Applicant NABD of 2002 v MIMIA

[2004] HCATrans 330

[2004] HCATrans 330

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S70 of 2004

B e t w e e n -

APPLICANT NABD OF 2002

Appellant

and

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

GLEESON CJ
McHUGH J

KIRBY J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 7 SEPTEMBER 2004, AT 10.17 AM

Copyright in the High Court of Australia

MR M.I. BOZIC, SC:   If it please the Court, I appear with MR J.D. SMITH for the appellant.  (instructed by Ebsworth & Ebsworth)

MR J. BASTEN, QC:   If the Court pleases, I appear for the first respondent with MR S.B. LLOYD.  (instructed by Australian Government Solicitor)

GLEESON CJ:   There is a certificate from the Deputy Registrar that he has been informed by the solicitor for the second respondent that the second respondent submits to any order of the Court, save as to costs.  Yes, Mr Bozic.

MR BOZIC:   Your Honours, the issue in this appeal is whether the Refugee Review Tribunal failed to understand and apply the meaning of “refugee” in Article 1A(2) of the Convention and thus failed to consider whether the appellant had satisfied the criteria for the grant of a protection visa.  The first matter that we draw attention to is the categorisation that was drawn by the Tribunal and which was then used as the basis for determining whether or not this appellant had a well‑founded fear of persecution and in doing so it was that distinction that was used in order to determine the outcome.  That distinction having been drawn, the Tribunal went about determining its task without reference to the relevant individual circumstances of this appellant ‑ ‑ ‑

KIRBY J:   That is the question, is it not, whether or not it was an a priori categorisation as Justice Gummow and Justice Hayne expressed it in the Bangladeshi case, or whether it was merely the fact‑finding process of the Tribunal seeking to look forward into what would happen if your client were returned to Iran and would he, as it were, come under the authority’s notice and so be subject to persecution, or would he simply go quietly about living as a Christian person in an Islamic country?

MR BOZIC:   That was the question and ‑ ‑ ‑

KIRBY J:   Why is the latter not an acceptable step for the Tribunal to take?

MR BOZIC:   What the Tribunal had to do ultimately was to come to this appellant’s individual circumstances and to look at those and to make an assessment of a number of things, one of which, for example, was to the extent that the Tribunal had categorised the way Christians would live and act out their faith in Iran and had used country information to come to that categorisation, to what extent were the circumstances of this individual similar or different to those that had been the basis of the characterisation.

In other words, what the Tribunal did in the present case was to look at the country information.  Having looked at the country information, it derived from that a particular characterisation.  Now, that characterisation was into two categories, two very broad general categories, categories that were left at a general level and what was required was an assessment of the extent to which, when this individual went or if this individual returned to Iran, to what extent do his particular individual circumstances marry up with the general circumstances which were used as the basis for the characterisation.

McHUGH J:   On your argument, the amendments to the Act inserting section 91R are of no significance, is that so?  When you opened the appeal you referred to persecution, but the definition of “persecution” in Article 1 now has to be read in the light of the Act, particularly section 91R, that requires serious harm.

MR BOZIC:   Yes.

McHUGH J:   But so far as classification is concerned, it does not appear to be affected by the enactment of 91R, is that ‑ ‑ ‑

MR BOZIC:   That is the way we approach it, your Honour.  Those amendments do not touch upon the issue in this appeal which is essentially whether or not the Tribunal exhibited the relevant understanding of the term “refugee” and whether or not it went about determining that in the way that it should have done.  We say that the fault exhibited is, firstly, the failure to look at the individual circumstances of this appellant. 

KIRBY J:   I am not entirely clear as to what the final conclusion of the Tribunal was on the issue of apostasy because it did seem plain that the law of the Islamic Republic of Iran is that a Muslim of Muslim parents who converts to Christianity is an apostate and is liable to the punishment of death if he is man and that, I think, even we would take to be serious harm to a person.  Now, what was the final conclusion?  Was the final conclusion that that was not enforced in Iran?  If it were, that would really be enough in the case.

MR BOZIC:   The Tribunal did not come to any conclusion as to whether it was or was not enforced.  What it had before it was ‑ ‑ ‑

KIRBY J:   There was some evidence that some high‑profile ministers of religion had been the subject of this, and, indeed, in one case, I think, executed, back in the 1990s.

MR BOZIC:   That is correct.

McHUGH J:   Was he executed?  I think he was murdered.  He was released and then he was murdered, was he not, in 1994 or something like that?  The reason I raise the question of serious harm is that quite apart from the question of what action might be taken in the religious courts, you may be exposed to all sorts of discrimination and other problems.  So that is a fallback position on your part.

MR BOZIC:   Well, yes it is, but in the context of saying that what happened here is a classic example of what can happen when broad general categories are adopted as the basis for an assessment, and that is that it distracts from the relevant assessment of this individual in the circumstances of this country.

KIRBY J:   That is why you latched onto the joint reasons of Justice Gummow and Justice Hayne and ignored Justice McHugh and me, because it was their Honours’ analysis that that was the error – a priori categorisation and stereotyping.

MR BOZIC:   Yes.  We say that what has happened here is a classic example of that error, and it is a classic example of what happens, because the sorts of situations which are contained – and examples are given in the country information – are not considered here.  There is no consideration, for example – sorry, let me go back a step.  In the categorisation that was drawn, one can make all sorts of comments about it, but, at the very least, as was observed by Justice Emmett in the Federal Court, there is some tension in it, in the sense that there is a continuum from quiet evangelism through to proselytism. 

Now, without some recognition of the limitations of the categorisation, it is not possible to proceed and to make an assessment of what is likely or what may happen to this individual when he returns to his country of nationality.  For example, the country information dealt with a number of different situations, and it is dealt with in different terminology.  For example, at page 179 of the appeal book, there is the country information to the effect that: 

“Converts are generally tolerated as long as they maintain a very low profile.” 

When one comes to look at what is going to happen to the appellant when he returns, one needs to pay not only particular attention to his circumstances, but needs to pay attention to the qualifications in the country information, such as the qualification imposed by the word “generally” and the qualification imposed by the words “very low profile”.

HAYNE J:   At page 179 of the appeal book, from about line 47 to the end of 179, you have the Tribunal first perhaps expressing some doubt about the genuineness of the conversion, but then going on to say that:

if he were to practise as a Christian in Iran he would be able to do so in ways he has practised his faith in Australia without facing a real chance of persecution. 

