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MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa - well-founded fear of persecution for reasons of membership of particular social group - whether there was a real chance of persecution in the future - whether the applicant was a person to whom Australia owed protection obligations - whether the Tribunal failed to afford procedural fairness - whether the Tribunal was obliged to warn the applicant that it was relying on material adverse to the applicant - credibility of applicant's evidence - whether certain documents relied on were material to the Tribunal's decision - whether the Tribunal was bound to comply with a stated intention to follow a particular procedure - whether the Tribunal based its decision on logically probative evidence - whether the applicant's complaints constitute Wednesbury unreasonableness - whether the Tribunal approached its task with a closed mind - whether the Tribunal made a jurisdictional error.

WAIH v Minister for Immigration [2003] FMCA 40 (4 March 2003)

WAIH v Minister for Immigration [2003] FMCA 40 (4 March 2003)
Last Updated: 19 March 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAIH v MINISTER FOR IMMIGRATION
[2003] FMCA 40



MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa - well-founded fear of persecution for reasons of membership of particular social group - whether there was a real chance of persecution in the future - whether the applicant was a person to whom Australia owed protection obligations - whether the Tribunal failed to afford procedural fairness - whether the Tribunal was obliged to warn the applicant that it was relying on material adverse to the applicant - credibility of applicant's evidence - whether certain documents relied on were material to the Tribunal's decision - whether the Tribunal was bound to comply with a stated intention to follow a particular procedure - whether the Tribunal based its decision on logically probative evidence - whether the applicant's complaints constitute Wednesbury unreasonableness - whether the Tribunal approached its task with a closed mind - whether the Tribunal made a jurisdictional error.



Sun Zhan Qui v Minister for Immigration (1997) 81 FCR 71

Minister for Immigration and Multicultural Affairs v Anthonipillai [2001] FCA 274

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30, 190 ALR 601

WAEJ v Minister for Immigration [2002] FCA 1180

WAAG v Minister for Immigration [2002] FMCA 191

Minister for Immigration v SBAN [2002] FCAFC 431

NADR v Minister for Immigration [2002] FCAFC 293

Re Minister for Immigration ; Ex parte `A' (2002) 185 ALR 489

Applicant:
WAIH



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 210 of 2002



Delivered on:


4 March 2003



Delivered at:


Sydney



Hearing date:
14 February 2003 via videolink to Perth and Melbourne

Judgment of:
Raphael FM


REPRESENTATION

Counsel for the Applicant:
Mr J Kennan



Counsel for the Respondent:


Mr J Allanson



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in the sum of $4,250.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ 210 of 2002

WAIH


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is an Iranian who arrived in Australia on 25 October 2000. He applied to the Department of Immigration for a protection visa on 25 January 2001. A delegate for the Minister refused the visa and that refusal was reviewed by the Refugee Review Tribunal which confirmed the delegate's decision on 24 April 2001. The decision of the Tribunal was subjected to review by Lee J in the Federal Court. On 5 April 2002 the court set aside the decision and remitted the matter to the Tribunal differently constituted to be determined according to law. The Tribunal considered the matter and made its decision on 18 July 2002. That decision was appealed to the Federal Court for review on 31 July 2002. The Federal Court made the usual order for directions requiring the applicant to file an amended application or a written statement of reasons why the RRT decision was wrong on 6 September 2002 and on 23 September 2002 transferred the matter into this court.

2. In his application for a protection visa the applicant responded to the question "Why did you leave your country of nationality?" by saying:

"We had a poor life. Not enough money. There was a shortage of finding jobs. I wanted to make a better life for my."

In response to the question "Why did you choose Australia as your destination?" the applicant answered:

"I use to here they were good and nice people. The respect human being. They were giving residency visas, that's why I came here."

In response to the question "Do you have any reasons for not wishing to return to your country of nationality" the applicant answered:

"There was a shortage of jobs there. The youth of may age were drug dealing due to addition/money. I did not want to be involved in those things."

