The position of refugees sur place appears to be well established in Canada - Mohamed Ahmed Urur v Minister of Employment and Immigration (1988) 91 NR 146 (Fed CA), Manzila v Canada (Minister of Citizenship and Immigration) (September 22, 1998) Imm-4757-97 (FCTD). Hathaway points out that in Immigration Appeal Board Decisions refugee status has been denied where claimed upon the basis of activities in the country of residence. Involvement with politically hostile immigrant groups has likewise been looked upon with scepticism - Hathaway at 36. However in a recent decision in the Federal Court of Canada, Tremblay-Lamer J observed that "according to James Hathaway in The Law of Refugee Status regard must be had to the impact of political activities abroad even when those activities are prompted by the claimant's intention to secure asylum". She quoted the first passage from Hathaway, cited in par 29 above, and added:
"I share that view. The only relevant question is whether activities abroad might give rise to a negative reaction on the part of the authorities and thus a reasonable chance of persecution in the event of return." - Ngongo v Canada (Minister of Citizenship and Immigration) (October 25, 1999) IMM-6717-98 (FCTD) at pars 22 and 23
31 In New Zealand in 1994 the Refugee Appeal Authority, a body created under Prerogative powers, considered the position of a claimant whose actions in the country of residence were undertaken for the sole purpose of creating a pretext for invoking fear of persecution - Re HB Refugee Appeal 2254/94. The Authority reviewed academic opinion and case law in Germany, France, Switzerland, Austria, the United Kingdom, the United States, Canada and Australia. It was unable to find any cases directly on point in the United States and observed that the situation had not received detailed consideration in Canadian refugee jurisprudence, albeit it contended that the trend of authority was in favour of a good faith requirement. Bad faith exclusion in relation to imputed political opinions which is at issue in this case, would seem to have been subsumed in German and Swiss jurisprudence by wider exclusions. The position in France was said to be unclear and in Austria municipal law excluded from asylum persons who deliberately produced circumstances within the territory of Austria which would otherwise justify the grant of asylum. In the event the Authority interpreted the Refugee Convention as requiring, implicitly, good faith on the part of the asylum seeker. It turned that interpretation upon a value judgment that the Convention was intended to protect only those in genuine need of surrogate international protection and that the system must be protected from those who would seek, in a sur place situation, deliberately to manipulate circumstances merely to achieve the advantages which recognition as a refugee would confer. The Authority identified as the "underlying assumption" of the Convention that its protection would enable the bona fide asylum seeker to escape persecution. Nevertheless the Authority went on, at p 28 of its reasons for decision:
"However the good faith principle must be applied with caution, not zeal. The precise application of Grahl-Madsen's third category must be determined on a case-by-case basis. It may be that a balancing exercise is called for and a careful assessment made of all the circumstances, including the degree of bad faith, the nature of the harm feared and the degree of risk…We anticipate that only in clear cases (and the present case is undoubtedly one) will an asylum seeker fall outside of the Refugee Convention by reason of an absence of good faith."
In the case before them, the members of the Authority found the degree of bad faith to be high, the harm (questioning in the country of origin) trivial and the risk non-existent. These findings indicate that the application would have failed for want of a well-founded fear of persecution, the apprehended harm not amounting to persecution within the meaning of the Convention and there being, in any event, no real chance of persecutory consequences.
32 It may be noted that guidelines have been adopted by the European Union relating to the implementation of the Convention criteria for refugee status. Those guidelines were adopted in accordance with Article K1 of the Treaty on European Union. Dealing with the claims of refugees sur place based upon activities outside the country of origin, the Guidelines said, at 9.2:
"Fear on account of activities outside the country or origin: Refugee status may be granted if the activities which gave rise to the asylum seeker's fear of persecution constitute the expression and continuation of convictions which he had held in his country of origin or can objectively be regarded as the consequence of asylum-related characteristics of the individual. However, such continuity must not be a requirement where the person concerned was not yet able to establish convictions because of age.
