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Omar v Minister for Immigration and Multicultural Affairs

Publisher Australia: Federal Court
Publication Date 16 October 2000
Citation / Document Symbol V 4 OF 2000
Reference [2000] FCA 1430
Cite as Omar v Minister for Immigration and Multicultural Affairs, V 4 OF 2000 , Australia: Federal Court, 16 October 2000, available at: http://www.refworld.org/docid/3ae6b72d20.html [accessed 22 September 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

FEDERAL COURT OF AUSTRALIA

MIGRATION - protection visa - refugee - future conduct - circumstances in which a person may hold well-founded fear of persecution based on future expression of political opinion - whether prior expression of political opinion is necessary to establish existing well-founded fear of persecution

Migration Act 1958 (Cth) ss 430(1)(c), 476(1)(a)

Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 applied

Mendis v Immigration Appeal Tribunal [1989] Imm AR 6 considered

Ahmad v Secretary of State for the Home Department [1990] Imm AR 61 considered

Mohammed v Minister for Immigration & Multicultural Affairs [1999] FCA 686 applied

Danian v Secretary of State for the Home Department [2000] Imm AR 96 applied

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

Iftikhar Ahmed v Secretary of State for the Home Department (unreported, Court of Appeal of England and Wales, 5 November 1999) applied

YUSUF SHEIKH OMAR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

 

VICTORIA DISTRICT REGISTRY

V 4 OF 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

YUSUF SHEIKH OMAR

 APPELLANT

 

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

 RESPONDENT

 

 

JUDGES:

BLACK CJ, RYAN AND MOORE JJ

DATE OF ORDER:

16 OCTOBER 2000

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.   The appeal be allowed.

2.   The order of the primary judge be set aside and instead of that order there be orders as follows:

3.   The decision of the Refugee Review Tribunal affirming the decision of the delegate of the Minister be set aside.

4.   The matter be remitted to the Refugee Review Tribunal for determination according to law.

5.   The respondent pay the costs of the application for an order of review.

6.   The respondent pay the costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

 

VICTORIA DISTRICT REGISTRY

V 4 OF 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

YUSUF SHEIKH OMAR

 APPELLANT

 

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

 RESPONDENT

 

 

JUDGES:

BLACK CJ, RYAN AND MOORE JJ

DATE:

16 OCTOBER 2000

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

Background

1. This is an appeal from an order of a judge of the Court dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming the refusal by a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") to grant the appellant a protection visa.

2. The appellant is a Somali national. The appellant's account of his experiences in Somalia before arriving in Australia on 4 June 1999 can be summarised as follows (we refer later to aspects of this account that were not accepted by the Tribunal). The appellant is a member of the Qudub sub-clan of the Shikal clan. The significance of his clan attachment is made clear by these passages from the reasons of the primary judge, reflecting the findings made by the Tribunal:

"Somalia has been without a central government since 1991 following the collapse of the Siad Barre regime. Extensive fighting between warlords ensued. This in turn disrupted normal agriculture and commerce and resulted in widespread famine. The United States and later the United Nations intervened but withdrew in 1994. Somalia has separated into several regions under the control of various warlords.

.........

The Shikal is a minority clan. Despite having lived in Somalia for a very long time there is a popular belief that Shikal originated from the Middle East. Even today they are regarded as foreigners and not "proper" Somalis. They suffered discrimination in employment under the Barre government and were "looked down upon in a derogatory way"."

3. The appellant is 33 years of age. He left Somalia in January 1990 to study in Khartoum in the Sudan. In January 1991, civil war broke out in Somalia and in June that year the appellant returned to his homeland as a member of a humanitarian mission arranged by Sudanese Muslim welfare organisations. After three days, the mission was forced by clan militias to flee the country. Militia members boarded their aircraft and insisted that it would not be allowed to leave unless the "Shikal man" on board was left behind. A threat was made to blow up the plane if the Shikal man was not surrendered. Eventually, on payment of a bribe of $3,000, the mission was allowed to depart with its full complement of members.

4. The appellant then resumed his studies in Khartoum and began writing poetry highly critical of the Somali clan system and the internecine fighting which it engendered. Photocopies of the poems were distributed to the student body which included some Somalis from the major clans who threatened to "target" the appellant on his return to Somalia and asserted that they would send his poems to clan leaders in their homeland.

5. In mid-1993, after United Nations intervention in Somalia, the appellant went to a town in Ethiopia close to the Somali border. There he met some fellow Shikal clan members who told him that the clan had been dispersed over Somalia. His poems had attracted some notice and he was told that the Shikal had been increasingly viewed as dissidents. He was advised that despite the United Nations presence, it was not safe to return to Somalia and he decided not to do so. He resumed his studies in Khartoum where he continued to write poetry and contributed to a student newspaper articles critical of Somali clan leaders. This again attracted unfavourable attention from fellow Somali students attached to other clans. Another article on women's rights was sent to a Somali newspaper emanating from New Delhi but was not published. Nevertheless it came to the notice of Somalis in Khartoum who threatened that the appellant would be "dealt with" on his return to Somalia.

