Re Ramazan Ali Babaei Somaghi v Minister of Immigration, Local Government and Ethnic Affairs [1991] FCA 389; 102 ALR 339;

Re Ramazan Ali Babaei Somaghi v Minister of Immigration, Local Government and Ethnic Affairs [1991] FCA 389; 102 ALR 339; - FCA 1991 case summary — Zoe

[73]

6. If the delegate who made the decision of April 1990 reasonably believed that the legal conceptions which underlie the expression "refugee sur place" were present to the mind of the appellant's solicitor in December 1989 or in March 1990, when the last submission on the appellant's behalf was made, no obligation in my opinion fell on the delegate to make any communication to the appellant or to the solicitor about the letter to the Iranian Embassy. "(I)n the ordinary course there is no obligation on the Minister to go beyond the material furnished to him, particularly where the proposed deportee has had the benefit of legal advice in making submissions" : per Toohey J. in Videto v. Minister for Immigration and Ethnic Affairs [1985] FCA 449; (1985) 69 ALR 342 at 345. Procedural fairness does not in my opinion require that there be disclosed to an applicant considerations influencing the Minister or his delegate which are predictable by a mind both aware of the factual circumstances and also furnished with the legal knowledge which together give rise to those considerations, if the applicant is represented by a legal practitioner who may reasonably be expected by the Minister or his delegate to be both aware of those circumstances and furnished with that knowledge. In many cases the mere fact that the applicant's representative is a practising lawyer will justify a reasonable belief that the representative's mind is furnished with the relevant legal knowledge. In a case where fear of persecution was first engendered after a person claiming to be a refugee within the meaning of the Convention had left the country of his nationality, and was first engendered in consequence of events which occurred in that country after he had left it, the conception of a refugee sur place might reasonably be expected to occur even to an unreflecting mind. But in a case such as this, where the event originating the fear of persecution, if fear there was, is an act of the person claiming refugee status, it may reasonably be supposed that a lawyer not known to be experienced in the representation of persons claiming that status may fail to recognise the act as one which may have consequences that constitute the actor a refugee sur place. The failure of the appellant's solicitors to suggest, in either of the written communications they made to the Australian governmental authorities after seeing a copy of the letter to the Embassy, that the appellant had a claim to be recognised as a refugee sur place could be explained upon several hypotheses. One is that, recognising both the possibility that the transmission of the letter to the Embassy and its publication to others might engender in the appellant a well-founded fear of persecution in Iran attracting refugee status and the possibility that the Minister or his delegate would regard the appellant's transmission and publication of the letter as not bona fide acts, the solicitors decided upon a course calculated to induce in the decision maker's mind an impression that the solicitors and their client had been candid and lacking in guile. Another is that the solicitors recognised neither possibility, but thought that the letter to the Embassy should be included in the material before the decision maker for the sake of completeness. Another is that the solicitors recognised the first possibility, but not the second. Another is that the solicitors had obtained the appellant's instructions that no fear of persecution had arisen in his mind in consequence of the transmission or publication of the letter. In my opinion the circumstances known to the delegate in this case did not enable him reasonably to judge any single hypothesis so far more probable than the others that he could without procedural unfairness determine the application on the assumption that the applicant did not assert a fear of persecution which was grounded upon his perception of the Iranian government's likely response to his transmission and publication of the letter.

[75]

8. The reasons for judgment of Keely J., which I have had the advantage of reading, in my opinion demonstrate that the preponderance of authority favours a rule or principle that an administrative decision maker's evaluative conclusions on the material before him does not have to be communicated to an applicant so that considerations influencing the decision maker's mind adversely to the applicant's interest may be reviewed before the decision is made in the light of any submission or evidentiary material the applicant may desire to tender in response to the communication. But there are observations, which may be thought to constitute a gloss on the general rule, that favour a requirement that the applicant have his mind directed to the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it : see Kioa v. West [1985] HCA 81; (1985) 159 CLR 550 at 587 (per Mason J.); Sinnathamby v. Minister for Immigration and Ethnic Affairs 1986) 66 ALR 502 at 517 (per Burchett J.); Broussard v. Minister for Immigration, Local Government and Ethnic Affairs (1989) 98 ALR 180 at 189-190. There are other observations, which may be thought to constitute another gloss on the general rule, that an unfavourable animadversion, by the decision maker or expressed by a departmental officer to the decision maker, upon the conduct of an applicant, or even of another person whose interest in a decision favourable to the applicant is to be weighed by the decision maker, should be disclosed to the applicant so that he may respond, if the animadversion is not an obviously natural response to the circumstances which have evoked it : see Minister for Immigration, Local Government and Ethnic Affairs v. Kumar (Full Court of the Federal Court; unreported; judgment 31 May 1990); Kioa v. West [1985] HCA 81; (1985) 159 CLR 550 at 573, 588, 634, where two members of the High Court treated such an animadversion, in paragraph 21 of a submission to the decision maker, as discoverable to the applicants. I do not stay to consider whether these observations are better regarded as the glossing of a rule or as discoveries of what procedural fairness requires in particular circumstances, that which was called a rule being conceived as but another such a discovery. Either way those observations have to be taken into account in determining what procedural fairness required in this case.

