MIMA v Darboy

[1998] FCA 931

FEDERAL COURT OF AUSTRALIA

IMMIGRATION – application to set aside decision of Refugee Review Tribunal – whether Tribunal erred in finding that the applicant faced a real chance of persecution for reasons of religion – applicant faced punishment for adultery if returned to Iran – whether relevant penal law was a law of general application – whether laws of general application can give rise to persecution

Migration Act 1958 (Cth) s 36
Migration Regulations Sch 2 part 866

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 71 ALJR 381
Abedini v US Immigration & Naturalisation Service 971 F.2d(9^th Cir. 1992)
Fisher v Immigration & Naturalisation Service 79 F.3d 955 (9^th Cir. 1996)
Saleh v US Dept of Justice 962 F.2d 234 (2^nd Cir. 1992)
Chanco v Immigration & Naturalisation Service 82 F.3d 298 (9^th Cir. 1996)
O v Immigration Appeal Tribunal [1995] Imm AR 494 (Ct of Appeal)
R v Secretary of State, ex parte Jafar Danaie [1997] Imm AR 366
Bolanos Hernandez v Immigration & Naturalisation Service 767 F.2d 1277 (1984)
Church of the New Faith v Commissioner of Payroll Tax (Victoria) (1983) 154 CLR 120

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v RAHIM DARBOY
NG 444 OF 1997

MOORE J
SYDNEY
6 AUGUST 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 444 of 1997

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPLICANT
AND:	RAHIM DARBOY RESPONDENT
JUDGE:		MOORE J
DATE OF ORDER:		6 AUGUST 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal is set aside.

2. The matter is remitted to the Refugee Review Tribunal to be reconsidered according to law.

3. The respondent pay the applicant’s costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 444 of 1997

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPLICANT
AND:	RAHIM DARBOY RESPONDENT

JUDGE:	MOORE J
DATE:	6 AUGUST 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application for judicial review by the Minister for Immigration and Multicultural Affairs (“the Minister”) of a decision of the Refugee Review Tribunal (“the Tribunal”) of 13 May 1997. The Tribunal set aside a decision of a delegate of the Minister refusing to grant Mr Rahim Darboy (“the applicant”) a protection visa. The combined effect of s 36 of the Migration Act 1958 (Cth) (“the Act”) and part 866 of Sch 2 to the Migration Regulations is that a criterion for the grant of such a visa is that the applicant be a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva at 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (“the Convention”).  The Tribunal remitted the matter to the delegate for reconsideration on the basis that the applicant was a person to whom Australia did have protection obligations. 

The following is the factual background, in summary form, against which the Tribunal made its decision.  The applicant was born in Teheran, Iran on 7 October 1967.  He lived and worked in Teheran until 25 October 1994.  He then left Iran and entered Australia on 27 October 1994 on a visitor’s visa issued on 26 July 1994 by the Australian Embassy, Teheran.  He had worked at the Embassy as a driver between May 1992 and 13 July 1994.

When working there he established a relationship with a married woman who also worked at the Embassy.  In its reasons the Tribunal referred to a number of factual matters raised by the applicant and discussed how they had been considered by the delegate of the Minister.  It is unnecessary to refer to all these matters in detail.  It is sufficient to note that they related to the discovery of the relationship by the husband of the married woman and various legal proceedings taken against the applicant, the married woman and her husband.  The Tribunal accepted the applicant as a credible witness and, save for some matters of detail, accepted the applicant’s account of what occurred after the relationship became known to the married woman’s husband and government authorities.  In a section headed “Reasons for Decision” the Tribunal posed a series of questions or propositions arising from the definition of refugee in the Convention. 

It is convenient to set out Art 1A(2) of the Convention which contains, for present purposes, that definition.  It provides:

“... The term ‘refugee’ shall apply to any person who:

...

(2)owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.”

