MIAC v SZJGV & Anor; MIAC v SZJXO & Anor

[2009] HCATrans 103

[2009] HCATrans 103

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S577 of 2008

B e t w e e n -

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Appellant

and

SZJGV

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Office of the Registry
  Sydney  No S578 of 2008

B e t w e e n -

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Appellant

and

SZJXO

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 20 MAY 2009, AT 10.17 AM

Copyright in the High Court of Australia

__________________

MR S.J. GAGELER, SC (Solicitor‑General of the Commonwealth of Australia):   If the Court pleases, in each matter I appear with MR D.H. GODWIN for the appellant.  (instructed by DLA Phillips Fox)

MR G.T. JOHNSON:   May it please your Honours, in each matter I appear with my learned friend, MR D. JORDAN, for the first respondent.  (instructed by Fragomen Global)

FRENCH CJ:   Thank you.  I am informed there is a submitting appearance for the second respondent in each appeal.  Yes, Mr Solicitor.

MR GAGELER:   If your Honours have to hand reprint 11 of the Migration Act, section 91R(3) appears at the top of page 96.  Without reading that section in its entirety, and assuming paragraph (b) to have no application, the question raised in the appeals is, what is the content of the direction for the purposes of the application of this Act and the Regulations to a particular person, in determining whether the person has a well‑founded fear of being persecuted, disregard any conduct engaged in by the person in Australia.

To go straight to the point, hoping to make the point good in the course of my submissions, that is, in our submission, a direction that has nothing to do with making findings or predictions of fact.  It is a direction that is concerned solely with the application of the Article 1A(2) definition to the facts as found and predicted, and it is directed in that context to the application to the facts of the element of the definition in Article 1A(2) that requires a fear of persecution to be well founded.

FRENCH CJ:   Does that mean that the words “in determining” in paragraph (a) refer to a process undertaken after the findings of primary fact are made?

MR GAGELER:   Yes.  So after all the facts are found once and for all, what the direction in the section requires is that conduct in fact engaged in by the person in Australia be disregarded, that means simply left out of account, in determining whether, which we would say means as a basis for determining that, such fear of persecution as a person may in fact have is to be characterised in terms of Article 1A(2) as well founded.  That, in our submission, is what the section is about and that is how it is to be interpreted.

Now, your Honours, can I first show why that construction is right and then can I fairly briefly show how the Full Court got it quite wrong.  Your Honours, the relevant context for the enactment of section 91R in September 2001 is provided by the case law that we have summarised in our submissions in paragraph 30 and in the extrinsic materials that we have summarised in our submissions in paragraph 31.

What we get from that material – and I will go very briefly to a couple of aspects of it - is a legislative choice to adopt in relation to conduct engaged in by a person in Australia an approach to the application of Article 1A(2) that was taken by a unanimous Full Court of the Federal Court in the case of Somaghi in 1991 in preference to that which had more recently been taken by majorities of the Full Court of the Federal Court in the case of Mohammed in May 2000 and Farahanipour  in February 2001 and the difference between those two approaches can be picked up most easily by going to the last of those cases, that is Farahanipour 105 FCR 277.

In this case one finds in the judgment of Justice Ryan, as part of the majority, a very clear and crisp exposition of the Mohammed line and one finds in the judgment of Justice Tamberlin in dissent a very clear exposition of the Somaghi line.  Within Justice Ryan’s judgment, if your Honours go to paragraph 15 there is a long quotation from Justice Lee at first instance in Mohammed.  It was Justice Lee’s judgment and essentially his reasoning which was upheld by the majority in Mohammed.  The relevant, or the most useful part of that is at the end of the paragraph, at the end of the quotation from Justice Lee.  This is what he said:

At all times, however, the determination to be made is whether there is a genuine fear of persecution and whether that fear is well‑founded.  A person will have a well‑founded fear of persecution if it may be shown that there is a real chance that the persecution feared may occur . . . 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.

Justice Ryan, applying that reasoning to the facts of the case before him said this at paragraph 20 – picking up paragraph 20 at the second sentence:

There is a clear finding that, in procuring the publication of the “Arash” article, the first respondent was actuated solely by the purpose of creating or reinforcing a fear of persecution were he to return to Iran.  Such a fear may be no less genuine, despite the artifice by which the circumstances which gave rise to it have been engineered.  The epithet attached by the Convention to the requisite fear of being persecuted is “well‑founded”.  As a matter of ordinary English usage, that connotes only that the fear have a sound or credible basis in fact.

That is the Mohammed line.  The alternative view was that expressed by Justice Tamberlin invoking Somaghi.  At paragraph 32 his Honour quotes from Justice Gummow in Somaghi and it was with Justice Gummow that the other members of the Court in that early case agreed.  Picking up the quote in the second sentence, indeed at the last line on the page:

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’.

Explaining that a little more, Justice Tamberlin, after usefully referring to an earlier explanation of Justice Carr in paragraph 43, said this at paragraph 47, picking it up in the second sentence:

The words “well‑founded fear” sit uneasily with the notion of a fear generated by a course of conduct carried out for no other purpose than to create a false perception as to political opinion and thereby claim refugee protection.  On a fair and reasonable reading of the Convention, a fear or risk of persecution founded not on any political, religious, social or racial basis, but simply on a desire to attract protection is not in my view “well‑founded”.

In the last sentence on the page, paragraph 48:

In my view, an attempt to rely on an imputed political opinion generated by conduct designed solely to attract attention and refugee status is not within the Convention.

So they are the two views and the extrinsic material, in our respectful submission, shows, as clearly as extrinsic material can show, an intention to adopt legislatively the Somaghi line in preference to the Mohammed line.  Now, I hope your Honours have the second reading speech in the House of Representatives for 28 August 2001.  The second reading speech in the Senate was materially the same.  On the first page, page 30420, Mr Ruddock said this:

This Bill is aimed at addressing two critical challenges facing Australia’s refugee protection arrangements and our ability to effectively contribute to international efforts to protect refugees.

In the next column about a third of the way down:

The second major challenge lies in the increasingly broad interpretations given by the courts to Australia’s protection obligations under the refugees’ convention and protocol. 

Going then directly to page 30422 in the left‑hand column this is said about halfway down the page:

I am also concerned about court decisions that have recognised the claims of applicants who have deliberately set out to contrive claims for refugee status after they have arrived in Australia.

Such action, deliberately seeking to attract hostile attention from a home country government, makes a mockery of an applicant having a real fear of persecution. 

The legislation will make it clear that any actions by a person taken after arrival in Australia will be disregarded unless the minister is satisfied that the actions were not done just to strengthen claims for protection. 