6. Between 1996 and 1999 the appellant pursued a master's degree at the International Islamic University in Malaysia. He there produced some more unpublished articles on Somali issues, copies of which were distributed to other Somali students at the same university. Those articles were not critical of the clans. In 1999 the appellant was told by a Shikal businessman visiting Malaysia that his brother had been killed in the course of fighting between the Islamic Court and General Aideed's militia. The appellant then purchased from this businessman an Australian travel document for US$500 and arrived in this country on 4 June 1999. His formal statement submitted to the Department on 16 June 1999 in support of the application for a protection visa concluded with these paragraphs:

"34. I have come to Australia because my life is in danger if I return to Somalia. I fear persecution for a combination of reasons being my membership of a minority and vulnerable clan which does not have the protection of any large clan. Additionally, I have expressed political and religious views publicly which have been transmitted to the clan leaders who consider me to be their enemy. The Somali clan leaders are not tolerant of people who criticise them.

35. Additionally Somali clan leaders have very long memories and always remember every wrong which has been done to them, so the fact that my articles were provided to them several years ago does not mean that they would not still act upon them now. Finally, educated Somalis with good minds like myself are persecuted because it is clear that any thinking person would align themselves against the madness and the violence of the clan fighting. I do not imagine that the clan leaders would spare my life for one minute if I was returned to Somalia."

The Tribunal's findings

7. The Tribunal concluded from the "country information" before it that there is a Shikal community living in relative safety in Mogadishu under the protection of the Hawiye clan with which the Shikal are connected and that the appellant did not have a well-founded fear of persecution on account of his clan affiliation.

8. In relation to the appellant's past political activity, the Tribunal indicated it was not satisfied that anyone in Somalia would know of his poetry or that his writings had come to the attention of state authorities. On this aspect of the case the Tribunal concluded:

"In the Tribunal's view the applicant has fabricated this evidence [of facts that suggested his writing was or might be known in Somalia] to try and give himself a political profile he does not have. If he wrote poetry that upset major clans he would have in the Tribunal's view come to some harm in Sudan.

In addition the Tribunal also considers it far fetched that poetry he allegedly wrote in 1992 would cause him problems in 1999."

9. A similar conclusion was reached after reviewing the appellant's claim of having been exposed to persecution as a result of his prose writings. The Tribunal said:

"The applicant is, in the Tribunal's view, not a famous poet, writer or commentator on Somali society. In the Tribunal's view he would have developed no political profile in Somalia during his many years of study overseas. As the Tribunal does not accept that the applicant's views have been disseminated in Somalia, it does not accept that they will lead to a real chance of persecution for reasons of political opinion or religion."

10. The Tribunal also indicated that it was not satisfied that the appellant's brother had been killed in the circumstances claimed. The Tribunal went on to say that, even if the brother had died as claimed, it was not apparent that the brother had been killed because of his clan membership or for any other Convention reason.

Issues before the trial judge and on appeal

11. Both at first instance and on appeal it was contended that the Tribunal, contrary to s 430(1) of the Migration Act 1958 (Cth) ("the Act"), failed to make findings on material questions of fact and failed to refer to the evidence or other material on which such findings of fact were based, so as to give rise to a ground of review under s 476(1)(a) of the Act. It failed to do so, it was said, in relation to a contention that the appellant, if returned to Somalia, would be exposed to a risk of persecution on the basis of his expression of strongly held political views about the clan system, or, alternatively, would be forced to conceal or suppress his political views.

12. It is also claimed that the Tribunal failed to make a finding in relation to the contention that the appellant was as at risk of persecution merely because he was an intellectual and an educated person, this class of people being perceived by the Somali clan leaders as a threat. This issue does not seem to have been raised as a separate issue before the learned trial judge, but no point was taken in this regard by counsel for the Minister. In any event, as will appear, the appellant fails on this ground of appeal.

13. As a threshold issue it was contended by the appellant that s 430(1) provides for a procedure "required...to be observed in connection with the making of the decision" within the meaning of s 476(1)(a). Counsel for the Minister submitted that the requirements of s 430(1) are not requirements of such a "procedure". Counsel for each party cited the two lines of conflicting authority on this point, and urged the Court to follow those authorities that supported his submission. The conflict between the authorities in this Court has now been examined and resolved by a Full Court of five in Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 ("Singh"), and we proceed on the footing that s 430(1) does provide for procedures required to be observed in connection with the making of a decision.

