MZZIM v Minister for Immigration

[2014] FCCA 1559

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZIM v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1559

Catchwords:
MIGRATION – Refugee Review Tribunal – whether Tribunal erred by not hearing evidence from a case worker and a psychologist – whether a claim clearly arose from the materials.

Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; (2004) 82 ALD 1; (2004) 79 ALJR 397; (2004) 211 ALR 660; [2004] HCA 62
Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; (2009) 83 ALJR 1123; (2009) 259 ALR 429; [2009] HCA 39
VWRE v Minister for Immigration and Multicultural Affairs [2006] FMCA 430
W360/01A v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 449; [2002] FCAFC 211

Applicant: MZZIM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 376 of 2013

Judgment of: Judge Riley

Hearing date: 3 July 2014

Date of Last Submission: 3 July 2014

Delivered at: Melbourne

Delivered on: 21 July 2014

REPRESENTATION

Counsel for the Applicant: Sam Ure

Solicitors for the Applicant: Asylum Seeker Resource Centre

Counsel for the Respondents: Richard Knowles

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application filed on 25 March 2013 and amended on 17 June 2014 be dismissed.

2. The applicant pay the first respondent’s costs thrown away of the submissions filed on 8 August 2013 fixed in the sum of $2,100.

3. The applicant pay the first respondent’s costs of the proceeding generally fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 376 of 2013

MZZIM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal made on 21 February 2013. The Tribunal affirmed a decision of a delegate of the first respondent to refuse the applicant a protection visa.

2. The applicant is a citizen of Iran.  He entered Australia as an unauthorised maritime arrival on 13 April 2012.  At that time, the applicant was 17 years old. On 6 July 2012, the applicant lodged an application for a protection visa.  Migration lawyers assisted the applicant.  A delegate of the first respondent interviewed the applicant and the lawyers provided written submissions.

3. At that stage, the applicant claimed to fear persecution on the grounds of:

   a)his actual and imputed political opinion, consisting of opposition to the government, because it had not provided him with an opportunity to be educated and had done nothing for his family;

   b)his intention to refuse to undertake military service because the government had never done anything for him;

   c)his imputed political opinion, being opposition to the government, because he had sought asylum in Australia; and

   d)his membership of particular social groups, namely, asylum seekers and men who refuse to undertake national service.

4. The applicant also said during his entry interview that:

   a)while walking in the park with his sister, he was stopped by the police who grabbed his clothes and slapped him;

   b)the police accused the applicant and his sister of being boyfriend and girlfriend; and

   c)they were taken to the police station and released after their parents produced their identification cards. 

5. In his departmental interview, the applicant also said that the police abused and insulted him in front of his sister and strangers in the park, which he found humiliating.

6. On 22 August 2012, a delegate of the first respondent refused to grant the applicant a protection visa.   The delegate noted that the applicant had left Iran legally on a passport in his own name and had no charges pending against him.  Consequently, the delegate considered that there was no reason that the applicant would be perceived to be an asylum seeker.  The delegate considered that the national service requirements in Iran are laws of general application and did not engage the Refugees Convention.  The delegate considered that the application of those laws to the applicant was too speculative to constitute a real chance of significant harm for the purposes of the complementary protection provisions.  The delegate did not consider that the applicant was discriminated against in relation to education or deprived of a proper education.  The delegate accepted the truth of the applicant’s claims about being arrested while walking with his sister in the park.  However, the delegate noted that the applicant had had no trouble with the police before or after the park incident and there had been no follow up by the police in relation to it.  In these circumstances, the delegate did not consider that the incident had a Convention nexus.

7. On 7 September 2012, the applicant applied for review by the Tribunal.

The Tribunal hearings

1. The Tribunal conducted a hearing with the applicant and his representative on 12 November 2012.  The hearing did not conclude on that day, largely because the applicant made a new claim during the course of the hearing.  The Tribunal reconvened on 10 January 2013.

2. During the hearing on 12 November 2012, after giving some evidence about his work and education, the applicant said that:

   a)he was arrested by the police while he was walking in the park with his sister, who the police, apparently, initially thought was his girlfriend;

   b)they were both taken to the police station and assaulted;

   c)when questioned by the police, the applicant said:

   … I’m not into girls, I don’t have any girlfriends right now, she is my sister… .  I don’t like any other girls. …

   d)one of the policemen raped the applicant;

   e)when the applicant said he would complain, the police told him that he would have to report to the police every month; and

   f)when he reported on the second occasion, a policeman raped the applicant again;

   g)the applicant was 16 years old at the time;

   h)the police accused the applicant of being gay;

   i)he had been too embarrassed and scared to mention the rapes to the migration officials earlier; and

   j)about one month before the first hearing, the applicant had mentioned the rapes to a friend, Mr X, who was present at the hearing, and, about two weeks before the first hearing, the applicant had mentioned the two rapes to a psychologist.