The convention was not intended to provide protection to applicants who contrive claims in second or third countries and who have no other basis for claims to refugee status.

However, in exceptional cases where a person has acted purely to strengthen their claims, and so as a result needs some protection, my ministerial intervention powers will allow me to intervene if it is in the public interest.

That last reference is to the new section 417, which was inserted by the same amending Act.  Section 417 your Honour see at page 525 of the print.  That is a section which allows the Minister as a matter purely of discretion to substitute a more favourable decision if a person is denied refugee status by the Tribunal.  I should mention simply in passing that some attention was given to section 417 by the Court in S134 211 CLR 441.

Your Honours, the revised explanatory memorandum then really adopts the same theme.  The High Court Library alerted us to the existence of a revised explanatory memorandum yesterday.  The only revision that occurred was the insertion of two new paragraphs, paragraphs 23 and 24 dealing with an amendment to the proposed section 92R(2).  That had a flow‑on effect to the numbering of the other paragraphs, but there was no other change in the explanatory memorandum.

The relevant paragraphs of the explanatory memorandum are at page 10 of the revised document and the paragraphs are 27, 28 and 29.  They are very much a restatement of what I have just read from the second reading speech and I will not delay the Court by reading them, save to point out in the second sentence in paragraph 28 there is an emphasis on the need for a fear of persecution to be both objectively and subjectively based. 

FRENCH CJ:   This was the same set of amendments that brought in the prohibition on publication of the names.

MR GAGELER:   That is right.

FRENCH CJ:   I suppose that was also concerned with the possibility of a sur place claim being based upon publication of a judicial review application.

MR GAGELER:   In part, but of course it went a little further than that, not just a sur place claim but a real – the reality ‑ ‑ ‑

FRENCH CJ:   Yes, well a sur place claim is a real one, we are not talking about bad faith there.

MR GAGELER:   No, the concern of course was to prevent the process itself giving rise to a claim whether legitimate or illegitimate.  If one then goes from that to the text of section 91(3) there is something to note about the similarity between the opening words of section 91R(3) and the opening words of section 91R(1). 

What can be seen, in our respectful submission, is that both subsections R(1) and R(3) are directed to clarifying and perhaps modifying, depending on the view you take of the underlying Convention obligation, the elements of the definition of “refugee” in Article 1A(2) as applied for the purposes of the Act and the Regulations.  Section 91R(1) was the subject of consideration by the Court in the case of VBAO. That is reported in 233 CLR 1 and there are just two passages I wanted to draw your Honours’ attention to here. There is a reference in passing to the nature of the direction in paragraph 2 of the judgment of the Chief Justice and Justice Kirby where it is said in the third sentence:

In deciding whether a person has a well‑founded fear of persecution if sent or returned to a particular place, and whether, on that account, the person is entitled to a protection visa, the decision‑maker is directed by s 91R –

that is subsection (1) –

that Art 1A(2) of the Convention does not apply in relation to persecution unless the persecution involves serious harm to the person.

So, a direction to the decision‑maker as to the application of the Article.  Then if you turn over to paragraphs 11, 12 and 13 in the judgment of Justice Gummow, his Honour first points out in paragraph 11 that in Guo six members of the Court identified elements of the definition of “refugee”.  What they said was that:

“The definition of ‘refugee’ in Art 1A(2) of the Convention contains four key elements:  (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 . . . and (4) the applicant must have a ‘well‑founded’ fear of persecution for one of the Convention reasons.”

Section 91R contains three sub‑sections.  Section 91R(3) is addressed to what was identified in Guo as element (4) of the Convention definition and the significance to be attached to conduct in Australia when assessing the presence of a well‑founded fear of persecution . . . 

Sub‑sections (1) and (2) of s 91R are addressed to elements (2) and (3).

In our submission, his Honour’s identification as to the operation of each of those subsections is correct.  It is useful to go back for a moment to Guo 191 CLR 559, if your Honours have it to hand.

The elements of the definition are identified at the top of page 570.  The fourth element – that is the well‑founded fear of persecution – then gets addressed at the bottom of page 571 and over the page.  The point made at page 572 at about point 2 is that there is a danger in substituting the real chance test for a well‑founded fear.  There is a statement at about point 7 of the page, one sentence just before the reference to Chan:

A fear is “well‑founded” when there is a real substantial basis for it.

In our submission, the way section 91R(3) really operates is to say unless paragraph (b) applies conduct in Australia cannot provide a real substantial basis for a convention of fear.  That is essentially the way the section works.

That the section only works after all the facts are found follows from its focus on the element of the Convention definition, but it is also necessarily inherent in the structure of the section because the disregarding to which the section refers can only meaningfully occur where the decision‑maker is first satisfied that the person has engaged in conduct in Australia and – looking at paragraph (b) now – where the decision‑maker, being the Minister as identified in paragraph (b), or the Tribunal exercising the power of the Minister under section 415 of the Act, is not satisfied in terms of that paragraph that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.  So the very application of the section in its structure necessarily presupposes findings of fact including, in an appropriate case, to deal with paragraph (b) findings by reference to matters of credit.  Going to the present cases ‑ ‑ ‑

HAYNE J:   Just before you part from (3)(b), the phrase “otherwise than for the purpose” evidently directs attention to the purpose entertained by the person engaging in the conduct.

MR GAGELER:   That is right.

HAYNE J:   In cases of mixed purpose, how is (3)(b) to be applied?

MR GAGELER:   Consistently with the legislative purpose, in our respectful submission, “purpose” is there to be read as sole purpose.

HAYNE J:   Which in turn links back to what you identified as the competition in decisions which set up, did they not, a sole purpose idea?

MR GAGELER:   The Somaghi line was all about a sole purpose, yes.  Now, I should say, since your Honour has raised that, there is a decision of a single justice of the Federal Court which suggested – I do not think it was held – but suggested that dominant purpose is sufficient.  We would say that is wrong.  I should tell you what that case is.  It is a case called SZJZN v Minister for Immigration and Citizenship 169 FCR 1 and there is some dicta, I think, of Justice Madgwick that suggests that dominant purpose is sufficient. We disagree with that, your Honour.

If I can then look first to the reasoning of the Tribunal in each of the cases and into the reasoning of the Full Court, and I think I can do this fairly efficiently.  In SZJGV the decision of the Tribunal begins at page 3 and the findings begin at page 13.  At page 13, line 50, it is said:

The applicant’s claims are based on the Convention grounds of political opinion and membership of a particular social group.  He essentially claims that he has been a Falun Gong practitioner since 1997 and to have staged a number of sit‑in protests in 1999.  As a result, he was harassed and interrogated by the police for a number of years.  He fears harm by the authorities if he were to return to China.

