BC v Minister for Immigration & Multicultural Affairs

INTRODUCTION 1 This is an appeal from a judgment of a Judge of this Court dismissing the appellant's application for an order of review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the respondent not to grant a protection visa to the appellant.

factual and procedural background 2 The following description of the factual and procedural background of this matter is taken largely from the reasons for judgment of the learned primary judge. 3 The appellant arrived in Australia by boat, from Indonesia, on 17 December 1999. He subsequently applied for a protection visa. The appellant claimed to have a well-founded fear of persecution in Pakistan by reason of religion. He had been raised as a Roman Catholic in that country and married a Roman Catholic. He said that his brothers-in-law (all of whom were Muslim) had strongly disapproved of the marriage and had perpetrated outrages, including kidnapping his wife and children. The appellant claimed to have converted to Islam in order to obtain protection from the local Muslim community against his wife's family. The conversion had received publicity in local newspapers. 4 The appellant said that he ultimately located his wife and children, with the assistance of the Muslim community, and they resumed living together. In 1998, the appellant was rebaptised into the Christian faith by Christian missionaries. Thereafter he continued to live like a Muslim for all outward purposes, but secretly adhered to Christianity (although his son attended a Roman Catholic school). He said that he feared that false blasphemy charges would be brought against him and also that he feared harm from Muslims by reason of his reconversion to Christianity. 5 On 25 October 2000 the appellant's application for a protection visa was rejected by the Minister's delegate. The Refugee Review Tribunal ("the Tribunal") affirmed that decision on 20 December 2000, finding that the appellant did not have a well-founded fear of persecution for reasons of religion. 6 On 9 January 2001, the appellant filed an application for review of the Tribunal's decision in this Court. His amended application, filed on 15 March 2001, contained a single ground, as follows: "S 476(1)(e) of the Migration Act 1958 - decision involved an error of law being an error involving an incorrect application of the law to the facts as found. Particulars The RRT considered the applicant's case in the context of Moslem extremists making false charges of blasphemy against individuals. The RRT did not consider the applicant's case in the context of the applicant having satisfied the grounds for charges to be laid against him, on account of his reconversion from Islam to Christianity and the persecutory application of that law, nor did the RRT consider the law as persecutory per se against converts from Islam to Christianity." 7 Madgwick J heard the first application for review of the Tribunal's decision on 16 March 2001. The appellant was represented at the hearing by the same counsel who appeared on his behalf both at first instance and on the appeal in the present proceedings. His Honour delivered an ex-tempore judgment dismissing the application (published as "BC" v Minister for Immigration and Multicultural Affairs [2001] FCA 393). As Sackville J, the primary judge in the second Federal Court application (reported as BC v Minister for Immigration and Multicultural Affairs [2001] FCA 1669) observed, the core of Madgwick J's reasoning is contained in the following passages at [13-16]: "Mr Killalea, for the applicant, in a careful argument submitted in essence that the factual finding that "[t]he Tribunal is not satisfied that anyone would take claims made by the applicant's brother[s]-in-law about him being an apostate seriously" could only reasonably have been made on the assumption that, when the finding was made, the Tribunal was only considering potential false blasphemy charges. This is because the applicant was truly guilty of some blasphemy or apostasy type offence for his actual apostasy, and would so obviously be gravely at risk from the likely outraged Moslem community, who came to his aid, if word of his reconversion should reach them, and that the Tribunal could not have had a true blasphemy type charge, or the community's reaction to true allegations, in mind. I have considered this carefully. It is a matter of impression and turns on how one reads the decision of the Tribunal. In my opinion, the Tribunal distinguished between on the one hand trumped-up non-blasphemy charges, of which the applicant had also complained and, on the other hand, authentic blasphemy type charges and trouble which the applicant might face on account of his actual apostasy. The finding that "[t]he Tribunal is not satisfied that anyone would take claims made by the applicant's brother[s]-in-law about him being an apostate seriously" was properly conceded by counsel for the respondent Minister to be a somewhat heroic one. However, it does not seem to me that, on that account alone, it is reviewable in this Court, and counsel for the applicant, who is experienced in these matters, has not attempted to place any reliance in this Court on the possible unreasonableness of that finding. That finding, it seems to me, really disposes of the applicant's case. So does the finding that he could safely relocate and live in a Christian community. Again, with all due respect to the Tribunal, that is not a finding that would compel unanimous agreement. However, in my opinion it is not possible to say that the Tribunal approached the question of relocation wrongly in a relevant legal sense…". 8 The appellant did not appeal from the judgment of Madgwick J. On 12 April 2001 he commenced proceedings in the original jurisdiction of the High Court of Australia pursuant to s 75(v) of the Constitution. Those proceedings are still on foot. In fact, as will be seen, this appeal is part of those proceedings. The proceedings again seek to challenge the Tribunal's decision of 20 December 2000. The relief sought by the appellant in the High Court includes a writ of certiorari quashing the Tribunal's decision and a writ of mandamus directing the Tribunal to perform its statutory duty. The key claim made by the appellant, which he wishes to have reconsidered by the Tribunal, is that he has a well-founded fear of persecution in Pakistan, in particular because he converted from the Muslim faith to Christianity, after having previously converted from Christianity to the Muslim faith. 9 On 8 June 2001, Gummow J made an order pursuant to s 44 of the Judiciary Act 1903 (Cth) remitting a portion of the High Court proceedings to this Court, and thereafter the resultant application was heard by Sackville J. Adapted to take account of the removal of the second and third respondents initially named in the High Court proceedings and the substitution of the Tribunal as the second respondent, the grounds remitted to this Court were as follows: "(a) The Tribunal did not have jurisdiction to make the decision affirming the decision of the Minister's delegate refusing to grant the appellant a protection visa; (b) The decision of the Tribunal was not authorised by the Migration Act 1958 (Cth) ("the Migration Act") or the Migration Regulations; and (c) The decision involved an error of law involving an incorrect application of the law to the facts as found by the Tribunal."