S635 OF 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 65 (22 April 2005)

FEDERAL COURT OF AUSTRALIA

S635 OF 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 65

IMMIGRATION – application for protection visa – Minister’s refusal – affirmed by the Refugee Review Tribunal – Convention relating to the Status of Refugees - no real chance of persecution for reason of applicant’s Christian religion – appeal – whether grounds for well-founded fear of persecution for reason of reconversion from Islam – appeal dismissed

PRACTICE AND PROCEDURE – application for review of Refugee Review Tribunal decision to Federal Court under old Part 8 Migration Act dismissed – application to High Court for constitutional writs by a draft order nisi – part of the proceedings remitted to Federal Court – remitted proceedings raised issue of jurisdictional unreasonableness not raised in previous application for review – remitted proceedings dismissed – appeal to Full Court dismissed – no Anshun estoppel as special circumstances identified, however Full Court in Gamaethige followed – application for special leave to appeal to High Court refused – Minister declined to exercise discretionary powers under Migration Act 1958 (Cth) s 417 – application to High Court for constitutional writs – proceedings remitted to Federal Court – ground of abuse of process raised by Minister – no abuse of process however no jurisdictional error on ground of illogicality – appeal to Full Court – whether the tribunal’s reasoning was supported by logical grounds – whether the tribunal’s decision was void for jurisdictional error – whether res judicata or Anshun estoppel applies – appeal dismissed

Appellant S395 of 2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 Cons

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Cons, Foll

Berkeley v Berkeley [1956] UKHL 6; [1946] AC 555 Cons
Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 Cited
Bryant v Commonwealth Bank of Australia [1995] FCA 1299; (1995) 130 ALR 129 ConsBuck v Bavone [1976] HCA 24; (1976) 135 CLR 110 Foll

Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 1983 ALR 59 Cons

Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 Foll

Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 Cons, Foll

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 Cons

Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 Foll

Somanader v Minister for Immigration and Multicultural Affairs [2000] FCA 1192; (2001) 178 ALR 677 Cons

Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 108 ALR 335 Cons
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 Cited

Convention relating to the Status of Refugees, 189 UNTS 15O (entered into force 22 April 1954)

S635 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1422 of 2004

TAMBERLIN, KIEFEL and EMMETT JJ
SYDNEY
22 APRIL 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1422 OF 2004

BETWEEN:	S635 OF 2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	TAMBERLIN, KIEFEL, EMMETT JJ
DATE OF ORDER:	22 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1422 OF 2004

BETWEEN:	S635 OF 2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	TAMBERLIN, KIEFEL AND EMMETT JJ
DATE:	22 APRIL 2005
PLACE:	SYDNEY

1 I agree with the orders proposed by Kiefel J in this matter and with her Honour’s reasoning. In view of the fact that it is not necessary to deal with the issue of estoppel, I also refrain from expressing a concluded view on this aspect.

2 I make some observations in relation to the proposed further ground of appeal. I would not permit the proposed amendment, which is to the effect that the Tribunal’s reasoning requires the appellant to conceal that part of his personal history that would otherwise expose him to danger and is thereby indicative of jurisdictional error, because I do not consider it has any substance. It is submitted by the appellant that the Tribunal’s finding depends on an explicit requirement that the applicant conceal that part of his past relating to his apostasy, even if he should live in some other part of the country, and that this is sufficient to give rise to a real chance of persecution on religious grounds

3 The case of S395 of 2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 (S395) referred to by the appellant, is a different case to the present. In that case, a majority of the High Court concluded that the Tribunal had failed to determine whether the appellants had acted discreetly because it was not possible to live openly as a homosexual in Bangladesh. The Tribunal had found that it was reasonable for a homosexual person in Bangladesh to suppress public manifestation of their homosexuality. The High Court found that, in so doing, the Tribunal had erred by not properly considering the appellants’ fears of persecution if returned to Bangladesh. Their Honours held that this error was a constructive failure to exercise jurisdiction. Justices Gummow and Hayne observed that to say that an applicant who seeks protection "is expected" to live discreetly is wrong and irrelevant to the task to be undertaken by the Tribunal if it is intended as a statement of what the applicant must do. The Tribunal had no jurisdiction to proceed on the basis of requiring an applicant for protection to do anything in their country of nationality including concealment of sexual preferences.

4 In this case, the substance of the ground sought to be raised is that, notwithstanding that the appellant could freely and openly express his profound commitment to Christianity, there was a threat of Convention persecution because he could not, without fear of harassment, freely and openly disclose his past in relation to his conversion to, and reconversion from, Islam to Christianity. I do not consider, in the circumstances of the present case, that the liability, without fear of harassment, to recount past history as to past conduct amounts to persecution for religious reasons within the meaning of the Convention. The fact that there is complete and open freedom in the present circumstances to fully express and exercise religious beliefs in public as a Christian is, in my view, sufficient to take him outside the protection of the Convention on this ground.

5 By contrast, in the circumstances of S395, there was a real danger in publicly and openly practising homosexuality. In the present case, there is no such restriction on the right to openly advocate and practise Christianity as the appellant sees fit. The claimed restraint arises because the appellant might be exposed to persecution if he publicly expressed his history of apostasy. In my view, this inability, which is peripheral to the free exercise of his fundamental beliefs, is not sufficient to give rise to persecution in the Convention sense.

6 It was open to, and reasonable for, the Tribunal, on the material before it, to reach the conclusion that having regard to the fact that there was nothing about the applicant that would identify him as anything other than a Christian, or would identify him as a convert to Islam or an apostate, and the fact that he was so "obviously" a Christian, no-one would take claims about him as being an apostate seriously. I agree that, on its face, the expression "obviously Christian" is somewhat bizarre. However, when careful regard is paid to the evidence, the conclusion reached is within the bounds of reason. I do not think there is any substance in the ground.

7 The finding that the applicant is and was so obviously a Christian that no-one would take claims of apostasy seriously was based on the circumstances that he was raised as Roman Catholic, that all of his family and wife’s family were Christians, that he attended a Catholic school and that he had practised his religion freely over many years and had lived in Pakistan as a Christian convert for over a year before departing Pakistan without persecution. These factors provide sufficient factual support for the finding that there is no real chance of persecution by reason of the fact that he may be unable to speak freely of his conversion to Islam and reconversion to Christianity.