3. During the first hearing, the Tribunal attempted to hear evidence from Mr X.  However, when he was called, it turned out that he had left the building.  He did not attend the adjourned hearing.

4. The Tribunal, during the first hearing, asked for a report from the applicant’s psychologist.  The applicant provided to the Tribunal at the commencement of the adjourned hearing, on 10 January 2013, a copy of a letter dated 15 November 2012 from a psychologist (CB261). 

   
   

   It said that the applicant had suffered physical and emotional trauma in Iran but did not provide details.  It did not indicate that the applicant had made any disclosures to the psychologist about being raped by a policeman.

5. During the adjourned hearing, the applicant hinted that he is gay. 

   
   

   The Tribunal sought to clarify that issue, saying that, during the first hearing, the applicant had only said that others might think he was gay because the policeman had raped him.  The applicant confirmed that he is gay.  He said that he had not had any relationships with men in Australia but said he had a friend in Iran with whom he commenced a relationship when he was 13, in one version of events, or 15, in another version of events.  He said that he was currently in Facebook communication with the friend, Mr Y. 

The Tribunal’s reasons

1. The Tribunal accepted that the applicant had made “disclosures” that he was gay in about November 2012.  However, the Tribunal did not accept that the applicant is in fact gay.   The Tribunal considered that there were inconsistencies in the applicant’s claims about when he met and had a relationship with Mr Y.  The Tribunal considered that the Facebook pages were simply “vulgar chat” and not indicative of a homosexual relationship.  The Tribunal rejected the applicant’s other claims.

Ground 1: refusal to hear evidence from the case worker

1. The first ground in the amended application filed on 17 June 2014 is as follows:

   1.The Tribunal constructively failed to exercise jurisdiction by discharging its statutory review obligation.

   Particulars

   a.The applicant, an 18 year old, disclosed to the Tribunal at hearings on 12 November 2012 (first hearing) and 10 January 2013 (second hearing) two sensitive matter that had not earlier been part of his protection visa application, namely that he had been raped twice by police in his home country and that he was gay.

   b.At the second hearing of the applicant’s case before the Tribunal, the Tribunal expressed concern that these two matters had been disclosed late.

   c.The applicant’s caseworker was in the Tribunal building and available to give evidence at the second hearing. The applicant’s representative stated that the caseworker was available to give evidence which would corroborate the applicant’s additional claims.

   d.The Tribunal declined to receive evidence from the applicant’s caseworker.

2. During the adjourned hearing on 10 January 2013, according to the transcript of that hearing annexed to the affidavit of James Wardlaw affirmed on 16 June 2014, the applicant’s representative said:

   Can I just add something at this stage? Present at the Tribunal today is Amelia McDermott [description of her role inaudible] and she has indicated to me that she noticed that my client was going through some sort of trauma, had a lot of difficulties; she suggested that he go to a GP and then it was suggested that he should go to a psychologist. So it was support by various support workers that – after observing what was going on with my client – that assisted him to get more assistance with his emotional state and that was when things started to emerge, details started to emerge. Ms Amelia McDermott tells me that that it was in November last year that she suggested that my client get professional help for his lack of sleep issue and other symptoms that he was experiencing so … she is present she can give some information to the Tribunal about what she observed at the time if that assists.

3. The applicant interjected to make another point and the Tribunal then said:

   I don’t propose to take evidence from Ms McDermott because if the referral happened in November it’s not actually assisting me very much.

   And, I can appreciate that this is an extremely stressful process for you to go through and when you left Iran you were still a child, so I guess there will be other stressors in your life – including the fact that the Department of Immigration refused your application – that might cause you problems including sleeping problems.

   The problem I have and … and I … There’s been a couple of communication breakdowns. Last time you were here you talked about how you tried to disclose what had happened to you to your representatives but you didn't get a chance to speak to them. And then this is dated 15 November 2012 but wasn’t made available to your representatives until very recently.

   So the problem is that I still only have your evidence and between the first, the entry interview in Christmas Island in April and November there was no mention of rapes, and to this day there’s no evidence from anybody else that you disclosed anything before November.

