W244/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 52 (5 February 2002)

Last Updated: 5 February 2002

FEDERAL COURT OF AUSTRALIA

W244/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 52

MIGRATION - protection visa - application refused - Tribunal affirming that decision - whether Tribunal in error of law - whether Tribunal considered if denial of access to government employment constituted persecution - whether no evidence to support Tribunal's conclusions - whether Tribunal in error in conclusion concerning applicant's religion - whether Tribunal actually biased

Migration Act 1958 (Cth) ss 476(1)(a), 476(1)(e), 476(1)(g) and (4)

Hathaway, The Law of Refugee Status (Butterworths, Toronto, 1991)

Chan v Minister of Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 cited

Li Shi Ping v Minister for Immigration & Multicultural Affairs (1994) 35 ALD 557 cited

Prahastono v Minister for Immigration & Multicultural Affairs (1997) 77 FCR 260 referred to

Minister for Immigration & Multicultural Affairs v Ibrahim [2000] HCA 55; (2000) 74 ALJR 1556 referred to

Kord v Minister for Immigration & Multicultural Affairs (2001) FCA 1163 referred to

Ahwaz v Minister from Immigration & Multicultural Affairs (2001) FCA 1818 referred to

Applicant Z v Minister for Immigration & Multicultural Affairs (2001) FCA 1714 cited

Yusuf v Minister for Immigration & Multicultural Affairs [2001] HCA 30; (2001) 180 ALR 1 cited

Chen Shi Hai v Minister for Immigration & Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293 cited

Omar v Minister for Immigration & Multicultural Affairs [2000] FCA 1430; (2000) 62 ALD 342 cited

Wang v Minister for Immigration & Multicultural Affairs [2000] FCA 1599; (2001) 179 ALR 1 referred to

W244/01A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 244 of 2001

RD NICHOLSON J

5 FEBRUARY 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 244 of 2001

BETWEEN:	W244/01A APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	5 FEBRUARY 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 244 of 2001

BETWEEN:	W244/01A APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	RD NICHOLSON J
DATE:	5 FEBRUARY 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1 This is an application seeking an order for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 1 June 2001, in which the Tribunal affirmed the decision of a delegate of the respondent not to grant the applicant a protection visa. This application is brought in reliance on s 476 of the Migration Act 1958 (Cth) ("the Act").

2 The applicant is a citizen of Iran who arrived in Australia on 20 December 2000. The decision of the delegate was made on 28 February 2001.

Relevant provisions

3 Under s 36(2) of the Act a non- citizen in Australia is eligible for a protection visa if that person is someone: "... to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." The Refugees Convention is the Convention Relating to the Status of Refugees 1951 and the Refugees Protocol is the Protocol Relating to the Status of Refugees 1967. The expression "Convention" will be used to mean the Convention as amended by the Protocol. The same criterion appears in Sch 2 of the Migration Regulations in which item 785 and 866 both include the same criterion.

4 Article 1A(2) of the Convention defines a "refugee" to be any person who:

"...owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it".

5 The reasons specified in Art 1A(2) are known as Convention reasons. The existence of such reasons threatening the life or freedom of a refugee in a territory to which it is proposed he or she be expelled or returned, gives rise to a protection obligation prohibiting such expulsion or return as a consequence of Art 33 of the Convention.

Applicant's claims

6 The principal claims advanced by the applicant before the Tribunal as to why he qualified as a refugee were:

(a) family members had belonged to anti-government organisations. One brother was a member of the Mohajedin Khalgh Organisation ("MKO"). Another brother was a member of the Faddeian and two others supported this group. The family was consequently blacklisted and any application for a government job by the applicant or any family member would be refused. The applicant would not get employment and in that way was discriminated against;

(b) If the applicant went back to Iran he would be in trouble because when the Iranian authorities returned his passport to him, after its confiscation for two years, he was warned not to apply again for refugee status;

(c) It amounted to persecution that he could not follow a religion of his choice and he was too afraid to tell anyone he was not a Muslim. The applicant claimed he is a non-Muslim and believes in God but keeps his religion "inside".

