WADZ of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 118

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.