4. The only other reference to Ms McDermott during the hearing concerned a point that the applicant expressly told the Tribunal he did not wish to rely on.

5. The Tribunal addressed the issue of Ms McDermott as follows:

   146.At the beginning of the second hearing the applicant’s representative said that Ms McDermott could give evidence that in November 2012 she referred the applicant to a GP, after which he was referred to a psychologist, because he was having sleeping difficulties. It was then suggested to the Tribunal that she could also give evidence in relation to an “additional issue” that could corroborate the applicant’s claims to a “minor extent”. When the Tribunal asked the applicant, he said the additional issue was not relevant.

   147.At the end of the second hearing the applicant’s representative suggested that the applicant and his representative “could not pursue” the opportunity to provide further evidence by the applicant’s social worker, Ms McDermott, about what has allegedly happened to the applicant in Iran and what he disclosed to Ms McDermott. The Tribunal cannot accept this submission. The Tribunal accepts that the applicant “disclosed” to Ms McDermott that he was raped and that he was a homosexual. (emphasis added)

   148.It is for the applicant to advance his case. Ms McDermott was neither listed as a witness on the Response to Hearing Invitation, nor was she in the hearing room. The Tribunal emphasised to the applicant a number of times that it had difficulty accepting his evidence in relation to the rapes and he was given every opportunity to raise additional, corroborating evidence personally or through witnesses in writing. The Tribunal’s understanding was that Ms McDermott could not give corroborating evidence based on her own expertise or observations of the applicant. Rather the applicant’s representative proposed that she give evidence of limited value about something that the applicant had told her. The applicant advised the Tribunal that he did not wish her to give evidence.

   149.In support of his evidence, the applicant provided a letter from his psychologist to which, as noted above, the Tribunal gives limited weight. The trauma referred to in the psychologist’s letter may have related to the applicant’s family situation or his own personal problems and his inability to finish high school.

   150.The Tribunal accepts that around November 2012 the applicant was experiencing psychological difficulties and suffered from disturbed sleep, and that as a consequence he “disclosed” that he had been raped and potentially his sexuality to Ms McDermott, to a GP and to his psychologist. The Tribunal finds that he also made at least one attempt to “disclose” the alleged abuse to his representatives when he had contact with them at some point in time after lodging the application for review (7 September 2012). (emphasis added)

   151.Despite having criticised the applicant during the hearings that the two major “disclosures” were made very late, the Tribunal takes into consideration the fact that it was a brief, two month period between the time when the applicant first saw a migration representative (5 July 2012) and the time when he lodged the application for Tribunal review (7 September 2012). The Tribunal accepts that soon after lodging the application for review the applicant may have been seeking to contact his representatives to give them further information, and make further “disclosures”.

   152.Taking into account all the above factors, including matters beyond the applicant’s control, his youth, his psychological problems and fear of authority, and his unfamiliarity with Australia and the visa application process, the Tribunal would have given the applicant the benefit of the doubt – and accepted the core claims relating to the rapes and his sexuality – if his evidence were relatively consistent and plausible. However, the Tribunal found the applicant not to be a credible witness. The Tribunal found various aspects of his evidence vague, inconsistent and implausible in relation to key issues. (emphasis added)

6. The Tribunal went on, in some detail, to explain its reasons for so finding.

7. The submission referred to in paragraph 147 of the Tribunal’s reasons for decision does not appear in the transcript of the hearing of 10 January 2013 provided to the court.

8. The Tribunal’s statement in paragraph 148 of its reasons for decision that the applicant advised the Tribunal that he did not wish Ms McDermott to give evidence does not accord with the transcript of the hearing provided to the court.  The applicant only told the Tribunal that he did not wish to pursue another point raised by his representative in connection with Ms McDermott.

9. In any event, the Tribunal clearly accepted, in paragraph 147 of its reasons for decision, that the applicant disclosed to Ms McDermott that he was raped and that he was a homosexual.

10. Nevertheless, the applicant argued that, if the Tribunal had heard evidence from Ms McDermott, the Tribunal might have concluded that the applicant’s late disclosures of the rapes and his homosexuality were not matters of recent invention but were the product of his emotional state.  However, as explained by the Tribunal at paragraph 152 of its reasons for decision, the Tribunal had been told about the various matters relating to the applicant’s emotional state and accepted them. Notwithstanding those matters, the Tribunal considered the applicant’s evidence about the alleged rapes and his alleged homosexuality to be vague, inconsistent and implausible.