Reasons and findings of the Tribunal in relation to claim arising from family political affiliations

7 The findings of the Tribunal on this aspect were:

(a) the applicant has never participated in any political activity or been a member of any political organisation or taken part in any activity against the government;

(b) the applicant, who is not associated with the MKO in any way, would not have been persecuted because there were other family members associated with the MKO;

(c) the applicant faces no prospective charge of persecution in the reasonably foreseeable future because of his association with anti-government family members;

(d) although suffering can arise in consequence of sympathy at seeing a close relative punished or enduring hardship the suffering "does not amount to persecution within the ambit of the Convention as it lacks motivation...".

8 In rejecting the contention that the punishment of the applicant's relatives would result in persecution of the applicant, the Tribunal took into account:

(i) the applicant himself never participated in any political activity;

(ii) the family members were punished because of their membership of the MKO and not because of family connections and so those who were not members of the MKO, such as the applicant, were not persecuted for their family connections;

(iii) the punishment of family members occurred some time ago and the applicant suffered no adverse consequence for his association with family members then or later when he returned from Norway;

(iv) although personal suffering can arise out of sympathy at seeing punishment or hardship inflicted on a family member the suffering is not persecution for a Convention reason because it is not inflicted for, or motivated by, a Convention reason.

9 In his written statement accompanying his application for the protection visa, the applicant said:

"Due to our background my family's name is blacklisted. Every time myself or a family member applied for a government job we were refused due to our political background.

In 1999 I applied for a job as a Human Resource Officer, which I was qualified for but I was refused due to my family's political background. In the refusal letter that I received it stated that I had not passed the character assessment stage. The character assessment stage is where they researched the family background to see if you are loyal to the Islamic Republic."

Tribunal's reasoning and findings in relation to claim arising from return to Iran

10 The Tribunal found:

(a) on return to Iran checks were carried out and the applicant was then released because he was not of political concern to the authorities;

(b) there is no independent evidence to suggest that recidivists suffer greater harm than those who make an application for asylum on just one occasion;

(c) the applicant does not have a political profile of concern to Iranian authorities such that there is a "real chance" he would be persecuted;

(d) it was not accepted that the applicant was detained without food for four days when he returned to Iran from Norway, though he was detained for questioning for that period to ascertain he was not of concern;

(e) the applicant would not be persecuted for having made an application for refugee status and in this regard accepted the Netherlands Country information of December 1998.

11 In relation to the applicant's claims arising from his previous asylum in Norway, the Tribunal took into account:

(i) the applicant's visit to Norway did not result in any political opinion being imputed to him on return to Iran. Even if it was accepted he was held for four days this was only to enable the authorities to make checks on the applicant and he was then released, being of no political concern;

(ii) since his release he has been able to live in the same way as he had prior to his departure;

(iii) the independent evidence did not suggest that recidivists, such as the applicant, who have made further attempts to gain refugee status in Australia suffer greater harm for doing so. The Tribunal adopted the view of the 1998 Dutch Foreign Affairs Report that failed asylum claims would not give rise to persecution.

Tribunal's reasons and findings concerning claim arising from applicant's religious beliefs

12 The Tribunal found:

(a) the applicant said he does not follow any particular religion and has never been open about his beliefs. However he is non-Muslim and believes in God.

(b) no one is aware of the applicant's beliefs and he has never attempted to act on those feelings.

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

13 The Tribunal's reasoning was:

(i) that since the Iranian authorities are not aware of the applicant's beliefs there is no motivation for any person or group to target him so as to amount to "persecution";

(ii) the applicant's fear in acting upon his belief does not amount to persecution and he does not claim to have ever attempted to act on those feelings;

(iii) the applicant's religious views, even if genuinely held, are private and hidden to such an extent that no one would be aware of them, and, since he will continue to suppress them, there is no prospective risk of persecution.

Grounds of review

14 The applicant, who is unrepresented, was unable to obtain a successful response to an order made pursuant to O 80 r 4(4) of the Federal Court Rules in respect of obtaining a pro bono counsel. Consequently the grounds supporting his application are those which are more often than not used in standard form by detainees seeking refugee status. Those grounds seek to rely on: procedural non-observance - s 476(1)(a); error of law - s 476(1)(e); and no evidence - s 476(1)(g) and (4). The particulars with which the applicant supported his grounds are addressed in the reasoning which follows, as are the submissions by way of argument on behalf of the applicant and the respondent.