Now that, I think, was taken by Justice Emmett as constituting a consideration of this applicant’s position and a conclusion about the way this applicant wanted to and would live his life were he to be returned to Iran.  Where lies the error in that?  Do you say there is an error in the premise, do you say there is an error in the conclusion drawn from the premise?  What is the attack you make on that aspect of the reasoning of the Tribunal?

MR BOZIC:   The attack is this, your Honour, that the passage that your Honour has drawn my attention to at the bottom of page 179 is the conclusion that it reached.  Now, one needs to examine how it reached that particular conclusion and the attack that we make upon the Tribunal’s decision is that it reached that conclusion, and I will take your Honour in a moment to the particular aspects where it gave consideration to this individual’s circumstances, that the attack that we make upon the Tribunal’s decision is that the conclusion it reached it reached because it had adopted a categorisation, a categorisation into one of two particular categories, either an aggressive proselytiser or a quiet sharer of the faith as an evangelist.

Now, having done that, it used that categorisation to reach its findings and it did not pay any attention to the individual circumstances and that attention was necessary in order to properly reach a conclusion as to whether the fear of persecution was well‑founded.  If I can just pick out the conclusion at 179 and then continue over the next few pages through to 183 of the appeal book where the Tribunal finally states the outcome, up until that point of the Tribunal’s reasoning what the Tribunal has done was to set out the factual background, set out the legislation, the definition of “the refugee” from the Refugee Convention, set out the various claims that have been made and then it came to deal with the country information.

The country information is set out at page 178 and there is a conclusion stated at the bottom of page 179, and that is the conclusion that your Honour Justice Hayne referred me to.  Then when one goes over to page 180, at the top of the page there is set out in the first paragraph a reference to what took place in the detention centre.  Then if one goes to about line 41, there is consideration of the appellant’s circumstances and the distinction that has been drawn is applied.  At about line 41 the Tribunal says:

The Tribunal accepts that he has discussed Christianity with other detainees, but not that his activities since leaving Iran constitute active attempts to convert others through proselytism as distinct from quiet sharing of his faith.

At that point, the consideration is simply by reference to “Which category does he fall into?”  Does he fall into the attempt to convert others through proselytism or does he fall into the attempt to convert others through quiet sharing of his faith?  It is answered at that point simply by attaching the relevant label to him, that label having being the label that the Tribunal has derived from the country information.

HAYNE J:   How else is the Tribunal to describe a reasoning process where the country information reveals a law, apparently absolute in its terms, which, so the Tribunal appears to accept, is not enforced according to its terms but is enforced in some particular kinds of case?  How else can the Tribunal describe its chain of reasoning?

MR BOZIC:   It can look at what categorisation or what distinctions come out of the country information.  Thus far the Tribunal’s reasoning is unexceptional.  That is what the Tribunal did, it drew a distinction out of the country information and it drew that – I withdraw that.  The next step then is to ask, “How will this appellant be treated?  What fears, if any, will he have when he returns?  Is there an objective basis for those fears?” 

Now, that involves going to look at this appellant’s individual circumstances, bearing in mind that this individual’s circumstances do not place him down what might be said the far end of the quiet spectrum.  This is a man who was a convert.  This is a man who was found by the Tribunal would continue the activities that he had been engaging in whilst in detention in Australia, and that involves such activities as discussing Christianity with Muslims.  He had attempted at least to convert others, although the success of that attempt was not accepted by the Tribunal.  Those activities need to be assessed in the context of the country information.  So one needs to go and ask, “If this individual returns and carries on those activities, is there an objective basis for the fear of persecution?”

The complaint that we have is that that exercise was never done.  There is a passage on 180, at line 41 that I took the Court to.  If one then moves on, on page 181 of the appeal book there is the country information set out and then again over on page 182, at about line 42, there is a reference to the fact that the appellant:

is not a member of a denomination that exhorts its adherents to proselytize . . . 

A distinction can be drawn between the quiet sharing of one’s faith as an evangelist and the aggressive outreach through proselytizing by adherents of some more fundamental faiths.

Again the distinction is referred to and when one goes over to page 183 of the appeal book, which is the final page of the Tribunal’s decision, there are the conclusions set out.  Now those passages are the relevant considerations given by the Tribunal to the circumstances of this appellant’s case.  For example, it did not proceed to give any consideration to what would be the view of the authorities in Iran at attempts made by him to convert others.  That was something that he had been doing in the detention centre and that was accepted by the Tribunal as being an activity that had been carried out by him.

Now, that is a fundamental aspect of this appellant’s behaviour which requires explicit consideration in order to be able to make a decision as to whether any fear of persecution is well founded.  The relevant country information at ‑ ‑ ‑

KIRBY J:   Why does one have to judge at the threshold now, here and now, whether or not if he goes to Iran the appellant would become a discreet and quietly observing Christian.  I mean, he may, in the circumstances of that country and seeing things there that offend him, become quite an active converter or person attempting to convert other people.  Why does one, as it were, have to make a threshold assessment?  I realise it is tied into the well‑founded fear and, therefore, that requires you to some extent to predict the future, but the future is never entirely predictable and the human dignity which the Refugees Convention is seeking to protect would extend, one would think, to a person who, when he gets back, might take the view that he should seek to change the error of the ways of people who were not Christian.

MR BOZIC:   That is true, and one can understand if there was a finding to that effect, or that possibility was ‑ ‑ ‑

KIRBY J:   What I am questioning is the fact that the Tribunal felt it necessary to make this categorisation and finding as distinct from recognising that what happens in the future is infinitely variable and unpredictable.  When this man goes back to Iran, if he does, he may or may not pursue conversion as an obligation of his new religion.

MR BOZIC:   Well, that was part of his claim and that is what he claimed that he would be doing.  Those claims were not accepted by the Tribunal.  To answer your Honour directly, it is a question of, I suppose, fact as to what the Tribunal makes an assessment of.  Now, here I am left with a finding by the Tribunal as to what he would do when he goes back to Iran.  They rejected those claims.

KIRBY J:   I am not expressing this very well, but what I am trying to reflect is something of the thinking that was behind the Bangladeshi case, that it is a sort of presupposition that people have to fall into either the discreet or indiscreet class.  Why should we make that presupposition, given that the freedom of religion which is guaranteed in many international instruments and is behind the protection which the Refugees Convention is seeking to give recognises the right of people either to be discreet Christians or indiscreet Christians seeking to convert others to the faith?  Why do we have to classify in this fashion?

