WAFQ v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 811

FEDERAL COURT OF AUSTRALIA

WAFQ v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 811

MIGRATION – judicial review – application for protection visa – Refugee Review Tribunal – judicial review by Federal Magistrate – appeal from magistrate’s decision – no jurisdictional error disclosed – no grounds for review disclosed – appeal dismissed

Migration Act 1958 (Cth)

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 cited
Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 195 ALR 24 cited

WAFQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
W269 OF 2002

FRENCH J
30 JULY 2003
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIAN DISTRICT REGISTRY	W 269 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	WAFQ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	30 JULY 2003
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 269 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	WAFQ APPELLANT
AND	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	30 JULY 2003
PLACE:	PERTH

REASONS FOR JUDGMENT

The appellant is a citizen of Iran who came to Australia without a visa on 25 March 2001.  He was interviewed after his arrival by an officer of the Department of Immigration, Multicultural and Indigenous Affairs on 2 April 2001.  He was asked at that interview why he had left his country of nationality.  He said he had problems.  He was asked what sort of problems.

He said he had no entertainment place to go and one of his friends had been killed because he escaped national service.  Asked what he meant by ‘no entertainment place’ he said he had no place to go without being harassed.  He was asked how that affected him personally.  He said, ‘You know how it is for young people’.  The fact that his friend was killed had affected him.  He said he and his friend in a group of five or six people had gone to a farm and were arrested.  He said they had been arrested because they had alcohol which was against the law.  He said he had been released and there were complaints about his arrest by people.  He was asked what he thought would happen if he returned to Iran.  He said he would have problems because he had lost his right to associate with his friends.

1. The appellant made an application for a protection visa in September 2001.  The application was refused in November 2001.  He applied to the Refugee Review Tribunal (‘the Tribunal’) for review of that decision.  After receiving written submissions and having an oral hearing the Tribunal affirmed the decision not to grant him a protection visa.  The Tribunal's decision was given on 4 March 2002.

2. The appellant sought review of the Tribunal’s decision in the Federal Court.  His application for review was transferred to the Federal Magistrates Court.  Raphael FM dismissed his application on 2 September 2002.  The appellant then lodged an appeal to this Court.  The Chief Justice of the Court directed that this appeal be heard by a single judge. 

3. The appellant's claims, as put to the Tribunal, can conveniently be summarised as follows. 

The appellant left Iran fearing persecution because of Christian religious beliefs and political views which authorities believed that he held. He had been arrested, detained and beaten, deliberately hit by a car and expelled from school because of his lack of interest in Islamic instruction.  About 3 months before he left Iran he had met with seven other friends at a farm where they were drinking alcohol together.  One of his friends had failed to enlist for compulsory military service.  Authorities came to the farm and tried to arrest his friend.  As his friend tried to run away he was shot and killed.  The appellant said he made a sign of the cross at the time.

He was then taken to a police station and detained and mistreated and asked about his religious beliefs.  He was accused of being connected with ‘dirty Armenian Christians’. 

1. After his release the appellant had taken part in a public ceremony which was held for his deceased friend.  His release coincided with the seventh day after his friend's death.  Traditionally a ceremony called Shab-elaft would be held marking the seventh day after the death of a friend.  A large crowd turned up for the ceremony and marched down the street towards the cemetery. When they passed the front of the disciplinary force or police headquarters, the crowd started shouting, ‘        Death to the commander of the disciplinary forces.’  He said that the Basijis and other disciplinary authorities began firing in the air and chasing people with batons.  The appellant said that he was struck several times.  His shirt was covered with blood.  He went home and changed before going back to the cemetery to honour his friend and his parents.  There he asked his friend's parents to allow him to hold another ceremony at his house and they agreed to that.

2. He said that he held another private ceremony for his friend in a tent which he set up.  He and his friends played traditional Iranian music through the loudspeakers at this private ceremony.  The Basijis came back and wrecked the tent and beat up the appellant.  His mother, who tried to help him, was pushed to the ground.  There was a violent confrontation between the Basijis and the mourners.  The appellant ran away across a neighbour's roof and hid in a dove cage.  After a while he left in a car, disguised as a woman wearing a Chador.  The appellant said he then fled to the mountains in the Fars region.

3. He heard from relatives before he left the country that authorities were looking for him.  He said that he left Iran on a false Iraqi passport.  He said that he would be persecuted if he returned to Iran because after he came to Australia he converted to Catholicism. 

The Tribunal made a number of findings about the appellant’s claims.  It found that the true reasons for his departure from Iran were the reasons he gave in his first interview, that is to say, lack of entertainment, lack of access to alcohol and restrictions on his ability to associate with friends.  The Tribunal did accept that one of his friends had been killed after ignoring a warning to stop and that authorities had intended to arrest the friend for deserting national service. 

1. The Tribunal also accepted that the appellant was arrested and that he and his friends were drinking alcohol which is an offence for Muslims in Iran.  The Tribunal, however, did not accept that his arrest and detention was for any Convention reason.  It did not accept that he left Iran because of his interest in Christianity or because authorities had any interest in him on account of his religion.   It found his claims to have made the sign of the cross on two occasions in front of officials fanciful.  It found that he knows little of Christianity and did not accept that the authorities told him they already knew his whole family was anti-regime.  The Tribunal found that the Armenian Christians are recognised in Iran and it did not accept that simple association with them was significant or would give rise to a fear of persecution.

