Plaintiff S178A/2016 & Ors v Minister for Immigration and Border Protection & Anor
[2016] HCATrans 219
[2016] HCATrans 219
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S178 of 2016
B e t w e e n -
PLAINTIFF S178A/2016
First Plaintiff
PLAINTIFF S178B/2016
Second Plaintiff
PLAINTIFF S178C/2016
Third Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
ADMINISTRATIVE APPEALS TRIBUNAL
Second Defendant
GAGELER J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 9 SEPTEMBER 2016, AT 11.44 AM
Copyright in the High Court of Australia
____________________
MR J. WILLIAMS: May it please the Court, I appear for the plaintiffs. (instructed by Russell Byrnes Solicitors)
MR A. MARKUS: If your Honour pleases, I appear for the first defendant. (instructed by Australian Government Solicitor)
HIS HONOUR: I note the submitting appearance for the second defendant. The ball is in your court, Mr Williams.
MR WILLIAMS: Thank you, your Honour. I am just loading up the iPad at this point in time. The plaintiffs are in Court today - they are sitting down the back. The first plaintiff is on the end there. She is the mother of the family.
HIS HONOUR: Yes, I have read the evidence and I have read the papers; thank you.
MR WILLIAMS: You have read that. Thank you, your Honour. So you have had an opportunity ‑ ‑ ‑
HIS HONOUR: Thank you very much.
MR WILLIAMS: Your Honour has had an opportunity to read the amended submissions and the submissions in reply?
HIS HONOUR: Yes, they are very long documents.
MR WILLIAMS: Yes, your Honour.
HIS HONOUR: You might assist me by explaining the gist of the section 116 point. I do not want all the detail, I want the pith.
MR WILLIAMS: Certainly, your Honour. Well, in a nutshell, your Honour, we say that the process of reasoning adopted by the Tribunal was in violation of limb two and limb three of section 116 and, indeed, customary international law when combined with the non‑refoulement principle and, indeed, the prohibition against death, torture, inhumane or degrading treatment.
HIS HONOUR: So if someone claims to have a religious faith is it your submission that the Tribunal is disentitled from testing the genuineness of that religious faith?
MR WILLIAMS: Your Honour, in terms of the operation of section 116, we say that section 116 applies to the making of law – in this case, the Migration Act – and, indeed, the administration of that law under section 36(2)(a), (2)(aa) and 91R(3).
HIS HONOUR: Accept all that ‑ ‑ ‑
MR WILLIAMS: Accepting that, the position is that the process of reasoning adopted by the Tribunal was to test the knowledge of the plaintiff, so test their knowledge of their religious beliefs and, indeed, question their attendance at church, and then ultimately, your Honour, come up with a finding that they were not genuine Christians and we say that that is impermissible.
HIS HONOUR: What is impermissible - the finding or the process or the questions? What?
MR WILLIAMS: Well, I think they can all – they are all impermissible in the sense that the process was that it imposed a religious observance on the plaintiffs.
HIS HONOUR: Why? How?
MR WILLIAMS: There was a test of their knowledge, and in testing their knowledge, in questioning their attendance of their religious beliefs, and when they fell short of that the Tribunal member said “I therefore find that you are not genuine”. Now, the question being, your Honour, is whether a test of knowledge of a religious faith can be regarded as a test of belief and we say that that was an impermissible imposition of religious observance under limb two. We say that under limb three that it was an interference in the free exercise of religion.
In other words, your Honour, how much knowledge does a person have to have before they are considered a genuine Christian? You could have a scenario where you have a Rhodes Scholar in Judaism, Christianity or any religion – a Rhodes Scholar, but a non‑believer and, conversely, your Honour, you could have a person who is a true believer in their faith but knows very little about it, perhaps does not attend church regularly.
So what we have in this scenario, your Honour – and this is where we say the catechism adopted by the Tribunal – the process of reasoning – was an exercise of power which falls outside of section 116, limb two and limb three. We say that in a very important point the free exercise of religion has been stated repeatedly by this Court over many, many years to be a sacrosanct principle of a free and democratic society. Indeed, there is a long tradition going back to the Conventions and the framers of the Constitution ‑ ‑ ‑
HIS HONOUR: You do not have to give me a lecture on section 116 - its application in the circumstances of the present case. Can you take me to the part of the Tribunal’s reasoning which you say best encapsulates your point that the Tribunal applied some test of knowledge?
