Minister for Immigration & Multicultural Affairs v Mohammed

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

THE COURT ORDERS THAT:

1. The appeal is dismissed.
2. The Appellant is to pay the Respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

On appeal from a single judge of the Federal Court of Australia

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

REASONS FOR JUDGMENT SPENDER J: 1 In respect of the important question raised by this appeal (which is, in effect, whether circumstances that are self-engineered can bring a person within the category of refugee "sur place") I respectfully am unable to agree with Carr J, whose reasons for judgment I have had the benefit of reading in draft. 2 In my opinion, the appeal should be dismissed. The reasons for judgment of the learned primary judge, Lee J, in this case are, in my respectful opinion, without legal error. I agree with them. The conclusion of Lee J in the case under appeal is consistent with the reasons for judgment of Brooke LJ and of Buxton LJ in Danian v Secretary of State for the Home Department, Court of Appeal (Civil Division), unreported 28 October 1999, United Kingdom, with which Nourse LJ agreed. Lord Justice Brooke referred to the similar conclusion reached by the United States Court of Appeal, Seventh Circuit, in Banstanipour v Immigration and Naturalisation Service (1992) 980 F 2d : "In that case the Court held the central question was not whether an Iranian national's conversion (while in prison) from Islam to Christianity was sincere or genuine: rather, it was a question of how the purported conversion would be viewed by the authorities in Iran." 3 In my opinion, the question of whether a person is a refugee is to be determined by consideration of Article 1 of the Convention, and Australia's obligations concerning refoulement specified in Article 33 of the Convention. There is in neither article any requirement of good faith in the definition of a refugee. The Court of Appeal in Danian rejected the contention by the Secretary of State that: "…even if an applicant otherwise fell within the terms of the Convention, by reason of having a well-founded fear of persecution for a Convention reason, nevertheless if he had acted in bad faith he was not a Convention 'refugee', and therefore the state where he found himself was not bound by the prohibition of refoulement in art 33 of the Convention in respect of him." 4 In my opinion, there is no "bad faith" exemption to the definition of refugee. The judgments in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 do not endorse any such exemption. 5 The question which the Tribunal had to determine was whether the applicant held a genuine fear that he would be persecuted and whether, if he were returned to Sudan, there was a real risk that serious harm would befall him by acts of persecution within the meaning of the Convention. The consequences of denying refugee status to a Sudanese who, in fact, has a genuine fear of persecution and of whom, objectively, there is a real risk of persecution for a Convention reason if refouled to the Sudan, are such as to underline the importance and difficulty of the decision the Tribunal is called upon to make on an application such as this. In my opinion, there is no more important responsibility in administrative decision making than that which attaches to the Tribunal's role in deciding whether Australia owes protection obligations to a human being under the Refugee's Convention. Not to put too fine a point on it, it is frequently a matter of life or death. The Court's role is not to usurp in any way the merits determination of the issue by the Tribunal, but merely to ensure that the Tribunal's decision was not infected by reviewable legal error. 6 In answering the question which the Tribunal had to determine, post-flight activities of the applicant are not irrelevant. Such actions, of course, should be scrutinised to determine whether they are sufficient to justify a well-founded fear of persecution. Implicit in that careful examination of circumstances is the need for an enquiry as to whether the actions may have come to the notice of the authorities in the person's country of origin, and the likely view to be taken of that conduct by those authorities. In that context, Gummow J in Somaghi was right, in my respectful opinion, to point out that actions undertaken for the sole purpose of creating a pretext for claiming fear of persecution would not render a person a refugee "sur place". A pretext is something that is not real or genuine. It would follow that, subjectively, an applicant invoking a pretext would not have a genuine fear of persecution, and it may also be that any fear of persecution would not be well founded, because the opportunistic nature of the activities would be recognised by the country of origin and would not, as a matter of realistic assessment, involve any real chance of persecution for a Convention reason. 7 The element of "pretext" was introduced at the appeal level in Somaghi by Gummow J. Lockhart J, in his reasons in Heshmati v Minister of Immigration, Local Government and Ethnic Affairs (Lockhart J, 22 November 1990, unreported) - which also applied to his judgment at first instance in Somaghi v Minister of Immigration, Local Government and Ethnic Affairs (Lockhart J, 22 November 1990, unreported) - focussed on: "…a person whose sole ground for refugee status consists of his own actions in his country of residence designed solely to establish the circumstances that may give rise to his persecution if he should return to the country of origin…" 8 Such conduct does not necessarily involve a "pretext" of invoking a claim to well-founded fear of persecution. 9 Conduct engaged in for the purpose of establishing the circumstances which might endanger an applicant on return, is not necessarily the same as conduct "undertaken for the sole purpose of creating a pretext of invoking a claim to well-founded fear of persecution," which is the description used by Gummow J on appeal in Somaghi. 10 In my opinion, the Tribunal's approach in regarding the question of whether the respondent was "acting solely out of desire to put himself in a position where he could claim to be endangered" as determinative of the question of whether that person was a refugee, was to erect a false test as to who is a refugee "sur place". Whether or not the circumstances were engineered by the respondent and whether or not they were engaged in in good faith, the necessity remains for the Tribunal to address the central question: whether the respondent held a genuine fear that he would be persecuted and whether, if he were returned to Sudan, there was a real risk that serious harm would befall him by acts of persecution within the meaning of the Convention. 11 In my respectful opinion, the correct approach to the current problem is contained in the learned primary judge's reasons for judgment, which are in accord with the views expressed by Mr Peter van der Vaart, the Deputy Representative in the United Kingdom of the United Nations High Commission for Refugees, referred to and set out in some detail in the judgment of Brooke LJ in Danian. In my opinion, Mr van der Vaart correctly sets out the proper approach to the question of who is a refugee "sur place": "We refer to your letter of 1 September 1999 requesting UNHCR's view on the issue whether a person who in bad faith, with the sole objective of obtaining refugee status in another country, acts so as to put himself at risk of persecution in his country of nationality, for reason of race, religion, nationality, membership of a particular social group or political opinion is entitled to rely upon the 1951 Convention. … The question posed deals with the post-flight activities of the applicant, ie activities undertaken by the applicant after his departure from his country of origin. According to paragraph 96 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status: (a) person may become a refugee 'sur place' as a result of his own actions, such as associating with refugees already recognised, or expressing his political views in his country of residence. Whether such actions are sufficient to justify a well-founded fear of persecution must be determined by a careful examination of the circumstances. Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person's country of origin and how they are likely to be viewed by those authorities'." 12 In his reasons for judgment on this appeal, Carr J accepts that: "In the present circumstances the respondent's fear of persecution is probably 'well-founded' in the objective sense i.e. objectively he is likely to be persecuted on his return to Sudan." 13 If that is the case, in my opinion the respondent's fear of persecution is well founded within the meaning of the Convention. I do not accept that "well-founded" has what I respectfully regard as the gloss that Carr J places on it - namely that the persecution also has to have been "properly founded within the meaning of the Convention", a phrase whose meaning is not immediately clear to me. This gloss is designed to exclude those who "express political opinions (whether they hold them or not) to create a basis for staying in a country in which they wish to reside." In my respectful opinion, this does not give a purposive interpretation to the Convention. It imposes an unwarranted and unjustified reticence on those who genuinely hold political opinions which might found refugee status if the other elements of that status were established. 14 I respectfully agree with the view of Lockhart J, at first instance, in Somaghi: "The true position …is stated in para 96 of the United Nations Handbook." 15 So understood, in my opinion, whether a person has "deliberately created circumstances … exclusively for the purpose of subsequently justifying a claim for refugee status" is merely one aspect that has to be considered in applying the true test of whether that person is a refugee "sur place": it is not determinative of that question. 16 For the above reasons, I would dismiss the appeal with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

