MZYNT v Minister for Immigration & Anor [2011] FMCA 989 (20 December 2011)

Last Updated: 21 December 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYNT v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 989

MIGRATION – Independent Merits Review – whether the conclusion that the applicant is not gay was irrational or not based on evidence – whether the applicant was denied procedural fairness.

Migration Act 1958 s.477

Luu v Renevier (1989) 19 ALD 521; (1989) 91 ALR 39; [1989] FCA 518 SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; [2010] HCA 16 Thevendram v Minister for Immigration and Multicultural Affairs (2000) 182 ALR 290; [2000] FCA 1910 Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577; (2010) 119 ALD 90; (2010) 274 ALR 487; [2010] FCAFC 159 Kioa v West (1985) 159 CLR 550; (1985) 60 ALJR 113; (1985) 62 ALR 321; [1985] HCA 81

Applicant:

MZYNT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File number:

MLG 945 of 2011

Judgment of:

Riley FM

Hearing date:

8 December 2011

Date of last submission:

8 December 2011

Delivered at:

Melbourne

Delivered on:

20 December 2011

REPRESENTATION

Counsel for the Applicant:

Nola Karapanagiotidis

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Garry Livermore

Solicitors for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Australian Government Solicitor

ORDER

(1) The time for filing the application be extended to 7 July 2011.

DECLARATION

In recommending to the first respondent that the applicant is not a person to whom Australia owes protection obligations, the second respondent made an error of law in that there was no evidence to support a critical aspect of the reasons for the recommendation.

ORDER

(2) The first respondent by himself and his servants and agents be restrained from relying on the recommendation.

(3) The first respondent pay the applicant’s costs fixed in the sum of $6,240.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 945 of 2011

MZYNT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks:
   1. an extension of time in which to file his judicial review application filed on 7 July 2011; and
   2. in the event that the extension of time application is successful, review of the recommendation of the Independent Merits Reviewer that Australia does not owe protection obligations to the applicant.
2. The applicant is a citizen of Iran. He was a Shia Muslim on arrival in Australia, but claims to have subsequently converted to Christianity. The applicant arrived at Christmas Island on 31 January 2010. The applicant applied for a Refugee Status Assessment. On 2 May 2010, the assessor assessed the applicant as not being a person to whom Australia owes protection obligations. On 29 June 2010, the applicant requested an independent merits review. On 21 March 2011, the reviewer recommended that the applicant not be recognised as a person to whom Australia owes protection obligations.

Extension of time application

3. It was common ground that the application was filed out of time, and that the matter could only proceed if an extension of time were granted under s.477 of the Migration Act 1958. The first respondent did not oppose the extension of time being granted.
4. The relevant matters to consider in determining an extension of time application are:
   1. the extent of the delay;
   2. the reason for the delay;
   100. the prejudice to the applicant, the respondents and any other relevant people arising from granting or not granting the extension; and
   4. the merits of the substantive claim.
5. The applicant was given the reviewer’s decision on 24 March 2011. He had 35 days from that date to file an application with this court. That is, he had until 27 April 2011. His application was in fact filed on 7 July 2011, meaning that it was about 40 days late.
6. The applicant said in an affidavit affirmed on 11 November 2011 that he was detained at Villawood Detention Centre at the time that he was given the reviewer’s decision. Before he was able to get legal assistance, riots occurred at Villawood. Consequently, the applicant was moved to Silverwater Prison on 22 April 2011, although he had not been charged with any crime. The applicant was transferred from Silverwater Prison to Maribyrnong Detention Centre on 11 May 2011. Subsequently, the applicant was able to obtain legal assistance from Victoria Legal Aid.
7. There is potentially very grave prejudice to the applicant if the extension of time is not granted. There was no suggestion of any particular prejudice to the first respondent or any other person if an extension of time is granted. However, there is clearly a public interest in the prompt resolution of public law matters.
8. There is some merit in the substantive proceedings, in the sense that a number of the matters raised are at least arguable, as can be seen from the reasons given below.
9. I consider, in all the circumstances of this case, that it is appropriate to grant an extension of time. The delay is short. The explanation for the delay is more than reasonable. The prejudice to the applicant of not granting an extension of time is potentially grave while the prejudice to others is slight. There is some merit in the substantive proceeding.