Reasoning

Family history of political opposition

15 In his submissions the applicant said the family had not been able to continue to lead a normal life. The political involvements of the family had caused one brother to become mentally ill and destroyed the life of another brother. It had also led to him not being able to work and having to leave the country. This was the consequence of the nature of the governmental system in his country. He also submitted that it was not satisfactory for the Tribunal to have found that he had employment in the private sector when the reality was that he worked in his brother's shop which did not have any of the remuneration for holiday and sick pay as a government job had.

16 It is the case that "denial of access to employment may constitute persecution": Chan v Minister of Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 429 - 431 per McHugh J. Denial of access to employment is therefore "capable of constituting persecution": Li Shi Ping v Minister for Immigration & Multicultural Affairs (1994) 35 ALD 557 approved by the Full Court in (1994) 34 ALD 228. In Prahastono v Minister for Immigration & Multicultural Affairs (1997) 77 FCR 260, an applicant was unable to obtain work in the public service because of his father's involvement in an anti-government coup. Though he had been employed at various times in the private sector. Hill J said (at p 267):

"... discrimination in employment may constitute persecution in the relevant sense if for a Convention reason. However, whether it does so depends on all the circumstances. Clearly, in an economy where there was no private enterprise at all, inability to obtain government employment for a Convention reason would constitute discrimination because that would constitute an "act of oppression", to adopt the language of McHugh J in Chan. And it would be just as much oppressive and thus involve persecution if, instead of there being no ability to obtain employment, there is ability to obtain employment but limited to jobs which are dangerous or demeaning to the person employed to do them. If, on the other hand, there existed a mixed economy, so that government employment merely competed with private employment and exclusion from government employment would not result or be likely to result in the person seeking work being unable to obtain appropriate work and thus an appropriate living, then it is hard to see that the refusal to permit employment would constitute persecution. That would not be oppressive, at least to any significant extent."

In Minister for Immigration & Multicultural Affairs v Ibrahim [2000] HCA 55; (2000) 74 ALJR 1556 at 1565 [par 55], McHugh J said:

"...Persecution involves discrimination that results in harm to an individual. But not all discrimination amounts to persecution. With the express or tacit approval of the government, for example, some employers may refuse to employ persons on ground of race, religion or nationality. But, discriminatory though such conduct may be, it may not amount to persecution. Other employment may be readily available. The Convention protects persons from persecution, not discrimination...".

17 In Kord v Minister for Immigration & Multicultural Affairs (2001) FCA 1163, Hely J considered and upheld a claim that because of an applicant's racial background he had, in the past, been subject to repeated acts of discrimination, humiliation and violence, even though at irregular frequency, coupled with the practical exclusion of any opportunity for employment in government service (notwithstanding an apparent legal eligibility for such employment), so that the application of the proper tests as to persecution could only result in a conclusion that there had been a serious systemic discrimination on racial grounds practiced in Iran and officially condoned such as to give rise to a well-founded fear of persecution on his part. After reviewing the authorities, Hely J said at [35]:

"It seems to me that there is an inconsistency between the decision of the Full Court in Gersten, and the decision of McHugh J in Ibrahim. The inconsistency is to be found in the fourth of McHugh J's criteria for persecution. The Full Court rejects "significant or serious harm" as a necessary ingredient of persecution in favour of harm which is more than trivial or insignificant. On McHugh J's definition of persecution, the conduct must be such that the putative refugee cannot be expected to tolerate it. The two things are not the same, and the difference between them is one of substance rather than merely a matter of language.

It seems to me to follow from the Full Court's decision in Gersten that unjustifiable and discriminatory conduct, officially tolerated, directed at an applicant by reason of his race is persecution unless the impact of that conduct on the applicant is trivial or insignificant. Whereas on the test adopted by McHugh J the impact of such conduct may be more than trivial or insignificant, but if the putative refugee could nonetheless be expected to tolerate it rather than claim international protection, then he or she is not a refugee in terms of the Convention.