On the other hand, if it is clear that he expressed his convictions mainly for the purpose of creating the necessary conditions for being admitted as a refugee, his activities cannot in principle furnish grounds for admission as a refugee; this does not prejudice his right not to be returned to a country where his life, physical integrity or freedom would be in danger." Wallace (supra) at 329
33 In the United Kingdom dicta supportive of a good faith condition appeared in the 1989 judgment of Simon Brown J in R v Immigration Appeal Tribunal Ex parte B [1989] Imm AR 166, which also allowed "unreasonable conduct" on the part of the applicant as a bar to Convention Protection. However subsequent Court of Appeal decisions have rejected that view. In R v Secretary of State for the Home Department Ex parte Gilgham [1995] Imm AR 129, Millett LJ (now Lord Millett) considered the dictum to be "plainly obiter" and expressed considerable doubt that it correctly stated the law. Leggatt LJ who delivered the principal judgment linked bad faith to the proof of the conditions necessary for Convention protection:
"It is plain that the political views of such a person must be genuine, and that where there is bad faith, at any rate in the context of so behaving as to contrive a pretext for claiming asylum, the claim to refugee status will not avail the applicant."
Morritt LJ, who agreed with both judgments, observed that an applicant for Convention protection may fail:
"…because it is apparent from his conduct that the application is made in bad faith, namely that he does not have the fear in question and that he is not unwilling to return due to that fear or indeed any other fear."
However the court did not consider the interaction of the good faith question with the availability of Convention protection for those whose fear of persecution is based not upon political opinions they hold but upon political opinions attributed to them as a result of their own actions.
34 In M v Secretary of State for the Home Department [1996] 1 WLR 507, the Court of Appeal accepted that in an exceptional case circumstances might exist where the making of a fraudulent asylum application which was rejected, could itself create the possibility of an applicant being persecuted if returned to the country of origin and that the making of a fraudulent claim could not act as a total barrier to reconsideration of an applicant's status as a possible refugee. The Court agreed in this respect with an earlier decision of Laws J in R v Immigration Appeal Tribunal, Ex parte Senga (unrep 9 March 1994). Butler-Sloss LJ pointed to the serious practical difficulties confronting the claim for refugee status in such circumstances:
"An unsuccessful claim for asylum may be seen within a spectrum ranging from a truthful but over-optimistic account through various degrees of inaccuracy to a totally false and fraudulent story. The making of a false claim cannot act as a total barrier to reconsideration of the applicant's status as a possible refugee but the further along the spectrum of falsehood and bogus claims the infinitely more difficult it would be to prove to the requisite standard the requirements of the Convention. It is important not to underestimate the difficulties for an applicant after exposure of his bogus claim for asylum." (at 511)
Millett LJ at 513, after referring to the prohibition on refoulement of refugees imposed by Article 33 of the Convention said:
"Express exceptions are provided for in the Convention itself; they do not include the case where the applicant for asylum has made a previous claim which has been found to be fraudulent and baseless. If, therefore, despite having made such a claim and having had it rejected he can nevertheless at any time thereafter and on whatever basis satisfy the authorities that he has a well-founded fear of persecution for a Convention reason if he is returned to the country of his nationality, it would be a breach of the United Kingdom's international obligations under the Convention to return him to face possible death or loss of freedom."
The solution to the difficulties generated by abuse of the system by applicants did not lie, in the view of Millett J, in propounding some broad principle of abuse of the system or attempt to pervert the course of justice in order to justify a breach of the requesting country's international obligations. And Ward LJ at 516 said:
"It may well be appropriate robustly so to uphold the administration of justice as to give short shrift to the fraudulent claim and to deny the fraudster release; but, keen as I am to support that very important pillar of public interest, I am dubious whether it can outweigh the importance of honouring international obligations, especially when they are expressly enjoined to have primacy."