Claims

10. The applicant said in a written statement dated 26 March 2010 that he had owned a sandwich shop in Tehran. He said that while working there he met another man, A, who worked next door to him in a photo shop. The applicant said that he developed a relationship with A. The applicant said that, when he had been in a serious permanent relationship with A for one and a half years, A asked if he could film the two of them engaging in sex together. The applicant agreed. The applicant said that A would also go to gay parties and film them as part of his job.
11. The applicant said that on 10 January 2010, A’s shop was raided by the police. The applicant said that he saw the police take away A and his computer. The applicant said that he then went into hiding because he knew that the film of himself and A, as well as the films A had taken at gay parties, were on A’s computer.
12. The applicant said that on 12 January 2010, his own shop was raided. The applicant said that he telephoned his home a couple of days later. His mother said that the police had taken the applicant’s computer. The applicant became even more fearful, because his computer also contained a copy of the films. The applicant said his family and friends did not know that he was gay.
13. The applicant said that one of his customers had previously told him that he was able to make false passports. The applicant contacted the man, who was able to arrange a false passport for him. The applicant left Iran on 17 January 2010.
14. The applicant claimed to fear persecution on the basis that he is gay. He said he feared that the authorities, his family and other Islamic people will kill him.

The decision of the assessor

15. The assessor considered that it was implausible that the applicant would have agreed to being filmed while engaging in a homosexual act. However, the assessor accepted that the applicant might be a homosexual. Nevertheless, the assessor considered that the applicant should be discreet, and by doing so would be able to avoid persecution.

The decision of the reviewer

16. The reviewer accepted that the applicant was a citizen of Iran. The reviewer found that the applicant’s evidence regarding his relationship with A, and the timing of the filming, had changed considerably. The reviewer did not accept that the applicant was a witness of truth. The reviewer did not accept the applicant’s claims to have been in a relationship with A or to have permitted a film to be made of the two of them engaging in sexual activity.
17. The reviewer went on to consider whether the applicant identified as a gay man. For reasons that he gave, the reviewer did not accept that the applicant identifies as being a gay man.
18. The reviewer accepted that the applicant had attended Christian meetings. However, the reviewer concluded that the applicant was not a genuine Christian and that he purported to have converted to Christianity solely for the purpose of his refugee application.
19. The reviewer did not accept that the applicant would, in the reasonably foreseeable future, face a real chance of serious harm in Iran as a returnee from a Western country or as a failed asylum seeker returning from a Western country.