MR BOZIC:   Well, our response to that is that if a classification – one does not have to classify, and the Tribunal could have gone about its task without the classification.  But if one does classify ‑ ‑ ‑

HAYNE J:   How could it, in face of the country information?  The country information was cast in classification terms and the immediate question for the Tribunal was the unique question about real risk in respect of this applicant.

MR BOZIC:   That is correct.  In drawing classifications, the classifications could have been drawn in any one of a number of ways.  They chose to adopt this particular classification.

HAYNE J:   Who is “they”?  The country information from DFAT or the Tribunal?

MR BOZIC:   I am sorry, your Honour?

HAYNE J:   Who is “they chose” when you say “they chose to classify in this way”?  Was it not DFAT?

MR BOZIC:   I am sorry.  The precise classification adopted by the Tribunal was not in terms the classification that comes out of the country information.

HAYNE J:   I have in mind page 178, lines 53 to 56.

MR BOZIC:   Yes, the country information contained at that passage is to the effect that:

converts who go about their devotions quietly are generally not disturbed (it is either those who actively seek attention, or who are engaged in conspicuous proselytization, who have run into difficulties –

Now, in relation to that country information, if that country information is to be used, one then needs to go to the circumstances of this particular individual and say, “To what extent are his circumstances similar or different to the circumstances set out, or categorised, in the country information?”  Now, nowhere has that been done.

The reason that that was a significant and necessary part of the process was because this was an individual who carried out activities such as discussing his faith with others, attempting to convert Muslims, distributing pamphlets and so on.  The question is ‑ ‑ ‑

KIRBY J:   And doing some preaching, as I read somewhere.

MR BOZIC:   And doing some preaching, all of which was consistent with evangelising.  The question is to what extent when he goes back to Iran does that constitute going about his devotions quietly and to what extent will that be considered to not be actively seeking attention?  In other words, there is a need to go and make an assessment of the generalities in the context of this particular individual, and it is that exercise that was not done.  Without doing that and without seeking to tease out the country information and then to apply it and to see how the circumstances of this individual marry up with the country information, the exercise has not been done.

KIRBY J:   Do you remember in the Bangladesh case that there was country information, which was accepted I think by the Tribunal in that case, that if a homosexual person in Bangladesh kept his or her head down low and did not cause any ripples and did not, as it were, demonstrate their sexual orientation in public, then they would be basically left alone.  That was the basis on which the Tribunal, as I recall it, said, “Well, we have to classify and in this case this person would, if he went back, keep his head down low and, therefore, there is not a real risk of persecution”. 

That was what caused the Tribunal to reach its view, the Federal Court and three members of this Court to feel that there was no real risk of persecution.  Four members of the Court said that there was, and I would like to – you will remember Justice McHugh at the special leave hearing opened with asking Mr Markus how this case could be distinguished from the Bangladesh case.  For consistency, it would be helpful to me at some stage in your argument if you took us to the Bangladesh case and said, “This was the error that was identified on the keeping your head down low theory and the a priori classification theory and that applies in this case in this way”.  If you can do that, then you are on your way to success.  If you cannot do it, then all this is is a matter of fact finding and classification and all relevant to the issue of the well‑founded fear.

MR BOZIC:   Can I take up your Honour’s invitation.

KIRBY J:   I have not overlooked in that question that there is arguably a distinction between matters of religion and matters of sexual orientation, sexual orientation arguably being closer to indelible imprints and religion being matters of social construct that people can and do change during their lives, but I think we do have to look at Applicant S395/2002 in order to see what lessons it has for this case.  That was also a case of classification and it did not succeed.

MR BOZIC:   On the issue of classification and how it was dealt with, in Appellant S395/2003 v Minister for Immigration and Multicultural Affairs (2003) 78 ALJR 180 – I start, first of all, with the joint judgment of Justice Gummow and Justice Hayne. Beginning at paragraph [72] on page 193, there is the heading “Applicable principles”. At paragraph [73] their Honours say:

The objective element requires the decision‑maker to decide what may happen if the applicant returns to the country of nationality.  That is an inquiry which requires close consideration of the situation of the particular applicant.  It requires identification of the relevant Convention reasons that the applicant has for fearing persecution.

Then in paragraph [74] their Honours said:

Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality.  If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution . . . absence of past persecution does not deny that there is a real chance of future persecution.

At paragraph [75] their Honours state this:

Again, because the question requires prediction, a decision‑maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant’s country of nationality.  That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality.

Then there is this important qualification:

But, as with any reasoning of that kind, the critical question is how similar are the cases that are being compared.

Then at paragraphs [76] and [77] there are dangers in that process identified, dangers which we say are exhibited in this case.  At paragraph [76] their Honours said:

Because reasoning of the kinds just described is often employed, it is perhaps inevitable that those, like the Tribunal, who must deal with large numbers of decisions about who is a refugee, will attempt to classify cases.  There are dangers in creating and applying a scheme for classifying claims to protection.  Those dangers are greatest if the classes are few and rigidly defined.  But whatever scheme is devised, classification carries the risk that the individual and distinctive features of a claim are put aside in favour of other, more general features which define the chosen class.

Finally, at paragraph [77] there is a reference to the:

serious risk of inverting the proper order of inquiry by arguing from an a priori classification . . . to a conclusion about what may happen . . . there is a real risk of assuming (wrongly) that a particular applicant will be treated in the same way as others of that race, religion, social class or political view are treated in that country.  It would, for example, be wrong to argue from a premise like “homosexuality is generally ignored in Bangladesh” to a conclusion that “this applicant (a homosexual) will not be persecuted on account of his sexuality”, without paying close attention to the effect of the qualification of the premise provided by the word “generally”.

And then, perhaps finally, at paragraph [78], just to draw the matter together, their Honours said:

The central question in any particular case is whether there is a well‑founded fear of persecution.  That requires examination of how this applicant may be treated if he or she returns to the country of nationality.  Processes of classification may obscure the essentially individual and fact‑specific inquiry which must be made. 

Now, the dangers adverted to in those passages, in my submission, are exhibited by the Tribunal’s reasoning in this case.  That is, that out of the country material, they categorised, and they found two categories.  They then went about making an assessment of whether or not there was a well‑founded fear of persecution by putting this appellant into one of those two categories.  What they did not do was to go and look at specifically the facts relating to this appellant, what would this appellant be doing when he went back, and how the facts of his case fitted with the classification that they had adopted.