8 In this case, the Tribunal decision does not require the appellant to be discreet about his Christianity. The relocation finding was not based on the appellant having to modify his beliefs or opinions or hide the fact that he was a member of a particular social group. It is not correct that the finding "required" him to conceal his apostasy. One may well ask why would he ever want to proclaim it publicly, in any event. The Tribunal reasons provide a factual basis on which to conclude that if an allegation of apostasy were raised it would not be taken seriously. This available finding does not involve modification of the appellant’s behaviour in relation to the practice and expression of his Christianity.

9 I should add that, in addition to the above, the findings of fact made in this case are fatal to the appellant’s case. Moreover, there is no evidence that the "fatwa" referred to has been issued, published, put into effect, or that the threat is widely known. The evidence is that there was a contingent private threat that the fatwa would be issued if there was any apostasy discovered. There is only remote speculation that it may come to the attention of persons in other parts of the country in which the appellant may seek to reside at some time.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1422 OF 2004

BETWEEN:	S635 OF 2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	TAMBERLIN, KIEFEL, EMMETT JJ
DATE:	22 APRIL 2005
PLACE:	SYDNEY

10 The appellant is a national of Pakistan and arrived in Australia on 17 December 1999. He applied for a protection visa on 17 August 2000. The Minister’s delegate refused to grant the visa and on 20 December 2000 the Refugee Review Tribunal (‘the Tribunal’) affirmed the delegate’s decision.

11 The appellant and his wife are Christians and raised their children as Christians in Pakistan. The appellant did not suggest to the Tribunal that he had any difficulty with the practice or toleration of his religion. His difficulties, and the basis for his claims to a protection visa, arose from his relationship with his wife’s family.

12 His wife’s family did not approve of the marriage and appear to have attempted to put pressure on the appellant and his wife to end it. The Tribunal found that this attitude was not brought about by the appellant’s Christianity, but because he was not wealthy and did not have a high position in society. His wife’s three sisters had each married wealthy Moslem men and one of her brothers had married a Moslem woman.

13 The actions taken by his wife’s family included, taking his wife away from time to time, requiring him to seek her return and using the police to harass him. Two of the appellant’s brothers-in-law were members of the police force and one was quite highly placed. The Tribunal found the difficulties with the police to be connected to the influence of the brothers-in-law.

14 In May 1998 the appellant’s wife and children were taken from his home and late that night he was taken and beaten. The object of this action appears to have been to have him divorce his wife. He complained to the police and engaged a lawyer but to no avail.

15 When, after a period of about three months, the appellant’s family had not been returned, he decided to follow the advice of a social worker, a Moslem, to convert to Islam and then seek the assistance of the Moslem community in having his family returned. He converted for this sole purpose on 1 August 1998 and the fact of his conversion was published in the local newspapers, as is the custom.

16 A series of advertisements by the appellant and his wife then followed. It is not necessary to go into the detail of them. At some point after the publications, the appellant was reunited with his wife and children.

17 The appellant and his family then lived within a Moslem community in a part of Karachi, in a house provided by the community. Members of the community pressed him to convert his family to Islam and to attend the mosque. He continued to live as a Moslem although he was secretly re-baptised as a Christian in December 1998. The only persons who knew of his reconversion were his family, the missionaries who reconverted him and his parish priest.

18 The appellant said that in March 1999 a Mullanah issued a Fatwa against him and told him that if he came to know that the appellant had converted back to Christianity or that he had not converted his family to Islam, he would be killed. The Fatwa was written on a piece of paper and kept by the Mullanah. There was no suggestion that it was published.

19 The appellant left Pakistan in August 1999 with the intention of working in Indonesia and bringing his family after him. He then travelled to Australia with people-smugglers.

20 Some of the appellant’s claims considered by the Tribunal are no longer in contention. These include the difficulties he would encounter if he returned to Pakistan because he had been involved with people smugglers and with the police.

21 The Tribunal was not satisfied that the appellant faced a real chance of persecution in Pakistan for reasons of his Christian religion. His problems were connected with his wife’s family. The remaining issue raised by the appellant, and which forms the basis for this appeal, was whether he had a well-founded fear of persecution on account of his reconversion from Islam.

22 There was some information in a country report detailed by the Tribunal which suggested that reprisals and threats of reprisals against suspected converts from Islam are common in Pakistan, albeit that there is no law against conversion. The appellant himself raised the prospect that he was likely to be persecuted and that his reconversion might be brought to others attention by his brothers-in-law. There was, additionally, the Fatwa against him.

23 As to the latter, the Tribunal did not consider that it was likely to cause the appellant trouble since it was kept by the Mullanah and had not been published to any other person.

24 The Tribunal accepted that there may be some people in the local Moslem community in which he lived after his conversion who would be displeased with him because of the reason he converted to Islam because he used them and then later reconverted to Christianity. However the Tribunal did not accept that the appellant’s potential difficulties would extend beyond that small community. It went on:

25 The Tribunal went on to say that the notoriety gained from the newspaper publications were now some two years old and the Tribunal reiterated that the appellant’s religious situation would only be known to those in the small Islamic community in which he lived for a year. The Tribunal was not satisfied that the appellant would be known outside of that community in either greater Karachi or Pakistan. It went on:

The Tribunal noted that the applicant was a person who had been willing and able to relocate for purposes of employment (having moved to Indonesia to take up employment).

26 The Tribunal noted that the appellant feared harm because of the fact that two of his brothers-in-law are police officers, one of whom holds a high level position. The appellant feared that he may face trumped-up charges brought by these people or other trouble. The Tribunal reiterated that any trouble caused by the brothers-in-law would not be Convention-related. It went on:

27 Before Madgwick J the appellant’s amended application for review raised the following ground of review pursuant to s 476(1)(e) of the Migration Act 1958 (Cth) (‘the Act’):

28 It was submitted before his Honour that the Tribunal had concentrated upon potential false blasphemy charges but had not considered the trouble which the appellant would face were his reconversion to become known. His Honour found that the Tribunal had considered this question and its finding that ‘[t]he Tribunal is not satisfied that anyone would take claims made by the appellant’s brothers-in-law about being him being an apostate seriously’ was an answer to the appellant’s contention. His Honour noted that counsel for the appellant had not attempted to place any reliance upon the possible unreasonableness of that finding. His Honour was also of the view that the finding that the appellant could safely relocate and live in a Christian community might not ‘compel unanimous agreement’ but it could not be said that it had approached that question in a wrong legal sense.