[76]

9. The delegate's conclusion that the appellant did not act in good faith in sending the letter is only critical in the sense that, if all the other issues have been found to be lawfully determined adversely to the applicant's interest in achieving recognition as a refugee, that conclusion destroys his last hope of that recognition. Even in that sense, criticality is not an undoubted quality of the conclusion, because the delegate was inclined to doubt whether transmission or publication of the letter would "result in any adverse attention from Iranian authorities". The other requirement, that unfavourable judgments by the decision maker on conduct of an applicant should, unless they are obviously natural responses in the circumstances, be communicated to the applicant so that he may have the opportunity by argument or evidence to try to change the judgment, is in my opinion applicable to the circumstances of this case. The purpose imputed by the delegate - of providing the applicant with a pretext for fear of persecution - was not so obviously the purpose which a reasonable observer would attribute to transmission of the letter that the applicant should be treated as having knowledge of what the delegate's judgment of that conduct would be. "As the obligation to observe the principles of natural justice is not correlative to a common law right but is a condition governing the exercise of a statutory power, the repository satisfies the condition of adopting a procedure which conforms to the procedure which a reasonable and fair repository of the power would adopt in the circumstances when the power is exercised. When the question for the court is whether the condition is satisfied, the court must place itself in the shoes of the repository of the power to determine whether the procedure adopted was reasonable and fair." (per Brennan J. in Kioa v. West 159 CLR at 629). This delegate stood in the uneasy posture of one who had reason to doubt whether the appellant or his solicitor had even contemplated the transmission or the publication of the letter as a possible ground of recognition as a refugee sur place. So placed, he could not, as I think, be reasonably confident that his own attribution of the purpose of achieving that recognition to the appellant was the obviously natural response to the circumstances. Accordingly I think that procedural fairness required that he communicate to the applicant what he judged to have been the appellant's purpose, and take into consideration whatever response the appellant made.

[97]

"33.

In the former Delegate's assessment, the (appellant's)

action did not appear to have been undertaken for political

motives or to have been committed unwillingly or

unwittingly. Rather, his despatch of a letter to the

Iranian Embassy detailing his opposition to the Iranian

Government appeared to have been undertaken for the sole

purpose of enhancing his claim for refugee status. This

conclusion is supported by the timing of the letter:

.

the former Delegate noted that the letter was sent on the

same day as the solicitor's request for reconsideration of

the case;

.

this led him to assess that the act was not committed in

'good faith'.

. . .

According to the former Delegate, the (appellant) had not

established a claim to refugee status before he despatched

the letter to the Embassy, neither did he act in good faith

in sending a provocative letter to the Iranian Embassy.

Accordingly, even if the actions by the (appellant) did give

rise to a real chance of persecution, the fact that the act

did not arise from a Convention related criterion meant that

he should not be extended the benefit of the protection of

the Convention. In the former Delegate's view, persons who

have committed a politically pertinent act solely to seek to

bring themselves within the terms of the Convention may not

claim good faith. In any event, the former Delegate

considered that there was a real chance that such an act

would not result in any adverse attention from Iranian

authorities. He noted advice that the tactic of sending

provocative letters to their embassies by Iranians abroad

has been repeated frequently over the years and may be seen,

also by Iranian authorities, as nothing more than a final

attempt to secure residency in a chosen country.

After consideration of all the available information, the

former Delegate concluded that the serious inconsistencies

in the (appellant's) claims placed doubts on the

creditability of his claims for refugee status, and that the

(appellant) had, overall, failed to establish that his

claimed fear of returning to Iran was well-founded.

Accordingly, the former Delegate determined that the

(appellant) was not a refugee within the meaning of the

Convention and Protocol."

[119]

"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 para. 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.

. . .

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

place 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 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 is necessarily a refugee

sur place."

At a glance

Court

Decision date

Before

Source

Judgment (135 paragraphs)

Re Ramazan Ali Babaei Somaghi v Minister of Immigration, Local Government and Ethnic Affairs [1991] FCA 389; 102 ALR 339; (1991) 31 FCR 100 (21 August 1991)

Parties

Legislation Cited (2)

Cases Cited (15)