WADW of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 111

FEDERAL COURT OF AUSTRALIA

WADW of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 111 MIGRATION – appeal from decision of primary judge dismissing appeal from Refugee Review Tribunal – protection visa – appellant claimed well‑founded fear of persecution in Iran because of Zoroastrian faith – whether error of law – whether no evidence to justify finding that appellant's fear was not well‑founded – challenge to factual findings of Refugee Review Tribunal. WADW of 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 12 of 2002

BRANSON, GOLDBERG & ALLSOP JJ 6 MAY 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 12 of 2002

ONAPPEALFROMASINGLEJUDGEOFTHEFEDERALCOURTOF AUSTRALIA

BETWEEN: WADW of 2002

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: BRANSON, GOLDBERG & ALLSOP JJ

DATE OF ORDER: 6 MAY 2002

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the appeal 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 12 of 2002

ONAPPEALFROMASINGLEJUDGEOFTHEFEDERALCOURTOF AUSTRALIA

BETWEEN: WADW of 2002

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: BRANSON, GOLDBERG & ALLSOP JJ

DATE: 6 MAY 2002

PLACE: PERTH

REASONS FOR JUDGMENT

THE COURT: 1 The appellant is a citizen of Iran who entered the Australian migration zone without a visa on 22 December 2000. Since that date he has been held in immigration detention pursuant to the provisions of the Migration Act 1958 (Cth) ("the Act"). On 8 January 2001, the appellant lodged an application for a protection visa which was refused by the delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") on 3 April 2001. The appellant applied to the Refugee Review Tribunal ("the Tribunal") to review that decision and on 5 June 2001, the Tribunal affirmed the decision of the delegate of the Minister to refuse to grant a protection (Class XA) visa to the appellant. The appellant applied to the Court to review the decision of the Tribunal and on 28 November 2001, Lee J dismissed that application. The appellant now appeals from that decision to this Court. 2 The background to the appellant's application for a protection visa is set out in the judgment of Lee J and it is not necessary to set out the background again in any detail. For present purposes it is sufficient to note that the appellant based his application for refugee status on his claim that he had a well‑founded fear of persecution in Iran because he was a Zoroastrian or was, at least, in the process of conversion to Zoroastrianism. The appellant worked as a surveyor and draftsman. He said his father had been investigated for corruption and had eventually been released and acquitted. The appellant claimed that in June or July 2000, two armed people from the authorities came to his workplace and took him away to a building where they told him that they knew he wanted to convert to the Zoroastrian faith. According to the appellant, he was told further that if his conversion could be proved he would be killed. He was questioned about his father's activities. He was interrogated for 36 hours and was then taken to his house where the persons who took him found some Zoroastrian books and photographs of the appellant and a female friend who was a Zoroastrian at a Zoroastrian shrine. The appellant also had some banned books. While the officers were looking at the books the appellant jumped out a window and escaped. Shortly after his escape he learned that his mother had been told that unless he returned within 24 hours an execution order would be made against him. Thereafter, arrangements were made for him to leave Iran at the end of October 2000 using what the appellant said was a passport issued in another person's name. 3 Before the Tribunal, the appellant had given evidence variously that he was in the process of converting to be a Zoroastrian and that his conversion would be complete in five years, and that he was formally initiated into Zoroastrianism two years ago. 4 Lee J noted the Tribunal's finding that it accepted that the appellant knew a significant amount about the Zoroastrian faith, but that it had considerable doubts about the appellant's conversion. Lee J also noted that the Tribunal went on to consider whether, even if the appellant had converted to Zoroastrianism, desired to convert, or was in the process of converting, there was a real chance that he would be harmed because of any of these circumstances. Lee J then set out the passages in the Tribunal's reasons in which the Tribunal considered it reasonable to infer that a convert to Zoroastrianism would not be in any different situation to that of a convert to Catholicism who would not have any problems in Iran. The Tribunal concluded that, as a result, if the appellant had converted to Zoroastrianism, there was no real chance that he would face persecution because of that fact. The Tribunal also did not accept that the appellant would seek converts to Zoroastrianism as he had claimed and it explained its reasons for this finding. 5 Lee J also noted the following findings of the Tribunal: · the appellant's account of escaping from custody out of a window after books were found at his house was far fetched; · it did not accept that the appellant was in custody because of an alleged conversion or that his house was searched and he escaped; · it did not accept that the appellant was already suspected of converting or that his interest in Zoroastrianism was known to the authorities; · it found that neither departing illegally, nor applying for refugee status would cause the appellant problems serious enough to amount to persecution should he return to Iran; · it found that there was no real chance that the appellant would face persecution for a Convention reason should he return to Iran. (The Convention referred to is the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967.) 6 Lee J then considered the six grounds of review advanced on behalf of the appellant. 