KIRBY J:   That fits in with that Justice McHugh and I said at paragraph [51] on page 189, where we said: 

Because of that failure –

that is to say, to determine whether the applicants would act discreetly, as it was put –

the Tribunal, unsurprisingly, failed to give proper attention to what might happen to the appellants if they lived openly in the same way as heterosexual people in Bangladesh live. 

So the question, on this view, that classification is permissible but it must not override the determination of the particular case and the assumptions of classifications, must not blind one to the search for what is likely to happen in the case of the particular applicant, which seems to be common to the two majority joint reasons.

The question therefore becomes in this case, did that error occur?  It was not an error to endeavour or to search for a classification, but it would be an error to allow that classification to swamp your consideration of what would happen to the particular applicant and whether that possibility gives rise to the well‑founded fear of persecution.  Is that a correct analysis of the majority reasoning in Applicant S395, or not?

MR BOZIC:   Yes, it is, your Honour.  It is that reasoning that we say applies here, in the sense that, using that reasoning, one sees why it is that the approach adopted by this Tribunal was in error.

KIRBY J:   This decision was before S395, I assume.

MR BOZIC:   The decision of the Tribunal?

KIRBY J:   Yes.

MR BOZIC:   Yes, it was.

KIRBY J:   Was the decision of the Federal Court before S395?

MR BOZIC:   Yes, it was, both Justice Emmett and the Full Court.

HAYNE J:   Given that it is as much an error of the kind identified in S395 to argue from the use of the expression “live discreetly” to a conclusion about whether error has been committed, what do we do with Justice Emmett’s treatment of this matter, particularly at paragraphs 10 and 11?  I have in mind especially the opening sentence at paragraph 11 of his Honour’s reasons where he interpreted the Tribunal as finding that:

the applicant would not choose to broadcast his practice of Christianity generally or to proselytise in Iran conspicuously –

and elsewhere, through his Honour’s reasons, to identify the Tribunal as having concluded that this man would want and in fact choose to live in a particular way in Iran.  Now, if that is the right understanding of the Tribunal’s reasoning, is error shown?  That is, are we concerned only with how we understand the Tribunal’s reasoning, or are we concerned with another kind of error in the way in which Justice Emmett approached it, as well as, or instead of, the reason first identified?

MR BOZIC:   I am sorry, I am just not quite sure the ‑ ‑ ‑

HAYNE J:   Justice Emmet appears to have read the Tribunal’s reasoning as looking at this particular applicant and the way he wanted to live in Iran.  Now, is that, do you say, a proper interpretation of what the Tribunal did, or not?

MR BOZIC:   The Tribunal looked, or purported to determine how this appellant would live when he went back to Iran, but it did so by reference to the categories.  In other words, it said that the activities that he has engaged in thus far are in the category of being quiet.  He is not going to be an aggressive proselytiser and that is the way in which he will live when he returns to Iran.  Now, the outcome is still, on that analysis, determined by the categorisation because one asks whether he has a well‑founded fear, or rather one approaches the question of the objective element and determines the outcome by reference to the categorisation.

McHUGH J:   Yes, but the statement of Justice Emmett at 188 seems to reflect the finding of the Tribunal at page 180, line 18:

In weighing all the available evidence the Tribunal finds that the applicant would not choose to generally –

et cetera.

MR BOZIC:   Again, the way in which the Tribunal dealt with that was purely by reference again to the categorisation.

McHUGH J:   That statement seems to be a finding about his intention.

MR BOZIC:   Well, that is a conclusion about what he would do upon return to Iran.  The question is, accepting that, can that give rise to a well‑founded fear?  Now, that involves examining what it was that he would do, in other words, taking those activities that the Tribunal found he was doing and looking at those in the context of the country information.  Now, that was never done.  There was never an assessment made of how those activities, for example, would be viewed by the authorities.  It was always resolved in the reasoning process of the Tribunal by reference to which category he fell into.

The other limb of the categorisation argument to which we have addressed in the written submissions is that Justice Emmett observed that there was some tension in the distinction drawn.  I have referred to the various ways in which the country information is described and the qualifications by words such as “generally” and “very low profile”. 

Now, at some stage in looking at the circumstances of this particular appellant one needs to look at the activities that he was going to do and to ask the question whether or not the assessment made by the Tribunal that this person’s activities fall in the quiet evangelising rather than the proselytizing – whether that is a categorisation which would be adopted by the authorities in Iran.  The necessity for that arises out of the fact that, first of all, the distinctions that have been drawn do not take into account, necessarily, the various gradations and they do not take into account that this is a spectrum of activities where evangelising can cross over to proselytizing.  It is one thing for the Tribunal to make an assessment, but it is another thing for this appellant to return to Iran to carry out the activities that the Tribunal found he would carry out, such as those that have been carried out in the detention centre ‑ ‑ ‑

KIRBY J:   Except that in the detention centre he is under the protection of Australian law whereas once he gets to Iran he is under the sharia law in this respect and, whilst that appears on the matter of apostasy not to be rigorously enforced in recent times, it still stands in the wings and is part of that law in a society which, according to the country information, is variable in its treatment of non-Islamic people.

MR BOZIC:   That, your Honour, in a sense, is the point, that when one comes to look at the classification, to say, “We, the Tribunal, make an assessment that the distribution of pamphlets, encouragement of interested persons to attend church services, talking to Muslims about the Christian faith, sharing the faith quietly as an evangelist, would not objectively lead to a well‑founded fear of persecution because you fall into this category”.  It is necessary to consider how those activities would be viewed by the authorities in Iran and as to whether they would take, or might not take, the same benign view and whether, even if the appellant went to Iran, carried out those activities that he wanted to, because he is, as it were, towards the proselytizing end of the scale rather than the very extreme of quiet sharing, there is a risk that his activities will be viewed by the authorities as warranting some attention, and that that of itself can give rise to a well‑founded fear of persecution.

KIRBY J:   It probably also depends on what part of Iran he is living in at the time.  Did the evidence show what part of Iran he came from?

MR BOZIC:   Tehran.  Your Honours, the point, I think, is a simple point.  I have probably said about as much as I would want to say on the categorisation aspect of it.

KIRBY J:   Was section 91R in force at the time of the proceedings?

