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[2002] FCAFC 306
Federal Court of Australia (Full Court)
2002-05-08
French J, Gyles JJ, O'Loughlin J
Original judgment source is linked above.
O'LOUGHLIN J 1 The appellant, who is now aged twenty-six, arrived in Australia without appropriate documents approximately twelve months ago. He said that he left Iran in April 2000 and that his first interview by an officer of the Department of Immigration and Multicultural Affairs was conducted on 29 June 2000. He applied for a protection visa but his application was refused by a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister"). His subsequent applications for a review, first by the Refugee Review Tribunal and later by a judge of this court, French J, were both unsuccessful. He now seeks the intervention of this Court. 2 The substance of the appellant's claim for protection under the Refugee Convention was that he is homosexual; that he is therefore a member of a particular social group and that he faces a real chance of persecution in Iran because of his homosexuality if he were to be returned to that country. However, in his first interview with an officer of the department, he made no mention of his alleged homosexuality; nor did he suggest that he had ever been in trouble with the authorities in Iran. 3 In his subsequent application for a protection visa there was a material change in his claims. He there set out in some detail his history of homosexual activity which allegedly started when he was a child of twelve. He claimed that his family knew of his homosexuality and that his brother had threatened to report him to the authorities. He also claimed that he and his sexual partner had been discovered by the guards in an act of homosexual intercourse; later changing that claim by saying that they were only naked when the guards entered their room. Somehow, so he said, he managed to escape from the guards when their attention was distracted. It was then that he decided that he must leave Iran. 4 When the Refugee Review Tribunal ("the Tribunal") challenged him about his failure to disclose the information about his homosexuality to the departmental officer, the appellant told the Tribunal that he had not previously divulged his real reasons for leaving Iran because other people from his community group had told him that Australia was on good terms with Iran and that he should avoid telling the Australian authorities that he had escaped from the Iranian authorities. The appellant also told the Tribunal that he had not mentioned his homosexuality to the Departmental officer because both that officer and the interpreter were women, and he could not talk about what he called his problem in front of the women as he was too shy. 5 At the hearing before the Tribunal the appellant changed his story a second time. In his statement that had accompanied his application for a protection visa he said that when he was young, his cousin - a boy who was five years older - had asked him to engage in sex. He had complied with his cousin's request but he could not recall whether it was out of fear or out of need. Before the Tribunal, however, he said that when he was young he had a desire to be homosexually active, and that he was looking for someone for a partner. Despite the fact that the appellant had omitted any reference to his homosexually in his initial interview, the Tribunal was nevertheless prepared to consider his application on its merits. The Tribunal recorded in its reasons that it was aware that homosexual acts are illegal in Iran and that they could be severely punished - even by death. It then noted, on the other hand that the burden on the prosecution was heavy and that it included the need to produce four witnesses, but then the Tribunal conceded that there might be cases where this heavy burden could be met by means of collusion and dishonesty. 6 The next thing that the Tribunal did in its reasons was to refer extensively to country information about Iran and its attitude to homosexuality. The contents of the reports to which the Tribunal referred indicated that the Iranian authorities did not actively pursue people who were engaged in homosexual acts unless they publicly proclaimed their homosexuality or were gravely indiscreet. The Tribunal then proceeded to consider in some detail the personal history of the appellant as he had given it to the Tribunal. It recounted the detail of his homosexuality at school - of being caught by a teacher and taken to the principal who informed the appellant's father. This led, so the appellant said, to him throwing a stapler at the principal. The stapler missed its intended target but struck a photograph of the religious leader instead. That, rather than his sexuality, led to his instant dismissal from school. 7 I come now to the Tribunal's conclusions. The Tribunal said that it found the appellant's reasons for changing his story unconvincing. It described him as a highly unreliable witness. As to that finding, however, the tribunal had something to say, and I quote what it was that the Tribunal said: "Such a conclusion overall requires much stronger grounds and in the course of considering the applicant's later claims on their own merits, in isolation of his entry interview claims, the Tribunal found many such grounds."
8 The Tribunal then listed the many discrepancies and inconsistencies in the appellant's stories. The difficulty which the appellant faces in this Court - and the difficulty that he faced when he appeared before French J - was that the tribunal had come to the opinion that it could not rely on what the appellant had told it. In the system of Australian law this was the responsibility that had been given first to the departmental officer and then to the tribunal. First, the departmental officer had the task of investigating his claims for refugee status. That involved an intense inquiry into his personal affairs. 9 Likewise the Tribunal had exactly the same task to perform but if, after those two inquiries, the applicant had still not been accepted as a refugee, his only recourse was to come to the Federal Court in an attempt to convince the court that the Tribunal had made some error of law when it reached its decision. The law in Australia does not permit the Federal Court, to once more, go into the personal history of the appellant. The Court can only interfere when it is satisfied that some mistake of a legal nature has been made. 10 In this case the Tribunal had listened to what the appellant had to say; it had read the reports about Iran; it had recognised how severely homosexuality is dealt with in Iran and yet, despite all of those things, it found it could not believe the appellant when he said that he was in fear of being returned to Iran. It was for those reasons that French J could not interfere when the appellant appeared before him. This is one of those cases where, even after making every allowance for the difficult circumstances of an applicant for refugee status, the discrepancies in the appellant's story were so glaring that it was impossible to accept his basic claim. French J could do no more than conclude that the decision at which the tribunal arrived was one that was properly open to it. 11 Before this Court, the appellant was unrepresented. He was also unrepresented before French J. He nominated two grounds of appeal to this Court but neither of them identified the error of law to which I have referred. In the first place he asserted - incorrectly - that neither the Tribunal, nor French J, had considered what he described as the jeopardy and discrimination caused by the Islamic regime of Iran and also the traditional social condition of his country to homosexuality; but, that is wrong, because the Tribunal had in fact extensively canvassed every aspect of that subject. Secondly, the appellant claimed that the tribunal had not considered his reasons for failing to explain his problem at the initial interview. Once again that assertion is wrong. The Tribunal considered his explanation but it rejected it. 12 Today the appellant addressed the Court, identifying what he described as mistakes in the Tribunal's reasons. The matters to which he referred, such as the events at school, the fact that he only lived at a particular house for eight months, the circumstances under which he came to Australia, are matters which are not of importance to the final decision of the Tribunal. Because they were not material to the Tribunal's final decision they are not matters which would justify the intervention of this Court. It is my opinion that his appeal to this Court must be dismissed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin.
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
SPENDER J 13 I agree. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
GYLES J 14 I agree. For reasons I endeavoured to express in the case of NABC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 539, I might have myself been inclined to first consider whether s 474 of the current Migration Act 1958 (Cth) was a barrier to the success of the appeal but, under the circumstances, it is not necessary to explore that question. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.
Solicitor for the Respondent: Australian Government Solicitor
WAEO
Minister for Immigration & Multicultural Affairs