WAFT v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 231

FEDERAL COURT OF AUSTRALIA

WAFT v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCAFC 231

WAFT v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS W.94 of 2002 HEEREY, CARR & MANSFIELD JJ 12 AUGUST 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W.94 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: WAFT

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: HEEREY, CARR & MANSFIELD

DATE OF ORDER: 12 AUGUST 2002

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The appeal is dismissed with costs.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W.94 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: WAFT

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: HEEREY, CARR & MANSFIELD

DATE: 12 AUGUST 2002

PLACE: PERTH

REASONS FOR JUDGMENT

the court 1 This is an appeal from a decision of Lee J given on 18 March 2002. His Honour dismissed an application to review a decision of the Refugee Review Tribunal (the Tribunal) given on 20 April 2001, affirming a decision of a delegate of the respondent not to grant to the appellant a protection visa under the Migration Act 1958 (Cth) (the Act). 2 The grounds of appeal are those contained in the document entitled Memorandum of Proposed Amended Notice of Appeal, dated 26 March 2002, as leave to amend the grounds of appeal in the terms of that document was given today. 3 The appellant, as the Tribunal's reasons show, claimed principally to be entitled to a protection visa because he had a well-founded fear of persecution arising out of the risk that he would be perceived to be an apostate by religious authorities in Iran if he were to return to that country. 4 The learned Judge at first instance noted also the appellant's claim to fear persecution from the Iranian regime because of political opinion that might be attributed to him. The appellant told the Tribunal that one of his brothers had fled to Sweden and had been recognised there as a refugee, and that another of his brothers had died as a result of injuries received whilst in prison and mistreated by the Iranian authorities. The detail of those claims, of the Tribunal's findings about them, and of his Honour's comments upon them, are contained in [10] – [16] of his Honour's reasons. Those matters were not the subject of focus on the application before his Honour, nor on this appeal. It is not necessary to refer to them further. 5 The learned Judge at first instance then addressed the circumstances which the appellant claimed led to him fleeing from Iran in the latter part of 2000. The immediate circumstances as reported by the appellant concerned an interest in the Jewish religion which he had developed in discussions with a workmate during 2000, and an incident which occurred in about September 2000 when the appellant had arranged to receive a Farsi translation of the Torah. The appellant told the Tribunal also of a raid upon his family home and the imprisonment and mistreatment of his brother prompted by that incident. 6 The learned Judge set out those claims, the Tribunal's reasons for rejecting them, and his Honour's views about those matters in [17] – [26] of his Honour's reasons. Again, those matters were not the subject of the application for review, nor raised in the grounds of appeal on this appeal. It is not necessary to refer to them further. 7 The grounds of the present appeal are now in terms the same as the grounds of review upon which the application to the Court was first made. It appears, however, that ultimately the issue upon which the application for review before Lee J was argued was a limited one. It is set out in [28] of his Honour's reasons for decision. His Honour expressed it as being: "whether the Tribunal asked the wrong question and relied on irrelevant material thereby falling into jurisdictional error, when it purported to reject the applicant's [appellant's] claim that he had a well-founded fear of persecution arising out of the risk that he would be perceived to be an apostate by religious authorities in Iran if he were returned to that country." 8 His Honour addressed the evidence on that claim and considered the reasons for decision of the Tribunal for rejecting it. He observed that the Tribunal appeared to treat a state of apostasy as requiring not only abandonment of Islam but also adoption of belief in another religion. His Honour found such an understanding would be erroneous. He also noted the evidence that, in Iran, apostasy is a capital offence, and for an apostate the risk of extreme punishment always exists. 9 Nevertheless, his Honour concluded that the Tribunal ultimately addressed the correct issue. He further concluded its findings that at the time the appellant left Iran he had not been perceived to be an apostate and that there was no real risk that in the future in Iran he would be so perceived by reason of any actions he engaged in meant that he did not have a well-founded fear of persecution for that reason. His Honour concluded that those findings of fact were available to the Tribunal and so it did not fall into reviewable error in its decision. 10 Four of the five particular grounds of appeal seek to assert that his Honour erred in law in his approach to the review of the Tribunal's decision on that issue. Principally, it was argued that the Tribunal had asked itself a wrong question because the Tribunal was required to ask whether there was more than a remote chance that the Iranian authorities would know or might discover that the appellant was a non-believer and if so whether the Iranian authorities might persecute the appellant as a result. 