Minister for Immigration & Multicultural Affairs v Mohammed [2000] FCA 576

FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Mohammed [2000] FCA 576 MIGRATION – refugees – refugee "sur place" – political opinion – imputed political opinion – asserted fear of persecution based on activities abroad – letter sent from country of residence to country of origin – pretext to generate refugee status – whether good faith requirement in Convention – need to refer to words of Convention – "well-founded fear of persecution" – "by reason of"– respondent's first application for protection visa refused and refusal confirmed by Refugee Review Tribunal – respondent sent letter to country of origin referring to unsuccessful application, failure to render military service, and political activities post departure – letter intercepted by security agency in that country – further application for refugee status permitted –sole purpose of letter to create pretext for claim to well-founded fear of persecution – whether Tribunal entitled to disregard letter and consequences therefrom. Migration Act 1958 (Cth) Danian v Secretary of State for the Home Department, Court of Appeal (Civil Division), unreported 28 October, 1999, United Kingdom approved Banstanipour v Immigration and Naturalisation Service (1992) 980 F 2d cited Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (Lockhart J, 22 November 1990, unreported) considered Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 discussed Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 cited R v Home Secretary; Ex parte Bugdaycay [1987] 1 AC 514 cited R v Home Secretary, Ex parte Mehari [1994] QB 474 cited T v Home Secretary [1996] AC 742 cited Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 cited Cisternas-Estay v Immigration and Naturalisation Service 531 F2d 155 (3d Cir 1976) cited Mohamed Aahmed Urur v Minister of Employment and Immigration (1988) 91 NR 146 (Fed CA) cited Manzila v Canada (Minister of Citizenship and Immigration) (September 22, 1998) Imm-4757-97 (FCTD) cited Ngongo v Canada (Minister of Citizenship and Immigration) (October 25, 1999) IMM-6717-98 (FCTD) cited Re HB Refugee Appeal:2254/94 discussed R v Immigration Appeal Tribunal Ex parte B [1989] Imm AR 166 cited R v Secretary of State for the Home Department Ex parte Gilgham [1995] Imm AR 129 cited M v Secretary of State for the Home Department [1996] 1 WLR 507 cited R v Immigration Appeal Tribunal, Ex parte Senga (unrep 9 March 1994) cited Heshmati v Minister for Immigration, Local Government and Ethnic Affairs (Lockhart J, 22 November 1990, unreported) considered Heshmati v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 123 discussed Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19 cited Immigration and Naturalisation Service v Cardozo-Fonseca (1987) 480 US 421 cited Immigration and Naturalisation Service v Elias-Zacarias (1992) 502 US 478 cited Jaharzi v Minister for Immigration and Multicultural Affairs (1995) 61 FCR 293 cited Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 557, (1994) 35 ALD 225 cited Khan v Minister for Immigration and Multicultural Affairs (1997) 47 ALD 19 cited Hathaway, The Law of Refugee Status (Butterworths, Toronto, 1991) at 33-34 Grahl-Madsen, The Status of Refugees in International Law, Vol 1 (AW Sijthoff-Leyden, 1966) at 248 United Nations High Commission on Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1992) par 96 Wallace, International Human Rights – Text and Materials (Sweet & Maxwell 1997) p 312 Petrini – Basing Asylum Claims on a Fear of Persecution Arising from a Prior Asylum Claim (1981) 56 The Notre Dame Lawyer, 719 MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v ALSIDDIG ABDULLAH ADAM MOHAMMED W66 of 1999 SPENDER, FRENCH AND CARR JJ 5 MAY 2000 PERTH