Ground 1

20. The first ground of review in the amended application filed on 3 November 2011 is:
    • The reviewer’s finding that the applicant did not identify as a gay/LGBT man was a finding made without evidence and/or was unreasonable
    • Particulars
      • (a) The IMR reviewer made a finding that the applicant did not indentify as a gay/LGBT man.
      • (b) The finding was based upon the reviewer’s “difficulty” in accepting that (i) attendees at gay parties permitted themselves to be film[ed]; and (ii) that the applicant had no concept of the use of codes to refer to other gay men.
      • (c) The finding of the reviewer was based on impression and assumptions and not evidence. In addition, or in the alternative, the finding of the reviewer was unreasonable.
21. In relation to this issue, the reviewer said:
    • 112. I next considered whether, despite my finding that he in not a witness of truth, the claimant identifies as being a gay man. I acknowledge the agent’s submission:
      • While we certainly believe that [the applicant] is a witness of truth in his claim that he is an LGBT person, we acknowledge that you have concerns about aspects of that part of his claim relating to the filming of a sex act with his partner. As advised at the Hearing we believe that you could properly conclude that our client is an LGBT person without relying on the truth or otherwise of those aspects of that part of his claim relating to the filming of the act about which you have doubts. We submit also that the law in Australia and the UNHCR guidance notes on refugee claims relating to sexual orientation and gender identity strongly support that, in the circumstances of these claims, decision-makers must lean towards giving the applicant the benefit of the doubt. Further, the High Court of Australia noted, in relation to LGBT applicants who have concealed their sexual orientation in the country of origin and who might not have experienced harm in the past sufficient to amount to persecution, “it is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider the issue properly”. (emphasis added)
    • 113. The claimant’s evidence is that he had little interaction with other gay men in his life. At my interview he described a 2 year relationship with a school friend, although said they were afraid and always hiding and he had to pretend. He stated in college he met people who identified as being gay, but he had no other relationship as they were all scared and all pretending. People questioned him and asked why he was not interested in girls: he told them he was not gay. He performed his military service in administration, and pretended he had a girlfriend, talked about girls, and ‘moved and acted like other men’. He then described going to gay parties but only with [A].
    • 114. However, I have additional serious concerns with his story of life in Iran as a gay man. It is difficult to accept that in Iran, attendees at gay parties permitted themselves to be filmed and videoed (because the attendees wanted a visual record for the memories), in the light of the life threatening consequences of discovery. It is also difficult to accept that the claimant, having attended gay parties with [A] as he claims, and so having interacted with gay men, nonetheless had no concept of the use of a code word used by gay men concerning other gay men. (emphasis added)
    • 115. The psychological report dated 20 February 2011 describes the claimant’s claims to be a gay man and describes his claims to have suffered unwanted attention from detainees, and his sadness at his family’s claimed reaction to his sexuality. However, although the report outlines the claims made by the claimant to the psychologist, and sits with what he told me, I note the report does not offer a conclusion on the claimant’s claimed sexuality.
    • 116. In sum, based on the material before me, including the psychological report dated 20 February 2011, I do not accept that the claimant identifies as a gay/LGBT man. I do not accept that he has had difficulties whilst in detention for the reasons of being a gay man or being perceived as a gay man. I do not accept he is a member of a particular social group such as homosexuals. I conclude that he has fabricated this story solely in order to seek Australia’s protection. I do not accept that he departed Iran because of his sexuality or his claimed fear of the Iranian authorities because of his sexuality. I do not accept that he has any fear of harm in Iran (from the authorities, his family or anyone else) because of his sexuality. In the light of all of my findings, I do not accept the Iranian authorities have had or will have any interest in him because of his sexuality. I do not accept that in Iran he will face persecution for reason of membership of a particular social group such as homosexuals.
22. The first respondent submitted that the evidence was that the applicant had not identified as gay because he said that when he was in college, he told people he was not gay and pretended to have a girlfriend. However, the question is how the applicant identified himself, not how other people identified him.
23. The first respondent conceded that there was no evidence before the reviewer that supported the reviewer’s views in relation to the use of a code word for gays in gay society in contemporary Iran. The first respondent also conceded that, if the reviewer’s approach to that issue had been critical to the decision, the first respondent would have made no attempt to defend the decision.
24. The first respondent submitted that the relevant test was stated in Luu v Renevier [1989] FCA 518; (1989) 19 ALD 521; (1989) 91 ALR 39 at 47, where the Full Federal Court said:
    • The effect of a finding of fact by a decision-maker which is unsupported by the evidence must depend upon the significance of that finding. If the finding relates only to a matter of peripheral importance, the validity of the decision may remain unaffected. But where the finding is critical to the ultimate decision, it is impossible to sustain the decision.
25. The first respondent also relied upon SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231;at [19], where the Full Federal Court said:
    • If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355-357.
26. The first respondent submitted that the reviewer’s reference to code words was an ancillary matter that was by no means critical to the decision ultimately reached by the reviewer. The first respondent argued that the reviewer rejected the applicant’s claims in their entirety, because the reviewer found the applicant’s story about A to be entirely implausible, for sound and unchallenged reasons.
27. However, that was not the process of reasoning followed by the reviewer in this case. The reviewer proceeded on the basis that the applicant might have been telling the truth about being gay, even though he had lied about A. The reviewer in his reasoning process treated the claim that the applicant was gay as being distinct from his claims about A. The reviewer did not say, “I do not believe the applicant is gay because his story about A is total fabrication and I do not believe a word the applicant says.” Rather, the reviewer said, after rejecting the claims about A:
    • I next considered whether, despite my finding that he is not a witness of truth, the claimant identifies as being a gay man.
28. The reviewer proceeded to give his reasons for disbelieving that the applicant is gay. In paragraph 113 of his reasons, the reviewer recounted some of the applicant’s evidence about his involvement with other gay males from his school days onwards and characterised it as amounting to “little interaction”. The reviewer appears to have considered that evidence to provide some support for the applicant’s claims because the reviewer then said, at paragraph 114:
    • However, I have additional serious concerns with his story of life in Iran as a gay man.
29. The use of the word, “however”, suggests that what follows contrasts with what went before. The reviewer then gave two reasons for disbelieving the applicant’s claim to be gay. The reviewer described those two reasons as being “serious concerns”. By describing the concerns as “serious”, the reviewer made it clear that it did not regard them as peripheral, or inconsequential, or ancillary.
30. However, the first respondent argued that, by describing the serious concerns as “additional”, the reviewer signalled that his other, real reason for disbelieving that the applicant is gay was that he had lied about A and everything the applicant said about being gay was untrue.
31. I am unable to accept that submission. The reviewer simply did not say that. The reviewer was patently attempting to give reasons for disbelieving that the applicant was gay that were distinct from his reasons for disbelieving the claims about A. In doing so, the reviewer relied substantially on his conclusions about the code words when the reviewer apparently had no evidence to support those conclusions.
32. The fact that the reviewer relied substantially on his conclusions about code words is confirmed by paragraph 115 of his reasons. In that paragraph, the reviewer simply noted that a psychological report on the applicant expresses no opinion on the applicant’s claimed sexuality. That is, the psychological report is neutral. Consequently, the only matters expressly supporting the reviewer’s conclusion that the applicant is not gay are the two “additional serious concerns”.
33. The reviewer stated his conclusions on the question of the applicant being gay in paragraph 116 of his reasons in the following terms:
    • In sum, based on the material before me, including the psychological report dated 20 February 2011, I do not accept that the claimant identifies as a gay/LGBT man.
34. The material before the reviewer obviously included the material in relation to A that the reviewer disbelieved. However, on a fair reading of the reviewer’s reasons, the reviewer did not rely on his view of that material to reach his conclusion that the applicant is not gay. That is because the reviewer did not refer to his view about the claims regarding A at any point in his consideration of whether the applicant was gay, and because he began his consideration of that question by saying:
    • I next considered whether, despite my finding that he is not a witness of truth, the claimant identifies as being a gay man.
35. On a fair reading, both of the two “additional serious concerns” were operative considerations in the reviewer’s ultimate decision and, in that sense, are critical. They were steps along the way, rather than irrelevant asides.
36. As has been said, the reviewer’s second concern, regarding the code word, was unsupported by evidence. The first concern was that it was said to be difficult to accept that people at gay parties in Iran would allow themselves to be filmed because it could have life threatening consequences. This concern of the reviewer was said to be irrational, because, as a matter of common knowledge, people do all sorts of things even though they are very dangerous.
37. In this connection, the applicant relied upon Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; [2010] HCA 16 at [130], where Crennan and Bell JJ said:
    • 130. In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
38. The applicant also relied upon Thevendram v Minister for Immigration and Multicultural Affairs (2000) 182 ALR 290; [2000] FCA 1910 at 59, where Merkel J discussed findings that evidence is implausible, incredible or concocted and said:
    • Anyone experienced in fact-finding would be well aware that in the usual course clear and cogent evidence is necessary before such strong findings are made against a witness. Whether, and in what circumstances, a court can set aside a decision under the Act that has been made on the basis of such findings is a vexed question. It is sufficient for present purposes to state that it would be an abuse of the powers and duties of a tribunal to make findings in such terms for the purpose of immunising the decision from judicial review or without having a proper basis for doing so.
39. The first respondent relied on Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577; (2010) 119 ALD 90; (2010) 274 ALR 487; [2010] FCAFC 159 at [83] and [84], where Nicholas J said:
    • 83. If the Tribunal’s lack of satisfaction that the respondent was a person to whom Australia owed protection obligations was based on its assessment of the extent of the respondent’s knowledge of the Bible when compared to what might reasonably be expected of a person who believed in and practiced Christianity in China from 2004 until 2008, I would readily agree with Jacobson J that the Tribunal’s decision could not be permitted to stand. However, as its reasons for decision make clear, there were other matters which led the Tribunal to find that the respondent was not a credible witness. It drew upon these “singularly and cumulatively” in support of that finding.
    • 84. The other matters relied upon by the Tribunal were logically and rationally capable of supporting the Tribunal’s finding that the respondent was not a witness of truth. Once the Tribunal found, as was open to it, that the respondent was not a witness of truth, it was also open to the Tribunal to hold that it was not satisfied that the respondent was a non-citizen to whom Australia owed protection obligations.
40. However, in the present case, the reviewer did not say that he relied “singularly and cumulatively” on various matters to conclude that the applicant was not a witness of truth. On the contrary, the reviewer said that he:
    • considered whether, despite my finding that he is not a witness of truth, the claimant identifies as being a gay man.
41. This is not a case where there is a separate and defensible strand of reasoning which supports the recommendation. The question of whether the applicant was gay was the principal issue, as the discussion below in relation to the second ground of review makes abundantly clear. The two “additional serious concerns” identified by the reviewer were evidently cumulative reasons, rather than separate reasons, either of which would have led the reviewer to the same conclusion.
42. The first respondent also relied on the following passages from the judgment of Crennan and Bell JJ in SZMDS at [133] and [135]:
    • 133. ...the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it.