French J: 17 This case concerns an application for a protection visa by a national of Sudan who entered Australia by boat from Malaysia in 1997. The facts of the case and the history of the proceedings in relation to the application and appeal are set out in the judgment of Carr J which I have had the advantage of reading in draft. I need not repeat those detailed facts and that history here. 18 The decision of the Refugee Review Tribunal under review was based in part upon findings of fact which had been made in a previous hearing by a Tribunal differently constituted. A fresh application for the grant of a visa had been permitted by the Minister in the exercise of his discretion under s 48B of the Migration Act 1958 (Cth) in April 1998. The principal findings of fact reflecting those made by the first Tribunal were as follows: 1. The Sudanese government is guilty of human rights abuses on a considerable scale. 2. Political opponents of the government are often gaoled, tortured and executed. 3. Rights to freedom of speech and association have been restricted. 4. The army has carried out operations in which people have been summarily killed and civilians have been massacred, particularly in the south. 5. Attempts to impose Shari'a law have been resisted by a number of groups. 6. The respondent was not an active or known opponent of the government - this was a finding of the previous Tribunal said, by the Tribunal under review, not to be materially affected by the respondent's further submissions relating to his knowledge of UMMA, the opposition party with which he had claimed an involvement, nor by his further submissions relating to his motives for wanting to avoid military service. 7. On the evidence before the first Tribunal there was no convincing evidence that the respondent faced a real chance of persecution for one or more convention reasons if he returned to Sudan. 19 These findings having been made, the case before the second Tribunal turned upon the effect of a letter which the respondent claimed to have written to his brother in Jordan following the decision of the first Tribunal. The letter was said to have included details of the respondent's status as a detainee in immigration detention in Australia, his application for refugee status, the failure of that application at first instance, his correspondence with the Minister seeking protection on humanity grounds, his refusal of military service in the Sudan and the reasons for him doing so, his political activity in neighbouring Jordan, his desire not to return to Sudan and his lack of support for the political system there. The letter was said to have been intercepted by Sudanese censors. 20 The Tribunal's finding about the existence of the letter was curiously expressed: "It is … a matter of some speculation as to whether or not the letter was ever sent, but I will give the applicant the benefit of the doubt and assume that it was." The Tribunal went on to make the following findings about the letter which I quote in part: . "In the present case, the Tribunal is not convinced that the applicant has been acting bona fide but, has been acting solely out of desire to put himself in a position where he could claim to be endangered. . The Tribunal is of the view that the letter is a blatant example of action comparable to that which was considered in Somaghi's case. . The letter seems to the Tribunal to have been clearly aimed at publicising [the respondent's] profile, with a view to alerting the Sudanese authorities so that [the respondent] would be in a position to claim refugee status. . The letter served no useful purpose apart from alerting the Sudanese authorities to [the respondent's] past opposition to them. . The Tribunal concludes that this letter was sent with one view only in mind, namely so that it could be shown as evidence for a supposed endangering of the [respondent]. Accordingly, the Tribunal also concludes that the letter sent by facsimile from [the respondent's] friend in Jordan, was self serving and only sent to support [the respondent's] contrived claim. . …the sending of the letter represents action "undertaken for the sole purpose of creating a pretext of involving a claim to well-founded fear of persecution", in the words of Gummow J in Somaghi. Hence, this action should not be considered as supporting the [respondent's] application and the [respondent's] fear is not well founded." 21 In allowing the appeal against the Tribunal's decision, Lee J observed that the Tribunal did not find that the respondent relied upon the letter and its interception to make more plausible or colourable a pretended claim to a well-founded fear of persecution. His Honour said: "The Tribunal did not so find and, indeed, acted under the mistaken belief that at law it was obliged to disregard the acts of the [respondent] and their consequences, whatever they may be." His Honour characterised the respondent's case before the Tribunal as involving reliance upon the letter and its consequences to show why he feared persecution and why his fear was well-founded. His Honour said: "The central question to be determined by the Tribunal was whether the [respondent] held a genuine fear that he would be persecuted and whether, if he were returned to Sudan, there was a real risk that serious harm would befall the [respondent] by acts of persecution within the meaning of the Convention. In making that determination, it was not open to the Tribunal to ignore the consequences of the interception by Sudanese security authorities of the letter sent by the [respondent] to his brother." 22 The touchstone for consideration of whether there was, as his Honour found, error in the approach adopted by the Tribunal, must be the words of the Refugee Convention 1951 which, read with the Protocol relating to the Status of Refugees 1967, in Article 1A(2) defines a refugee as any person who: "…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to; such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence … is unable or, owing to such fear, is unwilling to return to it." Also relevant is Article 1F which excludes certain categories of person from Convention protection thus: "The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the International Instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations." Article 33(1) prohibits the Contracting States from expelling or returning refugees to the frontiers of territories where their lives or freedom could be threatened on account of race, religion, nationality, membership of a particular social group or political opinion. 23 As a general proposition the Convention is to be construed according to the ordinary meaning of its words in their context and in the light of its objects and purpose - Vienna Convention on the Law of Treaties, Article 31(1). As McHugh J observed in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 254: "Primacy is to be given to the written text of the Convention but the context, object and purpose of the treaty must also be considered." See also Gummow J at 277. 24 The provisions of the Convention are brought into play in Australian municipal law through the provisions of the Migration Act and the Migration Regulations. Protection of persons who are refugees within the meaning of the Convention is extended in the first instance by the grant of a protection visa. A visa is a permission to a non-citizen to do either or both of travel to and enter Australia and remain in Australia (s 29(1)). There are classes of visa prescribed in the Regulations (s 31(1)) and provided for in the Act (s 31(2)). The Regulations may prescribe criteria for the grant of specified classes of visas including protection visas (s 31(3)). Section 36 provides for the grant of protection visas. A criterion for a protection visa is that the applicant for the visa "is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol" (s 36(2)). 25 The Migration Regulations in Schedule 2 set out, for the purposes of s 31(3), prescribed criteria for the grant to a person of a visa of a particular class (reg 2.03). By s 65 of the Act the Minister is to grant a visa where there has been a valid application and the Minister is satisfied that health criteria for it (if any) have been satisfied and the other criteria for it prescribed by the Act or Regulations have been satisfied. In addition to the criteria for the grant of a protection visa set out in s 36, Schedule 2(2) of the Regulations prescribes criteria under the designation "Sub-class 866 - Protection". Relevantly for present purposes, at the time of decision, the Minister must be "satisfied that the applicant is a person to whom Australia has protection obligations under the refugees convention" (866.211). In addition, the Minister must be satisfied that the applicant satisfies public interest criteria 4001, 4002 and 4003 (866.225) and that the grant of the visa is in the national interest (866.226), The public interest criteria are set out in Schedule 4 and include a requirement that the applicant pass the "character test" or that the Minister be satisfied, after appropriate inquiries, that there is nothing to indicate that the applicant would fail to satisfy him that the person passes the character test (4001). 