MR WILLIAMS: Certainly, your Honour. I have a bundle of documents here, if your Honour has the ‑ ‑ ‑
HIS HONOUR: Yes. Well, I have the file and in it I have the affidavit of Mr Byrnes which attaches the very long reasons for decision of the Tribunal which I have attempted to read but I confess they are so long that I may have overlooked something that is important to your case.
MR WILLIAMS: No, thank you, your Honour. If I might just – in terms of the process moving forward, I would seek some clarification. On Monday of this week it was indicated in the Minister’s submissions that there would be a move to summarily – these proceedings should be summarily dismissed or remitted. I note that there is no summons underway and I am simply clarifying, your Honour, whether you ‑ ‑ ‑
HIS HONOUR: Well, we are proceeding under the Rules on your application where you need to satisfy me that an extension of time is warranted.
MR WILLIAMS: Certainly, your Honour.
HIS HONOUR: And you need to satisfy me that you have ‑ in any event, whether or not an extension of time was required, you would need to satisfy me at this point that you have an arguable case warranting the application moving forward in one way or another as distinct from being dismissed at this point.
MR WILLIAMS: Certainly, your Honour, and, indeed, the plaintiffs were under the impression that this matter was listed for directions and directions only.
HIS HONOUR: No, it is not listed for directions; it is listed to be dealt with on your application. Are you ready to proceed?
MR WILLIAMS: Well, your Honour, we have done everything that we can do to possibly – in three days – to get ready and proceed before your Honour. We have the bundle of documents. But I would say that this ‑ the questions of remittal, indeed the questions of extension of time and the arguable case in particular are complex areas. I would estimate the plaintiffs would need approximately three hours to be heard on that extension of time.
HIS HONOUR: You get 20 minutes and we will see how you are going after 20 minutes.
MR WILLIAMS: Okay. Thank you, your Honour. Your Honour, in terms of the question that your Honour has just posed and the contention of the plaintiffs, as I have indicated the fundamental contention is that the exercise of power under the Migration Act falls foul of section 116 in customary international law. Your Honour has asked me to direct him to the relevant sections that we say are directly on point in that regard ‑ ‑ ‑
HIS HONOUR: Well, I would ask you to direct me to the parts of the Tribunal’s reasoning that you say are directly on point.
MR WILLIAMS: Certainly, your Honour.
HIS HONOUR: That is what I would really appreciate.
MR WILLIAMS: Yes. In terms of the application to show cause, there it lists under ground 1 the particulars in terms of the imposition of religious observance and the interference in free exercise ‑ ‑ ‑
HIS HONOUR: Yes. They are the highlights, are they?
MR WILLIAMS: So, in summary, your Honour, you will note that it is approximately from paragraphs 78 to 353 ‑ ‑ ‑
HIS HONOUR: That is a lot of paragraphs.
MR WILLIAMS: Well, there are a lot of paragraphs there. I have managed to identify in those particulars under ground 1 each of the impermissible testing of religion and the impermissible interference in the exercise, or free exercise, of religion.
HIS HONOUR: Yes.
MR WILLIAMS: You will note from that there is a series of questions about the depth of their knowledge, about what happens on certain occasions, their attendance and, indeed, your Honour, if a person goes to church one day a week or 10 days a week or not, does that mean they are not a genuine Christian? At the heart of this question, your Honour, is really who gets to decide who is a genuine Christian, Jew, Muslim, Buddhist? Is it the Minister? Is it the Tribunal? Is it the Court?
HIS HONOUR: I am sorry; I am just trying to understand your submission.
MR WILLIAMS: Yes, certainly.
HIS HONOUR: There is the question of whether the applicant for a protection visa on the ground of religion genuinely holds that religion. In your submission, is the Tribunal entitled to inquire into that question?
