"It necessarily follows from that analysis that a person cannot be refused asylum on the basis that he could avoid otherwise persecutory conduct by modifying the behaviour that he would otherwise engage in, at least if that modification was sufficiently significant in itself to place him in a situation of persecution." 11. That brief extract is particularly helpful because it brings together the principle articulated by the High Court of Australia and the underlying need for an applicant to establish that his case contains something "sufficiently significant in itself to place him in a situation of persecution"
“The penalties were not something I thought about. It was more important for me to pursue my right to a private life and to think and act the way I wanted to. Also in my relationship with “A” it was more important for me to be with him than to think about what the police might do to me.” 42. It was clearly possible for the appellant to live in Iran, from the age of fifteen to his leaving at the age of thirty one, as a gay man without discovery or adverse consequences. In our judgment the appellant was able to conduct his homosexual activities in Iran in the way that he wanted to and without any serious detriment to his own private and social life. The evidence does not indicate that he experienced the constraints Iranian society placed on homosexual activity as oppressive or as constraints that he could not reasonably be expected to tolerate. … 44. We acknowledge that the way in which he is able to live as a gay man in the UK is preferable for him and we are satisfied that this informs his view that it is “impossible” for him to return to Iran. We acknowledge too that the appellant is now much more aware of the legal prohibitions on homosexuals in Iran and the potential punishments for breach of those prohibitions. On any return, to avoid coming to the attention of the authorities because of his homosexuality he would necessarily have to act discreetly in relation to it. We are satisfied that as a matter of fact he would behave discreetly. On the evidence he was able to conduct his homosexual activities in Iran without serious detriment to his private life and without that causing him to suppress many aspects of his sexual identity. Whilst he has conducted his homosexual activities in the UK less discreetly, we are not persuaded that his adaptation back to life in Iran would be something he could not reasonably be expected to tolerate. We consider that as a matter of fact he would behave in similar fashion as he did before he left Iran and that in doing so he would, as before, be able to seek out homosexual relationships through work or friends without real risk to his safety or serious detriment to his personal identity and without this involving for him suppression of many aspects of his sexual identity. 45. The evidence of suppression of aspects of the appellant’s life in Iran in comparison to his life in the UK is limited. In Iran he could not go to gay clubs as he can in the UK. Public displays of affection to a homosexual partner may lead to a risk of being reported to the authorities which is not so in the UK. The appellant’s ability to be open about his sexuality as has been the case in the UK was not possible for him throughout his thirteen adult years in Iran and three years as a minor. But he did have friends who knew of his sexuality, he was able to socialise with them and he was able to tell his family. If a wish to avoid persecution was ever a reason why he acted discreetly in Iran it was not, on the evidence, the sole or main reason. It is difficult to see on the evidence that a return to that way of living can properly be characterised as likely to result in an abandonment of the appellant’s sexual identity. To live as the appellant did for thirteen years did not expose him to danger. The appellant may well live in fear on return to Iran now he is aware of the penalties which might be arbitrarily imposed were he to be discovered. The question as to whether such fear reaches so substantial a level of seriousness as to require international protection has to be considered objectively and in the light of the evidence as we have found it to be. Homosexuals may wish to, but cannot, live openly in Iran as is the case in many countries. The conclusions in RM and BB as to risk remain the same. This appellant was able to live in Iran during his adult life until he left in a way which meant he was able to express his sexuality albeit in a more limited way than he can do elsewhere. In particular we have regard to the fact that the evidence as found shows that the appellant’s sexuality was not known to the authorities when he left Iran. Objectively we cannot see that the level of seriousness required for international protection is in this case reached. 46. Buxton LJ describes the question before this Tribunal as “whether the applicant can reasonably be expected to tolerate whatever circumstances are likely to arise were he to return to Iran”; and further “ the applicant may have to abandon part of his sexual identity…in circumstances where failure to do that exposes him to extreme danger”
“61. I do not accept that the Appellant, simply on the basis that he is a homosexual, would be at risk of treatment that amounts to persecution or breaches his human rights, if he is returned to Iran. Although I accept he is a homosexual and does form part of a particular social group in Iran, he is not entitled for his appeal to succeed simply on that basis. Mr Nicholson implies that the Appellant’s appeal should succeed because the Appellant would have to abandon his sexual identity upon returning to Iran. I do not accept that this is the case. The Appellant does not simply abandon his sexual identity if he is required to carry on his sexual activities with a same-sex partner with some care or discretion. All persons, of whatever sex, involved in intimate relationships conduct themselves with such care and discretion. It is clear from the Appellant’s own evidence that he conducted his own sexual relationship with Mustafa with some care and discretion as he was fully aware of the likely result of such activity coming to the attention of the Iranian authorities. It is therefore not reasonably likely that he would be careless or indiscreet regarding his sexual activities, if they resumed upon his return to Iran. 62. There is no evidence to suggest that the Appellant came to the attention of the authorities on account of any political or religious activity and as such he has no profile which would bring him to the attention of the Iranian authorities if he is returned there. I do not accept that the Iranian authorities are aware of his homosexual activity and therefore they would have no interest in him if he is returned to Iran.”