29 On 12 April 2001 the respondent applied for an order nisi in the High Court of Australia and on 8 June 2001 Gummow J remitted the following part of the application to this Court:

31 On the hearing of the remitted matter before Sackville J, the appellant presented only one argument which, his Honour observed, followed almost precisely the reasoning of Gummow J by way of obiter in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at 650-659 (‘Eshetu’). The only ground in the remitter to which that argument might relate is that in (a). In summary, it was submitted that the Tribunal’s decision was reviewable for unreasonableness because the opinion which the Tribunal was required to form on whether it was satisfied that the appellant was a person to whom Australia owed protection obligations under the Convention relating to the Status of Refugees, 189 UNTS 15O (entered into force 22 April 1954) (‘the Convention’), was a jurisdictional fact. It was a precondition to the exercise of the statutory jurisdiction to grant a visa and is reviewable under s 75(v) of the Constitution. The ground of unreasonableness, which s 476(2)(b), of the Act excluded from review, was confined to ‘Wednesbury unreasonableness’ and not ‘jurisdictional unreasonableness’. It was submitted before his Honour that the Tribunal committed jurisdictional error because its conclusion was unreasonable in two respects:

32 In particular it was submitted that the finding, that the appellant was not at risk of being revealed as an apostate and thus not at risk of being identified as a convert from Islam to Christianity, was not supported by probative material or logical grounds. That finding was critical to the ultimate conclusion that the appellant did not have a well-founded fear of persecution for reasons of religion.

33 A Full Court in Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 1983 ALR 59 (‘Gamaethige’) had however held, by a majority, that s 476(2)(b) of the Act precluded reliance upon jurisdictional unreasonableness and his Honour considered himself bound to follow that decision. I add here that on 17 June 2003 the High Court held that s 476(2)(b) did not remove a challenge to this Court on that ground: Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [24] as per McHugh and Gummow JJ and [146] as per Kirby J.

34 Although it was unnecessary for Sackville J to consider the issue of jurisdictional unreasonableness, his Honour expressed the view that the contention, that the Tribunal’s decision was affected by it, had some force. The finding that the Tribunal was not satisfied that anyone would take the claims which might be made by the brothers-in-law, about the appellant being an apostate, seriously seemed to his Honour ‘to come close to a finding that was unsupported by any probative material or logical grounds’.

35 The other ground for his Honour’s dismissal of the application on 1 December 2001 was the operation of an ‘Anshun’ estoppel: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589. His Honour held that it was unreasonable for the appellant not to have raised the jurisdictional unreasonableness argument in the proceedings before Madgwick J. A powerful indicator that it was unreasonable was the prospect of conflicting judgments. His Honour held that the matters raised by the appellant did not constitute ‘special circumstances’ which might warrant the non-application of the Anshun principle to the remitted proceedings.

36 His Honour’s judgment was the subject of an appeal to a Full Court. On 23 July 2002 the appeal was dismissed by the Full Court (Carr, Tamberlin & Conti JJ). Their Honours did not consider that an Anshun estoppel should operate because there were special circumstances. A combination of four factors, relied upon by the appellant, was accepted by the Court as providing special circumstances:

37 In the latter respect the Court explained that the concept of judicial unreasonableness had only quite recently been the subject of judicial exposition and there was little guidance in the particular context of the Act. It was likely that a clearer picture might emerge given the grant of special leave which had then been made in Gamaethige.

38 On 12 September 2003 the High Court refused the appellant the grant of special leave to appeal from the decision of the Full Court in this matter. In these proceedings, which were heard before Gleeson CJ and Callinan J, the Minister argued that the Tribunal’s decision was not illogical or irrational. Their Honours expressed the view that there were insufficient prospects of the appellant succeeding to warrant the grant of special leave.

39 The appellant lodged a request for the Minister to exercise the discretionary powers given under s 417 of the Act, but on 11 December 2003, the Minister declined to consider exercising that discretion.

40 On 24 December 2003 a further application for an order nisi was filed in the High Court and on 16 February 2004 Heydon J ordered that that application be remitted to this Court.

41 The grounds for relief in the application remitted by the High Court were as follows:

42 On 23 January 2004 the appellant discontinued the remainder of the proceeding earlier commenced in the High Court. This effected an abandonment of grounds (d) and (e) referred to at [21] above.

43 Before Moore J the Minister did not argue that the judgments in the earlier proceedings gave rise to either res judicata or some other form of estoppel. Rather, it was argued that the proceedings were an abuse of process. His Honour did not accept that submission but nevertheless dismissed the application.

44 It was submitted for the appellant that the Tribunal could only have concluded that the appellant and his ‘religious situation’ would not be known outside the small Moslem community in which he had lived if it had assumed that the appellant would live in a closed Christian community with no Moslem members. Alternatively, it may have assumed that if there were Moslems in the community they would never come to hear of the Fatwa and he would be beyond the contact of the appellant’s hostile relatives and their influence. It was submitted that both conclusions or assumptions were illogical and not based on any probative material.

45 His Honour did not accept that the reasons of the Tribunal were as fundamentally flawed as the appellant contended for. What the Tribunal did was to make a future assessment by reference to certain assumptions. His Honour accepted that the Tribunal adopted a ‘curious’ approach in saying that, if the hostile relatives came to know of the appellant’s whereabouts and revealed his re-conversion, any allegations made by them would not be believed because the appellant was ‘obviously Christian’. However, his Honour held that the conclusion was not fanciful. It was open to the Tribunal to conclude that the appellant was obviously Christian having regard to his name, appearance and long adherence to that religion. It was conceivable, his Honour considered, that Moslems in a community might view with some scepticism an allegation that someone who was obviously Christian had recently converted to and re-converted from Islam. While the Tribunal may have concluded that there was a real risk that the appellant’s history might become known to Moslems it was not bound to reach that conclusion nor did the fact that it reached that conclusion indicate that its reasoning was tainted by a lack of logic.

47 The appellant sought leave to further amend the Notice of Appeal to incorporate the following further ground of appeal:

48 The appellant argued against the grant of leave to amend the appeal. For its part the respondent gave notice of the contention that Moore J’s decision should be affirmed upon the following ground:

49 In relation to the grounds notified in the Notice of Appeal the appellant submitted that the reasoning of the Tribunal should have started from the point that apostates are at risk of persecution. The fact that he is an apostate therefore means that his fear of persecution is well-founded. Further, it cannot be said that no one would believe the truth were they told of the appellant’s apostasy. It is irrational or illogical to say so, in the sense that there is no objective basis for such a view. The appellant also repeated the submissions before Moore J, to the effect that there was no evidence of a Christian community where Moslems did not have access and it was submitted that the Tribunal’s reasoning also failed to take account of the risk from the Mullanah.