MR WILLIAMS: Your Honour, it is subject to section 116.
HIS HONOUR: Look, I am accepting that ‑ ‑ ‑
MR WILLIAMS: No, in short ‑ ‑ ‑
HIS HONOUR: Just listen to me for a moment.
MR WILLIAMS: Certainly.
HIS HONOUR: I am accepting that the statute pursuant to which the Tribunal proceeds cannot contravene section 116. You can take that as granted.
MR WILLIAMS: Yes.
HIS HONOUR: Taking that as granted, is the Tribunal, on your submission, entitled to inquire into the genuineness of the religious faith that the person claims to hold?
MR WILLIAMS: In short, your Honour, in these circumstances, no. The way that the Tribunal deployed the reasoning in this circumstance – in these circumstances – I am not saying ever, your Honour. The plaintiffs are not suggesting, of course, that that cannot happen, but we are saying in these circumstances, in the particular process of reasoning, the Tribunal was clearly exercising power outside limb two and three of 116. Your Honour, it does so by, one, finding that the plaintiffs have been baptised; two, that they have attended church bible classes; three, that they are members of that church community - accepts that, but then makes the move to find that they are not genuine Christians, and that, your Honour, is the fatal error. It is the incorrect question.
The question is not so much whether they are genuine or non‑genuine Christians, the question is have they converted and is a conversion – is that conversion illegal in Iran and is there a real risk of harm? So, in my respectful submission, your Honour, if the plaintiffs were to return to Iran and taken before a sharia court, the sharia court would ask as a strict question, have they converted under sharia court? It would not be whether they are genuine or non‑genuine. That might go to an aggravating factor or a mitigating factor, in my respectful submission.
If the sharia court was to find, your Honour, that the conversion was not genuine and done for other purposes, that might be an aggravating factor, but the strict question, your Honour, is, is the conversion illegal under sharia? Is the law of general application in those circumstances – does it amount to persecution and is there a real risk?
HIS HONOUR: I understand what is required by the Refugee Convention. You are addressing me on the section 116 point.
MR WILLIAMS: Yes, yes. But the point is very important, your Honour. The testing of the knowledge, the questioning of the attendance led to a finding that they were not genuine and that was an imposition of religious observance or an interference in the free exercise. The Tribunal erred in its process of reasoning. If it was to accept that there was a baptism, accepts that there is conversion, the question then is, is there a real risk of harm if they are refouled? Indeed, can they be refouled when it is combined with the prohibition against death, torture, inhumane or degrading treatment? Your Honour, in terms of the processes, paragraphs 78 to 353 is identified the questions and the testing and the scrutiny of examination.
HIS HONOUR: Yes, and your particulars to ground 1 really capture the essence of your complaints about that process of reasoning, as I understand your submissions to me now.
MR WILLIAMS: Thank you, your Honour.
HIS HONOUR: Yes.
MR WILLIAMS: Thank you. Now, in terms of the appropriate paragraphs, if I can direct your Honour’s attention to 317 of the decision?
HIS HONOUR: Paragraph 317, thank you.
MR WILLIAMS: Indeed, there, your Honour – has your Honour got ‑ ‑ ‑
HIS HONOUR: Yes, I have that.
MR WILLIAMS: Yes. At 317 the Tribunal accepted – I will ‑ ‑ ‑
HIS HONOUR: Yes, I have read that. Thank you. I have read 317.
MR WILLIAMS: You have read 317. Sorry, your Honour, I just want to make sure – so, your Honour, importantly there – so we have ‑ ‑ ‑
HIS HONOUR: I have read 317.
MR WILLIAMS: You have read it.
HIS HONOUR: Thank you.
MR WILLIAMS: So that is the exception on the one hand and this is the insufficient illogicality or the evidentiary basis of the Tribunal’s decision, an error of fact is always an error in law. On the one hand they have been baptised, they attend church ‑ ‑ ‑
HIS HONOUR: Look, I understand that, I have read that.
MR WILLIAMS: Yes.
HIS HONOUR: I just need to understand the gist of your legal submission now.
