MZXAY v MIAC & Anor

[2007] HCATrans 814

[2007] HCATrans 814

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M105 of 2007

B e t w e e n -

MZXAY

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

KIRBY J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 DECEMBER 2007, AT 2.34 PM

Copyright in the High Court of Australia

MR M.W. GERKENS:   If the Court pleases, I appear for the applicant.  (instructed by FCG Legal Pty Ltd)

MR C.J. HORAN:   If the Court pleases, I appear for the first respondent.  (instructed by Australian Government Solicitor)

KIRBY J:   Yes.  We have a note from the Registrar indicating that the second respondent has submitted to the orders of this Court, save as to costs.

MR GERKENS:   That is as I understand it, your Honour.

KIRBY J:   Yes, very well.  You proceed with your oral argument.

MR GERKENS:   Thank you, your Honour.  This is an application made out of time, your Honours.  Do you wish me to address you in relation to that at this stage?

KIRBY J:   Is there a problem with the time, Mr Horan?

MR HORAN:   We neither consent nor oppose the grant of an extension.

KIRBY J:   I think you should proceed with the substantive argument on the basis that if we were minded to grant leave on the substantive issue then we would cure the time default.

MR GERKENS:   Thank you, your Honour.  The issue in this matter, your Honours, is the view taken by the Refugee Review Tribunal in its decision as to the concept of Christianity in terms of religious persecution.  His Honour Justice Jessup in the Federal Court, on appeal, refused to interfere with that view because his Honour saw it as a finding of fact and therefore inappropriate to deal with in administrative review proceedings.  We say, your Honours, that if it was such a finding it was a jurisdictional fact and therefore challengeable on the basis of Wednesbury unreasonableness.  We also say that the Tribunal misapplied ‑ ‑ ‑

KIRBY J:   That is a very hard one to get up though, as you know.  In all my years here and in all those years in the Court of Appeal I can count them on one or two fingers.

MR GERKENS:   I am hopeful, your Honour.  We also say, your Honours, that the Tribunal misapplied the relocation test by failing to consider whether the applicant would actually relocate, as the Tribunal said it was reasonable to do, and to take that consideration into account when determining whether or not the applicant had a well‑founded fear of persecution.

If I could move on to unreasonableness.  It is my submission that the Tribunal acted on an unreasonable view of the concept of Christianity in a manner which would debar persons who committed themselves to Christ and his teachings and based their lives on those teachings from protection under the Refugee Convention if they did not go further and formally join a Christian denomination.  That is the basis of our argument, your Honours.

KIRBY J:   Do you have to present it only on the paradigm of Wednesbury unreasonableness or is there not an alternative way that is discussed in the cases where the Tribunal misdirects itself by asking the wrong question which is on an assumption that Christianity is always a denomination‑based religion?

MR GERKENS:   That is so, your Honour.

KIRBY J:   I think Mr Horan might get himself ready to answer a question on that because Wednesbury unreasonableness is very hard to get up on, whereas there are a lot of refugee cases, as you might know, which address the alternative proposition that the Tribunal misdirected its attention in looking at the facts and therefore committed a jurisdictional error.

MR GERKENS:   Yes.

KIRBY J:   That was the matter that concerned me about the case.  It may be that Mr Horan has an answer to it, but it is what concerned me about it because many Christian beliefs are non‑church and non‑denomination and the convention which is imported into section 36 is concerned with persecution on the ground of religion not on the ground of Roman Catholicism or Anglicanism or Seventh Day Adventism or anything else, it is religion.

MR GERKENS:   Yes, your Honour.  We did make this application on the basis of jurisdictional error and I note what your Honour says.  I would have to say that my learned friend has not had particulars in relation to what your Honour has just said.

KIRBY J:   It may be just another way of expressing the unreasonableness point.

MR GERKENS:   Yes, your Honour.

KIRBY J:   Anyway, you proceed with your argument.

CRENNAN J:   In relation to the facts was a particular religion isolated?  I thought it was.