50 As the appellant’s Notice of Appeal makes plain, the ground relied upon is one of unreasonableness which goes to jurisdiction, the ground which was argued before Sackville J. The illogicality of which the appellant’s submissions speak is that the Tribunal’s findings or inferences of fact are unsupported by probative material or logical grounds: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 366-367 (‘Bond’); Eshetu at [145]. A conclusion of unreasonableness in this sense however requires more than something being a matter of opinion. It must be shown that the finding could not reasonably be made: Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 at 118-119; Eshetu at [136]. And it goes beyond the finding simply being wrong. It must be one which is basically unsupported by any evidence: Bond at 355-356; Eshetu [138].

51 It may be inferred from the Tribunal’s reasoning and the country information to which it referred that the Tribunal accepted that there could be persecution of apostates. It was not the case however that the appellant would be taken by others to be an apostate. The question whether he was at risk of persecution did not therefore arise simply from the fact that he had reconverted. It depended upon whether people, more particularly adherents to Islam, would come to know of this fact given that he would not proclaim it.

52 The Tribunal found that only the small Moslem community in which the appellant had lived for a period was privy to, or would come to know of, his conversion and reconversion. That community, clearly enough, included the Mullanah who had issued the Fatwa. It then reasoned that he could live in safety if he lived in another area sufficiently removed from that community and in an area where the population was predominantly Christian. Clearly the Tribunal was able to make the latter findings. The only question was whether he remained at risk of persecution even if he did relocate to some such area.

53 The Tribunal, contrary to the appellant’s submission, did not find that no Moslem would be found among the Christian communities or that Moslems would never access these areas. It is however to be inferred from the Tribunal’s decision, in my view, that it largely discounted the prospect, advanced by the appellant, that persons from the small community he had lived in would come looking for him or be successful in finding him.

54 The Tribunal implicitly accepted that the appellant’s brothers-in-law might seek him out and might tell people, which would include Moslem people, that he was a convert from Islam. The Tribunal at this point considered what would be likely to happen if the brothers-in-law did so. This approach could hardly be described as illogical, and I did not understand the appellant to suggest that it was. The appellant’s contention, his principal contention on the appeal, was that the opinion the Tribunal then formed was wholly unreasonable. The Tribunal’s opinion was that people would not take such a claim seriously.

55 There were however factors which permitted the formation of such an opinion. In addition to the fact that the appellant would not put himself forward as an apostate, his Christianity would be obvious to people in a number of respects. It may then be inferred that they would not consider it likely that he had been a Moslem and converted to Christianity. There is nothing irrational in such a view.

56 The appellant’s submissions require the Tribunal to have been satisfied that no person, more particularly no Moslem person, would ever believe the claim. If it could not be so satisfied, it follows that there is a risk of persecution.

57 Article 1A(2) of the Convention defines a refugee relevantly as a person who is unwilling to return to his country ‘owing to well-founded fear of being persecuted for reasons of religion or membership of a particular social group’. A person has a well-founded fear of persecution in the Convention sense if there is a real and substantial basis for it: Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 at 572. That case does not suggest that any chance that the risk might eventuate will suffice.

59 It is not necessary to deal with this issue given the view I have arrived at, concerning the substantive grounds. However I make the following observations.

60 The respondent’s contention is that the proceedings before Madgwick J were proceedings in which it would be expected that a claim of jurisdictional unreasonableness would be raised, given the nature and subject matter of those proceedings: Justice K Handley ‘Anshun Today’, Australian Law Journal, vol 71, 1997, pp 934 at 938; Bryant v Commonwealth Bank of Australia [1995] FCA 1299; (1995) 130 ALR 129. In the respondent’s written submissions I observe that reference is also made to the proceedings before Sackville J, but argument upon this ground was not developed.

61 There was not any bar to the appellant raising the ground of unreasonableness before Madgwick J. The matter had been discussed in Bond and Eshetu. There was not, at the time his Honour heard the matter, any appellate determination in this Court having the effect of barring such a claim. Gamaethige was not determined for some months afterwards. The appellant’s counsel frankly conceded before Moore J that he had simply not thought of the point until after the hearing before Madgwick J. An Anshun estoppel would therefore seem to arise. The Full Court in the first remitter proceedings however considered that special circumstances existed such that the estoppel ought not operate. I have some difficulty with the view taken by the Court of those circumstances, which were also relied upon in this appeal. It is not however obvious to me that the real issue arises in that connexion.

62 It seems to me arguable that the real importance of the previous proceedings lies in the determination by Sackville J, and the Full Court thereafter, of the ground of unreasonableness in a jurisdictional sense. The substantial ground then relied upon as entitling the applicant to relief, and which was the subject of determination, is the same as that raised in these proceedings. That raises the real prospect, in my view, that res judicata or cause of action estoppel applies: Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 108 ALR 335 at 347; Somanader v Minister for Immigration and Multicultural Affairs [2000] FCA 1192; (2001) 178 ALR 677 at [52].

63 The decision in Gamaethige, which was later overruled, was applied by both Sackville J and the Full Court. The principle of res judicata does not however require that the decision made be correct in fact or law. It remains binding upon the parties unless and until it is upset on appeal: Crown Estate Commissioners v Dorset County Council [1990] Ch 297 at 305. Nor does it matter that the decision is overruled in another case between different parties. In In Re Waring; Westminster Bank Limited v Awdry [1942] Ch 309 a legislative provision was held to apply to certain annuities. This was reversed on appeal: In Re Waring; Westminster Bank Limited v Awdry [1942] Ch 426. However in a subsequent case, Berkeley v Berkeley [1956] UKHL 6; [1946] AC 555, the House of Lords held that the section did apply and implicitly overruled the Court of Appeal. When further proceedings were brought (In Re Waring; Westminster Bank Limited v Burton-Butler [1948] Ch 221 at 227) it was held that the parties were nevertheless bound by the previous decision.

64 These matters were not however the subject of submission on the appeal. In these circumstances I should refrain from expressing a concluded view.

65 I would not be inclined to permit amendment to add the proposed further ground of appeal, which is to the effect that the Tribunal’s finding that the appellant could safely relocate required him to hide his religious history.