So that is the claim.  The next page, page 14, outline 28, it is said:

The applicant’s evidence at the hearing indicates that he began frequenting Falun Gong practice sites a month or two before his hearing . . . The evidence clearly points to the fact that the applicant attempted to join practise sites and was taught how to perform some of the exercises in Australia only recently . . . The applicant’s conduct and his evidence at the hearing leads a Tribunal to find that he was not a Falun Gong practitioner in China since 1997 as he has claimed and that his interest in Falun Gong is a recent invention designed to assist him in his endeavour to remain in this country by strengthening his claims against a protection visa application.

Then in the next paragraph the Tribunal disregards, pursuant to section 91R(3), the conduct in Australia, but goes on at the next page, page 15, to make further findings of credit relating to the conduct claimed to have occurred and the circumstances claimed to have happened in China.  Just picking that up around about line 45, it is said:

the totality of the applicant’s oral evidence shows a propensity to exaggerate and tailor his evidence in a manner which achieves his own purpose.  In reaching this view the Tribunal has had regard to his lack of knowledge about Falun Gong –

and this is the important bit –

his recent attempts to construct a profile of a Falun Gong practitioner for himself and the contradictions –

et cetera.  But it is those words:

his recent attempts to construct a profile of a Falun Gong practitioner for himself –

Then in the next paragraph:

In sum, the Tribunal considers that the applicant’s account of his activities in China lacks credibility.

So what you have in this case is the Tribunal taking conduct in Australia into account in assessing the credit of the applicant and treating that conduct leading to a finding of credit which undermines the credibility of his testimony about what occurred in China.  That is the way in which the Tribunal used what had occurred in Australia.  In SZJXO the use made of the conduct in Australia was just a little different.  The decision record begins at page 19 and the findings begin at page 28.  Picking those up at page 29, line 18, it is said:

The Applicant claims that if he returns to China he will be imprisoned for his involvement with Falun Gong, including pasting Falun Gong material on walls in his town and taking part in Falun Gong protests in Australia.

Then at line 40, dealing with the first of those two elements, that is, pasting Falun Gong material on walls in his town, it is said:

In the first place I am not satisfied, on the basis of his oral evidence at the hearing, that the Applicant was a Falun Gong practitioner in China. 

The balance of that paragraph deals with that point, but the Tribunal is simply not satisfied, without taking into account, well, anything in Australia that what he says about what happened in China can be accepted.  Then in the next paragraph, about line 58, it is said:

In this context I have considered the Applicant’s claims that he has involved himself in Falun Gong activities since his arrival in Australia at a number of sites in Sydney.

That is rejected on the basis that the Tribunal is not satisfied that this involvement means that he became a Falun Gong practitioner and was satisfied that his involvement was for no other purpose than to strengthen his claim.  So that was put out of account by reference to section 91R(3).  Then at the bottom of page 30 the Tribunal asks itself a further question about what might happen in the future.  The second sentence at about line 54 is:

Given my findings about the nature and motives for his contacts with Falun Gong in Australia I am not satisfied that there is any reason to believe that he would become a Falun Gong practitioner if he returned to China or that he would have any significant involvement with the Falun Gong faith there.

So what the Tribunal is doing in this case is taking conduct in Australia into account in forming an opinion as to the likely behaviour of the applicant if he were returned to China, slightly different from the other case where it was taken into account in credit in determining past facts.  Here it is taken into account in forming an opinion as to what this applicant is likely to do in the future.

FRENCH CJ:   There is not necessarily a logical connection between those two things unless you imply some finding as to credit about his evidence in relation to his future intention.

MR GAGELER:   That is right, and one already has that.  Yes, that is right.

HAYNE J:   But equally too, express it in terms of a finding may mask the fact that it is absence of a finding.  “I am not satisfied that” – and that is not unimportant, I would have thought, that the Tribunal is not persuaded that it is likely that.  The connection seemingly drawn being, at the head of page 30, “I am not persuaded that he did this for reasons other than boosting the claim, I am therefore not persuaded that it is shown that”.

MR GAGELER:   That is right, yes.  Now, the Full Court, your Honours, the reasons for judgment begin at page 221.  The relevant discussion begins at page 235, and we can really pick it up at the top of page 236.  Now, it said at line 1, page 236:

We accept the Minister’s submission that s 91R(3) can only, sensibly, be applied once primary findings of fact have been made.

So far so good.  But then at about line 28 this is said:

Once, however, the adjudication process has commenced and primary facts have been found which include conduct engaged in by the applicant in Australia, then s 91R(3) is engaged.  Once engaged, s 91R(3) precludes the decision maker from having regard to “any conduct” engaged in by the applicant in Australia unless the decision maker is satisfied that the conduct was engaged in for purposes other than strengthening the applicant’s claim to be a refugee.

That is then unpacked a bit more across the page, 237, at about line 25:

Decision makers are, subject to the proviso in paragraph (b), required to disregard “any” conduct in Australia by an applicant.  The conduct is to be disregarded in determining “whether” an applicant has a well‑founded fear of persecution for a Convention reason.  The conduct may suggest that such a fear is or is not well‑founded.  In either case it must be disregarded.  If the Tribunal brings the conduct into account it will contravene s 91R(3).

Then the submission that was essentially adopted by the Full Court is the submission that one sees in the last two lines of page 236, the appellant’s case being that:

the Tribunal did have regard to the appellant’s conduct.  It did so by relying on that conduct, in part, as a reason for concluding that the appellant was not a refugee.

The way the error was found is at page 238 in SZJGV.  The Court says at about line 35:

Having regard to the Tribunal’s reasons as a whole, we think it more likely than not that the Tribunal did have regard to the appellant’s conduct in Australia, if only for the limited purpose of assessing the credibility of his claim to have been a Falun Gong practitioner in China and to have suffered persecution for having done so.

That is said to be the error.  Then in SZJXO, the last two lines on the page it is said of the Tribunal:

It did, however, have regard to his conduct in Australia for the purpose of determining that there was no reason to believe that he would be persecuted by reason of his Falun Gong activities should [he] return to China.

What the Full Court has in mind comes to light a little more if you look at the next case, which is not before your Honours but it is an application of the same approach to another case that was before their Honours.  That is SZKBK.  It is said at about line 28, he:

claimed to have been a member of a Seventh Day Adventists Church in China and that she had attended a Christian church in Sydney on a few occasions after arriving in Australia.  She claimed to fear persecution on return to China by reason of her membership of a Christian church.  The Tribunal concluded that there was no real chance of her being persecuted by reason of her religious beliefs on her return to China.  The principal reason for this conclusion was that the appellant was not a committed Christian.  The Tribunal was led to this conclusion by a number of factors including the appellant’s failure to attend church regularly in Australia and her failure to take any active steps to locate a Seventh Day Adventists Church in Australia . . . 