MR GERKENS:   There was some talk about the Church of God, but it was a situation, your Honours, where he was trying different religions and at the time he was actually attending the Church of God but he had not made any decision to actually attend the Church of God and in fact my recollection of the evidence is that he was looking for a particular denomination which would suit his beliefs.

KIRBY J:   Yes.  As I understand it, the Tribunal accepted his statement that he had renounced – maybe not the right word, but he was no longer willing to accept Islam.

MR GERKENS:   That is right, but had not formally converted.

KIRBY J:   No.  Is it not really just a question of fact as to whether his association, such as it was with Christianity, was whether he had, as it were, decided to take a different religion because that is the offence under Islam, as I understand it, to embrace another religion, having been born into or accepted Islam?  That is the source of the potential persecution.

MR GERKENS:   The problem is, we say, on the evidence available, the Tribunal should have found that his – I think the words used were “his commitment to Christ” amounted to him being a Christian, whereas a fair reading of the decision, in our submission, shows that the Tribunal went further and said, “That is not enough to be recognised as a Christian, you must belong to a Christian denomination” and it is my view that that creates a situation where a person, for example, who comes to a belief in Christ and his teachings and bases his life on those teachings cannot obtain protection under the Convention because he has not actually formally converted to a Christian denomination.

Now, if, for example, our client had looked at every Christian denomination and found in every denomination a particular tenet of that particular denomination which he could not consciously accept, for example, he could not accept that it was a sin to eat meat on Good Friday or not to attend Mass on Sunday, that has nothing to do with Christ’s teachings, it is a rule of that particular denomination.

CRENNAN J:   Justice Jessup dealt with this at page 59 of the application book in paragraph 22.

MR GERKENS:   Yes, your Honour.

CRENNAN J:   His Honour said that the issues which you are now mentioning were, “pre-eminently ones of fact” and if you look at paragraph 22 his Honour deals with the fact that it was one aspect only of the Tribunal’s consideration that there had been no baptism and his Honour said:

The Tribunal was prepared to have regard to all of the aspects of the appellant’s interest in the Christian faith and his active involvement in Christian practices . . . The relevant questions were fairly and fully considered –

Do you point to some error in his Honour’s analysis?

MR GERKENS:   Only in respect – I believe his Honour did not turn his mind to the very point that I have raised, your Honour, that is, he did not turn his mind to the issue of what really amounts to Christianity.

KIRBY J:   Yes.  Is that essentially what you need to say?

MR GERKENS:   Essentially, your Honour.  Just to reiterate that if every particular Christian denomination contained some kind of tenet which a person who believed in Christ and followed Christ’s teachings could not conscientiously accept, then that person is debarred from protection under the UN Convention and that is what I say is the problem with the decision in this case.

KIRBY J:   It may be a problem, but the difficulty is the way it was run before the Tribunal and also in the Federal Court and is pleaded before this Court.  I have seen this before where the Tribunal has disbelieved an applicant for religious persecution on the basis that the applicant’s evidence on the Holy Trinity was not convincing to the Tribunal.  Well, there would be many Australian Christians who could not explain the Holy Trinity and therefore that has always seemed to me as a source of possible misdirection of the Tribunal of the issues that it should be addressing, but that is not the way you fought this case.  The case was fought on a question of embrace of a Christian denomination as being a manifestation of a Christian and non‑Islamic faith.  That is the difficulty we face at this level of the hierarchy and that we are limited only to intervention for jurisdictional error or other legal error.

MR GERKENS:   Yes.  Unfortunately, my client represented himself throughout these proceedings and he is left in that situation.

KIRBY J:   Yes.  We understand the difficulties, but is there anything else that you wish to say?

MR GERKENS:   If I could just move to the other issue in relation to relocation?

KIRBY J:   Yes.  We have looked at relocation recently I think in a couple of cases.

MR GERKENS:   Yes, your Honour.

KIRBY J:   What is there new for us to say on this subject?