66 The appellant seeks to equate this case with the decision in Appellant S395 of 2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 (‘Appellant S395/2002’). The High Court there held that the Tribunal fell into jurisdictional error by failing to consider the issue of persecution of the social group of homosexual males in Bangladesh and instead dealt with the appellants separately and on the basis that they would act discreetly in the future and thereby avoid persecution. It may be concluded that there remains a real chance of persecution even if a person modifies their conduct so as to avoid it. In such a case the modified conduct is a response to the threat of persecution: Appellant S395/2002 at [43]. The Court considered that there was a difference between a person behaving discreetly where it reflects a fear of harm and where it was the result of voluntary choice (at [35]). A person could not be expected by a decision-maker to live discreetly (at [82]).

67 The respondent points out that here the applicant is not required to modify his conduct. His position as a convert back to Christianity does not require him to behave in a particular way in response to perceived harm. He would not, by choice, proclaim his prior and insincere conversion to Islam. The only matter affecting the risk of his being persecuted was whether others might come to know of his religious history from other sources.

68 There appear to me to be substance in these contentions. Moreover there is no reason why the ground could not have been raised, not only earlier I those proceedings, but in each of the earlier proceedings. A principle underlying Anshun estoppel, finality of litigation, is especially pertinent in this case. There appears to be no reason why the appellant could not have advanced the argument earlier and none is given save that the decision in Appellant S395/2002 made the prospect of success more clear.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD142 OF 2004

BETWEEN:	S635 OF 2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN, KIEFEL & EMMETT JJ
DATE:	22 APRIL 2005
PLACE:	SYDNEY

70 This is an appeal from the decision of a single judge of the Court refusing Constitutional writ relief in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’). The appellant is a citizen of Pakistan. He arrived in Australia on 17 December 1999 and on 17 August 2000 applied for a protection (class XA) visa under the Migration Act 1958 (Cth) (‘the Act’). On 25 October 2000, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa. On the same day, the appellant applied to the Refugee Review Tribunal for review of the delegate’s decision. On 20 December 2000, the Tribunal made a decision (‘the Tribunal’s Decision’) by which it affirmed the decision of the delegate.

71 Thereafter, the appellant has made a number of attempts, by several different proceedings, to have the Tribunal’s Decision set aside on various grounds. This appeal arises out of the third proceeding commenced by the appellant, having been unsuccessful in two earlier proceedings. Before describing the proceedings, it is desirable to say something about the Tribunal’s Decision, including the findings made by and the reasoning of the Tribunal.

72 The Tribunal found that the appellant is a Christian, that he grew up as a Christian and that he had no difficulties in Pakistan living as a Christian, attending a Christian school and practising his religion. However, the appellant began to experience problems when he and his wife married. His wife’s family did not approve of the marriage because the appellant was not wealthy and had no particular social status. As a result of their disapproval of the marriage, the appellant’s in-laws tried many times to break up the marriage. He claimed that his father in law would come to his house with the police to harass him. He also claimed that he was told that the police were going to make false allegations against him about having weapons. Two of the appellant’s brothers-in-law are policemen.

73 In May 1998, the appellant came home from work and was told that his wife and children had been taken away by his wife’s brother. The appellant went to his in-laws’ house where his in-laws told him that they did not know where his wife and children were. For about three months, the appellant could not find his family.

74 Following the advice of a social worker, the appellant decided to convert to Islam because he thought that might make it easier for him to get his family back. He went with a friend to a mosque and said that he wanted to convert. The Imam at the mosque asked him why he wanted to convert but he did not disclose the real reason. The appellant claimed that he converted on 1 August 1998 and that, on 13 August 1998, his picture was put in the local newspaper, as is the custom when a person converts to Islam. The appellant told the Tribunal that the article in the newspaper also reported that he asked for people to help him get his wife and children back.

75 The appellant claimed that two or three days after the article about his conversion appeared, a further article appeared in the newspaper, placed by the appellant’s wife. It stated that she could not stay with her husband as he had converted to Islam. About three days later, the appellant received a letter requiring him to attend a civil court in Karachi because his wife wanted a divorce. The appellant said that his lawyer went to the court but nothing happened.

76 On 28 October 1998, the appellant published an article in another newspaper, giving the names of people involved in the kidnapping of his family. On the same day, he went to his brother’s house to say goodbye to him because he felt he would no longer be safe in Karachi. When he got to his brother’s house, his wife and children were there.

77 The appellant and his wife and children were then able to start a new life together. The appellant claimed that he offered his wife a divorce but she did not want it. He said that they took a house, which the appellant claimed was given to him by the Mullanah. Thereafter, life pretty much returned to normal.

78 However, the Muslims who converted the appellant wanted him to convert his children to Islam and for him to attend the mosque. The appellant did not want his children to convert and he could not reveal why he had converted. He told the Mullanah that he was trying to convert his family. The Mullanah continued to go to the appellant’s house and pressure him to convert his children. The appellant talked to his wife about converting but she did not want to.

79 The appellant claimed that in December 1998 some Christian missionaries came to his area and he was rebaptised as a Christian. The missionaries offered to help the appellant and his family to leave Pakistan but, after six months, they had still been unable to make any arrangements. The appellant continued to act like a Muslim and did not practise as a Christian, apart from praying at home. The appellant’s son continued to go to the same Catholic school that he had always attended. His daughters went to a Muslim school. The appellant had no more problems with the police.

80 The appellant claimed that, in approximately March 1999, the Mullanah pronounced a ‘fatwa’ against him. The Mullanah told him that, if the appellant converted back to Christianity or if he did not convert his family to Islam, he would be killed. The appellant told the Tribunal that the fatwa was written on a piece of paper, which was kept by the Mullanah and that only the Mullanah has a copy of it. The appellant claimed that he tried to live very secretly after that and could not go to church to practise Christianity.

81 The appellant claimed to be fearful of returning to Pakistan because he believed he would be persecuted on the grounds of:

82 Only the first claim is of present relevance. The appellant claimed that, if he were to return to Pakistan, he would be in trouble because people would know the history of his conversion and anyone who converts away from Islam is considered to be an apostate and could be subjected to persecution at the hands of the Muslim community.

83 In dealing with the claim that a fatwa had been pronounced against the appellant, the Tribunal observed:

84 The Tribunal accepted that the appellant told the truth about the difficulties that he had with his wife’s family and the difficulties that the police brought about for him through the influence of his brothers-in-law. The Tribunal was not satisfied, however, that the appellant’s claims in that regard were related to the Refugees Convention. The Tribunal observed that the appellant’s wife’s family are all Christians, apart from those who had converted to Islam through marriage. The Tribunal was satisfied that, if the appellant were a wealthy Christian, none of the problems that he experienced would have arisen. However, in the circumstances of the case, the Tribunal found that:

85 The Tribunal also accepted that there may be some people in the local Muslim community, in which the appellant lived after his conversion to Islam, who may be displeased with him if it became known that he had converted back to Christianity. The Tribunal considered that such people:

However, the Tribunal did not accept that the appellant’s potential difficulties would extend beyond that small community.

