WADZ of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 118 (10 May 2002)

Last Updated: 28 May 2002

FEDERAL COURT OF AUSTRALIA

WADZ of 2002 v Minister for Immigration & Multicultural Affairs

[2002] FCAFC 118

Migration Act 1958 (Cth) ss 476(1)(b), 476(1)(e)

APPLICANT WADZ OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 18 OF 2002

SPENDER, O'LOUGHLIN and GYLES JJ

PERTH

10 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 18 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT WADZ OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
COURT:	SPENDER, O'LOUGHLIN and GYLES JJ
DATE OF ORDER:	10 MAY 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant is to pay the costs of the respondent.

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 18 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT WADZ OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

COURT:	SPENDER, O'LOUGHLIN and GYLES JJ
DATE:	10 MAY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from a judgment of French J, delivered on 20 December 2001, dismissing the application by the appellant, referred to as W410 but in this appeal referred to as WADZ of 2002, for a review of a decision of the Refugee Review Tribunal ("the Tribunal") which had affirmed the decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the respondent") refusing the grant of a protection visa pursuant to the Migration Act 1958 (Cth) ("the Act") to the appellant.

Short Facts and Procedural History

2 The appellant arrived in Australia on 19 June 2000, by boat from Indonesia, without lawful authority. It is accepted that he is a citizen of Iran, who was born on 18 January 1977, and was thus aged twenty three at the time of his arrival in Australia. In a record of interview held with the appellant by an officer of the Department of Immigration and Multicultural Affairs on 30 June 2000 the appellant is recorded as saying that he had been in Indonesia for thirty two to thirty three days and Malaysia for about a week on his way to Australia. He was in possession of a genuine passport, in his correct name, issued in Iran, which he threw in the water. He said he had left his country of nationality sixty days previously. He had been talking about leaving Iran for six months to a year. The interview continued:

"Question: Why did you leave your country of nationality?

About the place of work and my future, it was not good for me to stay there.

Question: Why?

I am a young person. I worked all day for six days and there was not much income to go around. There wasn't any freedom to wear the type of clothes or t-shirts that I wanted to wear.

Question: Any other reason?

No, not really.

Question: Why did you come to Australia?

I had heard it is a good country for migration. Mainly this.

Question: Do you have any reasons for not wishing to return to your country of nationality?

I do not like to go back."

Question: Would anything happen to you if you did go back?

No."

3 On 27 February 2001 the appellant made an application for a Protection (Class XA) Visa. The appellant had appointed a migration agent to act for him prior to lodgment of his application for a protection visa. On this occasion, in answer to the question "Why did you leave that country?" the appellant set out a history of active homosexuality since the age of about twelve, culminating in an incident in April 2000 when he was found in bed with his male supervisor by the supervisor's wife and brothers. They started to beat his supervisor. He escaped and was told that his supervisor had been taken to the Revolutionary Court and that the authorities were looking for him. He decided he had to leave, and his sister and her husband organised everything for him to leave Iran. He said:

"I cannot go back Iran because I will be taken to the Revolutionary court and I will be executed or imprisoned there for what they call a crime against the regime and against Islam, which is the law of the regime. That is why I request asylum in Australia.

I was unable to explain my situation in my first interview for several reasons and one of the reasons was that my interpreter was a woman and I was not comfortable to talk about my case.

Q37. What do you fear may happen to you if you go back to that country?

I would be treated according to the Islamic Law in Iran, which sentences the homosexuals to death or I would be subject to execution by stoning.

Q38. Who do you think may harm/mistreat you if you go back?

The Iranian Authorities and specially the Islamic Jurisdictions and ......... [indecipherable].

Q39. Why do you think they will harm/mistreat you if you go back?

Homosexuality is forbidden by Sharia Law and adultery and sodomy is punishable by death, imprisonment, lashes or stoning.

I conducted something, which is strongly against the formal Islamic law and therefore the law of Iran.

Q40. Do you think the authorities of that country can and will protect you if you go back? If not, why not?

No, because the authorities in Iran recognise and act according to the Islamic Law, which is strongly against homosexuality."