MR WILLIAMS: Yes. Well, at paragraph 334 ‑ ‑ ‑
HIS HONOUR: Yes ‑ 334?
MR WILLIAMS: That is right.
HIS HONOUR: Thank you.
MR WILLIAMS: Would your Honour like me to read it? Would your Honour prefer ‑ ‑ ‑
HIS HONOUR: Is there a particular part of the paragraph you want me to read, or the entirety?
MR WILLIAMS: In its entirety.
HIS HONOUR: Just bear with me a moment. Yes, thank you.
MR WILLIAMS: Yes, your Honour. The highlighted passage there is:
the Tribunal finds that their attendance at a Christian church in Australia, baptism and other activities undertaken within any church either for religious or social purposes, was not an expression of genuine interest . . . in Christianity –
Then, at paragraph 335 ‑ ‑ ‑
HIS HONOUR: Just tell me what is wrong with that, what is wrong with the finding or the reasoning? What is wrong with it?
MR WILLIAMS: Because it is an impermissible interference by the State or an officer of the State in the private beliefs of the citizenry or the non‑citizenry alike. It was an impermissible interference.
HIS HONOUR: The interference is the inquiry.
MR WILLIAMS: That is right, your Honour. The way that the Tribunal deployed the questioning – and, in our respectful submission, your Honour, to stay within section 116 it would need to ask the question: one, has there been a conversion; two, not whether it is genuine or not but is there then a real risk of harm because of the conversion – because of the conversion if they are refouled.
Now, your Honour, if I can broaden that out just slightly, we say that on the Tribunal’s own findings that they have been baptised, there has been a conversion, so the question is whether now there is a real risk of harm under sharia law if they are returned. In terms of fleshing it out we say – in the submissions…..detail that, that once the plaintiffs reach a definition of religion as defined in the Jehovah’s Witness Case and Scientology, once they reach that broad definition of canons and dogmas and a belief in a supernatural being the authorities in Scientology and Jehovah’s Witness are clear. The State has no role to go in ‑ ‑ ‑
HIS HONOUR: They are there ‑ ‑ ‑
MR WILLIAMS: ‑ ‑ ‑ and say who is genuine and real and who is not.
HIS HONOUR: Just listen.
MR WILLIAMS: Yes.
HIS HONOUR: The authorities are clear about what is and what is not a religion. The test may not be easy to apply, but there is a legal understanding in Australia of what amounts to a religion. The question raised by your client’s claim was whether, on account of religion, they have a well‑founded fear of persecution.
MR WILLIAMS: That is correct, your Honour.
HIS HONOUR: All right. That has, you accept, an objective element and a subjective element. Your complaint is about the Tribunal’s testing of the subjective element.
MR WILLIAMS: That is – no, the objective element, your Honour. Indeed, the objective element. The subjective element only goes so far. The Tribunal has to be convinced, it has to be convinced that the objective element is met and we say that the objective finding of non‑genuine Christians is outside of its powers subject to section 116 in customary international law. It simply does not have the power.
If I can go back to your Honour’s point on there is an accepted idea of what religion is, those cases establish that that is very broad. It can be a traditional church, it could be a new church, whether it is Scientology or whether it is the older religions, but it is very broad. With respect, your Honour, the authorities are very clear that the State or courts or ministers do not get to decide which is a more genuine religion or which is not.
HIS HONOUR: I am not needing to be convinced of that proposition.
MR WILLIAMS: Thank you, your Honour. So the parallel that can be drawn from that, your Honour, then is well, if the State or the officers of the State have no role to decide which is a more genuine religion than another, then who gets to decide who has a more genuine belief. What is the correct test, your Honour? How much knowledge does a person have to have before they are considered a genuine Christian? Indeed, how often does one have to go to church before they are considered a genuine Christian?
This is, I think, the crux of the esoteric nature, the philosophical nature, indeed, the legal nature of this. What are, and indeed this is why this, in my respectful submission, is an important case to go for a special case to be tested. So what are the parameters of the role of the State in interfering with private beliefs? What is the test in that regard of who is and who is not a genuine Christian? Indeed, the Court has refrained in Scientology and Jehovah’s Witnesses from addressing those issues because of the importance of our secular democracy.