3. The applicant had typed out and translated for him, a statement found at [CB 13] in which he refers to having to quit studies against his will and wishing to migrate in order to continue his education. He refers to lots of problems and continual struggle with a group called the Basijis. He referred to being taken to the Basijis base for a week and beaten.

4. On 25 January 2001 before he was interviewed by the Minister's delegate the applicant made a statutory declaration in which he stated that he had been a homosexual from the age of about 14 when he commenced a relationship with a friend that lasted approximately eighteen months. He had another relationship with a man that commenced in about March 1999. The applicant referred to meeting other homosexuals at Daneshjoo Park in Tehran which he claimed that he frequented with his partner and other friends. In about January 2000 he was picked up in the park by the Basiji, arrested and bashed. The Basiji made him sign a document stating that he was not a homosexual and then he was released. He continued a relationship with his partner. In March 2000 they were interrupted by his partner's mother who told his parents about the relationship. His parents threw him out of the house and threatened to report him to the authorities. He went to live with his grandfather for three months when his father gave him some money and told him to leave Iran. His brother helped him find a smuggler and he escaped using a passport which he had obtained approximately two years before when his aunt had told him that she might be able to find work for him in Dubai. At [14] of the statutory declaration the applicant says:

"I did not explain my case when I was first interviewed because the interpreter was an Afghan lady and I was embarrassed to tell her about this."

And at [15]:

"I am afraid to return to Iran because I cannot change myself. I cannot go and live with my family and I am at risk of arrest for being a homosexual anywhere in Iran. I heard that homosexuals in Iran are stoned."

5. The applicant also made a claim for asylum on the basis that he feared persecution from being an installer of satellite dishes.

6. The Minister's delegate took the view that it was unlikely that the applicant would be arrested by the Iranian authorities. He did not accept that he would have been reported to the authorities by the other boy's parents. The delegate relied on country information which indicated that although the law imposed penalties ranging from death to 100 lashes for homosexual offences the writer was unaware of any cases of individuals being charged with or convicted of homosexual acts, execution or other forms of punishment for such.

7. The delegate found that the applicant was not wanted by the Basiji or any other police or government authority and was not a person to whom Australia owed protection obligations.

8. The applicant was represented before the first Tribunal which accepted that he was a homosexual but did not accept that there was a real chance that he would suffer persecution at the hands of the Basiji if he continued to frequent a place such as Daneshjoo Park for the purposes of seeking the company of other homosexuals. When the matter came before Lee J he carefully examined the reasoning of the Tribunal and at [CB 124] opined:

"The actual case the applicant put before the Tribunal was that if the past conduct of the applicant could be described as "discreet" then he had suffered a significant act of persecution despite the exercise of such discretion and that there was a real risk that such persecution could occur in future. The applicant's case was that he was at risk of being identified as a homosexual and being persecuted by a group such as the Basiji, in particular if he attended places known to be areas of assignation for homosexuals.

Having accepted that homosexuals in Iran constituted a social group, and having accepted that past events had occurred as described by the applicant, the Tribunal had to put all of that material in the balance when assessing whether there was some degree of probability that an event could occur in future involving persecution of the applicant. (See: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 per Brennan CJ. Dawson. Toohey. Gaudron. McHugh. Gummow JJ at 574-575).

For the foregoing reasons, the case presented by the applicant was not duly considered by the Tribunal. As a result the Tribunal erred in law by failing to consider the extent to which the applicant conducting himself as a homosexual was at risk of being identified as a homosexual and arrested and assaulted for that reason. In particular if he attended a place known to be frequented by homosexuals and by failing to consider whether the chance of such an occurrence represented a real chance, that is to say, a prospect that may be less than on the balance of probabilities, that he could suffer persecution in future if returned to Iran.

It follows that by reason of the misunderstanding by the Tribunal of the material before it, the Tribunal failed to address the right question and did not apply the law correctly to that material."