Had the Tribunal made its findings in relation to the appellant’s conduct in Australia, then applied s 91R(3) and thereafter paid no regard to that conduct in its reasons, it would not have fallen into error.  This, however, is not what it did.  It expressly relied on conduct in Australia in determining that the appellant was not an active Christian and would not, therefore, face a real chance of persecution should she return to China.  Only after these findings had been made was the relevance of s 91R(3) recognised and the statement made that the Tribunal disregarded the applicant’s conduct in Australia.

This is the point.  The Tribunal did not, however, then return to the earlier analysis and consider whether or not it should be reviewed, given that certain evidence originally relied on was no longer to be taken into account.  So you get into a strange loop.  You find the facts and then you apply section 91R to take out one of the facts.  Then you go back to what is left and redo it, including as to credit.  In our respectful submission, that is a recipe for incoherence and it is a rule which has lost touch with its reason.

HAYNE J:   It seems to be founded on a reading of the Act as if the words were “in deciding an application for a visa the Minister shall disregard any conduct unless”.

MR GAGELER:   Yes.

HAYNE J:   That is not what the Act says.

MR GAGELER:   That is not what it says, no.

FRENCH CJ:   The purpose of strengthening the person’s claim – this is, in a sense, tangential to your argument – but the purpose which, if you like, defines the class of conduct to be disregarded really goes beyond bad faith sur place claims, does it not?  The bad faith sur place claim is one where you, as I understand it, engage in conduct designed to attract the attention of those whom you say – or which you say will attract the attention of those who are your apprehended persecutors, but there are different ways of conduct in Australia strengthening a claim apart from that.  It may be just that you are trying to show continuity, for example, of your Christian practice if you claim to have been a Christian in China or of your Falun Gong practice.

MR GAGELER:   You would still, in the terms of the section, be doing it to strengthen your claim to be a refugee.

FRENCH CJ:   It goes a little wider than what was dealt with in the Somaghi, Mohammed, Farahanipour range of cases, I suspect.

MR GAGELER:   I am genuinely not sure about that, your Honour.

FRENCH CJ:   Any way, it does not matter much.

HAYNE J:   The solution to it, Mr Solicitor, lies in sole purpose.  That is how the issue put to you by the Chief Justice would fall out.

MR GAGELER:   That is right, exactly.

HAYNE J:   If it is not for sole purpose of strengthening, then it is not excluded.

MR GAGELER:   Yes, but I accept, your Honour, it goes beyond the absolutely stark case of no ‑ ‑ ‑

FRENCH CJ:   There are two ways of strengthening.  You can strengthen by attracting the attention of the apprehended persecutor or you can

strengthen by purporting to show consistency of conduct which you say would attract their attention if you went back.

MR GAGELER:   Yes.  Your Honours, I think I have said about as much as I can say.

FRENCH CJ:   Yes, all right.  Yes, Mr Johnson.

MR JOHNSON:   Firstly, if I could say for your Honours’ assistance, I propose to broadly follow the Solicitor‑General’s structure.  Your Honours, firstly, with respect to the significance of Guo to the problem now before the Court, these are cases where the Tribunal in forming its opinion as to whether each review applicant had a well‑founded fear of persecution took into account the applicant’s conduct in Australia in one case to make judgments about what he had done in China, whether he had been a Falun Gong practitioner in China and whether he had suffered adverse attention in China and then in the other case, SZJXO, to make findings as to what he was likely to do when he returned to China, whether he was likely to practice Falun Gong when he returned to China and whether he would attract adverse attention for that reason.

Now, there is no doubt that the question of whether a fear of persecution for a Convention reason is well founded – if I emphasise the words “well founded” – is an element of what the Tribunal needs to do in its decision making.  There is no dispute between the parties about that.  One cannot draw a line in the sand, an absolute line in the sand, between determining whether someone has a well‑founded fear of persecution for a Convention reason, and examining what has happened in the past and what may happen in the future.

That is really brought out by some other passages in Guo 191 CLR 559, which I would like to take your Honours to. If your Honours go to page 574 in the joint judgment, in the second new paragraph commencing on that page the Court says:

In determining whether there was a real chance that Mr Guo would be persecuted for a Convention reason, the Tribunal had no choice but to form an opinion as to what was likely to occur if Mr Guo was returned to the PRC.  In the course of determining whether there was a real chance of persecution for such a reason, the Tribunal made findings about past events and the motivation of the Chinese authorities –

et cetera.  So there we find the idea that in determining whether there is a real chance of persecution for a Convention reason the Tribunal has no choice, practically has no choice, but to form an opinion as to what is likely to happen in the future and to look at what has happened in the past.  Then if you go over to page 575, in the first new paragraph commencing on that page, that is the paragraph commencing with the words “Determining whether” there is a sentence which starts about seven or eight lines down:

It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.

So one simply cannot quarantine from the Tribunal’s conclusion that SZJGV did not have a real chance of persecution in China.  The Tribunal’s findings that he was not a Falun Gong practitioner and that he had not engaged in the activities or come to the attention – come to attention in the way that he claimed, and at no stage does the Tribunal discount at all the view that it formed about his conduct in Australia and the way in which that impacted upon its findings as to what he did in China.

It is common ground that the conduct in Australia did inform the Tribunal’s conclusion as to what SZJGV did in China, had experienced in China, and it is clear beyond doubt that that informed its ultimate conclusion as to whether he had a well‑founded fear.  Similarly, in SZJXO, the Tribunal at no stage tells us that its conclusion would have been the same as to what he would do when he went back to China, whether he would come to adverse attention if he went back to China, had it not taken into account the conduct in Australia.

It is plain, it is conceded, that the Tribunal did take into account his conduct in Australia for the purposes of deciding that he would not be a Falun Gong practitioner when he returned to China and he would not come to adverse attention for that reason.  That finding is integral to its conclusion that he did not have a well‑founded fear of persecution for a Convention reason.

The next substance of point, your Honour, perhaps slightly overlaps with what I have just said, and to the extent of repetition I apologise, but Guo was of course decided by the High Court some years before section 91R came into existence and section 91R(3) must have some impact on the way in which the Tribunal goes about its decision making.  It must have some impact upon determining what the Tribunal can take into account and what it cannot take into account when determining whether or not a particular person has a well‑founded fear of being persecuted for a Convention reason.

