"Discreet" Christian Not Entitled to Refugee Status: High Court

The Refugee Review Tribunal was right to refuse refugee status to an Iranian who had converted to Christianity, the High Court found yesterday, declining to apply principles it expounded in a case concerning a homosexual Bangladeshi couple.

Known only as NABD, the Iranian man was baptised while in Indonesia. After arriving in Australia, he attended church services in immigration detention and encouraged others to do so.

He claimed refugee status on the grounds that he could face execution for apostasy if he returned to Iran.

But the Refugee Review Tribunal, relying on country information supplied by the Department of Foreign Affairs, found that only high-profile Christian converts who actively proselytised would possibly be given the death penalty, while those who were discreet about their religion would not be persecuted.

On appeal to the High Court, NABD relied on the High Court's decision in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs, a case which had been decided since his unsuccessful appeals to the Federal Court and the Full Federal Court. In that case, which concerned a successful appeal by two homosexual Bangladeshi men, the Court found that it was wrong for the Tribunal to classify the men as safe from persecution if they were discreet about their behaviour, when it knew nothing of how the men intended to behave.

By a 3:2 majority (Chief Justice Gleeson, Justices Hayne and Heydon; Justices McHugh and Kirby dissenting), the High Court dismissed NABD's claim, distinguishing the previous case.

"At no point in its chain of reasoning did the Tribunal divert from inquiring about whether the fears which the appellant had were well founded. It did not ask (as the Tribunal had asked in Appellant S395/2002) whether the appellant could avoid persecution; it asked what may happen to the appellant if he returned to Iran," Justices Hayne and Heydon found.

Justice McHugh said that the Migration Act required every applicant to be assessed as an individual. Justice Kirby held that it was wrong to divide refugees on the basis of their conduct, when the right existed regardless.

"There is no postulate in the Refugees' Convention ("the Convention") that, in the exercise of the fundamental freedoms mentioned (including in respect of religion), applicants for protection must act "quietly", "maintain a low profile", avoid proselytising their views or otherwise act "discreetly" in matters so fundamental," he wrote.

27 May, 2005

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