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2 This is an appeal from a decision of Carr J given on 11 October 2001. His Honour dismissed an application by the appellant for judicial review of a decision of the Refugee Review Tribunal given on 12 April 2001. The Tribunal affirmed a decision of a delegate of the respondent made on 15 December 2000 not to grant a protection visa to the applicant under the Migration Act 1958 (Cth) (the Act). As the application to the Court was made on 27 April 2001, the Act in the form in which it appeared before the amendments to the Act effected by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) applies and my references to the act are references to the Act as it stood prior to 2 October 2001.

WAAY v Minister for Immigration & Multicultural Affairs [2002] FCAFC 14 (15

WAAY v Minister for Immigration & Multicultural Affairs [2002] FCAFC 14 (15 February 2002); [2002] FCA 109
Last Updated: 2 May 2002


WAAY v Minister for Immigration & Multicultural Affairs [2002] FCAFC 14
WAAY v Minister for Immigration & Multicultural Affairs [2002] FCA 109



NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)
The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

* All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.


FEDERAL COURT OF AUSTRALIA
WAAY v Minister for Immigration & Multicultural Affairs

[2002] FCA 109


WAAY v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W.494 of 2001

DRUMMOND, MANSFIELD & EMMETT JJ

11 FEBRUARY 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA


WESTERN AUSTRALIA DISTRICT REGISTRY
W.494 OF 2001


ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
WAAY

APPELLANT

AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES:
DRUMMOND, MANSFIELD & EMMETT JJ

DATE OF ORDER:
11 FEBRUARY 2002

WHERE MADE:
PERTH



THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant pay to the respondent costs of the appeal.

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.494 OF 2001


ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
WAAY

APPELLANT

AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT



JUDGES:
DRUMMOND, MANSFIELD & EMMETT JJ

DATE:
11 FEBRUARY 2002

PLACE:
PERTH




REASONS FOR JUDGMENT
DRUMMOND J:

1 I agree with the orders proposed by Mansfield J and with his Honour's reasons for those orders.

MANSFIELD J:

2 This is an appeal from a decision of Carr J given on 11 October 2001. His Honour dismissed an application by the appellant for judicial review of a decision of the Refugee Review Tribunal given on 12 April 2001. The Tribunal affirmed a decision of a delegate of the respondent made on 15 December 2000 not to grant a protection visa to the applicant under the Migration Act 1958 (Cth) (the Act). As the application to the Court was made on 27 April 2001, the Act in the form in which it appeared before the amendments to the Act effected by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) applies and my references to the act are references to the Act as it stood prior to 2 October 2001.

3 The applicant is a citizen of Iran. He arrived in Australia on 1 November 2000. On 13 November 2000 he applied for the protection visa under the Act.

4 He claimed that he has a well founded fear of persecution if he were to return to Iran because of his conversion to Christianity whilst in Iran and that he will be persecuted as an apostate. Thus he claimed that he is a refugee as defined in Art 1A(2) of the Refugees Convention as amended by the Refugees Protocol (using those terms as defined in the Act) (the Convention) so that he would satisfy the criterion for the grant of a protection visa specified in s 36(2) of the Act by being a person to whom Australia has protection obligations under the Convention. He also claimed that, because he had left Iran illegally, he would be persecuted upon his return.

5 The Tribunal accepted that the appellant had developed an interest in Christianity from his girlfriend. However, it did not accept that he had in fact converted to Christianity whilst in Iran. The Tribunal's reasons for that view were that the appellant said that he had not been baptised in Iran, that in his application for the protection visa he said his religion was Shi'a Muslim, and that he had not celebrated any of the significant events in the Christian calendar. The Tribunal also considered what might happen to the appellant if he now converted to Christianity and returned to Iran. Independent country information indicated that such a conversion of itself does not attract adverse treatment from the authorities in Iran, and that Christians do practise their Christian religion in Iran without problems provided the do not proselytise. The Tribunal did not consider that the appellant would proselytise in a way which would attract the attention of the authorities if he returned to Iran, so it considered that there was no real chance that he might be persecuted for that reason upon his return. The Tribunal also did not accept that the appellant had left Iran illegally, and so did not consider that there was a real chance that he might be persecuted upon return to Iran for that reason.

6 The appellant could only obtain an order for judicial review of the Tribunal's decision if one of the grounds of review specified in s 476(1) of the Act were made out. Carr J accordingly looked carefully at what the appellant had claimed before the Tribunal, and its reasons for rejecting those claims to see if such an error was disclosed, in the light of the appellant's application to the Court and his contentions. In addition, as the appellant was not represented before him, his Honour also scrutinised the material available to the Tribunal and the Tribunal's reasons to see if they disclosed such a reviewable error.

7 Having considered those matters, his Honour concluded that the Tribunal set out the relevant law correctly, and that its reasons did not indicate that it did not apply that law correctly. He identified that the appellant's principal claim to the Tribunal failed simply because it did not believe the appellant's claims based upon his conversion to Christianity. His Honour thought that it was clearly open on the evidence for the Tribunal to disbelieve the appellant's claims to have converted to Christianity. It also appears from his Honour's reasons that he regarded the Tribunal's view that, even if the appellant practised Christianity in Iran, he would not be persecuted upon his return to Iran as a view available to it. Finally, his Honour said that the Tribunal, in his view, was entitled to disbelieve the appellant's claim that he had left Iran illegally. Consequently, Carr J considered that the Tribunal had not committed any reviewable error in reaching its decision to reject the application for the visa.

8 It is necessary for this Court to consider whether Carr J erred in the way in which he dealt with the application before him. The notice of appeal contains two specified grounds:

(1) There was no evidence or other material to justify the making of the decision that the applicant did not have well-founded fears of persecution by reason of his religious opinion, real or imputed if he returned to Iran within the reasonably foreseeable future;
(2) The decision involved an error of law being an error of law involving the incorrect interpretation the [sic] applicable law or an incorrect application of the law to the facts as found by Tribunal or both.

9 Those two grounds appear to invoke the grounds of review available under subss 476(1)(g) and 476(1)(e) of the Act respectively. I have taken them to claim that Carr J erred in his approach to considering the Tribunal's reasons by not discerning that the Tribunal made those errors. As the appellant has appeared in person today, and has made no oral submissions in support of his appeal, I have also reviewed the material carefully to see whether some error is disclosed in the reasoning of Carr J.

10 In my view his Honour's reasons do not reveal any error on his part. Indeed, I consider his Honour's approach to the task of reviewing the decision of the Tribunal as unexceptionable. I share his Honour's view that the Tribunal set out the applicable law correctly and that its reasons do not indicate that it then misapplied the law. The findings of fact which the Tribunal made were findings which were available to it on the material it had.

11 I do not consider that the two specified grounds of appeal in the notice of appeal demonstrate error on the part of the Tribunal and I consider that Carr J was right to conclude, as he did, that the Tribunal did not err in either of those ways. In my view the appeal should be dismissed. The appellant should pay to the respondent costs of the appeal.

EMMETT J:

12 I too have considered the reasons of the Tribunal. I agree, for the reasons given by Mansfield J, that the appellant has not demonstrated any error on the part of Carr J. Accordingly I agree that the appeal should be dismissed.

Associate:

Dated: 14 February 2002

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Drummond, Mansfield and Emmett.



Counsel for the Appellant:
The Appellant appeared in person




Counsel for the Respondent:
Mr MT Ritter




Solicitor for the Respondent:
Crown Solicitor's Office




Date of Hearing:
11 February 2002




Date of Judgment:
11 February 2002

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