GMS18 v Minister for Home Affairs

[2019] FCCA 2706

FEDERAL CIRCUIT COURT OF AUSTRALIA

GMS18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2706

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: GMS18

First Respondent:

Second Respondent:

MINISTER FOR HOME AFFAIRS

IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 1279 of 2018

Judgment of: Judge Vasta

Hearing date: 10 September 2019

Date of Last Submission: 10 September 2019

Delivered at: Brisbane

Delivered on: 10 September 2019

REPRESENTATION

The Applicant appearing on their own behalf

Solicitors for the First Respondent: Minter Ellison

ORDERS

1. The application for review filed on 13 December 2018 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1279 of 2018

GMS18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 30 November 2018, the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant the Applicant, GMS18, a protection visa. On 13 December 2018, the Applicant filed an originating application in this Court, asking this Court to review the decision of the IAA.

2. This was a rather unusual matter before the IAA because the IAA decided to actually interview the Applicant.  This was because he had given information in his written claim that he did not repeat at his interview with the delegate.  It would seem that the delegate decided to re‑interview him almost straight away because of the non‑mentioning of this particular matter.

3. The IAA felt that there were other matters that had not been covered in that second interview and therefore it was best that the IAA conduct another interview with the Applicant.  The IAA said that they were very mindful of the difficulties that an applicant – especially one in the position of this Applicant – may have in relating sensitive and personal information, especially when such information concerned their sexuality. 

4. In short, the Applicant had claimed that he was bisexual, and yet he denied that in his interview with the delegate.  When the delegate re‑interviewed the Applicant the same day, the Applicant claimed that he was in fact bisexual and that he had denied it for a variety of reasons, including cultural reasons. 

5. The claim then was summarised as this. The Applicant was born on 3 December 1987 in Tehran, Iran. He was raised as a Shia Muslim in Tehran with his two brothers and four sisters. He no longer considers himself to be a Shia Muslim, although he believes in God but not in Islam.

6. He said that he left Iran because there is no religious freedom and because he is bisexual, and he fears that he would be publicly hanged in Iran. He said that he does not practice Islam in Iran and he was sick of the torment and harassment and fear; always, as it were, looking over his shoulders as to when authorities would finally catch up with him and kill him.

7. He claimed that in around 2010, 2011, that he had a party at his home with some friends, including boys and girls.  He said that they were drinking alcohol.  The Applicant said that his father came home, saw this and called the authorities. They raided the party, and the Applicant claims that he was taken away by police and he received 80 lashes. 

8. He said that he realised he was bisexual when he reached puberty and he was interested in both boys and girls.  He said that he had a long‑term girlfriend in Iran and also had sexual relationships with males. 

9. He claimed that his father was an opium addict and also a member of the local Basij.  The Applicant said that he was always trying to distance himself from his father because his father was always trying to report him.  He said in 2011, he was held by police for two days because of his hairstyle and because he was “the type the Basij would not like”. 

10. The Applicant claimed that before he left Iran, his father arranged for him to be knifed by members of the Basij.  He said he was actually knifed four or five times in an alleyway by Basij members, including someone he recognised as a friend of his father’s.  He said that his father also glassed him with a bottle, from which he suffered a “broken eye bone” and he spent two weeks in hospital. 

11. He said that he accepts God but not Islam and that there was pressure on him from his father to be like a Muslim and not to drink alcohol and not to hang out with his girlfriend. 

12. He said that except for the boys that he had had sexual relationships with, no one in Iran knew that he was bisexual, although he believed that his father was suspicious.  He said that when he was 16 or 17 years old, he was living at home with his parents and his father would see boys visit him, the Applicant, and would wonder what two boys were doing in the bedroom of the Applicant.  He was afraid that his father was suspicious and he could see this escalating. 

13. The Applicant claimed that he travelled to Australia with an Iranian male friend, whom I will call M.  He said that he and M lived together for two years when the Applicant first arrived in Australia and that they were in a relationship for less than one of those years.  The Applicant said he has had sexual intercourse with other boys and girls since he has been in Australia but he is not currently in a relationship. 

