WAGE of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 346 (12 November 2002)

Last Updated: 13 November 2002

FEDERAL COURT OF AUSTRALIA

WAGE of 2002 v Minister for Immigration and Multicultural and

Indigenous Affairs [2002] FCAFC 346

WAGE of 2002 v Minister for Immigration and Multicultural and

Indigenous Affairs

W142 of 2002

FRENCH, CARR & FINN JJ

12 NOVEMBER 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W142 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	WAGE OF 2002 Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
JUDGES:	FRENCH, CARR & FINN JJ
DATE OF ORDER:	12 NOVEMBER 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs.

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	W142 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	WAGE OF 2002 Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent

JUDGES:	FRENCH, CARR & FINN JJ
DATE:	12 NOVEMBER 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from a judgment of a Judge of this Court given on 11 December 2001. The learned primary judge dismissed the appellant's application, filed on 28 May 2001, for an order of review of a decision of the Refugee Review Tribunal ("the Tribunal"), made on 21 May 2001, affirming a decision of a delegate of the respondent not to grant the appellant a protection visa.

THE APPELLANT'S CLAIMS

2 The appellant's claims to be entitled to protection as a refugee were set out in the Tribunal's reasons. They were substantially repeated in the primary judge's reasons. There is no need to repeat the details of the claims, but we will summarise them.

3 The appellant is a citizen of Iran. His claims for refugee status were based primarily on persecution feared by him by reason of his conversion to Christianity. This was associated with a claim that he had been dismissed from his employment as a construction supervisor at an oil company for reasons which included his lack of belief in Islam.

4 Furthermore, the appellant claimed that due to his rejection of Islam he had been the victim of a conspiracy which had resulted in his arrest, while travelling with a friend, for possession of about 2 kilograms of drugs.

5 The Tribunal found the applicant not to be a credible or a reliable witness in relation to various aspects of his claims.

6 In particular, it did not accept that the appellant had been truthful in relation to his claims about possession of a substantial quantity of opium.

7 The Tribunal acknowledged that the appellant might well be a genuine Christian, but was not satisfied that he was at risk of persecution for that reason. It relied upon independent country evidence for that conclusion, in particular, evidence about the treatment of Christians who choose to keep a low profile. The appellant had kept such a low profile in Iran.

8 The Tribunal considered whether the appellant would be at risk of persecution by reason of the fact that he had applied for refugee status in Australia. Again it relied upon independent evidence, which indicated that persecution was unlikely, when it rejected that claim.

9 The Tribunal also considered whether it would be reasonable for the appellant to relocate away from Ahwaz to somewhere else in Iran. This was on the basis of his claim that he had been threatened by an Islamic association in Ahwaz, being an organisation associated with the company which formerly employed him. The Tribunal took into account the appellant's skills, which were apparently in demand, and other personal circumstances. It also took into account independent country information in reaching the conclusion that genuine domestic protection was available to the appellant in various parts of Iran.

10 The Tribunal concluded that it was not satisfied that the appellant had a well-founded fear of persecution upon return to Iran.

GROUNDS OF REVIEW

11 The application for an order for review was hand-written. It appears to have been drafted by someone without legal training and is in a familiar form. There were three grounds relied upon, which we would summarise as follows:

* procedures required by the Migration Act to be observed were not observed;

* error of law being an error of law involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found; and

* no evidence or other material to justify the making of the decision.

THE JUDGMENT AT FIRST INSTANCE

12 The primary judge questioned the initial part of the Tribunal's credibility assessment. However, in summary, his Honour held that it was open to the Tribunal to make the findings and reach the conclusions to which we have referred above.

THE APPEAL

13 The appeal, also hand-written, does not raise, in our opinion, any error of law on the part of the primary judge or the Tribunal. The grounds set out in the notice of appeal are concerned with the merits of the Tribunal's decision.

14 The appellant appeared in person at the hearing. He made oral submissions to the Court. In our view, there was nothing in those submissions which raise any possible basis for review of the Tribunal's decision.

15 There is one matter which we should mention. In written submissions to the Tribunal, the appellant's solicitors contended that the appellant could be considered anti-regime because he had not adhered to the Islamic code. It was submitted that the appellant thus had a well-founded fear of persecution for reason of his political opinion and religion.

16 The Tribunal noted that the appellant had never been a member of a political party, but was a supporter of the left faction. He had read newspapers and claimed to be familiar with democracy and had had discussion with friends in which he would get involved in political discussion about policies. He claimed that he put propaganda posters on a wall during the election of the city council in Ahwaz. Other family members were not involved in politics.

17 The appellant told the Tribunal that if he returned to Iran he would not have trouble with the government but with the Islamic forces, as he had insulted them. The appellant told the Tribunal that he had left Iran travelling on his own passport which he had held for several years.

18 At one point, on first reading the Tribunal's reasons, we were concerned that the Tribunal had not specifically dealt with the appellant's claims to fear persecution by reason of political opinion.

19 However, it is quite clear that that claim was not made independently of the religion-based claims. Furthermore, the appellant's statement to the Tribunal that he did not fear persecution from the government if returned to Iran but from an Islamic association, confirms that in the end the political ground was not pressed. In all the circumstances, some of which we have summarised immediately above, we do not think the Tribunal fell into any reviewable error when it failed separately to consider the matter of imputed political opinion.

20 We have examined his Honour's reasons for decision. In our respectful opinion, he was quite correct in his conclusions that the various findings were open to the Tribunal and no error of law had been revealed.

21 In our opinion, there is no substance in the appeal and we will dismiss it with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 12 November 2002

The Appellant appeared in person
Counsel for the Respondent:	Mr A A Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	12 November 2002
Date of Judgment:	12 November 2002