WAIH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1239

FEDERAL COURT OF AUSTRALIA WAIH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1239 MIGRATION – judicial review – protection visa – Iranian national – claimed fear of persecution on account of homosexuality – disbelieved by Refugee Review Tribunal – whether breach of natural justice in Tribunal deciding question without further reference back to appellant or adviser – no breach of natural justice – no other appealable ground – appeal dismissed

WAIH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W108 OF 2003 FRENCH J 29 OCTOBER 2003 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 108 OF 2003

BETWEEN: WAIH

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 29 OCTOBER 2003

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. 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 108 OF 2003

BETWEEN: WAIH

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE: 29 OCTOBER 2003

PLACE: PERTH

REASONS FOR JUDGMENT 1 The appellant is an Iranian national who arrived in Australia by boat on 25 October 2000. He was interviewed by an officer of the Department of Immigration and Multicultural Affairs on 31 October 2000. He was asked in that interview why he had left Iran. His recorded answer was as follows: 'We had a poor life. Not enough money. There was a shortage of finding jobs. I wanted to make a better life for myself.' Asked what reasons he had for not wanting to return to Iran he said: 'There was a shortage of jobs there. The youth of may (sic) age were drug dealing due to addiction/money. I did not want to be involved in those things.' 2 On 25 January 2001, the appellant applied for a protection visa. He supported his application with a statutory declaration. In that declaration he said he is a homosexual. He said that he had engaged in sexual activity since he was about 14 years of age. He was born in February 1978. He said he had a number of relationships with men when he lived in Iran. He had a relationship with one man which started in about March 1999. After the relationship started he saw the man nearly every day. There was a meeting place in a park called Daneshjoo in Tehran. It was a meeting place for homosexuals. He said Basiji would raid the park and arrest anyone they suspected of being homosexual. The Basiji were described by Lee J in W133/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 395 at [15] 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.' It was therefore risky to be at Daneshjoo Park, but it was possible to escape. 3 In January 2000 he was in the park meeting with his partner when the Basiji arrived and arrested ten people including him and his partner. He said he was taken to a Basiji station where he was bashed with an electric cable. He said he was accused of being homosexual. They made him sign a document stating that he was not a homosexual and then they released him. 4 The appellant said that in March 2000, he was watching some videos and having sex with his partner when his partner's mother came back to the house and saw them. She told his parents what they had been doing. His parents became angry and made him leave home. They also threatened to report him to the authorities. He lived with his grandfather for the next three months. Then his father gave him some money and told him he had to leave Iran. He said his brother helped him to find a smuggler to get him out of Iran. At the same time he said a friend, to whom he had given some satellite equipment, was arrested for having the illegal equipment and told the authorities he had obtained it from the appellant. 5 Eventually, the appellant obtained a visa to Indonesia and on 22 August 2000 he left Iran. He paid a people smuggler $US4000. He travelled to Indonesia and from Indonesia by boat to Australia. He said he had not explained his case when he first arrived because the interpreter was an Afghani lady. He was too embarrassed to tell her the real reason he had left Iran. He said he was afraid to return to Iran because he could not change himself. He could not go and live with his family and was at risk of arrest for being a homosexual anywhere in Iran. He heard that homosexuals in Iran were stoned. He said he was also afraid that owners of satellite systems that he had installed might report him. This would cause problems for him where he had tuned the system to the Mujahadeen channel. 6 The appellant's application for a protection visa was refused on 27 February by a delegate of the Minister. On 21 March 2001 he applied to the Refugee Review Tribunal ('the Tribunal') for review of that decision. The Tribunal, however, affirmed the refusal to grant him a protection visa on 24 April 2001. Lee J set aside the Tribunal decision on an application for judicial review on 5 April 2002. Lee J's reasons for setting aside the Tribunal decision were set out in the magistrate's decision and were as follows: '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 a group such as the Basiji, in particular if he attended places known to be areas of assignation for homosexuals. 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 & Ethic Affairs v Guo (1997) 191 CLR 559 per Brennan CJ. Dawson, Toohey, Gaudron, McHugh, Gummow JJ at 574-575). 