MR BOZIC:   Yes.  I am told by Mr Smith, who is more familiar with the Act than I am, that it was.

KIRBY J:   There is no question as to the validity of that provision?  It does appear to modify the Convention to some extent.

MR BOZIC:   Well, none that we have raised.

KIRBY J:   The basic question which continues to concern me, and I raised it earlier and it is raised in academic articles that have been written following the Bangladesh case – I am thinking of an article by Professor Kendall from Murdoch University concerning that case, in the Journal of Refugees’ Law – is whether or not everyone has gone along here with the assumption that this man, if he goes back to Iran, has to behave discreetly.

Why should we make that assumption?  Why should a Christian person in this world not be entitled to go back and try to convert other people?  That is an element of religious freedom.  Why does the Tribunal persist, and the Federal Court persist, and perhaps this Court persist, in the assumption that in the exercise of fundamental freedoms people have to be discreet?  They must not harm people, but the exercise of such fundamental freedoms is an element of human dignity and, arguably, it is what the Refugees Convention is seeking to protect in the case of people where they are denied that and come to a country which respects it, that that country will give them protection.

Now, that is the argument that is raised.  It is not only by Professor Kendall; it is in two earlier articles about the issue of homosexuals, but to some people their religion is as important as their sexuality.  You do not seem to embrace that point?

MR BOZIC:   No, no, I do embrace it, and would love to embrace it in the sense that ‑ ‑ ‑

KIRBY J:   Well, you say there is a finding of fact by the Tribunal, but that finding of fact is based on an assumption that you have to do a classification of discreet or non-discreet.  The point I am raising – and it is the point that is raised in the articles on the Convention – that the Convention makes no such assumption.

MR BOZIC:   I am not quibbling with that proposition, your Honour.  One of the matters that we have drawn attention to is the way in which the Tribunal categorised – and this is another aspect of the categorisation perhaps – is to say that when this applicant returns he is able to practise, and wants to practise, in accordance with his core beliefs, but it does not address and has not addressed the question of to what extent do the appellant’s activities, or his desire, go beyond that?  I think I have reached the ‑ ‑ ‑

GLEESON CJ:   Thank you, Mr Bozic.  Yes, Mr Basten.

MR BASTEN:   Your Honours, just in answer to the questions concerning the operation of section 91R, that is discussed by the Tribunal at page 170 on the assumption that it did operate.  Your Honours will see at 168 that the Tribunal decision was handed down on 19 December 2001.  Section 91R is contained in Subdivision AL of Division 3 of Part 2.  If your Honours have the current reprint, No 9, of the Act, at page 705 there is set out the transitional provision in relation to the Migration Legislation Amendment Act (No 6) 2001. The short answer from item 7 is that that provision applies in relation to any decision of the Tribunal made after the commencement of the provision on 1 or 2 October 2001.

GLEESON CJ:   Which is the reprint we should be using?

MR BASTEN:   I have Reprint 9, but I think Reprint 8 would have been the reprint in force at the time of the Tribunal’s decision, your Honour.  I do not know that there is any significant difference for present purposes.  Whilst I was referring to section 91R ‑ ‑ ‑

KIRBY J:   Just let me ask you, that provision, section 91R, does appear to gloss the Refugees Convention.

MR BASTEN:   Yes.

KIRBY J:   You would say that it does not need to rely on the external affairs power; it relies on the aliens power?

MR BASTEN:   Yes, and immigration.

KIRBY J:   And if it is a derogation from Australia’s obligations under the Convention, that it is the duty of municipal courts to give effect to it, if it is within constitutional power?

MR BASTEN:   Indeed.  I do not know that anything particularly on the argument I have heard turns on the operation of section 91R.  The Tribunal did, however, refer to subsections (1) and (2).

KIRBY J:   It does, as Justice McHugh indicated, import the notion of involving serious harm to the person.  It may be that that is implied in the notion of the real apprehension or real risk of apprehension of persecution.  “Persecution” is a strong word but, to the extent that it is a different notion, it is the one that is binding on the Tribunal and on this Court.

MR BASTEN:   Yes.  I was going to add, your Honour, without seeking to deal with it in detail, I am not sure that we would wish to concede that there is a derogation from the operation of the Convention in subsections (1) and (2) in particular.  Subsection (3) has a different effect.  It is dealing with refugees sur place and says in substance that one has to:

disregard any conduct engaged in by the person in Australia unless:

(b)      the person satisfies the –

decision‑maker that it was not done:

for the purpose of strengthening the person’s claim to be a refugee –

That may have a slightly operation.  It is probably consistent with Somaghi’s Case and that line of authority in the Federal Court.  Again, nothing turns on that for the present purpose, because the Tribunal did not seek to rely on 91R(3).

KIRBY J:   The issue did arise in this case that – I think the appellant’s brother said that it had become known in Iran that he had converted and had been trying to convert other people.  I do not know whether that falls within section 91R(3).

MR BASTEN:   It certainly might, but the Tribunal rejected that evidence expressly.  It did not accept that that was a genuine letter.  The second point I would seek to make is that there are clearly distinctions between this case and Appellant S395, which we have set out in the written submissions.  We do not dissent from your Honour Justice Kirby’s proposition that, really, if the appellant is to succeed in this case, he has to bring himself within that form of analysis.

There are two formal distinctions.  The first is that, of course, this is a case brought under the Judiciary Act.  Appellant S395 was brought under section 476(1)(e) of the Migration Act in its old form.  The second point is that 91R was not relevant then.  I say that is a technical point.  For present purposes, I do not think it has substantive consequences.  The third point which is of some consequence is that that case dealt with membership of a particular social group.  We would understand that as being a more significant distinction for present purposes than the actual ground, namely, religion as opposed to sexuality.

The reason for that, as each, I think, of the majority judgments noted, is that it is important to identify the nature of the group of which membership is claimed.  That has a consequence for another way in which we say this case differs in substance from Appellant S395.  With the homosexual men in Bangladesh there was a question as to whether the group was only those who are overt in their expressions of sexuality or whether all homosexual men were within the group but only those who were overt in their practices were at risk of persecution.

The distinction, of course, is important because it goes to the question of awareness of the fact that somebody is homosexual.  If it is all homosexual men who are at risk, though not all may be persecuted, then of course the question of awareness plays a significant role in the assessment which must be made.  That issue does not arise in this case because it was not found by the Tribunal that merely being a converted Muslim Christian in Iran gave rise to a real risk of persecution.

