## Facts

- The New Zealand government sought to remove an anonymous Iranian national who entered New Zealand and applied for refugee status.
- In his initial claim before a refugee-status officer, the applicant said he feared Iranian authorities because he had accidentally killed an Iranian Revolutionary Guard in a car accident and because he had refused military service.
- The refugee-status officer declined the application for refugee status, and the applicant appealed to the New Zealand Refugee Status Appeals Authority (RSAA).
- Before the RSAA hearing, the applicant indicated he wanted to add a new basis for his refugee claim.
- At the appeal hearing, the applicant testified that he feared harm in Iran because he was homosexual.
- He stated that, while in middle school, he was detained by “morals police” and threatened with the death penalty because of his activities.
- He testified that he had occasional sexual liaisons with other men after that detention.
- He described severe emotional distress, including suicidality, tied to being unable to live a “normal” life and to have romantic relationships with other men.
- He explained that he had not raised homosexuality earlier because he did not know refugee status could be sought on that basis.

## Issues

1. Whether an Iranian national who fears severe harm due to his homosexuality has a well-founded fear of being persecuted “for reasons of” a Refugee Convention ground (membership of a particular social group).
2. Whether serious constraints on living openly as a gay man—along with the risk of severe penalties enforced by state agents—can amount to “persecution” rather than mere discrimination.
3. Whether the late disclosure of sexual orientation on appeal prevents the claim from succeeding.

## Decision

- The RSAA allowed the appeal.
- The RSAA accepted that the applicant’s homosexuality placed him within a Convention-protected category, treated as membership of a particular social group.
- The RSAA concluded that the harm the applicant faced in Iran in connection with his sexual orientation—including the risk of severe punishment and the practical inability to live openly—met the level of seriousness required for “persecution.”
- The RSAA granted the applicant refugee status, preventing his removal to Iran.

## Legal Principles

- “Persecution” is assessed by the seriousness of the harm; serious harm may include grave interference with fundamental rights and freedom of identity, not only physical violence.
- Sexual orientation can define a “particular social group” for Refugee Convention purposes where the trait is fundamental to identity and the group is targeted in the country of origin.
- When state authorities are involved in targeting, punishing, or threatening a claimant because of sexual orientation, the nexus and state involvement elements are more readily met.
- Decision-makers should assess the real-world consequences of requiring a claimant to conceal sexual orientation to avoid harm; if concealment is demanded under threat of severe penalties or comparable coercion, that condition can form part of the persecutory harm.
- A claimant’s failure to disclose sexual orientation at the first interview is not, by itself, determinative; credibility and explanation must be evaluated in context, including stigma, fear, and lack of knowledge about legal relevance.

## Conclusion

Refugee Appeal No. 74665/03 involved an Iranian asylum seeker who initially relied on an accident and military-service concerns but later based his claim on homosexuality; the RSAA accepted the sexual-orientation claim, treated gay men as a protected social group, found the feared treatment in Iran sufficiently serious to constitute persecution for a Convention reason, and allowed the appeal by granting refugee status.


Refugee Appeal No. 74665/03, No. 74665 (7 July 2004)