FEDERAL COURT OF AUSTRALIA ABX15 v Minister for Immigration and Border Protection [2016] FCA 855 File number: NSD 1743 of 2015 Judge: FLICK J Date of judgment: 29 July 2016 Catchwords: CONSTITUTIONAL LAW – freedom of religion – s 116 operates as a constraint upon legislative power and not executive power MIGRATION – applicant found not to be a genuine Christian – not falling within the protection of s 116 Legislation: Constitution, s 116 Judiciary Act 1903 (Cth), ss 39B, 78B Migration Act 1958 (Cth), s 91R(3) Cases cited: ABX15 v Minister for Immigration & Anor [2015] FCCA 3003 ABX15 v Minister for Immigration & Anor (No 2) [2015] FCCA 3004 Adelaide Company of Jehovah's Witnesses Incorporated v The Commonwealth (1943) 67 CLR 116 AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 Attorney-General (NSW) v Brewery Employees Union of NSW (1908) 6 CLR 469 Attorney-General (Vic); Ex rel Black v Commonwealth of Australia (1981) 146 CLR 559 Cheedy v Western Australia [2010] FCA 690 Cheedy v Western Australia [2011] FCAFC 100, (2011) 194 FCR 562 Kruger v Commonwealth of Australia (1996) 190 CLR 1 Krygger v Williams (1912) 15 CLR 366 Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 SZUDI v Minister for Immigration and Border Protection [2015] FCA 530 Date of hearing: 13 May 2016 Date of last submissions: 24 May 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 30 Counsel for the Applicant: Mr J Williams Solicitor for the First Respondent: Mr A Markus of Australian Government Solicitor Solicitor for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS NSD 1743 of 2015 BETWEEN: ABX15 Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: FLICK J DATE OF ORDER: 29 JULY 2016 THE COURT ORDERS THAT: 1. The Application for an extension of time is dismissed. 2. The proceeding is otherwise dismissed. 3. The Applicant is to pay the costs of the First Respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT 1 The Applicant arrived in Australia by boat without a visa or passport on 11 June 2012. 2 On 4 December 2012 he lodged an application for a Protection (Class XA) visa. That application was rejected by a delegate of the Minister on 1 August 2013. On 28 January 2015 the then Refugee Review Tribunal affirmed the decision not to grant the Applicant a protection visa. 3 On 5 March 2015 an Application seeking judicial review of the Tribunal's decision was filed in the Federal Circuit Court of Australia. That Application alleged: a denial of natural justice; a reasonable apprehension of bias; the making of "a series of adverse findings regarding the applicant's conversion to Christianity, which were otherwise contrary to section 116 of the Constitution"; a "misapplication of law or failure to ask the correct question"; an absence of evidence to "justify the making of the series of adverse credibility findings"; a failure to take into account relevant considerations; and unreasonableness. An Amended Application was filed on 6 October 2015. The Amended Application sought to recast the arguments alleging a contravention of s 116 of the Constitution. On 27 November 2015 a Judge of that Court concluded that leave to rely upon the Amended Application should be refused: ABX15 v Minister for Immigration & Anor [2015] FCCA 3003. Also on 27 November 2015, but in a separate judgment, the Judge dismissed the application: ABX15 v Minister for Immigration & Anor (No 2) [2015] FCCA 3004. 4 On 30 December 2015 the Applicant filed in this Court an Application for an extension of time within which to appeal both decisions of the Federal Circuit Court. The affidavit filed in support of that Application states (without alteration) that the "reason why my notice of appeal is later is because my lawyer made a mistake, thinking I had 28 days to file an appeal instead of 21 days". The affidavit further states that an attempt was made to lodge the Notice of Appeal on 24 December 2015 but that it was rejected by the Registry. 5 On 3 May 2016 an e-mail was forwarded to this Court seeking an adjournment of the hearing of the appeal listed for 13 May 2016 until after judgment had been delivered in a related case, AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68. Also forwarded to the Court on 3 May was a Draft Amended Notice of Appeal withdrawing all grounds "except for the religious freedom grounds under section 116 of the Constitution, identical to AMF15". 6 AMF15 was an application heard by a Full Court of this Court pursuant to s 39B of the Judiciary Act 1903 (Cth) (the "Judiciary Act") on 6 May 2016. One of the arguments there advanced was an alleged contravention of s 116 of the Constitution. The Full Court in AMF15 upheld the application on procedural fairness grounds. The Constitutional ground was not resolved: AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 at [53]. 7 The present Application proceeded to hearing on 13 May 2016. The Applicant was represented by Counsel; the Respondent Minister appeared by a solicitor of the Australian Government Solicitor's office. 8 The extension of time is to be refused. The argument sought to be advanced on behalf of the Applicant, confined as it was to the ambit of operation of s 116 of the Constitution, is without substance. Notices were served pursuant to s 78B of the Judiciary Act but no Attorney-General sought to intervene. 