FEDERAL COURT OF AUSTRALIA

SAAM v Minister for Immigration & Multicultural Affairs

[2002] FCA 444

IMMIGRATION – application instituted outside 28 days from notification of decision of Refugee Review Tribunal – whether the Court can extend the time within which the application may be made – application dismissed.

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 475A, 474(2), 477(2) 478(1)(b) and (2)

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

Long v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 164, referred to

Salehi v Minister for Immigration & Multicultural Affairs [2001] FCA 995, applied

Kucuk v Minister for Immigration & Multicultural Affairs [2001] FCA 535, referred to

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, referred to

SAAM v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

S.195 of 2001

MANSFIELD J

18 APRIL 2002

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application is dismissed.

2.                  The applicant pay to the respondent costs of the application.

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

REASONS FOR JUDGMENT

1                     The applicant arrived in Australia on 9 April 2001.  On 25 April 2001 he applied for a protection visa under the Migration Act 1958 (Cth) (the Act).  On 16 May 2001 a delegate of the respondent refused to grant that application.  The applicant then sought review of that decision by the Refugee Review Tribunal (the Tribunal), and on 3 July 2001 the Tribunal affirmed the decision of the delegate of the respondent not to grant to the applicant a protection visa under the Act.

2                     On 1 November 2001 the applicant applied to the Court to review the decision of the Tribunal.  To the extent to which that application could then validly be made, it can only be an application under s 39B of the Judiciary Act 1903 (Cth).  That is because the application was made after the Act was amended by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (the amending Act), which came into force on 2 October 2001.

the competency of the application

3                     The respondent has objected to the competency of the application as it was not made within 28 days of the applicant being notified of the decision of the Tribunal.  Section 477(1) of the Act requires an application to the Court under s 39B of the Judiciary Act in respect of a privative clause decision in which the Court has jurisdiction to be made to the Court within 28 days of the notification of the decision.  The Court has jurisdiction under s 39B of the Judiciary Act, as recognised by s 475A of the Act.  The decision of the Tribunal is a privative clause decision as defined in s 474(2) of the Act.  Section 477(2) of the Act provides that the Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application to the Court under s 39B of the Judiciary Act outside the period of 28 days from notification of the decision.  Before the Act was amended, there were provisions to like effect then contained in s 478(1)(b) and (2) of the Act.

4                     The respondent has proved that the Tribunal’s decision of 3 July 2001 was sent by facsimile to the Woomera Immigration Reception and Processing Centre (the Woomera IRPC).  That address was the applicant’s address given on his application to the Tribunal.  The Manager of the Woomera IRPC was requested to pass to the applicant the decision and an accompanying letter dated 4 July 2001, informing him that his application for the visa had been refused, and of his right to seek review by the Court provided application was made to the Court within 28 days of that notification.  It has also been proved to my satisfaction that the applicant was then given that letter and the Tribunal decision on 4 July 2001. The applicant accepted at the hearing that he had been notified of the Tribunal’s decision on 4 July 2001 through an interpreter, and that he was told that he had 28 days within which to complete any application to the Court, although he claims that he did not understand what it was that he was then required to do.  I am satisfied that the applicant understood the nature of the Tribunal’s decision, in particular that it had affirmed the decision not to grant him a protection visa;  see Long v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 164.

5                     At the time of the notification, the applicant was given two forms, with the option of completing one or the other.  One was a form indicating, in effect, that he accepted the decision of the Tribunal and requesting the respondent to make arrangements for him to be returned to his country of origin.  The other is a form acknowledging that he has been advised of the Tribunal decision, and that he wished to speak to his lawyer.

6                     The applicant has not put on any affidavit evidence explaining why his application is out of time.  He submitted orally, and in the statement filed at the same time as his application to the Court (entitled “affidavit” although not duly sworn) that he believed that if he wished to seek review by the Federal Court he needed only to complete the sheet of paper indicating that he wished to consult his lawyer.  He said that he completed that form promptly, well within the 28 day period.  He had given it to an officer at the Woomera IRPC.  He thought that it was a formal application to the Court.  He did not hear anything for some time, and inquired as to why he had not heard.  Eventually he learnt that it was necessary for a formal application to be made to the Court.  He said that he then promptly applied by application dated 31 October 2001.  No other document had been lodged with or sent to the Court prior to that date.