14. It was also submitted that the failure of the Tribunal to address the possible persecutory consequences of any future expression of political opinion by the appellant gave rise to legal error, so as to establish a ground of review under s 476(1)(e) of the Act. Counsel for the appellant conceded, however, that since in his submission the Tribunal was silent on the relevant issues, the Court was in effect asked to infer that the Tribunal misapplied or misinterpreted the law in this respect.

15. A submission concerning the risk of persecution arising from the appellant's future conduct was made in writing to the Department of Immigration and Multicultural Affairs shortly after the appellant was interviewed by a delegate of the Minister. The submission, written on behalf of the appellant by the Refugee and Immigration Law Centre Inc, is dated 1 July 1999 and includes the following :

"It is not only a fear of what he has said in the past, the applicant is clearly very articulate and feels compelled to express his view through poetry and other writing, as he is entitled to do. Even if he was not currently known to the authorities, he is the kind of person who is likely to quickly come to their attention, such are his gifts and the commitment to his beliefs which were clearly demonstrated at the interview. The applicant "speaking out" against the segregation of North West Somalia from the rest, is entirely foreseeable, and the risks he faces should be assessed on the assumption that he will be a dissident and a critic wherever he is in Somalia. The applicant's particular characteristics and talents put him at particular risk, whether in Mogadishu or in the North West regions of Somalia."

(Emphasis added.)

16. That submission concludes:

"In our submission the applicant's case is exceptional. The applicant is a scholar who has expressed and will continue to express his political opinions. His views enrage the dominant clans. His work has come to the attention of fundamentalist Imams who have accused him of being an infidel and of pulling the Somali people away from religion. His other articles have come to the attention of students at the university in Khartoum and have been transmitted back to Somalia where the applicant's work has caused controversy for himself, and perhaps also his family and clan.

Moreover, the risks continue into the future, irrespective of how well known his work of the past has become. The applicant is a committed intellectual who will continue to express his views even should he be returned to Somalia. It would be impermissible to assess his case on the basis that if he forfeits his right to freedom of expression, he may be safe. Firstly, in our submission the evidence indicates that he will continue to express his views, wherever he is. Secondly, freedom of expression is a fundamental human right and its denial would constitute persecution..."

(Emphasis added.)

17. That letter was part of the material before the Tribunal. It is also clear that a submission embodying this contention about future conduct had been made directly to the Tribunal in writing on behalf of the appellant by the Refugee and Immigration Law Centre Inc. The submission made on 23 September 1999, after the hearing had taken place on 9 September 1999, included this passage:

"Why an `educated minority clansmen' may targeted by Somalia militias [sic]

We maintain that the applicant has a well-founded fear of persecution in Somalia on account of his strongly held political views. Even if the Tribunal harbours doubts as to the applicant's credibility, we submit that the applicant has, throughout the application process, provided a detailed and sophisticated critique of what he perceives to be the root causes of the disintegrated Somali state. This is not surprising considering the applicant's level of education. Through his first statement, his writings and in his evidence at the hearing, we contend that the applicant has been able to demonstrate a level of knowledge and commitment to his political beliefs which distinguishes him from many other Somali asylum seekers. We imagine that the applicant may be one of the better educated Somalis that has come before the Tribunal.

We submit that the applicant's level of education - when combined with his membership of a minority clan and strongly held views - is a further differential factor in his situation. We reiterate the applicant's opinion, put in his second statement, that militias might see the applicant as a threat or annoyance on account of his education, particularly when he voices his opinions. He believes that clan militias may think he is trying to "trick them with his knowledge" or that [he] has no right to be university educated from a minority clan. This may result in an attack upon him."

18. After referring to Article 19 of the International Covenant on Civil and Political Rights 1966 as articulating rights to hold opinions without interference and to freedom of expression, the submission continued:

"This right is particularly relevant to the applicant who has nine years of tertiary education in Sudan and Malaysia where he has enjoyed academic freedom and has been able to express himself comparatively freely. There is no prospect that the applicant would be able to express himself freely in Somalia."

19. Extracts from a case study by the US Department of State and from "country information" before the Tribunal were then set out and the submission continued:

"We submit that it is more than likely that the applicant will continue to express his views were he to return to Somalia as he has done so in the past. It is likely that this will bring him to the attention of local militias, even if the Tribunal did not accept that he has ever come to the attention of militias in the past. We believe that this fundamental right of the applicant should not be denied. We submit that a writer or poet will have stronger claims under this ground than most."

(Emphasis added.)

20. The primary judge considered whether the Tribunal had failed to make findings of fact in relation to the prospect that the appellant would continue to express his views if returned to Somalia and thereby attract persecution. His Honour observed (at paras 21-22):

"Counsel for the Minister did not argue that the RRT made findings of fact as to this contention. Rather, he contended that such a possibility would not constitute persecution within the meaning of the Convention. On this basis, the question was not material and there was thus no obligation on the RRT to make a finding about it. Counsel argued that the RRT must assume that, as an applicant for refugee status, he would on return to Somalia take reasonable steps for his own protection. Otherwise it could not be said, as the Convention requires, that he is unable or, owing to his well-founded fear, unwilling to avail himself of the protection of his country of origin.

