FEDERAL COURT OF AUSTRALIA Mohammed v Minister for Immigration & Multicultural Affairs [1999] FCA 868 MIGRATION – application for judicial review of decision of Refugee Review Tribunal affirming a decision to refuse to grant the applicant a protection visa – whether Tribunal erred in finding that applicant was not a person to whom Australia had protection obligations under the 1951 Convention relating to the Status of Refugees – whether Tribunal erred in finding that the applicant did not have a well-founded fear of persecution – whether error of law not to consider consequences of voluntary acts of applicant as refugee "sur place". Migration Act 1958 (Cth) ss 476, 476(1)(e) Federal Court Rules O 80 C D de Jong, "The Legal Framework: The Convention relating to the Status of Refugees and the Development of Law Half a Century Later", International Journal of Refugee Law, 10, 4 (1998) G S Goodwin-Gill, The Refugee in International Law (2nd Ed), (Oxford: Clarendon Press, 1996) A Grahl-Madsen, The Status of Refugees in International Law (Leyden: A W Sitjhoff, 1966) J C Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991) United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status (1979) Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 discussed Khan v Minister for Immigration and Multicultural Affairs and Refugee Review Tribunal (1997) 47 ALD 19 cited Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 cited Nagaratnam v Minister for Immigration and Multicultural Affairs (1999) 84 FCR 569 cited ALSIDDIG ABDULLAH ADAM MOHAMMED v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS WG 174 OF 1998 LEE J 28 JUNE 1999 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WG 174 OF 1998 BETWEEN: ALSIDDIG ABDULLAH ADAM MOHAMMED Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: LEE J DATE OF ORDER: 28 JUNE 1999 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The decision of the Tribunal be set aside and the matter remitted to the Tribunal, differently constituted, for consideration and determination according to law. 2. The respondent pay the applicant's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WG 174 OF 1998 BETWEEN: ALSIDDIG ABDULLAH ADAM MOHAMMED Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: LEE J DATE: 28 JUNE 1999 PLACE: PERTH REASONS FOR JUDGMENT 1 The applicant is a citizen of Sudan. He arrived in Australia on 25 July 1997 and lodged an application under the Migration Act 1958 (Cth) ("the Act") for "refugee status" in September 1997. The application was refused by a delegate of the Minister in October 1997. The applicant applied for review of that decision by the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed the decision of the delegate in December 1997. In May 1998 the applicant applied, on fresh grounds, for the grant of a protection visa. That application was refused by a delegate of the Minister in August 1998. The applicant sought a review of that decision by the Tribunal. In November 1998 the Tribunal affirmed the decision of the delegate. 2 The applicant now applies to this Court under s 476 of the Act for review of the decision of the Tribunal. 3 The application for review was prepared and filed in this Court on the applicant's behalf by a solicitor employed by a community legal service. Later, the Acting Director of the Legal Aid Commission of Western Australia gave notice to the Court that he represented that applicant. Several weeks before the application was set down for hearing, the applicant gave notice that he would appear on his own behalf. He has been held in a detention centre since arrival in Australia. He is not fluent in English and requires the assistance of an interpreter. 4 Pursuant to O 80 of the Federal Court Rules a request was made by the Court to the Western Australian Bar Association that counsel be provided, pro bono, to appear for the applicant. Pursuant to that request, counsel appeared and assisted the Court by submissions made on the applicant's behalf. 5 When the applicant arrived in Australia he landed without travel or identity documents. It appears to be accepted that he was brought to Australia from Malaysia by sea. He said that his Sudanese passport was lost at sea or destroyed by the captain of the vessel which brought him to Australia. Where the entry of unlawful non-citizens into the "migration zone" occurs as an organized event, the "loss" of such documents commonly appears to be part of the scheme. 6 When the applicant first applied for recognition as a refugee, the delegate determining the application in October 1997 found that there were insufficient facts on which to decide whether the applicant was a refugee "as there was no objective evidence as to his identity". 7 The Tribunal, in its review of that decision on 24 December 1997, assumed that the applicant was a citizen of Sudan but was not satisfied that he was a person to whom Australia had protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees ("the Convention"). 