35 The Court of Appeal very recently considered the general question of the interaction between protection of the refugee sur place and want of good faith in Danian v Secretary of State for the Home Department (unrep 28.10.99), Brooke LJ (Buxton and Nourse LJJ concurring) said at p 19, after a comprehensive review of writings and authorities, including that of Lee J in the present case which he approved:
"For all these reasons I do not accept the Tribunal's conclusion that a refugee sur place who has acted in bad faith falls outside the Geneva Convention and can be deported to his home country notwithstanding that he has a genuine and well-founded fear of persecution for a Convention reason and there is a real risk that such persecution may take place. Although his credibility is likely to be low and his claim must be rigorously scrutinised, he is still entitled to the protection of the Convention, and this country is not entitled to disregard the provisions of the Convention by which it is bound, if it should turn out that he does indeed qualify for protection against refoulement at the time his application is considered."
36 Somaghi was viewed by the Court of Appeal in Danian as supporting a good faith test and it is necessary now to consider that case and the related case of Heshmati v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 123. Both cases began their curial histories as applications for judicial review before Lockhart J of decisions of ministerial delegates that the applicants, who were Iranian nationals, did not have the status of refugees. The facts of each case included a finding that in December 1989 each applicant had sent a letter to the Iranian Embassy in Canberra and to other addressees expressing opposition to Ayatollah Khomeina and the Iranian government. Each was refused refugee status on the basis, inter alia, that the action of sending a letter to the Iranian Embassy was not committed "in good faith". The sole or dominant purpose of the letter, in each case, was to enhance the refugee claim of each applicant. Without the letter they "had no useful claim".
37 Lockhart J, in his judgment in Heshmati, referred to the conflict of opinion as to whether an applicant for refugee status who has deliberately created circumstances in the country of residence exclusively for the purpose of subsequently justifying a claim of refugee status is entitled to be treated as a refugee sur place. His Honour said that he could not accept that a person who had deliberately created the circumstances to which he had referred was entitled to recognition as a refugee sur place:
"…for to accept it would be to place in the hands of the applicant for refugee status means of unilaterally determining in the country of residence his status as a refugee and deny to the sovereign state of his residence the right to determine his refugee status."
Somewhat less unequivocally his Honour said:
"I am not persuaded as presently advised that a person whose sole ground for refugee status consists of his own action in his country of residence designed solely to establish the circumstances that may give rise to his persecution if he should return to his country of origin is necessarily a refugee sur place."
The preceding passage does not state that as a matter of principle such a person can never be a refugee sur place. In this respect it sits a little uncomfortably with the earlier passage cited. His Honour however found it "unnecessary to fully decide this question" as there was ample material before the decision-makers to justify the conclusion that the applicant had failed to establish a well-founded fear of persecution if he should return to Iran. In connection with the latter comment it is to be noted that the delegate had advice "that the tactic of sending provocative letters to their Embassy by Iranians abroad has been repeated frequently over the years and may be seen, also by the Iranian authorities, as nothing more than a final attempt to secure residency in a chosen country". His Honour dismissed Heshmati's application and in this respect, for the same reasons, adopted by reference in his judgment in Somaghi, dismissed Somaghi's application. As can be seen from the passages to which reference has been made, his Honour's observations about the good faith question were provisional and expressed to be provisional and in any event were obiter as the applicants had failed to make out their entitlement to Convention protection even were it to be assumed that their actions in sending the letters were in good faith. His Honour also found that there was no want of procedural fairness in the way that the applicants were dealt with.
38 Both Somaghi and Heshmati went on appeal and judgment in each case was given on the same day - Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100, Heshmati v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 123.
39 Both appeals were allowed by Jenkinson and Gummow JJ (Keely J dissenting) on the ground of want of procedural fairness. The error of the delegate was said to lie in deciding that the appellants' letters to the Iranian Embassy had been sent for a purpose of creating the status of refugee sur place without first inviting the appellants to respond to that view (Somaghi at 108-109 and 118-119).
40 On the question whether a good faith condition governed recognition of the status of refugee sur place, Gummow J, with whom both Jenkinson and Keely JJ agreed subject to the dissent of Keely J on procedural fairness, referred to the provisional views of Lockhart J at first instance and said at 118:
"Lockhart J said it was unnecessary for him to decide the legal issue as to which there was a conflict of learned opinion. Nevertheless, for the reasons which on a provisional footing commended themselves to his Honour, it should be accepted that actions taken outside the country of nationality or, in the case of a person not having a nationality, outside the country of former habitual residence, which were undertaken for the sole purpose of creating a pretext of invoking a claim to well-founded fear of persecution, should not be considered as supporting an application for refugee status. The fear of persecution, to which the Convention refers, in such cases will not be "well-founded"."