I accept this argument. I think it gained some force from counsel's reliance on Guo. [Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559]. There are similarities in that the High Court pointed out (at 576) that once the Tribunal had no real doubt that its findings both as to the past and future were correct, it would have been "irrational" to have found that the applicant nevertheless had a well-founded fear of persecution (at 576). However it is true that in Guo the specific point that spontaneous voluntary future expression of political opinion might provoke persecution was not raised."

21. After referring to an extract from Hathaway, The Law of Refugee Status, his Honour said (at para 25):

"The Convention definition of refugee necessarily requires an existing, present, unconditional, fear of persecution for one or more of the specified reasons if the asylum-seeker's were to be returned to his or her country of nationality. Of course that fear may be founded on matters and circumstances that have arisen in the country of nationality since the asylum-seeker left it. The asylum seeker may then become a refugee sur place: Somaghi v Minister for Immigration (1991) 31 FCR 100 at 116-118. And political opinion need not necessarily be actually held by the asylum-seeker; it is sufficient if it is imputed to him or her by the persecutor: Guo at 571. But there must be existing facts and circumstances founding a fear that persecution of this kind may occur. The language of the Convention definition does not extend to asylum-seekers who at the time of application have no foundation for fear, only fear that if they are returned to their country of nationality, and if they do something else, they will suffer persecution. A fear of persecution based only on what may be the unspecified reaction of others to unspecified future conduct of the asylum-seeker is no more than conjecture or surmise: cf Guo at 57."

(Emphasis added.)

22. These observations, though directed to the submission that the Tribunal had failed to make findings of fact in accordance with ss 430 and 476(1)(a), raise a question about whether the Tribunal (and, with respect, the primary judge) identified the appropriate legal principles concerning future conduct. Whether the consideration of future conduct in this matter ultimately affects the result of this appeal will be addressed later in this judgment. However it is necessary first to consider the law concerning future conduct, in so far as it is raised as a basis for a claim of well-founded fear of persecution for a Convention reason. It is also necessary to consider whether it can properly be assumed that an applicant for refugee status would, on repatriation to the country of origin, take reasonable steps for his or her own protection.

23. As noted above, the Tribunal did not address in its reasons what the appellant contends was a live issue before the Tribunal concerning his future expression of political opinion. Nor does it appear to have identified as a separate issue for consideration the appellant's claim in relation to the risks faced by educated people in Somalia (although counsel for the Minister argued that the Tribunal did in fact consider this claim). These two issues are somewhat related (in the sense that counsel for the appellant contends that the appellant's background as an intellectual increases the chance that he would feel compelled to speak out should he return to Somalia) but we understand the appellant's case to be that these are two separate omissions on the Tribunal's part.

24. When considering the failure by the Tribunal to make any finding about the appellant's future expression of political opinion, the trial judge rejected the proposition that possible future acts could form the basis for a well-founded fear of persecution. He considered that there must be existing facts and circumstances to found a fear that persecution may occur, not merely a fear entertained by asylum seekers that if they were returned to their country of nationality and if they were to do something else they would suffer persecution (see para 21 above). The appellant submitted, however, that possible future conduct, in particular, "spontaneous voluntary future expression of political opinion" may form the basis for a presently existing and well-founded fear of persecution. By the expression we have italicised we took the appellant to include a future expression that was, in reality, insuppressible. The appellant also submitted that the relevant fear could be founded upon a present intention to express, quite voluntarily, a political opinion. Underlying the argument was the contention that the learned primary judge erroneously excluded a range of future possibilities from the circumstances that could provide a proper foundation for a presently existing fear of persecution in the future. Support for these contentions was sought to be derived from the observations of Staughton LJ in Mendis v Immigration Appeal Tribunal [1989] Imm AR 6 ("Mendis") as well as other more recent cases.

25. In Mendis the applicant claimed he was a refugee sur place on the basis that he would be subjected to persecution in Sri Lanka because of activities allegedly undertaken in the United Kingdom. In relation to the possibility that the applicant might engage in similar conduct if returned to Sri Lanka, Staughton LJ observed (at 22):

"I would add only a brief word on the point about fear of persecution as a result of future conduct. In my judgment it may not be right to say that this can never be relevant to a claim for refugee status. If a person has such strong convictions, whether on religious or other grounds, that he will inevitably speak out against the regime in his country of origin, and will inevitably suffer persecution in consequence, it may be that he should properly be treated as a refugee. In such a case it could be questioned whether his future conduct would be voluntary in any real sense."