...

• 135. ...a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker.

43. Additionally, the first respondent relied on SZMDS at [78] where Heydon J said:
    • 78. The issue was one on which minds might differ. The Federal Court evidently operated on one assumption or conclusion about that issue. The Tribunal operated on another. The difference was one of degree, impression and empirical judgment. It did not stem from an error in logic by the Tribunal member. The difference could not be said to reveal an absence of any basis whatsoever for her conclusion.
44. As a matter of common knowledge, people risk their lives every day by engaging in all sorts of activities that might appear to others to be incredible. For example, people continue to engage in BASE jumping, notwithstanding occasional deaths. It is reported that a significant number of gay men continue to have unprotected sex with other gay men, notwithstanding the known risk of contracting AIDS. Many people continued to protest in Tahrir Square earlier this year, notwithstanding the risk of being shot.
45. However, that does not mean that it is irrational, in the necessary sense, to find it difficult to believe that a particular person would undertake a particular act for particular reasons in circumstances that could cause his death. There are things that are so dangerous, and have so little benefit, that it could reasonably be concluded that no one would do them. It seems to me that the reviewer’s concerns about filming gay parties in Iran were a matter of that type, and were a matter of “degree, impression and empirical judgment”.
46. That is not to say that, by itself, finding it difficult to believe that people at gay parties in Iran permitted themselves to be filmed is a rational basis for concluding that the applicant is not gay. It is patently insufficient.
47. In any event, as indicated in the discussion above relating to code words, one of the two substantive reasons that the reviewer gave for disbelieving the applicant’s claim to be gay was unsupported by evidence. Consequently, the recommendation made by the reviewer was not made in accordance with law. There will be a declaration accordingly.