2. The Tribunal did not accept that the appellant was a credible witness or that he was truthful in making his claims.  The Tribunal noted the appellant's adviser had given it a lot of information about Evangelical Christians.  It said that it had also taken into account an affidavit from an Iranian Christian but noted that that person had never met the appellant and knew nothing of his particular circumstances.  It said that the appellant's claims about religion were ambivalent.  He claimed to be interested from an early age in the Christian religion but knew little about it.  He was clearly not in a position to preach his religion because he knew so little about it.  In any event, he had made it clear that he believes religion is a personal matter and involves a personal relationship with God.  He was not able to read the Bible well and had not studied the Koran in Iran.  He had displayed some basic knowledge of Christianity but so little that he was not in a position to clearly distinguish between belief systems. 

3. The Tribunal did not accept the appellant had encountered difficulty or had finished school early for a Convention reason.  He was able to find employment and complete his national service without difficulty.  He had not suffered unduly because of finishing school early and appeared to have lived an ordinary life.  The Tribunal did not accept his claim that he was at risk of being re-arrested and persecuted because he had made an unlawful exit from Iran while on bail.  Nor did it accept he would be at risk of persecution because he had applied for asylum in Australia or because he had been baptised as a Catholic in Australia.  It was not satisfied he had converted to Christianity other than for the purpose of strengthening his claim for refugee status. 

In his application to the Federal Magistrates Court the appellant made a number of submissions.  He claimed the Tribunal had shown a lack of interest in his case and lack of attention to his plight.  He claimed that the Tribunal member told him just to answer questions that were being put to him and that he did not have a chance to explain important issues.

He said that whenever he tried to do so he was told to stop.  He said that from the beginning until the end of the hearing the Tribunal constantly talked about alcohol consumption.  He said that he told the Tribunal that drinking was not at the core of his problems and asked why he couldn't talk about his core problems.  He said a lot of things had happened to him.  He had been expelled from school because of religious beliefs.  He had arranged a ceremony for his friend and participated in demonstrations.  He argued to the federal magistrate that the Tribunal dismissed these facts and said that all of his problems were due to his drinking alcohol.  He said the Tribunal member had deprived him of any right to explain or discuss the real issues.  He also relied on a written outline of submissions and complained the Tribunal ignored his explanation for his early release from custody and for his release on bail.  The learned magistrate referred to all of these submissions by the appellant in his reasons for decision.

1. He then referred to the respondent's submissions which were to the effect that the Tribunal had considered all the matters raised.  It was also pointed out in those submissions that the Tribunal had given the appellant and his adviser time to make further submissions.  Such further submissions were made, and this included a further statement from the appellant.  The respondent had also argued to the magistrate that the emphasis on the use of alcohol was not unreasonable because the appellant had mentioned the use of alcohol in his original reasons for coming to Australia.

2. The learned magistrate at that stage was considering the case, having regard to s 474 of the Migration Act 1958 (Cth). That section as it had been interpreted by the Full Court of the Federal Court restricted the grounds of review of the Tribunal's decision significantly – NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449. The magistrate said that the only possible ground that the appellant could be said to have asserted was that the Tribunal was not acting in good faith. In answer to that the magistrate said:

   ‘I am satisfied that the Tribunal duly considered all of the matters put to it by the applicant and came to a conclusion after weighing up those submissions against the competing evidence of its own observations and the country information.’

   He said this was the task the Tribunal had to do. 

   The learned magistrate said:

   ‘I do not find that the allegations made against the Tribunal by the applicant have been made out.’ 

3. It is true that the learned magistrate was considering this application on the assumption that the grounds for review were limited, in effect in this case, to want of good faith on the part of the Tribunal.  Subsequently the High Court has held in Plaintiff  S157 of 2002 v Commonwealth of Australia (2003) 195 ALR 24 that the Tribunal's decision may be reviewed on grounds of jurisdictional error. As I have explained to the appellant in language which I hope he has some chance of understanding through the interpreter, this means that the Tribunal's decisions can only be reviewed if there is a serious error of law or procedure. He has made a number of submissions to the Court today. In substance he is returning to submissions which he made to the learned magistrate. He has referred to what he saw as the undue focus of the Tribunal on his consumption of alcohol as the stated reason for leaving Iran. He has also complained that the Tribunal did not have regard to the persecution of his family by Iranian authorities. This was said to be on account of his mother's association with a Christian family.

4. He has also submitted that the Tribunal did not make the proper distinction between people who were born as Christians in Iran and people who later converted to Christianity.  He said that the Tribunal made its conclusions that he would not be subject to persecution as a Christian on the basis of evidence relating to people who are born as Christians and not on the basis of evidence relating to converts.  He said the Tribunal was also wrong to find that he knew very little about Christianity and that this was relevant to his claim to be a Christian.  He argued that for him Christianity was in effect a thing of the heart rather than a thing of the mind. 

5. As I have explained to the appellant, the basis on which a Tribunal decision can be reviewed is limited to certain classes of serious legal error, that is, the kind of error which is so serious that the Tribunal had no power to make the decision it actually made.  None of the submissions that have been made to me today by the appellant or what was put before the learned magistrate indicate that there was any such serious legal error in the reasoning of the Tribunal.  Although the learned magistrate was making his decision on the basis of a narrower view of available grounds than I do, that does not make any difference in this case for the learned magistrate made findings which in effect negative the suggestion of any serious error of law or procedure on the part of the Tribunal and I am not satisfied that any such error has been exposed in this case. 

6. For these reasons the appeal will be dismissed with costs.  The Court has no power to interfere with the Tribunal's findings of fact. 

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French .

Associate:
Dated:             19 August 2003

The Appellant appeared in person by video link.
Counsel for the Respondent:	Mr M Ritter
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	30 July 2003
Date of Judgment:	30 July 2003