WABD v Minister for Immigration & Multicultural Affairs [2002] FCA 29 (17 January 2002)

Last Updated: 22 February 2002

FEDERAL COURT OF AUSTRALIA

WABD v Minister for Immigration & Multicultural Affairs [2002] FCA 29

MIGRATION - judicial review - Refugee Review Tribunal - no reviewable error disclosed - application dismissed - no question of principle

Migration Act 1958 (Cth) s 474

WABD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W500 OF 2001

FRENCH J

17 JANUARY 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W500 OF 2001

BETWEEN:	WABD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	17 JANUARY 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant 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	W500 OF 2001

BETWEEN:	WABD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	17 JANUARY 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1 The applicant is an Iranian national. He arrived in Australia on 6 January 2001 by boat without any lawful authority. He lodged an application for a protection visa on 4 June 2001. That application was refused by a delegate of the Minister on 27 June 2001. He applied to the Refugee Review Tribunal ("the Tribunal") on 2 July 2001 for a review of that decision. On 28 September 2001, the Tribunal affirmed the decision not to grant him a protection visa. On 22 October 2001, he lodged an application in this Court seeking an order for review of the decision of the Refugee Review Tribunal.

2 Although the application itself is not in the proper form, I take it as an application for review under the proper jurisdiction of the Court, that is, I take it as an application for review under s 39B of the Judiciary Act.

3 In his application for a protection visa the applicant set out the basis of his claims. The Tribunal has reproduced that statement in full. Essentially he says that he had had an arranged marriage which was against his will to a young woman from a strict Muslim family. They did not get along because of their religious differences. At some stage he met another woman whom he called Shillah. She was also married. He found this out after seeing her for about three months. Her husband was a senior officer of an authority which checks dress standards and relationships between young men and women who are seen together. The applicant and Shillah met from time to time and talked about getting divorced and marrying each other. He said that on one occasion when her husband was away on a business trip she invited him to her house. They talked about her getting a divorce and she agreed at this time. They were talking in the living room when her husband returned unexpectedly. According to the applicant the husband attacked him but he escaped from the house. He went and hid at a friend's place. He decided to leave Tehran because of having been seen in the house of an influential man in the regime. He said the following day he went by bus to Ahvaz. From there he rang his friend with whom he had hidden. He was told that his apartment had been raided by the authorities. They were there because of the allegation of adultery against him, but while there they found a Bible which he had and an extract of Salman Rushdie's Book, The Satanic Verses. At the time his father was arrested and, according to the applicant, had remained imprisoned at least until the time that the applicant made his statement.

4 His friend and his brother-in-law arranged with a smuggler for the applicant to leave the country. He eventually left Iran through Shiraz Airport along with the smuggler. He ended up in Indonesia and after that came by boat to Australia.

5 At his initial interview the applicant gave as his main reason for leaving Iran the problem arising out of his relationship with Shillah. He did not mention the information about the Bible and The Satanic Verses. He said this was because he was afraid that his explanation would be heard by other Muslims on the boat with him. He said in his statement he could not return to Iran because he would be destroyed. The regime had alleged he had an illegal sexual relationship with a married woman but, even worse, they had found the Bible and The Satanic Verses extract and a diary of his personal views in his apartment. He said they would accuse him of having converted to Christianity. They would accuse him of having illegal materials from The Satanic Verses and, after reading his diary, they would know that his ideas were hostile to Islam.

6 The Tribunal also referred to what the applicant said at the hearing. Among other things he told the Tribunal that he was against Islam and the injustice caused by religion. He did not consider himself to be a Muslim. He was asked where he got the ideas from and he said it was through reading and study. In relation to the Bible, he said he had read the Bible, particularly the Old Testament. It was put to him that there was some country information that The Satanic Verses were not banned in Iran. He told the Tribunal that this was not true and that in Iran you could be flogged for having a book or just wearing a T-shirt with a certain insignia.

7 In its findings and reasons the Tribunal referred again to his claims, in summary, as follows: The first, was that he deserted from his military service. The second was that he would face charges of adultery if returned. The third was that he departed Iran illegally. The fourth was that he expressed anti-Islamic views known to the Iranian authorities. The Tribunal did not accept his story. It considered it far-fetched that a woman married to a senior officer of the morals authority would risk admitting a man into her home late at night. The Tribunal also thought it far-fetched that he would have escaped from the house after the husband returned home. The Tribunal referred to the fact that the applicant did not take the simple precaution of asking his family to remove the safe containing his Bible, his diary and The Satanic Verses. The Tribunal also thought it inconsistent that he would give copies of The Satanic Verses extracts to his workmates but keep extracts locked in a safe.

8 The Tribunal concluded that the applicant had made up his claims. It did not accept that he was caught in the home of a married woman. It did not accept that this resulted in a raid on his home and the seizure of his diary. It did not accept that he was considered by the Iranian authorities to be anti-Islamic or that he would face persecution if returned to Iran. Further, the Tribunal was not satisfied that the applicant had deserted from military service or that he departed Iran illegally.

9 The application which was filed by the applicant asserts there was no evidence to support the Tribunal's findings that he did not face persecution by reason of his religious ideas. He also asserted in his application that the decision involved an error of law. Neither of these grounds is made out and nothing that the applicant has said shows any grounds for interfering with the decision of the Tribunal. Under s 474 of the Migration Act 1958 (Cth) that decision is to be treated as final and conclusive. There are circumstances at law under which the Tribunal decision might nevertheless be overturned, but the applicant has not been able to show that any of these circumstances exist and on my own reading of the Tribunal's reasons I cannot see any basis for interference with its decision either.

10 For these reasons the application will be dismissed and the applicant is to pay the respondent's costs of the application.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated:

	WABD appeared on his own behalf
Counsel for the Respondent:	Mr JD Allanson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 January 2002
Date of Judgment:	17 January 2002