The last sentence of that passage suggests a constructional basis for the good faith requirement not expressed in the reasoning of Lockhart J but perhaps implicit in the qualified proposition set out in the second passage cited from his judgment at first instance. If the question of good faith is linked to the existence of a well-founded fear then it is not an implication or gloss on the words of the Convention. Rather it is evidentiary of the existence of the well-founded fear necessary to attract Convention protection. On the facts of the case it seems the delegate had uncontroverted advice that the sending of the letters in question, being a common tactic, might not lead the Iranian authorities to impute a political opinion to the senders.
41 The question to be answered in the case of political refugees remains always the same - is there, at the relevant time, namely the time of determination of refugee status, a well-founded fear of persecution by reason of the applicant's political opinion or an opinion attributed to the applicant. The passage quoted from the judgment of Gummow J reflects that approach. The so-called "good faith" restriction enunciated in that passage may be regarded as derived from the requirement that the fear be well-founded So far as good faith is relevant in any case it should be seen to emerge from the practical operation of the words of Article 1A rather than be laid upon them as an "implication" of general application.
42 This may occur in various ways arising from the elements of the Convention definition of "refugee" in Article 1A(2). There are four key elements identified by the High Court in Guo at 570:
1. The applicant must be outside his or her country of nationality.
2. The applicant must fear "persecution".
3. The applicant must fear such persecution "for reasons of race, religion, nationality, membership of a particular social group or political opinion".
4. The applicant must have a "well-founded" fear of persecution for one of the Convention reasons.
The applicant must hold the relevant fear save for the case of an infant or mentally incapable person where such fear may be held by attributed - Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19 at pars 4 and 77. The words "well-founded" add "…an objective requirement" to that subjective condition - Guo at 571. So a fear is well-founded "…where there is a real substantial basis for it" - Guo at 572. The term a "real chance of persecution" has been used to make the point that it is unnecessary to demonstrate that persecution is more probable than not if the applicant were to be refouled - Chan at 389 (Mason CJ), 398 (Dawson J), 429 (McHugh J). Evidence that an applicant for protection as a refugee sur place has deliberately set out to create a risk of persecution by conduct outside the country of origin may be a powerful indicator that the claimed subjective fear does not exist or is not "well-founded" according to the interpretation given to that term in the High Court. That interpretation requires no general qualification of good faith on the words of Article 1A. The necessity for a so-called "bootstrap" applicant to show that he or she has the relevant fear and that the fear is well-founded will for most practical purposes raise a considerable hurdle of personal credibility in the way of any resolution favourable to the applicant.
43 It is also to be remembered that the terms of Article 1A require a causal connection between the apprehended persecution and the relevant Convention attribute. A persecutory reaction, by the country of origin, to the applicant's pretext because of the embarrassment it creates or domestic difficulties it generates in that country will not thereby be on account of an attributed political opinion, but rather the action itself which will not therefore attract Convention protection - Immigration and Naturalisation Service v Elias-Zacarias (1992) 502 US 478 at 483. Moreover, the question whether any particular chain of connection between persecution and Convention attribute attracts protection will be resolved not merely by the logic of causality but, as a matter of evaluation, which has regard to the policy of the Convention. While it is not necessary that the fear of persecution be solely attributable to the relevant Convention attribute a decision-maker can have regard to the extent to which possession of that attribute is a factor in the risk of persecution. These observations are a generalisation to all Convention attributes of comments I made in Jaharzi v Minister for Immigration and Multicultural Affairs (1995) 61 FCR 293 at 299-300 in relation to membership of a particular social group as a causal factor in apprehended persecution.