14. The Applicant said that he left Iran on an Iranian passport which was subsequently taken by a people smuggler in Indonesia, and he provided the delegate with his Iranian national identity card, his Iranian birth certificate and his Iranian driver’s licence. 

15. The IAA then went through and assessed the claims that the Applicant had made.  The IAA noted that the Applicant had provided video footage of his injuries – that is, the 80 lashes – and he showed the scars from the lashes to the delegate at the interview.  Based on country information, and after looking at the video of the lashes and at the Applicant’s back, the delegate accepted that the Applicant had been lashed and that this had been carried out by authorities in Iran after the Applicant had held a party that had been raided. 

16. In his application, the Applicant said that he received the lashes for drinking alcohol and for flirting with another boy at the party.  That information was only in the written application but not discussed in the first interview, nor raised in the second interview with the delegate.  The IAA, when speaking to the Applicant, asked the Applicant to state why he was lashed in 2010 and he stated that he had been lashed not just for flirting with a boy.  He said that the main reason for the lashing was drinking and having a social gathering with boys and girls.

17. The IAA considered that this comment indicated the Applicant was resiling somewhat from this aspect of the claim.  The IAA noted that the Applicant provided no evidence that he was caught flirting with a boy or any details of what he was doing and what flirting actually involved and what his father’s reaction was.  The IAA said that they did not accept that the flirting was the reason, or even a reason, for the lashings.

18. Country information noted that 80 lashes is the penalty for drinking alcohol in Iran, and based on the evidence before the IAA, the IAA considered that the reason that the Applicant was lashed was because he had attended a party where there were boys and girls and because they were drinking alcohol.

19. As to the claim of bisexuality, the IAA noted that it is only supported by the Applicant’s own evidence. There was no supporting documentation, such as photographs, social media documentation or any written correspondence between him and any other person that might support the claim.

20. The Applicant was consistent in his assertion at the interview – both at the interview with the delegate, the second one, and at the IAA interview – that both he and the person M did not want their relationship to be known in the Iranian community.  The Applicant was almost at pains to make sure that no one could have found out about his relationship with M because, within the Iranian community that was on the Gold Coast, this just would simply not be accepted.  However, notwithstanding that caveat, the IAA was quite concerned that the Applicant had given a real lack of detail when talking about the relationship. 

21. What the IAA looked at was the Applicant’s failure to mention the bisexuality at the arrival interview and the denial of bisexuality in the first interview.  In 2013, when the Applicant arrived and was interviewed, he told the authorities that he left Iran for religious reasons and because he had problems with his father and because he had been lashed 80 times for drinking and mixing with girls.  He did not claim at that time to fear harm for being bisexual. 

22. In his application, he stated that he did not mention his claim to be bisexual in his arrival interview as he was afraid – extremely afraid – to disclose this and was extremely shy, as in Iran it is not something you can openly talk about because gay people get hanged. 

23. The IAA considered this claim in light of the treatment of homosexuals in Iran according to the country information.  The IAA also considered the failure to mention the claimed bisexuality at the arrival interview in light of the inherently sensitive nature of the claim and the nature and context of the interview.

24. The IAA said that they were mindful of the difficulties that asylum seekers may face and the caution needed when relying upon omissions in interviews conducted soon after arrival. The IAA said that, on one hand, they found the Applicant’s claim that he did not disclose his sexuality at this early stage to be somewhat plausible but, on the other hand, given that his claim that he is bisexual is part of the core claim for seeking protection, the IAA also found it difficult to accept that he chose not to disclose this information upon arrival in the country where he is seeking asylum.

25. The IAA also had regard to the fact that, despite making the claim in his application, he then denied that he was bisexual in his first interview with the delegate.  In the second interview, the Applicant explained his relationship with the person M.  The Applicant said that he had told his migration agent that he had a relationship with a boy but he did not tell the migration agent he was the person M.  Despite him saying that that is what he had told his agent, there was no mention of a boy or a boyfriend in the written application.