26 This case does not involve anything other than the question considered by the Tribunal which was whether the respondent was a person to whom Australia owed protection obligations under the Refugees Convention. It is to be noted that the Act does not confer upon those obligations the force of municipal law. It is their existence in a particular case which conditions the statutory duty of the Minister to grant a protection visa. 27 Turning back to the terms of the Convention, Article 1A is sufficiently widely expressed to allow for claims of refugee status which derive from events occurring while the claimant is outside the country of origin. Persons making claims based on such events, designated generally as "refugees sur place", may seek protection based upon post-departure change of circumstances or dramatic intensification of existing conditions in the country of origin or because of the consequences of their own activities while abroad - Hathaway, The Law of Refugee Status (Butterworths, Toronto, 1991) at 33-34. It is a particular application of that general proposition and of the ordinary meaning of Article 1A(2) that political opinion, wherever and however expressed may give rise to a well-founded fear of persecution in the country of nationality which will attract Convention protection. This is not a controversial proposition. It is well recognised in writings on the topic and in authority - Grahl-Madsen, The Status of Refugees in International Law, Vol 1 (AW Sijthoff-Leyden, 1966) at 248, Hathaway at 33, United Nations High Commission on Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1992) par 96, Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 116. 28 Articles 1A, 1F and 33 are silent on whether a person's entitlement to protection as a refugee sur place because of activities abroad is conditioned by a requirement that they be engaged in in good faith and not for the purpose of generating the very conditions which would otherwise give rise to the entitlement. The UNHCR Handbook says nothing explicit about the issue leaving it to the careful application of the words of the Convention to determine the question of status as a refugee sur place: "96 A person may become a refugee "sur place" as a result of his own actions, such as associating with refugees already recognised, or expressing his political views in his country of residence. Whether such actions are sufficient to justify a well-founded fear of persecution must be determined by a careful examination of the circumstances. Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person's country of origin and how they are likely to be viewed by those authorities." The Handbook has been regarded in the High Court "…more as a practical guide for the use of those who are required to determine whether or not a person is a refugee than as a document purporting to interpret the meaning of the relevant parts of the Convention" - Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 392 (Mason CJ). It has no binding force at international law - R v Home Secretary, Ex parte Bugdaycay [1987] 1 AC 514 at 524, R v Home Secretary, Ex parte Mehari [1994] QB 474 at 489, Immigration and Naturalisation Service v Cardozo-Fonseca (1987) 480 US 421 at 438 fn 22. It has nevertheless been treated in the House of Lords as "another important source of law" - T v Home Secretary [1996] AC 742 at 786 and by the Council of the European Union as "a valuable aid to Member States in determining refugee status". The latter observation is contained in a Joint position by the Council formed on the basis of Article K3 of the Treaty on European Union - see Wallace, International Human Rights - Text and Materials (Sweet & Maxwell 1997) p 312. In Cardozo-Fonseca it was said to provide "significant guidance in construing the protocol to which Congress sought to conform" - at 439 fn 22. 29 The question is one on which different opinions have been expressed by commentators and courts. Grahl-Madsen's view in favour of a good faith condition was expressed at pp 251- 252 of his work, thus: " If a person has committed some act and as a result is liable to persecution because the authorities of his home country read a political motivation into his action, we have a repetition of the theme that the behaviour of the persecutors is decisive with respect to which persons shall be considered refugees: he is in fact a (potential) victim of persecution 'for reasons of (alleged or implied) political opinion' and may consequently invoke the Convention on an equal footing with those who were motivated by true political beliefs. But we may have to draw a distinction among the former, between those who unwittingly or unwillingly have committed a politically pertinent act, and those who have done it for the sole purpose of getting a pretext for claiming refugeehood. The former may claim good faith, the latter may not. The principle of good faith implies that a Contracting State cannot be bound to grant refugee status to a person who is not a bona fide refugee." Were Convention protection in respect of persecution on account of political opinion limited to those who truly hold the relevant opinions, a good faith requirement might be seen as no more than a requirement that the political opinions expressed abroad are genuinely held. But Convention protection extends to those with a well-founded fear of persecution on account of political opinions attributed to them by the country of origin - Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570-571, Chan at 390 (Mason CJ), 416 (Gaudron J) and 433 (McHugh J). Somebody who does not truly hold a political opinion may have such an opinion attributed to him or her upon the basis of statements or actions calculated to attract that consequence. It is in that circumstance that a good faith requirement implied in the Convention as suggested by Grahl-Madsen could lead to refusal of protection. Hathaway argues against such a limitation: "Even when it is evident that the voluntary statement or action was fraudulent in that it was prompted primarily by an intention to secure asylum, the consequential imputation to the claimant of a negative political opinion by authorities in her home state may nonetheless bring her within the scope of the Convention definition. Since refugee law is fundamentally concerned with the provision of protection against unconscionable state action, an assessment should be made of any potential harm to be faced upon return because of the fact of the non-genuine political activity engaged in while abroad." (at p 39) By way of footnote Hathaway observes that such an approach would conform to the basic principle enunciated by Grahl-Madsen that the "behaviour of the persecutors is decisive with respect to which persons shall be considered refugees". Hathaway appears to recognise the difficulties generated by this class of case by proposing his own gloss upon the words of the Convention. For he would weigh up the potential harm to be faced by the claimant upon return to the country of origin. He revisits the argument in a later passage, at p 39: "In such situations, the basis of claim is not the fraudulent activity or assertion itself, but is rather the political opinion of disloyalty imputed to the claimant by her state. Where such an imputation exists, the gravity of consequential harm and other definitional criteria should be assessed to determine whether refugee status is warranted." It is difficult to escape the conclusion that Hathaway's argument involves recognising that there is some level of persecution against which Convention protection will not be available where the claimant's conduct was calculated to form the basis for that apprehended persecution. 30 In an article cited in some texts, Petrini - Basing Asylum Claims on a Fear of Persecution Arising from a Prior Asylum Claim(1981) 56 The Notre Dame Lawyer, 719, it is said at 729, in relation to United States law that: "Asylum law protects those who in good faith need to be sheltered from persecution. This protection was not meant to encompass those who make political statements for the sole purpose of becoming refugees." The one authority referred to in support of that proposition was Cisternas-Estay v Immigration and Naturalisation Service 531 F2d 155 (3d Cir 1976). That case turned upon a finding, leading to refusal of a stay of deportation under a US statute, that there was no clear probability that the applicants in that case, who had conducted a press conference in the US attacking the Chilean government, would be subject to persecution upon their return. There is no good faith principle to be derived from Cisternas-Estay. There was no authority cited to the Court and none ascertained from our investigations that indicates any general bad faith doctrine in the United States. It may be that this is because such cases are subsumed in the rejection by American authorities of "most claims grounded in political activity in the United States" - see Hathaway at 36 who also observed at 36-37: "Because persons might engage in oppositional activity strictly or primarily with the intention of placing themselves at risk, there is concern that such claims present a clear opportunity for abuse by persons who are not really in need of protection." - citing a reference to "bootstrap refugees" by D Martin in C Sumpter (ed), Mass Migration of Refugees - Law and Policy (1982) 76 American Society of International Law Proceedings 13 at 15