I am bound by the decision of the Full Court in Gersten. I am not entitled to put it to one side, and to follow the decision of McHugh J in Ibrahim in preference to it, even though Gaudron J also refers to conduct which is sufficiently serious to constitute persecution. Applying the Full Court's decision in Gersten, RRT has overstated the severity or the gravity of the conduct which is required for it to be characterised as persecution and the ground of review specified in s 476(1)(e) is made out."

18 Kord was an applicant of Algerian descent. Although he and his family were all Iranian citizens, his claim was that he had faced the discrimination in Iran because of his black skin. His claim involved not only discrimination in relation to employment but also public humiliation and assault on account of the colour of his skin.

19 In Ahwaz v Minister from Immigration & Multicultural Affairs (2001) FCA 1818 Carr J considered this question at par 33:

"In summary, I do not think that the Full Court in Gersten intended to hold that any harm which was more than trivial or insignificant amounts to persecution, but was simply establishing a benchmark below which persecution could be found. Hely J in Kord read Gersten differently, but I agree with his observation that, but for Gersten, it had been established by the authorities that the notion of persecution requires that the harm feared must be sufficiently serious as to justify international protection. I understand that the Minister has lodged an appeal against the decision in Kord."

20 His Honour reviewed the authorities on the meaning of "persecution" in Applicant Z v Minister for Immigration & Multicultural Affairs (2001) FCA 1714 at pars 8 - 12 and there concluded that the Tribunal had not erred in adopting a test of persecution similar to that of Mason CJ in Chan which is what the Tribunal did here. It is submitted for the respondent that the view of Carr J is to be preferred to that of Hely J in construing "persecution", and that the test applied to the meaning of "persecution" by the Tribunal here was not unduly stringent.

21 In this case the applicant is unrepresented. The issues of law arising from Kord have not, therefore, the benefit of adversarial argument. While I am inclined to agree with the views of Carr J in Ahwaz, I do not propose in this context to reach a final view on the issues of law. It is unnecessary to do so because the issues of fact are clearly determinative, in my view.

22 Here the applicant's claim was to the effect that due to the black listing of his family's name, every time he (or a family member) applied for a government job he was refused due to the political background. The reasons of the Tribunal contain a record of the exchange at the Tribunal hearing on the issue in the following terms:

"He said that ideological selection for employment continued to be a criterion and those who succeeded in the country generally were corrupt.

He said that he would not get employment and, in that way was discriminated against.

I said that I assumed by that that he meant he would not be employed in the public sector since he had provided a history of his employment in his application for a protection visa which showed he had always held employment in Iran.

The Applicant said that was what he meant but that I should be aware that Iran had only one product to market and that was oil.

He said that, as a consequence, all jobs are in the hands of the government.

I pointed out to him that we had previously discussed his employment and that of his brothers, and while they were all working privately, they were all working.

The Applicant said that as he was a qualified accountant that this was the job he should be doing, and not to be able to do so meant that he was discriminated against.

He said that the ongoing suffering of being shut out of the employment he was qualified for was harsher than executions that political dissents were sentenced to."

23 In the submissions for the respondent it was said, seemingly based on that passage, that the Tribunal made a finding of fact to the effect that the applicant's inability to secure a government job did not amount to persecution because he had always found employment in the private sector. It is now accepted for the respondent, however, that the Tribunal did not make any finding of fact on the matter. Furthermore, under that section of the Tribunal's reasons headed "Findings and Reasons" there is no reference to whether the applicant's inability to secure a government job did or did not amount to persecution.

24 In the light of the authorities on the question of persecution and the issue of discrimination and employment, it is relevant to inquire whether the Tribunal was required to apply the law relating to persecution to the facts of the applicant's inability to secure a government job and to form an opinion at to whether or not that inability amounted to persecution and whether it did so.

25 The case for the respondent contends the findings of the Tribunal adequately determined this issue. Reliance is placed on the matters referred to in pars (c) and (i), (ii) and (iii) above outlining the Tribunal's findings and reasoning in relation to the applicant's claim arising from family political affiliations.