Ground 2

48. The second ground of review in the amended application filed on 3 November 2011 is:
    • The reviewer denied the applicant procedural fairness by failing to notify the applicant adequately of the issues to which its reasoning processes were directed
    • Particulars
      • (a) Before the reviewer there was evidence that the applicant had experienced significant difficulties in detention because of his sexuality and/or perceived sexuality.
      • (b) The reviewer found that the applicant had not experienced the claimed difficulties in detention.
    • (c) The reviewer failed to raise this issue with the applicant.
      • (d) The issue was important as it corroborated the applicant’s claims as to his sexuality.
      • (e) The Reviewer took no steps to identify to the applicant that this was an issue under review and thereby denied the applicant procedural fairness.
49. This ground is based on the reviewer’s statement at paragraph 116 of the reasons for his recommendation that:
    • I do not accept that [the applicant] has had difficulties whilst in detention for the reasons of being a gay man or being perceived as being a gay man.
50. The applicant argued that, if he had known that the reviewer might not have accepted his claims about his experiences in detention as a result of being gay, he could have obtained records from the detention centre to substantiate his claims, and those records would have corroborated his claim that he was gay.
51. From a procedural fairness point of view, it is noteworthy that the original assessor actually accepted that the applicant was gay, but said he would not face a real chance of persecution because he should be discreet. Consequently, the applicant could have approached the review thinking the reviewer would accept his claim about being gay.
52. However, the applicant obviously became aware during the interview with the reviewer that the reviewer did not necessarily share the assessor’s view that the applicant was gay. That is clear from the applicant’s adviser’s submission, set out at paragraph 112 of the reviewer’s reasons, which was in the following terms:
    • While we certainly believe that [the applicant] is a witness of truth in his claim that he is an LGBT person, we acknowledge that you have concerns about aspects of that part of his claim relating to the filming of a sex act with his partner. As advised at the Hearing we believe that you could properly conclude that our client is an LGBT person without relying on the truth or otherwise of those aspects of that part of his claim relating to the filming of the act about which you have doubts. We submit also that the law in Australia and the UNHCR guidance notes on refugee claims relating to sexual orientation and gender identity strongly support that, in the circumstances of these claims, decision-makers must lean towards giving the applicant the benefit of the doubt. Further, the High Court of Australia noted, in relation to LGBT applicants who have concealed their sexual orientation in the country of origin and who might not have experienced harm in the past sufficient to amount to persecution, “it is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider the issue properly”.
53. It is also clear from the oral submissions made during the interview with the reviewer that the applicant’s adviser knew that the reviewer did not necessarily accept that the applicant was gay. The transcript of the interview is attached to the applicant’s written submissions to this court.
54. At page 47 lines 27 to 28 of the transcript, the adviser said that there are two issues. He then said, “One is ... is he a gay man.” The adviser spent some time explaining why the reviewer should accept that the applicant is gay. The adviser recounted the applicant’s evidence about his early life, and said, to that point, the evidence cannot be faulted. However, at page 48 lines 16 to 22 of the transcript, he then addressed the part of the applicant’s claims about A, and said that asylum seekers are desperate, and they sometimes embellish their stories.
55. The reviewer said, at page 50 lines 28 to 32 of the transcript:
    • Sir, your agent ... points out that the crucial issue is whether you are a gay man; the issue of whether you may have embellished the story about the incident with [A]; he suggests that your evidence about your life in Iran was largely plausible and believable.
56. The adviser then said, also at page 50 line 46:
    • the critical issue is, as we said, is he a gay man or not?
57. The reviewer responded, at page 51 line 1:
    • ... I think that’s right. ... the main issue is whether you are a gay man ... .
58. In this way, the reviewer clearly indicated that the principal issue in the case was whether the applicant was gay. The applicant and his adviser were well aware of that. It was up to the applicant to put whatever material he wished to support his case, including detention centre records if he thought that would help. The requirements of natural justice did not require the reviewer to do more than put the applicant on notice that there was a question about whether he was gay. The reviewer was under no obligation to put the applicant on notice that he might reject subsidiary aspects of that claim. It was not suggested that being harassed while in detention constituted a separate basis on which the applicant might be persecuted in Iran. This ground is not made out.