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.

On appeal from a Judge of the Federal Court of Australia

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

REASONS FOR JUDGMENT CARR J: Introduction 49 This is an appeal from a decision of a judge of this Court to set aside a decision made on 3 November 1998 by the Refugee Review Tribunal ("the Tribunal"). The Tribunal had affirmed the appellant's decision not to grant a protection visa to the respondent. His Honour remitted the matter to the Tribunal, differently-constituted, for consideration and determination according to law. 50 The question in the appeal is whether the Tribunal erred in law when, having found: · that the respondent, who had previously been found by a differently-constituted Refugee Review Tribunal not to be a refugee, had thereafter sent a letter ("the Letter") to his country of origin, Sudan; · that he had done so with the sole purpose of creating a pretext of invoking a claim to a well-founded fear of persecution; decided that he was not entitled to the status of a refugee sur place. The Tribunal did not make an express finding that the Letter had in fact been sent, but assumed so for the purposes of making its finding about the respondent's purpose. Factual and Procedural Background 51 The respondent, 34 years of age, was born in Sudan and is a citizen of that country. Between 1983 and 1990 the respondent lived and worked in Iraq, returning to Sudan for holidays. When Iraq invaded Kuwait he returned to Sudan. In late 1990 or early 1991 the respondent left Sudan after becoming aware that he would be required to provide military service in the civil war being fought in his country. Between 1991 and 1997 he worked in Jordan, and in April 1997 he flew to Malaysia and later boarded a boat to Australia. The respondent arrived in Australia on 25 July 1997. On 22 September 1997 he applied under the Migration Act 1958 (Cth)("the Act") for a protection visa on the basis that he was a refugee. 52 In October 1997 the Minister's delegate refused the respondent's application for a protection visa because there were insufficient facts on which to decide whether the respondent was a refugee "as there was no objective evidence as to his identity". His Sudanese passport had been "lost" or destroyed at sea. 53 On 23 December 1997 the Tribunal affirmed the delegate's decision. This was the first of two Tribunal decisions concerning the respondent. The Tribunal assumed that the respondent was a citizen of Sudan, but was not satisfied that he was a person to whom Australia had protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees ("the Convention"). It is necessary to refer briefly to the Tribunal's reasons, principally because in the subsequent Tribunal decision, which is under challenge in these proceedings, the Tribunal exercised the entitlement conferred upon it by s 416 of the Act to have regard to the earlier decision and take it to be correct. The respondent's claims before the Tribunal in 1997 were, first, that he refused to undertake compulsory military service because he was an active or known opponent of the Sudanese government. The Tribunal rejected this claim and found (as was the respondent's evidence) that the respondent had refused to register for military service because he did not wish to kill anyone or be killed by others. The Tribunal also rejected the respondent's second claim which was based on his alleged membership of the opposition Umma Party. The Tribunal had some doubts about whether the respondent was a member of that party, but held that even if he had joined it, he was not an active member and did not have any sort of political profile which would be of interest to the Sudanese government. 54 On 22 April 1998 the respondent requested the Minister to exercise a discretion under s 48B of the Act, in the public interest, to allow the respondent to make a further application for the grant of a protection visa. The request was made on the basis that new circumstances had arisen since the respondent's first application was made. The new circumstances were said to be that the respondent had, after the Tribunal's decision of 23 December 1997, written the Letter to one of his brothers in Sudan which had been intercepted by the Sudanese Securities Authority. In the Letter the respondent claimed to have told his brother: · that he was in a detention centre in Australia; · that he had applied for refugee status which had been refused; · that he had refused military service in Sudan; · about his political activities in Jordan in support of a party opposed to the Sudanese government; and · that he had written to the appellant about his case. 55 The Minister exercised his discretion so as to allow the respondent to make the further application. On 20 May 1998 the respondent applied for the grant of a protection visa relying upon both the information supplied in support of his first application and upon the new circumstances, referred to above, arising out of the interception of the Letter ("the Second Application"). 56 The respondent maintained that since the interception of the Letter his brother had been arrested on more than one occasion and had been interrogated. He submitted that because of the disclosures in the Letter he would "certainly be subjected to detention and persecution" because they showed that he was "against the Sudanese government". 57 On 20 August 1998 a delegate of the appellant refused the Second Application. The delegate found that there was a "remote as opposed to a real chance" of persecution if the respondent were returned to Sudan. The respondent applied to the Tribunal for review of that decision. 58 On 3 November 1998, for reasons published on that date, the Tribunal affirmed the delegate's decision. As mentioned above, the Tribunal took the earlier Tribunal's decision to be correct. It also (see p 7 of its reasons) took the Tribunal's earlier findings of fact to be correct. The Tribunal then turned to the respondent's new claim about the interception of the Letter. It made the following observations and findings: "In the present case, the Tribunal is not convinced that the [respondent] has been acting bona fide but, has been acting solely out of desire to put himself in a position where he could claim to be endangered. The Tribunal is of the view that the letter is a blatant example of action comparable to that which was considered in Somaghi's case. The letter included details, namely, his status as a detainee in immigration detention in Australia, his application for refugee status here, that this had failed and that he had written to the Minister for protection on humanitarian grounds. The letter had also explained to his brother that he had refused military service, the reasons why he had done so, his political activity in neighbouring Jordan, his desire not to go back to Sudan and his lack of support for the political