Your Honour, I would like an opportunity to go through that. I sense that you have – the 20 minutes might be coming to a close. If there is any particular area that you would like ‑ ‑ ‑
HIS HONOUR: Well, you can take this, that I have read your original submissions. I have read your revised submissions in‑chief and in reply. I have now listened to you for a significant time. If there is something more you wish to say, you should not feel constrained from saying it, but I do not need to be told things that you have already said, orally and in writing.
MR WILLIAMS: Your Honour, I might just in terms of the points that your Honour is well aware - they are the same points that are here today. The remittal cannot go back to the Federal Circuit Court. It is well established that an extension of time cannot go back to that. The extension of time application, the discretion is within the court. The plaintiffs had – the affidavits have been filed. I would read those affidavits obviously, your Honour, but they do offer a reasonable explanation in that they were simply not aware of their constitutional rights. They relied on a migration agent. Through no fault of their own they subsequently became aware of them and they took all reasonable steps to file straight away. So there is a reasonable explanation.
Your Honour, in terms – if there is not, and I think this is an important question and your Honour may have picked up on the exceptional circumstances, that normally applies where a matter has been heard previously in an inferior court and then it comes before this Court. These points have never been raised before an inferior court in this matter.
So the exceptional circumstances also, your Honour, raises a general question. Can a delay in filing extinguish a constitutional right or, indeed, can it extinguish a justification principle? I have looked, to assist the Court, on authority on that. I could not find it. My respectful submission would be that a delay in filing could never extinguish a constitutional guarantee of protection or a justification principle, but I could not assist the Court with an authority on that.
But, indeed, we say we meet the exceptional circumstances – freedom of religion and death sentence at play. There was a reasonable explanation and, indeed, your Honour, we say that if the exceptional circumstances is the appropriate test when it comes to a constitutional guarantee we meet it but we say that really all that is needed is a prima facie case and a reasonable explanation. We meet that. So a prima facie case where there are serious consequences and the plaintiff - your Honour is aware the plaintiffs face death potentially - what torture or humane degrading treatment if they are refouled on the basis of their religion. So in terms of that extension of time we meet the test.
Now, the question for your Honour really is, is it arguable and that has to be weighed – that is the weighing exercise, the extent of the delay, the reason of the delay, the prejudice to the Minister and the interests of the administration of justice. But I would highlight that the impact on the plaintiffs is important in looking at prejudice, the impact on the plaintiffs and, indeed, your Honour, we say that that must be weighed against an arguable case and for the reasons that we have highlighted in those detailed reasons and, indeed, the detailed reasons that we have provided in reply, in summary – and I hope that assisted the Court in identifying the real issues to some extent.
HIS HONOUR: I suspect you really do not want an answer to that question.
MR WILLIAMS: Well, your Honour, I did draft up potential special leave questions. Now, I am not sure whether your Honour would be willing to look at the framing of those questions.
HIS HONOUR: Why do you not hand them to me and I will have a look at them. I take it this is a distillation of your points.
MR WILLIAMS: It is, your Honour. It is indeed. It is on the page 3.
HIS HONOUR: Yes, thank you. Now, the cases you refer to in paragraph 10 ‑ ‑ ‑
MR WILLIAMS: Sorry, your Honour, yes.
HIS HONOUR: Just remind me which decisions they were. They are both Federal Court decisions.
MR WILLIAMS: That is correct, your Honour.
HIS HONOUR: One is Justice Flick, is it?
MR WILLIAMS: That is right. So, your Honour, ABX15 was before Justice Flick and on first instance it was before Judge Smith. Judge Smith in that case, your Honour, and I think this is ‑ ‑ ‑
HIS HONOUR: I have read them. I am trying to be reminded which ones they are. SZUDI – which one is that?
MR WILLIAMS: Judge Driver at first instance and Judge Siopis on appeal.
HIS HONOUR: Yes, and they are both cases which you argued – where you argued essentially the same point. Is that right?