44 Applied to imputed political opinion this means that it would be open to a decision-maker in a case such as the present to conclude that the operative and dominant cause of any fear of persecution is the deliberate act of the applicant calculated to achieve that end, rather than the opinions which may be attributed to him or her by the state of origin. It is necessary however that the decision-maker weigh up all factors including the "bad faith conduct" in deciding whether the apprehended persecution is for a Convention reason. This is not the kind of balancing process contemplated by the New Zealand Refugee Appeal Authority. That Authority would evidently balance the degree of bad faith against the extent of apprehended harm, an approach somewhat similar to that suggested by Hathaway which may involve accepting that there is some level of persecution, in such a case, against which Convention protection would not be available. In my respectful opinion the more principled approach is one which seeks simply to apply the ordinary meaning of the words of the Convention within the policy framework set by its objectives.
45 There will be cases in which a deliberate act, expressive of a particular political opinion will give rise to a risk of persecution that supports a well-founded fear for the purposes of the Convention. Good faith will not necessarily have any part to play in such a case. Acts of refugees expressing political opinions outside the country of nationality may be done for a variety of reasons. They may be intended to be supportive of those who remain at risk within their country of origin. They may be designed to bring international pressure to bear upon that country. They may be designed to draw the attention of the country to whom they are applying for refugee status, and of its community, to the situation in the country of nationality. There may be a case in which a person genuinely holds an opinion which would attract persecution if known to the country of origin and who deliberately draws that opinion to the attention of authorities in that country to crystallise or demonstrate the basis for the fear which is asserted. All of these reasons may be consistent with the existence of a well-founded fear of persecution, albeit it is enhanced or even brought into existence by the conduct in the country of residence. Given the freedoms guaranteed under the Universal Declaration of Human Rights and other international conventions, it could not have been consistent with the purpose of the Refugee Convention to require that persons claiming to be refugees be deprived of their fundamental human rights and freedoms in the country from whom they are seeking protection.
46 The imposition of a good faith qualification for refugees sur place as a gloss upon the Convention is not warranted by its language and is capable of eroding, in its practical application, the protection that the Convention provides. That is because of its very vagueness. Moreover the problem which that gloss seeks to address is more apparent than real. There can be few, if any, cases in which political statements made from the country whose protection is sought for the sole purpose of generating the circumstances attracting Convention protection will be found to reflect any political opinion genuinely held by the person making them. And even if that obstacle is sidestepped by invoking imputed opinion, a demonstration of a well-founded fear or the necessary causal connection between apprehended persecution and Convention attribute in such a case would also be difficult. But each case turns upon its own facts. The Convention must be given effect according to its language. Even those who, notwithstanding their want of good faith, could show that the conditions for protection are satisfied are entitled to that protection. Want of good faith is a factual issue with evidentiary significance in the ultimate issue to be determined which is whether the applicant satisfies the conditions of Article 1A. It is not a rule of law to be laid over the words of the Convention.
47 The Tribunal's findings in the present case that the respondent's letter was sent "so that it could be shown as evidence for a supposed endangering of the applicant" cannot be called into question in judicial review proceedings. The question which determines this appeal is whether the Tribunal dealt with the issue of want of bona fides as evidence of absence of a well-founded fear of persecution or a determination that the risk of persecution was to be attributed to the conduct of the respondent rather than a Convention reason, or whether it applied want of good faith as disentitling the respondent to recognition as a refugee sur place without properly considering the Convention criteria.
48 Lee J read the Tribunal's reasons for decision as reflecting a mistaken belief that at law it was obliged to disregard the act of the respondent in sending the letter to his family and its consequences. In my opinion his Honour was correct. The Tribunal's reasons disclose a process of simple discounting or disregard of the letter and its possible sequelae as factors relevant to whether the entitlement to Convention protection was made out. The closing formulation that "this action should not be considered as supporting the applicant's application" implies a failure to address the question whether the sending of the letter, alone or in conjunction with other factors, has given rise to a circumstance in which the elements of Convention protection are established. The Tribunal did not turn its mind to the reaction of Sudanese authorities to the letter which, it was found, they had intercepted. Although it held that the respondent's fear was not well-founded it did not factor into that conclusion any consideration of the reaction of the authorities to the letter and whether the claimant held the fear asserted. The matter should go back to the Tribunal. In my opinion his Honour was right and the appeal should be dismissed with costs.
I certify that the thirty two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.