KIRBY J:   There is the law of apostasy, though, which is part of the sharia law and you could not really say there was no risk of persecution, could you?  It would depend upon the time, depend upon the circumstances, depend upon political changes, depend upon the part of Iran you were in, the power of the mullahs and religious leaders in that part and so on.  There would be many factors.  There was some evidence that the conversion of Muslim to Christianity had led to death.

MR BASTEN:   There was.  Those were all matters which the Tribunal assessed and basically drew a distinction to which I will turn in a moment, if I may.  I want to come to the passages in the Tribunal’s distinction, but the short answer we put to your Honour’s question is really that those were matters for consideration by the Tribunal.  My friend has to say either that they were not considered or that there was some fundamental error in the way in which they were considered.  As I understand it, he puts that they were not considered in relation to this individual, but can I come back to that. 

The other aspect of Appellant S395 which is a significant difference from the present case is that it did raise a question in terms of discreetness or discretion.  Discretion itself is arguably not a clear criterion of risk as such.  If awareness of a person’s characteristic engages a real risk of persecution, then of course discretion is not going to be a guarantee of no risk because it is not a guarantee of ignorance of the characteristic.  That was a matter which the Court adverted to.

HAYNE J:   But, again, putting the argument in this way puts it at a high level of abstraction.

MR BASTEN:   I accept that.

HAYNE J:   Putting it at that high level of abstraction obscures the essentially individual nature of the inquiry that is to be made.

MR BASTEN:   I accept that, your Honour.  I will come to that.  I am going to deal with it at that level.  I am simply seeking to say that there are differences in the manner in which this case arose which need to be considered when dealing with the individual circumstances, but I accept entirely what your Honour says about the dangers of a priori classification.

HAYNE J:   And pitching it at that level of abstraction may obscure whether you are identifying jurisdictional error, which is the relevant field of discourse in a 39B application.

MR BASTEN:   I accept that too, your Honour.  Can I come back to that aspect of the matter.  The other aspect ‑ ‑ ‑

KIRBY J:   Is this not much in common though between the cases, and that is that it has been assumed throughout that it is relevant to examine whether or not, supported by country information, if the person is discreet, there is no real risk that they will be persecuted?  Is that not an assumption which needs to be justified?

MR BASTEN:   Your Honour, I do not accept that the assumption is made, but if it is, then it needs to be justified.  I accept that entirely.  I seek to deal with ‑ ‑ ‑

KIRBY J:   Do you not see a commonality though in the country information presented in the Bangladesh case and in this case?  It is all very much focused on, “Well, if you keep your head down, you will be left alone, but if you are true to yourself, you will be persecuted”?

MR BASTEN:   At that very broad level of categorisation, I accept that there is a superficial similarity.  The question is really whether the Tribunal dealt with it at that broad level of categorisation or whether the Tribunal, as I accept it probably needed to do, dealt with it at a different level.  Can I come to that.  I am not seeking to say there are no common threads; all I am seeking to say is that there are also differences.  The other aspect of the discretion argument which may give rise to difference is that if somebody is being discreet, they are reflecting a choice, and the question that then needs to be asked is why they are being discreet.

KIRBY J:   The choice may not be an entirely fair or free one.  It may be a matter of life and death.

MR BASTEN:   Precisely, but that is why one needs to inquire why that choice is being made.  That was what the Tribunal, as we understand the reasoning of the Court in S395, did not do.  Now, my point is obviously going to be that in this case the Tribunal asked that very question and gave an answer to it.  There is no harm, in principle, in seeking to identify from the country information what characteristics will be characteristics which put an individual at risk of persecution if returned to his country of nationality.

HAYNE J:   Why?  Again, are you not inverting the inquiry?

MR BASTEN:   No, your Honour.

HAYNE J:   By attempting to assess the country information, divide all Gaul into three parts and then attribute one of the classifications thus identified to the individual.  Is that the process of reasoning you are advocating?

MR BASTEN:   No, it is not.  What I am saying is that if a person claims that he is at risk of persecution in his country of nationality, one would usually look to two sources to see if that claim can be substantiated as well founded.  The first source will often be past history, as this Court is well aware from many cases.  In this case, that source is not available because he is not a person who left Iran as an apostate, a convert to Christianity with a history of harm in that country.  He said he was.  Indeed that was part and parcel of his claim when he came here.  As we have set out in the written submissions, that was substantially his claim throughout the first interview he made, throughout his application for a protection visa, and, indeed, thereafter, and that complaint was rejected by the Tribunal factually as not plausible. 

The second way that one can test his claim is to ask, as one must, are people in Iran who are converts from Islam to Christianity at risk of persecution?  The only way one can assess that is to look at the country information.  If the country information says, “Yes, they are, in all circumstances”, then that will be an end of the inquiry, no doubt.  If the country information says, “In some circumstances, some people are”, then it is obviously appropriate and necessary for the Tribunal to take the next step of identifying those circumstances and identifying whether or not the individual in question enjoys those particular characteristics or otherwise.

Can I turn then to the way in which the Tribunal dealt with it.  We say ultimately that it considered the country information and the individual circumstances put before it by the claimant.  Your Honours have been taken to the beginning of the analysis in this regard which appears at the foot of page 179, where the Tribunal notes a distinction which appears from the country information and notes that it could be applied in a manner which would result in an applicant who was not a proselytiser not being at real risk of persecution.  Over at the top of page 180, the Tribunal then says:

While accepting that the applicant has discussed aspects of the Christian faith with other detainees the Tribunal does not accept that at least 20 detainees would disavow their life‑long adherence to the Muslim faith on the basis of the applicant’s criticism –

and so on.  Your Honours will see at line 50 on the same page that perhaps part of the Tribunal’s scepticism arises from the fact that some 100 detainees in the same centre all embraced Christianity in eight months.  The Tribunal is entitled to embrace that claim sceptically.

McHUGH J:   Well, that is true, and given some of the findings of the Tribunal, some of the favourable findings strike one as a little inconsistent and not necessarily logical, but it is not easy to see how they picked and chose among the various findings.  Let me tell you what troubles me.  I think the strongest point in your favour is the statement at page 180, where the Tribunal found that:

the applicant would not choose to generally broadcast his practice of Christianity or conspicuously proselytize in Iran. 

