Applicant NABD of 2002 v MIMIA & Anor [2004] HCATrans 28 (17 February 2004)

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Applicant NABD of 2002 v MIMIA & Anor [2004] HCATrans 28 (17 February 2004)

Last Updated: 20 February 2004

[2004] HCATrans 028

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S323 of 2002

B e t w e e n -

APPLICANT NABD OF 2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

McHUGH J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 17 FEBRUARY 2004, AT 1.59 PM

Copyright in the High Court of Australia

MR M.I. BOZIC, SC: If it please your Honours, I appear with MS E.M. FRIZELL for the applicant. (instructed by the applicant)

MR A. MARKUS: May it please the Court, I appear for the first respondent. (instructed by Australian Government Solicitor)

McHUGH J: I have a certificate from the Registrar in which she certifies that she has been informed by the solicitor for the second respondent, the Refugee Review Tribunal, that the second respondent submits to any order of the Court save as to costs. Mr Markus, given our recent decision in the Bangladeshi homosexuals, why should we not grant leave in this case?

MR MARKUS: Your Honour, the respondent would submit to this Court that the Tribunal in reaching its decision in the present case did not fall into the errors identified by the majority judgments in S395. In particular, your Honours, the respondent submits that the Tribunal in the present case made factual findings in relation to the harm feared by the applicant personally on his return to his country of origin in the context of having made factual findings about the essential elements of his religion and the way that he was to practise that religion on his return to his country of origin.

KIRBY J: But the focus was on, as the Full Court put it at page 24:

Iranian converts to Christianity who go about their devotions quietly and maintain a low profile are generally not disturbed.

The whole point in the Bangladeshi case was that that was not focusing on what might be the case factually in the particular instance, namely, that the person does not feel able to carry out their devotions quietly and maintain a low profile. After all, there are some Christian people who do not think that that is what they could or should do. Christianity exploded and sped through the four corners of the world by people who did not do that, and would not do it. They believed they had to bring the good news.

MR MARKUS: Accepting what your Honour says in relation to that, in the present case the Tribunal looked at the way this applicant has practised his religion in Australia and looked at matters such as the essential elements of his faith and drew conclusions about that, which, ultimately, in our submission, amounted to simple findings of fact about how he would practise his religion on the basis of those matters.

KIRBY J: But at the moment he is, and has for the whole period, been in migration detention, so that it is not really focusing on what he would be likely to do if he went back to Iran, given the fact that he has, as he says, got the good news.

MR MARKUS: Your Honour, with respect, that is akin to saying that the way that this applicant has practised his religion in Australia could not be indicative of how he would practise that religion in Iran and, whilst we must accept that it would not necessarily be determinative, it could be indicative and ultimately that it is a question of fact to be reached by the Tribunal and we would say - - -

KIRBY J: So the real question is whether the Tribunal addressed itself to the correct factual premises?

MR MARKUS: Your Honour, we would say that the Tribunal addressed the correct question, which was whether this particular applicant, as an individual, as opposed to others, would have a well-founded fear of persecution on his return to Iran. I should say, your Honour, that the Tribunal clearly recognised that the circumstances of this individual may well differ from those of others. In the last paragraph of page 13, for example, of the application book, at around line 45, the last full paragraph, the Tribunal states:

Following the hearing the Tribunal was referred to another decision of the Tribunal, differently constituted. In that decision . . . it was accepted that the applicant is among 100 detainees in the same centre who have embraced Christianity in just eight months. This Tribunal notes that the decision to which it has been referred appears to accept that the applicant in that case might have a need to proselytize in Iran. In its own weighing of the particular facts of the present case and of relevant country information the Tribunal concludes that the present applicant does not face a real chance of persecution by reason of his religion or for any other Convention ground.

KIRBY J: But I suppose we all know that it is not uncommon for people who are converted – let it be assumed the applicant has been converted from Islam to Christianity – to be more enthusiastic about a new religion than people who were born into a family of another religion and just grew up with it. So the question is whether, by the way it addressed the matter at 15 and 16, the Tribunal says in Australia people can be Christians without going out and pestering other people with their religion, but the issue is really whether this man, given his conversion, if that be accepted as a premise, returning to Iran, does have a well-founded fear of persecution because of the fact that being converted he is liable to try to share his conversion with others. So the issue is whether the Tribunal has addressed itself to the correct question.

MR MARKUS: Accepting that again, your Honour, it would be my submission that clearly the Tribunal has. The Tribunal may not have raised a factual finding in that respect that every one of us would agree with, but that is not the issue. A factual finding has been reached in that respect by the Tribunal and that is the Tribunal’s rule.

I suppose the relevance of the applicant’s way of practising his religion in Australia may not be determinative of how he would practise his religion in Iran, but, in my respectful submission, it would not disclose an error of a jurisdictional kind to draw some inference from that fact or that finding, or that series of findings, because the Tribunal makes a series of findings about the way that the applicant has practised his religion in Australia.

McHUGH J: But there is a classification problem as well, is there not? The Tribunal assert a distinction between the quiet sharing of one’s faith as an evangelist and an aggressive outreach through proselytising, but it did not strike me as very clear as to what the basis for identifying what I will call this sub-group of Christian, and although it is perhaps a question of fact, the Tribunal seems to have made a serious error about what constitutes a quiet sharing of the faith. After all, there was a letter, was there not, from a minister who referred to the applicant’s practice of liking to be able to tell Muslim people he knows about Christianity, particularly if they are showing an interest and that he cannot resist sharing his faith with others? Now, why is that not a form of evangelism or proselytising?

