WAEW v MIMA

[2003] HCATrans 390

[2003] HCATrans 390

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P89 of 2002

B e t w e e n -

WAEW

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 3 OCTOBER 2003, AT 1.59 PM

Copyright in the High Court of Australia

MR N.A. MOSHINSKY, QC:   May it please the Court, I appear for the applicant in this matter with my learned friend, MR R.K.W. SKINNER.(instructed by Holding Redlich)

MR S.G.E. McLEISH:   May it please the Court, I appear for the respondent in this matter.  (instructed by Australian Government Solicitor)

MR MOSHINSKY:   My client, the applicant, was born in Iran and raised as a Muslim.  He has renounced his religion, thereby engaging in apostasy.  His own religion is that of a deist; he believes in God without any adherence to an organised religion. 

He claimed, before the Tribunal, that he had a well‑founded fear of persecution on the religion ground of the Convention.  This is because he had a fear that if he expressed his views as a deist in Iran, publicly, he would be classified as someone who committed apostasy, which is punishable by death in that country.  He also said that he incurred considerable fear about expressing his views because, as a child, he was bashed by his teachers for failing to say his prayers, and this fear was maintained by him into his adult years.

Our contention is that the Tribunal erred in considering his claim for refugee status, based on the religion ground, because it formed the view that he would not face persecution because he was able to keep his views hidden, and that therefore he would not incur any serious detriment.

GLEESON CJ:   When you say he was able to do that, I am looking at page 13, lines 30 to 35.  His primary claim was political persecution, was it not?

MR MOSHINSKY:   It was, yes.

GLEESON CJ:   Then he added this religion claim.  What he said about it was that this was something he kept to himself, that he would not even tell his wife about this, if he got married, but he maintained that the mere fact that he felt such fear was persecution.

MR MOSHINSKY:   Yes.  The way it was treated by the Tribunal is set out on the following page, page 14.  The Tribunal says:

As neither the authorities nor any other group are aware of the Applicant’s beliefs nor is there a “real chance’ they would become aware there is no motivation for any person or group to target him then he does not face any harm amounting to persecution.

The mere fact that he holds views which he is afraid to act on does not of itself amount to persecution.  He has not claimed to have ever attempted to act on these feelings either clandestinely or in any other way.

This being the case, I find that his commitment to these beliefs is not such that his inability to do so amounts to serious detriment and accordingly it does not amount to persecution.

I find that the Applicant’s religious views, even if they are genuinely held as he claims, are such that they would not place him in a situation of facing a “real chance” of persecution since they are private and hidden to such an extent that no one could be aware of them.  Since he states that he will continue to behave in the same way as he has previously there is no greater prospective risk.

HAYNE J:   What do you say is the jurisdictional error that is made there?

MR MOSHINSKY:   We say that the religion ground of the Refugee Convention should be interpreted in light of Article 18 of the Universal Declaration of Human Rights and the Religion Declaration, which is contained in tab D of the applicant’s list of authorities.  Article 18 provides that:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

What we contend is that, properly analysed, this Article firstly safeguards the freedom of thought, conscience and religion  ‑ ‑ ‑

HAYNE J:   Let all that be assumed.

MR MOSHINSKY:   Yes.

HAYNE J:   Let it be further assumed, though this may be a large one, that Article 18 can be taken into account in construing the Refugee Convention.

MR MOSHINSKY:   Yes.

HAYNE J:   What do you say is the error that is demonstrated in what the Tribunal did?

MR MOSHINSKY:   What we contend is that the applicant was, by virtue of the genuine fear he had, prevented from expressing publicly himself as a deist, acknowledging himself as a deist in public as distinct from ‑ ‑ ‑

GLEESON CJ:   He has no desire to do that, does he?

MR MOSHINSKY:   If I could turn to the transcript, we say he does have a desire.

GLEESON CJ:   You call him a deist, but another way to describe him is a sceptic.  He says, I believe in God, but I do not believe all the teachings of the Muslim religion.

MR MOSHINSKY:   That is so, but he said that he is denied the right to express himself as a sceptic, or a deist, by reason of his fear, the fear of persecution.  The error that we complain of in the Tribunal’s approach or identification of the issue is that it did not go on to consider whether or not he had a legitimate fear of persecution, having come to the conclusion that because he could conform to the existing system, without any further trouble, that was enough, and there was no reason to consider whether he was frightened to speak out.

GLEESON CJ:   If you live in a society in which, if you are sceptical about the Islamic faith, it is prudent to keep that to yourself, and you have no personal desire to do anything other than keep it to yourself, are you being persecuted?

MR MOSHINSKY:   No, you are not, and that is not our case, your Honour.  Our case is that he wanted to express himself, but through fear was denied that right.  That comes from the transcript, which is at tab 17 of the supplemental application book.

GLEESON CJ:   Was that before the Federal Court?

MR MOSHINSKY:   I do not believe it was before the Federal Court.

GLEESON CJ:   How can we look at it?

