W133/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 395

FEDERAL COURT OF AUSTRALIA

W133/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 395

MIGRATION – refugee – refusal of protection visa – application for review of Refugee Review Tribunal decision – applicant claimed membership of social group in Iran, namely, male persons of homosexual orientation – whether real risk of persecution if returned to Iran Migration Act 1958 (Cth) ss 5, 36(2), 65, 476, Re GJ (Refugee Status Appeals Authority of New Zealand – Refugee Appeal No 1312/93 – 30 August 1995) cited Abebe v Commonwealth (1999) 197 CLR 510 cited Applicant LSLS v Minister for Immigration & Multicultural Affairs [2000] FCA 211 cited Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 applied Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 applied W133/01A v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W133 OF 2001 LEE J 5 APRIL 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 133 OF 2001

BETWEEN: W133/01A

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LEE J

DATE OF ORDER: 5 APRIL 2002

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The decision of the Refugee Review Tribunal made 24 April 2001 be set aside and the matter remitted to the Tribunal for redetermination. 2. The respondent pay the applicant's 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 133 OF 2001

BETWEEN: W133/01A

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LEE J

DATE: 5 APRIL 2002

PLACE: PERTH

REASONS FOR JUDGMENT 1 This is an application under s 476 of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal ("the Tribunal") which affirmed a decision of a delegate of the respondent ("the Minister") that the applicant not be granted a "protection visa". 2 On 1 November 2000 the applicant, an Iranian national then aged 22, entered Australia's "migration zone" at Broome in the north-west of Australia. Under ss 13 and 14 of the Act, the applicant became an "unlawful non-citizen" upon entry. Pursuant to ss 189 and 196 of the Act, the applicant was placed in "immigration detention" and has been kept there ever since. 3 On 25 January 2001 the applicant applied for a protection visa. Grant of the visa was refused by the delegate of the Minister on 27 February. On 1 March the applicant applied to the Tribunal for review of the Minister's decision. The Tribunal made its decision on 24 April 2001. 4 Under s 65 of the Act, if the Minister is satisfied that, inter alia, the criteria for a visa prescribed by the Act have been satisfied, the Minister is to grant the visa, but if the Minister is not so satisfied, the grant of the visa is to be refused. 5 At material times, s 36(2) of the Act provided the following criterion in respect of a protection visa: "A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." 6 In s 5 of the Act, "Refugees Convention" and "Refugees Protocol" (together referred to hereafter as "the Convention") are defined respectively as "the Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and "the Protocol relating to the Status of Refugees done at New York on 31 January 1967". The term "protection obligations" is not defined in the Act and is not a term used in the Convention. 7 The Convention is a treaty pursuant to which the "Contracting States" agree to apply the provisions of the Convention to "refugees". Sub-Article 1(A) of the Convention provides the following definition of "refugee": "For the purposes of the present Convention, the term "refugee" shall apply to any person who:…(2)…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;…" 8 Limitations upon the operation of the Convention definition of refugee are set out in, inter alia, sub-Articles 1(C), (D), (E) and (F). It was not contended that any of the foregoing sub-Articles applied to the applicant. 9 As a Contracting State, Australia has accepted the obligations at international law that arise out of accession to the treaty. Numerous obligations in respect of refugees are set out in the Convention, including an undertaking by a Contracting State not to discriminate against a refugee, and to offer a refugee some of the opportunities available to a national of that State. All of the obligations so undertaken may be said to come within a broad meaning of "protection obligations under the [Convention]", but having regard to the purpose of s 36(2), the phrase as used therein is to be taken to mean the direct, rather than indirect, obligations to protect a refugee imposed on Australia by the Convention. 10 On the hearing of the application, detailed and well-researched submissions were presented to the Court on behalf of the applicant by counsel appointed under O 80 of the Federal Court Rules to act pro bono publico. The Court was assisted by those submissions. 11 The applicant's claim that he feared persecution if returned to Iran was based on his apprehension of suffering significant ill-treatment or discrimination at the hands of Iranian authorities for his membership of a social group in Iran, namely, male persons of homosexual orientation. 