Page:ASF17 v Commonwealth of Australia.pdf/43

Edelman J

ASF17's collateral challenge to the administrative finding

117 ASF17's affidavit evidence before the primary judge included that his "wife caught [him] having sex with another man one time, when she returned home unexpectedly from shopping". He said that his wife reported the incident to police and that on the basis of the police complaint his wife was able to obtain a court-ordered divorce. He said that he had not "disclosed information about [his] sexuality to the Australian authorities due to fear and stigma associated with such … conduct in Iran". He said that he was genuinely fearful that if anyone in the detention centre "found out about my bisexuality (known as 'Hamjinsgar' in Iran), which they consider a crime against God and is punishable by death in Iran, they may harm me". ASF17 said that he knew that he would "face torture or death at the hands of Iranian authorities" if he were returned to Iran, because of his sexuality. Until ASF17's disclosure in his affidavit before the primary judge, he had not revealed his sexuality to anyone except three men with whom he had had sexual relations in immigration detention and whom he named during reexamination.

118 ASF17 was cross-examined on his affidavit evidence. He was cross-examined on the implausibility of his account about having sex with another man in his house in Iran. But there was no challenge to his affidavit evidence that he was bisexual. There was also no challenge to his evidence, repeated in cross-examination, that he had had sex with three men in immigration detention and that, before these proceedings, those men were the only people who were aware of ASF17's sexual interest in men. Nor was there any challenge to his affidavit evidence that he had not disclosed his sexuality to any authorities in Australia due to "fear and stigma associated with such … conduct in Iran". And during the course of cross-examination, senior counsel for the Commonwealth properly conceded that sexual intercourse between men is illegal in Iran and can attract the death penalty.

119 Nevertheless, senior counsel for the Commonwealth challenged ASF17's affidavit evidence that he believed that he would face torture or death at the hands of Iranian authorities. It was put to ASF17 that he did not fear harm due to his bisexuality if he were returned to Iran. His answer:

""So if I didn't fear harm, I wouldn't have stayed in this camp for 10 years. I would have quickly gone back to begin with the first day. Who … will leave their family and prefer the prison? Who can do that?""

120 The primary judge rejected the evidence of ASF17 that when he was in Iran, he was found by his wife in bed with another man. That finding was undoubtedly based upon an assessment of the credit of ASF17 in cross-examination on this