system there. The applicant said that "he had not sent it out of a wish to gain refugee status, but to confirm the fact that he has a real fear … and about joining a group in opposition to the Sudanese government". The letter was allegedly sent after the applicant's first application was refused by the Tribunal. He said it was sent following doubts expressed by the Tribunal about his Sudanese nationality. The letter however, went beyond that request for documentation and it is notable that the first decision did not make any adverse findings on his nationality. It is also notable that in his oral evidence to this Tribunal that the applicant stated he had not previously written to his family since arriving in Australia. He had not written to them at an earlier stage because "… he had been expecting a good decision from his first application". In his oral evidence to the first Tribunal in response to a question about whether or not he had been in contact with his family he said that he contacted his family by telephone and also in writing. He addressed his correspondence to his brother and sent it via a friend in Jordan. He sent the correspondence this way because his family lived in a remote village and it was difficult to correspond with people because of this factor. The said letter was not sent with registered post as proof of the sending. Nor was it sent via his friend in Jordan to circumvent the Sudanese security and he has given contradictory evidence about whether or not he had previously corresponded with his family since arriving in Australia. It is therefore, a matter of some speculation as to whether or not the letter was ever sent, but I will give the applicant the benefit of the doubt and assume that it was. The details of the applicant's failure to undertake military service and his anti-government activities while in Jordan served no useful purpose apart from telling his brother what he would presumably know about his sibling. There was no need to detail his immigration status in Australia and the fact that he had written to the Minister requesting protection on humanitarian grounds. The letter seems to the Tribunal to be have been (sic) clearly aimed at publicising his profile, with a view to alerting the Sudanese authorities so that the applicant would be in a position to claim refugee status. The letter served no useful purpose apart from alerting the Sudanese authorities to his past opposition to them. The applicant claims that his letter was intercepted by censors in Sudan only because they were opening all mail from Australia at that time because of the recent defection of a number of Sudanese swimmers here. In this way the authorities became aware of where the applicant was and confirmation in his own hand of his anti government beliefs. It is true that this occurred at around the same time as a number of Sudanese swimmers were widely published in a Sudanese opposition newspaper as being persons who have sought refugee status here and are quoted as being highly critical of the Sudanese government. However, according to US Department of State Country Reports on Human Rights for 1997, the government of Sudan routinely interferes with the privacy of its citizens. It is common practice for security personnel to open and read mail, in addition to monitoring telephones. Sudan: Human Rights Conditions (April 1993) reports that freedom of the press and freedom of expression remained severely restricted since the 1989 coup. The censorship office inspected incoming and outgoing mail. The prevention of the free flow of information in and out of the country and the prevention of free expression is also discussed in the Human Rights Watch World Report 1996, Human Rights Watch/Africa Overview. It also reports that the censorship office is charged with inspecting incoming and outgoing mail. This evidence was discussed with the applicant at the hearing. He responded that he wrote the letter to inform his mother because she was worried about his situation. "I knew there was surveillance of mail but did not know that whole letters got opened. I knew that letters from countries such as the US, Egypt and Eritrea were opened, that is countries that had a known opposition to the Sudanese government. I thought that censorship from other countries was ordinary, like not very strong, if a letter is sent from Jordan, they didn't censor it". It was put to the applicant that his purpose in writing the letter was to found a claim for refugee status. He responded by reiterating his earlier comments that he did not write the letter to acquire refugee status but to inform his family of his situation in Australia. He had not had contact with them for a year and his mother was worried about him. He knew there was censorship but he needed to put his family in the picture. Censorship was increased after the swimmers applied for asylum in Australia. He gave no explanation as to why he did not send the letter via his friend in Jordan. The applicant said that he had not sent the letter out of a wish to gain refugee status, but as a genuine attempt to inform his family of his circumstances and to obtain documentation to attest to his identity. It is true that this occurred at around the same time as the case of the Sudanese swimmers was publicised. But the applicant had never in the past written to his family in this way, if indeed he had written at all, and furthermore, there was no necessity of including identifying details about his political profile or current immigration status in Australia. It is not as if his family required the details he allegedly included either about his past political profile or immigration status. The Tribunal concludes that this letter was sent with one view only in mind, namely so that it could be shown as evidence for a supposed endangering of the applicant. Accordingly, the Tribunal also concludes that the letter sent by facsimile from his friend in Jordan, was self serving and only sent to support the applicant's contrived claim. [This was a reference to a fax from a Mr Basheer in Jordan about a telephone call which he had received from the respondent's brother in Sudan about the interception of the Letter and the problems which that had caused, during which the brother requested that the respondent cease corresponding.] The Tribunal therefore reaches the conclusion that the sending of the letter represents action "undertaken for the sole purpose of creating a pretext of invoking a claim to well-founded fear of persecution", in the words of Gummow J in Somaghi. Hence, this action should not be considered as supporting the applicant's application and the applicant's fear is not well founded." 59 The respondent sought review of the Tribunal's decision in this Court under s 476(1)(e) of the Act on the basis that the Tribunal incorrectly interpreted the law, or had incorrectly applied the applicable law to the facts.

