RRT decision
55 Much of the Magistrate's criticism of the RRT's decision was based on its choice of language. For the purposes of discussion it will be necessary therefore to set out some passages from the RRT's reasons. Those parts the subject of the Magistrate's criticisms will be indicated in bold. Emphasis by the RRT itself will be non-italicised.
56 The RRT accepted that male homosexuals in Iran constitute a "particular social group" within the meaning of the Convention.
57 The RRT said:
"The Tribunal does not accept on the country information available to it that a man who regards himself as one or other kind of homosexual in Iran, and/or who is suspected by others of being the same, would face a real chance of being persecuted unless caught performing sexual acts, such as but not exclusive to sodomy, with another man. Even if he were caught, it would have to depend on who caught him and in what circumstances. Taking the Applicant's claims at face value, it was usually his own or his partner's parents doing the 'catching' and they never took the discoveries outside the family, a fact, by the way, that appears to make the Applicant's father's last act of denunciation seem highly out of character. The 'persecution', if it can even be called that, in the respective instances of Yaqob and of the Applicant's family's supermarket helper, was short-lived and contained to a beating from the Applicant's father, as well as a period of ostracism. In the great scheme of things a beating or two from one's father is very harsh, but the Applicant also described a man who was sick and old, and who has not beaten him again since a claimed discovery some years ago, and on that occasion only briefly. The so-called 'persecution' in the instance of the affair with the chandelier factory workshop supervisor resulted in nothing more than being shut out of the factory. That is harsh treatment, to be sure, leaving one without a job until he or she can find another. However, it is not persecution for the purposes of the Convention. Businesses 'fire' people; they do sometimes simply because they can. Just because the Applicant was 'fired' over a relationship with his supervisor does not make his 'firing' persecution. In all instances, the evidence shows, the Applicant generally found somewhere else to live and/or work and get on with things, quite often in the close and voluntary company of the people he originally offended. He seemed to find sexual partners wherever he worked and never had to resort, say, to parks at night or other entrapment risks. He did not subsist at society's margins.
Putting aside, for the moment, the Applicant's claim about his father's late act of denunciation, just days before he left Iran, his evidence repeatedly indicates that he did not face persecution simply for reasons of being caught in the act of sexual relation with other males. He only ever faced passing periods of conflict and social strain. The Tribunal concludes that the Applicant should by now have learned not to do it in shops and factories or in apartment basements, and he no longer has to risk exposure in the army, for he has long since lived as a civilian. He is an adult and capable of renting his own premises. The independent evidence argues very persuasively that he would be able to conduct sexual relations with other men in private places such as his own home or in the homes of others. In his own evidence about Yaqob he was able to sustain a sexual relationship in private for many months even when he was a teenager.
The Tribunal is therefore not satisfied that the Applicant faces a real chance of persecution in Iran merely for being homosexual or for seeking homosexual relations in that country.
The Applicant's position is, of course, that matters have now gone too far to allow him simply to return to Iran and discreetly take up life there as a homosexual male. He claims his cover is irrevocably blown by his father, that the police and Revolutionary Court have been brought in and that all these parties await his re-appearance in Iran in order to take up where they left off, bringing him to justice that could involve even the death penalty. He has presented a document that he says confirms all this."
58 The RRT then discussed some discrepancies as to the dates of the respondent's departure from Iran and continued:
"Meanwhile, the Applicant's father's action on this occasion appears, as noted above, quite out of character with his behaviour on earlier occasions. The Applicant claimed that when his father was confronted with his sexual activities in the shop, he simply acted more or less as he did on the earlier occasion when the Applicant was caught with Yaqob: getting furious, beating him and throwing him out of home. It does not ring true that he waited several years before bringing the authorities into the matter, let alone on an occasion when, as shown in his written statement, the Applicant was not actually having sex with anyone. No matter what the Applicant says about the neighbours witnessing the argument, their presence there does not satisfactorily argue the extremity of his father's act in walking off to court, gathering family witnesses and briefing them along the way, airing his dirty laundry in public, as it were, and putting together, to his best ability in the time available, a case for his son to receive the death penalty.
That all this is, in one or two versions of events, supposed to have happened during the Nowruz holiday, when shops are closed and courts are also closed, puts very great strain on reasonable levels of credulity.
And yet, the document tendered by the Applicant on 14 May 2001, purporting to be some kind of official memorandum, or communiqué, from the police to the Revolutionary Court about the Applicant's 'sodomy case', appears to argue that the denunciation did occur and that the authorities were following it up."
