MIMA v Mohammad

[2001] HCATrans 200

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P49 of 2000

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Applicant

and

ALSIDDIG ABDULLAH ADAM MOHAMMAD

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 22 JUNE 2001 AT 12.17 PM

Copyright in the High Court of Australia

MR J. BASTEN, QC:   If the Court pleases, I appear with MR P.R. MACLIVER for the applicant.  (instructed by the Australian Government Solicitor)

MR R.E. LINDSAY:   May it please the Court, I appear for the respondent.  (instructed by Director of Legal Aid, Legal Aid Western Australia)

GLEESON CJ:   Mr Basten.

MR BASTEN:   Your Honours, this case has given rise to a divergence of approach in the Full Court of the Federal Court in relation to an important aspect of the operation of the Refugees Convention.  The principle which underlies the case is this.  A fear of persecution which will attract Australia’s protection obligations under the Convention must arise for reasons of one of the specified grounds.  The fear must be such that the claimant is unable or unwilling to avail himself of the protection of his country of nationality.  The fear must be well-founded.

It may not be well‑founded because, viewed against independent circumstances in the country, there is no real risk of serious harm.  It may also not be well-founded because the cause of the harm will not be a Convention ground.  In many cases, the true ground of the harm may best be identified by looking at the motivation of the feared persecutor, but that will not always be so.  Where the basis of the fear is an action of the claimant, carried out for the sole purpose of invoking the Convention in his country of residence, he cannot be said to have a well-founded fear of persecution by reason of a Convention ground, whatever the beliefs that may be held by his country of nationality, and a claim based on such conduct may properly be described as invoked on a pretext.

Your Honours, that was the conclusion which was accepted by four members of the Federal Court some 10 years ago in Somaghi v The Minister and the principle is identified, if I might take your Honours to the bundle of cases, which includes the decision at page 13 ‑ ‑ ‑

HAYNE J:   Just before you do, Mr Basten, can I understand the point.  Is the point essentially whether an applicant can either create or elevate circumstances of need for protection, in effect, by doing things himself/herself?

MR BASTEN:   Yes.  Your Honour is offering me a choice between create or elevate ‑ ‑ ‑

HAYNE J:   No, not choice.

MR BASTEN:   That is the principle.

HAYNE J:   That is the area of debate.

MR BASTEN:   That is the area of debate.

GLEESON CJ:   Was the finding in the present case that the applicant had no well-founded fear of persecution until the applicant wrote a letter for the purpose of seeking to generate circumstances in another country that would create or increase the likelihood of persecution if the applicant went back to that country?

MR BASTEN:   Yes, your Honour, and for that sole purpose.  That appears from the passage in the application book, the last sentence on page 9 through to the top of page 10, where the Tribunal makes a finding in those terms.  The point of principle, of course, is – and this was the passage I was seeking to read from Justice Lockhart – that if that were available under the Convention, then, as his Honour said, it would be to place in the hands of the applicant for refugee status means of unilaterally determining in his country of residence his status as a refugee and denying to the sovereign state of his residence the right to determine his refugee status.

GLEESON CJ:   Now, we think that we would like to hear what Mr Lindsay has to say.

MR BASTEN:   If the Court pleases.

GLEESON CJ:   Yes, Mr Lindsay.

MR LINDSAY:   Your Honour, my friend said that there was a divergence, in effect, in the Full Court between Somaghi’s Case and what, in fact, was determined in this case.  Certainly the majority of the Federal Court in the present case sought to distinguish Somaghi’s Case and considered that the facts of this case were, and the law indeed, distinguishable.  Perhaps I can just say a word or two about Somaghi’s Case and how I submit it is to be distinguished from this case.  In Somaghi’s Case the single isolated ‑ ‑ ‑

HAYNE J:   Is the preface to this submission some acceptance that there is a principle of the kind that we have been talking about?

MR LINDSAY:   The premise is that nothing said in the dictum of Justice Gummow in Somaghi is applicable in the circumstances of this case.  It is a question, of course, of interpretation how far his Honour Justice Gummow’s dictum goes in requiring good faith as an essential element in the definition of a refugee.  There is certainly authority, recent authority, in the case of Danian and Ngongo and, indeed, in the Full Federal Court itself to support the proposition that there is not imported into the definition of a refugee a “good faith” requirement.

