FEDERAL COURT OF AUSTRALIA WAAJ v Minister for Immigration & Multicultural Affairs [2002] FCA 23 MIGRATION - judicial review - Refugee Review Tribunal - no reviewable error disclosed - application dismissed - no question of principle Judiciary Act 1903 s 39B Migration Act 1958 (Cth) s 474 Walton v Philip Ruddock [2001] FCA 1839 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. WAAJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W496 OF 2001 FRENCH J 16 JANUARY 2002 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W496 OF 2001 BETWEEN: WAAJ APPLICANT AND: MINISTER FOR IMMIGRATION 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 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 W496 OF 2001 BETWEEN: WAAJ APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: FRENCH J DATE: 16 JANUARY 2002 PLACE: PERTH REASONS FOR JUDGMENT 1 The applicant is a citizen of Iran and he arrived in Australia without travel documents on 25 March 2001. He lodged an application for a protection visa on 7 July 2001. That application was refused by a delegate of the Minister for Immigration and Multicultural Affairs on 6 August 2001. On 8 August, the applicant applied to the Refugee Review Tribunal ("the Tribunal") for a review of the delegate's decision. On 25 September, the Tribunal affirmed the decision not to grant him a protection visa. On 5 October, he applied to this Court seeking review of the decision of the Tribunal. 2 The application which he filed is of the kind which was used under the Migration Act 1958 (Cth) as it stood before 2 October 2001. I am prepared, however, to treat this as an application for relief under s 39B of the Judiciary Act 1903 even though it is not in the appropriate form for that purpose. The decision of the Tribunal, which the applicant seeks to have set aside or quashed, is one of those decisions called a privative clause decision under the Act. Section 474 of the Act provides in the relevant parts: "474(1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. (2) In this section: privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5). (3) A reference in this section to a decision includes a reference to the following: (a) granting, making, suspending, cancelling, revoking or refusing to make an order or determination; (b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa); . . . (i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act; (j) a failure or refusal to make a decision. . . . (5) The regulations may specify that a decision, or a decision included in a class of decisions, under this Act, or under regulations or another instrument under this Act, is not a privative clause decision." 3 In spite of that provision, the Court does have jurisdiction under s 39B of the Judiciary Act to consider challenges to the decision of the Tribunal in certain exceptional cases. It is not necessary here to set out in detail the basis upon which the Court may exercise that jurisdiction. Indeed, there may be some debate about whether those bases are wider or narrower than the grounds that existed before in certain respects - Walton v Philip Ruddock [2001] FCA 1839. This depends upon the application of the decision of the High Court in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. However, in my opinion, whether the jurisdiction that remains in the Court is interpreted widely or narrowly, this application cannot succeed. 4 In his submissions to the Tribunal, the applicant said that he is of the Shi'a faith from Fars Province in Iran. He worked in Iran as a butcher in his family's shop. He described in his submission a number of events which resulted in him entering into a sexual relationship with a woman who had visited his shop. His relationship with the woman progressed over a period of about six weeks. He said that he asked her to marry him. It turned out, however, that she was in fact the wife of a member of the Sepah Pasdaran. He and the woman were arrested by the Basij and he was tortured and interrogated about his relationship with her. He claims that he said he was not aware that she was married. According to the applicant's story, the woman told the Basij that he had forced her to have sex with him. 5 While he was in detention the applicant's father arranged a bribe to allow him to escape. He escaped at 2am on the morning following the second night of his detention. He found his brother who was waiting for him on a motor bike. According to his story, his brother took him to Ahvaz and arranged a smuggler for him. He left Iran within ten to fifteen days of his escape. He said that since arriving in Australia he had given consideration to learning more about and possibly converting to Christianity. He said he had thought about this in Iran but was fearful about what would happen if he did this. He said that he feared if returned to Iran he would be persecuted by being stoned to death. By allegedly engaging in a sexual relationship with a married woman he had acted in a manner which contravened the Iranian religious code. This, he said, placed him in a position where he would be seen as being defiant towards the Islamic regime. 6 The Tribunal set out his written submission to it in full. It also set out in its reasons the substance of the questions it asked him and the answers he gave during the Tribunal hearing. The Tribunal referred to general information about the position of Christians in Iran. In its findings and reasons the Tribunal was satisfied that the applicant is a national of Iran. The Tribunal considered that it was possible that, as he said, he had a relationship with a woman and that he was telling the truth about being detained because of the nature of that relationship. The Tribunal also thought it possible that he was being truthful about his escape from custody. It thought, however, that this story was not probable. The Tribunal on that basis considered whether because it was possible that he was telling the truth, he might face a real chance of being persecuted in Iran. The Tribunal accepted that the penalties for adultery and rape in Iran are harsh. It also accepted that they can range from a lashing to execution. However, the Tribunal was satisfied that the authorities did not think that the applicant held particular political or religious views which might make his punishment more severe than that of other people. 7 The applicant did not claim to the Tribunal that he was asked at all about his religious or political views nor, on his story, was he accused of holding unacceptable political or religious views. He said the punishment he feared was the same as that applying to other people accused of rape or adultery. The Tribunal said there was no suggestion that any persecution of him would be for a reason relevant to the Refugees Convention. 8 The Tribunal went on to consider the applicant's evidence about his conversion to Christianity. The applicant gave evidence that he had attended a Sunday service at the Detention Centre each week for the previous two months. The Tribunal, had regard to evidence that converts are generally tolerated in Iran if they maintain a very low profile. The applicant's conversion was very recent and, according to his evidence, the Iranian authorities remained unaware of it. The Tribunal noted that the applicant did not claim that he feared persecution in Iran because of his conversion. His legal adviser did not refer to the conversion in her submissions to the Tribunal. Independent evidence indicated there are over 100,000 Christians of various denominations in Iran. The Tribunal was of the view that his conversion to Christianity was so recent that if he practised Christianity in Iran it would be in a low-key manner. The Tribunal was satisfied that the chance was remote that he might be subjected to persecutory treatment because of his religion. 9 As to his claimed illegal departure from Iran, the Tribunal was not satisfied that illegal departure would lead to him being treated as anti-government. The most likely penalty for leaving Iran illegally is a fine. Any penalty he may face on return to Iran would not be motivated by any of the reasons relevant to the Refugees Convention. 10 In his application filed in this Court, the applicant alleged that the decision involved an error of law involving the incorrect interpretation of the law or an incorrect application of it to the facts. It also said that the decision involved an error of law in that the Tribunal made findings of fact that were not rationally supported and it failed to rationally consider the evidence before it. Neither of these grounds was explained further in the application, nor was there anything in what the applicant put to the Court that would indicate such a ground. It is therefore not necessary for me to consider the extent to which error of law might affect the power of the Tribunal in a way that the Court could review. 11 The application will be dismissed. The applicant will pay the respondent's costs of the application. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: Mr WAAJ appeared on his own behalf Counsel for the Respondent: Mr PR Macliver Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 16 January 2002 Date of Judgment: 16 January 2002