In written submissions the first respondents addressed my friend’s use of Guo in describing the decision‑making process and the submission that we made as to the impact of section 91R(3) is that all that is needed to comply with it is for the Tribunal to, first, having regard to all of the material before it, that might include material as to what happened abroad as well as what happened here, decide, first of all, is there conduct in Australia?  Obviously if there is no conduct in Australia referred to, then one does not have to worry about section 91R(3).  But if there is conduct in Australia, then one has to apply section 91R(3). 

One has to ask whether or not one is satisfied, one being the decision‑maker, that the person engaged in the conduct otherwise then for the purpose of strengthening the person’s claim to be a refugee.  If the decision‑maker is not satisfied that the person engaged in the conduct for a purpose other than strengthening his or her claim to be a refugee, then the decision‑maker must disregard that conduct.  The Minister concedes that disregard means to leave out of account.

FRENCH CJ:   The problem that I suppose you face is if there be a constructional choice open as between the construction advanced by the solicitor and the construction which you advance, what policy or purpose is served by the construction you advance?

MR JOHNSON:   The policy or purpose which is served by the construction adopted by the Full Court to be understood, with respect, probably first requires to be dealt with the interrelationship between section 91R(3) and the judicial controversy which has been referred to.  What section 91R(3) does is to, amongst other things, use language which goes well beyond the Somaghi idea.  Somaghi stands for the proposition that if conduct is engaged in for the sole purpose of strengthening a claim, then it cannot found a well‑founded fear of persecution.

There was then the other view in the other cases.  The legislature could have simply enacted the Somaghi view.  It has not done that.  The legislature has captured a whole lot of cases which go quite beyond Somaghi.  If, for instance, the Tribunal could not decide in a particular case whether or not the conduct had been engaged in to create a pretext, then it would be required to disregard the conduct.  The review applicant faces what has been described as a reverse onus of proof in paragraph (b).  This is a context, of course, where ordinarily an applicant would not carry an onus of proof at all.

If for instance the state of the evidence or other material before the Tribunal was such that the Tribunal simply could not make up its mind whether or not the person was engaging in the conduct for the purpose of strengthening his or her claims, it would have to disregard the conduct because it would not be satisfied positively that the conduct was being engaged in for a purpose otherwise.  So the legislature is capturing a wider range of cases than were contemplated by Somaghi and the other Full Court decisions and it is imposing this onus of proof.  It is relieving the decision‑maker ‑ ‑ ‑

HAYNE J:   If we are to adopt the language of “onus of proof” it is an onus of proof about the purpose or purposes of the applicant.

MR JOHNSON:   Yes, that is right.  But the particular point, your Honour, is that the Minister or the Tribunal on review, armed with this subsection, does not need to make a finding as to the bona fides of the applicant, does not need to be satisfied that the conduct is being engaged in as a pretext.  In those circumstances, it is only fair that the conduct be then left out of consideration entirely for the purposes of deciding whether the person has a well‑founded fear of being persecuted.

FRENCH CJ:   So when you say it is only fair you are saying that is a consideration, a normative consideration in forming the construction, a cut two ways construction?

MR JOHNSON:   It is a part of my answer to your Honour in relation to policy.  Neither the second reading speech nor the explanatory memorandum say that the purpose of this amendment is simply to enact Somaghi and it would be strange if the purpose was simply to enact Somaghi because this is simply not the language that one would choose or even contemplate if one’s purpose was simply to exclude those whose sole purpose was to create a pretext.

Another way in which this is different from Somaghi, beyond that purpose element, is the onus of proof aspect.  If the purpose of the provision is to take away the evil of people cynically relying upon pretext behaviour in Australia either to ground or to help shore up or strengthen a claim, if that is the object then all that you need to do to achieve that object is to take the conduct in Australia out of consideration and that is all that is done by the Full Court construction, by the construction that the first respondents advance.

BELL J:   Is not one difficulty to the extent that you answer the Chief Justice by saying the policy reason is informed by fairness to a review applicant or an applicant for a visa that in some instances if the process for the decision‑maker is as you contend it would operate unfairly against the applicant?

MR JOHNSON:   It will carry the consequence that the applicant cannot get the advantage of his conduct in Australia and in that sense, yes, but the circumstances in which the applicant cannot get the advantage of his conduct in Australia extend now, in the face of 91R, to all of those cases where the applicant is unable to show that he has a purpose other than strengthening his claim.

Given that this is still fundamentally about implementing the Convention and giving protection to people who do have a well‑founded fear of persecution for a Convention reason it would be odd.  If an applicant was able to have taken into account against him in determining whether – and the section uses the word “whether” he has a well‑founded fear of persecution conduct in Australia for no other reason than that the Tribunal was not positively satisfied that that conduct was engaged in for a purpose other than strengthening his claim.

Further to that, it is not in dispute that the subsection is looking at conduct in Australia.  It is not in terms dealing with conduct anywhere else.  Its purpose seems to be to put out of the equation, if I call use that colloquial expression, conduct in Australia where the Tribunal is not satisfied in accordance with paragraph (b).

We say that once that Australian conduct is put out of consideration – put out of consideration entirely for the purpose of determining the composite of whether the person has a well‑founded fear of being persecuted for a Convention reason, then the object is achieved.  The fate of the visa application or the fate of the application for review to the Tribunal is then exactly the same as if the conduct in Australia had never been engaged in.

In our submission, that fulfils the purpose of the legislature in excluding conduct which is, or indeed much conduct which may be, purely strengthening conduct.  Certainly it is not necessary, once you have excluded that conduct in Australia, once you have decided that one being the decision‑maker that one is not satisfied that it is for any purpose other than strengthening the claim, and once one has then excluded it from consideration as to whether or not the person has a well‑founded fear, there is no policy objective then to be met by somehow resurrecting that conduct to consider what view to take about events abroad.  If the legislative policy is simply to exclude the conduct from consideration, then that has already been fulfilled.

HAYNE J:   Mr Johnson, how much of your argument ultimately depends on a notion of burden of proof?  By that I mean this, a case that is dealt with by three would be a case where it is affirmatively shown that the conduct in Australia was engaged in for the sole purpose of strengthening a claim. 

MR JOHNSON:   Yes.

HAYNE J:   So a case that 91R(3) would cover would be a case where conduct that is engaged in for the sole purpose of strengthening a claim is to be disregarded in deciding whether the applicant has a claim.  Does your case depend upon demonstrating that 91R(3) can have some larger, you would describe it as perhaps an unjust operation or some other epithet, but a larger operation than that, because can I say this to you.  There is an apparent legislative purpose in saying “Disregard things that are done in Australia for the sole purpose of strengthening a claim in deciding whether someone has a claim”.  The logic in that is evident.

MR JOHNSON:   Yes.

HAYNE J:   You have to extend the engagement of 91R(3) beyond that, do you not?