26. Again, this was peculiar, according to the IAA, because the claim of being bisexual was core to the application and he had otherwise no evidence to support the claim.  The Applicant was asked about this inconsistency at the IAA interview, where he said again that it was because he and the person M had decided that they would not tell anyone about their relationship.  They were worried about talking about this to an interpreter.  The IAA ended up saying this in paragraph 26:

    …I consider that the delegate gave the applicant ample time to raise this claim and when it wasn’t raised by the applicant the delegate asked him about sexuality directly. Despite this, the applicant denied to the delegate that he was homosexual or bisexual….

    Even if I accept that the Applicant may not have wanted to identify M as his boyfriend or ex‑boyfriend with his migration agent for fear of people in the Iranian community finding out, I do not consider that this explains why he did not mention his claim to be bisexual when being interviewed by the delegate, especially since the migration agent was not there. 

27. When asked about the relationship in the IAA interview, the IAA found that there was a lack of detail as to what the two of them did as a couple. The IAA said that there should be at least some evidence of the fact that they were in a relationship, even if they had decided to keep the relationship secret. The IAA considered that there would be at least some personal anecdotes to tell. The Applicant told the IAA again about the shame of being homosexual in Iran, but the IAA said at paragraph 28:

    …I do not consider that this explains why he denied his claimed bisexuality at his first interview with the delegate.  On the one hand he was able to tell his Iranian migration agent about his sexuality, even though he was concerned about his privacy. Yet on the other hand he claims he was not able to discuss it with the delegate when neither the migration agent nor the person M were present.  Despite the opportunity to explain this to the IAA no such explanation was provided.

28. The IAA said that they also had regard to an inconsistency in the evidence provided by the Applicant at the second interview with the delegate and at the IAA interview. At the second interview, the Applicant said that he had a girlfriend and been seeing her for two or three months, whereas at the IAA interview, he said he did not have a girlfriend. When asked about what he had stated at the second interview in relation to having a girlfriend, he said that he has had a sexual relationship with another girl but she was not his girlfriend. The IAA noted in paragraph 29:

    …Although it is possible that the applicant’s view of that relationship is less serious than initially made out, I find his explanation unpersuasive and I consider the inconsistency adds doubt to his credibility.

29. The IAA noted the Applicant’s claim that his father was suspicious and that his father was not comfortable with him having boys over in his room.  The IAA noted that the Applicant claimed that his father was always telling the Basij of the Applicant’s behaviour involving alcohol and girls, but the IAA noted it seems that the father was turning a blind eye to his suspicions regarding the Applicant’s homosexuality.  The IAA noted that if the Applicant had had boys visiting his room, as claimed, and if his father had been suspicious, as claimed, the IAA found it implausible that the father would not have reported this to the Basij, along with the other complaints about the non‑Muslim behaviour.

30. At paragraph 35, the IAA said:

    35. In summary, although I accept the applicant was lashed in Iran, I do not accept he was lashed for flirting with a boy.  I find the inconsistencies in his evidence to be significant and despite being given an added opportunity to put evidence forward, the applicant did not provide a satisfactory explanation for the inconsistencies.  Given the applicant’s lack of detail and evidence of his relationship with M I do not accept the relationship existed as claimed and although a lack of a homosexual relationship is not determinative of the applicant’s sexuality, I consider it casts doubt over the applicant’s claim to be bisexual.  Overall on the basis of the material before me I am not satisfied he is bisexual.

31. The IAA then looked at the claim that the applicant had made about his clothing, his hairstyle, his mixing with girls, his imbibing of alcohol, and had regard to country information regarding the treatment of youths in Iran who undertake such activities.  The information was that it was difficult to make an overall assessment of the treatment of what are sometimes labelled Westernised Iranians, and that youth in particular can experience some form of low‑level harassment from security authorities, such as being searched, having their car checked, being given warnings for dress or behaviour.

32. The DFAT material also stated that enforcement can be unpredictable and related to the prevailing political atmosphere of the time.  The IAA said at paragraph 40:

    40. Based on this country information I find that, should the applicant continue to wear westernised clothing and hairstyle upon return to Iran, he may face some low‑level harassment for violating the dress code but I do not consider this treatment amounts to serious harm. 