11. The applicant relied on the decision in VWRE v Minister for Immigration and Multicultural Affairs [2006] FMCA 430 at [64] and [65], which are as follows:

64.

64.  In my view, the Applicant's submissions in relation to this ground are correct. The Tribunal clearly received a request for evidence of the Applicant's brother to be adduced. In refusing that request and then proceeding to make significant and adverse findings on an issue which I regard as a crucial matter for determination by the Tribunal, it has in the circumstances denied the Applicant procedural fairness. I have mentioned in other matters that a failure to provide an opportunity to adduce evidence then known to be available can constitute procedural unfairness. (see Collins v Minister for Immigration [2003] FMCA 571 (8 December 2003) at [41] (Collins) and WAGO v Minister for Immigration[2004] FMCA 412 at [52] (WAGO)).

65.

65.   Whilst there is no formal obligation on the Tribunal to accede to the Applicant's request for her brother to be called as a witness at the hearing, the Tribunal should do more than simply decline the request. In this case it has not only declined the request but then proceeded to make what I regard as substantial and adverse findings regarding the document produced by the potential witness.

1. VWRE is quite different to the present case.  In VWRE, the applicant, an Ethiopian, claimed that her husband had been persecuted and disappeared.  The Minister’s department found evidence that the husband’s whereabouts were known and he was employed at a particular company in Ethiopia.  The proposed witness, the applicant’s brother, was apparently able to give evidence that the applicant’s husband was not known at that company.  The Tribunal declined to hear evidence from the applicant’s brother and concluded that the applicant’s husband had not disappeared at all. 

2. In VWRE, the Tribunal did not accept the point about which the proposed witness could have given supporting evidence.  In the present case, the Tribunal did accept the points about which Ms McDermott could have given supporting evidence, namely, that the applicant had made certain disclosures to her in November 2012 and that he had emotional reasons for not making the disclosures earlier.  In these circumstances, it is difficult to see how anything could have been gained by hearing evidence from Ms McDermott.

3. Nevertheless, the applicant argued that, if the Tribunal had heard Ms McDermott’s evidence, something useful might have emerged from it.  The applicant’s counsel said:

   … the jurisdictional error arises this way:  that it wasn’t for the Tribunal to dismiss evidence on an assumption about what it might have been.

1. That is not correct.  The Tribunal is empowered to decline to hear evidence from a proposed witness where that evidence would not be useful.  It is for an applicant to make out his or her case.  That requirement imposes an obligation on an applicant to demonstrate that the proposed evidence might be useful, and would not waste the Tribunal’s time and resources.

2. In the context of considering whether the Tribunal erred by failing to make certain enquiries, the High Court said in Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; (2009) 83 ALJR 1123; (2009) 259 ALR 429; [2009] HCA 39:

   25.Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that. (footnote omitted)

   26.The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. …

3. Applying the principle in SZIAI to the present case, there was no evidence before this court about what Ms McDermott might have said, other than the transcript of the proceedings before the Tribunal, which contained a description of Ms McDermott’s proposed evidence given by the applicant’s representative.  The Tribunal was aware of the description of the proposed evidence and accepted the proposed evidence, as it was described.

4. The applicant also relied on W360/01A v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 449; [2002] FCAFC 211. In that case, the Tribunal declined to hear evidence from a witness to support the applicant’s claim that he had left Iran illegally. The Tribunal considered that the applicant’s overall case was so lacking in credibility that the proposed witness’s evidence could not have made a difference. The Tribunal expressly stated that it was not satisfied that the applicant had left Iran illegally. The Full Court of the Federal Court considered that the course followed by the Tribunal disclosed jurisdictional error. The court noted that, if the Tribunal had accepted that the applicant had departed Iran illegally, it would have given credence to his claims to have been persecuted.

5. The present case is fundamentally different. In this case, the Tribunal did accept the proposed evidence, as it was described to it.  In these circumstances, W360 is of no assistance.

6. All in all, I am not persuaded that the Tribunal fell into jurisdictional error in relation to the proposed evidence of Ms McDermott.  This ground is not made out.

Ground 2: refusal to hear evidence from the psychologist

1. The second ground in the amended application filed on 17 June 2014 is as follows:

   2.The Tribunal failed to accord procedural fairness to the applicant by concluding the review of the applicant’s case without either (a) persisting with attempts to contact the applicant’s psychologist; or (b) informing the applicant that it did not propose [to] pursue inquiries with the applicant’s psychologist further.