9 The proceeding is otherwise to be dismissed with costs. The substance of the Applicant's argument 10 Section 116 provides as follows: The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth. 11 In very summary form the Applicant contends that: the prohibition in s 116 upon the Commonwealth making "any laws" is a prohibition confined to the making of any law "establishing any religion" and that: section 116 thereafter prohibits both the making of any law and the administration of any law which imposes "any religious observance" or which prohibits "the free exercise of any religion". On this approach, s 116 extends beyond a prohibition upon the making of a law with respect to what was referred to in argument as the second and third "limbs" of s 116, the prohibition in s 116 extending on the argument advanced to both the "making" of any law and the "administration" of a law which imposes "any religious observance" or which prohibits "the free exercise of any religion". Presumably in recognition of potential difficulties in construing s 116 as relevantly anything other than a prohibition upon the making of laws, Counsel for the Applicant went on to contend, in the context of the present case, that s 91R(3) of the Migration Act 1958 (Cth) (the "Migration Act") falls foul of s 116 by reason of that provision being: a law which has been made for the purpose of imposing "religious observance" or which prohibits "the free exercise of any religion"; and/or a provision which as administered imposes "religious observance" or which prohibits "the free exercise of any religion". 12 Counsel for the Applicant sought to explain the manner in which he contended that s 116 should operate in respect to a claim for refugee status. He contended that a person seeking refugee status could claim that he was a Christian and that such a claim was conclusive and could not be called into question provided that the claimant: had been baptised; and attended church. Only the fact of baptism and attendance at church, it was contended, could be tested. Section 116 prohibited, so the argument ran, any testing of the person's claim that called into question: the genuineness of his claim to be a Christian; and/or whether he in fact engaged in any religious practice – such that a claimant was protected by s 116 to the extent of being able to pursue his religious belief by engaging in no practice at all. On such an approach, s 116 protected a person who had been baptised and attended church from any further inquiry or scrutiny into the manner in which he observed his religion or exercised his religious freedom. Any such further inquiry or scrutiny could not be pursued in order to test the genuineness of a professed conversion to Christianity. Once a claimant had established the fact of his baptism and attendance at church, no further question could be put – so it was contended on behalf of the Applicant – challenging the genuineness of his claim to be a Christian. 13 Section 91R(3) of the Migration Act (as it then was) provided that when determining whether a person had a well-founded fear of persecution for one or more of the reasons mentioned in Art 1A(2) of the Refugees Convention – that article including a fear of persecution "for reasons of … religion" – "any conduct engaged in by the person" is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee. It was the requirement to "disregard" such conduct, including conduct such as being baptised or attending church, which Counsel for the Applicant said engaged s 116. 14 The argument so advanced confronts a number of insurmountable difficulties. To some extent these difficulties intertwine with one another. Although the central argument advanced on behalf of the Applicant necessarily contended for the invalidity of s 91R, courts should – of course – only so conclude if it is necessary to do so: cf. Attorney-General (NSW) v Brewery Employees Union of NSW (1908) 6 CLR 469 at 590 per Higgins J; Re Patterson; Ex parte Taylor [2001] HCA 51 at [250]; (2001) 207 CLR 391 at 473 to 474 per Gummow and Hayne JJ. Was the Applicant a Christian? 15 The most fundamental difficulty confronting the Applicant is that the Tribunal found as a fact that he was not a "genuine Christian". It was upon that basis that the Applicant sought to invoke s 116. The Applicant claimed no other "religion". 16 In doing so, the Tribunal concluded in part as follows (without alteration): [67] For all of the above reasons, having carefully considered the evidence before it, the Tribunal has no confidence in accepting, and does not accept, that the applicant is or ever has been a genuine believer in the doctrines and principles of Christianity or that he is a genuine Christian. Having carefully all of the evidence and information before it, the Tribunal considers that his baptism and subsequent attendance at church in Australia, which it is prepared to accept he has done at various times since his arrival, has been done for the purpose of founding and strengthening a claim for protection, and not for genuine reasons of his religious beliefs, or for other reasons not associated with making an application for protection ... 17 The Tribunal thereby rejected the Applicant's contention that he was a "genuine Christian". Not surprisingly, it made no finding that the Applicant was prohibited from exercising his religious beliefs. Section 116 and the making of any law –v– the administration of a law 18 It was presumably a recognition of this factual conclusion reached by the Tribunal that necessarily drove Counsel for the Applicant to contend that s 116: is confined to the making of a law for "establishing any religion" and that there was no necessity for a person who sought to invoke s 116 to point to any law which otherwise prohibited "religious observance"; and section 91R(3) was either a law which fell within one or other of the limbs of s 116 or was a law which was administered contrary to s 116. In one way or another, to achieve success the Applicant had to establish that the testing of his claim to be a Christian by the Refugee Review Tribunal fell foul of s 116. 