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[2000] FCA 605
Federal Court of Australia
1999-10-28
Carr J
Original judgment source is linked above.
The Application to this Court and My Reasoning 7 There are three, related, grounds of the application. First, that the Tribunal's decision involved an error of law in applying Mohammed, when that decision was said to be contrary to the principle established by the Full Court in Somaghi. Secondly, that the Tribunal had incorrectly interpreted the applicable law as set out in Somaghi i.e. if it had correctly interpreted Somaghi it should have held that the persecution was not "well-founded" within the meaning of the Convention. Thirdly (in the alternative) if the principle expressed in Somaghi did not oblige the Tribunal, on the facts found by it, to find that the persecution feared by the respondents was not "well-founded", the Tribunal incorrectly interpreted the applicable law by holding that as a result of the article published in Arash, the persecution feared by the respondents was "well-founded" within the meaning of the Convention. 8 This application was filed on 10 August 1999. It was set down some three weeks ago for hearing today. Last Friday (5 May 2000) a Full Court of this Court, by a majority, dismissed the appeal from Lee J's decision in Mohammed: Minister for Immigration and Multicultural Affairs v Mohammed [2000] FCA 576. The majority comprised Spender and French JJ. I was a member of the Full Court and dissented. 9 There is thus a very recent decision of a Full Court of this Court upholding a decision at first instance in a case which is relevantly indistinguishable from the present case. Counsel for the applicant did not suggest any relevant factual distinction between the facts of this matter and the facts in Mohammed. If anything, the facts are stronger in the present matter because here there is a clear finding of a real chance of persecution. 10 The applicant submitted that Somaghi and Mohammed were conflicting decisions and that I should follow the decision of the Full Court in Somaghi which was a unanimous decision of that Court. 11 Counsel for the applicant contended that Lee J at first instance in Mohammed and Spender J on appeal had incorrectly identified the principle of law explained in Somaghi. He also submitted, respectfully, that French J in Mohammed had not gone into the reasons in Somaghi "with sufficient analysis" and had misconstrued what was decided in Somaghi. He referred to the observations of the Court of Appeal in Danian v Secretary of State for the Home Department (unreported 28 October 1999, and in particular at p 24) as confirming the conflict between Somaghi and Mohammed. 12 In my dissenting reasons in Mohammed I expressed my views of what was decided by the Full Court in Somaghi. I do not propose to repeat those views here. The majority in Mohammed explained what was decided in Somaghi as being something different from my understanding of what was decided in that case. The majority in Mohammed did not regard Somaghi as being in conflict with their decision. Their Honours gave due consideration to Somaghi and did not distinguish it or refuse to follow it. 13 In those circumstances, as a judge sitting at first instance, I do not think that I can hold that what was decided by the Full Court in Somaghi was in conflict with what was decided by the majority of the Full Court in Mohammed. In my opinion, it is only at the level of a Full Court of this Court, or higher, that the course which the applicant invited me to take can properly be taken. 14 If I am wrong in that conclusion and it is open to me to find that the decision of the Full Court in Somaghi is in conflict with what was decided by the majority of the Full Court in Mohammed, I still think that I should follow Mohammed. 15 Counsel for the applicant submitted that the convention that a judge at first instance, faced with two conflicting binding decisions, should follow the more recent decision was "only a guide". He submitted that I should follow Somaghi for the following reasons: · what counsel described as "the very limited analysis" by Spender and French JJ in Mohammed of the decisions in Somaghi both on appeal and at first instance; · the fact that the judgment in Somaghi was unanimous; and · that there had been other decisions of this Court which have applied Somaghi, i.e. Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 557 at 580, implicitly accepted by the Full Court on appeal in that case (1994) 35 ALD 225 and expressly accepted by Lockhart J in Khan v Minister for Immigration and Multicultural Affairs (1997) 47 ALD 19 at 26. 16 I do not accept counsel's submission that the analysis by Spender and French JJ in Mohammed of the Somaghi decision was limited. It was very much at the centre of our respective deliberations in that case on appeal and the same situation had applied at first instance. 17 It is true that the judgment in Somaghi was unanimous. However, the decision under appeal in that case was set aside because the Tribunal had denied procedural fairness to the appellants. It is arguable that Gummow J's observations on the refugee sur place point were obiter dicta (although I expressed my view in Mohammed that they were part of the ratio decidendi). I do not think that the fact that the decision in Somaghi was unanimous would justify me, sitting at first instance, in following it in preference to Mohammed because the latter was a majority decision. If it is permissible to count judicial heads, then (when Lee J is counted) the numbers are even. I acknowledge (as indeed I pointed out in Mohammed) the line of subsequent decisions applying Somaghi. 18 I was not cited any authority directly in point which resolves the present issue i.e. assuming that there are two conflicting Full Court decisions in this Court, which decision should a judge at first instance follow. However, I was referred to Viro v The Queen (1978) 141 CLR 88 at 121 and 137. By analogy from that decision, I consider that even if I were permitted to discern a conflict between Somaghi and Mohammed, I should follow Mohammed because the latter Full Court gave due consideration to Somaghi when reaching its decision last week. 19 However, as I have said, I do not think that it is open to me to hold that what was decided by the Full Court in Mohammed conflicts with what had been decided by the earlier Full Court in Somaghi. If the judges forming the majority in Mohammed had thought that the decision in Somaghi was in conflict they would either have distinguished it or found it to be "plainly wrong" - see Montes-Granados v Minister for Immigration and Multicultural Affairs [2000] FCA 60 at paragraph 16 and the cases there cited. They did neither. 20 There being no relevant factual distinction between the facts of this matter and the facts in Mohammed, in my opinion, I am quite clearly bound to apply Mohammed to the decision in this case, despite the fact that I continue to hold the views which I expressed in dissent in that case. 21 I must therefore dismiss the application. There will be an order that the application be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr.