MR WILLIAMS: Yes, but it was a succinct point. Now, in SZUDI we sought leave to incorporate the chapter – the section 116 points. Judge Driver did not think it was a genuine matter and Siopis did not think it had sufficient merit.
HIS HONOUR: Yes.
MR WILLIAMS: Notably, the Full Court, Chief Justice of the Federal Court referred those matters which incorporated the religious freedom argument to AME15 but that was never addressed because the applicant in that matter succeeded on another point and they declined. But the important case is ABX15, your Honour. Now, in that matter Judge Smith at first instance said that section 116 is about the making of law and not the administration of law and, indeed, Justice Flick agreed.
Your Honour, that would rewrite the Constitution and it would diminish the power, the effect and the character and the guarantee of section 116. It raises, your Honour, a very – what it would mean is that only laws, only the legislature would be subject to 116. It means that the administrative nature of the exercise of non‑statutory laws would be open slather. There would be no protection. Potentially, your Honour, you could have a scenario where the Executive moves to detain or deport on the basis that they are not a Muslim or not a genuine Christian, potentially.
HIS HONOUR: That is ABX15?
MR WILLIAMS: ABX15.
HIS HONOUR: SZUDI did not adopt that reasoning. Is that ‑ ‑ ‑
MR WILLIAMS: SZUDI simply found that the ‑ ‑ ‑
HIS HONOUR: It was not arguable.
MR WILLIAMS: There was not sufficient merit.
HIS HONOUR: Yes, I am sorry, not sufficient merit.
MR WILLIAMS: Whereas the Chief Justice of the Full Court of the Federal Court found that there was sufficient interest to refer those questions. Your Honour, we say that the questions of section 116, in combination with the death sentence, torture, inhumane and degrading treatment is and of itself of sufficient merit. We say that the judgment in ABX15 sufficiently rewrites the meaning and character and the protection under section 116 to such an extent that the Court – the plaintiffs seek the assistance of this Court on what is the appropriate test and who gets to decide who is genuine or not. Your Honour, those 11 or so questions there ‑ ‑ ‑
HIS HONOUR: I do find them helpful, thank you.
MR WILLIAMS: You do, yes.
HIS HONOUR: I do.
MR WILLIAMS: Thank you, your Honour. They really do go to the heart of what is a fair and free democratic society, the role of the State and the Executive and, indeed, your Honour, that is the question at the heart of it. Is section 116 only about making law or is it about the administration of law. There is sufficient conflict in the authorities and this is the real drama. We have Jehovah’s Witness Case and Scientology Case which says that section 116 is clearly about the operation – or concerns the executive power. It clearly says that.
We say that to the extent that the decisions in Ex rel Black and the decision also in Kruger – they must be distinguished. One - Ex rel Black was looking at the limb one. Limb two, your Honour, has never been settled. It is completely untested and this would be a unique opportunity for this Court to settle limb two and define the appropriate parameters in that regard.
Indeed, in Kruger – Kruger and Ex rel Black they considered only the making of law. Your Honour is well aware in Kruger it was about the Ordinance Act and the Stolen Generation. There was no finding of fact in Kruger that the Aboriginal beliefs were not genuine, otherwise, in my respectful submission, it would have fallen foul. We do say that the decision in Kruger by Justice Gaudron – it says that it is – section 116 must be about making law and the administration of law, otherwise it would rob it of its efficacy – is to be preferred. Justice Gaudron then went to distinguish it by saying there were no questions of fact that arose. It was only strictly about the law.
HIS HONOUR: All right.
MR WILLIAMS: Your Honour, if there is anything more I can do to ‑ ‑ ‑
HIS HONOUR: Your oral submissions have assisted me and the document you have handed to me has assisted me. Thank you.
MR WILLIAMS: Just in conclusion, your Honour, very briefly, we would say, with the greatest respect that these are very significant issues, very significant matters. They have far‑reaching implications for our
society and, indeed, your Honour, it would be simply inappropriate for this to be summarily dismissed today, summarily dismissed with such important questions to be resolved by this Court.