The Tribunal first concluded that the applicant was a national of Iran.  It then addressed the question of whether the applicant actually feared harm in Iran and concluded he actually feared harm by the authorities in Iran for reasons relating to his relationship with the married woman.  It then addressed the question of whether the applicant faced a real chance of suffering harm if he was to return to Iran and concluded that he would.  This conclusion was based on its finding that there was a real chance the authorities in Iran would prosecute the applicant, if he returned, for his adulterous relationship with the married woman.  It made a related finding that the applicant might be punished by receiving 100 lashes.  The Tribunal also found, by adopting a finding of the delegate, that such a punishment would be cruel and excessive and not condoned by civilised societies.  The Tribunal then expressed the view that such punishment would be persecution if the authorities inflicted it for a Convention reason. 

The Tribunal then posed the final question, as it saw it, arising from the definition of refugee in Art 1A(2).  That is, whether the authorities would punish the applicant for a Convention reason.  It is convenient to set out the reasons of the Tribunal for concluding that they would.  After posing the question the Tribunal said:

“The delegate considered this question by asking why the applicant engaged in an adulterous relationship.  He noted that the evidence did not show the applicant had committed adultery out of an ideological motive.

However, I think the delegate has used the motives of the applicant wrongly.  Applicant A’s case shows that the motives of the persecutors are the crucial motives (Gummow J, 375). The statement by Dawson J in that case (at 340), which I have already quoted, shows that the question is why the possible persecutors would harm the potential victim; it is not why the potential victim took certain actions. The possible persecutor must be moved to inflict harm on an applicant by his or her actual possession of one of the five attributes or by a perception that he or she possesses of one of those attributes. These statements emphasise an important principle of refugee law. A person might be persecuted because he or she actually possesses one or more of the five attributes specified in the Refugees Convention. Alternatively, a person might be persecuted because the persecutors imputed one or more of those attributes to him or her. A fact that the persecutors were mistaken about whether the person possessed the relevant attribute would not affect the outcome.

However, the motives of potential victims might be important sometimes.  Their motives might show more clearly why the national authorities would harm them.  For instance, the Tribunal could reasonably infer a political motive in a country that suppressed political opposition if the authorities were to gaol a high profile opponent of the regime.  The motives of potential victims might, therefore, help the Tribunal to understand why the authorities in their countries of nationality might harm them.  But, evidence that potential victims had non-Convention reasons for their actions does not prove that the authorities do not have a Convention reason for harming them.

Ms Eftimiou made a submission to the Tribunal on 4 February 1997.  She addressed the question whether the motives of the authorities in Iran for harming the applicant would be related to the Convention attributes or reasons of the applicant’s religion or political opinion.  Ms Eftimiou noted that Professor Hathaway (The Law of Refugee Status, Butterworths, Canada, 1991, 146) has pointed out that the concept of ‘religion’ has two elements in international law.  The first element is the right of an individual to hold or not hold any form of religious belief.  This includes the right to hold theistic, non-theistic or atheistic beliefs.  Neither the State nor any of its official or unofficial agents may interfere with that right.  The second element is the individuals right to live according to his or her belief system.

Ms Eftimiou pointed to another passage in Hathaway (at 148), which argued that a decision maker who restricted persecution to specifically religious actions was misguided.  Hathaway argued that persecution could be found in ‘... harm consequent upon a choice or exercise of one’s belief system”.  I find that the applicant acted out of his choice or exercise of his belief system when he committed adultery.  Although he acknowledged that he is a Muslim, he gave evidence that he believed adults should be able to enjoy a sexual relationship.  He said this applied particularly in circumstances where the couple were contemplating marriage.  However, by entering into an adulterous relationship with his friend, he was infringing the norms of Islam.  Islam prescribes severe penalties for adultery.  The evidence considered by the delegate shows that the prescribed penalty for his religious offence or sin is one hundred lashes or, at the highest level, stoning (Immigration and Refugee Board, Ottawa, June 1994, Women in the Islamic Republic of Iran, CISNET Document 5048).  I have already found that, if the authorities in Iran were to impose such severe punishment on the applicant, the harm would be serious enough to amount to persecution.

The question for the Tribunal is, therefore, whether the applicant’s actual or imputed possession of a religious belief would move the authorities to inflict such harm on him.  The Country Profile states that the Iranian Parliament parts (scil.- passed) a General Courts Act in the middle of 1994.  That Act amalgamated many of the specialist courts in Iran.  A significant feature of this Act was a requirement that all judges should be clerics.  Former lady judges act as special judicial advisers.  Another feature is that the judges gather the evidence, prosecute the case, come to a verdict and impose the sentence.  There is no jury.  The Country Profile also noted that ‘... bribery and corruption are endemic [so that] it is difficult to see how Justice will, on balance, be better served than under the old system’ (paragraphs 1.37.1 and 2).