Decision at first instance 60 The learned primary judge referred to the United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status (1979) which states at paragraph 96: "96. A person may become a refugee 'sur place' as a result of his own actions, such as associating with refugees already recognised, or expressing his political views in his country of residence. Whether such actions are sufficient to justify a well-founded fear of persecution must be determined by a careful examination of the circumstances. Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person's country of origin and how they are likely to be viewed by those authorities." 61 His Honour said that: "The central question to be determined by the Tribunal was whether the [respondent] held a genuine fear that he would be persecuted and whether, if he were returned to Sudan, there was a real risk that serious harm would befall the [respondent] by acts of persecution within the meaning of the Convention. In making that determination, it was not open to the Tribunal to ignore the consequences of the interception by Sudanese security authorities of the letter sent by the [respondent] to his brother. … The history of extreme acts by Sudanese authorities, involving, in particular, grave infringements of the human rights of persons to whom dissenting political opinion has been attributed, made the proper determination of the [respondent's] status of great importance. Due to its misunderstanding, and incorrect interpretation, of the law, the Tribunal failed to address, as required by law, the question it had to decide." 62 His Honour held that, once it had been accepted by the Tribunal that the respondent had written to his brother, and that the Letter had been intercepted by Sudanese security personnel, the respondent's case became one of determining whether the attention from the authorities in the country of nationality gave rise to a well-founded fear that serious harm would occur if the respondent were returned. An assessment should have been made of any potential harm to the respondent and there should have been a clear acknowledgment and assessment of any risk to basic human rights upon his return which might follow from the State's imputation of an unacceptable political opinion. 63 His Honour referred to the fact that, in its reasons, the Tribunal had acknowledged that the governing regime in Sudan has been recognised internationally for its systematic and brutal abuse of the human rights of the citizens of that nation. He also referred to material before the Tribunal to the effect that political opponents were often targeted, gaoled, tortured, executed, and suppressed. There were restrictions on freedom of speech and association. All levels of Sudanese society had been affected by the oppressive conduct of the government of Sudan since it came to power by military coup. 64 His Honour expressed the view that the Tribunal, in applying the decision of a Full Court of this Court in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 (which I discuss further below), had misunderstood the law. His Honour interpreted the decision in Somaghi as an acknowledgment that: "… actions designed to give colour, or plausibility, to a claim that is no more than a pretence, are to be disregarded in determining whether a fear of persecution exists and is properly based, having regard to subjective and objective elements. In other words, a fraudulent claim of fear cannot be a well-founded fear. (See Khan v Minister for Immigration and Multicultural Affairs and Refugee Review Tribunal (1997) 47 ALD 19)." 65 His Honour, after referring to Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, then said this: "Consistent with the terms of the Convention, and the obligations undertaken by a contracting state thereunder, recognition of refugee status cannot be denied to a person whose voluntary acts have created a real risk that the person will suffer persecution occasioning serious harm if that person is returned to the country of nationality. In some cases, albeit extraordinary, fraudulent activity by an applicant for refugee status may, in itself, attract malevolent attention from authorities in the country of nationality, giving rise to a well-founded fear that serious harm will occur if that person is returned. In such cases, a determination must be made whether that person is to be accorded refugee status …". 66 At para 30 of his reasons his Honour expressed the view that: "On the material before the Tribunal it would not appear that it could be said that the applicant relied upon his act of writing to his brother, and the interception of that letter, to make more plausible, or colourable, a pretended claim to a well-founded fear of persecution. The Tribunal did not so find and, indeed, acted under the mistaken belief that at law it was obliged to disregard the acts of the applicant and their consequences, whatever they may be". 67 His Honour reasoned that the respondent's claim to a well-founded fear of persecution arose out of what the Sudanese authorities might do, armed with the knowledge which they had obtained from the interception of the Letter. 68 Even if the Letter was "a blatant example" of "acting solely out of a desire to put himself in a position where he could claim to be in danger" the Tribunal was still obliged to determine whether the consequences which might flow from that conduct gave the respondent the status of a refugee. Grounds of Appeal 69 There were four grounds of appeal. The central ground was that the primary judge had erred in law in holding that the Tribunal had failed to address the question which it had to decide, due to its misunderstanding and incorrect interpretation of the law. 70 This, in turn, raised the matter of the interpretation and application of what the appellant described as the principle established by the Full Court in Somaghi. The appellant contended that that principle was that actions taken outside the country of nationality 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, because in such cases the fear of persecution to which the Convention refers will not be "well-founded". The appellant contended that the primary judge had erred in holding that the principle in Somaghi applied only to actions designed to give colour, or plausibility, to a pretended or fraudulent claim of a well-founded fear of persecution, so that such actions were to be disregarded in determining whether a fear of persecution existed, having regard to subjective and objective elements. His Honour, so the appellant contended, had erred in holding that it was not open to the Tribunal to disregard the consequences of the respondent's action in sending the Letter, which the Tribunal found to have been undertaken for the sole purpose of creating a pretext of invoking a claim to a well-founded fear of persecution. The appellant contended that the Tribunal had correctly applied the principle in Somaghi and had not erred in its conclusion that the respondent's action in sending the Letter should not be considered as supporting his application and that the respondent's fear was not well-founded. Respondent's Contentions 71 Counsel for the respondent provided us with 17 pages of written submissions. In my reasons below, I refer, where necessary, to some of those submissions. But they can be summarised as follows. First, that Somaghi was distinguishable upon the facts. Secondly that Gummow J's comments in Somaghi were obiter dicta. Thirdly, to the extent that Somaghi might be seen as applicable, it was plainly wrong and we should not follow it. Instead we should adopt the approach taken by the Court of Appeal in Danian v Secretary of State for the Home Department (28 October 1999).