   Particulars

   a.At the first hearing, the Tribunal asked for a report from the applicant’s psychologist because the disclosure of the rapes was very recent.

   b.At the second hearing, the applicant’s representative supplied a letter from his psychologist that did not specifically address the rapes.

   c.With the applicant’s consent the Tribunal telephoned the psychologist and was connected to voicemail. The Tribunal hung up and said ‘I might try later’.

   d.The Tribunal concluded the review in a manner adverse to the applicant without making any further attempt to contact the applicant’s psychologist or informing the applicant that it proposed not to pursue inquiries with the applicant’s psychologist further.

2. As mentioned above, the Tribunal, during the first hearing, asked for a report from the applicant’s psychologist.  The applicant provided to the Tribunal at the commencement of the adjourned hearing, on 10 January 2013, a copy of a letter dated 15 November 2012 from a psychologist (CB261).  It said that the applicant had suffered physical and emotional trauma in Iran but did not provide details.  It did not indicate that the applicant had made any disclosures to the psychologist about being raped by a policeman or being gay.

3. At the adjourned hearing, the Tribunal said:

   … I’m wondering whether I should contact [the psychologist] by telephone … .

4. The applicant agreed to that course.  The Tribunal said that it would only call the psychologist if the applicant confirmed that he had disclosed the rapes to the psychologist.  The applicant, through an interpreter, said:

   Yes I promise that I disclosed this information to my psychologist so you can call him and talk.

5. The Tribunal attempted to telephone the psychologist but the call went through to voicemail.  The Tribunal said:

   I might try later.

6. At page 23 of the transcript of the adjourned hearing, last line, the Tribunal asked the applicant if he wished to say anything else about his claim to be gay and to have been raped.  The applicant’s representative indicated that everything had been provided, except perhaps copies of the Facebook communications.  It was agreed that the applicant could provide them later.

7. The adjourned hearing concluded without the Tribunal making any further attempt to contact the psychologist.  The applicant’s representative made detailed submissions at the conclusion of the hearing but did not ask the Tribunal to contact the psychologist again.  The applicant asked how long the Tribunal’s decision would take, without asking the Tribunal to contact the psychologist.  The representative confirmed that the Facebook pages would be provided to the Tribunal after the hearing and they were.

8. The applicant said that the circumstances of this case were substantially the same as those of Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; (2004) 82 ALD 1; (2004) 79 ALJR 397; (2004) 211 ALR 660; [2004] HCA 62. In that case, the Tribunal had said, at the conclusion of the hearing before it, that it would write to the applicant with some further questions, and it would give the applicant 21 days to respond. In fact, the Tribunal made its decision without writing to the applicant at all. The High Court said that those circumstances gave rise to a denial of procedural fairness.

9. The applicant argued that, like the Tribunal in NAFF, the Tribunal in the present case had formed the view that evidence from the psychologist was necessary for the proper conduct of the review, but failed to pursue that evidence.  The applicant argued that because the Tribunal had attempted to contact the psychologist, and had said, “I might try later”, the applicant “was entitled [to be] … kept informed as to whether the psychologist did propose trying the psychologist later.”

10. The difficulty with this is that it is for the applicant to make out his case.  Notwithstanding that, the Tribunal, of its own volition, adjourned the hearing to enable the applicant to provide a report from the psychologist about the disclosures.  The applicant did provide a report from the psychologist but it did not make any mention of any disclosure of rape or homosexuality. The Tribunal, again, of its own volition, then went one step further and attempted to telephone the psychologist, without success. 

11. The statement that the Tribunal “might try later” is not on a par with the Tribunal’s statement in NAFF.  In NAFF, the Tribunal said, “I will” write within a couple of days and “you will have 21 days in which to respond”.  That was a definite commitment.  In the present case, the Tribunal’s statement only expressed a possibility that was subject to further reflection.

12. Moreover, the hearing ended without any request from the applicant’s representative that the Tribunal make a further effort to contact the psychologist, or a request from the applicant’s representative for time to provide a further report from the psychologist. 

13. Even if the applicant were entitled to be kept informed of whether the Tribunal intended to contact the psychologist later, it was clear at the end of the hearing that the Tribunal would not.  There was discussion at the end of the hearing about the applicant’s representative providing copies of Facebook communications, and a query about how long the decision would take.  The Tribunal said the decision would take a few weeks.  That is inconsistent with any intention to contact the psychologist, which would have required the Tribunal to reconvene a further hearing, or at least put the applicant on notice about what the psychologist had said.  In these circumstances, the applicant was, in effect, on notice that the Tribunal would not be getting further evidence from the psychologist.

