WADW v MIMA [2003] HCATrans 266 (8 August 2003)

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WADW v MIMA [2003] HCATrans 266 (8 August 2003)

Last Updated: 18 August 2003

[2003] HCATrans 266

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P47 of 2002

B e t w e e n -

WADW

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 8 AUGUST 2003, AT 10.25 AM

Copyright in the High Court of Australia

MR G.M.G McINTYRE, SC: If the Court pleases, I appear for the applicant. (instructed by the applicant)

MS L.B. PRICE: May it please the Court, I appear for the respondent. (instructed by Australian Government Solicitor)

GUMMOW J: Yes, Mr McIntyre.

MR McINTYRE: Your Honours, I hope, have in front of you an outline of argument for the applicant which seeks to make the relevant points. It is a three-page document.

GUMMOW J: Yes, thank you, dated 7 August.

MR McINTYRE: Yes, that is so, your Honours. We first of all make the point - and of course this case does not have the benefit of quite the preparation that your Honours had in the previous matter.

GUMMOW J: I understand that, but we are extremely grateful for you to be here, Mr McIntyre.

MR McINTYRE: Yes, thank you, your Honours. Essentially, we start with the proposition that there is a jurisdictional error which is able to be identified and we refer your Honours to the case of Yusuf as the general basis for the propositions concerning jurisdictional error. We then draw attention to the tests of a well-founded fear of persecution which comes from the well-known case of Chan and, in particular, draw attention to what Justice McHugh said about the nature of what might be a real chance. It is, as he suggested, something which might be as little as a 10 per cent chance, so long as it is not a farfetched possibility.

What we say the Tribunal has done in this case is that they, whilst reciting that test, have in fact not applied it. They have looked at the question of apostasy, they have proceeded on an assumption that this applicant may have converted to Zoroastrianism and they have concluded that he has no real chance of persecution because of that and they do that in the face of their own recitations of information from the United States State Department country reports that apostasy is punishable with death. It is stated on a couple of occasions in that report. We say that they have recited that and then they have said that the penalty of death is not generally applied if the person does not actively seek attention or engage in conspicuous proselytisation. We say that - - -

GUMMOW J: Now, the question then is, in a way, whether this particular religion is a proselytising religion. Is it a religion also of public observances? What is the position as regards that?

MR McINTYRE: They seem to suggest that it may not be, but our contention is that it is unclear and that in the country report which they rely on which talks about apostasy attracting this consequence of death, it is certainly left unclear, we would suggest. Page 9 of the application book is where it is discussed.

KIRBY J: Is the offence of apostasy the offence of participating in another religion’s public services, or is the offence of apostasy the offence of turning your back on the true faith of Islam and embracing another faith? I do not know.

MR McINTYRE: I understand it to be the latter of those two, your Honour. I notice that in the United States report they speak of apostasy or conversion from Islam. I understood them to be saying that they are one and the same thing, that they are saying apostasy or conversion as alternative ways of describing the same thing. That seems to be the understanding. That is how I certainly read what the country information is speaking about. So that it does not require necessarily proselytisation in order to attract the penalty.

What the reports are saying and the way in which the Tribunal has interpreted it is to say that that is the offence, apostasy, the penalty is death. The practice is that the penalty is not generally applied unless there are aggravating circumstances. So what we say is that is not quite good enough to fail the real chance test. If there is a possibility that it will be applied, even though it may not be generally applied if the aggravating circumstance does not exist, then there remains a real chance of persecution.

GUMMOW J: I am looking at the judgment of Justice Lee which is very careful, of course, at page 26, about line 30 discussing what the Tribunal found. Then it says that it was open to the Tribunal to reach that conclusion.

MR McINTYRE: Yes, we would say that what he is saying is that it appears to be an official religion. The Tribunal in that regard deals with that in a fairly brief fashion. I just cannot pick it up quite at the moment. I accept that they do conclude that it may be an official religion. Page 13, my learned friend is pointing out to me, at about line 15, it says:

Secondly the Tribunal concludes from the acceptance of Zoroastrianism as an official religion means that Zoroastrians do not seek converts from Islam.

That is an interesting leap of logic, we would suggest. They do not provide any factual basis for drawing the conclusion of lack of proselytisation or of seeking converts from the fact of it being accepted as an official religion, so that there is not really - - -

GUMMOW J: They have a representative in the Parliament, do they not?