4 On 26 March 2001 a delegate of the Minister refused the application. Included in the grounds was the following statement:

"I am not satisfied that the claims made by the applicant in his application for a Protection Visa are plausible. I am persuaded more by the complete absence of any mention of the applicant's major claim at his first interview with DIMA, together with the absence of any logical explanation as to how he could have departed the country legally, than by his account at interview of the claimed incident which preceded his departure from Iran."

5 On 28 March 2001 the appellant made an application to the Tribunal for a review of the decision of the delegate. Another (legally qualified) person acted as agent for the appellant during the course of the proceedings in the Tribunal and made written submissions to the Tribunal on 21 May 2001. The Tribunal conducted a hearing at which the appellant gave oral evidence on 23 May 2001. On 28 May 2001 the appellant's agent made further submissions in writing to the Tribunal.

Tribunal Decision

6 The Tribunal's reasons for decision included the following:

"At his 1^st interview the applicant did not tell the department he was an active homosexual who fled Iran in fear of punishment for homosexual activity. The Minister's delegate placed emphasis on the fact that in his initial interview the applicant made no mention of his major claim of being caught in a homosexual encounter with his employer. The delegate found this went to the genuineness of these claims and so to the applicant's credibility. While noting the judicial caution over the use of information from such an interview, the account of the first interview forms part of the information before this Tribunal.

...

Viewed in the totality of the evidence and the lack of information regarding this incident at the time of arrival in Australia, I do not accept this incident occurred nor do I accept his subsequent reasons for his fleeing Iran. Therefore I do not accept he is wanted by the police or that there is a court order for his arrest as a result of this incident.

I am of the view that the applicant, after being in the detention centre some months, later made additional claims in order to enhance his claim for refugee status when he realised the claims he made would not assist his endeavours to remain in Australia. I am satisfied the applicant fabricated his claims in his written application to the department. Therefore I am satisfied he did not have a well founded fear of persecution by reason of his homosexuality or any other Convention reason when he left Iran.

But, even if I were to accept that the applicant was an active homosexual in Iran, as he claims, and on his return to Iran practices his homosexuality, the issue is whether he would have a well-founded fear of being persecuted by reason of his homosexuality on return to Iran.

...

Even if I were to accept that the applicant is a homosexual, as he claims, I would not accept, having regard to all of the evidence before me, that the applicant has a well-founded fear of being persecuted by reason of his homosexuality if he returns to Iran now or in the reasonably foreseeable future.

The applicant left Iran legally with his own passport. I am of the view that the applicant fabricated his claims, in relation to his involvement with his supervisor and subsequent fear of punishment from the Iranian authorities, in an attempt to create for himself the profile of a refugee. In the circumstances, I am not satisfied that the Iranian authorities had any adverse interest in the applicant at the time he left Iran, or that they have any adverse interest in him currently. As I do not accept that the applicant was of any interest to the Iranian authorities at the time he left Iran, I am satisfied he exited Iran without any problems or the necessity for bribery. There is no independent information to indicate that the applicant would suffer any adverse treatment for making an asylum claim in Australia.

I am not satisfied that the applicant has a well-founded fear of being persecuted by reason of his homosexuality or any other Convention reason if he returns to Iran now or in the reasonably foreseeable future."

First Ground of Appeal

7 The first ground of appeal is:

His Honour erred in law in failing to find that the Refugee Review Tribunal (the Tribunal) did not have jurisdiction to make the decision it did, because the Tribunal took into account an irrelevant consideration, being a finding on the credibility of the appellant made by the respondent's delegate, who had rejected the application for a protection visa.

8 The first paragraph which has been reproduced from the reasons of the Tribunal is the foundation for the first ground of appeal. The primary judge disposed of that argument in the following manner:

"15. It may be noted in this context that the principal written submission made to the Tribunal on behalf of the applicant on 21 May 2001, put his arguments in part on the basis of rebuttals of the delegate's findings (CB 89 and CB 90). As a general proposition the opinions of the delegate expressed in the record of decision on the primary application are not relevant to the Tribunal's determination. There may of course be circumstances in which the applicant's own reaction to the delegate's findings and mode of argument to the Tribunal incorporate them by reference. In my opinion, however, there is nothing in the reasons to suggest that the Tribunal did not base its findings entirely on its own view of the factual material. On the question of the applicant's failure to mention his homosexuality and fear of persecution based thereon at the initial interview, the Tribunal obviously gave its own consideration to that failure."