(Emphasis added.)

26. Counsel for the respondent supported the primary judge's reasoning and submitted that, in any event, if in exceptional circumstances the future expression of political opinion could form the basis of a well-founded fear of persecution, the evidence and submissions before the Tribunal in the present case did not give rise to a material question of that nature. He pointed to the rejection by the Tribunal of much of what the appellant had claimed and to what he said was the absence of any evidence from the appellant as to his intention to express political opinions in the future.

Can future conduct support a claim of a present fear of persecution?

27. We were not referred to any authority which has determined that an asylum seeker can be treated as having a well-founded fear of persecution because that person will or may express political opinions in their country of nationality (exposing them to harm) in circumstances where there has been no finding of any previous expression of those political opinions by the person in that country. Several authorities have, however, addressed whether, in principle, such an approach to what is comprehended by the notion of well-founded fear of persecution is open. Indeed, in Mendis the observations of the members of the Court reflect a range of approaches that might be taken to this issue. As already noted, Staughton LJ was willing to accept the possibility that the strength of a person's convictions could lead to an inevitable "speaking out" and subsequent adverse treatment at the hands of state authorities. Balcombe LJ, by contrast, rejected such a proposition, commenting that the Convention "is not a guarantee of world-wide freedom of speech". His Lordship said (at 22):

In my judgment a person is not at risk of being persecuted for his political opinions, if no events which would attract such persecution have yet taken place. If this were not so, a person could become a refugee as a matter of his own choice; all he would have to do would be to establish the following two propositions:

(1)  If, when I return to my native country, I speak out, I will be persecuted;

(2)  I will speak out.

This is tantamount to saying that a person who says he proposes to invite persecution is entitled to claim refugee status. That I do not accept.

28. The third member of the Court in Mendis, Neill LJ, left the question open and stated that it was not necessary in the circumstances to reach a conclusion on the point.

29. In Ahmad v Secretary of State for the Home Department [1990] Imm AR 61, a similar case determined one year after Mendis, Farquharson LJ, delivering the leading judgment of the Court of Appeal, referred to the different positions adopted in Mendis and commented (at 66):

"For my part, I would agree that a person cannot obtain refugee status on the basis that he has a fear of persecution if he returns to his national country and proceeds to break its laws. At the same time I do not consider that there are no circumstances in which a person could claim to be a refugee if he proposes to exercise what are widely regarded as fundamental human rights in the knowledge that persecution will result. In a religious context the position of a priest may be different from that of an ordinary member of the community, or the offending statute itself may be so draconian that it would be impossible to practise the religion at all. It would depend to a very large extent on where, in the spectrum of religious observance, a particular applicant proposed to be active: somebody who merely attended his place of worship from time to time throughout the year would, as I have just indicated, be contrasted with an active clerical figure. However that may be, these matters should in my judgment be taken into account by the Secretary of State in relation to the particular individual whose application for asylum he is considering.

 In the present case I find that the submission is not a realistic one."

(Emphasis added.)

Future conduct and cases concerning "bad faith"

30. The relevance of possible future conduct on the part of a person who claims to be a refugee has been examined more recently in some important cases in England and in this Court, some of them involving a consideration of "bad faith" on the part of an alleged refugee sur place but others involving conduct that could not be so characterised. All of them focus upon the essential nature of the inquiry that has to be undertaken to determine whether a person is a refugee for the purposes of the Convention. The appropriate starting point is the decision of Lee J of this Court in Mohammed v Minister for Immigration and Multicultural Affairs [1999] FCA 686 ("Mohammed").

31. In Mohammed the applicant, a Sudanese national, claimed to be a refugee sur place, on the basis that a letter he had sent from Australia to his brother in Sudan recounting his attempt to obtain refugee status in Australia had been intercepted by Sudanese security authorities. The Tribunal concluded, referring to Somaghi v Minister for Immigration, Local Government & Ethnic Affairs (1991) 31 FCR 100 ("Somaghi"), that the sending of the letter was an act "undertaken for the sole purpose of creating a pretext of invoking a claim to well-founded fear of persecution", and as such, was outside the scope of protection offered by the Convention. On the application for judicial review in this Court, Lee J, in considering the passage cited from the judgment of Gummow J in Somaghi, referred to the need to scrutinise closely refugee claims bearing in mind possible abuse by applicants who invoke the protection of the Convention in bad faith. His Honour held, however, that the possibility of bad faith did not detract from the need to answer the critical question whether an applicant holds a well-founded fear of persecution for a Convention reason. His Honour stated (at para 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 ..."

32. Lee J concluded that, even accepting that the sending of the letter was a fraud, the Tribunal had erred in law by disregarding the consequences of the interception of the letter when determining the central question of whether the applicant held a genuine fear of persecution and whether such a fear was well-founded.

