W384 v Minister for Immigration and Multicultural Affairs

[2001] FCA 1808

FEDERAL COURT OF AUSTRALIA

W384 v Minister for Immigration and Multicultural Affairs
[2001] FCA 1808

W384 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 384 of 2001

CARR J
11 DECEMBER 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 384 OF 2001

BETWEEN:	W384 Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	CARR J
DATE OF ORDER:	11 DECEMBER 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 384 OF 2001

BETWEEN:	W384 Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	CARR J
DATE:	11 DECEMBER 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 31 July 2001, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant. The applicant, who is a citizen of Iran, arrived in Australia on 19 June 2000. On 1 March 2001 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 of the Commonwealth. On 3 April 2001 a delegate of the respondent refused to grant a protection visa and on 6 April 2001 the applicant applied for review of that decision.

   THE APPLICANT’S CLAIMS AND THE TRIBUNAL’S DECISION

2. The applicant's claims, in summary, at his entry interview conducted on 30 June 2000 included the following: 

   ·     He was a single Shiite Muslim born in 1976 who had lived from 1985 (when he was 9 years old) to 2000 at the same address in Teheran. 

   ·     He had worked from 1990 to 1994 as a metal worker and from 1994 to 2000 in a fabric and furniture shop. 

   ·     He had travelled out of Iran on a doctored Iranian passport with his photograph substituting the original.  He obtained the passport through a smuggler in Teheran and threw it away before coming to Australia. 

   ·     He travelled to Malaysia on 10 May 2000 and remained there for five days.  He obtained a valid visa for entry into Indonesia which he claimed to have effected on 16 May 2000.  He remained in Indonesia about a month.

3. Later the applicant revised his claim, stating that whilst he departed Iran under a false identity he also carried with him a genuine and current Iranian passport issued in his own name.  He claimed that the smuggler in Teheran arranged for the genuine passport to be stamped with a counterfeit exit stamp so that the applicant could enter Malaysia and Indonesia.  He claimed the fake one was only used for the purpose of leaving Iran.  Both the genuine and the false passports were, so the applicant claimed, destroyed after leaving Indonesia.  He decided to depart from Iran about five or six months before his arrival in Australia.  He was promoted to sergeant only two months into his compulsory military service and was found worthy of admission into the central Sepah unit.  

4. The reasons which the applicant gave initially for wanting to live away from Iran related generally to what he called a lack of freedom for the people in his country.  He claimed that there was no freedom of thought in Iran, there was not sufficient income paid for one's work in Iran and he could not support himself.  The main most pressing reason for leaving Iran on a false passport was that he had been caught publicly consorting with a street girl with whom he had become acquainted for sexual reasons.  He said that he was arrested and detained about 20 days before his departure.  

5. He said he was charged with having an illegitimate relationship.  The girl was a prostitute and he had paid her not with money but by buying her new clothes.  He claimed he met her in a park, that he was with her one Friday, arrested the same day and went to court on the following day.  The applicant stated that the court sentenced him to 74 lashes and ordered him to marry the girl.  However, the applicant said that he did not receive the lashes because he escaped custody between the courthouse and the place of punishment which was to be the street where he was found with the woman. 

6. In his primary protection visa application, lodged on 1 March 2001, the applicant acknowledged that he did indeed make all the claims, some of which I have referred to, which were recorded by the respondent's Department in his entry interview record.  However, the applicant went on to say that he had not told the truth regarding important aspects of his experiences in Iran on the occasion of his entry interview. 

7. The applicant claimed that he was not caught with a woman but with a boy named Ali Reza who had been his friend for two or three years.  He said they were caught in a park, not on the street.  In effect he was claiming that he was a homosexual.  The applicant claimed that he had been arrested, tortured and tried for sodomy.  The trial took place two days after his arrest.  He and Ali Reza were sentenced to death, but the applicant managed to escape.

8. The Tribunal gave very close examination to all of the applicant's claims in its very lengthy reasons.  It accepted that male homosexuals in Iran constituted a particular social group for the purposes of the Refugees’ Convention.  The Tribunal said that it had great difficulty accepting that a male homosexual in Iran faced a real chance of persecution simply for reasons of being regarded as a homosexual.  In relation to the applicant the Tribunal observed that he appeared to have had a relatively easy life with a family, enjoyed a good military record and lived a stable working life.  No aspect of his life outside his claimed encounter with the authorities in the last days of his time in Iran was indicative of a real chance of his facing persecution in Iran.