MR GERKENS:   Appellant S395 basically says – the majority in that case basically say that when there is an issue of relocation raised that the Tribunal should actually make a finding as to whether the applicant is actually likely to relocate and the decision in relation to whether or not there is a well‑founded fear should be made on the basis of that finding.  It is my submission that that was not the situation in this particular matter and that that again is a jurisdictional error which destroys the foundation of the Tribunal’s decision.

CRENNAN J:   Is not the test not whether he was likely to relocate but whether he could reasonably relocate?

MR GERKENS:   That is the real issue that is under consideration.  It is my submission, however, that the effect of – I think it is Appellant S395 is to the effect that the – and I think it was – if I could just read the headnote, your Honours, it may help.

KIRBY J:   I think we know 395.  It is a repeat performer in this place.

MR GERKENS:   Yes, your Honour.  Basically, the majority in that case were of the view that where relocation seemed a reasonable option, it was nevertheless part of the Tribunal’s decision‑making process to actually consider whether or not the appellant would actually relocate or was likely to relocate.  That was then a factor that was taken into account in the final process of determining whether or not there was a well‑founded fear of persecution.  In this case, in particular, your Honours, if you go application book 13, the issue was fairly raised by the applicant in that around about line 16:

The applicant stated it was not his family but him who kept in contact . . . He stated he persisted contacting her –

that is his mother –

because she was his mother and he still loved his family . . . The applicant stated there would be a day when he would have enough courage to tell his family they were doing the wrong thing and they should join him, whether they wanted to or not.

It is my submission, your Honours, that that raised a real issue for the Tribunal to consider in relation to whether or not he was likely to actually relocate because he clearly shows an inclination to try and accommodate himself with his family.  That is all I wish to put to your Honours.

KIRBY J:   Yes, thank you very much, Mr Gerkens.

MR GERKENS:   Thank you, your Honour.

KIRBY J:   Mr Horan, what do you say that it is not really a Wednesbury unreasonableness but a misdirection question.  It does seem to be addressed in paragraph 21 of Justice Jessup’s reasons – he does appear to consider and express the applicant’s case as being one where the Tribunal had misdirected its attention.

MR HORAN:   Yes.  If your Honour pleases, the formulation of the ground does not assist the applicant any further in that the Tribunal did not misdirect itself as to the definition of Christianity, nor did it impose any requirement that the applicant formally convert.  It simply was assessing and was required to assess those matters as part of its assessment of the nature ‑ ‑ ‑

KIRBY J:   Do you accept that it would be a mistake for the Tribunal, focusing on the language of the Convention which is a well‑founded fear of persecution on the ground of religion to, as it were, import into that all the baggage of embrace of a particular denomination or of a particular code of the Christian faith because the message of Jesus was to follow him and was not to follow a particular religion or denomination – a particular denomination of the Christian religion.

MR HORAN:   For present purposes, one can accept that if a Tribunal treated the word “religion” as meaning formal religion rather than a broader idea of religious belief, that may be a misunderstanding of the Convention ground, but that is not this case because the Tribunal properly looked at the nature of the claims that were made by the applicant and the facts of the case in order to assess his commitment to Christianity not his membership of any particular church.

In that regard there was a finding which appears at application book 29 that the Tribunal was not satisfied that the applicant was a dedicated worshiper of the Christian faith and then further down at line 22:

the Tribunal is satisfied the applicant is not really committed to Christianity and would not be perceived as an active adherent of the Christian faith.

In coming to those conclusions one of the things the Tribunal took into account was whether or not the applicant had formally converted to a Christian denominational church, but the question of formal conversion was something which arose out of the applicant’s claims and when one looks – I will not go through in detail but at pages 9 to 11 the questions that were asked at the hearing show the sequence of the Tribunal’s considerations.  The sequence of questions relate to when he started questioning his Muslim faith, when he stopped practising his Muslim religion, when he decided to practice Christianity, how he practiced Christianity and then whether he belonged to a particular church.