33. The extract we have set out from the judgment of Lee J in Mohammed was referred to with approval by Brooke LJ in Danian v Secretary of State for the Home Department [2000] Imm AR 96 ("Danian"). The appellant in that case, a Nigerian citizen resident in London since 1985, was involved in pro-democracy activities from May 1995, several months after his application for asylum was refused by the Secretary of State. The Immigration Appeals Tribunal (the "IAT") viewed this course of conduct as a deliberate attempt to attract the adverse attention of the Nigerian authorities and concluded that, because the applicant had acted in bad faith, his claim was outside the protection of the Convention. The Court of Appeal remitted the matter to the IAT because it concluded that certain findings of fact were not open to it, but the Court also considered whether applicants who, in "bad faith", deliberately endanger themselves to bolster their claim for refugee status, are entitled to the protection of the Convention. All three judges concluded that an act of "bad faith" does not necessarily deny an applicant the protection of the Convention. Citing Lee J in Mohammed with approval, the Court of Appeal held that the essential factual issue to be addressed is whether at the time of the tribunal's assessment the applicant was at risk of persecution. Brooke LJ concluded (at 122):

"... I do not accept the Tribunal's conclusion that a refugee sur place who has acted in bad faith falls outwith the Geneva Convention and can be deported to his home country notwithstanding that he has a genuine and well-founded fear of persecution for a Convention reason and there is a real risk that such persecution may take place. Although his credibility is likely to be low and his claim must be rigorously scrutinised, he is still entitled to the protection of the Convention, and this country is not entitled to disregard the provisions of the Convention by which it is bound, if it should turn out that he does indeed qualify for protection against refoulement at the time his application is considered."

34. Buxton LJ likewise concluded that there is no "bad faith" exception under the Convention and that the ultimate question for determination is whether the applicant has a well-founded fear of persecution for a Convention reason. His Lordship also referred to the reasons of Balcombe J in Mendis (see para 27 above) and agreed that it would be wrong to assume that the "mere assertion of an intention to engage in unwelcome activities [to the native country] in the host country will suffice to ground a successful claim." However it is significant that Buxton LJ then observed (at 132):

"I would also venture to think that if the native country regime is such that it can be established that, even without any actual activity on the applicant's part, there is a sufficient chance of his being persecuted should he engage in certain political activities in his native country, then serious questions arise as to whether it is compatible with this country's international obligations to return him there."

(Emphasis added.)

35. An appeal from the judgment of Lee J in Mohammed was dismissed: see Minister for Immigration & Multicultural Affairs v Mohammed [2000] FCA 576. In the Full Court Spender J observed (at para 2) that the reasons of Lee J were consistent with the judgments in Danian. Spender J concluded (at para 10) that whether or not applicants for refugee status "engineered" the circumstances on which they relied in their application, the "central question" to be determined remained that formulated by Lee J. Any conduct engaged in deliberately to bolster the application was "merely one aspect that has to be considered" in answering that question (at para 15). French J surveyed a number of authorities and writings, including Danian, and reached substantially the same conclusion. His Honour said (at para 45):

"There will be cases in which a deliberate act, expressive of a particular political opinion will give rise to a risk of persecution that supports a well-founded fear for the purposes of the Convention. Good faith will not necessarily have any part to play in such a case. ... There may be a case in which a person genuinely holds an opinion which would attract persecution if known to the country of origin and who deliberately draws that opinion to the attention of authorities in that country to crystallise or demonstrate the basis for the fear which is asserted. All of these reasons may be consistent with the existence of a well-founded fear of persecution, albeit it is enhanced or even brought into existence by the conduct in the country of residence. Given the freedoms guaranteed under the Universal Declaration of Human Rights and other international conventions, it could not have been consistent with the purpose of the Refugee Convention to require that persons claiming to be refugees be deprived of their fundamental human rights and freedoms in the country from whom they are seeking protection."

(Emphasis added.)

36. Approximately one week after its judgment in Danian was delivered the Court of Appeal gave judgment in Iftikhar Ahmed v Secretary of State for the Home Department (unreported, Court of Appeal of England and Wales, 5 November 1999) ("Ahmed"). Ahmed involved claims as to future conduct which bear some resemblance to those of the appellant in the present case. In Ahmed it was found that the appellant, a Pakistani national of Ahmadi faith, had been persecuted in his local area by reason of his religion. The IAT, however, determined that internal flight within Pakistan was open to the appellant. The IAT stated:

"Much was made by the [appellant's] representative of the [appellant's] urge to speak out and to spread the word of the Ahmadi faith. Such conduct, we were told, would render him liable to persecution wherever he goes in Pakistan. We do not consider it unreasonable for him, on his return to Pakistan, to make some allowances for the situation in Pakistan and the sensitivities of others and to exercise a measure of discretion in his conduct and in the profession of his faith."

