Applicant P85/2002 v MIMIA [2004] HCATrans 418 (27 October 2004)

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Applicant P85/2002 v MIMIA [2004] HCATrans 418 (27 October 2004)

Last Updated: 4 November 2004

[2004] HCATrans 418

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P85 of 2002

B e t w e e n -

APPLICANT P85/2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 27 OCTOBER 2004, AT 12.38 PM

Copyright in the High Court of Australia

MR J.L. CAMERON: May it please the Court, I appear for the applicant. (instructed by the applicant)

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

McHUGH J: Yes, Dr Cameron.

MR CAMERON: Your Honours should have before you the applicant’s outline of submissions, a proposed draft notice of appeal and a minute of a proposed amended application for special leave. I understand that there is no objection to leave being granted.

Your Honours will have seen from the papers that the applicant is Iranian and that he is also an apostate. His apostasy was accepted by the Tribunal. As an apostate, he rejects Islam and the teachings of the book and the Hadith. His rejection of Islam is not just sinful, it is subversive, and as such it could attract severe punishment, including death.

CALLINAN J: Where did the Tribunal accept that he was an apostate?

MR CAMERON: Almost at the end of the Tribunal’s decision, your Honour. I am sorry, it is not where I thought it was, but the Tribunal did accept that he rejected Islam.

HAYNE J: At page 23, line 31, we have a record that he claims he has rejected Islam and so on.

MR CAMERON: No, it is where I thought it was. It is on page 24:

I accept that the applicant is not a believer in Islam.

That is at lines 11 and 12.

CALLINAN J: Is that apostasy? I thought you had to subscribe to a different belief and actually change.

MR CAMERON: In my submission, apostasy is simply the rejection of the religion of the state and is simply the rejection of Islam. Apostasy in that sense is distinguishable from heresy, which would be the acquisition of a religious belief other than the state religion – other than Islam.

McHUGH J: I thought he said that he believed in God.

MR CAMERON: He does believe in God. He is an apostate, but he is not a heretic. For that reason, he has shown an interest in exploring other religions, but he is still seeking and has not yet found another religion. It would be my submission that both the Tribunal and the trial judge put altogether too much emphasis on that seeking, because it is not just seeking to approach God in a way different from that involved in Islam. There are other ways in which the applicant may make evident to the authorities who would persecute him that he is an apostate and rejects Islam. It is his rejection of Islam, in my submission, which gives rise to a fear of persecution. As your Honours have held in S395, it is the threat of persecution which is the important factor.

McHUGH J: But a question arises as to whether our reasoning in S395 applies, does it not? The RRT did not make any finding concerning him acting discreetly in the past and continuing to act discreetly in the future, did it?

MR CAMERON: In a sense it did, your Honour, because there was evidence that he had behaved discreetly in the past, or claimed to have done so.

McHUGH J: But the essential findings were that the Tribunal was not satisfied that the Iranian authorities perceived him as an apostate and it was not satisfied that he wanted to change his religion. Is that not what the case turns on, these issues of fact?

MR CAMERON: They turn on issues of fact, your Honour, but the finding – if I can take your Honours to line 19 on page 24, where the Tribunal held that:

Given that the applicant has not so far changed his religion, I am of the view that the chance that he would do so in the reasonably foreseeable future in any way that would attract the adverse interest of the Iranian authorities is remote.

In other words, in my submission, reading that in the context of the whole case, the use of the words “in any way that would attract” suggests that the Tribunal was only looking at him doing so in an indiscreet way, whereas it may well be that not only in his search for another religion, but in other ways, as he had behaved in the past, he would attract the attention of the Tribunal or, alternatively, that he would be obliged to behave in a way which either concealed or lied about his beliefs, which he had done in the past. So, in my submission - - -

McHUGH J: You throw the weight of your argument on the concluding parts of that sentence, but should not the weight be thrown on the opening words:

Given that the applicant has not so far changed his religion, I am of the view that the chance that he would do so in the reasonably foreseeable future in any way that would attract the adverse interest of the Iranian authorities is remote.

MR CAMERON: Yes, in respect of that particular manner of attracting the adverse interest of the authorities, but there are other ways, and there were other ways in the past in which he had attracted the adverse interest of the authorities. In other words, he claimed that he had not been admitted to university because of his religious beliefs.

McHUGH J: Yes, but I think if S395 had never been decided, I doubt if anybody would read into that sentence what you seek to read into it.