When it came to the last of those questions it noted that his adviser had said, and he repeated at the hearing, that he intended to convert to – formally convert to a Christian church that he was attending and the Tribunal was exploring in that context why it had taken him so long to take that step as part of its assessment of the genuineness of and depth of his commitment.  In that context, it is clear that all of those matters were part of the Tribunal’s fact‑finding inquiry and it is clear from that that they did not involve any artificial hurdle that required the applicant to demonstrate he was formally a member of any particular church in order to make out a Convention ground of religious ‑ ‑ ‑

KIRBY J:   When you say this was just a series of factual considerations but all directed to the correct question, which is the Convention question as distinct from embracing a particular denomination, because the census shows that most Australians would still identify themselves as Christians, yet most of them do not go to church.  Do not.

MR HORAN:   No, but it becomes more refined in one respect in the context of this particular claim because what the Tribunal was looking at was what the applicant would do and how he would be perceived if he were to return to his home country.

KIRBY J:   That is right.

MR HORAN:   In that context, these aspects of practice of Christianity and belonging to a church take on more significance than they might domestically.

KIRBY J:   Because of the issue of apostasy and persecution for renouncing Islam. 

MR HORAN:   Yes.

KIRBY J:   I notice that the Tribunal did not actually say that he renounced Islam it just said:

the Tribunal is satisfied the applicant no longer practised his Muslim faith and was in search of some other religion.

MR HORAN:   Yes.  There had also been – he had been disowned by his parents.

KIRBY J:   Yes, but that advertisement was simply that he had been disowned for disloyalty.  It did not say exactly what it was about.

MR HORAN:   Yes.

KIRBY J:   That is to say the objective evidence as distinct from what was said.  Yes.  We do not need further assistance from you.

MR HORAN:   If the Court pleases.

KIRBY J:   Is there anything in reply to that, Mr Gerkens?

MR GERKENS:   Only very briefly, your Honours.  If you go to application book 11 at line 20:

The Tribunal noted he had been going to the revival centre for a long time and asked why he had not formally joined that religion.  The applicant stated if the Tribunal needed a piece of paper he would give it one.  The Tribunal put to the applicant it was asking him this because this was part of a person’s religious identity.  It put to the applicant it accepted he was not happy with the Muslim faith and he was not a practising Muslim however it need to understand his commitment to another faith, and part of that commitment was some formal recognition of his membership of that faith.

It is my submission that that is not just by inference, that is a direct statement to the effect that formal recognition of membership of a faith is what the Tribunal sees as being necessary for a person to be a Christian.  If your Honours please.

KIRBY J:   Yes.  Thank you for your assistance, Mr Gerkens.  Justice Crennan will give the reasons and pronounce the orders of the Court.

CRENNAN J:   This application concerns whether a Refugee Review Tribunal’s conclusions in relation to Christianity, in particular the emphasis placed on formal conversion to Christianity, was so unreasonable that no reasonable decision‑maker could have made them.  (Associated Provisional Picture Houses Ltd v Wednesbury Corporation [1948)]1 KB 223). An alternative proposition, dealt with in oral submissions, was the question of whether the Tribunal misdirected its attention in relation to the relevant Convention ground.

A second issue is said to arise as to whether a Tribunal, when considering the relocation principle, is required to assess whether the applicant would actually relocate and to assess the likelihood of persecution on the basis of that finding.

The Federal Court, Justice Jessup, below dismissed an appeal from a decision of the federal magistrate, Federal Magistrate O’Dwyer, dismissing an application for review of the decision of the Tribunal affirming a decision of the Minister’s delegate not to grant protection visas to the applicant and his family. 

The application does not give rise to a question suitable to a grant of special leave and the interests of justice do not require such a grant.  Special leave to appeal is refused.

MR HORAN:   We would seek costs, your Honour.

CRENNAN J:   Refused with costs.

MR GERKENS:   If your Honours please.

KIRBY J:   The Court will now adjourn for the two remaining matters.  The Court will be reconstituted.

AT 2.59 PM THE MATTER WAS CONCLUDED