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. 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.' 7 The decision of the Tribunal was set aside and the matter was remitted back to the Tribunal for decision. The second Tribunal hearing proceeded on 6 June 2002. The appellant was represented before that Tribunal. On 18 July 2002 the second Tribunal again affirmed the decision not to grant a protection visa. It said in its reasons: 'The Tribunal does not accept that the applicant is a homosexual, nor does the Tribunal accept that the applicant faced harm in Iran because of his claimed homosexuality or that he faces harm because of his claimed homosexuality on his return to Iran.' 8 The Tribunal considered that the appellant was not credible in certain key aspects of his claim for protection. It found his description of his homosexual lifestyle from age 14 to 23 years of age to be unconvincing. In the hearing he had described his homosexual activity. He had told the Tribunal he travelled by public transport to meet his friends at Daneshjoo Park at around 4 o'clock in the afternoon. They would spend two hours there deciding who would partner whom. He told the Tribunal he and his partner would then go to a private home to engage in sex before going back to his own home at 10 o'clock in the evening. 9 The appellant told the Tribunal that he followed this routine for five nights a week for nine years. The Tribunal considered it implausible that a person would maintain such a routine five times a week for nine years. This was especially so given that these nine years covered his adolescence and his transition from school to work. Given that he knew all of the people whom he met in the park, the Tribunal did not consider that meeting in the park several times a week for nine years was necessary. 10 Although the appellant told the Tribunal that there were other homosexual meeting places in Tehran, he did not know the names of any of those places. Given that the appellant claimed to have lived in Tehran all his life and to have been part of a group of homosexuals for nine years, the Tribunal thought he would have a greater knowledge of homosexual meeting places in Tehran. The Tribunal also took into account the manner in which the appellant described his homosexual activity to the Tribunal. 11 When asked to describe the rest of his group, the appellant simply said they were like him. He did not elaborate about their names, their schooling or their jobs. The Tribunal also thought that his claim to have been detained by the Basiji and to have been threatened by his parents was implausible. It did not believe that the appellant would have gone to the same place for some nine years, five times a week, without previously encountering the Basiji, and then when he was arrested, that he was released one and a half hours later. It also considered it implausible that the Basiji would have required him to sign a statement that he was not a homosexual. It noted that there was a five month delay from the time he actually left the country and the time when his family allegedly threatened to report him to the authorities. It also noted that he told the Tribunal during the hearing that in that five month period he kept on meeting his friends in the park. 12 The Tribunal considered it implausible that on the one hand the appellant was in such fear of his life from March 2000 that he had to leave the country, but on the other hand he kept going to the park. Taking all the points together, the Tribunal rejected the appellant's claim that he engaged in a homosexual lifestyle in Tehran. It also rejected his claim that he faced harm from the Basiji. It also did not accept his explanation for not saying something about all this at his first interview in Australia. 13 The appellant then applied for review of the second Tribunal's decision. That application was eventually heard by a Federal Magistrate. The learned magistrate dismissed the application on 4 March 2003. In his reasons, the learned magistrate noted that the second Tribunal decided to consider the appellant's claim from the beginning. Although the first Tribunal had accepted that the appellant was homosexual, the second Tribunal made it clear that it was going to reconsider that issue, and the learned magistrate found that there was no unfairness in the second Tribunal doing that. Certainly as a matter of law, the second Tribunal was not obliged to accept or adopt any of the findings of the first Tribunal. The learned magistrate said that after examining the transcript before the second Tribunal, the whole of the evidence was devoted to the appellant's claims about his homosexual life in Iran. He said that it would have been clear to the appellant's representative that the Tribunal was not limiting itself to matters not considered by the first Tribunal. The appellant was being required to satisfy the second Tribunal that he was indeed a homosexual. 