WABI v Minister for Immigration & Multicultural Affairs [2002] FCA 22

FEDERAL COURT OF AUSTRALIA

WABI v Minister for Immigration & Multicultural Affairs [2002] FCA 22

MIGRATION - judicial review - Refugee Review Tribunal - no reviewable error disclosed - application dismissed - no question of principle WABI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W508 OF 2001 FRENCH J 16 JANUARY 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W508 OF 2001

BETWEEN: WABI

APPLICANT

AND: MINISTER FOR IMMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 16 JANUARY 2002

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant to pay the respondent's costs of the application.

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 W508 OF 2001

BETWEEN: WABI

APPLICANT

AND: MINISTER FOR IMMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE: 16 JANUARY 2002

PLACE: PERTH

REASONS FOR JUDGMENT 1 The date of the applicant's arrival in Australia is not specified in the reasons for decision of the Refugee Review Tribunal ("the Tribunal"). His entry interview upon arrival was dated 29 June 2000. He lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. That application was refused on 2 April 2001. He sought review of that decision before the Tribunal and on 16 October 2001 the Tribunal affirmed the decision not to grant a protection visa. 2 The substance of the applicant's claim for protection under the Refugee Convention was that he was a homosexual from Iran, that he was therefore a member of a particular social group and that he faced a real chance of persecution in Iran as a member of that group if he were returned to that country. 3 The Tribunal did not accept his claims. It did not believe his account, and was not satisfied that he faced any real chance of persecution of returned to Iran. The record of his entry interview into Australia shows that he was asked why he came to Australia. His answer was "I liked Australia, heard it was a good country with good people. Because I wanted to come here I saved money to make it possible, wanted to come to a country where they value young people and I can be fruitful. No other reason." He was also asked why he left his country of nationality. His recorded answer was "My Father could not buy me out of military service so I had to do it. Many people suggested I could do other countries but I did not trust them." He was also asked, "When did you begin to plan leaving your country of nationality?" His recorded answer was, "My childhood dream was to come to Australia". Two weeks before he left a customer at his workplace suggested he could go. Asked if he had any reasons for not wishing to return to his country of nationality he said, "I 've spent my life savings to come to Australia. I will not be able to start up again. On the way here I risked my life to arrive. I would not achieve my dream and will have failed. No other reason." He was asked if he accepted the accuracy of the record of interview and he replied that he did. He signed the record of interview, as did an interpreter. 4 In his statement in support of his application for a protection visa the applicant told a different story. He said, in effect, that he had been a homosexual from his boyhood and gave an account of incidents which related to his homosexuality. In particular, he spoke of an incident in which he and another boy were having sexual intercourse and guards entered the house. He said they were told to put on their clothes and were abused and beaten. The guards searched the house and confiscated illegal satellite equipment. According to the applicant, he jumped to a neighbour's roof. From there he went to the door of the house and escaped into an alley. He said he went to a friend's house and told the friend to tell his parents what had happened. He said he feared that he would be sentenced to death or long-term gaol if he were caught. He subsequently arranged with a friend to depart from Iran and came to Australia. He feared that if returned to Iran he would be arrested. He feared he would be interrogated, tortured and sent to court. The court would not be a just one. According to Iranian and Islamic law the penalty for homosexuality is death. 5 There were other statements made in support of his application for review by the Tribunal. The Tribunal gave comprehensive consideration to his case and to country information concerning the attitude to homosexuality in Iran. In its findings and reasons the Tribunal accepted that the applicant is an Iranian national. It accepted that Iran is a conservative and repressive society. The Tribunal was, however, unconvinced about the applicant's explanation for the change in his claims from the time of his entry interview to the time of his application for a protection visa. One of these explanations given by the applicant for the disparity in accounts was that he needed to hear the word "refugee" spoken in Farsi before saying truly why he did not want to live in Iran. The Tribunal concluded that he was a highly unreliable witness. It did accept that male homosexuals in Iran would constitute a particular social group in that country. The Tribunal did not necessarily accept however that a man who regards himself as a homosexual man in Iran would be at risk of possible persecution even if caught performing sexual acts with another man. 6 The Tribunal referred to aspects of the applicant's evidence which it found to be inconsistent. It concluded it was highly unreliable and damaging to his overall case. 7 It is not necessary for me to review in any detail the Tribunal's findings of fact. The Court is not empowered to call into question those findings at this hearing. The applicant in his submissions made a number of points about inconsistencies or inadequacies in the Tribunal's reasonings and findings of fact. None of those criticisms establishes a ground of review available in this Court. I say that having regard to the provisions of s 474 of the Migration Act 1958 (Cth) which in substance provides that certain decisions, including those of the Tribunal, are final and conclusive. The limited grounds upon which this Court may nevertheless review or set aside a Tribunal decision do not extend to errors of fact. 8 The applicant also criticised or called in question the fairness of the Tribunal member. The basis of this was that the Tribunal member had heard a number of applications, all of which he rejected. That, of course, does not establish unfairness on the part of the Tribunal member. I do not, therefore, need to consider the question whether breach of natural justice is available as a ground of review in this class of decision. The applicant has essentially come to this Court to try to get the Court to disagree with the Tribunal's findings about the facts of the case and to substitute a different view. As I have said many times now in these cases, the Court is not empowered to do that. 9 The order of the Court is the application is dismissed. The applicant must pay the respondent's costs of the application. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.