26 The applicant's claim of discrimination in government employment was based upon the assertion that because of the family's past involvement in political groups opposed to the government, he and other family members were blacklisted whenever he or they applied for a government job. The finding of the Tribunal that the applicant was not, and would not in the future be persecuted because of his association with relatives who had affiliations with the MKO, precluded a finding in favour of the applicant that any failure to obtain employment in government would be for a Convention reason. To put another way, the finding by the Tribunal that the applicant did not have a political profile, and did not suffer discrimination because of certain family members association either with the MKO and the Fadayeian Khalq, rendered otiose the making of a finding on the specific issue of whether the applicant was denied government employment, and if so, whether this denial of employment amounted to persecution.

27 The High Court has ruled that the requirement for a Tribunal to make findings on material questions of fact does not enliven a ground of review under s 476(1(a) in any event. In Yusuf v Minister for Immigration & Multicultural Affairs [2001] HCA 30; (2001) 180 ALR 1 at par 75 in the joint judgment of McHugh, Gummow and Hayne JJ's it was said:

"It is not accurate, however, to say that the Tribunal is, therefore under a duty to make all material findings of fact ... rather, the relevant enquiry remains whether the Tribunal has made an error of law, has failed to take account of relevant considerations or has taken account of irrelevant considerations."

28 In addressing the applicant's political profile and family connections and making the findings that it did, the Tribunal did enough to make superfluous express findings about the claimant's application for government employment.

29 It is material also to note that although the applicant contended that "Every time myself or family member applied for a government job we were refused due to our political background", the only specific job he mentions applying for (and for which he was refused) was that of Human Resource Officer - not that of an accountant.

30 Even if it is assumed that a degree in Business Management would ordinarily suffice to give an Iranian applicant an accounting job in government, the applicant must still show failure to secure such government employment because of his ideological profile so disadvantages the applicant that, on the McHugh J test in Ibrahim, the applicant "cannot be expected to tolerate it" or that the discrimination is such that it represents a "significant departure from the standards of the civilised world" (Chen Shi Hai v Minister for Immigration & Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293 at par 29 per Gleeson CJ, Gaudron, Gummow and Hayne JJ). I agree with the submissions for the respondent that only if the definition of persecution in Gersten is not only authoritative, but truly signifies that persecution need not be of a "serious" nature or of "significant" harm, would it be open to the Tribunal to conclude that the discrimination to this applicant's answers, on any view, "persecution" in the Convention sense.

31 The applicant also contended that the denial of employment to him was a depravation of his human rights. That, however, is only another way of expressing the need in relation to that future conduct to give practical application to the words of the Convention to the circumstances of the individual case: Omar v Minister for Immigration & Multicultural Affairs [2000] FCA 1430; (2000) 62 ALD 342 at 355.

Circumstances of applicant's return to Iran

32 It is apparent that there was evidence or other material to support the Tribunal's findings as set out above.

33 In relation to the applicant's position after his return from Norway, he contended that the Tribunal member had failed to mention particular evidence in the decision and had disregarded other evidence. However, there was no obligation on the Tribunal to refer to every particular piece of evidence. There was clearly evidence to support the findings of the Tribunal in respect of the position post-Norway.

Religious beliefs

34 The applicant's submissions were that since his arrival he had consistently said that he was not a Muslim and that he believed in God although he did not belong to any religion. He claimed, in the course of this application, that during his period of study he had manifested the fact that he was non-Muslim by not attending daily prayers. As a consequence of which he was punished by the religious teacher. As recorded in the Tribunal's reasons, his claim was that the mere fact he feels a fear of persecution because of his religious beliefs so that he does not take any action to manifest those beliefs, constitutes persecution. In submissions on this application he also challenged the finding of the Tribunal that his commitment to the beliefs was not such that his inability to express them constituted a serious detriment so that it did not amount to persecution.

