NAEB v MIMIA

[2005] HCATrans 101

[2005] HCATrans 101

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S148 of 2004

B e t w e e n -

NAEB

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 MARCH 2005, AT 2.02 PM

Copyright in the High Court of Australia

MR B. LEVET:   If it please the Court, I appear for the applicant, your Honour.  (instructed by Michaela Byers)

MR R.J. BROMWICH:   If it please the Court, I appear for the respondent.  (instructed by Clayton Utz)

McHUGH J:   Yes, Mr Levet.

MR LEVET:   Your Honours, this is a case which ultimately raises the issue of religion and the extent to which the Commonwealth can effectively limit religious practice.  In some ways the case has shades of S395.  I say that because this is a case involving, as your Honours would be aware, a practitioner of Falun Gong.  He is a person who before the Tribunal asserted that it was a religion, in respect of whom material was placed before the Tribunal at the behest of the Minister the independent country information which characterised it as a religion, and where it has not been suggested that it was not.

The Tribunal member found that whilst he had some involvement with Falun Gong, he was not a regular committed or dedicated member of Falun Gong.  There was a finding that the authorities probably did not know that he was a Falun Gong practitioner and would not know in the event that he continued to practise privately at his home.  So much is similar to S395/2002. 

In effect there is, whilst not a requirement for discretion, an assumption that he will be discreet, but thereafter the analogy perhaps becomes slightly different.  As your Honours will recall, in S395 there had been a finding in the Tribunal in relation to gay persons in Bangladesh, that whilst homosexuals could live discreetly in Bangladesh, they could not live openly and, were they to do so, it would invite all sorts of harm, including and up to bashings by the police, which it was conceded would be Convention-type harm.

In the present instance, the finding was by the Tribunal that, were the authorities to become aware that he was a practitioner of Falun Gong, the most likely thing that would happen would simply be that he would be required to recant, in other words, to renounce his belief in the practice of Falun Gong.

McHUGH J:   Mr Levet, I am afraid I am a bit lost here.  Have you filed a completely fresh summary of argument in this matter?  Is the summary of argument you rely on the one that is set out at page 82 of the book?

MR LEVET:   Yes, your Honour.

McHUGH J:   Well, the three special leave questions there have nothing to do with what you have been talking about.

MR LEVET:   I suppose to this extent, your Honour, that as far as Falun Gong is concerned, the finding of the Tribunal was that because his attachment was insufficient, he would in all probability recant, and because all he was being required to do or be likely to be required to do would be to recant, that this itself was not a ground for persecution.

McHUGH J:   But what is your point?  I mean, as the respondent points out, the grounds of appeal or the summary of argument make no reference to any of the reasoning of the Tribunal.  You have three questions stated:

1.        Whether Falun Gong is a religion for the purpose of section 116 of the Australian Constitution;

2.        Whether the Respondent in determining refugee status can apply a test of intensity of religious belief;

3.        Whether the Federal Court has jurisdiction to apply a test as to intensity of religious belief.

None of those matters were raised before the Full Court, and the matters that were raised before the Full Court do not appear.

MR LEVET:   No.

McHUGH J:   Well, what is your point?

MR LEVET:   Your Honour, the point essentially is this.  We say that the error below was to decide the case by reference to how attached the applicant was to the religion of Falun Gong.  If I can take you to page 83 of the application book, at paragraph 4.  The assertion of the respondent in the court below:

It is a quite unremarkable conclusion, to assess the strength of that faith by reference to public attendance with other followers of that faith.

Your Honours, in my respectful submission, it is open to use evidence to assess whether a person is an adherent or a practitioner of a particular religious faith but, once that threshold has been met, it is not open to attempt to adduce evidence of the strength of adherence to that faith in an attempt to ascertain whether the requirement to renounce that faith would of itself amount to persecution.

McHUGH J:   But the case before the Tribunal was not conducted on any religious basis, was it?

MR LEVET:   I suppose to some extent there was some reference to religion contained within it.

McHUGH J:   That is right, and it was incidental.