The Country Profile described the Islamic penal code applied in Iran.  It noted the various sources of this code, including Hudud, which is codified in the Quran.  The Country Profile reported that Iran has applied the Islamic penal code increasingly since the beginning of the Islamic Revolution in February 1979.  It reported that the Iranian Parliament was passing the relevant laws into legislation (paragraph 1.38.1).  The Country Profile noted that the Islamic code dealt with adultery and called for stoning when the adulterer was married (paragraph 1.38.3.1).

I think this evidence shows that the civil authorities in Iran regard themselves as bound to give effect to Islamic law.  I think this evidence also shows that the authorities punish breaches of Islamic law according to the prescriptions of that law.  Therefore, although the civil authorities might punish the applicant, those authorities would be punishing his religious offence.  I do not think this evidence enables me to make a finding that the authorities would be prosecuting the applicant for a criminal offence if they tried him under the criminal code.  The criminal code created an offence out of his adultery precisely because religious law has proscribed adultery.  Therefore, I find that the motive for which the authorities might harm the applicant in Iran is religious.  I do not think the fact that he did not act out of any religious conviction when he committed adultery changes this conclusion.

The evidence, therefore, leads me to the conclusion that the applicant faces a real change of persecution in Iran for reasons of his religion.”

(emphasis added – the page references to Re Applicant A are to a report in 142 ALR)

The Tribunal then indicated it was not necessary to consider whether the authorities might also harm the applicant for a political reason.  It concluded its decision by indicating it was satisfied that the applicant had a well-founded fear of persecution in Iran and that the applicant is a refugee.  It then gave effect to its decision in the way earlier discussed.

Counsel for the Minister contended that the Tribunal in the penultimate passage in the extract from its reasons which I have just quoted, erroneously focussed on the source of the law, that is the religious source of the law.  He submitted that the law was a penal law of general application and there was no suggestion that it was enforced in a discriminatory manner for a Convention reason.  Thus, it was submitted, the imposition of a penalty under a law of general application will not, as such, constitute persecution.  Reference was made to Applicant A v Minister for Immigration and Ethnic Affairs (1997) 71 ALJR 381 and 384 per Brennan CJ and 398 per McHugh J. It was also submitted that even if the law of general application had its origins in religious beliefs, that fact cannot be decisive as the overlap of morality and religion and their contribution of each to the criminal law is common.

Counsel for the applicant submitted that the conduct in which the general law will be applied must be considered in the context exemplified in the passage earlier quoted from the Tribunal’s reasons.  The applicant, it was submitted, would be punished for his departure from the religious orthodoxy for reasons of his religion and in particular his non adherence to Islam.

Before considering directly the issues raised in these proceedings it is convenient to refer to a number of overseas authorities dealing with broadly similar issues, most of which were referred to by counsel for the Minister.  They helpfully illustrate the judicial treatment of similar asylum claims elsewhere. 

Abedini v US Immigration & Naturalisation Service 971 F.2d (9^th Cir. 1992) is an example of the US Court of Appeals’ treatment of Iranian asylum claims.  Abedini was an Iranian national who testified that he faced arrest and punishment if returned to Iran because of his involvement in distributing Western films and videos in Iran, for avoiding military service and for using a false passport to leave Iran.  The punishment took the form of nineteen lashes administered under Islamic law.  In rejecting Abedini’s claims, the Court held that he had merely established that he faced the possibility of prosecution in Iran for an act deemed criminal and applicable to all people in Iran.   Moreover Abedini had failed to establish that he would receive disproportionately severe punishment on account of a Convention reason because he had not demonstrated his conduct was motivated by genuine religious, political or moral convictions or other genuine reasons of conscience.  Nor had he established that the laws as they applied to him were especially unconscionable or were merely a pretext to persecute him for his beliefs or characteristics.