33. The Applicant claimed that his father was an opium addict and that he was a member of the Basij and always trying to report him, and that the father had arranged for him to be knifed.  This incident was not raised at the arrival interview and not mentioned in the written application for the visa, but at the interview for the visa he said that he did have issues with his father and that the father put pressure on the Applicant not to consume alcohol or have a relationship with a girl or have a tattoo.

34. The Applicant said that he has tried to stand up against his father and the Basij and he has tried pressing charges against them for knifing him but he said the charges did not go anywhere. He said that the father does not act the same with any of his siblings because, “They accept to be Muslim”.

35. The IAA has said that they accept that the Applicant experienced abuse from his father and that his father reported him to Basij.  However, the IAA noted that the Applicant continued to live with his father in the family home throughout this time.  Apart from a period of a few months when the Applicant claimed he moved out of home – which was in 2010 or 2011 after he was lashed – the evidence before the IAA indicated even though the Applicant was employed, he continued to live with his father until he was 23 years old. 

36. The IAA noted that the Applicant is now 30 and has lived independently of his parents for the past five years, during which time he has held down continuous employment.  The IAA said based on the Applicant’s description of his parents, his proven ability to live independently and his age, the IAA said that they found it unlikely that he would need to or want to live with his parents upon return to Iran, nor has he indicated any intention to do so.  As such, the IAA found that the chances of the Applicant would experience treatment from his father upon return to now be remote.  The IAA said that they were not satisfied that he faces a real chance of harm on these grounds now or in the foreseeable future. 

37. The IAA looked at whether the Applicant would drink alcohol again upon return to Iran, noting that the penalty for the use of alcohol is 80 lashes, regardless of whether the consumption caused drunkenness or not. The IAA said that there is no evidence to suggest that the Applicant intends to drink alcohol publicly and, based on country information, the IAA was satisfied that the Applicant does not face a real chance of harm should he drink alcohol in Iran. 

38. In coming to that conclusion, the IAA had regard to the fact that when the Applicant was caught drinking in 2010 or 2011, he was drinking in his parent’s home and it was his father that reported him to the authorities.  Because the IAA has found it unlikely that the Applicant would need to, or would want to, live with his parents upon return to Iran, the IAA did not consider that there is any increased chance that if he drinks alcohol upon return to Iran that this would come to the attention of authorities.

39. The IAA then looked at the Applicant’s religion and what he says as to what he would be doing with regard to not adhering to Islam.  The IAA looked at what he had said and looked at the DFAT reports regarding this.  The IAA said at paragraph 52:

    52. Overall, having regard to the applicant’s behaviour and the country information, and my finding that the applicant is unlikely to live with his parents upon return, I consider the chance that his views on religion, or his non‑compliance with religious rituals, will come to the attention of the Iranian authorities is remote.  As such, I am not satisfied that the applicant faces a real chance of harm for reasons of religion.

40. The IAA then looked at the Applicant coming back to Iran.  The Applicant said that there is a possibility if he steps foot in an Iranian airport, his father would be summonsed, and because his father knows where he lives, he would have pressed charges against him and all the complaints and charges would show up. 

1. The IAA did not accept that there were outstanding charges against the Applicant because the Applicant left Iran via an airport in Tehran on his own passport, which would suggest that at the time of his departure he was of no interest to the authorities.  Other than making this statement in his interview, the Applicant has not provided any evidence to support his assertion that there are outstanding charges against him and the IAA did not accept this claim. 

2. Even though the Applicant did not specifically claim to fear harm due to the fact he would be a returning asylum seeker from a Western country, the IAA still looked at this aspect.  The IAA noted that Iran does not accept involuntary returnees and Iranian overseas missions will not issue travel documents to an Iranian whom a foreign government wishes to return involuntarily to Iran.  Therefore the IAA assessed the Applicant on the basis that if he were to return to Iran, it would be voluntarily. 

3. Going through the DFAT information, the IAA concluded that the country information did not support a finding that persons who have sought asylum in Western countries such as Australia are imputed to hold an anti-Iranian government or political opinion.  Overall, the IAA was not satisfied the Applicant had a profile of interest to the Iranian authorities for any reason prior to his departure or would attract the adverse attention of the Iranian authorities as a returning asylum seeker.