9 The argument for the appellant on appeal was that the relevant paragraph was within that part of the reasons of the Tribunal headed "Findings and Reasons" rather than in the earlier narrative section, and that the way in which it referred to the findings of the delegate indicates that the Tribunal took into account the findings of the delegate on the appellant's credibility. It was submitted that there is no other reason why the Tribunal would have referred to the delegate's findings and credibility at the place in the structure of the reasons which it did. It was also contended that the correspondence between the opinion of the delegate and the opinion of the Tribunal indicated that the former had influenced the latter. It was the duty of the Tribunal to conduct a merits based de novo review of the application for a protection visa (ss 414 and 415 of the Act). It was contended that the findings of the delegate on matters of credibility were wholly irrelevant to the review to be conducted by the Tribunal and, in taking those findings into account, the Tribunal took into account an irrelevant consideration contrary to s 476(1)(b) of the Act (Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1).

10 If the Tribunal had deferred to the opinion of the delegate of the Minister on the issue of credibility, or if, to put it another way, the Tribunal had not considered the issue for itself, then the appellant would have ground for complaint. However, having read the relevant passage in context, we agree with the manner in which the primary judge dealt with this ground of appeal. We consider the last sentence to be the operative part of the passage from the reasons of the Tribunal upon which the point is based, and the preceding sentences to be a factual account of part of the procedural history. The Tribunal said later in its reasons:

"In determining this matter I have considered the applicant's claims from the time he arrived in Australia and through the course of his application for a protection visa to determine whether or not his Convention claims are credible."

There is no reason to doubt this. The fact that the Tribunal correctly refers to part of the procedural history of the matter does not mean that it was in any sense abdicating its decision-making responsibility or taking into account an irrelevant consideration in the administrative law sense.

11 We do not agree that there is anything to be drawn from the similarity of finding by the delegate and the Tribunal. The failure by the appellant to refer to the later basis for claiming fear of persecution in the first interview is an obvious point which would need to be considered by any fact finder. We should also note that the primary judge adverted to the fact that the argument on behalf of the appellant before the Tribunal had referred to the delegate's opinion. This provides a logical explanation for reference by the Tribunal to the delegate's opinion. It may be that the reference to the opinion of the delegate would more logically have been placed in the earlier section of the Tribunal's reasons, or may have been omitted altogether. However, it is not for the Court to intervene in the framing of reasons by a lay tribunal such as this in circumstances where we are satisfied that it was carrying out its statutory task.

Second Ground of Appeal

12 The second ground of appeal is:

His Honour erred in law in failing to find that the decision of the Tribunal involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal.

Particulars

(a) In the circumstances of this application, the Tribunal was required to determine whether the appellant had a well-founded fear of persecution on the basis of being a member of a particular social group, homosexual men, if returned to Iran.

(b) The Tribunal either accepted or did not reject the appellant's evidence and/or contentions that:

(i) the appellant was a homosexual male;

(ii) the appellant had been engaging in homosexual intercourse both in Iran and Australia;

(iii) the statutory punishment for homosexual intercourse in Iran involved imprisonment or death;

(iv) homosexuals in Iran form a recognisable social group and can be subject to persecution.

(c) If the law was properly interpreted, the Tribunal needed to make a finding on whether there was a real chance the appellant's confession of and engaging in homosexual intercourse in Iran and Australia would be discovered upon his return to Iran and if so whether it could lead to persecution.

(d) In error, the Tribunal failed to make a finding on this issue.