MR LEVET:   The applicant makes a visa application describing his religion as Falun Gong, that is at page 83 at paragraph 3.  He gave evidence to the Tribunal, sought to take a Falun Gong oath.  In his evidence he characterised Falun Gong as a religion and describes the attributes of Falun Gong in terms which come within the High Court test in Church of New Faith v Commissioner of Payroll Tax.  So he himself before the Tribunal was in no doubt that what he was seeking in effect was to be characterised as a member of a ‑ ‑ ‑

McHUGH J:   Yes, but the case did not turn in any shape or form on questions of religion, did it?

MR LEVET:   No, it was largely brushed aside.  It was treated almost as if it were a social group of such a nature as a bowls club but, in my respectful submission, he has asserted that it is a religion.  There was material before the Tribunal in the way of independent country information which describes it as a religion, and when you get as far as the Full Court in the court below, the respondent is clearly saying that there is nothing remarkable about assessing the strength of a faith by reference to extrinsic evidence.  Your Honours, that is in essence what we say that the case is about.

It was said by the Tribunal and I quote – this is at paragraph 5 on page 83 of the application book:

I am prepared to accept that the Applicant has had some involvement with Falun Gong, either in the People’s Republic of China, or in Australia or both –

and then the Tribunal member then went on to say:

However, I am satisfied that the Applicant is not terribly familiar with Falun Gong and that he has not practised publicly for over three months.

He goes on indeed to make a ‑ ‑ ‑

McHUGH J:   But the case failed at first instance because the Tribunal said that it did not accept that the applicant was a dedicated follower of Falun Gong at all, and did not consider that such a requirement as was imposed would constitute persecution.

MR LEVET:   Yes.

McHUGH J:   What does religion have to do with it?  What does it matter whether they looked at it as a social group or as a religion?  That is not ‑ ‑ ‑

MR LEVET:   I suppose it might assist, your Honour, I think the term used in the Tribunal in fact was “dedicated, regular or committed follower of Falun Gong”.  If you were dealing with a case – let us leave aside Falun Gong for a moment, but if you were dealing with, say, a Catholic, if you are looking at whether renunciation of his or her Catholic faith would constitute persecution, is the question whether he was a dedicated, committed and regular practitioner of Catholicism, or is the question whether he was a Catholic.  What has been bundled up is this qualitative aspect of it, so instead of asking simply question one, “Is he an adherent of Falun Gong?”; question two, “Is Falun Gong a religion?”, it is asked, “Is he a dedicated, committed and regular follower of Falun Gong?”  Answer, not convinced as to his dedication, commitment or regularity, and accordingly, that is in globo answered in the negative. 

It is a bit like saying of a Catholic, “Look, don’t accept that this is a theologian, don’t accept that this is somebody that goes to mass once a week.  His attendance is sporadic, his level of theological knowledge is not high, therefore, he is not a dedicated, regular and committed Catholic, therefore it can’t be of any great moment to him were he to be required to renounce his Catholic faith”.

If you substitute any of the mainstream religions of Australia for the words “Falun Gong” and then apply the test, the test that was applied by the Tribunal, in my respectful submission, the Tribunal and each of the courts below have erred in the application of that test.

McHUGH J:   Well, it is a bit unfair to say that the Full Court erred.  You raised a ground of appeal for the first time relying on S395, abandoned the arguments that had been put at first instance and now you have another set of arguments, none of which were raised before the Full Court.  I mean, there really has to be an end to this sort of thing, Mr Levet.

MR LEVET:   Yes.  Your Honour, if I can take you to page 68 of the appeal book, that was his Honour Justice Dowsett in the Full Court, at about line 2247:

However, the Tribunal accepted that he had some involvement with Falun Gong either in China or in Australia or both, suggesting that he was at least, a member of an amorphous “group” of Falun Gong adherents, which ground included persons having only peripheral interest in the subject and/or practising in a sporadic way.  I will proceed upon the basis that he claimed fear of persecution for such group membership.  On that basis, it is probably unnecessary to say anything more about Falun Gong as a religion or as involving political opinion.

McHUGH J:   Well, the Full Court accepted that persons practising Falun Gong have been persecuted in China over many years.  They found as a fact that your client was not really a member.  So the case turned on a question of fact, whatever other way you seek to rely on it.