8 In April 1998 the applicant requested the Minister to exercise a discretion under s 48B of the Act, in the public interest, to allow the applicant to make a further application for the grant of a protection visa. The Minister was satisfied that it was appropriate to allow the applicant to make such an application. The material presented to the Minister in support of that request was as follows: "I wish to make a fresh application for a protection visa on the basis of new circumstances which have arisen since my original application was made. The fresh grounds are: · I have recently received information from a member of the same opposition party which I was in, that a letter which I sent to my brother last January was intercepted by the Sudanese Securities Authority. · In the letter, I had told my brother that I am now in Australia, in the Port Hedland Refugee Camp and that I had applied for a Protection Visa but my application had been refused. · My brother was arrested by Securities Authority members and has been investigated because of this letter. · The Sudanese Securities Authority are checking any letters coming from Australia. This is because of Swimming Team members who came to Australia approximately three months ago, to participate in the International Swimming Championships in Perth. They applied for Protection Visas. This is the first time in the history of Sudan this has happened. The Sudanese government is now interested in this swimming group, and any other anti-Sudanese government people who might be in Australia. · The letter I sent to my brother has caused trouble to my family. The Police keep on arresting my brother to ask him more about me. · I am now more fearful than before of returning to my country. My new application for a protection visa is enclosed. …" 9 When the delegate of the Minister considered that application, in August 1998, a finding was made that the applicant's claim that a letter he had sent to his brother in Sudan had been intercepted by Sudanese authorities was contrived. The delegate proceeded to find that there was a "remote as opposed to a real chance" of persecution if the applicant were returned to Sudan. 10 The review of that decision, carried out by the Tribunal in November 1998, contained the following conclusion: "In the present case, the Tribunal is not convinced that the applicant has been acting bona fide but, has been acting solely out of desire to put himself in a position where he could claim to be endangered. The Tribunal is of the view that the letter is a blatant example of action comparable to that which was considered in Somaghi's case. The letter included details, namely, his status as a detainee in immigration detention in Australia, his application for refugee status here, that this had failed and that he had written to the Minister for protection on humanitarian grounds. The letter also explained to his brother that he had refused military service, the reasons why he had done so, his political activity in neighbouring Jordan, his desire not to want to go back to Sudan and his lack of support for the political system there." 11 Under s 416 of the Act the Tribunal took to be correct the previous decision of the Tribunal made in December 1997; it only addressed the new material provided by the applicant since that decision. The assumed, or accepted, relevant facts seem to be as follows. 12 The applicant is thirty-two. His mother and his siblings remain in Sudan. Between 1983 and 1990 the applicant lived and worked in Iraq, returning to Sudan for holidays. He left Iraq and returned to Sudan after Iraq invaded Kuwait. He left Sudan in late 1990, early 1991, after becoming aware that he would be required to provide military service in the civil war being fought in his country. He travelled to Jordan after crossing the border from Sudan to Eritrea. He worked in Jordan between 1991 and 1997. In April 1997 the applicant flew from Jordan to Malaysia and several months later a boat brought him from Malaysia to Australia. 13 The applicant claimed that whilst in Jordan he had joined the Peoples' Party (Umma), an organization opposed to the Sudanese government. The applicant produced a certificate of his membership of Umma, attested by the General Secretary of the Malaysia Office of the organization. 14 The applicant had not seen his family since 1990 but claimed that he had maintained some contact by telephone and letters between 1990 and 1997. It was acknowledged that neither the applicant, whilst in Sudan, nor the applicant's family had been subject to attention from Sudanese authorities before January 1998. The applicant claimed that a letter written by him to his brother in about January 1998 had been intercepted by Sudanese security authorities and that his brother had been arrested and interrogated on more than one occasion thereafter. It was said that it had caused a "big problem" for the applicant's family "with security bodies" and that he should not write again. The applicant said he had sent the letter to inform his family of his circumstances and to obtain documents to prove his identity. 15 The Tribunal acknowledged that the governing regime in Sudan has been recognised internationally for its systematic and brutal abuse of the human rights of the citizens of that nation. It accepted the following statement as an accurate account: "There is no doubt that the Sudanese government is guilty of human rights abuses on a considerable scale. Political opponents are often jailed, tortured and executed. The right to freedom of speech and association have been restricted. The army has carried out operations in which people have been summarily killed and civilians have been massacred, particularly in the south. The attempt to impose Shari'a law has been resisted by a number of groups. …" 16 There was material before the Tribunal which confirmed that all levels of Sudanese society had been affected by the oppressive conduct of the government of Sudan since it came to power by military coup. In particular, political opponents had been targeted and all political activity had been suppressed. In that time, arrests, torture and ill-treatment had increased, not decreased. The summary use of extra-judicial executions was common. 