7                     On the assumption that I accept what the applicant had put to me, his circumstances demonstrate the disadvantageous position in which persons with limited English skills in the Woomera IRPC, and I assume other immigration reception and processing centres, often find themselves.  It is easy to understand how, given the applicant’s circumstances, he thought that he had made an application to the Court by filling out the form indicating that he had been advised of the decision of the Tribunal on 4 July 2001 and that he wished to speak to his lawyer.   In the light of his then attempts to follow up that document by inquiries, it is readily acceptable that he acted consistently in his belief that that document constituted an application to the Court, and that he had duly made such an application.  For reasons which appear below, however, it is not necessary to decide whether I formally accept the applicant’s explanation for the delay.  If the acceptance of his explanation for his delay could make any difference, then I would have given him the opportunity to verify what he claimed by evidence given on oath and, of course, to have given the respondent the opportunity to test that evidence.  If his explanation were accepted, it would clearly provide a satisfactory explanation as to why the application was so belated.

8                     However, as the notice of objection to competency indicates, the respondent contends that s 477(2) in conjunction with s 477(1) precludes the Court from granting to the applicant any extension of time within which to make the application, whatever the circumstances.

9                     In Salehi v Minister for Immigration & Multicultural Affairs [2001] FCA 995 (Salehi) I addressed a claim similar to that which the applicant now presents.  It related to s 478 of the Act in its form prior to its amendment by the amending Act.  There is a long line of cases to which I there referred where applications for judicial review under the Act, made outside the 28 day period, had been held to be incompetent and had been dismissed:  see [36].  I decided in that case that the effect of s 478(1)(b) and (2) as then in force was plain:  those provisions precluded the Court from extending time to any applicant to institute and maintain an application for judicial review under the Act.  I can see no relevant difference between the wording of those provisions and the wording of s 477(1) and (2) as now in force in the Act.  Nor can I see any relevant difference by virtue of the source of the Court’s jurisdiction to review decisions of the Tribunal now being under s 39B of the Judiciary Act, rather than being directly under the Act, nor how that jurisdiction may be invoked.

10                  In those circumstances, I follow the decision in Salehi for the reasons I there expressed.  As I pointed out in that case, the decision of Hely J in Kucuk v Minister for Immigration & Multicultural Affairs [2001] FCA 535 is to the same effect.

11                  Accordingly, I accept the respondent’s contention that the application is incompetent because it is out of time.  I further accept that I do not have the power to extend the time within which the applicant may bring an application under s 39B of the Judiciary Act to review the Tribunal’s decision.  I must therefore uphold the objection to competency and dismiss the application, irrespective of the circumstances in which the application came to be filed out of time.

the merits of the claim

12                  As the respondent and the applicant each addressed the merits of the applicant’s claim in any event, I think it is appropriate that I also deal with those issues.

13                  To be eligible to be granted the visa, it was necessary that the Tribunal be satisfied that the applicant is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention):  s 36(2) of the Act.  In effect, in the present circumstances, it was necessary for the Tribunal to be satisfied that the applicant is a refugee as defined in Article 1A(2) of the Convention, namely a person who:

“Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …”

(a)        the applicant’s claims

14                  The applicant is a citizen of Iran, now aged about 24.  He completed education to year nine level in 1993, and then worked for a time as a house painter before undertaking military service between 1996 and 1998.  From September 1999, he trained as a welder for six months and then worked as a welder until September 2000.

15                  He claimed to the Tribunal to have a well-founded fear of persecution by reason of his membership of a particular social group, namely homosexuals in Iran.  He told the Tribunal that he had had spasmodic homosexual experiences since the age of about 15, but all of them had been conducted very discreetly.  In August 2000 he had attended a small party at which those present had engaged in homosexual practices.  On that occasion, one or two of the persons present was a member of the military forces, and subsequently had been detected as having engaged in homosexual practices.  The applicant claims that he too was then identified as having been present on that occasion, and that steps were taken to have him arrested.  He fled his home, and hid for a time before leaving Iran in December 2000.  He told the Tribunal that he had done so with the facility of a false passport.  He claimed that he feared that if he were to return to Iran, he would be charged with rape or sodomy because of his homosexual activities, and would suffer persecution, perhaps even death, for that reason.  He had a supplementary claim which he expressed to the Tribunal of fearing persecution by reason of having left Iran illegally.

