SAAF v Minister for Immigration & Multicultural Affairs

THE COURT: 1 This is an appeal from a decision of Finn J made on 4 October 2001. His Honour dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 13 February 2001. By that decision the Tribunal affirmed the decision of a delegate of the respondent, the Minister for Immigration & Multicultural Affairs, not to grant the appellant a protection visa. 2 The appellant is a citizen of Iran who was born on 1 January 1968. He arrived in Australia on 1 February 2000. 3 Before the Tribunal the appellant claimed that he is a homosexual and feared that he would be arrested because of this if he returned to Iran. He claimed that he was detained once because he used to do women's hair. He also claimed that he is at risk of persecution in Iran because he applied for refugee status in Australia and his photograph appeared in the newspaper at the time of riots at the Woomera Immigration Reception and Processing Centre. 4 A number of grounds were argued before the primary judge. None of these grounds are now pursued. 5 The appellant sought to amend the grounds of appeal to include only the following: "The stated rejection by the RRT from consideration of any possible evidence corroborative of the appellant's claim that he had a well founded fear of persecution was: 1.1 beyond the jurisdiction of the RRT pursuant to s 476(1)(b) of the Migration Act; 1.2 not authorised within the meaning of s 476(1)(c) of the Migration Act; 1.3 an error of law within the meaning of s 476(1)(e) of the Migration Act." 6 The respondent did not appose the amendment. Hence, the Court granted leave at the beginning of the appeal to amend the notice of appeal in the terms set out above. 7 As the proposed ground of appeal is limited, it is unnecessary to outline the entire reasoning of the Tribunal. 8 However, the Tribunal commenced its reasoning by stating generally that it found the appellant's evidence unsatisfactory. The Tribunal member said: "In my view significant aspects of the applicant's evidence were internally inconsistent and inconsistent with the independent evidence. Overall, I do not find the applicant to be a credible or a reliable witness in relation to various aspects of his claims." 9 On the specific question of persecution for the reason that the appellant is a homosexual, the Tribunal began by doubting that the appellant was in fact homosexual. The Tribunal explained the basis of this doubt. It arose from the apparent failure of the appellant to claim to be a homosexual at the initial interview on arrival. Despite these doubts, the Tribunal accepted that the appellant is homosexual for the purpose of further consideration of his claims. 10 The Tribunal also accepted that homosexual men in Iran constitute a particular social group within the meaning of the Convention. It considered the independent country evidence, and concluded that authorities in Iran tolerate homosexual activity as long as it is not overt and not in public. The Tribunal observed that on the appellant's own evidence he had been able to lead an active homosexual lifestyle for over sixteen years. 11 The Tribunal then dealt with the appellant's claim that, in November 1998, a homosexual party to which he had been invited was raided just as he was about to arrive. The appellant said that he saw people being arrested. He saw his boyfriend being handcuffed and taken away. The appellant went into hiding. After a few days he contacted his father. His father told him that he (his father) had been detained and that the authorities had told him the appellant was the ringleader of a homosexual group. 12 The Tribunal rejected the appellant's claim concerning the alleged raid at the party at the appellant's friend's house. The Tribunal said: "Mr [SAAF] claims that he is at risk of being arrested if he returns to Iran because the authorities raided a party at his [friend's] house. I do not accept Mr [SAAF]'s claim in this regard. Firstly, when he was interviewed upon arrival in Australia, Mr [SAAF] did not claim that he had fled from Iran fearing arrest or that he would be arrested on return to Iran. I accept that for a variety of reasons asylum seekers may be reluctant to disclose full details of their claims on arrival in Australia. This reluctance may arise from asylum seekers' previous experiences with the authorities in their own country, their concern about being sent back to where they came from, or distress and anxiety in relation to the situation they find themselves in. In some cases, they may have been given quite specific instructions about what they should and should not say on arrival in Australia. I accept that reluctance to provide full details of claims is, in many cases, quite understandable. In addition, the record of the interview may be inaccurate for a variety of reasons, including interpretation errors. Accordingly, it may be at times inappropriate to place weight on the record of the interview. However, in this case Mr [SAAF] claimed that he fled from Iran to save his life and to seek refuge in some other country. Whilst I accept that Mr [SAAF] may not have provided full details of his claims during this interview, I consider it implausible that he would not have mentioned, however tentatively, that he feared arrest and execution if he returned to Iran. The general nature of the claims made by Mr [SAAF] in his initial interview strongly suggests that he did not fear being arrested and executed upon return to Iran. Secondly, Mr [SAAF]'s evidence concerning the raid on [his friend's] house is inconsistent with the independent evidence referred to above, which indicates that the Iranian authorities do not actively pursue homosexuals and that homosexuals would have to behave with great indiscretion in public in order to attract adverse attention. According to Mr [SAAF], his friend took great care to ensure that their gatherings were discreet. In my view, it is implausible that the authorities would have known what was happening in the house, let alone that they would have taken steps to raid the house and detain those present. Mr [SAAF] claimed that they might have been informed on. However, I consider it highly implausible that a person who had attended the type of party described by Mr [SAAF] would inform the authorities of this and thus reveal their own participation. Furthermore, given that according to Mr [SAAF] the gatherings at [his friend's] house had been occurring for some twelve months without any apparent difficulty, I consider it implausible that a neighbour would have informed the authorities." 