So that seems to be a finding of fact as to what he will do, but the Tribunal never considered at any stage whether that choice was the result of having to modify his conduct to fit in with the requirements of Iranian society.  Assume he had been in Iran and had modified his conduct, why would it not be an error for the Tribunal not to consider the issue of real chance if it did not determine whether the modified conduct was influenced by the threat of harm that might result, unless he did modify his conduct?

MR BASTEN:   Your Honour, the answer to that may be that it would be an error in accordance with what your Honours said in S395, but the point we seek to make is that 183 at line 20 – perhaps I should read the whole paragraph:

In weighing all the evidence, including the applicant’s practise of his faith to date and the tenets of that faith, the Tribunal finds that any decision to avoid proselytizing in Iran or of actively seeking attention on matters of religion is not inconsistent with his beliefs and practices.  It finds that the present applicant is not constrained in the practice of his avowed faith, nor would he be in Iran, due to a perception that to behave more openly or aggressively would leave him at risk of persecution.

We take that to be a direct answering the question, “Why does he make this choice?”  There appear to be three answers, two positive, one negative.  The two positive ones are that the tenets of his faith do not require it and that his present practice does not involve it.  The negative answer is then, therefore, if he goes back to Iran, his non-proselytization would not be due to his fear of the consequences of proselytizing. 

HAYNE J:   His present practice is further identified at 180, line 41 to 43.

MR BASTEN:   Yes, and, your Honour, there is some further discussion of that at page 178 at about line 10 to 15:

the Tribunal accepts that he has engaged in other religious activities as outlined by him at the hearing before this Tribunal.  The Tribunal accepts that such activities include the distribution of pamphlets, speaking to others privately about his faith and encouraging interested persons to attend church services.

So that is the quiet sharing which the Tribunal is presumably referring to in the later passages too.

GLEESON CJ:   Well, what brings us together is that the appellant does not want to go to Iran.

MR BASTEN:   Yes.

GLEESON CJ:   So we can assume that he is not burning with missionary zeal to convert Iran to Christianity. 

MR BASTEN:   No, that is so. 

KIRBY J:   But that still leaves the question of whether that is because of a well‑founded fear that if he did go there and exercise his freedom of religion freely he would, uncontrolled by that fear, endeavour to tell people of his faith.  After all, it is only in really one century that Christianity has retreated from being a missionary religion.

MR BASTEN:   I was not sure whether it had or not in all cases, your Honour, but I accept what your Honour tells me.

KIRBY J:   Well, to some extent.

MR BASTEN:   Yes.  Crusades are a thing of the past now.  Some would say otherwise.  The point really is, your Honour, that the Tribunal considered what he would do when he went back to Iran.  It had to make that judgment.  It is required in assessing whether there is a well‑founded fear of persecution to speculate about what will happen when he returns and it speculates reasonably by reference to the tenets of his belief, which are similar to those of the Uniting Church, the Tribunal says, and by reference to what he has done in the detention centre, and I think in West Iran, which is the best the Tribunal has before it.  It is entitled to rely on that material.

KIRBY J:   Mr Watts was a Uniting Church minister was he?

MR BASTEN:   Mr Watts?  Yes, he was.

KIRBY J:   The appellant originally said he was an Armenian Christian, but was that on the basis that in Iran Christians are called Armenians, or something of that kind?

MR BASTEN:   I am not sure.  I do not recall that, your Honour.

KIRBY J:   I saw that somewhere.  I think it was the Tribunal.

MR BASTEN:   He said that he had had contact with a Mr Rubic in Iran.  Whether he says something about Mr Rubic’s background I am not sure, but that story was basically discounted by the Tribunal.

KIRBY J:   But the Tribunal ultimately did seem to accept that he had a genuine conversion, and said that it was proper to approach the matter on that basis.

MR BASTEN:   Yes.

KIRBY J:   So we are not dealing with a case of purely adventitious conversion to Christianity.

MR BASTEN:   The Tribunal clearly gave him the benefit of the doubt in that regard and dealt with it on that basis, which is surely not in error on its part.  It has doubts and said, “Well, I may be wrong, so I’ll deal with him on the basis that he is a genuine Christian and that he will continue to be a Christian if returned to Iran” and assessed the question whether he is likely to suffer persecution in those circumstances and concludes that he is not, and that the choice he makes is one which is not forced upon him.

KIRBY J:   The Armenian appears at 171 at line 47:

He described the man as a Protestant Armenian –

This was the man in Iran ‑ ‑ ‑

MR BASTEN:   Yes, that is Mr Rubic, I think.  Yes, I am sorry, your Honour is correct.  But that story is basically discounted to the extent that it resulted in anything more than a friendship.  That was the major way in which he put his case, and that is dealt with at 174, really right through, I think, your Honour, to the bottom of page 176, where that aspect of the matter is discussed.  Then the Tribunal turns to the question of what happened in Indonesia and accepts that ‑ ‑ ‑

KIRBY J:   He claimed to have been baptised there, was he not?

MR BASTEN:   That is so.  And I think apart from – I am sorry, I have now lost the passage, but there is a passage in which the Tribunal accepts that his tenets are basically the same as those of the Uniting Church on the basis of Mr Watts’ evidence, which was that this was a sister church, as it were, of the Uniting Church in Australia.  That appears at page 83.

KIRBY J:   You say in your submissions that Mr Watts put modifications on the appellant’s claims.

MR BASTEN:   Yes.

KIRBY J:   What did you mean by that?

MR BASTEN:   Well, the appellant’s claim, which was not accepted, was that he had had some significant success in the conversion of 20 detainees.  Mr Watts’ letter at page 83 affirms that he is a genuine Christian and affirms that he talks to his fellow detainees about Christianity, but there is nothing there which suggests that he is in any way responsible for converting a large number of people or, indeed, anyone.  Perhaps more significantly, that is the finding of the Tribunal, namely that it does not accept in full his claims in that respect.

The only other point I sought to deal with was the question of whether the Tribunal approaches the matter on the basis of an a priori classification ‑ ‑ ‑

McHUGH J:   But the letter you referred to at 83 is not the relevant letter, is it?

MR BASTEN:   Is it not?  I am sorry.

McHUGH J:   That is a letter dated 26 March 2001.  But what about the letter that is set out at pages 213 to 214 in the Full Court’s judgment, which refers to a letter of 23 November?

MR BASTEN:   I am sorry.  Your Honour is right, there is another letter.  It is page 153, my friend reminds me.  It is the third paragraph, I think:

The evangelising that [the appellant] and others have done has meant that the Christian group in Curtin has grown over the year and many new Christians have been baptised . . . each of the twenty people mentioned have been baptised.