The plaintiffs do have a reasonable explanation and they do mount and meet the very low threshold of an arguable case and to be thrown out and summarily dismissed would be - in my respectful submission would not accord section 116 the importance and significance that it has in the infrastructure and foundation of our society and, indeed, it would not accord its relationship with modern standards of human rights and international law.
The notion of them being combined together and what role now does customary international law and jus cogens principles have in our society and in our legal system. Have they been adopted, have they been incorporated, has it attained a level as a jus cogens principle from which there is no derogation.
There is significant authority around the world – European Court of Human Rights, the International Criminal Court, the ICJ, my friend cites a case but you only have to go to the Israeli War Case to find that customary international law, jus cogens principles when combined with the rights of free expression are sacrosanct. They cannot be violated.
So on those three points, your Honour, we say it would be not in the interests of justice to summarily dismiss this matter. It is too important and this Court has a unique opportunity to settle the law and to clarify for plaintiffs and the public interest what it means.
HIS HONOUR: Thank you.
MR WILLIAMS: Thank you, your Honour.
HIS HONOUR: Mr Markus, I do not need to hear from you.
MR MARKUS: Thank you, your Honour.
HIS HONOUR: The plaintiffs are citizens of the Islamic Republic of Iran. The second plaintiff is the daughter of the first plaintiff. The third plaintiff is the daughter of the second plaintiff. They applied for protection visas claiming, relevantly, a fear of persecution on account of their religion. They claim to have converted from Islam to Christianity. Their applications for protection visas were refused by a delegate of the Minister on 10 July 2013.
The Tribunal affirmed the delegate’s decision on 30 June 2015. The Tribunal at that time gave lengthy written reasons in which it rejected the plaintiffs’ claims to be Christian on credibility grounds. After recounting at great length the course of evidence in which it tested their knowledge of Christianity and examined in detail their actions and their motives, the Tribunal found that the first and second plaintiffs had attended the Sydney Persian Church, had undertaken Bible studies and had been baptised, but that they had done so for the sole purpose of strengthening their claims and the claim of the third plaintiff to refugee status. The Tribunal did not accept that the first and second plaintiffs were witnesses of truth and did not accept that their conversion to Christianity was genuine. Accordingly, it did not accept that they would engage in Christian activities or otherwise identify as Christians were they to return to Iran.
By application to show cause filed in the original jurisdiction of this Court on 8 July 2016, the plaintiffs seek judicial review of the Tribunal’s decision. The plaintiffs advance three grounds in their application to show cause. Two grounds rely on section 116 of the Constitution. First, the plaintiffs argue that the Tribunal violated section 116 by imposing religious observance on them; secondly, they argue that the Tribunal violated that section by prohibiting their free exercise of religion; thirdly, and independently of section 116, they argue that the Tribunal violated their right to “free exercise of thought, conscience, religion or belief as enshrined in customary international law, which has been adopted or incorporated by the common law of Australia”.
The application for an order to show cause having been made around 11 months outside the 35‑day period for the making of such an application set by section 486A of the Migration Act 1958 (Cth), the application can only proceed with an extension of time. For that to occur, the plaintiffs must satisfy me that an extension of time is necessary in the interests of the administration of justice. Given the length of the extension, I would need to be satisfied ordinarily that the plaintiffs’ case was exceptional, taking into account the cogency of the plaintiffs’ arguments and the reasons advanced by the plaintiffs for their delay.
The explanation for the delay which the plaintiffs proffer in the affidavit evidence before me is weak. The plaintiffs sought the advice of a migration agent soon after the decision of the Tribunal. They were told about the 35‑day period for challenging the application at that time and they chose not to proceed. What changed the thinking of the plaintiffs was that in June 2016 the first plaintiff met the barrister who now appears for the plaintiffs, who then advised the first plaintiff that she and her family had an arguable case on the grounds now advanced and could file an application for an extension of time. She was not previously aware of those grounds or of the possibility of seeking an extension of time.