12 The Tribunal accepted that homosexual men in Iran constitute a particular social group for the purposes of the Convention. 13 The Tribunal also accepted that the applicant is a homosexual who had engaged in homosexual activities since the age of 14. Since about March 1999 he had been in a steady relationship with a partner, a person he saw almost daily. 14 In the written statement of findings, evidence and reasons provided by the Tribunal pursuant to s 430 of the Act, the Tribunal set out following summary of the applicant's claims: "He states that there was a meeting place in a park called Daneshjoo in Tehran. He states that it was a place for homosexuals to meet. He states that the Basiji would raid the park and arrest anyone they suspected of being homosexual. He states that he realised that it was a risk to be there but it was possible to escape. He states that in about January 2000, he was in the park meeting his partner and the Basiji raided them and arrested ten of them, including his partner. He states that he was taken to a Basiji station and blindfolded. He states that at the station, they bashed him with an electric cable. He states that 3-4 people bashed him. He states that they accused him of being homosexual and that is why they bashed him. He states that they made him sign a document that he was not a homosexual and then they released him. He states that in about March 2000, he was watching some videos and having sex with his partner and his partner's mother came back to the house and she saw them. He states she came to his house and told his parents what the applicant had been doing. He states that his parents were religious and his parents became very angry and kicked him out of the house because of his homosexual activities. He states they threatened him because they said they were ashamed. He states they said he was najes, which means religiously unclean and because he was najes, he was not allowed to live with them any longer. He states that they said they should report him to the authorities, but he said he could not help being homosexual. He states that he went and lived with his grandfather for 3 months and then his father gave him some money and said this was his "share". He said that he had to leave Iran and his brother helped to find a smuggler for him to leave Iran. He states that he had thought about committing suicide but his brother said he should leave Iran and go somewhere he would be safe." 15 The Basiji are described in the US Department of State's Iran Country Report on Human Rights Practices (February 2001), at p.1, as a paramilitary volunteer force which act as a vigilante force to intimidate and threaten physically, demonstrators, journalists and individuals suspected of counter-revolutionary activities. It was known to have committed numerous serious human rights abuses. 16 The Tribunal accepted that events had occurred as described by the applicant in the Tribunal's summary set out above. 17 The Tribunal stated that it had considered "independent evidence" regarding the situation of homosexuals in Iran and then set out the substance of that information. The principal part of that information relevant to the circumstances of the applicant, read as follows: "The Islamic Penal Code prescribes execution in cases where homosexual intercourse has taken place between sane, willing adults and flogging in cases where there has been a homosexual encounter without intercourse. Both the 'active' and the 'passive' party are liable to punishment. In 1994 Amnesty International noted that it is difficult to obtain confirmed details in relation to the persecution of homosexuals in Iran. Amnesty stated that it does receive reports that homosexuals have been imprisoned or executed, but it has been difficult to obtain confirmation or further details on cases. Amnesty further noted that press reports from Iran have covered executions for offences which may have involved homosexual acts, but the terms used are often vague. DFAT [Department of Foreign Affairs and Trade] states that there have been no executions of homosexuals carried out in recent years. DFAT states that if the authorities became aware of practising homosexuals, they could suffer severe harassment and possible imprisonment. It goes on to state that homosexuality is not unknown in Iran, and authorities would be unlikely to bring charges unless an individual had been notably indiscreet or was of interest to them for other reasons. DFAT has recently confirmed this advice, stating that: 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. (DFAT, CIR No. 594/00 – 21 November 2000 CX 46890) DFAT's opinion is in accordance with information supplied to the Immigration and Refugee Board in Canada. The Board quotes Maarten Schild, the author of "Islam" in [Schmitt and Sofer's] Sexuality and Eroticism amongst Males in Moslem Societies (1992 Harrington Park Press, UK) who states that Theoretically, homosexual behaviour is sharply condemned by Islam, but in practice it is 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 offense. [sic] 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. (182-183)." 