MR McINTYRE: Yes, apparently. What we say is that the Tribunal effectively accepted the country information from the United States that apostasy results in the penalty of death and then said that nevertheless, in applying the real chance test, they would find that there was no real chance of persecution. We say that those two things do not logically follow from one another, that is really the point. We say that if you apply a test of how frequently will the penalty be applied, that is, is it generally applied or not, then you are not applying a real chance of persecution test.

GUMMOW J: Yes, thank you.

MR McINTYRE: Thank you, your Honour.

GUMMOW J: Ms Price.

MS PRICE: Yes, your Honour. Do you wish to hear from me for the respondent?

GUMMOW J: Succinctly.

MS PRICE: On the question that my learned friend has put to the Court, the question of whether the Tribunal has applied the wrong test of well-founded fear of persecution, we say that that certainly has not occurred and that what my learned friend is advocating upon your Honours is that the Tribunal should have reached a different opinion on the evidence in deciding whether there was or was not a well-founded fear of persecution.

My learned friend focused on the Chan decision of the Court and I would suggest that one should also focus on the decision of the Court in Guo where the Court said Chan is certainly an important decision but that in Guo it went on to say that one should not get hung up on the real chance test and that when one is looking for whether a fear is well-founded for a Convention reason, the evidence must be present that indicates the real ground for believing that the applicant for refugee status is at risk of persecution.

KIRBY J: The Tribunal referred both to Chan and to Guo on pages 2 and 3 and set out extracts from the criteria in Guo. This is pretty well-worked territory by now, is it not, and one would think that this is not likely to be a basis on which the Tribunal would make a mistake. It is just so rudimentary at the threshold.

MS PRICE: That is our submission, your Honour, and certainly on the evidence that it had it was well open to reach the conclusion it did on well-founded fear of persecution.

KIRBY J: I will tell you what worries me a little and it was not really a point touched on in-chief, and that is that what is really being suggested is that this particular individual does not have a well-founded fear because he will be very quiet about his religion and go about things very quietly. The issue is: is that what the Convention postulates? It is a little bit like the case the Court has under reserve in the Bangladeshi homosexuals. In other words, does the Convention postulate that a person will keep their sexuality or their religion or some other feature that is important to them a complete secret? That seems to be the way the Tribunal has approached it and is that a correct way? That is the matter that worries me a bit.

MS PRICE: Your Honour, in our submission, the Tribunal must assess well-founded fear on the evidence and the evidence before it was not just the US country reports about death or apostasy, but there also was the Canadian information which Justice Lee referred to that one can actually attend religious services – in this case it was Christian religious services - - -

KIRBY J: This is the reference to Roman Catholics, but Roman Catholics are Christians and Christians are people of the Book and Islam has always regarded people of the Book as in a particular category, they are not quite beyond the pale as are people who are not people of the Book. So I just wonder if the analogy is a particularly good one.

MS PRICE: I think it was the analogy that was open to the Tribunal to draw on the evidence it had. There was no evidence put before it or no evidence that it could find that Zoroastrianism was treated any differently as a minority officially recognised religious group in Iran.

KIRBY J: But it is not a sub-branch of Christianity or anything, it is a completely different religion with deep roots in Persia, is it not? It is not in any way related to the Judaeo-Christian-Islamic belief.

MS PRICE: That is my understanding of it as well, your Honour, that it is a very ancient religion in Persia but it is also, according to the evidence that was before the Tribunal, officially recognised, and I think, as your Honour yourself acknowledged during my learned friend’s submission, that its members carry a seat in the House of the Iranian Parliament.

KIRBY J: As Justice Gummow pointed out. That was proved in evidence was it?

MS PRICE: I am sorry. Yes, it actually appears in the application book, your Honour, on page 8, about line 24.

KIRBY J: So it really came down to whether or not, given that there is a member of Parliament of the Zoroastrian religion, the nominal risk of the sentence of death in the case of a person who is not, on the evidence, promoting the particular religion, is going to give rise to a well-founded fear and did the Tribunal step outside its jurisdiction by coming to the conclusion that it did not give rise to a well-founded fear or a real chance of persecution?

MS PRICE: It would be our submission, your Honour, that it has not stepped out of its jurisdiction. Its jurisdiction was to assess well-founded fear on the evidence before it. It did rely, undoubtedly, on the evidence before it of how Catholicism or Christianity was treated as a minority group in Iran and the reason for doing that was simply that there was no evidence put before it and none that it could find about the treatment of Zoroastrianism.