MR LEVET:   Your Honour, if it turned on the threshold question of “Was he a member of Falun Gong?”, and were it found that he was not a member of Falun Gong, then I would have no argument before your Honours, but that is not the question that was asked.  The question that was asked was, “Was he a committed, dedicated and regular adherent of Falun Gong?”  Answer, “No.”  And it is bundling it up like that in a way that in any even court of summary criminal jurisdiction would be unacceptable.  There are four questions inherent in that proposition.  Is he a member of Falun Gong, No 1.  Is he committed, No 2.  Is he dedicated, No 3.  Is he regular, No 4.  To round them all out together and say “No, he’s not dedicated, committed, regular, therefore he’s not Falun Gong” is, in my respectful submission, not a proper exercise of judicial discretion.

Indeed, your Honours, if it was found that he was a member of Falun Gong and that Falun Gong itself was a religion, then it would not be proper to embark upon, we would submit, an examination of the intensity of his attachment to Falun Gong.  A court is not equipped to do so and in any event we would say that that does offend section 116.  So really here, your Honours, the point, he having explicitly characterised himself as Falun Gong, he is characterised as being irregular, not sufficiently committed, not necessarily dedicated.  If I can take you to page 60 of the application book, that is the part of the joint judgment of their Honours Justices North and Lander in the second paragraph:

All of these considerations led the Tribunal to the view that the appellant was not a committed follower of Falun Gong.  The Tribunal found that he was not very familiar with Falun Gong, and his practice was limited.  It found only that he had “some involvement”.

In my respectful submission, that gets him over the threshold that he is a follower of Falun Gong, albeit not very familiar with it.  But then their Honours say at 1947:

The substance of these reasons ‑ ‑ ‑

McHUGH J:   Look, really we have to stop this - I will call it nonsense because that is what it is – creating new arguments based on some passage in a completely different context.  The only issue before the Full Court was whether or not the reasoning of the Tribunal was contrary to S395.  It had nothing whatever to do with the sort of argument that you are now putting.  Before Justice Jacobson, there was a completely different set of arguments, all abandoned before the Full Court and, from what I can see, your argument before the Full Court is abandoned here.  You now have a different argument, and it is different again from the way the case was conducted before the Tribunal.  Now, your prospects of getting special leave to appeal in those circumstances are just about nil, Mr Levet.  There is just no special leave question raised.

MR LEVET:   Your Honour, the only thing I could say is this.  Firstly, if the justice of the matter requires it, it is appropriate that fresh matters are raised at a later appellate court.  I did not appear either before the Full Court or at any of the courts or at the Tribunal below.  In my respectful submission, the point that is before you is simply this.  If you leave aside the issue of it not having possibly being squarely raised before, it has been squarely raised that he is a member of the Falun Gong religion.  That is what his evidence says, and to a large extent it is uncontradicted that he comes as an adherent of a religion.  If he is an adherent of a religion, if there had been a finding in the court below that he was an adherent of a religion, it is, in my respectful submission, not proper to then embark upon an examination of the degree of attachment to that religion ‑ ‑ ‑

McHUGH J:   I think they embarked on that because of the way the case was conducted as to whether or not he had done what he did because of fear of the authorities, and the Tribunal rejected his case on persecution and that case failed.  I notice your time is up, Mr Levet.  Thank you.

MR LEVET:   Thank you, your Honour.

McHUGH J:   Thank you.  We do not want to hear you, Mr Bromwich.

In this matter the applicant seeks to raise three special leave questions:  (1), whether Falun Gong is a religion for the purpose of section 116 of the Australian Constitution; (2), whether the respondent in determining refugee status can apply a test of intensity of religious belief; (3) whether the Federal Court has jurisdiction to apply a test as to intensity of religious belief.

None of these grounds were argued before the Full Court, nor before Justice Jacobson nor before the Tribunal.  The arguments that were placed before Justice Jacobson were abandoned in the Full Court where a new ground of appeal based on this Court’s decision in S395 of 2002 was argued.  That was rejected by the Full Court. 

There is no ground that would warrant the grant of special leave and there is nothing about the case which suggests there has been any miscarriage of justice.  In those circumstances, the application must be dismissed with costs.

AT 2.24 PM THE MATTER WAS CONCLUDED