Associate: Dated: 9 May 2000 Counsel for the Applicant: Mr P R Macliver
Solicitor for the Applicant: Australian Government Solicitor
Minister for Immigration & Multicultural Affairs
Farahanipour
The subsequent details in that report [the US Department Iran Country Report for 1998] demonstrate that the Iranian government has little tolerance for expressions of opposition of the type published in the article before the Tribunal and, consequently, leads the Tribunal to conclude that the Applicant faces a real chance that he will be severely punished for the comments that are attributed to him in the Arash article. It is satisfied that the nature of those comments would motivate the Iranian authorities to punish him for reason of his political opinions, whether or not he actually provided the information to Arash or holds the views that the article expresses." 6 The Tribunal then referred to paragraph 96 of the UNHCR "Handbook on Procedures and Criteria for Determining Refugee Status" which relates to the matter of a person becoming a refugee sur place. It also referred to the Full Court decision of Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 and the decision at first instance of Lee J in Mohammed v Minister for Immigration and Multicultural Affairs [1999] FCA 868. The Tribunal then said this: "In the current case, the Tribunal is satisfied that the Applicant arranged for publication of the article in Arash in order to bring himself to the attention of the Iranian authorities. Prior to that time, his claims to be a refugee were based on false information. He undertook the act of publishing the article in Arash "to make more plausible, or colourable, a pretended claim to a well-founded fear of persecution". The article expresses views that he never expressed in Iran and are diametrically opposed to his history of employment in that country. They do, however, contain a kernel of truth in that the Tribunal accepts that the Applicant prefers freedom and democracy to the system that is in place in Iran, notwithstanding that he was a long-term servant of that system. As a consequence of the likelihood the views expressed in Arash have come to the attention of the Iranian authorities, the Tribunal is satisfied that the Applicant now has a genuine fear of persecution, although he did not harbour such a fear before the publication of that article, the artifice of which is apparent in the author taking the liberty to identify the Applicant, presumably at the latter's behest. The tenor of the passage from Hathaway, cited with approval by Justice Lee, is that regardless of the motivation for an applicant's action, it is the consequences of that action that are determinative of whether that applicant falls within the Convention. The Tribunal understands His Honour to have determined that it must have regard to the consequences of an applicant's action, notwithstanding that the action may be 'fraudulent' or that its purpose was solely to bring him or her to the adverse notice of his country's authorities, as the Tribunal finds was the case in the current matter. While the Tribunal has some difficulty in reconciling that determination with the principles discussed in Somaghi, it is a determination that was made in the context of those principles and the Tribunal is bound to apply it. The Tribunal is satisfied that the consequence for the Applicant is that there is a real chance he faces persecution for reason of his political opinion as set out by the author of the Arash article. In all of the circumstances, the Tribunal does not accept that the Applicant had a genuine fear of persecution until the article in Arash was published but concludes that he has become a refugee sur place. It finds that he has a well-founded fear of persecution for reason of his political opinion and that he is, therefore, a person to whom Australia has protection obligations under the Refugees' Convention and Protocol. As a member of his family unit, his spouse would also be a person to whom Australia has protection obligations."
(1991) 31 FCR 100
(1978) 141 CLR 88