FEDERAL COURT OF AUSTRALIA Minister for Immigration & Multicultural Affairs v Farahanipour [2000] FCA 605 MIGRATION – refugees – refugees sur place – political opinion – imputed political opinion – asserted fear of persecution based on activities in Australia – respondents found not to be refugees upon departure from Iran – publication in Australia of interview in Iranian newspaper which opposed the Iranian government – sole purpose of newspaper interview was to create pretext for claim to well-founded fear of persecution – whether Tribunal erred in applying first instance decision in Mohammed v Minister for Immigration and Multicultural Affairs [1999] FCA 868 – Full Court (by majority) subsequently dismissed appeal in Mohammed – whether conflict between Full Court decision in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 and Full Court decision in Mohammed – whether judge at first instance bound to follow Mohammed even if perceived to be in conflict with Somaghi – Somaghi carefully considered both at first instance and on appeal in Mohammed – whether any relevant factual distinction from Mohammed. Migration Act 1958 (Cth) Mohammed v Minister for Immigration and Multicultural Affairs [1999] FCA 868 applied Minister for Immigration and Multicultural Affairs v Mohammed [2000] FCA 576 applied Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 referred to Danian v Secretary of State for the Home Department, unreported 28 October 1999 referred to Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 557 referred to Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 referred to Khan v Minister for Immigration and Multicultural Affairs (1997) 47 ALD 19 referred to Viro v The Queen (1978) 141 CLR 88 applied Montes-Granados v Minister for Immigration and Multicultural Affairs [2000] FCA 60 referred to MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS v GHOLAMREZA FARAHANIPOUR and MOJGAN GHASEMPOUR W 80 of 1999 CARR J 9 MAY 2000 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 80 OF 1999 BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Applicant AND: GHOLAMREZA FARAHANIPOUR and MOJGAN GHASEMPOUR Respondents JUDGE: CARR J DATE OF ORDER: 9 MAY 2000 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondents' costs of the application. 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 W 80 OF 1999 BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Applicant AND: GHOLAMREZA FARAHANIPOUR and MOJGAN GHASEMPOUR Respondents JUDGE: CARR J DATE: 9 MAY 2000 PLACE: PERTH REASONS FOR JUDGMENT Introduction 1 In this matter the applicant, the Minister for Immigration and Multicultural Affairs, has applied for an order of review of a decision of the Refugee Review Tribunal, made on 13 July 1999, in relation to applications by the respondents for protection visas. The Tribunal's decision was to remit the matter for reconsideration by the applicant's delegate with a direction that the respondents are persons to whom Australia has protection obligations under the Refugees Convention. Factual Background 2 The first-named respondent is a 34 year old citizen from Iran. The second-named respondent is his wife. They arrived in Australia on 14 March 1999 without any travel or identification documents. I shall refer to the first-named respondent as either "the respondent" or "the male respondent". 3 The respondents' case before the Tribunal was summarised by it in some four pages. Rather than make a further summary, I incorporate that summary by reference here. It forms Annexure 'A' to these reasons. The Tribunal's Decision 4 The Tribunal did not believe the male respondent. It drew in its conclusions on those parts of his claims which related to his alleged activities in Iran in the following terms: "In summary, the Tribunal is satisfied that the Applicant fabricated his account of dissident activities in Iran. It concludes that he was of no interest to the Iranian authorities when he left that country because he had never participated in any activities that would bring him to their attention. It does not accept that his house was ransacked and property confiscated or that his father was detained soon after his departure because the authorities believed the Applicant had been involved in passing on information to an overseas publication. It is satisfied that he did not have a subjective fear of persecution for the reasons he stated when he left Iran and that, accordingly, he did not have a well-founded fear of persecution." 5 The Tribunal then had to consider whether the respondents had become refugees sur place. This arose out of the publication of an article recording a telephone conversation which the male respondent had with the editor of a newspaper in Australia known as "Arash". Arash is apparently a pro-monarchist publication in the Iranian language. The Tribunal made the following observations in relation to the publication of that article: "The Tribunal is satisfied that the Applicant has colluded with other parties to arrange for publication of the article in Arash, which does not accurately match his claims and contains information that was not within his knowledge, notwithstanding that it purports to be a record of a conversation between him and the editor of the paper. The article is self-serving, in that it names the Applicant, states he is an applicant for refugee status at the Port Hedland IDC and was a close colleague of people who were persecuted as opponents of the government, and it is full of vitriol that he has not expressed in his various submissions. That is not to say, of course, that the information contained about the Iranian leadership in the article is necessarily inaccurate. It does, however, lend support to the conclusion that the Applicant arranged for the article to be printed to raise his profile as a refugee applicant. . . . The subsequent details in that report [the US Department Iran Country Report for 1998] demonstrate that the Iranian government has little tolerance for expressions of opposition of the type published in the article before the Tribunal and, consequently, leads the Tribunal to conclude that the Applicant faces a real chance that he will be severely punished for the comments that are attributed to him in the Arash article. It is satisfied that the nature of those comments would motivate the Iranian authorities to punish him for reason of his political opinions, whether or not he actually provided the information to Arash or holds the views that the article expresses." 