59 The RRT then records a number of criticisms of the document. First, the document reports a police visit to the respondent's home on 6 April 2001, a visit the respondent claimed to have heard about the next day over the telephone. That conversation would therefore have taken place on 7 April yet he claimed to have departed Iran no later than 2 April. Secondly, the document refers to an "unnumbered referred order" from the Revolutionary Court. The RRT thought it "inconceivable" that that court would issue "unnumbered" orders. Thirdly, the document reported that the police were guided to the respondent's family home by the "complainant". Since the complainant was allegedly the respondent's father who would know that the respondent had already fled, taking the police there would appear to have been pointless. Fourthly, the respondent failed to satisfy the RRT that what appeared to be an internal document should ever have been available to any member of his family, even to his father. The RRT recorded that it sought the opinion of an independent expert who consulted other experts located in a relevant Australian post abroad. The opinion was that that document was fraudulent. The RRT continued:
"The Applicant's evidence regarding the authorities' response to his father's hot-headed denunciation is plainly at odds with independent country information. As the Applicant puts it, the authorities appear to have acted as though there were only one defendant in this case. Sodomy takes (at least) two. There is no evidence, for example, of the Applicant's father having directed the authorities to anyone else's address, not even for questioning. Three witnesses simply calling a person a homosexual appear to have no law in Iran under which to bring a case against him. Being only three men, they do not even have the competence, let alone in the absence of a co-defendant four reputable witnesses to an act of sodomy between, say, two identified men, might have a case."
60 The RRT concluded that the documentary evidence of the "sodomy investigation" against the respondent was "totally fabricated". It concluded that the document was falsified evidence of an event that never occurred. Even if it were wrong as to this, it was satisfied on the basis of country information that the accusations of the respondent's father, whatever they were, would not be sufficient to lead to a conviction of the respondent. This was not only because of the lack of four witnesses to an actual alleged act of sodomy, but also to the evident lack of attention in Iranian courts to sodomy cases over the last ten years. The RRT considered that the respondent invented the story of the fight with his father in the week before he departed Iran to lend to the story of his departure a sense of urgency. Further the RRT considered there were discrepancies in the accounts given of his first sexual encounter with the friend of his father. The RRT said
"…it still seems odd that the Applicant, in spite of all the fear and shame, nevertheless repeatedly found intimate, exclusive and often quite long term sexual partners within every institution with which he was associated since the age of ten: his father's circle of close friends, his school, the chandelier factory, the army and his father's shop."
61 The RRT was "strongly struck" by the fact that the respondent appeared to have no knowledge or familiarity with the "world" of male homosexuals in Iran. He showed no familiarity with the culture of homosexuals in Iran such as practices referred to in the IRBDC reports, the parks, the underground networks etc. The RRT said:
" The Tribunal has already acknowledged that there is no tried and true test for establishing an individual's innermost personal convictions. A person can boast a political opinion and articulate it in a most unconvincing way and yet be utterly sincere. The Tribunal thus well understands that it should not expect all or any homosexual men in Iran to take an interest, for example, in Oscar Wilde, or in Alexander the Great, or in Naguib Mahfooz, or in Greco-Roman wrestling, or in the songs of Egypt's tragic muse Oum Khalsoum, let alone, say, in the alleged mystique of Bette Midler or Madonna. There are always political, social and potentially intangible cultural considerations to take into account. However, the Tribunal was surprised to observe such a comprehensive inability on the Applicant's part to identify any kind of emotion-stirring or dignity-arousing phenomena in the world around him. In his evidence, absolutely nothing in the world speaks to him in his claimed isolation from Iranian society. It is strange that a purportedly isolated and ostracised person does not even appear to have looked for such things.
The Tribunal stresses that it was not looking for evidence of engagement with 'high culture'.
The Tribunal put all of these elements together: the inconsistencies about the first sexual experience; the uniformity of the relationships and of most of their conclusions; the complete absence of a 'gay' circle of friends; lack of evident contact with the 'gay' underground; lack of other forms of identification. Cumulatively, and in some instances on their own, these elements strongly argue a lack of reality.
Of albeit less significance, the Tribunal notes that other potential indicators of life's realities are also missing from the Applicant's account: whilst he found fulfilling partners at every stage of his career, his evidence shows no unrequited attractions, no unwelcome suitors, no mistakes. Even ignoring this, his story is simply unbelievable.
The Tribunal has taken care to consider the Applicant's claims in the underlying assumption that he has had exclusively homosexual contact in the past and may well desire it in future, but the Tribunal is not at all convinced in this assumption. Taken as a whole, the evidence it has heard from the Applicant does not leave it remotely confident in concluding that he is homosexual."
62 The RRT further noted the discrepancy between the respondent's claims before the hearing and his initial interview which made no mention of homosexuality. The respondent had not provided an ultimately satisfactory explanation for the shift in claims. Finally there was the "single, strongest item of evidence" that the respondent was entitled to obtain a passport and use it to depart Iran legally.