MR JOHNSON:   Well, two components to that, your Honour.  First, I am not sure that – I do not think the respondent’s position is dependent on there being an onus of proof per se.  Moving to the second point, there is no doubt, as your Honour says, that the Somaghi Case, if I can put it so shortly, is dealt with by 91R(3), but it is an entirely different proposition to say that 91R(3) is limited to dealing with the Somaghi Cases.  Regardless of whether or not it is accurate to describe what occurs in paragraph (b) as an onus of proof, 91R(3) casts a wider net than Somaghi.

HAYNE J:   Where does it do that?

MR JOHNSON:   It does that by compelling to be disregarded, not just behaviour which is pretext behaviour, not just conduct which is pretext conduct, but any other conduct where the decision‑maker is not satisfied that it has been engaged in for a purpose other than strengthening the person’s claims.

FRENCH CJ:   There might be, as I said – I think I put to the Solicitor earlier – it may be that there is more than one way in which you can strengthen a person’s claim and that the relevant – the purpose that has to be excluded is a purpose which encompasses more than one way of strengthening.  One way is the narrow notion of a sur place claim; they have seen me do this, they will now persecute me if I go back.  The other way might be to establish some false consistency with what you assert you were doing in the home country without necessarily doing it in the way that is designed to attract the attention of the home country.

MR JOHNSON:   Yes.  If I could perhaps take up that ‑ ‑ ‑

FRENCH CJ:   I am not sure that helps you much.

MR JOHNSON:   Well, your Honour, a part of the answer to what Justice Hayne was putting to me is that this section applies not just to conduct in Australia to create a claim, that is, to create a claim which would not otherwise exist, but it also applies in relation to strengthening behaviour.

FRENCH CJ:   Supporting an existing claim.

MR JOHNSON:   It may be strengthened in many ways.  The explanatory memorandum, in my submission, deserves to be visited in that respect.  If I could ask your Honours to go to the revised explanatory memorandum to which the Solicitor‑General referred earlier?  The first mention of 91R(3) in the explanatory memorandum occurs at page 3, paragraph numbered 7, and it is there said:

The amendments in the Bill will –

then if we skip down to the fourth dot point –

provide that the Minister shall not take into account the implications of actions taken in Australia by asylum seekers which are intended to create or strengthen their claims for protection.

The word “implications” we place some emphasis upon and also the use of the word “strengthen” in the phrase “create or strengthen”.  So that word “strengthen” is plainly adding a dimension to what would be there if it had simply said create.

FRENCH CJ:   I have a feeling that the draftsman did not intend that to read the implication is against them.

MR JOHNSON:   Well, it would have been easy enough to frame the provision to make it read so that the conduct could not be taken into account to the advantage of the applicant.  The policy reason that I suggested otherwise is that really what has happened here, that the Parliament has extended a much wider net.  If I just go then and refer to part of page 10 of the explanatory memorandum and, in particular, the paragraphs numbered 27 through to 29.  I will not read all of those, but if I could just focus upon the part that I wish to emphasise.  In paragraph 27 in the third sentence it is said:

Difficulties have arisen in cases where Australian courts have found that a person may act while in Australia with the specific intention of establishing or strengthening their protection claims –

So once again it is not just the pure sur place claim arising out of conduct in Australia.  It also captures the idea of strengthening a claim which would otherwise exist.  Then 28:

Actions undertaken intentionally to raise the risk of persecution or create the pretext of such a risk, raise also serious questions –

et cetera.  So once again they seem to be talking about any behaviour which, if accepted, may add to a claim, if you like, or help support, strengthen a claim, add to the risk of persecution.  Then the word “strengthen” again is used in paragraph 29. 

HAYNE J:   Can I put two different cases to you?  Assume the claimant has, in fact, followed particular religious beliefs in the country of origin and continues the relevant religious observances in Australia, is the pursuit of those religious observances in Australia solely for the purpose of strengthening the claim?  I would have thought not?  It may strengthen the claim that he or she continues to observe the religious practices in question, but it is not solely for that purpose.  It is in pursuit of the religious belief.  Contrast that with the person who having no religious belief or practice in the country of origin takes up particular forms of religious observance in Australia for the purpose of promoting a claim to fear of religious persecution.  That is solely for the purpose of strengthening, is it not?

MR JOHNSON:   And, your Honour, one could have a case where somebody engages in conduct with multiple elements that the person might, for instance, go to church on Sunday through genuine belief but stay around to meet the minister hoping to strengthen the claim.

HAYNE J:   Yes.  That is why the sole purpose understanding of (3)(b) is not unimportant in the proper construction of (3) as a whole.

MR JOHNSON:   Except, your Honour, that although the sole purpose component was a part of Somaghi – as I have said before, the legislature here has gone beyond Somaghi and one does not find in 91R(3) sole purpose being legislated.  It might be sole purpose.  If it is sole purpose, then there is still the complication that there is an onus of proof, for example.  We do not concede that it is sole purpose, your Honour.  The section talks about any conduct in Australia being disregarded, in effect, unless the decision‑maker is satisfied that it is engaged in for a purpose other than X. 

So the natural application of that would be, first, if you were the decision‑maker, to identify the conduct in Australia, then ask what was the purpose or what were the purposes for that behaviour and unless the purpose or purposes are otherwise than to strengthen the claim, you disregard it.  If you disregard it, that does not lead to any irrationality.  It simply means that you assess the person’s refugee claim in precisely the same way that you would without 91R(3) but not having regard to the person’s conduct in Australia.  We say there is nothing inconvenient or illogical about that and it is what the section appears to envisage. 

I have perhaps departed a little bit from the structure that I announced at the beginning, but if I could perhaps at this point say something about my friend’s use of what was said in the case of SZKBK, which is not one of the matters before your Honour.  Your Honours will recall that my friend referred to paragraph 30 as illustrating what he saw as being the vice and improbability of the Full Court’s construction.  In paragraph 30, which is at appeal book page 239, the Full Court said in the case of SZKBK:

Had the Tribunal made its findings in relation to the appellant’s conduct in Australia, then applied s 91R(3) and thereafter paid no regard to that conduct in its reasons, it would not have fallen into error.  This, however, is not what it did.

Just pausing there, there are two ways that the Tribunal can obey the command in section 91R(3) to disregard the conduct if in fact it is not satisfied that is engaged in for a purpose other than to strengthen the claims.  The first may be to do what the Full Court is envisaging in those few lines, in effect, proceeding as though 91R(3) was not there and then addressing how one would have decided the issues disregarding the conduct in section 91R(3).