14 The learned magistrate referred to the transcript of proceedings in the second Tribunal and a discussion between the appellant's representative and the Tribunal member. In that discussion the Tribunal member told the appellant's adviser that it did have reservations about whether or not he was a homosexual. The appellant's adviser said he was at a bit of a loss as to how the appellant's homosexuality could be proven. He put to the Tribunal member that there had been a claim which was consistent all the way through and that this was not a case in which a whole new section of claims had suddenly appeared, although he accepted that it was missing from the initial interview. 15 The appellant's adviser put to the second Tribunal that these initial interviews are really often quite quick. He also put to the Tribunal that the appellant had been embarrassed about speaking about his homosexuality in front of an Afghan woman interpreter. There was then some further discussion about written submissions made on the appellant's behalf. The appellant's adviser then said: 'That is realistically all I can say at this stage.' The Tribunal then said: 'Okay. Well, what I might do is call a close to the hearing and - I mean, if I firm up a particular view and I am going to rely on a particular piece of information, then I will put that to you to put to the applicant, if I proceed with that.' Then after a further short discussion, the Tribunal said to the appellant: 'I will think carefully about everything you have told me today at the hearing, and if there is a particular adverse facts (sic) or country information that I intend to rely on, I will pass that on to your adviser and give you the opportunity to reply.' However, the Tribunal did not again call upon the appellant or his adviser and proceeded to its decision which I have already referred to. 16 In argument before the learned magistrate it was said that the Tribunal had not advised or warned the appellant that it proposed to use material adverse to his case. The learned magistrate referred to the documents in question the first of which he found was before the first Tribunal. He could not see how there was any lack of fairness in the second Tribunal referring to that document in its reasons for decision. The document in question was from the Canadian Immigration and Review Board about the situation of homosexuals in Iran. 17 A second document relied upon by the second Tribunal however, could not have been before the first Tribunal. This evidently referred to the legal penalties in Iran attached to homosexual behaviour and appears to have supported the Tribunal's finding that homosexuality was illegal and punishable in that country. It was referred to in the Tribunal's conclusion that the Basiji would not have required the appellant to sign a statement that he was not a homosexual. The learned magistrate said that a careful reading of that document found it consisted mostly of extracts of the relevant Iranian law code. It also referred to other legal doctrines about the prosecution of offences involving homosexuality. This would not have come as any surprise to the appellant's advisers. The learned magistrate said: 'I do not consider the fact that the Tribunal offered the applicant an opportunity to comment on any adverse material to strengthen the applicant's case in respect of this particular document.' The learned magistrate also rejected the argument that the appellant was not given an opportunity to be heard before the Tribunal had actually formed its views on whether he was a homosexual. 18 The learned magistrate, while saying that the Tribunal's remarks to the appellant's adviser and to the appellant were well‑meaning but unfortunate, did not think that they gave rise to any procedural unfairness. Indeed, as the learned magistrate pointed out, the Tribunal had referred to giving an opportunity to the appellant to comment on any particular piece of information or particular adverse facts that it might rely upon, which he had not had an opportunity to comment on. This did not involve a promise by the Tribunal to allow the appellant to put further argument before it formed a final view about whether he was a homosexual or not. Certainly the Tribunal is not required to invite further submissions before it makes its decision when it has heard all the evidence. I did invite submissions from counsel for the respondent on this point but I was satisfied that in the end there is nothing in it. 19 The learned magistrate dealt with arguments by the appellant's counsel that the Tribunal did not base its decision on logically probative evidence. The learned magistrate correctly said that these complaints were really an attempt to invite the court to substitute its own view of the facts for that of the Tribunal. He also rejected an argument that the Tribunal was biased and had a closed mind. It was not obliged to take into account the findings of the first Tribunal and its decision not to take those findings into account and to make its own findings could not give rise to a reasonable apprehension of bias. 20 In the end, I can see no appealable error in the learned magistrate's reasons for decision. The appellant's notice of appeal discloses no ground upon which an appeal could be allowed. For these reasons the appeal will be dismissed. The appellant is to pay the respondent's costs of the appeal. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.