(Emphasis added.)

37. In the Court of Appeal, Simon Brown LJ (with whom the other judges agreed) considered the implications of Danian for claims based on future conduct such as that in Ahmed. His Lordship concluded that, even if the conduct attracting persecution was yet to occur or had been founded in bad faith, it was an aspect of the applicant's claim that the tribunal must address in answering the ultimate question whether, if returned, the applicant faced a real chance of persecution. His Lordship stated:

"Essentially what Danian decides is that in all asylum cases there is ultimately but a single question to be asked: is there a serious risk that on return the applicant would be persecuted for a Convention reason? If there is, then he is entitled to asylum. It matters not whether the risk arises from his own conduct in this country, however unreasonable. It does not even matter whether he has cynically sought to enhance his prospects of asylum by creating the very risk on which he then relies - cases sometimes characterised as involving bad faith. When I say that none of this matters, what I mean is that none of it forfeits the applicant's right to refugee status, provided only and always that he establishes a well-founded fear of persecution abroad. Any such conduct is, of course, highly relevant when it comes to evaluating the claim on its merits, ie to determining whether in truth the applicant is at risk of persecution abroad. An applicant who has behaved in this way may not readily be believed as to his future fears.

 True it is that Danian was a decision about the effect of conduct in this country on an applicant's claim to be a refugee by reason of events which happened after his arrival here [...]. Here, by contrast, the conduct in question by definition will not have occurred and indeed will not occur if asylum is granted. But I cannot see how this consideration avoids the need to address the critical question: if returned, would the asylum seeker in fact act in the way he says he would and thereby suffer persecution? If he would, then, however unreasonable he might be thought for refusing to accept the necessary restraint on his liberties, in my judgment he would be entitled to asylum.

I would suggest, indeed, that this case is a fortiori to Danian. Danian postulates that refugee status may be won by someone creating for himself, by conduct in this country, a risk of persecution abroad. No such cynicism or bad faith is involved in this appellant's case. He says merely that he would not - perhaps could not - refrain from doing that for which he would suffer persecution wherever in Pakistan he was. Of course, in a case like this, no one will accept on trust an asylum seeker's assertion that he will if returned act so as to be persecuted rather than moderate his conduct, particularly in a case where most would think that such moderation could reasonably be expected of him. Rather, one is entitled to regard such an assertion as intrinsically self-serving and to examine it with a considerable degree of scepticism and if [...] applicants have not so far done any acts which might lead to prosecution in their own countries, then they can hardly be surprised if, as in those two cases, their claims are rejected."

(Emphasis added.)

38. These cases, which reflect a common approach to the interpretation of a convention to which Australia and the United Kingdom are both parties, are determinative of the issue we are presently considering. They make it clear that questions such as those that are said to have arisen in the present matter are to be resolved by the practical operation of the words of Article 1A of the Convention. Putting to one side the issue of "bad faith" (which does not arise in this case and as to which differences of opinion have been expressed, particularly concerning the ratio of Somaghi and the related case of Heshmati v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 123), the recent cases in England and in this Court stand for the broader proposition that possible future conduct, including a so-called "spontaneous voluntary expression of political opinion", can provide an acceptable basis for a presently existing and well-founded fear of persecution for a Convention reason. As the judgments point out, claims based upon an asserted present fear consequent upon predicted future conduct will require very close scrutiny. They may well be treated with scepticism and may well fail at more than one critical point. But to accept that is to do no more than recognise the difficulty of the task that often faces those who have to assess a person's claims to be a refugee.

39. There is, however, nothing fanciful about the idea of people with strong religious or political convictions having a present fear of persecution founded upon apprehensions of what they may do and what may happen to them if they come face to face with repression. The long and relentless history of religious persecution provides examples of people of all faiths who, in the face of certain reprisal and even torture and death, have been unable or unwilling to accept the repression of their beliefs and practices. In times of religious change particularly, there are numerous examples of people who suffered extreme but predictable persecution for adhering to the beliefs and practices of the "old" religion. The history of political persecution also provides examples in abundance of people who have felt compelled to speak out in the direct face of oppression.

40. Reflection upon the different ways in which individuals may react to oppression suggests that it is undesirable to draw a line between the fear of persecution founded upon the consequences of predicted "insuppressible" behaviour on the one hand and a fear of persecution founded upon predicted "voluntary" behaviour on the other. The problems of proof will differ in every case but ultimately the same principle applies: the questions are to be resolved by the practicable application of the words of the Convention.