Perhaps I can just go back, your Honour, to the point about the essential distinction between Somaghi’s Case and this case.  Somaghi’s Case, the single isolated provocative act upon which Somaghi relied, was a sending of a letter to the Iranian Embassy, which was copied to various people, including the Department of Immigration.  It was in that context that his Honour Justice Gummow made his comment about actions undertaken for the sole purpose of creating a pretext do not invoke a well‑founded fear of persecution.  It was in that context.

In this case, to be sure, as my friend said, the Tribunal did find that the letter itself was a contrivance, that is, the letter which was sent to the brother in Sudan.

GLEESON CJ:   Now, what was your client seeking to contrive?

MR LINDSAY:   What the letter contained, your Honour, was a comment that he had applied for refugee status and he had been refused, that he had been a member of an opposition party and that he had avoided conscription.  Those were the things which the letter included.

GLEESON CJ:   Yes, but what was he trying to contrive by putting that statement in the letter?

MR LINDSAY:   The contention was that the letter was sent in order to alert the Sudanese authorities in order to enhance his application for refugee status.

GLEESON CJ:   Well, the finding was, was it not, that he wrote the letter for the purpose of having it come to the attention of the Sudanese authorities and thereby creating a basis for a fear of persecution which did not previously exist?

MR LINDSAY:   That is so.  The Tribunal, having found that, then considered that they were relieved of the obligation to then further consider whether nonetheless he might have a genuine well-founded fear of persecution arising out of having done that, and that was the point upon which Justice Lee said no.  Somaghi is not support for the proposition that once there is found to be a contrivance or a pretext, that this absolves a Tribunal from then considering what the definition under the Convention requires, namely, whether there is still a well-founded fear of persecution and, if so, whether it is for a Convention reason.

Those matters still have to be resolved, and it was the view taken by both Justice Spender and Justice French in the Full Court that what, in fact, his Honour Justice Gummow said was consistent with a constructional basis, that is to say, it was not implicit in what his Honour had said that there was, of necessity, a “good faith” requirement.  But the test always remains the same:  was there a well-founded fear of persecution and, if there is a well‑founded fear of persecution, is that for a Convention reason?  That remains the test.  There may, along the way, be acts or adverse findings of credibility.

Justice Carr, on the other hand, said, in dissent, if there is fraud at the foundation of a claim, then, as I understand his Honour, he is saying the persecution is not well-founded.  That is the basis.  Now, in my submission, that must be wrong.  If, for example, someone gains access to Australia and, therefore, the means to make an application for refugee status by presenting a false passport, could that be regarded as a fraud at the basis of his claim?  If so, does that absolve the decision-maker from considering under the Convention what it is the Convention requires?

GLEESON CJ:   I may have misunderstood the reasoning of the dissenting judge in the Federal Court, but I thought it was to this effect:  a fear of persecution will not be well-founded if it is based upon circumstances that have been created by the applicant for refugee status for the purpose of demonstrating the existence of grounds for a fear of persecution.

MR LINDSAY:   Yes, I understand his Honour is saying in those circumstances where an applicant has, in effect, engineered his own claim, that fear cannot be regarded as well-founded.  He does not cite authority for that proposition.  In my respectful submission, there is not authority for that proposition.  The term “well-founded” qualifies the fear.  Ultimately the issue, in my submission, is whether or not the fear itself has a well-founded base.

GLEESON CJ:   Just correct me if I am wrong about the facts, Mr Lindsay, but there had been a previous adjudication that your client did not have a well-founded fear of persecution?

MR LINDSAY:   That is correct, yes.

GLEESON CJ:   And then, following that adjudication, he wrote a provocative letter, which he intended to come to the notice of the Sudanese authorities, and he then said to the Australian authorities, “Look, I have now got a well-founded fear of persecution”.

MR LINDSAY:   Yes, I would respectively not adopt the use of the word “provocative letter”.  In that respect it is different from Somaghi, where the letter itself was really sent in order to – it was highly critical of the Khomeiny Government and could be regarded certainly as provocative.  In this case, the finding, on the other hand, certainly was the letter was sent, as the Tribunal found, although he denied it, anticipating that it would probably be intercepted and to alert the authorities.

GLEESON CJ:   There is a fairly well-known technique by which some litigants seek to seek to get judges to disqualify themselves.  They stand up at the Bar table, insult the judge, and then say, “Now a reasonable bystander would apprehend that you are biased against me, because I have just insulted you”.  That process of self-levitation does not usually work.

MR LINDSAY:   Quite so, your Honour, but I say that it is not, in my respectful submission, in dispute here.  It was not what was in the letter itself which was, in any sense, meant to be offensive or provocative.  It was manifestly true that he had applied for refugee status and he had been refused.  It was manifestly true that it had been found by the first Tribunal that he had been called up for conscription and he had avoided that.