(b)        the Tribunal’s reasons

16                  The Tribunal was satisfied that the applicant is a homosexual, and that he had participated in homosexual activities with other males in Iran discreetly and undetected over some years.  It also accepted that the applicant attended a party in August 2000 with his cousin and with other young men, when they drank alcohol, played cards and took part in sexual activities.  The Tribunal was satisfied that the applicant may well have a subjective fear of persecution because of his homosexual activities.

17                  However, the Tribunal was not satisfied that the applicant left Iran to avoid a rape or sodomy charge, or because his fear of persecution because of his homosexual activities was well-founded.  It did not accept that in fact he has been charged with rape or sodomy, or that there is a real chance that he might face such charges upon his return to Iran.  Its rejection of those claims was:

“… based partly on the sources of his knowledge about what has happened since the afternoon on the farm and partly on the speculative nature of many of his assertions.  The Tribunal also gives considerable weight to the country information … in relation to legal procedures in Iran and the unlikelihood of homosexuals being charged under Islamic law if there are not other reasons why the person is considered anti-regime.”

The Tribunal explained that, upon the applicant’s own evidence, he had not had any direct contact with any of the persons at that party in August 2000 apart from his cousin, and he in fact did not know what had happened to the affected soldier since that time.  He had had only one conversation with his cousin in September 2000, in which he said his cousin had reported to him that the soldier had, following that occasion, developed a medical condition, that a medical officer had attributed it to homosexual activity, that the soldier’s parents then had become aware of that problem, and that the soldier’s parents had alleged that the activity had not been consensual.  The applicant told the Tribunal that his cousin had received that information from the family of the neighbour of a person who was also a soldier and who had been present on that occasion, and who had since been arrested.  However, the applicant himself did not know what had happened to either of the two soldiers apart from what his cousin had told him on that one occasion.  Thus, understandably, the Tribunal described the applicant’s claim as to what had happened as being “based on vague and speculative evidence”.  Apart from the information from his cousin, he had spoken to his father and his brother in the three months or so towards the end of 2000 when he was in hiding.

18                  The Tribunal accepted that the applicant and his cousin had spoken on one occasion in about September 2000, and that it is possible that the families of the five participants may have become aware of their son’s involvement in homosexual activities on that occasion through the medical condition of the conscript coming to the attention of the conscript’s parents through the doctor.  However, it was not satisfied that the authorities through that means were made aware of the activities in August 2000 of the applicant and others.  The Tribunal found that the applicant’s claim as to that awareness was conjectural only, and it concluded:

“The Tribunal is not satisfied that the parents of the conscript went to the police to report on their son’s sexual activities or that there has been any subsequent police interest in the events on the farm on that August afternoon.”

19                  It referred to the possibility that “the applicant’s army superiors” [sic, presumably the army superiors of the conscript] had somehow become aware that the conscript had indulged in sexual activities.  The Tribunal noted that that did not lead to a conclusion that the conscript would face serious consequences as a result.  The conscript was off duty.  It referred to independent country information and concluded:

“The Tribunal is not satisfied that there would be extensive, or indeed any, investigation where a conscript has indulged in sexual activities whilst off duty.”

Even though it accepted as possible that the conscript’s family would become aware of their son’s medical condition and the alleged reason for it, and might link that sexual activity to the occasion in August 2000 when the applicant and his cousin were present, so that the applicant’s cousin’s family and the applicant’s family would also learn of those matters, the Tribunal added:

“The country information indicates the reluctance of the authorities to pursue cases involving homosexual practices and/or rape because of the requirement to have four righteous men testify that they have actually seen ‘the key entering the key hole’ or the accused must confess four times whilst not under duress”.