4. At paragraph 60 the IAA said:

   60. I have also considered the applicant’s circumstances as a whole.  I have rejected the applicant’s claim he is bisexual.  Although I have accepted he experienced abuse from his father in the past, I have not accepted that he faces a real chance of harm on this basis upon return to Iran.  I am not satisfied that he faces a real chance of harm for his religious views, or for consuming alcohol should he continue to do so upon return to Iran.  I have found that the applicant may face low‑level harassment if he wears western style clothing and hair upon return to Iran but I am not satisfied that this amounts to serious harm. Nor am I satisfied that this low‑level harassment, in combination with the treatment he may receive as a returned asylum seeker, amounts to serious harm…

5. Therefore, the IAA was not satisfied that there was a real chance of him facing serious harm now or in the reasonably foreseeable future. Therefore, the applicant did not meet the requirements of the definition of refugee.

6. The IAA then went through the complementary protection assessment and looked again at the treatment from the father, the low‑level harassment the Applicant may face if he chooses to wear Western‑style clothing and hair, and looked at the harm cumulatively.

7. The IAA said that the combined effect of all of those things leads the IAA to the conclusion that there was still not substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia to Iran that there was a real risk that the Applicant would suffer significant harm. 

8. Therefore the IAA affirmed the decision. 

9. There was only one ground of this application and that is:

   1. The Immigration Assessment Authority and the delegate of the Minister of Home Affairs erred in law in making his decision.

10. To start with, I cannot deal with any claim dealing with the decision of the delegate of the Minister, so I have assumed that the ground of application is simply that IAA erred in law in making the decision. 

11. When I asked the Applicant to expand upon this today, he said to me that the IAA totally ignored the videos that he sent to them.  He said that he did not think that the IAA looked at those videos at all.  He said the main reason he left Iran was that his life was in danger. 

12. He said that if he stayed in Iran any longer, it was too big a risk to his safety.  He said that he was in danger of more torture and that is why he sent the videos to the IAA, so that they could see what it was that had occurred to him. 

13. The first thing to be said about this is that it may be true that the IAA did not actually look at the videos themselves, however, the delegate did look at the video. But the video could only go to corroborate the Applicant’s claim that he had suffered 80 lashes at the hands of the Iranian authorities.

14. The IAA accepted this claim.  The videos could not corroborate why it was that the Applicant suffered the 80 lashes but simply the fact that he did suffer them.  I cannot see that there has been any unfairness or any dereliction of duty by the IAA not actually watching the videos themselves, if it is true that they have not watched the videos.

15. The Applicant said that he was not sure if the judgment was fair or not, but he said that what does not seem to have been taken into account is that because of the danger that he faced, that he took on the arduous journey to Australia because he knew that Australia was a safe country. He said that he could not introduce himself as a gay person in Iran and that that was the way in which he had done things in Australia. However, it seems to me that such a submission is really an attempt to engage the Court in an impermissible merits review. There is no jurisdictional error that has been established.

16. The Applicant again reiterated the same claims that the IAA had listened to, and that was that the Applicant’s father had come to a party, seen him with a boy in the room and called the authorities. He reiterated that if he stayed in longer in Iran, his father could have had him killed. Those were matters that really were all before the IAA and they have been dealt with.

17. The specific claim that he has made here is probably not a specific claim that he has made before the IAA or the delegate, however, the gist is exactly the same: that his father posed a danger to him, and the IAA has dealt with that aspect of the claim. 

18. In going through the IAA decision, it seems to me that the IAA has engaged with each and every one of the claims that the Applicant has made.  The decisions or the conclusions that the IAA have come to have mainly been conclusions of non‑satisfaction; that is, that what the Applicant had said to the IAA was not sufficient to satisfy them of the particular fact sought to be established.  Those conclusions were conclusions that were open on the evidence before the IAA.

19. It is not whether I or anyone else would have come to the same conclusion on the evidence that was before the IAA.  It is whether the IAA could have come to the conclusions that they came to as detailed. 

20. I am of the view that the IAA could have come to those conclusions, and therefore there has been no jurisdictional error.  For those reasons, I dismiss the application.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  27 February 2019