86 The Tribunal did not accept that the appellant’s conversion and reconversion would be known to anyone outside the small community in which he lived from late 1998 to late 1999. The Tribunal also did not accept that the fatwa would be known to anyone other than the local Mullanah. The Tribunal observed that the appellant is a Christian, has a readily identifiable Christian name and speaks excellent English. The Tribunal did not accept that there was anything about the appellant that would identify him as anything other than a Christian. The Tribunal considered that there was nothing about the appellant that would identify him as a convert from Islam to Christianity and that he would easily assimilate into any Christian community.

87 The Tribunal found that the appellant and his family, and his religious situation, would be known only to the people in the small Islamic community in which he lived in Karachi for one year. The Tribunal was not satisfied that the appellant would be known outside that community, in either greater Karachi or anywhere else in Pakistan. The Tribunal was satisfied that the appellant would be able to return to live, in safety, in another part of Karachi or another place in Pakistan, such as Islamabad, where his wife currently resides. The Tribunal observed that the appellant is a person who has been willing and able to relocate for purposes of employment, having moved to Indonesia to take up employment.

88 Given those factors, the Tribunal found that it would be reasonable for the appellant to relocate to Islamabad, and thus avoid any risk of harm from the Muslim community with which he previously resided. The Tribunal was also satisfied that the appellant could reside with safety in any area of Karachi away from the Muslim community who helped him when he was searching for his family, and for the year after his family was returned to him.

89 The appellant claimed that his brothers-in-law, two of whom are police officers, might reveal the fact of his conversion and reconversion to any community in which he was living. In relation to that claim, the Tribunal said:

90 In the result, the Tribunal was not satisfied that the appellant has a well founded fear of persecution if he returns to Pakistan. The Tribunal was therefore not satisfied that the appellant is a person to whom Australia has protection obligations under the Refugees Convention.

91 The appellant first sought review of the Tribunal’s Decision under the former Part 8 of the Act, by commencing proceeding N24 of 2001 in the Federal Court of Australia. On 16 March 2001 Madgwick J dismissed proceeding N24 of 2001 and ordered the appellant to pay half of the Minister’s costs (see [2001] FCA 393). There was no appeal from those orders.

92 However, at some time prior to 8 June 2001, the appellant commenced another proceeding, this time in the High Court of Australia (‘the First High Court Proceeding’). The First High Court Proceeding was commenced by filing a draft order nisi, together with an affidavit in support, applying for Constitutional writ relief in respect of the Tribunal’s Decision. On 8 June 2001, the appellant filed an amended draft order nisi in the High Court seeking such relief on five grounds as follows:

On the same day, 8 June 2001, Gummow J ordered that so much of that application for Constitutional writ relief as was made upon grounds (a), (b) and (c) in that draft order nisi be remitted to the Federal Court of Australia. Those grounds corresponded with s 476(1)(b), (c) and (e) of the Act as then in force.

93 The reason why grounds (d) and (e) of the draft order nisi of 8 June 2001 were not the subject of remitter is probably because the view was taken that the Federal Court lacked power to grant relief on those grounds, by virtue of s 485(3) of the Act as then in force, read together with s 476(2)(b) and s 476(3)(d). Under s 485(3) of the Act as then in force, if a matter relating to a judicially reviewable decision under the Act was remitted to the Federal Court by the High Court, the Federal Court did not have any powers in relation to that matter, other than the powers it would have had if the matter had been as a result of an application made under Part 8 of the Act as then in force.

94 Under s 476(1), an application for review could be made only on one or more of the grounds set out in that provision. Section 476(2)(b) relevantly provided that a ground upon which an application could not be made under s 476(1) was that the decision involved an exercise of a power that was so unreasonable that no reasonable person could have exercised the power. While one of the grounds specified in s 476(1) was that the decision was an improper exercise of the power conferred by the Act or the Regulations, s 476(3)(d) provided that the reference to an improper exercise of a power was to be construed as not including a reference to taking an irrelevant consideration into account in the exercise of the power.

95 The matter remitted on 8 June 2001 became proceeding N1075 of 2001 in the Federal Court. That proceeding came on for hearing before Sackville J. Despite the terms of the draft order nisi, only one argument was advanced on the appellant’s behalf. His Honour characterised that argument as ‘jurisdictional unreasonableness’. The appellant contended that the Tribunal committed jurisdictional error because its conclusion was unreasonable in two respects, as follows:

In particular, counsel for the appellant submitted that the finding that the appellant was not at risk of being revealed as an apostate, and thus not at risk of being identified as a convert from Islam to Christianity, was not supported by probative material or logical grounds (‘the jurisdictional unreasonableness argument’).

96 The Minister put forward five responses to the appellant’s argument, each of which was said to be a complete answer to his claim for relief in the Federal Court. The responses were as follows:

The Minister accepted that the abuse of process answer added nothing of substance to the Anshun and res judicata arguments. Nor was it suggested by the Minister that, in the circumstances of the case, issue estoppel would apply if res judicata did not.

97 Sackville J concluded that the appellant’s failure to raise the jurisdictional unreasonableness argument in proceeding N24 of 2001 was unreasonable, in the sense in which that expression is used in Anshun (at [48]), and that the Anshun principle therefore applied to the proceeding unless there were special circumstances justifying the non-application of the principle.

98 His Honour accepted that the special circumstances exception to the Anshun principle should not be understood narrowly, but should cover a case where justice requires the non-application of the general principle. Even so, his Honour did not consider that the matters raised by the appellant constituted a sound basis for declining to apply the Anshun principle in that proceeding. His Honour therefore applied the Anshun principle and, on 4 December 2001, ordered that proceeding N1075 of 2001 be dismissed and that the appellant to pay the Minister’s costs of that proceeding (see [2001] FCA 1669).

99 The appellant appealed to the Full Court from the orders made by Sackville J in proceeding N1075 of 2001. The Full Court agreed that, from a technical and procedural viewpoint, failure to raise the jurisdictional unreasonableness argument in proceeding N24 of 2001 was unreasonable in the Anshun sense. However, the Full Court considered that the combination of four factors amounted to special circumstances that would permit departure from the Anshun principle. While the Full Court would not have regarded any one of those four factors on its own as amounting to special circumstances, the Court was of the view that the four factors, taken cumulatively, amounted to special circumstances such that the appellant should have been permitted to advance the jurisdictional unreasonableness argument.