MR MOSHINSKY:   My client was unrepresented at that time, and we say that it is relevant to the issue of jurisdictional error, because ‑ ‑ ‑

GLEESON CJ:   The Federal Court ordinarily does not have before it the transcript before the Tribunal, does it?

MR MOSHINSKY:   It does not, ordinarily, but it is submitted that it could – if my client was represented, he would have been entitled to produce the transcript to argue that he put forward certain considerations before the Tribunal that were not properly taken into account.

GLEESON CJ:   Hang on, this is an application for special leave to appeal against the decision of the Full Court of the Federal Court.

MR MOSHINSKY:   That is so, your Honour.

GLEESON CJ:   If you wanted to have us look at material that was not before the Federal Court, there would be a number of problems you would have to overcome, would you not?  You are trying to demonstrate to us error on the part of the Federal Court.

MR MOSHINSKY:   Yes, your Honour.  Even if I do not turn to the transcript, what we say is, in its summary of the facts by the Tribunal, they certainly acknowledged that he had maintained the claim that he was not able to express his religious views on the ground of fear, whereas the transcript explains why he was afraid in more detail, but, in substance, the
Tribunal did acknowledge that the reason – yes, at page 10 of the application book, the Tribunal said:

In regard to religion the Applicant said that he believed that it was persecution that he couldn’t follow a religion of his choice because he was too afraid to tell anyone that he wasn’t Muslim.

So we say that it is not a case where he was happy to keep things quiet.  The fact that has been accepted is that he was too afraid to tell anyone that he was not Muslim.

In the Federal Court before Justice Nicholson, at page 23, paragraph (c), we say that Justice Nicholson did not correctly summarise that finding of the Tribunal.  Justice Nicholson said that the Tribunal found:

even if the religious views are genuinely held, his commitments to those beliefs were not such as to compel him to speak out.

Whereas we say the truth is the finding was that he was too afraid to speak out, and, if he was too afraid to speak out, the error that we complain of is the failure to accord him “the right to freedom of thought, conscience and religion” to express his own views “either alone or in community with others”.  The error of the Federal Court was that it confined the definition of religion in a narrow way, that does not accord with the Universal Declaration of Human Rights, and was prepared only to consider a religion ground if there was a denial to a party to express his views “in community with others”, as distinct from “either alone or in community of others”.

We say that the special leave questions thrown up by the facts of this case are that this Court will have an opportunity to examine the religion ground in the Convention to determine whether the Full Court in Wang’s Case was correct in defining religion in that special way of requiring a religion to be only one which was manifested in the community of others, and also whether it is appropriate in a case where someone fails to speak out about his religion on the ground of fear, whether that in itself can constitute a religion ground.

We relied on the case of the Full Court at tab L, the case of SGKB.  In that decision – this was a case where a man came from Tehran and converted to Christianity in Australia – the Tribunal found that he did not suffer persecution, because it is unlikely that he would have made known that he was a Christian when he returned to his country.  But the Full Court of the Federal Court said that that was not the correct way of approaching the test of religion, because, in fact, he was entitled to be regarded as someone who could be fearful of a legitimate fear of persecution in the event that he could be found out to be a Christian. 

More particularly, at pages 6 and 7 of that decision, the court said that:

The focus upon the death penalty and the relative infrequency with which it has been imposed tends to mask the possibility of lesser forms of harassment which might amount to persecution –

of converts, and that is if he is found out –

It cannot be suggested that because the appellant focussed upon the death penalty in his letter to the Tribunal, he was not also fearful of lesser levels of harassment, motivated by his conversion.  It is also of importance that the evidence disclosed the risk of harassment by the “local mosque” as well as by government authorities.  Finally, whilst it may be possible for a person to practise his or her religion quietly and to refrain from informing the authorities of his or her conversion, that does not mean that the authorities will not find out about it.

We say that, bringing together that kind of thinking, even though the applicant claims that he was able to keep his views to himself, there is always a risk that he might be found out, in a country where apostasy is subject to the death penalty ‑ ‑ ‑

GLEESON CJ:   Well, scepticism is something that a lot of people practice quietly, even judges.

MR MOSHINSKY:   Yes, your Honour, but here he claims to be an adherent to a philosophy which is at odds with the prevailing philosophy of the country to which the authorities seek to return him.  If there is any other matter, your Honour?

GLEESON CJ:   Thank you, Mr Moshinsky.  We do not need to hear you, Mr McLeish.

In this case the decision of the Tribunal on the aspect of the matter relating to religion, which was a secondary aspect before the Tribunal, was that the applicant had no well‑founded fear of persecution by reason of religion because as a matter of fact he did not and would not outwardly manifest his beliefs, not because as a matter of law the holding of a religious belief without more did not constitute religion for the purposes of the Convention.

The Tribunal therefore found that the applicant was not a Convention refugee on the basis of its practical assessment of the risk of persecution.  It is unnecessary for us to express a view on the correctness of all aspects of the reasoning of the Federal Court in relation to the case of Wang v Minister for Immigration and Multicultural Affairs.  There are insufficient prospects of success of an appeal to warrant a grant of special leave, and the application is refused with costs.

AT 2.15 PM THE MATTER WAS CONCLUDED