9. The matter was referred back to the Tribunal differently constituted. Those representing the applicant produced detailed submissions which included an interesting article by Dr Christopher Kendell entitled "Lesbian and Gay Refugee: Why `discretion' is not a human rights option." This article analysed in some detail the situation of homosexuals in Iran and the judgment of Lee J in the instant case.

10. The Tribunal decided to consider the applicant's claim de novo and, in particular, test whether he was in fact homosexual which it was entitled to do (WAEJ v Minister for Immigration [2002] FCA 1180 at [33-34] and Sun Zhan Qui v Minister for Immigration (1997) 81 FCR 71). The applicant complains the Tribunal made no reference in its decision to the judgment of Lee J or the findings of the earlier Tribunal that the applicant was a homosexual. The applicant argued that this constituted a lack of procedural fairness. As French J in WAEJ v Minister for Immigration [2002] FCA 1180 at [34] had specifically indicated that there was no requirement of procedural fairness that a Tribunal should indicate to an applicant that it does not regard itself as bound by any of the findings of the previous Tribunal, I am not at all clear what the alleged failure to accord procedural fairness is.

11. A transcript of the hearing before the Tribunal was provided to the court. After explaining the limits of the Tribunal's responsibility the whole of the evidence was devoted to the applicant's claims of his homosexual life in Iran. It would have been clear to the applicant's representative that the Tribunal was not limiting itself to consideration of the issue found by Lee J not to have been considered by the previous Tribunal. The applicant was being required to satisfy the Tribunal that he was indeed a homosexual. At T36 [35] the Tribunal says:

"I have asked you as many questions at this point in time that I need to, on your claims. Is there anything you want to tell me about that I haven't asked you about.?

After a short exchange between the applicant and the Tribunal the applicant's adviser says:

"A. I guess I am just uncertain as to where ---

T. Where we're going?

A. Yes where the thinking is on this, because if you don't think he is a homosexual, that's one thing. If it is a question of discreet, that's a totally different thing again.

T. I have to say, my mind is not made up. I do have some reservations about whether or not he is a homosexual which is why I have had that put to him. The second step is, if he is, the discreet issue, but at this stage I haven't got a firm mind.

A. Well, I am at a bit of a loss as to how one can prove that, apart from doing anything.

T. Exactly, yes, I know.

A. Apart from the fact that that has been a claim which has been consistent through the department, the first hearing and all through this hearing, and his claims have been consistent all the way through, there has not been any situation where a whole new section of claims have suddenly appeared.

T. Except that it was missing from the ---

A. Initial interview.

T. Yes.

A. Though in my experience, that is not uncommon. Those interviews are really often quite quick and as he has indicated, he was a bit embarrassed about speaking about it in front of an Afghan woman interpreter. Certainly I recall when I first met him at Port Hedland back in January, I think, 2001, we had a male interpreter, at that stage he was quite willing to discuss it."

There was then a discussion between the adviser and the Tribunal about certain written submissions made on the applicant's behalf following which:

"A. That is realistically all I can say at this stage.

T. Okay. Well, what I might do is call a close to the hearing and - I mean, if I firm up a particular view and I am going to rely on a particular piece of information, then I will put that to you to put to the applicant, if I proceed with that."

There follows a short discussion between the Tribunal and the applicant after which the Tribunal says:

" I will think carefully about everything you have told me today at the hearing, and if there is a particular adverse facts or country information that I intend to rely on, I will pass that on to your adviser and give you the opportunity to reply."

12. The Tribunal did not call again upon the applicant or his adviser. It proceeded to its decision. At [CB 219] it made the all important finding:

"As the Tribunal does not accept that the applicant was engaged in homosexual activity in Iran and faced harm from either his family or the authorities because of this then neither does the Tribunal accept that the applicant will face punishment or persecution on grounds that he is a homosexual on his return to Iran."

13. The applicant alleges that in reaching its adverse finding with respect to the credibility of the applicant the Tribunal breached its obligation to accord the applicant procedural fairness in that:

a) It did not advise or warn the applicant in advance that the Tribunal proposed to use material adverse to the applicant's case.

