NABD v MIMIA

[2003] HCATrans 715

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S323 of 2002

B e t w e e n -

NABD

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 13 MAY 2003, AT 2.18 PM

Copyright in the High Court of Australia

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

MS J. HUNT:   I am appearing as representative for the applicant.  I am not a lawyer.  I am with the Jesuit Refugee Service.

GLEESON CJ:   Yes, Ms Hunt, what is your application?

MS HUNT:   I wanted to support the applicant’s request for an adjournment on the basis that he does have a barrister at this stage.  I have found somebody to look at his papers but only returned from overseas myself yesterday and so had very limited time to address this.

GLEESON CJ:   Just take a seat and we will see what Mr Markus has to say.

MS HUNT:   Certainly, thank you.

MR MARKUS:   Thank you, your Honours.  Your Honours, my instructions are to oppose the application for the adjournment.

GLEESON CJ:   Mr Markus, are you aware that a few weeks ago we dealt with a case involving two Bangladeshi men that seems to raise an issue similar in some respects to that raised by this case?

MR MARKUS:   I am aware of the matters that your Honour is referring to.  In my respectful submission, this case does not raise those issues for reasons I am happy to address.

GLEESON CJ:   Go ahead.

MR MARKUS:   Thank you, your Honours.  Your Honours, in my submission, this application ultimately turns on fairly clear findings of fact.  If I could refer your Honours to page 12 of the application book which contains page 12 of the decision of the Refugee Review Tribunal.  The relevant factual finding of the Tribunal is perhaps most concisely summarised at around line 50 of that page. 

Your Honours, the Tribunal found, having noted that it was not wholly satisfied that the present applicant has genuinely embraced Christianity, at least from the outset, rather than engage in a conversion for convenience, that even accepting that he has now done so, the available evidence indicates 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 the real chance of persecution.

GLEESON CJ:   I understand that and then if you look at page 24 at line 26 you see the way that was dealt with by the primary judge in the sentence beginning “It is only”.

MR MARKUS:   Yes, your Honour.

GLEESON CJ:   Then, if you look at page 52, line 35, you will see the way that is dealt with by the Full Court.  That may be right, but it raises the issue that was debated in relation to those Bangladeshi men, does it not, where, as I understand it, it was argued that it amounted to persecution if they could not proselytise?

MR MARKUS:   I think, your Honour, that in relation to the Bangladeshi individuals it was a slightly different point but I understand what your Honour is saying.  The question relevantly is that this Tribunal imposed some limitation on the way that this particular applicant is to practise his faith on his return to his country of origin.

GLEESON CJ:   Yes.

MR MARKUS:   Your Honours, in my submission, on the clear findings of fact by this Tribunal, that question simply does not arise and it does not arise because of the finding that the applicant has practised his faith in a particular way in Australia which did not involve proselytising.

GLEESON CJ:   The circumstances are fairly different in Australia, are they not?  You may be able to express your Christian belief in Australia without having to try and convert anybody else, but it may be that in the environment to which he wants to return that would become an issue.

MR MARKUS:   The issue has been considered by the Tribunal and the factual finding made by the Tribunal was that it was not a core element of this applicant’s faith that he engaged in active proselytising.  That is a factual finding.  It does not involve any limitation upon this applicant’s ability to practise his religion the way he has practised it in the recent past in Australia.

McHUGH J:   But that may be a serious mistake – it may not be – but does it not raise a very important question of principle?  At page 12 the Tribunal says:

Those who worship privately and maintain a low profile will be very unlikely to suffer any adverse attention . . . Converts are generally tolerated as long as they maintain a very low profile.

And so the question is, is it persecution to prevent a person or to require a person to maintain a low profile in connection with his or her religious beliefs?  If it is, then this man may have a case, just as the homosexuals might have one in the Bangladeshi case.

MR MARKUS:   Your Honour, if I can respond to that point this way.  In my submission, the Tribunal is not saying that it could not amount to persecution in certain circumstances.  That is not what the Tribunal is saying.  What the Tribunal is doing is looking at the particular instances of this applicant’s practice of his faith, looks at the country information material ‑ if I am correct your Honour has quoted in fact what is in the country information material as background ‑ and putting the two together the Tribunal predicts how this applicant is likely to want to practise his faith on his return to his country of origin, looks at the question that that type of practice will result in adverse consequences to him and comes to a factual conclusion in relation to that.

I am not suggesting, your Honours, that there could not be an important issue along the lines that your Honours are putting to me.  What I am saying is that this is not an appropriate vehicle to test those issues because of the factual findings this Tribunal has reached in relation to this matter.

McHUGH J:   Yes, but it puts all these applicants in a catch‑22 situation, particularly those who do something in the country from which they have fled.  Because of the oppressive nature of the regime, they are required to keep a low profile.  Then it is put against them when they come out here if they are sent back they will be all right, they can continue to keep the low profile.  That is the issue in the Bangladeshi case and it looks as if it might be an argument in this case, but this concerns a person’s liberty.  Why is not he entitled to an adjournment?  Mr Bozic is going to look at the matter, Mr Bozic may advise him he has no case, but why should not a person in this position not have an opportunity to have his case argued by senior counsel, particularly when the point is under reserve judgment in the High Court at the present time?  It may not be, you may very well be right, but why should he be refused an adjournment?

MR MARKUS:   Your Honours, the Federal Court decision in this matter was made in August last year.  This applicant has not been denied an opportunity to try to seek some legal assistance or advice.  I note in particular, your Honours, that he was represented before the Federal Court before a single judge by counsel, he was represented in the Full Court by counsel.

Your Honours, the letter, which I do not think has been expressly referred to but I understand that your Honours have a copy of a letter that

has been written by or on behalf of the applicant seeking the adjournment.  That letter is conspicuously silent on what attempts have been made by the applicant during the ensuing period since August 2002 to obtain legal assistance, whether he has taken any steps, whether those steps have resulted in him having obtained some advice.  None of those matters are addressed.  If the impression created in this letter is that he has had access to no legal advice, then that, in my respectful submission, is not necessarily a correct impression.

I do not wish to lead evidence from the Bar table, that is why I referred to the fact that this particular applicant has been represented by counsel in the proceedings below and, in my submission, it is not an unreasonable assumption to make that he has received some advice following the judgment of the Full Court of the Federal Court.

GLEESON CJ:   I think we have your point, thank you.

MR MARKUS:   Thank you.

GLEESON CJ:   On the application of the applicant, this matter will be adjourned to a date to be fixed by the Registry.

AT 2.29 PM THE MATTER WAS ADJOURNED