It does not quite go as far as to suggest that the individual in this case is responsible for 20 baptisms.

KIRBY J:   But in the context it would be an inference, would it not, that he played some part, given that it is speaking about him.

MR BASTEN:   Precisely.  It is an inference that the Tribunal has to address and it does, at the top of 180 at line 10, where it says it does not accept it.  That is a matter for the Tribunal.  My understanding is not that the case against us is that the Tribunal failed to deal in some way with the evidence before it.  That was the case which was put before Justice Emmett and, I think, in the Full Court, which was rejected.  That case appears to have been abandoned.  If your Honours go to 194, there was an argument put, which Justice Emmett deals with at paragraph 34 and following, which was that in some way this matter had not been fully addressed. 

Perhaps more significantly for this Court’s purposes, at 212 in the judgment of the Full Court, the reasoning at paragraph 24 explains that the primary submission was that there had been:

a failure by the RRT to take into account evidence material –

to its task.  There is then a discussion as to whether that is a ground of review.  The Full Court does not need to deal with that.  At paragraph 27, it does not accept the substance of the complaint.  That is in the middle of page 213.  That goes on to look at the letter your Honour Justice McHugh referred me to, and notes at line 25 on the following page that:

The letter is framed with some precision, and records only matters within Reverend Watts’ knowledge.

McHUGH J:   What was the basis of the Tribunal’s finding that the appellant was not a member of a denomination that exhorted its adherents to proselytise?   What evidence was there before the Tribunal?  Did the Tribunal take that from its own general knowledge?

MR BASTEN:   It think it was a combination of what the Reverend Watts had said, together with its understanding that the applicant’s religion was, in effect, that of the Uniting Church.  I am not sure whether there is other information which is specifically directed to the tenets of the Uniting Church, your Honour.

McHUGH J:   There was no evidence about the tenets of the church.  I think if you look at Justice Emmett’s judgment ‑ ‑ ‑

MR BASTEN:   Yes, the bottom of 191 is the passage.

McHUGH J:   Paragraph 27, I think.

MR BASTEN:   Perhaps go back to 26, your Honour.  If your Honour is asking where is the basis for that material, apart from the quotation from the letter is found, I am not sure that I can answer that.  It may be that the Tribunal was partly relying on its own understanding of the tenets of the church.

KIRBY J:   Twenty converts to the Uniting Church is quite a significant event in the life of the Uniting Church, I would think.

MR BASTEN:   It seems to be rather insignificant in the context, your Honour.  A hundred in eight months in one detention centre seems to put this to shame.  He only claims 20.  That is the figure noted at line 50 on page 180.

KIRBY J:   He is only one person.  I still am concerned, Mr Basten, having read the paper by Professor Kendall and the paper by Professor Millbank at Sydney University Law School.  There is a fundamental mistake in adopting this paradigm of discreet and indiscreet and that this has walked the way in which these cases are being dealt with, that to impose that classification, which is not grounded in the Convention and not grounded in the Act, is to misdirect the mind to the inquiry which is required by law.

MR BASTEN:   Your Honour, with respect, I do not know the articles.  I have looked at Professor Kendall’s, but it is at a level of abstraction which ‑ ‑ ‑

McHUGH J:   Professor Kendall’s article seems to be an attack on this Court.  He says we did not consider opportunity, but the issue is a question of what constitutes persecution.

MR BASTEN:   Indeed.

McHUGH J:   We are not there to ‑ ‑ ‑

KIRBY J:   I do not know that it is an attack.  On the contrary, he says that the decision in the Bangladeshi case was a wise and correct decision but says that it did not go far enough essentially, that it saw the problem, which was this discreet/indiscreet paradigm, but did not, as it were, address the problem conceptually but merely addressed it by the a priori classification mode instead of, as it were, attacking it fundamentally and saying why should people be obliged when they go back to another country to act discreetly?  If that is forced on them in a matter so personal and important as their sexuality, their race, their skin colour, their religion, then that is a form of persecution.  That is what he says and I think there is merit in what he says.

MR BASTEN:   It is hardly appropriate for me to defend this Court’s judgments but I do not understand that to be a problem.

KIRBY J:   No, he does not criticise the judgment.  He says it did not go far – it did not use the correct analysis.  That is what his complaint is.

MR BASTEN:   If the question is ‑ ‑ ‑

KIRBY J:   Professor Millbank in her article invites judges to go home and in the privacy of their minds think of what it would be like to be forced to deny something extremely important to their person, such as in this case a newfound belief in the religion of Jesus Christ.

MR BASTEN:   I do not have any difficulty with any of that.  I read a Tribunal decision recently, not one that has come before this Court, where the Tribunal asked the person, if he has a Jewish name why can he not change his name, as if that was an answer to a fear of persecution as a Jew, and obviously one should be sensitive to those sort of requirements.

That is precisely, as I understood it, the point that underlay particularly the discussion in your Honour Justice McHugh’s judgment about the reason and in the other joint judgment in the majority about the reason why, if one thinks there is behaviour modification taking place, one must ask why and it may demonstrate that there is persecution underlying that choice.

I read together paragraphs [43] and [40] in the discussion of what is persecution in those circumstances.  If one asks and answers that question, surely that will deal with precisely that criticism.  I, with respect, do not accept that the criticism is a justified criticism of what was said in the joint judgments, but it has nothing to do with this case.  This case is not about being discreet or being less than open in one’s practice of religion.  In this case it was accepted that he could practice his religion in Iran.  There was a question about whether he would be persecuted.  The risk was said to be remote unless he did certain other things.

It was a matter for the Tribunal to decide whether he would, in fact, do those other things and if he would not then it was a matter for the Tribunal to ask why not, and that the Tribunal asked and answered.  With respect to Professor Millbank and others, that is as much as this Tribunal was required to do.  It did it uninstructed by this Court in Appellant S395.  With respect there is no error in the approach taken in this case as we would understand it.  If the Court pleases.

GLEESON CJ:   Thank you, Mr Basten.  Yes, Mr Bozic.

MR BOZIC:   I have nothing in reply, your Honours.

GLEESON CJ:   Very well then.  We will reserve our decision in this matter and we will adjourn until 10.15 tomorrow morning.

AT 11.55 AM THE MATTER WAS ADJOURNED