14. When I asked what material this was I was taken to p.3 of [CB 217] where the Tribunal refers to country information found at [CB 209] and at [213]. It also refers to country information found at [CB 207-208]. The first of those references is to a document from the Canadian Immigration and Refugee Board dated 11 February 1998 on the situation of homosexuals in Iran. The second is a UK Home Office Country Assessment (April 2002). I have looked through the Court Book to see whether either of these documents are referred to as documents which would be before the Tribunal. I note that some country information was requested by the applicant under the Freedom of Information Act and provided [see CB 131-132] but this does not appear to refer to either of these two documents. The documents were not referred to in the list of documents before the delegate, however, it most certainly was before the first Tribunal and is referred to at [CB 104]. I cannot see how there could be any lack of procedural fairness in the second Tribunal referring to this document in its reasons for decision without advising the applicant thereof.

15. I am not so clear about the second document which could not have been before the first Tribunal because it is dated March 2002. The reference to the document in the findings and reasons for the decision is as follows:

"The Tribunal notes the country information cited above at pages 12-13 [CB 207-208] in respect to the various legal penalties attached to homosexual behaviour. Given that homosexuality is illegal and punishable it is in the view of the Tribunal an unnecessary undertaking on the part of the Basiji to require the applicant to sign a statement that he is not a homosexual."

16. In order for the applicant to establish that the Tribunal did not provide him with procedural fairness by utilising this document without drawing it to his attention the court must have a reasonable concern that the information contained in the document was material to the decision (Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30, 190 ALR 601, Re Minister for Immigration ; Ex parte `A' (2002) 185 ALR 489 at [54], and NADR v Minister for Immigration [2002] FCAFC 293 at [26] and [28]). A careful reading of this piece of country information finds that it consists mostly of extracts from the relevant Iranian code of law and other jurisprudence concerning the prosecution of offences involving homosexuality, which would not come as any surprise to advisers such as those of the applicant. The Tribunal appears only to be asserting that homosexuality is an illegal and punishable offence and relying on that fact for its following finding. The existence of the fact adds very little to the document which may not have been put before the applicant. I do not consider the fact that the Tribunal offered the applicant an opportunity to comment on any adverse material to strengthen the applicant's case in respect of this particular document.

17. The second complaint raised by the applicant is that the Tribunal did not give the applicant the opportunity to be heard in respect of its views before they were formed. I am satisfied that the conversations between the adviser and the Tribunal which has been set out in extenso above did refer to the Tribunal's views as to whether or not the applicant was homosexual. I think the remarks that the Tribunal made were well meaning but unfortunate. They would have raised in the applicant and his advisers an expectation that they would get another chance before a final finding was made. The respondent argues that the applicant's claim is not sustainable. It suggests that the whole of the hearing of 6 June was directed to the applicant's claims and with that I would agree. The respondent suggests that the discussion referred to the second step of considering the discretion aspect rather than the general question. I have already made my views on this matter known. But I think that the respondent makes a stronger point when it says that the representation by the Tribunal was limited to "a particular piece of information [T38] or "particular adverse facts or country information [T39]. An adverse fact is not the same thing as an adverse finding.

I accept that the nature of this decision is incremental. In other words the Tribunal did not come to a conclusion concerning the applicant's homosexuality based on any one particular matter but on its interpretation of the entire story put forward by the applicant on which it gave the applicant full opportunity to comment. In those circumstances I do not believe there was a failure to comply with a stated intention to follow a particular procedure.

18. A third basis for the claim that the Tribunal did not accord the applicant procedural fairness was that it did not base its decision on logically probative evidence. The applicant argued it was not logical or congruent that it was a "redundant exercise" for the applicant to simply hold discussions in a park with his homosexual friends without "cruising" or engaging in sexual activity. Further, there was no evidence that it was the practice of young homosexual males in Iran to "cruise" parks for contact and engage in sex within the park [CB 216]. The applicant suggested that as there was no evidence of the general renown of homosexual hang-outs in Tehran, or that these hang-outs were of sufficient renown that a young practising homosexual would know of them, the decision maker had effectively set a standard of knowledge for young homosexual males in Tehran and then criticised the applicant because he did not meet that standard [CB 216-217].

