosexual in Iran and would practice his homosexuality if returned to that country. Ground 4 - Want of Jurisdiction by Failure to Take into Account a Relevant Consideration 20 In support of this ground it was submitted that the basis upon which the Tribunal purported to find that the applicant did not have a well-founded fear of persecution if returned to Iran was expressed thus: "While I accept that in theory that the Islamic regime abhors homosexuality I consider that it is clear from the various sources consulted by the Canadian Immigration and Refugee Board that this does not translate into the repression of homosexuality in practice…" The finding was said to be based on the lack of repression in practice identified by the research director in Canada. It was said, however, that given the statutory penalties for engaging in homosexual practices in Iran, it was necessary for the Tribunal to consider whether the practice identified in the Canadian research continued and, if so, whether it was likely to continue into the reasonable future. Having failed to consider or analysis this issue, the Tribunal was said to have failed to take into account a relevant consideration and did not have jurisdiction to make the decision it purported to make. 21 The Tribunal made findings of fact which it was open to it to make about current practice in relation to the repression of homosexual practices in Iran. It was not necessary for the Tribunal to speculate on the possibility of a change in that practice any more than it is necessary for it to speculate upon the possibility of a change in the law of a country from which a person claiming asylum has come. The Tribunal's assessment must be of the existence of a well-founded fear of persecution at the time that the matter is decided by the Tribunal, not at some future time based on possible changed circumstances in the country of origin. This ground is not made out. Ground 5 - Failure of Rationality 22 The Tribunal is said to have lacked jurisdiction to make the decision it purported to make on the basis of a failure to carry out its functions rationally. The particulars of this ground have already been set out and it is not necessary to repeat them. It was submitted that given the matters particularised, the Tribunal did not carry out its functions in a rational manner. The applicant's counsel referred to Minister for Immigration and Multicultural Affairs v Perera (2001) 183 ALR 204 which emphasises that illogical reasoning does not ground judicial review under the Act. It was submitted, however, that what the applicant contended was that the way in which the Tribunal conducted the review it was required to undertake was irrational. It was irrational to the degree that the Tribunal did not conduct a review conducted by s 414 of the Act and that therefore a ground of review contained in ss 476(1)(b) or (c) had been made out. The particulars of this ground demonstrate plainly that it is essentially directed to the merits of the Tribunal's reasoning rather than any vitiating irrationality. This ground also fails. Conclusion 23 For the preceding reasons the application will be dismissed with costs. I express the thanks of the Court to the solicitors and counsel who acted for the applicant on a pro bono basis in this matter. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French J. Associate: Dated: 20 December 2001 Counsel for the Applicant: Mr MT Ritter Solicitor for the Applicant: Dwyer Durack Counsel for the Respondent: Mr RE Lindsay Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 22 November 2001 Date of Judgment: 20 December 2001