Khanmeeri v Minister for Immigration & Multicultural Affairs

homosexuality 14 The Tribunal referred to the Islamic Penal Code, as approved by the Islamic Consultancy Parliament, and noted that Article 110 provided that the punishment for sodomy is death and that the Sharia judge is to decide on how the execution is to be carried out. 15 A report from the United Kingdom Home Office that was published in April 2001 was quoted by the Tribunal on the subject of homosexuality. It contained the following passage: "6.27 Homosexuality is forbidden in Sharia law. Sodomy is punishable by death if both parties are considered to be adults of sound mind and free will. It must be proven by either four confessions from the accused, the testimony of four righteous men who witnessed the act or through the knowledge of a Sharia judge 'derived through customary methods'. If the accused repents before the witnesses testify, the penalty 'will be quashed'." Whilst supporting the fact that homosexual behaviour was illegal in Iran, the Australian Department of Foreign Affairs and Trade ("DFAT") reported in November 2000 that: "… there was no active prosecution policy by the Iranian Government on Homosexuality identity and/or acts." In the same report it added: "Homosexuality is not unknown in Iran and [the] authorities would be unlikely to bring charges unless an individual had been notably indiscreet or was of interest to them for other reasons." 16 After discussing these and many other items of country information, the Tribunal then addressed the objective element that must be considered when assessing whether a fear is well-founded. It said: "Whilst the Tribunal accepts that homosexuals in Iran can be treated in a way which may amount to persecution under Islamic law , 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 automatically leads to a finding that the applicant would have a well-founded fear of persecution just because he may be 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." As to this, the Tribunal was of the opinion that: "… a homosexual man is not at risk of attracting the attention of the authorities merely because of his homosexuality. Indeed, the evidence suggests that homosexual activity, as long as it is not overt and public, is tolerated and not uncommon in Iran." Based upon this assessment of the evidence, the Tribunal concluded that it was not satisfied that there was a real chance that the applicant would face persecution in Iran on the basis of his homosexuality. The basis for the Tribunal's decision with respect to the issue of homosexuality was its assessment that any risk of persecution was remote. Ms Layton QC, counsel for the applicant, challenged this finding (which appeared in several areas of the Tribunal's reasons). She argued, in effect, that the apparent reluctance of the authorities to date to pursue cases that involve homosexual practices, would not necessarily preclude them from acting in the future. Her submission is accurate to a limited extent; one can imagine the situation of a person in Iran publicly proclaiming his homosexuality in an overt manner. The authorities would react in such circumstances. But there is no suggestion of such behaviour in this case. The Tribunal had to assess the applicant's circumstances based on the information before the Tribunal. That information pointed to inactivity on the part of the authorities except in those cases where there had been some form of public disclosure or indiscretion. Where, as here, the parties had been discreet, it was within the province of the Tribunal to find, as it did, that any chance of prosecution or persecution by the authorities would be remote and insubstantial. If that general statement is then applied to the particular circumstances of this applicant, it is highly relevant that he did not suggest any form of harassment or questioning by the authorities subsequent to the school incident; that absence is a clear indication that he is not of interest to the authorities. 17 The applicant had claimed that he feared persecution because of his homosexuality. He had based his fear on Reza's arrest and on his (the applicant's) assumption that Reza would have been tortured and would have, under torture, told the authorities about their relationship. The applicant knew nothing about Reza at the time of the Tribunal hearing. He had not heard from Reza or about him since he left Iran. The Tribunal was not prepared to accept this section of the applicant's evidence; it said that it did not find it plausible that the applicant and Reza, who were discreet about their relationship, would leave incriminating photographs and films in their apartment. I find myself taken aback by that particular finding. Common experience shows how careless people can be. But a wrong finding of fact (if indeed it is properly so categorised), cannot be a ground for intervention by this Court. 18 The Tribunal would not accept that there was a likelihood that Reza would tell the authorities about the nature of his relationship with the applicant. The Tribunal's view was as follows: "Even if there were magazines with sexual themes in their residence and it was raided, that does not mean that the authorities would be interested in prosecuting the applicant for homosexual activities for which there was no other evidence. The Tribunal is not satisfied that Reza would have told the Iranian authorities that he and the applicant were involved in homosexual activities. Nor is the Tribunal satisfied that the authorities would have become aware of the applicant's homosexuality even if they had found magazines or photographs in the applicant's home." 19 The Tribunal also considered what effect, if any, there might be upon the applicant, as a result of him having made an application for refugee status, should he be returned to Iran. The Tribunal asked the applicant why he believed that he would be questioned by the authorities in Iran upon his return, given that he had left Iran legally, using his own passport. According to what the Tribunal said in its reasons, the applicant replied merely by saying that it could well happen. The Tribunal quoted a report from the Canadian Immigration and Refugee Board by its Research Directorate dated 9 July 1999 on this subject: "According to a document provided by an official of Citizenship and Immigration Canada (CIC), to a 24 February 1998 Information Session on Country Conditions in Iran, CIC officials in Iran 'have seen no evidence that failed claimants, persons who have illegally exited from Iran, or deportees face any significant problem upon return to Iran. Several times in the recent past, senior government officials have declared that all Iranians living abroad are welcome to return home without fear of reprisal. …and the Foreign Ministry's Consular Department has confirmed that applying for asylum abroad is not an offence in Iran'." The present applicant's position is somewhat the better in this regard, since he left Iran legally, using his own passport.