101 There is a certain tension between that last factor and the conclusion that it was unreasonable not to have raised the jurisdictional unreasonableness argument in proceeding N24 of 2001. The Full Court considered that the failure to raise the jurisdictional unreasonableness argument was excusable partly because the concept of jurisdictional unreasonableness had only quite recently been subject of judicial exposition, and there was little guidance in the particular context of the Act.

102 However, the Full Court proceeded to consider the jurisdictional unreasonableness argument. The Full Court concluded that the jurisdictional unreasonableness argument must fail by reason of the decision in Gamaethige where it was held that s 476(2)(b) of the Act precluded an applicant for judicial review of a decision of the Tribunal from relying on the jurisdictional unreasonableness argument. The Full Court was not persuaded that the earlier decision in Gamaethige was clearly wrong and therefore followed that decision. Accordingly, on 23 July 2002, the Full Court dismissed the appeal and ordered the appellant to pay the Minister’s costs of the appeal (see [2002] FCAFC 221).

103 On 17 June 2003, the High Court of Australia published its decision in Re Minister for Immigration; Ex parte S20 of 2002 [2003] HCA 30; (2003) 198 ALR 59 (‘S20’). The High Court held, contrary to the decision in Gamaethige, that s 476(2)(b) did not preclude a challenge in the Federal Court based on the jurisdictional unreasonableness argument. However, notwithstanding the decision in S20, on 12 September 2003, the High Court refused special leave to appeal from the orders of the Full Court of 23 July 2002. Thereafter, on 23 January 2004, the appellant discontinued the balance of the matter that was the subject of the First High Court Proceeding. Thus, the First High Court Proceeding was concluded.

104 However, in the meantime, on 24 December 2003, the appellant had commenced another proceeding in the High Court seeking Constitutional writ relief in respect of the Tribunal’s Decision (‘the Second High Court Proceeding’). On 16 February 2004, the Second High Court Proceeding was remitted in its entirety to the Federal Court and became proceeding N599 of 2004.

105 Proceeding N599 of 2004 came on for hearing before Moore J, when the appellant sought once again to advance the jurisdictional unreasonableness argument. The Minister responded that proceeding N599 of 2004 constituted an abuse of process. Moore J proceeded on the basis that it was not in issue that the jurisdictional unreasonableness argument was the same ground as had been raised in proceeding N1075 of 2001, to which the judgment of the Full Court of 23 July 2002 related. Moore J considered that, while it was true that the jurisdictional unreasonableness argument was raised in proceeding N1075 of 2001, it was not fully litigated because the argument was not considered and determined by Sackville J; nor was it considered and determined by the Full Court. His Honour concluded, therefore, that the proceeding was not an abuse of process.

106 Moore J then proceeded to deal with the substance of the appellant’s contention. His Honour concluded that the reasons of the Tribunal were not fundamentally flawed, as contended by counsel for the appellant. While his Honour considered that the Tribunal’s approach was curious, his Honour did not consider that the Tribunal’s conclusion was fanciful, as contended by counsel for the appellant. His Honour did not consider that the approach of the Tribunal provided a foundation for concluding that its reasoning was illogical. Accordingly, on 9 September 2004, Moore J made orders in proceeding N599 of 2004 that, if necessary, the time for the appellant to make an application be extended, but that the proceeding be dismissed with costs ([2004] FCA 1162).

107 On 30 September 2004, the appellant filed notice of appeal to the Full Court from the orders made by Moore J on 9 September 2004 in proceeding N599 of 2004. That appeal is the proceeding presently before this Full Court.

108 The only ground of appeal stated in the notice of appeal is that the primary judge should have held that the reasoning of the Tribunal was not supported by logical grounds or probative material and that, in the absence of such logical grounds and probative material, the Tribunal failed, or constructively failed, to exercise or to attain jurisdiction and the Tribunal’s Decision was therefore void for jurisdictional error. That is clearly the jurisdictional unreasonableness argument.

109 In written submissions, the appellant also sought to rely on an additional ground, namely, that the Tribunal’s reasoning depended on an explicit requirement that the appellant conceal the part of his personal history that exposed him to a risk of persecution on a Convention ground, even to the extent that he should live in some parts, but not other parts, of his country of origin (‘the S395 argument’). The S395 argument was based on the decision of the High Court in S395 of 2002 v Minister [2003] HCA 71; (2003) 216 CLR 473 (‘S395’) at [72]-[88].

110 Counsel for the appellant frankly acknowledged that he had not thought of the jurisdictional unreasonableness argument until after the decision of 16 March 2001 in N24 of 2001 had been made (see [2001] FCA 1669 at [44]). It is also apparent that the S395 argument was not thought of until after the reasons of the High Court’s decision in S395 had been published.

111 Neither of the grounds that the appellant now seeks to rely upon was ventilated in proceeding N24 of 2001. Hence, on 14 February 2005, the Minister filed notice of contention in this appeal, asserting that ‘there is an Anshun in estoppel arising from [proceeding N24 of 2001] which precludes [the appellant] from maintaining the present proceedings’. It is necessary to deal with the Minister’s contention before considering the merits of the appellant’s grounds of appeal. If the Minister’s contention were to be upheld, it would be unnecessary to deal with the substantive arguments of the appellant.

112 A distinction is to be drawn between the doctrine of res judicata (or cause of action estoppel), on the one hand, and the doctrine of issue estoppel, on the other hand. Under the first doctrine, the very right or cause of action claimed passes into judgment in an earlier proceeding, such that it no longer has an independent existence and cannot be sued upon in a subsequent proceeding. Under the second doctrine, a party will not be permitted to allege or deny, in a later proceeding between the same parties, a state of fact or proposition of law that was, as a matter of necessity, determined by a prior judgment or order in an earlier proceeding between those parties (see Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 532).

113 There is an extension of the latter doctrine to the effect that a party will also be estopped from raising in a subsequent proceeding a contention that could have been raised in an earlier proceeding and which it was unreasonable, in all the circumstances, not to have raised in the earlier proceeding (see Anshun at pp 598 ff). However, there is an exception to that extension that, in exceptional circumstances, a party may be permitted to raise in a subsequent proceeding a contention that it was reasonable not to have raised in an earlier proceeding (see Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242).