35 The meaning of "religion" in Art 1A(2) of the Convention has been considered by the Full Court of this Court in Wang v Minister for Immigration & Multicultural Affairs [2000] FCA 1599; (2001) 179 ALR 1. At p 18 [81], Merkel J said on this issue:

"Accordingly, it is appropriate to consider art 18 of the Universal Declaration and the objects of the convention in interpreting art 1A(2). When regard is had to those matters it is clear that there are two elements to the concept of religion for the purposes of Art 1A(2): the first is as a manifestation or practice of personal faith or doctrine, and the second is the manifestation or practice of that faith or doctrine in a like-minded community. I would add that that interpretation is consistent wit the commonly understood meaning of religion as including its practice in or with a like-minded community."

At 3 [5], Wilcox J agreed with Merkel J with one reservation. He did not agree with Merkel J that reference should be made to Art 18 of the Universal Declaration in determining the meaning of "religion" for the purposes of Art 1A(2) of the Convention. He said:

"I regard my reservation as immaterial to the result because, as it seems to me, the concept of "religion", in Art 1A(2) of the Convention on Refugees, anyway includes the element of manifestation or practice of a religious faith in community with others. This element is inherent in the ordinary meaning of the word. For example, the first two definitions of the word in the Macquarie Dictionary are:

1. the quest for the values of the ideal life, involving three phases, the ideal, the practices for attaining the values of the ideal, and the theology or world view relating the quest to the environing universe.

a particular system in which the quest for the ideal life has been embodied [Emphasis added].

The Shorter Oxford English Dictionary gives the following relevant definitions of religion:

Action or conduct indicating a belief in, reverence for, and desire to please, a divine ruling power; the exercise or practice of rites or observances implying this; A particular system of faith and worship [Emphasis added].

Some religious rites may be privately practised by individual believers; but the major world religions, at least, also require or encourage their adherents to participate in communal rites or practices. Most Christian denominations, for example, require or encourage adherents to attend mass or holy communion. Muslims are expected to attend prayers, especially on Fridays.

The form and content of communal rites and practices is often a matter of enormous importance to adherents of a particular faith, as is their system of governance. Many wars have been fought, and many people martyred, because of disagreements on such matters."

Gray J agreed with the view of Merkel J on this issue of law.

36 This Court is bound by that interpretation of "religion" in Art 1A(2). It follows that, absent any manifestation or practice of the applicant's faith or doctrine in a like-minded community, there was no basis on which he could be found to have a well-founded fear of persecution on the Convention ground of "religion". The Tribunal was therefore correct to rely on the absence of such communal manifestation for reaching its conclusion there could not be any well-founded fear of persecution on the ground of the applicant's religion.

37 As to the applicant's contention that his faith had been manifested - not by positive conduct - but by non-attendance at Muslim prayers, that is not a manifestation of the requisite type because it does not occur "in a like-minded community". Article 18 of the Universal Declaration itself recognises the right to freedom of religion includes "either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance". As I read the views of the Full Court, however, manifestation by practice of abstention from Muslim prayers alone will not be a manifestation or practice of the applicant's religion unless there first be the presence of the faith or doctrine in a like-minded community. Although therefore it cannot assist the applicant, I note that JC Hathaway, The Law of Refugee Status (Butterworths, Toronto, 1991) at pp 145-6 considers "an individual's right to religion implies the ability to live in accordance with a chosen belief, including participation in or abstention from formal worship and other religious acts, expression of views, and the ordering of personal behaviour".

38 As to the Tribunal's conclusion that the applicant's commitment to his beliefs was not such as would lead him into future conduct giving rise to a likelihood of persecution for the Convention reason of his religion, the Tribunal had evidence before it to justify the conclusion it reached. Further, it was a finding with which this Court cannot interfere or remake.

Actual bias

39 The applicant contended that the Tribunal had disregarded evidence and followed its pattern of reasoning because the Tribunal member wanted to get to a result which he was looking for. That raises the possibility that the applicant would seek to claim actual bias. There is no evidence of such bias and no case is made out in that respect.

Conclusion

40 For these reasons I consider the application should be dismissed.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Associate:

Dated: 5 February 2002

Counsel for the Applicant:	The applicant represented himself
Counsel for the Respondent:	Mr R Lindsay
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 December 2001
Date of Judgment:	5 February 2002