Another and probably easier way for the Tribunal to go about things is, as we submitted in writing and as I submitted earlier today, to first look at all of the evidence or other material before the Tribunal, then look at 91R(3), ask is there conduct in Australia, am I satisfied in the courts of paragraph (b) or not, identify therefore the conduct that you have to disregard and then just proceed through the entire Guo process, disregarding it.

We say there is absolutely nothing inconvenient or illogical about that.  It does not lead to any silly process of endless revisiting at all, and it just cannot be right that the introduction of 91R(3) leaves the Guo process entirely undisturbed.  Section 91R(3) does have an effect on the decision‑making process.  You do have to identify if you are the decision‑maker what conduct you have to disregard and you do have to disregard it for the purposes of deciding whether the person has a well‑founded fear of persecution for a Convention reason.

FRENCH CJ:   Let us take this case.  Let us suppose that a person after arriving in Australia, with the help of others, arranged for the forging of documents apparently evidencing membership say in China of an organisation the members of which were subject to persecution.  So they have embarked upon a course designed to deceive the decision‑maker.  Are you saying that has to be disregarded?

MR JOHNSON:   Yes.  The legislature has chosen a path in enacting this particular provision which does a lot more than simply require Somaghi behaviour or that kind of strengthening behaviour that your Honour is talking about to be left out of account in a person’s favour.  The way 91R(3) operates is that the Tribunal would not have to be satisfied on your Honour’s example that there had been any forgery at all.  The Tribunal might simply be in a state of mind where on the evidence before it it just does not know whether or not this documentation which has been provided has been brought forward to strengthen the claim or not.

The legislature has spared the decision‑maker from having to make that judgment.  It has said that the decision‑maker must disregard the conduct unless the decision‑maker is satisfied that it happened for a purpose other than to strengthen the claim.  But the price of that contained in the section itself is the imperative that the Tribunal must then disregard that conduct in Australia for the purposes of determining the composite of whether the person has a well‑founded fear of persecution for a Convention reason.

If I could revert a little bit to the question of sole purpose.  This is not a case where there has been any finding of multiple purposes, but I probably should just say a little bit more about whether or not 91R(3) evokes or includes some kind of sole purpose test.

FRENCH CJ:   How is that relevant to your argument?  This is a case where there is only one purpose.

MR JOHNSON:   Yes, I know.  Well, I am returning the bracket of questions that Justice Hayne was putting to me before in relation to sole purpose, and my case is not dependent upon it being a sole purpose or otherwise, but if I could just quickly make one point.  I have already spoken about the absence of any language in section 91R(3) itself talking about sole purpose, and my friend has invited the Court to have regard to some other provisions which entered the Act at about the same time.

It is interesting that when one goes to section 91R(1)(a), for example, which is doing some work in relation to the Convention reason requirement, we see the legislature using the words “essential” and “significant” reason.  So in composing this legislation, the draftsman seems to have been able to use words, in effect, describing the importance of the reason when the draftsman has wanted to.

When one compares that with 91R(3), one simply finds “disregard any conduct” other than engaged in “for the purpose of strengthening”.  So if anything that might be an indication against sole purpose.  Mr Jordan reminds me that another example might be found in section 91T(1) which is talking about non‑political crime, and in paragraph 36 of the revised explanatory memorandum, for example, it is said:

New subsection 91T(1) provides that a reference to a “non-political crime” in that Article has effect as if it were a reference to a crime where the person’s motives for committing the crime were wholly or mainly non-political in nature.

So it is another point of linguistic comparison between 91R(3) and some of the other amendments that were made at the same time. 

If I could perhaps return to a point of detail, more about the facts of the case.  My learned friend, the Solicitor‑General, very fairly took the Court to the relevant parts of the Tribunal decisions, but if I could just ask the Court to go to page 15 which is part of the reasons of the Tribunal in SZJGV.  I would just like to read a little bit more fully from what the Tribunal there said.  As the Solicitor‑General pointed out, the Tribunal’s finding that section 91R(3) required it to disregard the conduct in Australia occurs from the foot of page 14 to the top of page 15, but then in the next paragraph the Tribunal says:

As the Tribunal has rejected the applicant’s claim that he was a Falun gong practitioner in China, the Tribunal does not accept that he participated in or conducted sit‑ins, or was questioned, interrogated or harassed by the authorities.  In reaching this conclusion, the Tribunal has had regard to the following additional reasons –

and then one of those additional reasons is in the paragraph commencing with the word “Third”:

Third, the totality of the applicant’s oral evidence shows a propensity to exaggerate and tailor his evidence in a manner which achieves his own purpose.  In reaching this view the Tribunal has had regard to his lack of knowledge about Falun Gong, his recent attempts to construct a profile of a Falun Gong practitioner for himself and the contradictions, inconsistencies . . . In view of the applicant’s overall credibility, the Tribunal does not accept that he was engaged in any form of protest or lone sit‑in and he Tribunal does not accept that he has suffered any harm amounting to persecution in China for that reason or for the reason of his Falun Gong activities.

So there is quite a wholesale taking into account of his conduct in Australia as part of the reason for not accepting that he was a Falun Gong practitioner and not accepting that he had engaged in the activities that he claimed to have engaged in, the sit‑ins in China, and for not accepting that he was questioned, interrogated and harassed.  I am becoming repetitive now, but at no stage in this decision and at no stage in SZJXO does one see the Tribunal, first of all, identifying the conduct which it is required to disregard and then disregarding it for the purposes of determining whether the person has a well‑founded fear of persecution for a Convention reason or, taking what might be another path which the Full Court seemed to have in mind in the paragraph dealing with the third case which is not before your Honours of proceeding, in effect, as though section 91R(b) was not there but then at the end of that process applying section 91R(b), identifying the conduct it had to disregard and telling us what its findings would be as to whether he had a well‑founded fear of persecution without regard to that conduct in Australia.  The Tribunal has done neither of those things in these cases.

With respect to the breadth of section 91R(3) and with respect to the broad question as to how the Full Court’s construction might be more consonant with policy, we submit again by way of emphasis, that 91R(3) casts a much wider net than Somaghi, certainly read literally and fairly it casts a much wider net than sole purpose, and will extend also to capture cases where the Tribunal cannot be satisfied what the purpose was.

The Minister’s position that conduct that the Tribunal finds it has to disregard applying 91R(3) can then be resurrected and taken into account against an applicant, is not consonant; it is not necessary; it is not appropriate to secure the purpose simply of disregarding conduct in Australia where the Tribunal is not satisfied as to purpose, and it works against the policy of the Act insofar as it may well lead to people being disadvantaged in their claims for protection visas by having taken into account against them findings which are reached under 91R(3).

KIEFEL J:   I appreciate that you say that the subsection goes too far.  Are you putting forward to the Court a construction of the terms of it, or are you just going to say that the terms go too far and leave it to us?