Fisher v Immigration & Naturalisation Service 79 F.3d 955 (9^th Cir. 1996) is another authority which involved an asylum claim by an Iranian citizen in the United States.  In that case, Fisher testified that she had left Iran in February 1984 following three events.  The first was that she had been detained and questioned by Khomeini government officials because she attended a party at a male friend’s home where she observed her host in a bathing suit.  The next incident was that four government officials had allegedly stopped her on the street and ordered her into their car at gunpoint.  She said that she had been stopped because she had a few pieces of hair hanging out from underneath her veil, and was admonished not to appear on the street like that again.  The third incident occurred shortly afterward, and allegedly involved government officials coming to her home and searching for political dissidents.  The Immigration Judge found Fisher’s testimony credible, but denied her request for asylum on the ground that she did not have a well-founded fear of persecution and did not face a clear probability of persecution.

The US Court of Appeals upheld this decision in a three to two majority.  The majority held that the possibility of the Iranian government prosecuting Fisher for violating the dress and conduct rules did not, of itself, amount to persecution on account of religious or political beliefs.  Citing Abedini, the Court held that Fisher had merely established that she faced a possibility of prosecution for an act deemed criminal in Iranian society under a law which is applicable to all women in that country.  By contrast, the majority said, persecution requires the government actor to inflict suffering on account of an individual’s religious or political beliefs, race, nationality, or membership of a particular social group.  The dissenting judges viewed the evidence differently.  In their view, the events indicated that the Iranian authorities viewed her as a non-conformist on issues of great social importance.  This, they reasoned, foretold that she would suffer more serious harm if returned to that country.  The dissenting judges held that Fisher had been subject to attention by the authorities because the regime viewed her as a religious non-conformist, and it was on account of this “religious opinion”, as perceived by the regime, that she would likely suffer persecution if returned to Iran.

Saleh v US Dept of Justice 962 F.2d 234 (2^nd Cir. 1992) also deals with the issue of prosecution under “religious law” and its relationship to asylum claims.  The applicant in that case was a citizen of Yemen who plead guilty to the murder of another Yemeni national in New York.  He submitted that conviction for this offence in Yemen entitled him to asylum in the United States.  The applicant’s argument was that because he would be punished under Yemen’s “fanatical interpretation of age old religious laws and customs”, he would be being persecuted on account of his religion.  The US Court of Appeals rejected this submission.  It viewed the applicant’s prosecution in Yemen as reflecting the non-discriminatory application of Yemeni criminal law to his intentional killing of a fellow Yemeni Moslem.  The court referred to the United Nations Handbook on Procedures and Criteria for Determining Refugee Status (1979) and noted that “persecution must be distinguished from punishment for a common law offence … It should be recalled that a refugee is a victim – or potential victim – of injustice, not a fugitive from justice”.  In the court’s view, asylum laws in the United States did not call upon the court to substitute domestic standards for those enforced under Yemeni law nondiscriminatorily in accordance with the Moslem religion.  Persecution, the court reasoned, does not arise “on account of religion” because an applicant faces deportation to a country that takes religion into account in the provisions of its domestic criminal law.

Counsel for the Minister referred to a number of authorities concerning the question of whether the punishment that followed proven contravention of a law of general application was so disproportionate to the offence as to amount to persecution.  In Chanco v Immigration & Naturalisation Service 82 F.3d 298 (9^th Cir. 1996), the US Court of Appeals stated that the fear of persecution must be evaluated in the context of the legitimacy of the law being enforced.  The court reasoned that although prosecution for a common law crime will not ordinarily constitute persecution, a disproportionate punishment may support a claim that the prosecution is a pretext for persecution on account of political opinion.  However, any argument put forward of this kind must be supported by evidence that disproportionate punishment is in fact faced.  Counsel for the Minister also referred to the United Kingdom case of O v Immigration Appeal Tribunal [1995] Imm AR 494 (Ct of Appeal) on the issue of the relationship between alleged persecution and prosecution for breach of a legitimate law of the state. The court in that case, rejecting the argument of the Ghanaian applicant who faced punishment in relation to arms stockpiling offences, held that a disaffected citizen cannot seek to achieve refugee status abroad “simply by breaching perfectly sensible foreign laws and thus exposing himself to prosecution”.