7 The first ground was that the Tribunal failed to consider a relevant issue, namely whether independently of the absence of any such evidence in the country information about the Zoroastrian community overall, members of the group that the appellant was seeking to join were actually engaged in proselytising activities and, therefore, could be perceived by Iranian authorities to be seeking converts to that faith. The appellant relied upon Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [84]. 8 Lee J noted that the Tribunal had a range of country information before it and concluded that it was open to the Tribunal to draw the inferences it did in the absence of any evidence put before it directly addressing the issue whether Zoroastrians in Iran were actually involved in proselytising. Lee J concluded that no error of law on the part of the Tribunal had been established under this ground. We agree with his Honour's conclusion. His Honour did not err in reaching this conclusion. 9 The second and third grounds challenged the inferences which the Tribunal drew about the likelihood of persecution of Zoroastrians based on the country information before the Tribunal regarding Catholics. Lee J noted that, in part, the Tribunal drew the parallel between Zoroastrians and Catholics because each group was an officially recognised religious minority. Lee J concluded that in the absence of any direct evidence presented to the Tribunal about the treatment of Zoroastrians, it was open to the Tribunal to draw the inferences it did and he found that no error of law on the part of the Tribunal was made out. We agree with the reasoning of his Honour. His Honour did not fall into any error in so concluding. 10 The fourth ground related to the issue of the appellant's detention. The Tribunal had found that it was possible that the appellant's father was accused of embezzlement and if the appellant was detained, it was possibly related to the embezzlement. However, the Tribunal stated that this would not be a circumstance that occurred for a Convention reason and it also expressly rejected the appellant's claim that he was in detention because of an alleged conversion to Zoroastrianism. The ground raised was whether even if the embezzlement was the primary cause of the detention, the appellant's conversion was an issue for the authorities because they could use it to threaten his life in order to gain further information about what would ordinarily be a criminal matter. Lee J considered the ground advanced and noted that the Tribunal expressly rejected the claim that the appellant was in custody because of his possible conversion or that his house had been searched and he had escaped. Lee J concluded that the findings were open to the Tribunal which had not fallen into any error of law. We agree with his Honour's reasoning. His Honour did not fall into error. 11 The fifth ground challenged the Tribunal's finding that if the appellant had left Iran on a false passport, there was no real chance that he would face serious problems if he did return. It was submitted before Lee J that, in drawing this conclusion, the Tribunal considered only the prospect of a fine for leaving the country illegally without asking whether the authorities would also take into account the appellant's claims in relation to his conversion. However, as Lee J observed, the Tribunal found that there was no real chance that the appellant would be prosecuted because of his possible conversion and that the authorities were not aware of the conversion. We agree with his Honour's conclusion that this ground was not made out. His Honour did not fall into error in this respect. 12 The sixth ground was predicated on the submission that there was no evidence from which the Tribunal could infer that Zoroastrians were necessarily treated the same as Catholics in Iran. Lee J rejected this ground on the basis that it was open to the Tribunal to draw the inferences it did. In this respect we agree with his Honour, who did not fall into any error. 13 The notice of appeal set out the following grounds: "1 The applicant has well‑founded fear of persecution for his conversion to Zoroastrian that will be considered as apostate. 2 The RRT did not have any evidence to justify that the applicant fear is not well‑founded. 3 The applicant has fear of being executed as apostate if he returned to Iran." 14 These grounds essentially challenge the findings made by the Tribunal. It was not open to Lee J, and it is not open to this Court on appeal, to reconsider, and determine again, the facts as found by the Tribunal. It is the role of the Tribunal to decide relevant questions of fact and it is the role of the primary judge and the role of this Court to determine whether there was an error of law in the way the Tribunal or the primary judge approached the matter or conducted the hearing. 15 The appellant submitted that his Honour did not pay attention to his submissions and that his Honour referred to information. The appellant said he did not know the source of the information. It is apparent from his Honour's reasons that he paid particular attention to the grounds of review put forward on behalf of the appellant by his counsel and that the source of the country information to which his Honour referred was country information which was before the Tribunal. 16 The appellant referred to information relating to the consequences of people in Iran converting from Islam to other religions, which information was available on the Internet and elsewhere. However, the primary judge and this Court are limited in their consideration to the material and information which was before the Tribunal. 17 The appellant further suggested that there was an element of unfairness before the Tribunal in that his input into the proceeding was limited to answering a few questions put to him by the Tribunal. In view of the fact that s 476(2) of the Act precludes review on the ground of denial of natural justice and the absence of any further identified errors, we can only conclude that the appellant's counsel before the primary judge took the view (understandably) that none of the matters to which the appellant referred constituted available grounds of review under the Act. In any event, as no such matters were raised before the primary judge, they cannot usefully now be raised before this Court. 18 The appeal should be dismissed with costs.