Consequently, even if the conscript complained of having been raped on that occasion, the Tribunal accepted the applicant’s evidence that the act was in fact consensual.  It noted that there were no independent witnesses, so there could not be a successful outcome of any prosecution.  It noted further:

“The country information suggests that the Iranian authorities overlook sexual activity between males provided that they are undertaken discreetly.  In this instance, the activity was discreet.  The Tribunal has already made a finding that it does not accept that the police have actually become involved in this matter.  Even if the parents of the conscript had gone to the police (which the Tribunal thinks unlikely), the Tribunal is not satisfied that the Iranian security authorities or the police would pursue charges against four young men with rape and/or homosexual practices when they have no hope of securing a conviction.  As stated above, the Tribunal does not accept the applicant’s evidence that he has been sought in relation to charges of rape and/or sodomy in Iran.”

It followed that the Tribunal was not satisfied that the police had searched the applicant’s home or his workplace by reason of such a charge as he claimed.

20                  Although the Tribunal was not satisfied that the applicant had a well-founded fear of persecution by reason of his involvement in the events at the party in August 2000, as it accepted that the applicant is homosexual it also addressed his claim on that basis.  It accepted that homosexuals in Iran can be considered a social group within Iranian society for the purposes of the Convention.  It then considered whether the applicant’s sexual identity of itself might lead to him having a well-founded fear of persecution if he returns to Iran.  It noted that although there are severe penalties set out in Iranian law for participation in homosexual activities in Iran, the independent country information indicated that the Iranian authorities do not actively seek out homosexuals and that there are very few prosecutions.  That evidence indicated quite firmly that a homosexual man is not at risk of attracting the attention of the authorities merely because of his homosexuality, and as the Tribunal remarked “… the evidence suggests that homosexual activity, as long as it is not overt and public, is tolerated and not uncommon in Iran”.

21                  The Tribunal was therefore positively satisfied that the applicant could return to Iran and resume his preferred lifestyle of discreet homosexuality without being of interest to the authorities.  It was satisfied that the applicant had been discrete about those activities in the past, and would be discreet about them in the future.  Consequently, it concluded that the chance that he might be persecuted in Iran because he is a homosexual is remote and insubstantial, and it was not satisfied that he had a well-founded fear of persecution for that reason.

22                  The Tribunal separately addressed the applicant’s claim that he feared persecution because of his illegal departure from Iran.  It concluded, again on the basis of independent country information, that the Iranian authorities are not unduly concerned if persons such as the applicant apply for refugee status overseas.  It was satisfied that a person who left Iran illegally would not be harshly punished on his return merely on account of his illegal departure.  Consequently, it was not satisfied that the applicant has a well-founded fear that he will be persecuted upon his return to Iran because of the manner of his departure or because of his refugee status.

23                  It concluded:

“Taking all the applicant’s claims into account, both individually and cumulatively, the Tribunal is not satisfied that there is any real chance of the applicant facing persecution for a Convention reason if he returns to Iran.  The Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason.”

(c)        consideration

24                  The applicant appeared on this application in person.  It is not surprising in the circumstances that neither his application nor his “affidavit” in support of the application identified any grounds of review which might empower the Court under s 39B of the Judiciary Act to set aside the Tribunal’s decision, or indeed which might have enlivened one of the provisions of s 476(1) of the Act as it stood prior to the amending Act.  Much of his argument both in those documents and in his oral submissions reflected a frustration on his part that the Tribunal had not accepted his complaints, and an attempt on his part to argue matters of fact about which the Tribunal had made conclusions adverse to his claims.  It does not demonstrate error on the part of the Tribunal such as to enliven the Court’s powers under s 39B of the Judiciary Act to assert that the Tribunal made wrong findings of fact, or indeed to demonstrate that there was evidence which the Tribunal did not accept which might have led it to have reached different findings of fact.

25                  The applicant claimed that the Tribunal failed to consider his evidence in relation to what had happened to him after August 2000, and how he had become known to the authorities as an active homosexual.  He also claimed that the Tribunal erred in not accepting that, once his homosexuality became known to the authorities, he was vulnerable to persecution at the hands of the authorities.  He claimed further that the Tribunal had erred in its assessment that the authorities, even if they knew of his homosexuality, would not pursue him in part because of the difficulties of meeting the requirements of proof.  He claimed that the Tribunal had neglected to consider the range of methods used to extract confessions, and that although the authorities are not supposed to procure confessions under duress, often do so and that such confessions are nevertheless accepted as evidence.  He also claimed that the Tribunal had failed to have regard to evidence of extra-judicial murders or disappearances of homosexuals by fanatical Islamic groups.