MR MARKUS: Again, your Honour, these are factual findings and, in my respectful submission, there is no error in the way that the Federal Court and the Full Federal Court has addressed that issue. In that respect, I can simply rely on the judgments that are in the application book because those issues have been addressed by the courts below.

The substantial issue which is being pressed on this application, that is, whether applying the principles enunciated by the majority judgment in S395 have not been considered by the Federal Court for obvious reasons, but these issues have been considered. I do not believe that they are specifically raised in the application for special leave, but in any event, if that is an issue, we would simply say that the Federal Court and the Full Federal Court was correct in finding that no jurisdictional error is disclosed by the Tribunal’s decision for the reasons that their Honours give.

KIRBY J: I do see a possible distinction between the case of the Bangladeshi applicants and this case in that what it may be reasonable to anticipate or expect in respect of sexual orientation may not be quite the same in respect of religion. I mean, the one is, in a sense, part of one’s makeup; the other is something that is a social construct that comes later in life and tends to adapt to the environment in which it is operated.

Even the most fervent Protestants were very quiet during the reign of Queen Mary and vice versa for the Catholics during the reign of Edward VI, but it does present an issue really as to how far the principle in the Bangladeshi case runs and that may, itself, be enough for special leave, even though you might in the end succeed in persuading us that the principle does not attach to this case, given the factual findings.

MR MARKUS: Your Honour, I do not how I can respond to that beyond repeating myself to some extent to the effect that, in my respectful submission, in this case the Tribunal did not err in any substantial way in the approach that it took to its inquiries and, ultimately, whether the factual findings that were reached by this Tribunal were correct or preferable is not the issue for this Court.

KIRBY J: Is there any suggestion that this was a case of opportunistic conversion? Was the ultimate finding of the Tribunal that it accepted that there had been a genuine conversion?

MR MARKUS: Your Honour, I think that I should quote the Tribunal in that respect because there is a - - -

KIRBY J: It is a little bit ambiguous, I thought, but ultimately they seemed to come down to accept that it was a genuine conversion.

MR MARKUS: Either that, or there was sufficient doubt in the Tribunal’s mind to give the benefit of the doubt to the applicant. The relevant paragraph is at around line 46 of page 12 of the application book where the Tribunal stated as follows:

The Tribunal is not wholly satisfied that the present applicant has genuinely embraced Christianity, at least from the outset, rather than engage in a “conversion for convenience”. Even accepting, however –

and so on. So, for relevant purposes, I think I have to concede that the Tribunal proceeded on the basis that, at least over time, the applicant has genuinely embraced Christianity.

KIRBY J: It does emerge, does it not, that it is not an easy thing to be a Christian in Iran, just as perhaps in some ways it is not an easy thing to be a Muslim in other countries.

MR MARKUS: I have to accept that, your Honour. There is no issue about the potential difficulties for the applicant in certain circumstances. What we would say is that, ultimately, the assessment of what are the likely consequences of this applicant returning to Iran and continuing to practise his faith as he wishes to is a matter for the Tribunal. We say that the errors identified in the applicant’s amended summary of argument are not made out.

I should just very briefly say, your Honour, that, in our submission, this is not a case that would raise issues of public importance, although we must accept that the potential consequences of an error uncorrected are very serious to this applicant. When I say that this is not a matter raising issues of public importance, I say that on the basis that, in our submission, ultimately this case turns on factual findings and it is unlikely to be a suitable vehicle for clarification of how the principles enunciated by the High Court in S395 are - - -

McHUGH J: But it is a case that does have, or may have, serious consequences for the applicant. A United States department report, for example, stated that the government is highly suspicious of proselytising of Muslims by non-Muslims and can be harsh in meting out its response.

MR MARKUS: I accepted that, your Honour. It could have very serious consequences for the applicant.

McHUGH J: Yes.

KIRBY J: In a sense, what they might do to an Iranian who has been converted might be much stronger than what they might do to a foreigner who comes in and tries to proselytise the Christian religion. Apostasy in Iran is a very serious matter indeed.

MR MARKUS: Yes, your Honour, I accept that.

KIRBY J: So these, in a sense, make a judge vigilant perhaps for error in the sense that if it is got wrong then that is a very serious result for the Australian legal system.

MR MARKUS: I accept that, your Honour, and I do not wish to be seen to submit that a case which has great significance to an individual could not, by that alone, raise issues of public importance. That is why I was emphasising the fact that it could have clearly serious significance to this particular applicant. Unless your Honours have any further questions.

McHUGH J: Yes, thank you, Mr Markus. Mr Bozic, your notice of appeal raises a number of problems. First of all, it asserts as an error of law an incorrect application of the law to the facts. That is not a question of law. That is a question of fact. But it does not identify what the error of law is. It is a most unsatisfactory notice of appeal which will need to be amended significantly to identify with precision what is the error of law. Your written argument states what the approach is, but the notice of appeal will have to be amended.

We are proposing to grant leave in this case, subject to you putting on a suitable notice and serving it on the first respondent and the second respondent. If there is any problem about the notice of appeal – if Mr Markus has some problem about it, then the matter can be put before a single Judge. If there are any problems about the form of the notice of appeal, it can go before Justice Kirby. So, subject to you filing a suitable notice of appeal there will be a grant of leave in this particular case.

MR BOZIC: If it please your Honour.

MR MARKUS: If the Court pleases.

AT 2.19 PM THE MATTER WAS CONCLUDED