11 In our view, his Honour correctly concluded that the Tribunal did ask itself the question that the grounds of appeal indicate it should have asked. His Honour found that, in the end, the Tribunal asked whether there were any overt signs of apostasy that may bring the appellant under the notice of religious authorities and therefore present him with a risk of harm. 12 The Tribunal in its reasons accepted that the appellant is not a believer in Islam. It appears to have accepted that his lack of belief in Islam had existed for some time, and it noted that he had not over that period of time converted to any other religion. It noted further that there was no evidence to suggest that merely being a non-believer is sufficient to give rise to a well-founded fear of persecution in Iran. It referred to independent evidence which indicated that three quarters of the population in Iran does not perform daily prayers. The appellant on the appeal said that his non-belief in Islam may lead him to refuse to do things which he was required to do. But in our judgment, as his Honour correctly found, the Tribunal reached the view that the appellant's interest in other religions was not such as to lead him to do anything that might attract the attention of the authorities to his lack of belief in Islam. 13 The learned Judge at first instance, in reaching his conclusion, recognised that the Tribunal had had regard to material stating that three quarters of the Iranian population do not perform daily prayers. It has not been shown that it was irrelevant for the Tribunal to have regard to that information. It has not been shown that his Honour was wrong to have treated that information as relevant to the Tribunal's decision. The learned Judge also noted that the Tribunal may have conflated the rejection of Islam with the regular observance with the rituals of Islam, and that it may have treated apostasy as involving not merely abandonment of belief in Islam but the adoption of belief in another religion. His Honour's view was however that those matters appearing from the Tribunal's decision did not demonstrate that it had not ultimately addressed the correct issue it was required to address. For the reasons given by his Honour in [32] – [35] of his Honour's reasons, we respectfully agree with his Honour's conclusion. The grounds of appeal also assert error on the part of his Honour in failing to have regard to material that an Iranian Muslim who leaves Islam is liable to be executed. It is not correct that his Honour failed to have regard to that material. Nor did he conclude that the Tribunal had fallen into error by failing to have regard to that material. It was part of the material before the Tribunal. It was specifically acknowledged, as his Honour found at [32] of his reasons, as a matter of which the Tribunal was aware. Consequently in our view it has not been shown that his Honour erred in dealing with that aspect of the evidence or that the Tribunal erred in reaching the conclusions of fact that it reached. 14 Accordingly the first four of the grounds of appeal are not made out. 15 The fifth ground of appeal is that the Tribunal failed to take into account the fact that it might be wrong in its conclusion, and the risk of consequences to the appellant if it were wrong. We have noted in [6] of these reasons the issue on the application for review before his Honour, as identified by counsel for the appellant at the time. It does not appear that the matter now raised was argued before his Honour, even though it was in the notice of application. Indeed, in one particular respect his Honour at [38] of his reasons remarks that it was not submitted on behalf of the appellant that, notwithstanding the disbelief of the Tribunal that the events he claimed had occurred, the Tribunal had erred in failing to consider the possibility that such events may have occurred as he claimed. Even if that argument had been raised before his Honour, we do not think that the Tribunal's reasons are expressed in terms that indicate any real doubt on its part. It expressed itself in quite firm terms, rejecting the appellant's claims about the reasons for one of his brothers now being in Sweden and about the reasons for the death of one of his brothers. It also expressed itself in firm terms in rejecting his claims about the incident in which he claimed to have received a copy of the Torah in Farsi, and subsequently the search of his home and the arrest and mistreatment of his brother. In our judgment the Tribunal's reasons for rejecting those claims did not require it to embark on any speculation that, despite its rejection of those claims, they might possibly be true or the consequences to the appellant if they were true. 16 In addition to the matters which are dealt with the in the grounds of appeal, the appellant submitted to the Court a handwritten memorandum dated 21 July 2002. Except in one respect, it deals with the matters identified in the grounds of appeal with which we have already dealt. It also appears to raise a claim made by the appellant to fear persecution, if he were to return to Iran, because of a homosexual experience which he had in Iran before he came to Australia. 17 It appears that he first made such a reference to such an experience in his hand written notice of appeal of 21 March 2002. That matter, even if it be true, (and we make no comment about it one way or the other) is not a matter that could now entitle the Court to allow this appeal. The appeal is from a decision of single Judge of the Court. The Court cannot set aside a single Judge's decision, except for error on the part of that Judge. It cannot constitute error not to deal with a matter which was not raised before the Judge at first instance. We note that s 48A of the Act precludes the appellant from making a further application for a protection visa. Section 48B, however, empowers the Minister to determine that, in certain circumstances, a fresh application for a protection visa may be made. The appellant may wish to seek such a determination if he wishes to apply for a protection visa by reason of his homosexual experiences in Iran. That is not something now before the Court. We note the offer of counsel for the Minister to ensure that the appellant knows how to direct to the Minister for his consideration any application under s 48B of the Act. 18 For those reasons, in our view this appeal should be dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.