Weak as the explanation for the delay is, I would not regard the length of the delay or the failure of the plaintiffs to act when they were aware of the 35‑day period as fatal to the application for extension of time were I to regard the grounds now advanced as compelling. I am unable to do so. Indeed I cannot regard them as arguable. Similar arguments appear to have been put to and rejected by judges of the Federal Circuit Court and of the Federal Court of Australia in at least two cases – ABX15 v Minister for Immigration and Border Protection [2016] FCA 855 and SZUDIv Minister for Immigration and Border Protection [2015] FCA 530. In similarly rejecting the argument put in the present case, I am not to be taken to be endorsing every aspect of the reasoning of the judges in those cases.
Section 116 of the Constitution, insofar as the argument of counsel for the plaintiffs seeks to rely on it, prohibits the Commonwealth from making any law “for imposing any religious observance, or for prohibiting the free exercise of any religion”. Doubtless, the prohibition extends to a Commonwealth law which would authorise a Commonwealth officer or Tribunal to impose a religious observance or to prohibit the free exercise of a religion.
But that is not even arguably what has occurred here. The Parliament of the Commonwealth has made no law which has the purpose or the effect either of imposing any religious observance or prohibiting the free exercise of any religion. What the Parliament has done in the domestic implementation of the Refugees Convention by a number of provisions of the Migration Act is to establish, as a criterion for a protection visa, that the applicant for the protection visa is a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. By these provisions, Parliament has then imposed, first on the Minister or the Minister’s delegate and then on the Tribunal, the duty in a review of finding the facts and deciding whether or not to be satisfied that the criterion for a protection visa is met.
One of the grounds on which a person might claim to be a refugee is a well‑founded fear of persecution on account of that person’s religion. That does not have the result that section 116 of the Constitution disentitles the Minister, the delegate or the Tribunal from examining the genuineness of that person’s claimed religious belief.
In the present case, counsel for the plaintiffs points to a number of questions examined in the lengthy reasons for decision of the Tribunal. They are particularised in ground 1 of the application for an order to show cause. I cannot regard those questions, their asking, their examination or their consideration by the Tribunal as amounting individually or cumulatively to the imposition by the Tribunal of a religious test or to the prohibition by the Tribunal of the free exercise by the plaintiffs of their religion.
All that the Tribunal did here was to discharge the statutory duty imposed on it by the Act to review the delegate’s decision. The Tribunal had a fact‑finding function and was required, in the discharge of that fact‑finding function, to test the claim which the plaintiffs had themselves made. The genuineness of the beliefs that they professed was a question relevantly within its statutory remit and not denied to it by the operation of section 116 of the Constitution. It is impossible to characterise the Tribunal’s actions as anything other than engaging in a review on the merits of the delegate’s decision. It is impossible to characterise the Tribunal’s actions as imposing any religious observance, as prohibiting the exercise of religion or as violating any right to free exercise of thought, conscience, religion or belief.
As to the customary international law claim, counsel for the plaintiffs has not demonstrated how the mere testing of a factual assertion to fear persecution on a Convention ground can violate the customary international law norm to which he points. Nor has he presented an arguable case as to how that international law norm might condition the exercise by the Tribunal of its statutory function.
In the result, I am not satisfied that there is an arguable case for any of the grounds in support of the application for an order to show cause.
Accordingly, I refuse to make an order under section 486A(2) of the Act and, as a consequence of that refusal, the application for an order to show cause must be dismissed.
The orders that I make are as follows:
1.The application for an order under section 486A(2) of the Migration Act 1958 (Cth) is refused.
2.The application for an order to show cause is dismissed.
Mr Markus, I take it that you seek costs?
MR MARKUS: Only against the first and second plaintiffs, your Honour. The third plaintiff, I think, is six years old. I raise the question whether there should be some procedural order made in relation to the third plaintiff, but it is probably unnecessary if your Honour does not make a costs order against her.
HIS HONOUR: Mr Williams, you cannot resist costs against the first and second plaintiffs?
MR WILLIAMS: No, your Honour.
HIS HONOUR:
3.The first and second plaintiffs are to pay the first defendant’s costs.
MR MARKUS: If the Court pleases.
MR WILLIAMS: May it please the Court.
HIS HONOUR: Thank you very much.
MR WILLIAMS: Thank you, your Honour.
AT 12.29 PM THE MATTER WAS CONCLUDED
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