18 In respect of the passage from Schmitt and Sofer referred to by the Tribunal, it should be noted that in that extract Schild was commenting upon Islam in general, not Iran in particular. At pp.185-186 of the text Schild went on to say that, in respect of Iran, the Ayatollah Khomeini had asserted that homosexuals had to be eliminated because they were parasites and corruptors of the nation by spreading the "stain of wickedness". Schild also stated that "what occurred in Iran is certainly not typical of the attitude towards homosexuality in the whole spectrum of Islamic countries", thereby indicating that the situation for homosexuals in Iran was much more dangerous than in other Islamic countries. In the same text (at pp.67-69) it was stated that 100-200 homosexuals had been executed in Iran between 1981 and 1982. 19 Although there may be doubt as to how many homosexuals have been executed in Iran in recent years, there is no doubt that homosexuals have been executed since the current theocratic regime came to power. In Re GJ (Refugee Status Appeals Authority of New Zealand - Refugee Appeal No 1312/93 – 30 August 1995) the Authority noted that Arlene Swindler in Homosexuality and World Religions (Trinity Press, USA, 1993) at p.194 said: "Under Khomeini, hundreds of people were executed as homosexuals. Most of these were not gay at all…the fact that the accusation of homosexuality is used for the purpose of physically eliminating people not of the party line (is similar to the situation) in Nazi Germany." The Authority then stated (at p.6): "In a 1983 decision…the Verwaltungsgericht Wiesbaden (Administrative Court in Wiesbaden) (Judgment of Apr.26,1983, No. IV/I E 06244/81) held that it was undisputed that homosexuals can be and are executed in Iran. The court cited press reports of the execution of homosexuals, quoted from the Koran, referred to the applicability of Islamic law to the general population, and concluded that there is systematic punishment of homosexuals in Iran: Maryellen Fullerton, 'Persecution due to Membership in a Particular Social Group: Jurisprudence in the Federal Republic of Germany' (1990) 4 Geo.Immigra.L.J. 381, 408, and Maryellen Fullerton, 'A Comparative Look at Refugee Status Based on Persecution due to Membership in a Particular Social Group' (1993) 26 Cornell International Law Journal 505, 534. See also the 1986 decision of the Bundesverwaltungsgericht (Federal Administrative Court) reported as Case Abstract IJRL/004 (1989) 1 International Journal of Refugee Law 110 where the court found that the Iranian state treats homosexuals as 'counter revolutionary criminals' ". Under the heading "FINDINGS AND REASONS" the Tribunal said as follows: "The Tribunal accepts the independent evidence that homosexuality is specifically outlawed by the Islamic Penal Code which operates in Iran. The Tribunal further accepts that the penalties for homosexual activity specified in the Penal Code range from flogging to execution. This indicates that homosexuals in Iran may in theory face treatment amounting to persecution. Whilst the Tribunal accepts that homosexuals in Iran can be treated in a way which may amount to persecution, the Tribunal does not accept that this means every homosexual person in Iran necessarily has a well-founded fear of persecution. In particular, the Tribunal does not accept that the mere fact that homosexual conduct is illegal in Iran means that the applicant would have a well-founded fear of persecution if he were homosexual. Although the illegality of homosexual conduct in Iran is a relevant factor to consider, the Tribunal is still obliged to consider whether there is a real chance that the applicant would face persecution for a Convention reason if he returns to Iran. The independent evidence set out above, which the Tribunal accepts, 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 the Tribunal 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. … On the applicant's own evidence, he was able to lead an active homosexual lifestyle from the age of approximately fourteen until his departure from [sic] Australia over eight years later. On the applicant's own evidence he was able to socialise with other homosexual men. The applicant's evidence concerning the nature and extent of his sexual activities is consistent with the independent evidence about the relative tolerance with which homosexuality is treated in Iran, notwithstanding the impression given by the provisions of the Penal Code. The applicant claims that he is at risk of being arrested if he returns to Iran because he is a homosexual. The Tribunal accepts the applicant's evidence that he was arrested and mistreated because of his homosexuality in the past when he was once detained by the Basiji. However, the applicant states he was