114 The question before Madgwick J in proceeding N24 of 2001 was whether, on one of the grounds set out in s 476(1) of the Act as then in force, the Tribunal’s Decision should be quashed or set aside and the matter referred back to the Tribunal for further consideration. That cause of action passed with proceeding N24 of 2001. As a consequence, res judicata could be raised as an answer to any further application for review under Part 8. Further, the dismissal of proceeding N24 of 2001 gave rise to an issue estoppel in relation to any question that was necessarily determined in reaching the conclusion reached by Madgwick J. Anshun estoppel would also arise in any subsequent proceeding in relation to any question that it was unreasonable not to have raised in proceeding N24 of 2001, even though that question was not raised, unless there were special circumstances that would justify a subsequent court permitting that question to be raised in the subsequent proceeding.

115 There has been a determination, as between the Minister and the appellant, that it was unreasonable not to have raised the jurisdictional unreasonableness argument in proceeding N24 of 2001, but that there were special circumstances that permitted it to be raised in proceeding N1075 of 2001. However, the jurisdictional unreasonableness argument having been raised, the Full Court dealt with it and rejected it on the basis of the decision in Gamaethige, perhaps albeit incorrectly, as the High Court subsequently determined in S20. That disposition of the jurisdictional unreasonableness argument could be relied on by the Minister as an issue estoppel answer in any subsequent proceeding in which the appellant sought to litigate the question of whether the Tribunal’s decision could be quashed or set aside on the basis of the jurisdictional unreasonableness argument. Thus, the Minister may have been entitled to rely on an issue estoppel answer in proceeding N599 of 2004.

116 However, Moore J observed that the Minister did not contend that the judgments in the earlier proceedings either gave rise to res judicata or created some form of estoppel. The Minister’s contention appears to have been limited to the assertion that proceeding N599 of 2004 was an abuse of process, in the light of the earlier proceedings. It is curious, therefore, that the notice of contention in this appeal seeks to raise Anshun estoppel rather than abuse of process. The Minister does not seek to support the decision of Moore J on the ground rejected by his Honour, namely that, because of the litigious history of the dispute between the appellant and the Minister concerning the Tribunal’s Decision, it was an abuse of process for the appellant to raise the jurisdictional unreasonableness argument in proceeding N599 of 2004.

117 Had the Minister relied on Anshun estoppel before Moore J, it would have been necessary for his Honour to make a determination as to whether it was unreasonable for the appellant not to have raised the jurisdictional unreasonableness argument and the S395 argument in proceeding N24 of 2001. That would have involved questions of fact that were not explored before Moore J. In those circumstances, it is difficult to see how the Minister can now rely on an Anshun estoppel arising out of proceeding N24 of 2001 in relation to the jurisdictional unreasonableness argument, as she seeks to do.

118 However, in relation to the S395 argument, the Minister did not raise res judiciata, issue estoppel, Anshun estoppel or abuse of process as an answer because the S395 argument was not itself raised before Moore J in proceeding N599 of 2004. The S395 argument was raised for the first time in submissions in the present appeal. The need for a factual enquiry, in order to determine whether there was such an answer available, is a good reason why the appellant should not be given leave to rely on the S395 argument at this stage. Since the question before Sackville J in proceeding N1075 of 2001 and the Full Court on appeal from Sackville J’s orders was whether the Tribunal’s Decision should be quashed or set aside on grounds (a), (b) or (c) in the draft order nisi of 8 June 2001, it may be arguable that there was no res judicata. However, there appears to be no reason why the S395 argument could not have been raised in proceeding N24 of 2001. Anshun estoppel, therefore, would be a good answer to the S395 argument, if the appellant were permitted to raise it. The appellant should not be given leave to raise the S395 argument for the first time on appeal.

119 The Tribunal made a finding of fact that the appellant would be able to live in parts of Karachi, or other places in Pakistan, such as Islamabad, without any fear of harm. The appellant claims to be a Christian. The Tribunal found that he would not be persecuted as a Christian if he moved to such an area. This is not a case where the appellant could avoid harm only by pursuing his Christian beliefs secretly. The Tribunal found that he could openly practise Christianity without harm, if he relocated to another part of Karachi or another part of Pakistan.

120 The appellant contended that the Tribunal’s Decision depends upon an explicit requirement that the appellant conceal part of his past which, it was accepted, exposed him to a risk of persecution on Convention grounds. It would be an erroneous approach for the Tribunal to find that there was no threat if the appellant were to conceal his religious beliefs (S395 at [72]-[88]).

121 However, the Tribunal found, in substance, that the appellant was not truly an apostate, because he never really converted to Islam. The Tribunal found, as a matter of fact, that, apart from the small community in which he lived in 1998-1999, no one would believe that he had converted to Islam, having regard to his name, appearance and family background. The Tribunal concluded, in essence, that while the appellant purported to convert to Islam, he did so for self-serving reasons and used the generosity of the Muslim community to his own advantage, reconverting to Christianity after he had got what he wanted. Thus, the Tribunal did not in fact find that the appellant was an apostate. That is to say, the Tribunal did not find that the appellant genuinely converted to Islam and then reconverted to Christianity.

122 The appellant did not claim that he was an apostate and that he wanted to proclaim his apostasy. It may be that, if he wanted to proclaim his apostasy, that could conceivably be a religious belief. However, the appellant made no such claim and the Tribunal made no finding to that effect.

123 In saying that the fact that the appellant’s brothers-in-law might reveal the fact of his reconversion would not cause the appellant any problems because he is so obviously a Christian, the Tribunal was simply saying that it does not accept the appellant would be treated as an apostate. In saying that no one would take claims by the appellant’s brothers-in-law about him being an apostate seriously, the Tribunal was simply saying that no one would accept that the appellant is an apostate because, in fact, he was not an apostate.

124 It follows that the appellant’s contention that the reasoning of the Tribunal was not supported by logical grounds or probative material must be rejected and the jurisdictional unreasonableness argument fails. That is the conclusion reached by Moore J. In the light of that conclusion, there is no ground established upon which the Tribunal’s Decision could be set aside as involving jurisdictional error.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Counsel for the Applicant:	JWK Burnside QC and R Killalea

Solicitor for the Applicant:	Rob Makin & Associates

Counsel for the Respondent:	NJ Williams SC and S Lloyd

Solicitor for the Respondent:	Clayton Utz

Date of Hearing:	18 February 2005

Date of Judgment:	22 April 2005

Federal Court of Australia - Full Court Decisions

S635 OF 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 65 (22 April 2005)