13 It is the next paragraph in the Tribunal's reasons which forms the foundation of the appellant's submission made on this appeal. The Tribunal said: "I note Dr Al Jabiri's [the appellant's representative] submission that Mr [SAAF]'s father could possibly provide a statutory declaration confirming his son's evidence. However, in my view it would be a relatively straightforward matter for Mr [SAAF] to contrive such a statement, either by giving his father instructions in relation to what he should write, or by arranging for someone else to send a statement and then claiming that the statement had come from his father. As I cannot place any weight on Mr [SAAF]'s own evidence concerning the alleged raid on the party and the arrest of his friends, I do not accept that a statement such as that posited by Dr Al Jabiri would be of any assistance to me." 14 Counsel for the appellant contended that, given the Tribunal's finding that homosexuals in Iran who are discreet do not run the risk of persecution, the only way the appellant could satisfy the Tribunal of a well founded fear of persecution was to establish that he was a "ringleader" of an "indiscrete group". Counsel contended that the evidence available on this subject was in part direct, namely, the appellant's own evidence of his observation of the arrest of members of his group, and hearsay, namely, the report by his father a few days later that the authorities had identified the appellant as a ringleader of a targeted group. 15 The Tribunal rejected the direct evidence given by the appellant in this respect. 16 As to the Tribunal's view that any evidence from the appellant's father would be of no assistance, the appellant contended that the Tribunal fell into error. The written submission expressed it thus: "This reasoning is illogical. Whether or not corroborative evidence is ultimately accepted may be a non-reviewable question of fact. But to determine at the outset that it will not even be considered is illogical and an error of law. The RRT is required to (at least) consider possible corroborative evidence. [emphasis in original] See Gamaethige v MIMA (2001) 183 ALR 59, 109 FCR 424, [2001] FCA 565, per Finkelstein J at para 54. The error of law is reviewable because otherwise it precludes all possibility of a finding as to the relevant jurisdictional fact, namely whether or not there was any real ground for believing that the appellant is at risk of persecution. 'If there is error of law in a finding on the existence of a jurisdictional fact, the resultant decision under s65 would be without jurisdiction (s476(1)(b) or would not be authorised by the Migration Act (s476(1)(c)) or would involve an error of law (s476(1)(e)).' Gamaethige v MIMA (supra) per Finkelstein J at para 31. See also MIMA v Eshetu (1999) 196 CLR 611, per Gummow J at 651 (para 130).'" 17 In the circumstances of this case we consider that the Tribunal did not fall into any error which comes within s 476(1)(b), (c) or (e) of the Migration Act 1958 (Cth). The appellant did not in fact produce any statutory declaration from his father for the consideration of the Tribunal. 18 In the passage under consideration the Tribunal was saying, in effect, that it would not adjourn the proceedings to allow further evidence to be obtained because it had arrived at a particular view on all of the material before it. It was open to the Tribunal to determine that no further delay was justified. There had been adequate opportunity to obtain the evidence from the appellant's father. The claim concerning the raid on the party by the security forces was made in the application for a protection visa lodged on 5 October 2000. In that application there was mention that the appellant's father had been told by the authorities that the appellant and his friend were the ringleaders of a homosexual group and were encouraging people to corruption. The hearing before the Tribunal occurred on 17 January 2001 and the appellant's adviser provided written submissions to the Tribunal on 12 February 2001. Ms Maharaj, who appeared as counsel for the respondent, indicated that the submissions may have been provided on 9 February 2001. 19 Whether to permit the appellant time to provide further evidence was a matter for the exercise of discretion by the Tribunal. In deciding not to permit any further delay the Tribunal took into account the nature of the evidence already before it. That was a relevant matter for the Tribunal to take into account. 20 It would have been better if the Tribunal had expressed itself in terms of refusing to further delay the application rather than to reflect on the likely value of the evidence which might have been obtained from the father. It was unnecessary for the Tribunal to make any comment about the quality of the possible evidence because no such evidence had been provided. 21 Nothing said in these reasons would justify the Tribunal refusing to consider evidence produced to it, and to consider that evidence on its merits. The passage from the judgment of Finkelstein J relied upon by the appellant concerned the obligation on the Tribunal to properly assess corroborative evidence which was before it. Finkelstein J had nothing to say about the situation in a case such as this where that possible corroborative evidence was not before the Tribunal. 22 The appeal must be dismissed with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.