26                  Even if those complaints were made out, I do not think that they demonstrate such error on the part of the Tribunal as would enliven the Court’s powers to intervene under s 39B of the Judiciary Act.  I have carefully considered those complaints against the way in which the Tribunal proceeded to assess the applicant’s claim.  In my judgment there is nothing to indicate that the Tribunal did not endeavour bona fide to exercise its power, and its obligation, to review the decision of the delegate of the respondent:  cp R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 per Dixon J at 616.  In any event, I do not consider that the applicant has made out the criticisms of the Tribunal’s process of reasoning as asserted.  The Tribunal concluded, in the light of all the evidence, that the applicant’s homosexuality had not become known to the authorities.  Consequently his complaint about error by the Tribunal concluding that he would in the future be able to remain discreet in his practice of homosexuality if he were to return to Iran, after the authorities knew him to be a homosexual, contains the fallacy that the Tribunal had accepted that knowledge on the part of the authorities when it had positively found to the contrary.

27                  In addition, the Tribunal considered his claim to have a well-founded fear of persecution by reason of his homosexuality on the basis that the authorities were aware of his homosexuality.  For reasons which it gave, and which are set out briefly above, it found that the authorities would not pursue the applicant in any event provided that he continued to practice his homosexuality discreetly upon his return to Iran.  It is correct that one limb of the Tribunal’s reasoning involved acceptance that the authorities would not pursue the applicant, even if it knew of his homosexuality because of the difficulties of proof of sodomy or rape by him in the absence of independent witnesses or a confession.  It did not specifically advert to the possibility that a confession might be extracted under duress, and then be presented as a voluntary confession.  However, it refers specifically to information provided to the Tribunal by the applicant’s migration agent about flaws in the Iranian legal system and about inappropriate actions of those charged with enforcing the law.  It accepted that there are such flaws and that ill-treatment of many suspects does occur.  It nevertheless concluded on the evidence that there was not a concerted effort to single out homosexuals for such treatment, and that in the case of the applicant there was no real chance that he would be mistreated in such a way as to expose him to the prospect of a conviction for sodomy in the face of the stringent requirements of the Islamic penal law.  That was a matter of judgment for the Tribunal.  I do not consider that the judgment that it made is not one which indicates error on its part.

28                  The applicant’s claim that the Tribunal failed to address his claim, or make findings, that he might be exposed to harm from fanatical Islamic vigilante groups is correct.  It was not one expressly dealt with by the Tribunal.  In my view, that is simply because it was not a claim previously made by the applicant to the Tribunal.  The Tribunal cannot be shown to have fallen into error in failing to address claims which were not advanced on behalf of the applicant.  In addition, the Tribunal did consider the position of homosexuals generally in Iran.  It concluded on the material to which it referred that, so long as homosexuals pursue their sexuality discreetly, they do not face a well-founded fear of persecution in Iran.  In my view that finding was open to the Tribunal, and encompasses the claimed fear from the sort of vigilante conduct to which the applicant now refers.

29                  For those reasons, I have concluded that the Tribunal is not shown to have erred in its consideration of the applicant’s claims in a way which would enliven the Court’s powers to intervene under s 39B of the Judiciary Act, even if the application had been made within time, and even if s 474(1) of the Act did not apply.   In those circumstances, it is unnecessary to consider the extent of the operation of s 474(1) of the Act. 

30                  I have reached the view that the application should be dismissed.  I so order.  I would have been reluctant to make any order as to costs of the application, even though it was dismissed, if I had dismissed it simply because it was incompetent being instituted outside the 28 day period allowed, at least without making findings of fact on proper evidence as to the reasons for the applicant’s delay in instituting the application.  I have however also decided that, in any event, the application would have been unsuccessful.  In the light of that further finding, I see no reason why the normal rule for costs ought not apply.  I accordingly order that the applicant pay to the respondent costs of the application.

Associate:

Dated:              11 April 2002