Khanmeeri v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant, a citizen or Iran, arrived in Australia on 4 April 2000. On 5 October, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs ("the Department") pursuant to the provisions of the Migration Act 1958 (Cth) ("the Act"). That application was unsuccessful; on 13 November 2000, a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refused to grant him the visa. On 22 November 2000, the applicant applied to the Refugee Review Tribunal ("the Tribunal") for an order of review of the delegate's decision. That application was unsuccessful but his further application to the Federal Court succeeded. On 18 June 2001, the Court set aside the decision of the Tribunal and remitted the matter to the Tribunal, differently constituted, for reconsideration. 2 On his second appearance before the Tribunal, the applicant was again unsuccessful. On 5 September 2001, the Tribunal published its reasons in which it affirmed the decision of the delegate not to grant a protection visa to the applicant. On 26 September 2001, the applicant once more sought the intervention of this Court; on that day he filed his application (which had been prepared without the benefit of professional assistance) seeking an order of review of the second decision of the Tribunal. The lodgment of his application preceded the introduction of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) ("the 2001 Amendments"). As that legislation only has effect from 2 October 2001, it will not be necessary to have regard to its provisions. 3 The applicant sought the protection of the Convention because of his membership of a particular social group and because of his political beliefs. He said, and the Tribunal accepted his evidence, that he was a practising homosexual. That activity, having regard to the harshness of the Iranian laws that deal with homosexuals, made him, so he claimed, a person who had a well founded fear of being persecuted because of his membership of a particular social group. 4 The applicant, who was aged twenty-one when his second application was considered by the Tribunal, claimed that, immediately prior to leaving Iran, he had shared an apartment, which was rented in his name, with three other men. One was his homosexual partner, Reza. The other two men, Ameer and Mohammad were also homosexual partners. He told the Tribunal that he and Reza "were discreet in relation to their sexual activities." There had been one occasion when he and Reza had been assaulted in the street by a group of men. The applicant added, somewhat significantly, that there had been many such attacks on people "who were seen as adopting western ways". The applicant conceded that the attack was not caused by a perception that he and Reza were homosexuals and the Tribunal's finding that the attack did not constitute persecution for a Convention reason has not been challenged. 5 In a statement that was attached to his application for a protection visa, the applicant had written at [164]: "… I was expelled from school because the school authorities found out about my homosexuality." 6 The applicant said that as a schoolboy, he had been wrongly expelled from school when the authorities mistakenly thought that he and another boy had engaged in some form of homosexual activity. It was sports day and he and the other boy were found alone in the change room, partly undressed. The applicant, who was insistent that there had been no misbehaviour, said that as a result of the incident, he and the other boy were referred to the Department of Education who then referred them to the "Office of Prosecution of Corruption". The referral resulted in the applicant being banned from all schools: he was, so he claimed, denied a right to complete his education. He said that he reacted badly to this treatment. He felt suicidal; he was filled with hatred; he was the subject of scorn from his neighbours and he was denied the opportunity of doing further studies. The applicant claimed that this incident resulted in him being the subject of discrimination that amounted to persecution. The Tribunal found that the applicant's expulsion from school and his subsequent reactions caused him distress but it found that it did not amount to persecution for a convention reason. 7 The applicant said that during the student demonstrations in Tehran in July 1999, Reza, Ameer and Mohammad had protested in the streets with other students; he had not protested at that time, but only because he was absent on military service. He said that, during these riots, Reza had been detained for three or four days during which time he was beaten by members of the police who had arrested him. He then said that, when Reza returned, all four of them started to write leaflets which were critical of the government. The applicant said that he typed these leaflets and helped with their distribution. This continued for about eight months until, as he claimed, Reza and Mohammad were arrested while they were distributing the leaflets. He has not seen Reza since. He said that Ameer rang him on the day that Reza and Mohammad were arrested and told him of the arrests. Ameer told him to destroy all the leaflets that were in the apartment together with the photocopier and the typewriter that they had used in the preparation of the leaflets. The applicant said however, that he was too frightened to return to the apartment. Instead he went to the home of his father. The next day he phoned his landlord who said that the security forces had been to the apartment. They had searched it and removed the leaflets and the printing equipment. The applicant said that he left his father's home that day and stayed with one of his friends. The next day he spoke by telephone to his brother who told him that the security police had gone to his father's house and that they were looking for him (the applicant). He said that his brother told him that he should leave Iran. Fearful that he would be arrested, the applicant, with the help of his brother and a smuggler, left Iran, using his own passport. 8 The applicant told the Tribunal that when he arrived in Australia and was interviewed by an officer of the Department, he did not want to reveal his homosexuality; he claimed: "… I felt shy about my sexual relationship and frightened about my political activities … If I went back to Iran, I would face execution for my political actions and for openly living in a homosexual relationship." Elsewhere in his evidence, he said that he felt that he could not go back to Iran as he would be arrested and tortured because of the equipment that had been found in the apartment and because there had been some compromising photographs of him with Reza in the apartment. 9 The Tribunal found that homosexuals in Iran can be considered a social group within Iranian society. Counsel for the Minister conceded that, in appropriate cases - and this was one such case - that finding was correct. This concession accords with decisions of single judges of this court to the same effect: see MMM v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 324 ("MMM") per Madgwick J. Although the applicant in MMM, a Bangladeshi, was unsuccessful in his application, his Honour discussed the details of his application upon the premise that a Bangladeshi national who was a practicing homosexual was capable of being regarded as a member of a social group for the purpose of the Refugees Convention. 10 In F v Minister for Immigration and Multicultural Affairs [1999] FCA 947, Burchett J considered an application for an order of review by a man who claimed to be a homosexual from Iran. Although the application was unsuccessful, it was implicit from his Honour's remarks that homosexuality can be the linking event which can create a social group. Speaking of the Tribunal's decision his Honour said: "It did not deny, although it expressed a readily understandable doubt, that the applicant was actually a homosexual. Nor did it deny that, in general, homosexuals may be described as a social group …" 11 In Satinder Pal Singh v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 742, Mansfield J considered the lot of an Indian man who had been found by the Tribunal to be a homosexual from the Punjab. Most of his Honour's reasons were devoted to the limited extent to which homosexuals were liable to be prosecuted in India and to the prospect that the applicant could, in any event, be relocated from the Punjab to one of the larger Indian cities. However, it was clear that his Honour was of the view that in certain circumstances, homosexual people could be regarded as members of a social group for the purposes of the Convention: (see also the several authorities on this subject to which his Honour referred in par 9 of his reasons). 12 The applicant said that he did not want to live in secrecy as one who is active homosexually needs to do in Iran; he regarded himself as incompatible with Iranian society. That attitude does not sit well with the authorities to which I have just referred. They consider that it is reasonable to expect a measure of discretion to be exercised by those who wish, contrary to the law of their country, to engage in homosexual activity. 13 The Tribunal was satisfied: · that the applicant was a national of Iran; · that he had participated in sexual activities with other males in Iran; · that he identified himself as a homosexual; · that he had a subjective fear of returning to Iran on the basis of his homosexuality "and/or his political opinion"; and · that he suffered from depression and other psychological disorders due to, or exacerbated by, his detention and his "intense desire not to return to Iran". It was not, however, satisfied that the applicant had a well founded fear of persecution because of his homosexuality or because of his political opinion.