9. The Tribunal concluded that the applicant's evidence was simply superficial and contradictory because of a lack of truth.  The Tribunal found that the applicant was not and had never been homosexual.  It then dealt with his claims about the street girl and said that those claims were also fabricated except for the part about being attracted to women sexually.  The Tribunal said that while it could easily accept that the applicant had been caught walking with a prostitute in the streets of Teheran, the individual outcomes which he described were simply fanciful; that is, the penalty including 74 lashes in relation to a crime that could not have involved sex or anyone having witnessed it at the time of the arrest, the penalty including forced marriage to the prostitute and the wildly implausible escape. 

10. The Tribunal said that adding to this the complicated account of two passports, it simply could not accept that all this happened.  However, the Tribunal then considered the applicant's case on the assumption that his evidence about his homosexuality was true.  The Tribunal found two kinds of serious inconsistency in the applicant's evidence.  It detailed those inconsistencies at pages 37 to 39 of its reasons.  The Tribunal concluded its reasons as follows:

    “Having considered all the evidence and bearing in mind its overall impression of the applicant as an unreliable witness in the present matter, the Tribunal does not accept that the applicant departed Iran other than legally or other than on a legitimate passport issued in his own name.  The Tribunal dismisses the applicant's late inclusion of a claim about having to bribe someone to turn a blind eye to his fake or falsified passport as another embellishment.  The Tribunal does not accept that he could have passed such a bribe at the stage suggested.

    The Tribunal does not accept that the applicant could have passed through the airport other than under his own identity.  The Tribunal concludes that he did so on 9 May 2000, not 2 or 3 May 2000.  The Tribunal sees no reason to suspect that the applicant would be unable to pick up a replacement for his "lost" passport and be permitted to re-enter Iran without incident.  The Tribunal does not accept that the knowledge of the applicant being a long-term immigration detainee in Australia would lead to significant concerns about his having slandered the Islamic revolution.

    The Tribunal accepts that the applicant desired to travel around six months before he left Iran, that he set about doing so and left when he was ready having chosen Australia as what he considered the easiest developed country to reach without a visa in spite of there being relatives in the Netherlands and Germany.  The Tribunal accepts as factual the applicant's stated economic motivations for coming to Australia.  These are not convention related nor are the complaints he initially cited relating to curbs on freedom in Iran.  The applicant is an entirely unreliable witness in the present matter.  The Tribunal is not satisfied on the evidence before it that the applicant faces a real chance of convention related persecution in Iran.  He is not a refugee.”

    GROUNDS OF THE APPLICATION

11. In the application filed in this court the grounds were stated as follows:

    “(a)There was no evidence or other material to justify the making of the decision that the applicant did not have a well-founded fear of persecution by reason of his homosexuality if he returned to Iran within the reasonably foreseeable future.

    (b)The decision involved an error of law being an error of law involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal or both.”

12. The applicant was not legally represented at the hearing before me today.  He made oral submissions to me at some length which were of a factual nature or which related to the merits of the Tribunal's decision or both.  It is quite clear that this Court cannot concern itself with such matters. 

13. In those circumstances, I have scrutinised the papers and the Tribunal's reasons to see whether there was reviewable error.  I should say that at various stages of his oral address the applicant referred to what he regarded as inconsistencies on the Tribunal’s part.  For example, he put to me that the Tribunal had found, first, that he was not a homosexual and then later found that he was a homosexual and there was thus an inconsistency in the Tribunal's reasoning. 

14. Even if that were a ground of review, which it is not in my view, I think that the explanation for the applicant's perception of what the Tribunal did lies in the fact that the Tribunal, having found against the applicant on his claims of homosexuality, then reapproached the matter on the basis that those claims were believable.  As I have said in my description above, it exposed flaws in the applicant's evidence which it discussed over the pages to which I have referred. 

15. Turning to the two grounds of review, in my view it is quite clear that there was evidence or other material to justify the making of the decision that the applicant did not have a well-founded fear of persecution. 

16. The basis for the Tribunal's decision was simply that it did not believe the applicant.  This can be seen in particular in the last few paragraphs of the reasons which I have set out verbatim above, but it can also be seen in numerous passages throughout the long set of reasons published by the Tribunal. 

17. As to the second ground of review, error of law, in my opinion the Tribunal in the earlier part of its reasons set out the relevant law correctly and there is nothing later in its reasons to suggest that it did not apply the law as earlier recited.

18. In my view, the Tribunal's conclusion that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention was open to it on the material before it.  In reaching that conclusion I do not think that it made any reviewable error, whether error of law or jurisdictional error.  In those circumstances, the application will be dismissed.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

A/g Associate:

Dated:             11 December 2001

The Applicant appeared in person:
Counsel for the Respondent:	Mr A A Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 December 2001
Date of Judgment:	11 December 2001