13 The primary judge dealt with this ground in the following way:

"18. In my opinion this ground cannot be made out. The Tribunal considered the hypothesis that the applicant was an active homosexual in Iran and concluded, as a matter of fact, that there was no persecution of homosexuals in that country notwithstanding the provisions of its Shari'a law. That consideration subsumes the real chance assessment which, it is said, the Tribunal had failed to undertake. ..."

14 It is submitted for the appellant that the manner in which the primary judge dealt with the matter did not answer the point which was made. The Tribunal was obliged to consider the particular circumstances of the appellant, and these included the appellant's confession of homosexual intercourse in Iran and Australia, his leaving of Iran and return as a failed asylum seeker. It was submitted that the Tribunal had not dealt with the issue raised by these circumstances and therefore the decision was liable to be set aside on the basis of the ground of review set out in the former s 476(1)(e) of the Act. It is submitted that the primary judge also erred in failing to deal with the issue. The respondent supported the approach of the primary judge and also submitted that the issue of the "confession" was not live before the Tribunal, and, in any event, there was no material before the Tribunal which obliged it to consider that issue.

15 Neither the Tribunal nor the primary judge expressly referred to the possibility that confessions of practising homosexuality both in Iran and Australia said to have been made by the appellant might give rise to a real chance of persecution if he returned to Iran. However, counsel for the appellant was unable to point to any material before the Tribunal which addressed the possibility that the appellant's claim to have been a practising homosexual in Iran and Australia would become known to the authorities in Iran, or what the effect may have been if that claim became known and he returned to Iran. Indeed, it is conceded that the issue was not raised on behalf of the appellant during the Tribunal proceedings by his legally qualified agent, and was in no sense a live issue in those proceedings.

16 Despite some reticence by counsel for the appellant on the point, it follows from the absence of relevant material before it that if the Tribunal should have dealt with the "confession" issue it would have been obliged to make its own inquiries in order to do so. There are varying views as to the extent to which (if at all) the Tribunal is bound to consider a point not raised by an applicant and to make its own inquiries about such a point. At the request of the Court, counsel provided references to some relevant authorities. As that aspect was not fully argued, we will not set out or endeavour to reconcile the authorities. Suffice to say, on any view, there needs to be a proper basis laid which calls for the recognition of and inquiries into an issue not raised by an applicant, particularly where the applicant is legally represented. In our opinion, no such basis appears in this case.

17 As we have pointed out, the so-called confession was actually constituted by claims made by the appellant in support of his visa application pursuant to the Act and in the proceedings in the Tribunal provided for by the Act which followed. The claims were disbelieved, at least as to the only particular incident which was relied upon by the appellant. Counsel for the appellant was unable to suggest any basis for concluding that knowledge of those claims made in that particular statutory context might come to the attention of the Iranian authorities. Neither the application nor the proceedings before the Tribunal are public. In our opinion, that possibility is mere unsubstantiated speculation. Counsel submitted that the Tribunal had accepted that the appellant had been involved in homosexual activity whilst in Australia, and it followed that this would be known to the other or others also involved in that activity. It is not clear to us that the Tribunal made that express finding, but even if it did, there is no basis put forward for concluding that the Iranian authorities might learn of those activities from other unidentified participants, of unidentified nationality, held in detention with the appellant. In our opinion, that possibility is fanciful. Counsel also pointed to an indication in the Tribunal's reasons for concluding that the appellant's homosexual activities in Australia might have been known to a nurse or nurses at the detention centre. Again, we would regard the suggestion that such knowledge would be conveyed to the Iranian authorities as fanciful. In our opinion, this ingenious argument, well presented by counsel for the appellant, falls at the threshold, and with it the second ground of appeal.

18 For the sake of completeness, we should say that there was not on the appeal a separate sur place claim based simply upon the making of the claim for asylum, no doubt because of the express rejection of that claim by the Tribunal.

Conclusion

19 The appeal is dismissed. The appellant is to pay the costs of the respondent.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, O'Loughlin and Gyles.

Associate:

Dated: 10 May 2002

Counsel for the Appellant:	M Ritter
Solicitor for the Applicant:	Dwyer Durack
Counsel for the Respondent:	R Lindsay
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 May 2002
Date of Judgment:	10 May 2002