R v Secretary of State, ex parte Jafar Danaie [1997] Imm AR 366 was another case referred to by counsel for the Minister. It again related to an asylum claim by a citizen of Iran. Like Mr Darboy, the applicant in that case had committed adultery, but claimed that fear for his life arose not only because of anticipated punishment at the hands of Iranian authorities, but also in relation to the potential retaliation of the woman’s husband. The applicant argued that because Iran is a state that enforces a religious code of conduct and religious laws, he had a fear of persecution based upon either his failure to abide by those religious laws or on account of his perceived political opinion of being opposed to those religious laws. Such a fear, he argued, would constitute persecution for a Convention reason. Collins J rejected this reasoning, stating that all criminal laws, in any state, reflect to a degree the mores of the society of that state. His Honour said that sexual offences in particular may fall into a special category, with some societies being much freer than others in deciding what sort of sexual conduct ought to fall foul of the criminal law. In this case, however, Collins J did not believe that prosecution for such an offence in Iran, whether at the hands of the authorities or via the retaliation of the husband, gave rise to the type persecution envisaged by the Convention.

Counsel for the applicant referred to Bolanos Hernandez v Immigration & Naturalisation Service 767 F.2d 1277 (1984) in support of the contention that a belief system which represents a departure from the orthodox form of a religion or canon of conduct can give rise to persecution for reasons of religion and thus comprehended by the Convention. In that case, the applicant was granted asylum by the US Court of Appeals after having established a well-founded fear of persecution for reasons of political opinion. Bolanos Hernandez was a national of El Salvador who had refused to join guerilla forces in that country and whose life had been threatened in the event that he did not join. By consciously choosing not to join either of the contending political forces in El Salvador at that time, the applicant’s “political opinion” was that of remaining neutral. The government argued that the decision to remain politically neutral was not a political “choice”. The US Court of Appeals rejected this submission. The judges reasoned that by choosing neutrality and refusing to join a particular political faction, Bolanos expressed his opinion and took a political stance. Such conduct, they said, was as much an affirmative expression of a political opinion as is joining a side, or speaking out for or against a side. The court also held that there was nothing to support the contention that neutrality is always apolitical or that an individual who chooses neutrality must establish that the choice was made for political reasons.

In the present case it is to be recalled that the Tribunal was referred to and relied upon a passage from Hathaway in which the learned author noted that persecution could arise in “harm consequent upon a choice or exercise of one’s belief system”.  There is a helpful discussion concerning the expression of a religious belief, though in another context, in Church of the New Faith v Commissioner of Payroll Tax (Victoria) (1983) 154 CLR 120. In that case, Mason ACJ and Brennan J said at 135:

The canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself.  Conversely, unless there be a real connexion between a person’s belief in the supernatural and particular conduct in which that person engages, that conduct cannot itself be characterised as religious.

Concerning the relationship between religious belief and the laws of a given society their Honours added at 135-6:

The freedom to act in accordance with one’s religious beliefs is not as inviolate as the freedom to believe, for general laws to preserve and protect society are not defeated by a plea of religious obligation to breach them. … Conduct in which a person engages in giving effect to his faith in the supernatural is religious, but it is excluded from the area of legal immunity marked out by the concept of religion if it offends against the ordinary laws, i.e. if it offends against laws which do not discriminate against religion generally or against particular religions or against conduct of a kind which is characteristic only of a religion.

It might be thought, as the delegate did, that in the present case a real issue would arise about whether the conduct of the applicant in maintaining a relationship with the married woman involved the exercise of religious beliefs.  However a finding was made by the Tribunal that the applicant’s conduct did involve the exercise of religious beliefs and it is a finding that the Minister does not seek to challenge assuming, of course, that it is amenable to challenge in proceedings such as these.  It is, however, a finding that does not sit comfortably with the later observation of the Tribunal that the applicant “did not act out of any religious conviction when he committed adultery ..."