17 In the recent edition of his text on refugees, Goodwin-Gill states: "Eleven years of 'the current phase of Sudan's civil war', the continuation of a north/south autonomy struggle exacerbated by ethnic/religious conflict and human rights violations that have attracted the condemnation of the UN Commission on Human Rights and the General Assembly, had caused an estimated 510,000 persons to seek refuge in neighbouring countries by the end of 1994, with as many as 4 million internally displaced." (G S Goodwin-Gill, The Refugee in International Law (2nd Ed), (Oxford: Clarendon Press, 1996), at 187 – 188.) 18 The question for determination by the Tribunal was whether the applicant, by reason of events that had occurred since his departure from Sudan and arrival in Australia, had a well-founded fear of persecution if returned to Sudan. 19 The Tribunal made the following finding in that regard: "The Tribunal therefore reaches the conclusion that the sending of the letter represents action 'undertaken for the sole purpose of creating a pretext of invoking a claim to well-founded fear of persecution', in the words of Gummow J in Somaghi. Hence, this action should not be considered as supporting the applicant's application and the applicant's fear is not well founded." 20 Counsel for the applicant submitted that such a finding provided ground for review of the decision under s 476(1)(e) of the Act in that the Tribunal had incorrectly interpreted the law, or had incorrectly applied the applicable law to the facts. 21 Determination of a claim of refugee status is not an easy task. A kernel that represents a proper claim under the Convention may be difficult to recognize in the chaff of numerous spurious claims made by others. There is a great incentive for many to attempt to rely on the Convention to advance their situation in life as de facto immigrants and not to obtain protection from persecution. (See: C D de Jong, "The Legal Framework: The Convention relating to the Status of Refugees and the Development of Law Half a Century Later", International Journal of Refugee Law 10, 4 (1998) pp 688 – 699 at 691.) Such applicants may cloak deceptive claims in plausible material. 22 Notwithstanding the difficulties facing a decision-maker in these matters, the duty to decide applications as required by law remains. 23 Claims which present particular difficulty are the claims of refugees "sur place". An outline of the concept of refugee "sur place" may be found in the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status (1979) pars 95, 96: "95. A person becomes a refugee 'sur place' due to circumstances arising in his country of origin during his absence. Diplomats and other officials serving abroad, prisoners of war, students, migrant workers and others have applied for refugee status during their residence abroad and have been recognised as refugees. 96. A person may become a refugee 'sur place' as a result of his own actions, such as associating with refugees already recognised, or expressing his political views in his country of residence. Whether such actions are sufficient to justify a well-founded fear of persecution must be determined by a careful examination of the circumstances. Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person's country of origin and how they are likely to be viewed by those authorities." 24 Recognition that refugee status may be attracted by the conduct of a person outside his country of nationality presents the risk that the purpose of the Convention may be abused by persons purporting to rely upon it when not really in need of protection. Such applicants for refugee status have been described as "bootstrap refugees". (J C Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991), at 37.) 25 To counter the perceived risk of abuse in such cases, claims of refugee status will attract close scrutiny. (See: Gummow J in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 118.) The principle described by Gummow J adopts a discrimination suggested by A Grahl-Madsen in The Status of Refugees in International Law (Leyden: A W Sitjhoff, 1966), at 252: "[W]e may have to draw a distinction … between those who unwittingly or unwillingly have committed a politically pertinent act, and those who have done it for the sole purpose of getting a pretext for claiming refugeehood. The former may claim good faith, the latter may not." 26 As Gummow J stated in Somaghi, actions undertaken for the sole purpose of creating a pretext for claiming fear of persecution, do not make a well-founded fear of persecution. In Somaghi, Jenkinson J (at 109) and Gummow J (at 118) make it clear that actions undertaken to create the pretext of such a claim cannot support a conclusion that there is a genuine fear of persecution. 27 What is acknowledged in Somaghi is that actions designed to give colour, or plausibility, to a claim that is no more than a pretence, are to be disregarded in determining whether a fear of persecution exists and is properly based, having regard to subjective and objective elements. In other words, a fraudulent claim of fear cannot be a well-founded fear. (See: Khan v Minister for Immigration and Multicultural Affairs and Refugee Review Tribunal (1997) 47 ALD 19.) 