Page:ASF17 v Commonwealth of Australia.pdf/9

Gageler CJ Gordon J Steward J Gleeson J Jagot J Beech-Jones J

18 The primary judge found, on the basis of a formal concession by counsel for the Commonwealth, that sexual intercourse between males is illegal in Iran and can attract the death penalty.

19 The primary judge accepted that ASF17's present sexual orientation is bisexual and found that he has had recent sexual encounters with men while in immigration detention. However, the primary judge did not accept the truthfulness of the account given by ASF17 of having been caught by his wife in bed with a man in Iran, did not accept that ASF17 was telling the truth about why he did not want to return to Iran, and did not accept that ASF17 was willing to be removed to a country other than Iran. The primary judge found that ASF17 did not have a genuine subjective fear of harm in Iran and that the reason ASF17 was refusing to undertake voluntary actions to assist in his return to Iran was that he wanted to remain in Australia.

20 Though ASF17 challenged those findings of the primary judge as to his credibility, and sought in substitution a finding that his refusal to cooperate in bringing about his return to Iran was because he had a genuine subjective fear of harm in Iran, his counsel advanced no convincing basis for disturbing any of those findings as either "glaringly improbable" or "contrary to compelling inferences". In particular, ASF17's counsel advanced no reason to consider that the primary judge mischaracterised ASF17's central contention concerning his claim to fear harm in Iran by reason of his bisexuality when stating that the contention "depended upon his account as to events that occurred in Iran when he said he was