I turn now to the issue raised in the proceedings.  In Applicant A both Brennan CJ and McHugh J addressed directly the issue that fell for consideration by the Tribunal in the present matter. Brennan CJ said at 384:

Secondly, the feared persecution must be discriminatory.  The victims are persons selected by reference to a criterion consisting of, or criteria including, one of the prescribed categories of discrimination (race, religion, nationality, membership of a particular social group or political opinion) mentioned in Art 1A(2).  The persecution must be ‘for reasons of’ one of those categories.  This qualification excludes indiscriminate persecution which is the product either of inhuman cruelty or of unreasoned antipathy by the persecutor towards the victim or victims of persecution.  Persecution of that kind is a general, non-discriminatory denial of fundamental rights and freedoms.  The qualification also excludes persecution which is no more than punishment of a non-discriminatory kind or contravention of a criminal law of general application.  Such laws are not discriminatory and punishment that is  non-discriminatory cannot stamp the contravener with the mark of ‘refugee’.  But the categories of discrimination mentioned in the definition are very broadly stated, especially the category of ‘membership of a particular social group’.

McHugh J said at 398-399:

Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee.  A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens.  The enforcement of a generally applicable criminal law does not ordinarily constitute persecution. Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group.  Thus, a law providing for the detention of the members of a particular race engaged in a civil war may not amount to persecution even though that law affects only members of that race.

However, where a racial, religious, national group or the holder of a particular political opinion is the subject of sanctions that do not apply generally in the State, it is more likely than not that the application of the sanction is discriminatory and persecutory.  It is therefore inherently suspect and requires close scrutiny.  In cases coming within the categories of race, religion and nationality, decision-makers should ordinarily have little difficulty in determining whether a sanction constitutes persecution of persons in the relevant category.  Only in exceptional cases is it likely that a sanction aimed at persons for reasons of race, religion or nationality will be an appropriate means for achieving a legitimate government object and not amount to persecution.

The issue of the operation of laws of general application and whether their enforcement may enliven the definition of refugee was addressed less directly by Dawson J at 389 and Kirby J at 419.

It is not entirely clear what the findings of the Tribunal were about the status of the law whose operation the applicant would be exposed to if he was to return to Iran.  However the better view of the Tribunal’s reasons is that it concluded the applicant would be prosecuted under the criminal code in the “Criminal Public Court” but for an offence which had its origins in Islamic law and which proscribed adultery.  It appears the Tribunal was proceeding on the basis that it was a law of general application notwithstanding its genesis in Islamic law and even if it was given effect to by judges who were also clerics.  Given that it was a law of general application it was necessary for the Tribunal to inquire whether sanctions arising from the operation of the law applied generally and not in a way that was discriminatory.  That is, in a way that would constitute persecution.  This it did not do.  It is quite conceivable that a Muslim in Iran might believe adultery was wrong and that to engage in it was contrary to his or her religious beliefs.  Nonetheless that person might be involved in an adulterous relationship for temporal or worldly reasons and notwithstanding his or her religious beliefs.  It appears from the discussion by the Tribunal of the implementation of the criminal code that the Muslim in the situation just posited would be exposed to the same penalty as the applicant.  If so, the treatment of the applicant would not, on its face, have the appearance of being discriminatory and thus would not constitute persecution.

This question of whether the law was applied in a way that was discriminatory was not addressed.  This, in my opinion, discloses a reviewable error of law.  A range of considerations might arise when the law is recognized as one of general application.  Whether the law was applied in a way that was discriminatory would depend on the facts as they have been or might be found by the Tribunal, but the considerations which are relevant are conveniently catalogued in the judgment of McHugh J.  I think the preferable course is not to embark upon what, in part, would be a speculative consideration of them all but to remit the matter to the Tribunal for it to do so.  The Minister submitted that the Court should order that the Tribunal’s decision should be set aside and the appeal to the Tribunal dismissed.  That course is not only inappropriate given what I have just said but also because the applicant’s contention that he is a refugee on the grounds of political opinion was not determined.  This is a matter for the Tribunal to consider and determine: see Minister for Immigration and Ethnic Affairs v Guo (1997) 71 ALJR 743 at 765-766 per Kirby J.

I order that the Tribunal decision be set aside and the matter remitted to the Tribunal to be reconsidered according to law.

I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore

Associate:

Dated:             6 August 1998

Counsel for the Applicant:	J Basten QC with T Reilly
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	R Beech-Jones
Solicitor for the Respondent:	Kessels & Associates
Date of Hearing:	11 February 1998
Date of Judgment:	6 August 1998