Case: Applicant NABD of 2002 v Minister for Immigration and Multicultural Affairs [2005] HCA 29 ; (2005) 216 ALR 1
Outcome: cited
After setting out the passage which appears at [45] in Applicant NABD of 2002 v Minister for Immigration and Multicultural Affairs [2005] HCA 29 ; (2005) 216 ALR 1 (per McHugh J) the writer continues: Proselytizing in Indonesia is prohibited by law where it is considered a criminal offence. Breach of such law may lead to imprisonment and other penalties. We also note that Proselytizing by Christians is viewed generally as contrary to the beliefs of Islam. The latest Report on Religious Freedom in Indonesia states that: "The government bans proselytizing, arguing that such activity, especially in areas heavily dominated by members of another religion, could prove disruptive. A joint decree issued by the Ministries of Religion and Home Affairs in 1979 prohibits members from one religion from trying to convert members of other faiths." Example of criminalization of proselytizing is Regulation 86UU No.23 2002 Child Protection which says: 'Any person who purposely uses deception, lies and enticement to make a child choose another religion not of his own free will, whereas it is known or should be assumed that the child is not of age and not responsible according to the religion they followed, will be prosecuted by imprisonment for five years and/or a fine of RP 100,000,0000 [sic].' It is submitted that the law criminalizing proselytizing is not a law of general application. We submit that the law prohibiting proselytizing is persecutory not prosecutory. 71 Whether a law banning proselytization is a law of general application will depend upon its terms and the way in which it is enforced. The "example" cited in the above extract could hardly be said to be anything other than a law of general application. It prohibits misleading conduct directed at children. There could be little doubt that such legislation was designed to serve a legitimate public purpose. A child's religion is a matter for his or her parents or guardians. However it seems to have been accepted that there is a wider prohibition upon proselytization in Indonesia, the source and terms of which are not in evidence. In particular there is no evidence as to whether the law only bans attempts to persuade persons to adopt a particular religion, or whether it also applies to attempts to dissuade persons from following one religion or all religions. In the former case it might be said that the legislation applies only to persons who wish to recruit adherents and that, in that sense, it applies only to persons who are already members of particular religious organizations. In the latter case, the application is wider and perhaps more easily characterized as being of general application. 72 For present purposes it is sufficient to note that the question of legislation prohibiting proselytization was raised by the appellant's solicitors who submitted that such legislation was not of general application. The question having been raised by the appellant, the Tribunal necessarily had to address it. I can see no basis for holding that before doing so, it was obliged to invite the appellant further to address the matter. The appellant was not entitled to assume that the question would be resolved in her favour. The Tribunal offered her an opportunity to advance her case at the hearing. No more was required. 73 On appeal the appellant again asserted that the Tribunal was obliged to give notice of its intention to find against her on the basis that the law was of general application and/or that it was appropriate and adapted to a legitimate social purpose. For reasons which I have given I reject that submission in so far as it concerns the question of general application. As to the question of whether the law was appropriate and adapted to a legitimate purpose, I consider that in raising the question of the law's general application, the appellant's solicitors inevitably raised the question of appropriateness. To attempt to distinguish between the two aspects, given the way in which the matter has been treated in the cases, would be quite artificial. There was no obligation on the Tribunal to invite the appellant further to address the issue. 74 I turn to the question of whether the Tribunal addressed the extent to which the appellant would be restricted in her chosen method of practising her religion. In my view, the Tribunal disposed of this ground by its finding that laws restricting proselytization were general laws, appropriate and adapted to a legitimate purpose, and by its finding that such harassment as the appellant might experience in Indonesia would not amount to persecution, particularly given the availability of state protection. The effect of those findings was that the appellant would be free to engage in works of mercy, subject to her complying with the law as to proselytization, and subject to the risk of low level harassment against which she would have state protection. Such findings have not been challenged. The first-mentioned limitation was not discriminatory, and therefore not persecutory. The second limitation did not amount to persecution as defined in s 91R. It follows that the appellant did not have a well-based fear of persecution for reason of her religion.