Case: Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599 ; (2001) 179 ALR 1
Outcome: considered
In Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599 ; (2001) 179 ALR 1 , Merkel J (Wilcox &amp; Gray JJ concurring) said, at [63]-[66]: 63 While, generally, punishment for breach of a criminal law of general application will not constitute persecution for a Convention reason, the proposition contended for by the minister that prosecution under generally applicable laws cannot amount to persecution for a Convention reason is erroneous. Before such a conclusion can be reached in a particular case the circumstances of the individual concerned must be considered. That consideration will usually occur in the context of an inquiry into the nature of the law, the motives behind the law, whether the law is selectively or discriminatorily enforced or impacts differently on different people. Further, where the punishment is disproportionately severe, that can result in the enforcement of the law in that case being persecutory for a Convention reason: ... . 64 In the present case the RRT gave only scant attention to the above matters. In inquiring into the nature of the laws in question I would have expected the RRT to have specified, in greater detail than it did, the source and detail of the laws and the penalties that attend their breach. 65 A law that targets or applies to persons by reason of their political opinions, religion, race or membership of a pre-existing social group, is not properly described as a law of general application. Such laws "target or apply only to a particular section of the population" ... . 66 Consequently, a law regulating the practice of religion, requiring that it be practised or observed in a particular way or targeting or applying only to persons practising religion, is not a law of ":general application". Thus, a fear of prosecution or punishment by the authorities for the breach of such laws can, of itself, give rise to a well-founded fear of persecution for a Convention reason. 62 The cases suggest that the question of whether a law is of general application is distinct from the question of whether it is appropriate and adapted to a legitimate purpose. If a law is, on its face, of general application, its enforcement will not be discriminatory (and therefore, at least potentially, persecutory) unless it has discriminatory impact upon persons of a particular race, religion, nationality or political persuasion, or who are members of a particular social group. In the event of such discrimination, it will be necessary to consider whether the law is appropriate to achieving some legitimate social purpose. Where legislation is not, on its face, of general application and applies to one or other of the protected "groups", it will always be necessary to consider its appropriateness to achieving a legitimate purpose. 63 I have already set out the substance of the Tribunal's decision on this aspect of the case. At [68] the Magistrate said, concerning that decision: The third particular relates to whether legal restrictions on proselytizing in Indonesia were laws of general application and appropriate and adapted to requirements of the society. As discussed above, the Tribunal was not required to disclose its preliminary conclusions on such a matter of legal judgment. The Tribunal's legal conclusion on the facts is not a matter that has to be raised with an applicant under s 425(1). 64 The appellant also sought review upon the basis that the Tribunal had failed to consider whether the restrictions which might be imposed upon the appellant's intended acts of mercy in Indonesia impinged upon her freedom of religion to the extent that such restriction would be persecutory. In its reasons the Tribunal quoted the following extract from the online version of the 1992 Catechism of the Catholic Church: The works of mercy are charitable actions by which we come to the aid of our neighbour in his spiritual and bodily necessities. Instructing, advising, consoling, comforting are spiritual works of mercy, as are forgiving and bearing wrongs patiently. The corporal works of mercy consist especially in feeding the hungry, sheltering the homeless, clothing the naked, visiting the sick and imprisoned and burying the dead. Among all these, giving alms to the poor is one of the chief witnesses to fraternal charity: it is also a work of justice pleasing to God. ... 65 The Tribunal concluded: The [appellant] claims that should she return to Indonesia if she was to continue to carry out religious activities such as she has done here in Australia in association with the Legion of Mary and the St Vincent de Paul Society she would be subject to serious harm from Muslims and also the authorities. The [appellant] has provided considerable documentary material on the Legion of Mary and as discussed with the [appellant] at the hearing the word of the Legion of Mary falls within the umbrella of what is referred to in the Catholic Church as works of mercy. The Tribunal notes and accepts the description of works of mercy ... from the Catholic Catechism that the exercise of works of mercy is part of the practice of the Catholicism. The Tribunal accepts that the [appellant] may not be able to engage in works of mercy in Indonesia in the same format that she has done so in Australia with the Legion of Mary and the St Vincent de Paul Society by way for example of door knocking. However the Tribunal notes that the Legion of Mary does operate in Indonesia ... that a number of Catholic agencies do carry out works of mercy Indonesia and have managed to do so in collaboration with Muslim organizations, Fr Riley's Youth Off the Streets is a case in point ... . The Tribunal also notes that works of mercy as described in the Catholic Catechism may take a variety of forms and are not strictly codified. Accordingly the Tribunal does not accept that the [appellant] will be unable to engage in works of mercy in Indonesia.