political opinions 20 I turn now to consider the question of the applicant's political beliefs. 21 The applicant said that he and his friends were opposed to the repressive regime that controlled Iran. He said that he had written, typed and distributed leaflets criticising the Government. He now fears that he stands a real chance of being persecuted for reason of his political opinions in the event that he is returned to Iran. The Tribunal accepted the applicant's evidence when he said that he disliked the authoritarian regime in Iran. It also accepted that he had become involved in political activities. However, it was sceptical of his evidence about the extent of his involvement in political activities. In the first place, it said that "it is highly unlikely that the applicant would have taken part in any anti-Government activities, including pamphlet distribution, prior to November 1999. (November was the month in which he concluded his two years of military service). The Tribunal was also sceptical of the applicant's claims that he purchased a photocopier so that he could make copies of anti-government pamphlets and that he distributed pamphlets personally, either before or after he completed his military service. Although I am not sure what the Tribunal had in mind by its use of the word "sceptical", the Tribunal did state, with clarity, that it was not satisfied that the applicant had been involved in political activity, other than, perhaps, providing moral and some physical support for his housemates.

grounds of review 22 When the matter was called on for hearing, counsel for the applicant sought and obtained leave to file an amended application for an order of review. The discussion that follows relates only to the grounds that are set out in that amended application. 23 The first ground in support of the application for an order or review was, in reality, a series of discrete grounds. In the first place, it was alleged that the Tribunal failed to assess "the whole of the uncontroverted evidence relating to the combined effect of the applicant's homosexuality, his involvement in political activities and the consequences of a return of the applicant to Iran". It was claimed that the Tribunal had erroneously dealt with these elements discretely and that it was wrong to do so. Even if this submission were to be wholly accurate, I do not see how it can assist the applicant's cause or how it might have constituted error on the part of the tribunal. It is true that the Tribunal gave, at different stages of its reasons, separate consideration to the subjects of "a social group" and "political opinion" but it is difficult to comprehend that it would have been better or more appropriate to consider the matters collectively. There was, in fact, a measure of interconnection in that, for example, according to the applicant, his apartment was raided for a political purpose but the security forces found - or may have found - some material that may have incriminated the applicant by suggesting that he had been involved in homosexual activity. 24 There was, in my opinion, a decided advantage to the applicant in having his two claims independently assessed. Neither was dependent upon the other; rejection of one would not necessarily have meant rejection by the Tribunal of the other, whereas a consideration of the claims jointly might have reduced the chances of the applicant before the Tribunal by 50 per cent. In any event, the Tribunal had said in its reasons that it had taken all the applicant's claims into account, "both individually and cumulatively". For example, it accepted that the applicant had a subjective fear of returning to Iran "on the basis of his homosexuality and/or his political opinion". It also joined the twin issues of homosexuality and political opinion when it said: "The Tribunal is required to determine whether there is a real chance that the applicant will be persecuted if he returns to Iran on the basis of his membership of particular social group and/or his political opinion." 25 Towards the end of its reasons, the Tribunal again addressed the two issues jointly when it said: "The applicant told the Tribunal that his political involvement could result in his persecution both of itself as well as combined with his homosexuality." This ground of appeal cannot succeed. 26 As part of the first ground of appeal, it was next submitted that the treatment meted out to the applicant as a schoolboy, as a result of the incorrect accusation of homosexual behaviour, amounted to persecution against him on the ground of implied homosexuality. The incident at school was an isolated incident, wholly disassociated with his later conduct as an active adult homosexual. Although there is authority to the effect that a single act can amount to persecution, I do not consider that the conduct of the school authorities could be so classified so as to engender in the applicant a fear of persecution in the event of his return to Iran. Nor did he make such a claim; his fear was based on his later conduct with Reza. 27 As a further part of the first ground of appeal, it was claimed that the Tribunal failed to make findings of fact "on the uncontroverted evidence" with respect to eight subject matters. The first two dealt with the incident that occurred at the school and I have already stated my findings on that subject. The next three can be considered together. It was said that there had been no findings about the purchase of the typewriter, the raid by the security forces on the apartment or the police visit to the home of the applicant's father. However, each of those matters was referred to by the Tribunal as part of the narrative of events that the applicant had said were relevant to his claim. A fair reading of the whole of the Tribunal's reasons would probably lead to the conclusion that the Tribunal had accepted each of those facts - but it is not necessary to make a determination on that point. The task of the tribunal was to make findings on whether or not the applicant held a well-founded fear of persecution for a convention reason if he were to be returned to Iran. It met that task; it made findings adverse to the applicant on that issue. It was not necessary for the Tribunal to make incidental findings on each and every item of evidence. 