KIRBY J: Of course, there is a potential point of difference between having somebody in Parliament who perhaps is a tenth generation Zoroastrian and having somebody in society who was born and raised as a Moslem who, as it were, converts. Such a person could possibly be in a different category to the member of Parliament. This is somebody who has lost the faith.

MS PRICE: Yes, certainly no evidence to that effect was before the Tribunal. In fact, in my submission, the evidence before the Tribunal was to the contrary. It had evidence that Zoroastrianism was accepted as a minority religious group, that it was certainly accepted by President Khatami as being an acceptable group and there is a reference to that in the country information on page 10 of the application book, your Honour, where there is a report of President Khatami visiting a Christian church in one of the provinces of Iran and expressing pleasure. At about line 23 he said:

he expressed pleasure at being among a group of Assyrians and called on them to pray for him so that “all Iranians, either Christian, Zoroastrian, Shi’i, Muslim or non-Muslim, or of any other religion for that matter, can live together hand in hand –

KIRBY J: Yes, but President Khatami is an enlightened leader in that respect. It is not a universal principle in Iran, I think, and that is the problem which is raised by the applicant.

MS PRICE: Certainly, extremist Islamic leaders may well take a different view to President Khatami on that, but I come down to our bottom line, your Honour. It is that the evidence before the Tribunal left it open to the Tribunal to assess that there was no well-founded fear that if the applicant returned to Iran fully converted to Zoroastrianism and practised that faith, that he would not be subject to persecution, or the chances of that happening were very small to the point where it was remote or uncertain.

As I recall from the judgment of the Court in Guo, it is not enough to merely assume or speculate that there will be a persecutory action following from an event and, in my submission, that is really what the applicant is urging upon the Court today, that the Tribunal should have simply assumed that because the death penalty can follow apostasy in Iran, that the Tribunal should have reached a well-founded fear of persecution.

GUMMOW J: Yes, thank you.

MS PRICE: Thank you, your Honours.

GUMMOW J: Yes, Mr McIntyre.

MR McINTYRE: Perhaps one point which picks up a little from what his Honour Justice Kirby had to say about this issue concerning the expression of the religious belief. It would be the contention for the applicants that what the Refugee Convention protects is the human right to hold a religious belief and that inherent in the human right to hold the religious belief is the right to express that belief.

That may take the form of overt expression or it may take the form of proselytisation, but that is what is protected. The distinction which the Tribunal has drawn of saying you can have the belief as long as you do not express it an overt way is a distinction which is not consistent with what the Convention protects. This applicant said to the Tribunal that he was going to proselytise. They did not choose to believe that.

GUMMOW J: That is right.

MR McINTYRE: But whether they believed that or not is perhaps beside the point. The question is: does he have the freedom or entitlement to do that? If there is a mere possibility that he may do that, or that he may come to their attention in some way, then he suffers some chance of the penalty which applies to apostasy.

Just finally, your Honours, I did not mention what is said at paragraph 10 of the submissions which is to point out that, of course, the Full Federal Court was making their decision before your Honours reached the decision in S157 of 2002 and they dismissed an approach to them by the applicant at that level, that is at the Full Federal Court, to argue that there was a denial of natural justice. The court at the Full Federal Court level said, “We can’t contemplate that because that is not a ground which is open under the legislation” because of the then understanding of section 476(2) of the Migration Act. That, of course, is now, as your Honours have said, not the correct view in S157.

So we would say that there was an error of law made by the Full Federal Court at that time which precluded the raising of the natural justice points. They made the point that counsel before the single judge had not raised it because he would have understood what the law was at that time. So the matter was inappropriately foreclosed, your Honours, and so that provides another basis for reconsidering this matter. If it please the Court.

GUMMOW J: We are not satisfied on the material before the Tribunal respecting the practice of Zoroastrianism in Iran that there was any error of principle in this case. There are insufficient prospects of success on an appeal. Necessarily this decision is peculiar to the evidence in the case and does not deal with Zoroastrians as a class. It is essential that the claim of each individual under the Convention be considered on the individual merits of the case.

This, we believe, is what the Tribunal did and we would add that we do not think that there is disclosed any sufficient prospects of success on the other ground that was sought to be agitated. Accordingly, leave is refused.

MS PRICE: Your Honour, can I move for costs to be awarded to the respondent, please?

GUMMOW J: Why? Mr McIntyre is here as pro bono counsel, is he not?

MS PRICE: I appreciate that, your Honour, but there are costs incurred by the respondent in answering the special leave application.

GUMMOW J: Yes. Well, dismissed with costs.

AT 10.48 AM THE MATTER WAS CONCLUDED