6 The Tribunal then referred to paragraph 96 of the UNHCR "Handbook on Procedures and Criteria for Determining Refugee Status" which relates to the matter of a person becoming a refugee sur place. It also referred to the Full Court decision of Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 and the decision at first instance of Lee J in Mohammed v Minister for Immigration and Multicultural Affairs [1999] FCA 868. The Tribunal then said this: "In the current case, the Tribunal is satisfied that the Applicant arranged for publication of the article in Arash in order to bring himself to the attention of the Iranian authorities. Prior to that time, his claims to be a refugee were based on false information. He undertook the act of publishing the article in Arash "to make more plausible, or colourable, a pretended claim to a well-founded fear of persecution". The article expresses views that he never expressed in Iran and are diametrically opposed to his history of employment in that country. They do, however, contain a kernel of truth in that the Tribunal accepts that the Applicant prefers freedom and democracy to the system that is in place in Iran, notwithstanding that he was a long-term servant of that system. As a consequence of the likelihood the views expressed in Arash have come to the attention of the Iranian authorities, the Tribunal is satisfied that the Applicant now has a genuine fear of persecution, although he did not harbour such a fear before the publication of that article, the artifice of which is apparent in the author taking the liberty to identify the Applicant, presumably at the latter's behest. The tenor of the passage from Hathaway, cited with approval by Justice Lee, is that regardless of the motivation for an applicant's action, it is the consequences of that action that are determinative of whether that applicant falls within the Convention. The Tribunal understands His Honour to have determined that it must have regard to the consequences of an applicant's action, notwithstanding that the action may be 'fraudulent' or that its purpose was solely to bring him or her to the adverse notice of his country's authorities, as the Tribunal finds was the case in the current matter. While the Tribunal has some difficulty in reconciling that determination with the principles discussed in Somaghi, it is a determination that was made in the context of those principles and the Tribunal is bound to apply it. The Tribunal is satisfied that the consequence for the Applicant is that there is a real chance he faces persecution for reason of his political opinion as set out by the author of the Arash article. In all of the circumstances, the Tribunal does not accept that the Applicant had a genuine fear of persecution until the article in Arash was published but concludes that he has become a refugee sur place. It finds that he has a well-founded fear of persecution for reason of his political opinion and that he is, therefore, a person to whom Australia has protection obligations under the Refugees' Convention and Protocol. As a member of his family unit, his spouse would also be a person to whom Australia has protection obligations." The Application to this Court and My Reasoning 7 There are three, related, grounds of the application. First, that the Tribunal's decision involved an error of law in applying Mohammed, when that decision was said to be contrary to the principle established by the Full Court in Somaghi. Secondly, that the Tribunal had incorrectly interpreted the applicable law as set out in Somaghi i.e. if it had correctly interpreted Somaghi it should have held that the persecution was not "well-founded" within the meaning of the Convention. Thirdly (in the alternative) if the principle expressed in Somaghi did not oblige the Tribunal, on the facts found by it, to find that the persecution feared by the respondents was not "well-founded", the Tribunal incorrectly interpreted the applicable law by holding that as a result of the article published in Arash, the persecution feared by the respondents was "well-founded" within the meaning of the Convention. 8 This application was filed on 10 August 1999. It was set down some three weeks ago for hearing today. Last Friday (5 May 2000) a Full Court of this Court, by a majority, dismissed the appeal from Lee J's decision in Mohammed: Minister for Immigration and Multicultural Affairs v Mohammed [2000] FCA 576. The majority comprised Spender and French JJ. I was a member of the Full Court and dissented. 9 There is thus a very recent decision of a Full Court of this Court upholding a decision at first instance in a case which is relevantly indistinguishable from the present case. Counsel for the applicant did not suggest any relevant factual distinction between the facts of this matter and the facts in Mohammed. If anything, the facts are stronger in the present matter because here there is a clear finding of a real chance of persecution. 