28 It was next alleged that the Tribunal failed to make a finding to the effect that, having contacted his brother after leaving Iran, the applicant had learnt that neither his brother nor Reza's family were aware of Reza's whereabouts. The Tribunal did not descend to that detail in its reasons but it did state that the applicant had not heard of or about Reza since he left Iran. I do not consider that the absence of such a finding is a critical matter. The Tribunal does not have to address every aspect of the material that was placed before it for its consideration. 29 The remaining two complaints related to the country information and the treatment of homosexuals in Iran and to the risk on re-entry to Iran of questioning by the authorities. The Tribunal, in my opinion, sufficiently addressed both of these subjects in its reasons. 30 The next category of complaints in the first ground of appeal was that the alleged failure to take into account the eight subject matters to which I have just referred and the failure to take into account the various ways in which homosexuals can be treated in Iran, and the specific way in which the applicant might be treated, amounted to an error of law. In my opinion, all these matters were properly considered by the Tribunal and have already been addressed in these reasons. The Tribunal went into great detail in considering the applicant's claim; its reasons covered thirty-eight pages. The issues that the Tribunal had to consider were twofold. First, did he have a well-founded fear of being persecuted for reason of his membership of a particular social group? That translated into the question: did he have a well-founded fear because of his homosexuality? The Tribunal accepted that he had a fear but after reciting its summary of the material that was before it, it concluded that his fear was not well founded. Its reason for concluding that his fear was not well-founded was that it was satisfied from the country information that the Iranian authorities did not have an active policy of pursuing homosexuals so long as they were discreet - and the applicant had said that he and Reza were discreet. The second issue that the Tribunal had to consider was whether the applicant had a well-founded fear of being persecuted for reason of his political opinion. On this subject, the Tribunal did not believe the main part of the applicant's story. It said: "However, it is not satisfied that the applicant was involved in political activity other than, perhaps providing moral and some physical support for his housemates. The Tribunal is not satisfied that the applicant would be targeted by the authorities on account of his political activities prior to his departure from Iran were he to return." 31 The Courts have directed that Tribunals should take a benevolent attitude when considering applications for refugee status. However, and so long as Tribunals remain aware of their responsibilities, it is difficult for a review court to question a Tribunal's finding on credibility. 32 An oft-quoted starting point is taken from Professor Hathaway's The Law of Refugee Status (1991) at 84: "First, the decision-maker must be sensitive to the fact that most refugees have lived experiences in their country of origin which give them good reason to distrust persons in authority. They may thus be less than forthright in their dealings with immigration and other officials, particularly soon after their arrival in an asylum state. The past practice of the [Immigration Appeal] Board of assessing credibility on the basis of the timeliness of the claim to refugee status, compliance with immigration laws, or the consistency of statements made on arrival with testimony given at the hearing is thus highly suspect, and should be constrained in [a] contextually sensitive manner …" [citations omitted] In Sujeendran Sivalingam v MIMA (1998) FCA 1167, the Full Court cited the above passage from Professor Hathaway's work having said immediately beforehand, at 13, said: "We accept that refugee cases may involve special consideration arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia." In Re The Minister for Immigration and Multicultural Affairs; Ex parte Abebe (1999) 197 CLR 510 at 577-8, Gummow and Hayne JJ said: "It is necessary always bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself." In W168/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 538, the Full Court dealt with an appeal involving a decision of the Refugee Review Tribunal which found that the Sri Lankan appellant could not be believed because of inconsistencies in the accounts given by him to the delegate and to the Refugee Review Tribunal. Lee J said at [10]: "An application for a protection visa is not determined by a judicial proceeding in which all relevant evidence is collected, presented and tested by parties to the proceedings. Determination of an application for a protection visa is an administrative function on limited material and limited inquiry, and the process does not provide a foundation on which a finding on credibility may be made with assurance. (See: S Kneebone, The Refugee Review Tribunal and the Assessment of Credibility: An Inquisitorial Role (1998) 5 A J Admin L 78.)" His Honour then referred to the passage from Professor Hathaway's work to which I have already referred to earlier in these reasons, saying at [12]: "… adverse decisions on credibility by the Tribunal should be restricted to the most obvious cases if the risk of injustice to applicants is to be avoided." 