19. The applicant also complained there was no probative evidence that the Basiji did not insist on undertakings from suspected homosexuals after administering beatings or that they administered the law in a proper and humane way [CB 217]. In fact the evidence tended to show that the Basiji were a corrupt and immoral police force [CB 142] and [CB 214]. He argued there was no probative evidence that it was the practice of the Basiji to detain suspected homosexuals for periods of greater than one and a half hours [CB 217]. Finally, he complained there was no evidence that after the applicant's exposure in March 2000 that he left the country because the Basiji had gone to his home. This misunderstanding on the part of the Tribunal (the Basiji went to the applicant's home after he left) was accepted by the respondent.

20. It is, with respect to the applicant's counsel, hard not to see these complaints as an attempt at a merits review by a side wind. I do not believe that the law has changed since the Full Bench of the Federal Court made it clear in Minister for Immigration and Multicultural Affairs v Anthonipillai [2001] FCA 274 at 42 that factual mistake or want of logic is not a ground for judicial review. I do not believe that the applicant's counsel suggested that these complaints constitute Wednesbury unreasonableness and I would not so find.

21. The applicant then suggested that the failings of the Tribunal adumbrated above, together with its failing to address or have any sufficient regard to the findings of the first Tribunal or the judgment of Lee J, evidenced a closed mind and/or an appearance of bias against the applicant. In WAAG v Minister for Immigration [2002] FMCA 191 I addressed a very similar matter to this. I held that the form of questioning by a Tribunal of an applicant who claimed to be a homosexual indicated a closed mind on the part of the Tribunal. It will be clear from a reading of my decision in that case that the relevant questioning was, at the very least, what was described by Moore J when the matter went to a Full Bench as "unfortunate". The Full Bench in the Minister for Immigration v SBAN [2002] FCAFC 431 took the view that the Tribunal was entitled to question the applicant in this manner and its conduct did not evidence a closed mind. I would be reluctant to make such a finding against this Tribunal. I could not, on the evidence before me, make a finding that the Tribunal's reasons for decision and its method of proceeding would give a reasonable apprehension of bias.

22. Finally, the applicant submits that the Tribunal did not give him the benefit of the doubt, did not apply a reasonable margin of appreciation to any perceived flaws in his testimony and impugned his credibility because of vagueness and inconsistencies in recounting peripheral details and by doing so exceeded its power and authority and involved itself in a jurisdictional error. It also suggested that the Tribunal had asked itself the wrong question and misunderstood its proper function when applying Article 1E of the Refugees Convention. In regard to this latter claim I accept the submission made by the respondent that it does not take into account that the sole basis on which the applicant claimed to fear persecution for a convention reason was his homosexuality. Once that claim was dismissed there was no further basis on which to consider what might happen to the applicant on his return to Iran in the context of a claim to protection. The Tribunal sets out at [CB 215] those matters which guided it in its consideration of the applicant's evidence. Although the Tribunal did not discuss the cases found in the applicant's submissions, it is clear that it acknowledged all of the principles to which the applicant addressed the court's attention. Faced with these statements on the face of the record the applicant's argument is purely one of degree and I would not be prepared to grant review on that basis in this case.

23. Any investigation into a person's sexual orientation is an invasive and embarrassing affair. Sexual orientation is essentially a very subjective matter. It is not easily reconciled with the notion of objective proof. But where an applicant is claiming protection on the grounds of his membership of that social group constituted by homosexuals then his sexual orientation is a matter upon which the Minister is required to be satisfied. One can understand the incredulity expressed on his behalf that his status was accepted by one Tribunal and not by another but if, as here, there is no apparent error in the manner in which the Tribunal came to the conclusion that it was not so satisfied then the decision must stand. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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