MR CAMERON: I would simply rely upon what your Honour and Justice Kirby - - -

McHUGH J: I know, but we were dealing then with specific statements. It is a fair bit removed from - - -

MR CAMERON: It is also removed in its facts, because the question in S395 is the question of sexuality, which is something that does not call for a positive manifestation, whereas in the case of apostasy, as the applicant has said in the past, he had suffered discrimination because he had not attended the lectures in the workplace given by the mullahs. In my submission, that of itself, taken together with the fact that he was refused admission to university, is indicative of persecution in the past. The reason given by the Tribunal in relation to that - - -

McHUGH J: Persecution in the past is only evidentiary. It is a question of persecution in the future.

MR CAMERON: In the future, yes. If he is an apostate, in my submission, he is open to persecution in the future – perhaps not in the manner which was anticipated by the Tribunal in respect of finding another religion, but in respect of trying to find employment, trying to find education or in respect of a whole lot of other matters of that kind, of which there was evidence that he had suffered discrimination in the past.

The real question, in my submission, for the Tribunal was, if the applicant is returned to Iran, will he have to conceal or deny his apostasy in order to escape persecution? That is the question which the Tribunal should have asked. It is one which it only asked very briefly. Again, I go to page 24 of the application book, lines 13 to 15:

I accept that the applicant is not a believer in Islam. However, there is no independent evidence before me to suggest that being a non-believer is sufficient to give rise to a well-founded fear of persecution in Iran.

As his Honour Justice Lee pointed out in another context, if that is the test which is applied, then it would not be the correct test. However, the Tribunal then went on to say:

there is independent evidence indicating that three quarters of the Iranian population does not perform daily prayers –

Of course, that does not demonstrate that three-quarters of the Iranian population are apostates. That, in my submission, does not support the finding by the Tribunal that he is not a believer in Islam.

The difficulty with the matter is that the Tribunal, in my submission, did not apply the appropriate test. Because his Honour Justice Lee did not have the benefit of the decision of this Court in S395, his Honour did not devote sufficient attention to the fact that the correct question had not been asked. If I can take your Honours again to pages 41 and 42 of the application book, his Honour there said:

The Tribunal found that, at the time the applicant left Iran he had not been perceived to be an apostate –

that is not to say that he would not be so perceived if returned –

and, in effect, found that if he continued his life as he had done before his departure, there would be no real prospect that it would be alleged that he was an apostate.

in other words, if he were discreet about his apostasy, when returned to Iran, there would be no danger that he would suffer persecution –

The Tribunal recognised that an act of conversion to another religion would involve acts that risked such an event becoming known to enforcers of the Shariah law –

and then goes on to say that in fact he had not converted. But, in my submission, that is only one of the matters which the Tribunal and the court were required to take into consideration.

McHUGH J: What do you say about the finding of the Tribunal at line 11 on page 24:

I do not find the applicant’s claim that he wants to change his religion to be persuasive.

MR CAMERON: In my submission, that does not dispose of the matter, your Honour. That may well be the case. The question is whether he would be exposed to persecution as an apostate whether or not he sought to convert to another religion. If he remains an apostate, even if he never converts to another religion, he is still open to persecution on that ground.

As your Honour and Justice Kirby said in S395, the notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads the tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. In my submission, it is clear from the Tribunal and from what his Honour said that they considered that if he were returned and if he were – and I introduce the word “discreet”, which is not used. The words used are “overt acts”, and “overt acts” are used in the context of voluntary overt acts. One must also take into consideration the possibility that there will be involuntary overt acts.

In other words, if the applicant were asked if he were a Muslim, he would lie. In my submission, he is not required to lie. If telling the truth about his apostasy would expose him to persecution, he is entitled, in my submission, to the protection under the Convention. Unless your Honours have any questions, those are my submissions.

McHUGH J: Thank you. The Court does not need to hear you, Ms Price.

The Court is of the view that an appeal in this matter would have insufficient prospects of success. Accordingly, the application is refused.

MS PRICE: Your Honours, can I then ask for costs for the respondent.

McHUGH J: Yes. I think the order must be made with costs. Dr Cameron, can the Court thank you once again for assistance in providing representation in this matter. The Court is indebted to you and is very grateful to you.

The Court will now adjourn till 2 o’clock.

AT 12.54 PM THE MATTER WAS CONCLUDED