33 Sometimes a bare statement by a decision maker that a claimed circumstance is "not credible" or is "implausible" may cloak the failure of the decision-maker to address and resolve a material question of fact: see W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679 and Thevendram v Minister for Immigration and Multicultural Affairs [2000] FCA 1910. Nevertheless, findings on the issue of credibility remain the province of the Tribunal and it is, as I have said, exceptionally difficult for a Review Court to question them. As Gleeson CJ said in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, at [4]: "Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive." The responsibility of the Tribunal was spelt out by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham 160 (2000) 168 407 at [67] where his Honour said: "If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the subset reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the work 'implausible'. The disbelief arose from the Tribunal's view that it was 'inherently unlikely that the events had occurred as alleged." 34 In the case that is now under review, the decision of the Tribunal was that the applicant was not entitled to refugee status. Its reasons for its decision, influenced, in part, by its findings on the applicant's credibility, were that there was no real chance that the applicant would be persecuted for reason of his political opinion. The primary judge in Hossain v Minister for Immigration and Multicultural Affairs [2001] FCA 46 had held that he was not entitled to interfere with, or reverse, a factual finding of the Tribunal where the Tribunal said that the applicant was lacking in credibility. The Full Court said that the primary judge in coming to that conclusion was "plainly correct"; see also He v Minister for Immigration and Multicultural Affairs (1997) 72 FCR 342 at 344 per Davies J. 35 The Tribunal did not believe the applicant when he said that he was an active participant in the preparation and distribution of the leaflets. When a Tribunal has stated that it does not believe a particular aspect of an applicant's evidence, no detailed reasons need be given. The Tribunal is not required to state why it did or did not accept individual pieces of evidence. These observations disposed of the next aspect of the applicant's submissions which formed part of the first ground. It was submitted that the Tribunal had failed to have regard to relevant matters, namely, the detail provided by the applicant about the contents of the pamphlets and the incriminating photographs in the apartment. 36 The second ground for review was as follows: "The Tribunal made findings in relation to which there was no evidence contrary to Section 476(1)(g) and 476(4) of the Migration Act 1958 (Cth) (the Act), namely that the 'Tribunal was not satisfied that the applicant was involved in political activity other than providing moral and some physical support to his housemates'." There then followed, by way of particulars, a series of claims which, if they had been accepted by the Tribunal, might have caused it to arrive at an opposite conclusion. There is however, a short answer to this particular ground for review. This is not a "no evidence" point at all. The lack of satisfaction on the part of the Tribunal meant that it was not prepared to make a particular finding that would have or might have assisted the applicant. This is a case where the applicant asserted that he had played an active role in the political activity. Admittedly, there was material before the Tribunal, such as the purchase of equipment and the preparation of the leaflets in an apartment which the applicant occupied with the others. This material might have been used to assist the applicant if it were not for the fact that the Tribunal did not believe him. The Tribunal was entitled to make its assessment of the applicant on the material that was before it. There is nothing in its decision which could justify the intervention of this Court. Prior to the 2001 amendments to the Act, the occasions upon which this Court could set aside a Tribunal's decision in relation to refusal to grant a protection visa were limited to those errors of law as identified in the former subs 476(1) of the Act: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146] per Kenny J as a member of a Full Court. As her Honour noted concerns by the primary judge about the sufficiency of the Tribunal's explanation for an opinion that it formed about a particular subject matter can "rarely form the basis for a finding of error of law [146]. Those sentiments are, of course, in harmony with what Brennan CJ, Toohey, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272: "… the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed …[A]ny court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision." 37 The application is dismissed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin.

Date of Hearing: 21 December 2001, 31 January 2002