14. Moreover, the Tribunal accepted, at paragraph 150 of its reasons for decision, that the applicant had disclosed the rapes and possibly his sexuality to the psychologist.  As there is no evidence before this court about what else the psychologist might have given evidence about, there seems to be no basis for concluding that the applicant was disadvantaged in any way by the Tribunal’s treatment of this issue.

15. All in all, I am not persuaded that there was any jurisdictional error in relation to the psychologist.  This ground is not made out.

Ground 3: failure to consider claim

1. The third ground in the amended application filed on 17 June 2014 is as follows:

   3.The Tribunal failed to deal with a claim raised on the evidence.

   Particulars

   a.The applicant led evidence of Facebook exchanges between him and a boy with whom he said he had been in a sexual relationship in Iran.

   b.The Tribunal dismissed the Facebook exchanges as evidence that the applicant was gay.

   c.There was evidence before the Tribunal that Iran conducted surveillance of members of its diaspora worldwide, not limited to prominent dissidents, and that part of the effort involved tracking the Facebook activity of Iranians around the world.

   d.The Tribunal failed to consider whether by reason of the Facebook exchanges, the Iranian authorities might impute homosexuality to the applicant.

2. The applicant argued before this court, but did not expressly say before the Tribunal, that he was at risk of persecution in Iran because the Iranian authorities might perceive him to be a homosexual as a result of the content of his Facebook communications with Mr Y.  The applicant said that the Tribunal had committed a jurisdictional error by failing to consider that issue.  The applicant said that, although he had not expressly raised the issue, it clearly arose from the materials.

3. The materials the claim was said to arise from consisted of the Facebook communications themselves and an extract from the Wall Street Journal contained in a submission dated 8 July 2012 from the applicant’s adviser to the delegate (CB142).  The extract from the Wall Street Journal was dated December 2009 and is as follows:

   In recent months, Iran has been conducting a campaign of harassing and intimidating members of its diaspora world-wide – not just prominent dissidents – who criticize the regime, according to former Iranian lawmakers and former members of Iran’s elite security force, the Revolutionary Guard, with knowledge of the program. Part of the effort involves tracking the Facebook, Twitter and YouTube activity of Iranians around the world, and identifying them at opposition protests abroad these people say.

4. Based on that information, the applicant said that the Iranian government could have read his Facebook communications with Mr Y.  The applicant also said that, although the Tribunal had not considered that the Facebook communications indicated that he was gay, the Iranian authorities might have taken a different view.

5. Copies of the Facebook communications are in the court book at pages 263 to 284.  They are too blurry to read.  Neither party, when this was pointed out, sought to provide the court with clearer copies.  Both parties were content to rely on the Tribunal’s characterisation of the Facebook communications.  The Tribunal said, in relation to them:

   163. The Tribunal accepts that the applicant and [Mr Y] are frequently in contact on Facebook. However, the Tribunal is not satisfied that the exchanges shown to the Tribunal are the expression of feelings between two lovers or former lovers. What was presented as evidence that they had an intimate relationship was anything but romantic; it was a vulgar chat in broken English, which included a crude statement by one of the two men that he wanted to have sex with the other one's grandmother. The use of the heart emoticon during the chat – which the representative suggested was the expression of romantic love and unlikely to be used by two young men who were just friends – should likewise be seen in the context in which it was used. As noted earlier, the applicant and [Mr Y] used various emoticons – at one stage [Mr Y] typed a total of 11 emoticons to the applicant and none of them was a heart. Further, the applicant asserted that he was in constant contact with [Mr Y], yet he showed only the above mentioned couple of pages of chatting in support of his claims.

   164. The Tribunal finds that the applicant and [Mr Y] are just friends, perhaps best friends, two young men who found these crude exchanges amusing and who were experimenting with the many available Facebook emoticons. The Tribunal does not accept the applicant's representative submission that the frequency of communication between the applicant and [Mr Y]was an indication that they were in a sexual or romantic relationship. The Tribunal considers that it merely indicates that they are close friends.

6. I do not accept that the alleged claim clearly arose from the materials.  Assuming that the Iranian government has hackers who can access the applicant’s Facebook communications, those communications, insofar as they are known to the court, do not so clearly point to the applicant being a homosexual that the issue of imputed homosexuality by virtue of the Facebook communications needed to be considered by the Tribunal.  This ground is not made out.

Conclusion

1. As none of the applicant’s grounds has been made out, the application must be dismissed with costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date: 21 July 2014