SAAQ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 704

FEDERAL COURT OF AUSTRALIA

SAAQ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 704 SAAQ v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS S.205 of 2001 MANSFIELD J 4 JUNE 2002 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S.205 OF 2001

BETWEEN: SAAQ

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 4 JUNE 2002

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S.205 OF 2001

BETWEEN: SAAQ

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 4 JUNE 2002

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The applicant is a citizen of Iran. He arrived in Australia on 18 April 2001. On 31 July 2001 he applied for a protection visa under the Migration Act 1958 (Cth) (the Act). That application was refused by a delegate of the respondent on 21 August 2001, and on review the Refugee Review Tribunal (the Tribunal) affirmed that decision on 10 October 2001. 2 The applicant now seeks an order under s 39B of the Judiciary Act 1903 (Cth) declaring the decision of the Tribunal to be null and void.

background and claims 3 The applicant was born in Qom in Iran in December 1972. He lived in Qom all his life, except for a period of about two and a half years when he completed an Associate Degree of Civil Engineering at the University of Tehran. He served military service between 1994 and 1996. He worked at the Qom Water Board for a period of several months between 1997 and 1998, and then worked as a chef in a family takeaway food business between 1999 and February 2001 when he left Iran. He left Iran on a validly issued Iranian passport. 4 The applicant claims to have left Iran because, although he was born and brought up as a Muslim, he could not live in an Islamic country where religion was used to persecute people. He told the Tribunal that he had developed an interest in Christianity from exposure to a Christian friend during the course of his military service. He had to repress the expression of his interest in Christianity after he left the army, but he had a little knowledge of Christianity. His attempts to learn more about it were frustrated as Christians in Iran were not willing to proselytise. He knew enough about Christianity to be able to make the sign of the cross, and he feared that he had been seen making the sign of the cross whilst working at the Water Board. Although no action had been taken against him, he resigned from that employment through fear of exposure to interest as a Christian. He also claimed that after he had resigned from the Water Board, unidentified authorities had begun investigating him. He did not demonstrate his Christianity subsequent to that time until he left Iran in February 2001. He also claimed before the Tribunal that he had now developed a significantly greater interest in Christianity, and proposed to be baptised. He fears persecution by the Iranian authorities by virtue of his conversion to Christianity if he were to return to Iran. 5 For the applicant to be eligible to be granted the visa, the delegate of the respondent, and on review, the Tribunal had to be satisfied that the criteria for the grant of the visa specified in the Act and the Regulations were met: s 65(1) of the Act. Relevantly for present purposes, s 36(2) of the Act provided the criterion that the decision maker is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention). In practical terms, in the present matter, that required the decision maker be satisfied that the applicant is a refugee as defined in Article 1A(2) of the Convention, relevantly for present purposes that he has a well-founded fear of being persecuted for reasons of his religion, and that owing to such fear he is unable or unwilling to avail himself of the protection of Iran.