Nezhadian v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant, Farshid Farsi Nezhadian, is an Iranian who had his application under the Migration Act 1958 (Cth) ("the Act") for a protection visa refused by the Refugee Review Tribunal. Insofar as presently relevant, the grounds of that application related to his homosexuality and to the treatment in Iran of homosexuals and of homosexual activity. 2 The Tribunal accepted that Mr Nezhadian was a homosexual. Nonetheless it rejected his claim that the Iranian authorities were interested in him and that he fears arrest and persecution if he returns to Iran. That claim was considered to have been fabricated. 3 The amended application to this Court proceeded on three fronts, only one of which was seriously arguable as I indicated at the hearing at which the applicant was legally represented. 4 Before considering the three grounds advanced, the Tribunal's findings relevant to this application should be noted. Having accepted that homosexuals constituted a particular social group for the purposes of the 1951 Convention Relating to the Status of Refugees, but that for a member of such a group to meet the Convention requirements, he must have a well-founded fear of persecution for reasons of his membership of that group, the Tribunal went on: "I accept the independent evidence referred to above and that provided by the adviser that indicates that homosexuality is specifically outlawed by the Islamic Penal Law that operates in Iran. I accept that the penalties for homosexual activity specified in the Penal Law and the Ta'azirat range from flogging to imprisonment. This indicates that homosexuals in Iran may in theory face treatment amounting to persecution. I accept that homosexuals in Iran can be treated in a way that may amount to persecution. However, I do not accept that this means every homosexual person in Iran has a well-founded fear of persecution. I do 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 because he is homosexual. The illegality of homosexual conduct in Iran is a relevant factor to consider but I am 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 I accept, 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 me 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 (including a park in central Tehran that authorities are aware of). The applicant said it is true that if you behave discreetly and not provocatively you may not have difficulty. The information provided by the adviser discusses the legal sanctions. It concludes; "The fulfilment of all these conditions seems almost out of the question, leading to the conclusion that in practice it is only in very exceptional circumstances that persons are convicted and punished for adultery, and thus for homosexual behaviour." On the applicant's own evidence, he was able to lead an active homosexual lifestyle from the age of approximately sixteen until his departure to Australia. He had three sexual partners. He was able to socialise with other homosexual men in his neighbourhood. He attracted sexual partners without the need to find partners in health clubs or similar places. He got to know his partners by visiting them at home and through their visits to his home. Authorities never questioned him and he had no specific difficulty with them. His family never questioned him and he encountered no difficulty. This 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. I have 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 sexually active prior to leaving Iran, I am of the view that he would be able to resume this lifestyle if he returned to Iran. I accept that the applicant would need to be discreet if he wished to have homosexual relationships in Iran. I also accept 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, I do 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 before he came to Australia. The applicant did not claim that the need to be discreet caused him any significant detriment or disadvantage although he did indicate that he did worry. I can understand that the applicant does not like the limits imposed upon his behaviour in Iran (he said for example that it is not possible to go around without a shirt) but I do not accept that such limits amount to persecution in the Convention sense. Having regard to all the circumstances I expect that the applicant would continue to be discreet in his homosexual relationships and behaviour, to the same extent that he has been discreet in the past. Indeed 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, I am of the view that the chance that the applicant faces persecution in Iran because he is a homosexual is remote and insubstantial. I am therefore not satisfied that he has a well-founded fear of persecution for this reason."