My Reasoning 72 I think that the logical starting point is to examine the Tribunal's findings of fact. The Tribunal found that the respondent sent the Letter solely out of a desire to put himself in a position where he could claim to be endangered. It found that the Letter was clearly aimed at publicising the respondent's profile with a view to alerting the Sudanese authorities so that he would be in a position to claim refugee status. It also found that the Letter served no useful purpose apart from alerting the Sudanese authorities to his past opposition to them. It concluded that the Letter was sent with only one view in mind, namely so that it could be shown as evidence of a supposed endangering of the respondent. The Tribunal said that in its view the sending of the Letter was a blatant example of action comparable to that which was considered in Somaghi's case. These are very strong findings of fact against the respondent. 73 I turn next to the decision in Somaghi. I shall deal with the relevant facts of that case (two cases really) as briefly as possible. Two Iranian Nationals arrived in Australia on 6 September 1989 on fraudulently obtained "photo substituted" Greek passports. They both made applications for refugee status, claiming to have a well-founded fear of persecution should they be returned to Iran. On 13 November 1989 they were advised of the decision of a delegate of the Minister that they were not refugees. On 6 December 1989 two things happened. First, each applicant sent a letter to the Iranian Embassy in Canberra expressing opposition to the Iranian government. Copies of that letter were sent to various persons and bodies. Secondly, the applicants' solicitors wrote to the Immigration Department requesting reconsideration of the refusal of their refugee status. That further application was referred to a second delegate who considered the issue of whether each applicant's forwarding of a letter critical of the Iranian government raised a prospect of him becoming a refugee "sur place". The delegate found that the dispatch of the letters to the Iranian Embassy had been undertaken by each applicant for the sole purpose of enhancing his claim for refugee status. He refused their applications for protection visas. Both applicants applied to this Court for judicial review of the delegate's decision. Lockhart J, at first instance, concluded that for the reasons he had given in relation to one of the applications (by a Mr Heshmati) he would dismiss Mr Somaghi's application. In Heshmati v Minister for Immigration, Local Government and Ethnic Affairs (unreported, Federal Court Judgment No 665 of 1990, 22 November 1990) in a passage cited in Somaghi at 118 his Honour said this: "That a person can acquire refugee status sur place is plain enough because if a person was not a refugee when he arrived in the country of residence, but events occurred there or in his country of origin which gave rise to a real or well-founded fear of persecution upon his returning to the country of origin, his status as a refugee may arise notwithstanding that the only relevant events that gave rise to it are those which occurred after he left his country of origin. Those events may result solely from his own actions such as expressing his political views in his country of residence. It is true that the expression of those views may in some cases justify a well-founded fear of persecution if he should return to his country of origin; but I am not persuaded as presently advised that a person whose sole grounds for refugee status consists of his own actions in his country of residence designed solely to establish the circumstances that may give rise to his persecution if he should return to the country of origin is necessarily a refugee sur place." 74 Mr Somaghi appealed to the Full Court on the ground that the delegate's decision was vitiated by a lack of procedural fairness in two respects. First, that the delegate had failed to inquire about his motivation in sending the letter to the Iranian Embassy. Secondly that the delegate should first have communicated to Mr Somaghi what he judged to have been his purpose and should have taken into consideration whatever response Mr Somaghi might have made. Gummow J held that there had been a lack of procedural fairness. Keely J disagreed on that point but (at 101) said that he was, on all other matters, in agreement with Gummow J's conclusions and reasons. Jenkinson J (at 105) agreed with Gummow J's conclusion that the appeal should be allowed on the natural justice ground. Rather than join in Gummow J's reasons in relation to the natural justice point, Jenkinson J set out his own reasons for agreeing with the outcome, but otherwise expressed agreement with Gummow J's reasons. 75 Accordingly, on my reading of Somaghi, all three judges agreed with what Gummow J had to say on the subject of refugees sur place. The relevant passages are at 116-118. His Honour referred to the Convention, to Chan, to the United Nations High Commissioner for Refugees Handbook and to passages in G S Goodwin-Gill "The Refugee in International Law" (1983) and in A Grahl-Madsen "The Status of Refugees in International Law". He then referred to the delegate's conclusion that the dispatch of the letter to the Iranian Embassy and others was not a step taken in good faith, and was undertaken for the sole purpose of enhancing the appellant's claim for refugee status. His Honour next set out the relevant passages from Lockhart J's judgment at first instance, including the following passage: "There is some 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 for refugee status is entitled to be treated as a refugee sur place and this division of opinion is referred to in some of the material before the decision-makers in this case. I cannot accept that a person who has deliberately created the circumstances to which I have just referred is 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. The true position is in my view as is stated in par 96 of the United Nations Handbook. It is this position which was adopted by the decision-makers in this case. The view was taken that, after examining the relevant circumstances surrounding the sending of the letter by the applicant to the Iranian Embassy in Canberra and the other persons and bodies previously mentioned on 6 December 1989, the applicant had done this for the purpose of creating the circumstances which might endanger him in Iran." 76 Gummow J concluded his reasons in these terms (at 118): "Lockhart J said that 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"." [Emphasis added]. 77 In my view, that conclusion formed part of the ratio decidendi in Somaghi. It was an essential building block in the conclusion of the Full Court (by majority) that procedural fairness had been denied to the appellant. The statement of principle can be seen, as I have explained above, to have had the endorsement of the other two judges comprising the Full Court. If, contrary to my view, Gummow J's conclusions were merely obiter dicta (endorsed by the other two judges) then I would respectfully adopt them as correctly reflecting the law. They were, as senior counsel for the appellant submitted, expressly endorsed by Drummond J at first instance in 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 again, expressly accepted by Lockhart J in Khan v Minister for Immigration and Multicultural Affairs (1997) 47 ALD 19 at 26. 78 Is there a relevant distinction between Somaghi and the present case? It is not easy to ascertain the precise basis upon which Mr Somaghi was initially refused refugee status. From the reasons of Lockhart J (at 2-3) and Gummow J on appeal (at 110) it would appear that Mr Somaghi's claims to have been imprisoned in Iran from 1987 to 1989 on suspicion of being involved with the Mojahidin and that he had escaped while attending a large memorial service following the death of the Ayatollah Khomeini in June 1989, were disbelieved. 79 In his written submissions, the respondent sought to distinguish Somaghi on the basis that the letter which Mr Somaghi sent appeared to have been the single provocative isolated act upon which he made his second claim to refugee status. Mr Somaghi had, so the respondent contended, previously been disbelieved by the delegate who saw no basis for a genuinely held political belief. The respondent says that in the present matter he relies upon his activities prior to the sending of the Letter, being the application for and refusal of asylum, membership of the Umma Party and opposition to conscription, from which he apprehends future persecution. The respondent argues that in his case, the Letter identifies his activities "… and does not generate them". 