released by the Basiji after he provided a written statement he was not a homosexual and on his own evidence he was not pursued further by the Basiji. The Tribunal notes that the independent evidence, which the Tribunal accepts, states the park where the Basiji detained him is well known as an area where homosexual men in Tehran regularly go to meet other homosexual men. The Tribunal notes there is no independent evidence that men who frequent this park are regularly detained by the Basiji. In the light of this, the Tribunal finds that his detention on that one occasion was a random event and that, on the evidence, there is not a real chance that it will recur. … The Tribunal has considered whether and how the applicant would be able to continue to live as a homosexual man if he returned to Iran. Given that the applicant had no difficulty meeting other homosexuals and being very sexually active prior to leaving Iran, the Tribunal is of the view that he would be able to resume this lifestyle if he returned to Iran. The Tribunal accepts that the applicant would need to be discreet if he wished to have homosexual relationships in Iran. The Tribunal also accepts that in some circumstances the need to be discreet would support a conclusion that the applicant had a well-founded fear of persecution. (See Woudneh v Inder & MILGEA, unreported, Federal Court, Gray J, 16 September 1988 at 18-19, also Applicant A per McHugh J at 359-360 and Kirby J at 388). However, the Tribunal does not accept that in the applicant's case the need for discretion to avoid adverse consequences of itself amounts to persecution. On his own evidence the applicant was discreet in relation to his sexual activities in Iran. The applicant did not claim that the need to be discreet caused him any significant detriment or disadvantage. Having regard to all the circumstances the Tribunal is of the view that it is not unreasonable to expect the applicant to continue to be discreet in his homosexual relationships, to the same extent that he has been discreet in the past. The Tribunal notes 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. Overall, the Tribunal is of the view that the chance that the applicant faces persecution in Iran because he is a homosexual is remote and insubstantial. The Tribunal is therefore not satisfied that he has a well-founded fear of persecution for this reason." 20 There are two matters in the foregoing paragraphs of the Tribunal's reasons that indicate the Tribunal misunderstood the material before it in fundamental respects. 21 First, the Tribunal stated that "[t]here is nothing in the evidence before the Tribunal to indicate that a homosexual man in Iran is at risk of attracting the attention of the authorities merely for being homosexual". That statement overlooked the applicant's "evidence", that he had attracted the attention of the Basiji merely for being homosexual. Indeed, later in the foregoing passage the Tribunal said: "The Tribunal accepts the applicant's evidence that he was arrested and mistreated because of his homosexuality in the past when he was once detained by the Basiji." 22 A second, and related, misunderstanding of the material before the Tribunal occurred when the Tribunal stated that "there is no independent evidence that men who frequent this park are regularly detained by the Basiji". 23 The applicant's account, which the Tribunal accepted, was that Daneshjoo Park in Tehran was a place where homosexuals met and the Basiji would raid the park and arrest anyone they suspected of being homosexual. The applicant told the Tribunal that it was a risk to be there but it was possible to escape. It was plain that the applicant had said that a homosexual resorting to the park was at risk because, from time to time, the park was subjected to raids by the Basiji seeking homosexuals to arrest and assault. 24 Having accepted the applicant's account, there was no other material before the Tribunal on the conduct of the Basiji at Daneshjoo Park. 25 If by referring to the absence of "independent evidence" the Tribunal understood that there had to be more than the applicant's account before it, or that the applicant had to satisfy some evidentiary onus before that account could be considered by the Tribunal in assessing the degree of risk of persecution facing the applicant if he returned to Iran, that approach would have involved an error of law. (See: Abebe v Commonwealth (1999)197 CLR 510 per Gleeson CJ, McHugh J at [83].) 26 Properly instructed, on the evidence before it the Tribunal could have found that there was a real chance that a homosexual could suffer persecution at the hands of the Basiji if he continued to frequent a place such as Daneshjoo Park for the purpose of seeking the company of other homosexuals. 