GLEESON CJ:   But was not part of the letter an announcement by him to his brother that he was a member of an opposition to the Sudanese Government?

MR LINDSAY:   Yes.

GLEESON CJ:   And the finding was that that letter was written for the purpose of bringing to the attention of the Sudanese Government that he was opposed to it, so that he could then say to the Australian authorities, “Now the Sudanese Government knows that I am a member of the opposition”?

MR LINDSAY:   Yes.  Certainly it was, as Justice Spender described it, a piece of self-engineering, certainly it increased his political profile, as it were, though there had been no finding that he was not a member of the UMMA Party.  In that respect, again it is different from Somaghi, because there were adverse findings on credibility against Somaghi.  The only credential Somaghi had for his claim was the fact that he had sent a letter which was abusive of the government.  That was the beginning and end of his credentials to be a refugee.

In this case, that is not the case.  What the letter did, of course, was alert them to something which they may or may not have discovered for themselves.  But, in the end, the crux of the matter, as a matter of construction, is whether, taking all the circumstances, that and everything else, it can be properly said that he had a well-founded fear of persecution and that it is for a Convention reason, and if along the way there is fraud – if one uses the term “fraud”, which I recognise is somewhat elusive and loose, but if one uses it to mean acts of dishonesty, there are many persons who apply for refugee status, and who are successful, who fall within that category, either because they come on false passports or destroy their passports or because certain aspects of their story have not been accepted, but nonetheless the test remains that as described in Article 1A(2).

Your Honours, in my submission, just as to the facts, for the reasons stated I submit that it is distinguishable; as to the law, for the reasons given by Justice Spender and Justice French, the comments of his Honour Justice Gummow are, in my submission, reconcilable with an absence of a requirement for a “good faith” element in the definition.  The second aspect is that there are significant, in my submission, at least recent authority to support the approach taken by the majority in this case, both in the Federal Court – my friends refer in their authorities to Farahanipour, a decision of the Full Court – and overseas in the English case of Danian, which is a decision in the Court of Appeal, and in a Canadian case of Ngongo, and those two cases are cited in my list of authorities.

GLEESON CJ:   Will you give us a moment while we look at Danian?

MR LINDSAY:   Yes, certainly.

GLEESON CJ:   What page does Lord Justice Brooke come to this point, Mr Lindsay?

MR LINDSAY:   Page 18 there are citations at paragraph 24 onwards.

GLEESON CJ:   He seems to be addressing a broader question of good faith, but then in paragraph 25 he refers to Somaghi.

MR LINDSAY:   Yes.

HAYNE J:   Lord Justice Buxton at page 25 in item 5 of paragraph unnumbered, refers to the great breadth of the use of the expression “bad faith” in this area, a use which, at least on its face, may seem not to be especially helpful.  It may cover much more than it reveals.

MR LINDSAY:   Yes.

GLEESON CJ:   Particularly because dishonest conduct is often engaged in because of the existence of a well-founded fear of persecution.

MR LINDSAY:   Yes.  Indeed, there are various remarks your Honour will see in the last passages on 28.  There is a list of reasons why his Lordship concludes there should not be a “bad faith” exemption or a “good faith”

requirement.  One is the difficulty of patrolling the boundary of a “bad faith” exemption.  The second is that Article 1A does, in any event, have a number of exemptions ‑ ‑ ‑

GLEESON CJ:   I should think if Mr Basten’s argument is right, he has to pin it to those words “well-founded”?

MR LINDSAY:   Yes, that is so.  What I say to that, there is some comment on the meaning of “well-founded” in the 1989 decision of Chan in this Court and certainly there is no authority which I know of, and certainly his Honour Justice Carr does not cite any authority to suggest that there is imported into that well-founded fear a moral element.  Those are my submissions.

GLEESON CJ:   Thank you, Mr Lindsay.  Mr Basten, there is an agreement about costs on your part?

MR BASTEN:   Your Honour, there is an agreement that we will pay the reasonable costs in any event.  I was going to note that the draft notice of appeal seeks to disturb the costs orders below.  We would not seek to do that and, if leave were granted, we would seek leave to amend the notice of appeal accordingly

GLEESON CJ:   Well, on that basis there will be a grant of special leave to appeal in this matter.  We will adjourn now and take the next case at 2 pm.

AT 12.40 PM THE MATTER WAS CONCLUDED