Minister for Immigration & Multicultural Affairs v Kheirollahpoor [2001] FCA 1306

FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Kheirollahpoor

[2001] FCA 1306

MIGRATION - judicial review - Refugee Review Tribunal - refugee sur place - evidence not in good faith - whether good faith a consideration of protection obligations - binding Full Court decision - pending appeal in High Court - whether applciation should be adjourned - applicant in detention - application dismissed Migration Act 1958 (Cth) s 476(1)(e) Minister for Immigration and Multicultural Affairs v Mohammed (2000) 98 FCR 405 Minister for Immigration and Multicultural Affairs v Farahanipour (2001) 105 FCR 277 MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v FARSHID KHEIROLLAHPOOR W 294 OF 2001 FRENCH J 16 AUGUST 2001 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W294 OF 2001

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

APPLICANT

AND: FARSHID KHEIROLLAHPOOR

RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 16 AUGUST 2001

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The Applicant pay the Respondent's 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 W294 OF 2001

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

APPLICANT

AND: FARSHID KHEIROLLAHPOOR

RESPONDENT

JUDGE: FRENCH J

DATE: 16 AUGUST 2001

PLACE: PERTH

REASONS FOR JUDGMENT 1 This is an application by the Minister for Immigration and Multicultural Affairs to review the decision of the Refugee Review Tribunal made on 15 June 2001 by which the Tribunal remitted the respondent's application for a protection visa to the Minister for reconsideration with a direction that the respondent is a person to whom Australia has protection obligations under the Refugees Convention. 2 The first ground of the application is that the decision involved an error of law pursuant to s 476(1)(e) of the Migration Act 1958 (Cth) ("the Act"), being an error involving an incorrect interpretation of the applicable law in relation to a well-founded fear of persecution based upon a refugee sur place claim. Secondly, and alternatively, it is said that the decision involved an error of law pursuant to s 476(1)(e) of the Act, being an incorrect application of the law, in relation to a well-founded fear of persecution based upon a refugee sur place claim, to the facts as found by the Tribunal. 3 The grounds are particularised as follows: "(i) Having concluded that it was satisfied that the actions of the Respondent in Australia had been done "for the sole purpose of creating a well-founded fear of persecution", and that as a result of those actions there was a real chance that on return to Iran he would be persecuted by reason of imputed political opinion, the Tribunal misinterpreted the applicable law in relation to a well-founded fear of persecution based on a refugee sur place claim by applying the decision of the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Mohammed (2000) 98 FCR 405, and thereby concluded that it was satisfied that the Respondent has a well-founded fear of persecution on the ground of the political opinion that may be imputed to him by the Iranian authorities flowing from his actions in Australia. (ii) If the Tribunal had correctly interpreted the applicable law in relation to a well-founded fear of persecution based on a refugee sur place claim by applying the principle established by the Full Court of the Federal Court in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100, that actions taken by a refugee applicant outside the country of nationality for the sole purpose of creating a pretext to invoking a claim to well-founded fear of persecution should not be considered as supporting a claim to refugee status because in such cases the fear of persecution to which the Refugees Convention refers will not be "well-founded", its conclusion that it was satisfied that the actions of the Respondent in Australia had been done "for the sole purpose of creating a well-founded fear of persecution" would have meant that the Tribunal was bound to conclude as a matter of law that it was not satisfied that the Respondent had a "well-founded" fear of persecution for a Convention reason, and accordingly that it was not satisfied that the Respondent was a person to whom Australia has protection obligations under the Refugees Convention. … 2(i) Having concluded that it was satisfied that the actions of the Respondent in Australia had been done "for the sole purpose of creating a well-founded fear of persecution", a correct application of the law in relation to a well-founded fear of persecution based upon a refugee sur place claim, as set out in the decision of the Full Court of the Federal Court in Somaghi, would have resulted in the Tribunal concluding that it was not satisfied that the Respondent had a "well-founded" fear of persecution for a Convention reason, and accordingly that it was not satisfied that the Respondent is a person to whom Australia has protection obligations under the Refugees Convention." 4 As can be seen the substance of the grounds is that the Tribunal erred in applying the decision of the Full Federal Court in Minister for Immigration and Multicultural Affairs v Mohammed (2000) 98 FCR 405 and that, applying that decision, it concluded that it was satisfied that the respondent has a well-founded fear of persecution on the ground of political opinion that may be imputed to him by the Iranian authorities following from his actions in Australia. 5 As counsel for the Minister accepts, I am bound by the decision of the Full Court in Mohammed's case and the subsequent decision in Minister for Immigration and Multicultural Affairs v Farahanipour (2001) 105 FCR 277, which was a decision of the Full Court on the same point; namely, whether a refugee sur place claim may be considered by reference to actions in Australia done with the deliberate purpose of creating a situation in which the applicant may be subject to risk of persecution in the place from which he had come on the basis of an imputed political opinion. 6 It is important to point out that in Mohammed's case, it was held that the function of the Tribunal and of the Minister under the Act is to consider the words of the Convention in determining whether or not there is a protection obligation. The Convention itself does not import any general good faith rule in relation to refugee claims, albeit want of good faith will place significant obstacles in the path of an applicant in relation to credibility and whether the applicant does in fact satisfy the criteria for protection found in the words of the Convention. 7 The Minister has applied for and been granted special leave to appeal to the High Court from the decision in Mohammed. I am told by counsel for the Minister that it is possible, but not certain, that the appeal in that case may be heard in the October sittings of the High Court in Perth. I was previously asked by the Minister's counsel to adjourn the hearing of this application until after the hearing and determination of the appeal. However, in my opinion, given the present position of the respondent in a detention centre, it is unacceptable that he should be left in limbo indefinitely until the day the High Court gives a decision in relation to the Mohammed case. 8 It may be that he will be issued with a bridging visa in the meantime. An application for a bridging visa has been made and, I understand, a decision will be made on that in the next two weeks or so. It may be that the Minister will file the formal appeal against this decision in the Full Court pending the outcome of the appeal in the High Court. However, in my opinion, my duty is to dispose of this application within a reasonable time on the basis of the law as laid down by the Full Court in Mohammed and Farahanipour. It is conceded by counsel for the Minister that the only outcome of this application, applying those decisions, is that the application be dismissed, and I will so order. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.