Ground 3

59. The third ground of review in the amended application filed on 3 November 2011 is:
    • The reviewer denied the applicant procedural fairness by failing to provide and/or adequately provide the applicant with adverse country information and/or an opportunity to comment upon adverse country information.
    • Particulars
      • (a) The reviewer relied upon country information referred to in paragraph [85] to [96] of its decision.
      • (b) The country information was credible, relevant and significant.
      • (c) In particular, the reviewer referred to country information concerning ‘exit procedures and false passports’ [88] – [92].
      • (d) The reviewer failed to put and/or failed to adequately put to the applicant the content of the information under ‘exit procedures and false passports.’
60. This ground concerns paragraphs 117 and 118 of the reviewer’s reasons, which are as follows:
    • 117. A submission argues that the claimant departed on a false Iranian passport, because it had been obtained for the claimant by a smuggler on payment of a bribe. However, I do not accept the claimant departed Iran for the reasons he has given and so I do not accept that he departed with any urgency. I am therefore not satisfied he organised a false passport through a people smuggler at additional expense when there would be been no need to. Country information shows the claimant, who had completed his national service, would reasonably have been able to apply for and obtain an Iranian passport.
    • 118. Additionally, he claims that he purchased a passport which did not contain his photo. However, there are exit procedures from Tehran Imam Khomeini Airport in place (see information under ‘Exit procedures and false passports’ above) and it is highly unlikely he would have got past the various passport checks using a passport with a photo of another person. The agent suggests bribery was used at the airport, however, at my interview the claimant stated bribery had not been used to get him through the airport. The claimant’s uncomplicated departure from Tehran Imam Khomeini Airport does not support his claim he departed on a false passport that did not even have his photo. On the material before me, I am not satisfied he travelled on a false Iranian passport.
61. Country information cited at paragraph 93 of the reviewer’s reasons indicates that, if a person returns to Iran without a valid passport, he or she will be arrested and the circumstances of his or her departure will be investigated. If the person is found to have left illegally, he or she will be sentenced to between one and three years imprisonment, or fined between 100,000 and 500,000 Rials. The investigation will also consider the reasons for the illegal departure, and any offences discovered will also be prosecuted.
62. The applicant said that the country information concerning the ease with which he could have obtained an Iranian passport was never put to him, and that this failure constituted a jurisdictional error.
63. The only basis for the applicant’s claim that he had departed Iran on a false passport was his claim that the authorities knew that he had engaged in homosexual activities and they were trying to arrest him. The reviewer rejected that claim. Consequently, on the material before the reviewer, there was no reason for the applicant to have left Iran on a false passport and the reviewer concluded that he had not. It follows, as the applicant said he left Iran through the airport after showing a passport, that he must have shown a genuine passport.
64. In those circumstances, what the country information showed about the ease with which the applicant was able to obtain a genuine passport was irrelevant, and the reviewer’s comments about the issue were an aside. There was no need for the reviewer to put to the applicant country information that was of little or no significance to the decision to be made: Kioa v West (1985) 159 CLR 550; (1985) 60 ALJR 113; (1985) 62 ALR 321; [1985] HCA 81 at 628-9 per Brennan J. This ground is not made out.

Conclusion

65. As one of the applicant’s grounds has been made out, there will be a declaration and injunction as sought by the applicant. The first respondent must pay the applicant’s costs.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Riley FM

Date: 20 December 2011