WADT v Minister for Immigration & Multicultural Affairs [2002] FCAFC 164 (8 May 2002)

Last Updated: 3 June 2002

FEDERAL COURT OF AUSTRALIA

WADT v Minister for Immigration & Multicultural Affairs

[2002] FCAFC 164

WADT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 7 OF 2002

SPENDER, O'LOUGHLIN and GYLES JJ

PERTH

8 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 7 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	WADT APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
COURT:	SPENDER, O'LOUGHLIN and GYLES JJ
DATE OF ORDER:	8 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, such costs to be agreed, or taxed if not agreed.

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 7 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	WADT APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

COURT:	SPENDER, O'LOUGHLIN and GYLES JJ
DATE:	8 MAY 2002
PLACE:	PERTH

EX TEMPORE REASONS FOR JUDGMENT

GYLES J:

1 The appellant is a citizen of Iran who arrived in Australia on 30 October 2000, without lawful authority, by boat from Indonesia, having arrived there via Malaysia by arrangement with a person described by the appellant on his arrival as a smuggler. This is an appeal from a decision of French J dismissing an application for an order of review of a decision of the Refugee Review Tribunal ("the Tribunal") which had affirmed a decision of a delegate of the respondent Minister to refuse the appellant's application for a protection visa pursuant to the Migration Act 1958 (Cth) ("the Act").

2 The grounds of appeal have been read to the appellant by Spender J, the presiding judge. They are:

"1. The applicant belongs to special social group and has well-founded fear of persecution.

2. There is no evidence to justify that the applicant did not have well-founded fear of persecution.

3. The applicant had sexual relationship as homosexuality and under Iranian theocratic system laws he will be sentenced to stoning."

3 The grounds of the original application to the Court were as follows:

"(a) There was no evidence or other material to justify the making of the decision that the applicant did not have a well-founded fears [sic] of persecution by reason of homosextuality [sic] if he returned to Iran within the reasonably foreseeable future.

(b) The decision involved an error of law, being an error of law involving the incorrect interpretation [of] the applicable law of [sic] an incorrect application of the law to the facts as found by the Tribunal, or both."

4 The appellant said that he was aggrieved by the Tribunal decision because he would be executed by the Iranian regime because of his homosexuality if he returned to Iran.

5 The reasons for judgment delivered by French J summarised in some detail the evidence and claims in support of the appellant's application for a protection visa and summarised in detail the findings of the Tribunal upon that evidence and those claims. I do not need to repeat those summaries. As is apparent from his original application to the Court, the bases for his fear of persecution if returned to Iran are his homosexuality (in particular, because of a particular incident which led him to come to the attention of the authorities shortly before his leaving Iran), and also his being HIV positive.

6 The Tribunal did not accept the appellant's claim that the particular incident occurred. Indeed, the Tribunal was not satisfied that the appellant is a homosexual. Even if he were, the Tribunal did not accept that he would have a well founded fear of persecution because of that if he returned to Iran. The Tribunal accepted that the appellant is HIV positive but did not accept that he would be persecuted in Iran on that account if he returned. In substance, the Tribunal did not believe the claims put forward by the appellant which, it concluded, he had fabricated in order to pursue refugee status, as it was put.

7 The primary judge, French J, having summarised the matters to which I have referred, and having summarised the contentions before him, concluded as follows:

"In the event it was apparent that the Tribunal decision turned entirely upon its assessment of the credibility of the applicant. It made strong findings adverse to him in that respect. He has been unable to point to any basis upon which this Court could find a ground of review made out, whether in terms of those in the application for review or otherwise, which would justify interference with the Tribunal's decision."

8 The appellant, who was then, and remains now, unrepresented, has not advanced any written or oral reasons showing a basis which demonstrates error in judgment of the primary judge. Having considered the judgment under appeal and the reasons of the Tribunal, I can detect no ground available to the appellant pursuant to s 476 of the Act as it stood at the relevant time, which would enable this Court to intervene.

9 The only matter of substance advanced by the appellant today has been reference to a letter bearing the date 6 April 2002, which he received prior to 29 April 2002 which purports to be from one of his brothers dealing with what occurred to the appellant's brother upon his return to Iran from detention in Australia, he having accompanied the appellant from Iran. That letter, if it were to be admissible, would need to be admitted as further evidence on the appeal. No such application could succeed because it relates to events which are alleged to have occurred since the Tribunal's decision, and indeed since the decision under appeal. Even if the letter reflects genuine events, that would provide no basis for challenge to the decision of the Tribunal which is ultimately in issue in this case.

10 However, the appellant should be aware that there are provisions of the Act, for example s 48B and s 417, which might enable him to take some further steps with the Department arising out of the receipt of that letter, and whilst it is no role of this Court to give advice to the appellant, it would be in his best interests to seek advice upon that point.

11 I would dismiss the appeal.

SPENDER J:

12 I agree.

O'LOUGHLIN J:

13 I also agree.

SPENDER J:

14 The order of the Court is that the appeal is dismissed; the appellant is to pay the costs of the respondent to be agreed, or taxed if not agreed.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, O'Loughlin and Gyles.

Associate:

Dated: 31 May 2002

The Appellant was self represented
Counsel for the Respondent:	PR Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 May 2002
Date of Judgment:	8 May 2002