10 The applicant submitted that Somaghi and Mohammed were conflicting decisions and that I should follow the decision of the Full Court in Somaghi which was a unanimous decision of that Court. 11 Counsel for the applicant contended that Lee J at first instance in Mohammed and Spender J on appeal had incorrectly identified the principle of law explained in Somaghi. He also submitted, respectfully, that French J in Mohammed had not gone into the reasons in Somaghi "with sufficient analysis" and had misconstrued what was decided in Somaghi. He referred to the observations of the Court of Appeal in Danian v Secretary of State for the Home Department (unreported 28 October 1999, and in particular at p 24) as confirming the conflict between Somaghi and Mohammed. 12 In my dissenting reasons in Mohammed I expressed my views of what was decided by the Full Court in Somaghi. I do not propose to repeat those views here. The majority in Mohammed explained what was decided in Somaghi as being something different from my understanding of what was decided in that case. The majority in Mohammed did not regard Somaghi as being in conflict with their decision. Their Honours gave due consideration to Somaghi and did not distinguish it or refuse to follow it. 13 In those circumstances, as a judge sitting at first instance, I do not think that I can hold that what was decided by the Full Court in Somaghi was in conflict with what was decided by the majority of the Full Court in Mohammed. In my opinion, it is only at the level of a Full Court of this Court, or higher, that the course which the applicant invited me to take can properly be taken. 14 If I am wrong in that conclusion and it is open to me to find that the decision of the Full Court in Somaghi is in conflict with what was decided by the majority of the Full Court in Mohammed, I still think that I should follow Mohammed. 15 Counsel for the applicant submitted that the convention that a judge at first instance, faced with two conflicting binding decisions, should follow the more recent decision was "only a guide". He submitted that I should follow Somaghi for the following reasons: · what counsel described as "the very limited analysis" by Spender and French JJ in Mohammed of the decisions in Somaghi both on appeal and at first instance; · the fact that the judgment in Somaghi was unanimous; and · that there had been other decisions of this Court which have applied Somaghi, i.e. Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 557 at 580, implicitly accepted by the Full Court on appeal in that case (1994) 35 ALD 225 and expressly accepted by Lockhart J in Khan v Minister for Immigration and Multicultural Affairs (1997) 47 ALD 19 at 26. 16 I do not accept counsel's submission that the analysis by Spender and French JJ in Mohammed of the Somaghi decision was limited. It was very much at the centre of our respective deliberations in that case on appeal and the same situation had applied at first instance. 17 It is true that the judgment in Somaghi was unanimous. However, the decision under appeal in that case was set aside because the Tribunal had denied procedural fairness to the appellants. It is arguable that Gummow J's observations on the refugee sur place point were obiter dicta (although I expressed my view in Mohammed that they were part of the ratio decidendi). I do not think that the fact that the decision in Somaghi was unanimous would justify me, sitting at first instance, in following it in preference to Mohammed because the latter was a majority decision. If it is permissible to count judicial heads, then (when Lee J is counted) the numbers are even. I acknowledge (as indeed I pointed out in Mohammed) the line of subsequent decisions applying Somaghi. 18 I was not cited any authority directly in point which resolves the present issue i.e. assuming that there are two conflicting Full Court decisions in this Court, which decision should a judge at first instance follow. However, I was referred to Viro v The Queen (1978) 141 CLR 88 at 121 and 137. By analogy from that decision, I consider that even if I were permitted to discern a conflict between Somaghi and Mohammed, I should follow Mohammed because the latter Full Court gave due consideration to Somaghi when reaching its decision last week. 19 However, as I have said, I do not think that it is open to me to hold that what was decided by the Full Court in Mohammed conflicts with what had been decided by the earlier Full Court in Somaghi. If the judges forming the majority in Mohammed had thought that the decision in Somaghi was in conflict they would either have distinguished it or found it to be "plainly wrong" – see Montes-Granados v Minister for Immigration and Multicultural Affairs [2000] FCA 60 at paragraph 16 and the cases there cited. They did neither. 20 There being no relevant factual distinction between the facts of this matter and the facts in Mohammed, in my opinion, I am quite clearly bound to apply Mohammed to the decision in this case, despite the fact that I continue to hold the views which I expressed in dissent in that case. 21 I must therefore dismiss the application. There will be an order that the application be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr. Associate: Dated: 9 May 2000 Counsel for the Applicant: Mr P R Macliver Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondents: Mr H N H Christie Solicitor for the Respondents: Legal Aid WA Date of Hearing: 9 May 2000 Date of Judgment: 9 May 2000 ANNEXURE 'A' Extracts from the Tribunal's Reasons for Decision