19 The Applicant's initial submission that s 116 is confined to the making of "any law for establishing any religion" is rejected. Thus, for example, in Adelaide Company of Jehovah's Witnesses Incorporated v The Commonwealth (1943) 67 CLR 116 at 122 Latham CJ observed that: … it is important to observe that s 116 is an express prohibition of any law which falls within its terms. The section deals with laws which in some manner relate to religion. Section 116, accordingly, prohibits (for example) the making of "any law … for imposing religious observance…". See also: Krygger v Williams (1912) 15 CLR 366 at 369 per Griffith CJ; at 372 to 373 per Barton J. 20 In the circumstances of the present case, s 91R cannot be construed as a law which falls within any of the limbs of s 116. 21 So, too, is the Applicant's further submission that s 116 extends beyond the making of a law and necessarily embraces the manner in which a law is administered. In Attorney-General (Vic); Ex rel Black v Commonwealth of Australia (1981) 146 CLR 559 at 580 to 581 Barwick CJ thus observed: The next observation I wish to make as to s 116 is that it is directed to the making of law. It is not dealing with the administration of a law. The Chief Justice, however, immediately thereafter went on to observe: But, if that administration is within the ambit of the authority conferred by the statute, and does amount to the establishment of a religion, the statute which supports it will most probably be a statute for establishing a religion and therefore void as offending s 116. That is so, not because of the manner of the administration but because the statute, properly construed, authorizes it. I say most probably, because the purposive content of the expression "for establishing" must, in any case, be satisfied. Although Ex rel Black concerned the prohibition against the making of a law "for establishing any religion", the Chief Justice's comments should be understood as referring to s 116 as a whole. Justice Toohey endorsed these comments in Kruger v Commonwealth of Australia (1996) 190 CLR 1 at 86. Similarly, Gaudron J in Kruger (at 125) also observed: … It follows, in my view that s 116 must be construed as no more than a limitation on Commonwealth legislative power … These comments, with respect, do no more than endorse the language employed in s 116. In this Court, it should be noted that McKerracher J has observed that s 116 "is directed to the making of Commonwealth laws, not with their administration or with executive acts done pursuant to those laws": Cheedy v Western Australia [2010] FCA 690 at [83] per McKerracher J. An appeal has been dismissed: Cheedy v Western Australia [2011] FCAFC 100, (2011) 194 FCR 562. 22 Applied to the circumstances of the present case, s 91R(3) cannot be seen as a law which "authorised" administrative conduct which offends s 116. 23 The Applicant's submission founded upon the manner in which s 91R(3) has been administered is also rejected. 24 The manner in which the Refugee Review Tribunal set out to test the Applicant's claim to be a Christian was a function entrusted to it. There was no impediment to the Tribunal testing the claim being advanced. An assertion on the part of the Applicant that he was a Christian did not manacle the Tribunal to the confined task of simply testing whether he had been baptised or attended church. The Applicant by making the claim could not preclude the Tribunal from testing the more fundamental assertion of fact as to his Christian belief. In testing the claim being made, the Tribunal moreover did not seek to impose upon the Applicant any preconceived views as to the beliefs a person would have to hold in order to be a Christian; it was simply testing the claim made. 25 No argument, it should be finally noted, was advanced which sought to bring a person who held no religious conviction at all within the reach of s 116: cf. Adelaide Company of Jehovah's Witnesses Incorporated v The Commonwealth (1943) 67 CLR 116 at 123. Latham CJ there recognised that s 116 "proclaims not only the principle of toleration of all religions, but also the principle of toleration of absence of religion". The claim made by the Applicant, and as resolved by the Tribunal, was the claim founded upon the Applicant being a Christian. 26 Contrary to the submission advanced on behalf of the Applicant, a claim by a person that he has a particular religious conviction (in the present case, a claim to be a Christian) is not by itself conclusive. In the present case, the primary task being lawfully pursued by the Tribunal was to test the claim of the Applicant. That claim was found to be false. CONCLUSIONS 27 The only basis for seeking an extension of time was to advance the argument founded upon s 116 of the Constitution. Because that argument has been rejected, there is no point extending time only to dismiss the appeal itself. 28 A similar conclusion, it may be noted, has been reached by Siopis J in SZUDI v Minister for Immigration and Border Protection [2015] FCA 530 at [22]. 29 Subsequent to judgment being reserved in the present matter, Counsel for the Applicant brought to the attention of the Court the fact that an application has been filed in the original jurisdiction of the High Court of Australia raising substantially similar issues: Plaintiff S178A/2016 & Ors v Minister for Immigration and Border Protection & Anor. Notwithstanding such benefit as may have been thrown upon the resolution of the issues presently in need of resolution by any decision of the High Court, it has been concluded not to delay judgment in the present matter. The resolution of the present arguments, it is respectfully considered, is no more than the application of well-established and long-established principles. 30 The Application for an extension of time is to be dismissed with costs. THE ORDERS OF THE COURT ARE: 1. The Application for an extension of time is dismissed. 2. The proceeding is otherwise dismissed. 3. The Applicant is to pay the costs of the First Respondent. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 29 July 2016