28 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. (See: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason CJ at 389, Dawson J at 398, Toohey J at 407 and McHugh J at 429.) Consistent with the terms of the Convention, and the obligations undertaken by a contracting state thereunder, recognition of refugee status cannot be denied to a person whose voluntary acts have created a real risk that the person will suffer persecution occasioning serious harm if that person is returned to the country of nationality. In some cases, albeit extraordinary, fraudulent activity by an applicant for refugee status may, in itself, attract malevolent attention from authorities in the country of nationality, giving rise to a well-founded fear that serious harm will occur if that person is returned. In such cases, a determination must be made whether that person is to be accorded refugee status: "Even when it is evident that the voluntary statement or action was fraudulent in that it was prompted primarily by an intention to secure asylum, the consequential imputation to the claimant of a negative political opinion by authorities in her home state may nonetheless bring her within the scope of the Convention definition. Since refugee law is fundamentally concerned with the provision of protection against unconscionable state action, an assessment should be made of any potential harm to be faced upon return because of the fact of the non-genuine political activity engaged in while abroad. … This issue is most poignantly raised when it is alleged that the fact of having made an unfounded asylum claim … may per se give rise to a serious risk of persecution. While these cases provide perhaps the most obvious potential for 'bootstrapping', … there must nonetheless be a clear acknowledgment and assessment of any risk to basic human rights upon return which may follow from the state's imputation of an unacceptable political opinion to the claimant. The mere fact that the claimant might suffer some form of penalty may not be sufficiently serious to constitute persecution, … but there are clearly situations where the consequence of return may be said to give rise to a well-founded fear of persecution. For example, in Slawomir Krzystof Hubicki … evidence was adduced that under then-prevailing Polish criminal law, the claimant would face imprisonment of up to eight years because he had made a refugee claim in Canada. In such situations, the basis of claim is not the fraudulent activity or assertion itself, but is rather the political opinion or disloyalty imputed to the claimant by her state. Where such an imputation exits, the gravity of consequential harm and other definitional criteria should be assessed to determine whether refugee status is warranted." (Hathaway, The Law of Refugee Status at 39.) 29 Once it was accepted by the Tribunal that the applicant had written to his brother, and that the letter had been intercepted by Sudanese security personnel, the applicant's case came within the circumstances discussed above. The conclusion that the act of sending the letter was "a blatant example" of "acting solely out of a desire to put himself in a position where he could claim to be in danger" involved a substantial leap in logic, but such reasoning by the Tribunal is not the issue in this appeal. If, perchance, it could be concluded that the applicant engaged in a subtle form of fraud by sending a letter to his brother at about the time a group of Sudanese swimmers "defected" in Australia, being an event which caused Sudanese authorities to intercept mail from Australia, that conclusion did not relieve the decision-maker of the task of determining whether the consequences which may flow from that conduct gave the applicant the status of a refugee. 30 On the material before the Tribunal it would not appear that it could be said that the applicant relied upon his act of writing to his brother, and the interception of that letter, to make more plausible, or colourable, a pretended claim to a well-founded fear of persecution. The Tribunal did not so find and, indeed, acted under the mistaken belief that at law it was obliged to disregard the acts of the applicant and their consequences, whatever they may be. The applicant relied on his act, and its consequences, to show why he feared persecution and why the fear was well-founded. His claim to a well-founded fear of persecution arises out of what the Sudanese authorities may do, armed with the knowledge they have obtained from the interception of his letter. The applicant claims, first, that, membership of a political party that opposed the regime is a circumstance treated with extreme measures of persecution by Sudanese authorities; second, that an application for refugee status will be treated as a political statement attracting persecutory action; and third, that avoidance of military service will be treated as a statement of political opinion to be dealt with in the same manner. 31 The central question to be determined by the Tribunal was whether the applicant held a genuine fear that he would be persecuted and whether, if he were returned to Sudan, there was a real risk that serious harm would befall the applicant by acts of persecution within the meaning of the Convention. In making that determination, it was not open to the Tribunal to ignore the consequences of the interception by Sudanese security authorities of the letter sent by the applicant to his brother. Whether the circumstances also attracted Australian obligations under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 done at New York on 10 December 1984, is unnecessary to consider. (See: Nagaratnam v Minister for Immigration and Multicultural Affairs (1999) 84 FCR 569 at 580.) 32 The history of extreme acts by Sudanese authorities, involving, in particular, grave infringements of the human rights of persons to whom dissenting political opinion has been attributed, made the proper determination of the applicant's status of great importance. Due to its misunderstanding, and incorrect interpretation, of the law, the Tribunal failed to address, as required by law, the question it had to decide. 33 The matter must be returned to the Tribunal, differently constituted, for reconsideration and determination according to law. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate: Dated: 28 June 1999 Pro bono counsel for the Applicant: A R Beech Counsel for the Respondent: P R Macliver Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 9 June 1999 Date of Judgment: 28 June 1999