80 I acknowledge the factual differences advanced on behalf of the respondent. However, I do not regard those differences as being a sufficient basis for distinguishing the present case from Somaghi. In each case the applicant for refugee status had been held not to be a refugee. In Somaghi it would appear that the applicant was disbelieved and held not to have either the political beliefs or the political profile which he claimed. In the present case, the first Tribunal, as I have mentioned above, gave the respondent the benefit of the doubt but found that he was not an active member of the Umma Party and did not have any sort of political profile which would be of interest to the Sudanese government. However, in each case there was a finding that the sole purpose of sending the letters to the relevant authorities was to enhance the sender's status from that of a non-refugee to that of a refugee. 81 Until the Court of Appeal's decision in Danian late last year, there was a fairly consistent line of authority supporting the principle adopted in Somaghi. One of the cases went further by regarding unreasonable behaviour of an applicant as a potential barrier to refugee status, see R v Immigration Appeal Tribunal; Ex parte 'B' [1989] Imm AR 166 (a decision of Simon Brown J). Other cases include R v Secretary of State for the Home Department; Ex parte Gilgham [1995] Imm AR 129 (Court of Appeal), M v Secretary of State for the Home Department [1996] 1 WLR 507 and Re HB Refugee Appeal: 2254/94 (a decision of the Refugee Status Appeals Authority of New Zealand in which there is a comprehensive review of the relevant authorities and commentary as at that date). 82 In Danian the (English) Immigration Appeal Tribunal accepted a finding of a special adjudicator that Mr Danian had written to the Nigerian High Commission in order to draw the attention of the Nigerian authorities to himself in a blatant and cynical attempt to manipulate circumstances to his own advantage. The Tribunal held that Mr Danian was a refugee sur place, but one who had acted in bad faith. Because he had acted in bad faith he did not fall within the Convention. 83 On appeal, the Court of Appeal allowed the appeal from the Immigration Appeal Tribunal and remitted the case to a differently-constituted Tribunal. 84 Their Lordships held that putting forward a baseless or fraudulent claim did not in itself exclude an applicant from the protection of the Convention. A "bad faith" exception was not to be implied into the Convention. Their Lordships did not see their judgments as "… giving any kind of green light to bogus asylum-seekers" (to quote Brooke LJ at p 20). Rather, it was for the applicant to satisfy the Secretary of State that he had a well-founded fear of persecution for a Convention reason. An applicant who put forward a fraudulent and baseless claim for asylum was unlikely to be believed in relation to the claims which he or she made. 85 Given the current state of the authorities, I would not follow the Court of Appeal's decision in Danian. To some extent the Court of Appeal in that decision can be seen to have been influenced by Lee J's judgment at first instance in this matter - see Brooke LJ at pp 17 and 18 and Buxton LJ at pp 23-24 (Nourse LJ agreed with Brooke and Buxton LJJ's reasons and conclusion). Buxton LJ expressed the view, most diplomatically, that the primary judge in this case had misinterpreted Somaghi. His Lordship said (at p 24): "I venture respectfully to think that the Full Court in Somaghi may not in fact have intended to express itself as Lee J inferred." 86 In the present matter, the Tribunal, as first constituted, found that the respondent was not a refugee. The only thing that changed thereafter was that the respondent sent the Letter in which he set out information which was calculated to excite the attention of the Sudanese authorities and provoke them into persecuting him. 87 This is a trick apparently quite well-known in some refugee circles - see Somaghi at 113. Some governments ignore such letters, brushing them off as a "try on" which of course they are. It may be that the Sudanese Government takes a more serious view of such letters. It would seem that the applicant decided to run that risk in a bid to turn himself into a refugee. He had been found not to be a refugee before he sent the letter. By planning to send and sending the Letter he became a fraudster. 88 I do not see the need, in this appeal, to lay down a principle of good faith i.e. to imply a condition of good faith into the Convention or to put a gloss to that effect on the Convention. It is sufficient to focus, as the appellant focussed, on the Tribunal's findings to which I have referred above. The appellant put its case on the relatively narrow ground of sole purpose rather than on unreasonable conduct. I think that it is important to emphasise what a narrow ground is involved i.e. one based on fraud. 89 In my view, the Tribunal did not err in the approach which it took. It correctly applied the principles explained in Somaghi. 90 The purpose of the Refugees Convention is to provide protection in a safe country to those who are, or are at risk of being, persecuted in their country of origin for reasons of their race, religion, nationality, membership of a particular social group, or political opinion. 91 That protection is extended liberally to include those: (a) who, holding political opinions, express them in the safe country thereby rendering them liable to persecution in their country of origin (refugees sur place); (b) who, though not holding a political opinion, will have such political opinion imputed to them, for example, if they flee from a country which is governed by a repressive regime; (c) children of non-refugees who will be persecuted on return to their country of origin by reason of belonging to a particular social group: Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19. 92 In my opinion, where a person who is not a refugee, engages in particular conduct, not in order to exercise certain human rights which the Convention is designed to protect, but solely to create a pretext of invoking a claim to well-founded fear of persecution, it would be wrong to describe his fear of persecution as being "well-founded". The expression "well-founded" has been taken to describe the objective circumstances giving rise to a real chance of persecution. But, in my view, there is no reason why the expression "well-founded" should be confined only to such a meaning. It can have another meaning as well. In the present circumstances the respondent's fear of persecution is probably "well-founded" in the objective sense i.e. objectively he is likely to be persecuted on his return to Sudan. However, it is not "well-founded" in the sense of being properly founded within the meaning of the Convention. A claim having fraud as its foundation is not, in my view, "well-founded". What the respondent did was to attempt to upgrade his position by deliberately creating a higher perceived political profile than he had previously occupied, solely for the purpose of claiming refugee status. I would read the word "pretext" in this context as carrying the meaning of a false reason or excuse for summoning up (invoking) a real fear of persecution: The New Shorter Oxford English Dictionary at 2347 and 1412 respectively. 93 In my respectful opinion, Lee J erred in confining the principles explained in Somaghi and not properly applying them. I accept the appellant's submission that his Honour's approach was not acceptable in principle, because it fails to accord a purposive construction to the terms of the Convention. The protection granted by the Convention is, as the appellant submitted, designed for those who hold political views and may suffer persecution on that account. It is not designed to protect persons who have no bona fide need of such protection, but express political opinions (whether they hold them or not) to create a basis for staying in a country in which they wish to reside. To grant protection in such cases would be to undermine the beneficial purposes of the Convention.

Conclusion 94 For the foregoing reasons I would allow the appeal and set aside the judgment at first instance. The respondent should pay the appellant's costs in relation to both the appeal and the hearing at first instance. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr.

Associate: Dated: Counsel for the Appellant: Mr J Bastan QC with Mr P R Macliver

Solicitor for the Appellant: Australian Government Solicitor

Counsel for the Respondent: Mr R E Lindsay with Ms A Hanley

Solicitor for the Respondent: Legal Aid Commission of Western Australia