MR JOHNSON:   We are not saying that it does go too far, your Honour.  We are quite happy with the literal words of the section.  It is really the Commonwealth which is saying to the Court “Read it down; constrain it.”  We are quite happy with the literal words of the section which first of all ask you to look – once again, I keep speaking to the Court as though it is the decision‑maker - ask the decision‑maker to look at first whether there has been any conduct in Australia.  If there has, then disregard that conduct in Australia unless you are satisfied in accordance with paragraph (b).  We are quite content with that; we are not asking the Court to read it in any other way than the words suggest, and the Full Court’s approach does not involve it being read any other way than the words suggest.

The Full Court did accept – and we do not challenge this, we do not cavil with this, your Honour, but before you can sensibly apply section 91R(3) you first have to identify whether there is conduct in Australia.  If there is not conduct in Australia then of course there is nothing to apply section 91R(3) to, and in that sense we have no difficulty with the proposition that one first has to make some findings of primary fact before one comes to apply section 91R(3).  The Tribunal also has to make some findings of fact or to go through some mental process which includes forming a view about questions of fact for the purposes of deciding the purpose component of section 91R, but it is quite a different thing entirely to say that having been through that process you can then still take into account against an applicant conduct that you have excluded from consideration under section 91R(3).

That the wording of section 91R, including the word “whether” in paragraph (a), but really the chapeau of the section and the whole of the wording at paragraph (a), in my submission, makes clear that where there is conduct in Australia and where the Tribunal is commanded to disregard that conduct, it has to disregard it for the purposes of applying the Act and the regulations of the person in determining all of the question whether the person has a well‑founded fear of being persecuted.  The use of the word “whether” in that context goes to emphasise that the disregarding has to occur whether one is thinking about taking it into account in the applicant’s favour or against him. 

Just finally in that respect, your Honour, in relation to, in effect, the application of CIC v Bankstown Football Club to this case, could I just shortly say – and the detail of it is really no more than what I had put to your Honour today – but could I just shortly say in the first respondent’s submission there is no inconvenience in a Full Court’s approach.  It simply involves, as I have submitted, asking when it was being conducted in Australia, identifying the purpose and unless you are satisfied the purpose is other than to strengthen the claim, disregard the conduct. 

You then go through the Guo process as though the conduct had never happened.  You disregard the conduct in Australia, you deal with the claim as though you were only dealing with the other events.  There is no improbability in that result.  It not just deals with the Somaghi case, it saves the Tribunal from having to go and go through some complex course of

inquiry, often difficult course of enquiry as to whether or not there is actually some male fides, there is actually pre‑text behaviour.

KIEFEL J:   What it does though is it may leave out some of the clearest evidence of lack of good faith.

MR JOHNSON:   That is right.  It comes at a price, but Parliament’s chosen ‑ ‑ ‑

KIEFEL J:   But can it be assumed that the legislature was unaware that many claims are determined on the basis of conduct going to credit?

MR JOHNSON:    In my submission, the legislature doubtless was aware of that, but it has adopted a mechanism of requiring the conduct to be disregarded, not just particular implications of the conduct, it is required a conduct to be disregarded for a purpose of applying the Act and the Regulations to the person for the purpose of, as I have submitted, determining the composite of whether the person has a well‑founded fear of persecution for a Convention reason. 

We further say, just referring to the language of CIC v Bankstown Football Club in the paragraph that is referred to in the Solicitor‑General’s written submissions, that the Full Court’s interpretation was reasonably open and that the Minister’s construction, with respect, is not reasonably open.  It requires far too much other language to be overlooked and, indeed, the Full Court construction and that advanced by the first respondent’s more closely forms the legislative intent of just leading out of the equation, taking out of the equation, conduct in Australia where the Tribunal is not satisfied that it is other than for the purpose of strengthening claims. 

We submit, your Honours, that if it were intended that the conduct could be taken into account against the applicant, but not in favour of the applicant, then one would have expected some clear words to tell us that, but they are not there.  If your Honours please, those are the first respondent’s submissions.

MR GAGELER:   There are only three points, and I should say only one of them strictly in reply.  The point strictly in reply is your Honours were taken to some passages in Guo about the fact‑finding process of the Tribunal but your Honours were not taken to the conclusion of that discussion, which is 191 CLR 559, the conclusion at the bottom of page 575. It is there said by six members of the Court:

For the reasons we have given –

that is the reasons your Honours were taken to –

the Tribunal was entitled to weigh the material before it and make findings before it engaged “in any consideration of whether or not Mr Guo’s fear of persecution on a Convention ground was well‑founded.”

There is a natural order of things, you find the facts and then you apply the Convention definition to the facts as found, modified in the present case by section 91R(3).

The two other points were these.  First, I was wrong to say that section 417 was inserted in 2001.  It existed in 2001 and it had been inserted in 1992.  The other point is that your Honour the Chief Justice asked me whether treating conduct strengthening a claim as covering conduct enhancing an existing claim as well as conduct creating a new claim went beyond the category of sur place considered in Somaghi, and I said I was not sure.  I looked at Somaghi again and I should have said “no”.  If you actually look at what happened in Somaghi 31 FCR 100, at page 110 there is a short statement of what the facts were. So:

On 18 September 1989, the appellant lodged an application for grant of “refugee status” –

and he did not do too well in the first consideration of that claim.  One picks up elsewhere that it was found that he lacked credibility and profile in Iran.  Then having made that application on that basis, you see a little further down:

On 6 December 1989, a letter signed by the appellant and by Mr Heshmati was sent to the Iranian Embassy in Canberra (and to other persons and institutions including an officer of the respondent’s Department).

So he was attempting to manufacture ‑ ‑ ‑

FRENCH CJ:   Apparently they used to get a lot of these letters.

MR GAGELER:   That is right.  He is attempting to manufacture the profile that he did not have so as to enhance his existing claim, and obviously trying to bring that to the attention not simply of the Iranian Government, but of the Australian decision‑makers.  So the actual finding of the Tribunal is at page 113, paragraph 33, and it was that his despatch of the letter appeared to have been undertaken for “the sole purpose of enhancing his claim”.  That was the finding that then gets picked up by Justice Gummow at the bottom of page 117.  He refers to that finding

before going on to the passage that I have already quoted to your Honours.  So, clearly enough, the context of that passage was speaking of a conduct which was aimed broadly at enhancing a claim and not simply the manufacture of a new claim.  If the Court pleases.

FRENCH CJ:   Thank you, Mr Solicitor.  The Court will reserve its decision.  The Court adjourns until 2.15 this afternoon.

AT 12.03 PM THE MATTER WAS ADJOURNED