27 Influenced by the foregoing misunderstanding of the applicant's case, the reasons of the Tribunal disclosed a significant internal inconsistency. The Tribunal stated that the applicant's account of his conduct in Iran showed that in the past he had been "discreet in relation to his sexual activities". By that the Tribunal must have included within the description "discreet" the conduct of the applicant in meeting other homosexuals at Daneshjoo Park otherwise the Tribunal would have described that conduct as an overt declaration of homosexuality by the applicant, placing him at severe risk of persecution. The Tribunal then stated the applicant did not claim that the need to be discreet caused him any significant detriment or disadvantage. If the first proposition of the Tribunal was correct, then the second was plainly wrong and inconsistent with the finding made by the Tribunal. The applicant claimed, and the Tribunal accepted, that when apprehended by the Basiji at Daneshjoo Park, he had suffered significant detriment and disadvantage by being detained and flogged for being homosexual. The Tribunal accepted that the applicant had been taken to a Basiji station, blindfolded, and bashed by three or four men wielding an electric cable, who told him he was being bashed for being a homosexual. To secure his release the applicant had to sign a document renouncing his homosexuality. 28 If the Tribunal had held, contrary to its actual finding, that it was reasonable to expect the applicant not to conduct his homosexual lifestyle by attending Daneshjoo Park, or like places, to meet other homosexuals, such a finding, in itself, may have involved an error of law, given that the Tribunal had accepted that the practice of a homosexual lifestyle was protected by the operation of the Convention. To deny the applicant the means of meeting other men of homosexual orientation, similarly oppressed, would be to deny an essential activity integral to the definition of the social group. (See: Applicant LSLS v Minister for Immigration & Multicultural Affairs [2000] FCA 211 per Ryan J at [28].) 29 The foregoing misstatement, or misunderstanding, of the applicant's case was relied upon by the Tribunal to reach its ultimate conclusion that "the chance that the applicant faces persecution in Iran because he is a homosexual is remote and insubstantial". Central to that conclusion were the preceding conclusions of the Tribunal, based on misapprehension of the material before it, that the need for the applicant to be discreet in his conduct in Iran had not caused him detriment or disadvantage in the past and, therefore, it was not unreasonable to expect the applicant to continue to be discreet and to continue to be safe from harm. 30 The actual case the applicant put before the Tribunal was that if the past conduct of the applicant could be described as "discreet" then he had suffered a significant act of persecution despite the exercise of such discretion, and that there was a real risk that such persecution could occur in future. The applicant's case was that he was at risk of being identified as a homosexual and being persecuted by groups such as the Basiji, in particular if he attended places known to be areas of assignation for homosexuals. 31 Having accepted that homosexuals in Iran constituted a social group, and having accepted that past events had occurred as described by the applicant, the Tribunal had to put all of that material in the balance when assessing whether there was some degree of probability that an event could occur in future involving persecution of the applicant. (See: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ at 574-575.) 32 For the foregoing reasons, the case presented by the applicant was not duly considered by the Tribunal. As a result the Tribunal erred in law by failing to consider the extent to which the applicant, conducting himself as a homosexual, was at risk of being identified as a homosexual and arrested and assaulted for that reason, in particular if he attended a place known to be frequented by homosexuals, and by failing to consider whether the chance of such an occurrence represented a real chance, that is to say, a prospect that may be less than on the balance of probabilities, that he could suffer persecution in future if returned to Iran. (Guo per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ at 572-573.) 33 It follows that by reason of the misunderstanding by the Tribunal of the material before it, the Tribunal failed to address the right question and did not apply the law correctly to that material. Ground for review has been demonstrated under s 476(1)(b) (absence of jurisdiction); s 476(1)(c) (absence of authority) or s 476(1)(e) (incorrect interpretation or application of the law) of the Act. (See: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 per McHugh, Gummow, Hayne JJ at [76]‑[85].) 34 The decision of the Tribunal must be set aside and the matter remitted to the Tribunal for redetermination. 35 The reasons of this Court are published throughout the world on the Internet and, therefore, the applicant has not been identified in the title of the proceeding. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.