41. The approach to a claimed fear of persecution based upon future conduct indicated by the cases to which we have referred need not, and of course should not, involve mere speculation. It is true, as the learned primary judge observed, that the language of the Convention definition does not extend to asylum-seekers who have no foundation for their fear - only fear that if they are returned to their country of nationality, and if they do something else, they will suffer persecution. In some cases it would be perfectly true to say, as the trial judge did, that:

"A fear of persecution based only on what may be the unspecified reaction of others to unspecified future conduct of the asylum-seeker is no more than conjecture or surmise"

In other cases, however, evidence leading to conclusions about the likelihood of future conduct and the reaction to it may be found to provide a firm basis for a fear of persecution.

42. A determination of issues that involve both the assessment of subjective beliefs and related prediction of future behaviour may well be especially difficult, although assistance may be found, as the cases show, in evidence of past behaviour. As Farquharson LJ observed in Ahmad (see para 29 above) much will depend upon the facts of the case and the evidence of the strength and history of the particular individual's political or religious (or other) conviction. Notions of "reasonableness" have a role to play too, but the proper role of "reasonableness" is, we consider, a role in the process of determining questions of future behaviour. In some cases - and perhaps in many - it may be entirely appropriate to proceed upon the footing that a person will in fact act "reasonably" to avoid harm and will, indeed "reasonably" modify his or her conduct so as to avoid the risk of persecution. Reasonableness may be used in an appropriate way and in appropriate cases to predict what may happen. It is altogether a different matter to work on the assumption that a person with a strongly held religious belief should act "reasonably" and compromise that belief to avoid persecution; such an approach would be quite contrary to the humanitarian objects of the Convention. To this extent we would depart from the primary judge's view that the Tribunal can assume that an applicant for refugee status would, on return to his or her home country, take reasonable steps for his or her own protection. While it may be appropriate to make such an assumption in some cases, it might well involve a breach of the obligation against refoulement to assume so in others. Again, much will depend on the circumstances of the particular case.

43. Counsel for the appellant raised another issue relating to future conduct. He submitted that denial of a fundamental human right - in the present case, freedom of political expression - may in itself amount to persecution for the purposes of the Convention. In the present context, however, these issues are not ones to be considered in the abstract. It is necessary to ask what it is that the person claiming to be a refugee fears, and in what circumstances. Reference merely to the state of affairs existing in the country of nationality will not, of itself, answer the question whether a particular person has a well-founded fear of persecution for a Convention reason. To answer that question it is necessary to consider, as a practical matter, the circumstances of the individual concerned, rather than abstract concepts of what may constitute persecution. To take an example by way of illustration: state-sanctioned repression of a particular religion may not (although it sometimes might) have any impact at all, as a practical matter, upon a person who does not possess any religious belief. If it were asked, in respect of that person, whether he or she had a fear of persecution for a reason connected with religious belief, the answer would very likely be in the negative.

44. The argument advanced by counsel about denial of fundamental human rights does, however, serve to underline the fact that, in the present context, solutions to the difficult questions that arise when future conduct comes into issue are to be found in the practical application of the words of the Convention to the infinitely varying circumstances of individual cases.

45. It follows from what we have said that we disagree with any approach that would necessarily reject the possibility of a well-founded fear of persecution being based upon a future expression of political opinion.

Application to the present case

46. It is now necessary to consider, however, whether these questions truly arise in this case. As we have noted, counsel for the respondent submitted that the possibility that the appellant would express political views if returned to Somalia was referred to before the Tribunal only in submissions and was not directly raised in the appellant's evidence. He said that the appellant had not, for example, given evidence that he would find himself unable to refrain from expressing political opinions if returned to Somalia and that the likelihood of the appellant expressing political opinions in the future was, at the highest, a matter of inference based upon his character as a poet or writer with strong political views. Counsel submitted that, even in this respect the appellant's case failed to sustain any such inference since important elements of what he had said about his writing had been rejected by the Tribunal.

47. The Court should be careful not to take a pedantic approach to the identification of "material" questions of fact but, as the majority pointed out in Singh, materiality for the purposes of s 430(1)(c) is an objective concept. If the Tribunal fails to make a finding of a fact which is, in truth, as a Court subsequently determines, a material fact, then s 430(1)(c) will not have been complied with, even though the Tribunal has recorded its findings in relation to the facts that it did regard as material: see Singh at [47]. However, although materiality will not necessarily depend upon how an applicant chooses to present the issues before the Tribunal, the way in which the matter is presented to the Tribunal may make an issue material: see Singh at [57-60].

48. The material before the Tribunal (in addition to that set out at the beginning of this judgment) in support of the submission that the appellant would engage in future political expression included the following:

* "In 1992 I started writing poetry. I was the only Somalis [sic] student at the university who wrote poetry. I continued with this hobby until 1995. The subject of my poetry was to comment on the sadness of the fighting between the Somali clans and to encourage people to find peace. My poetry strongly criticised the clan system, especially the way people perceived differences in each other based on clan membership which resulted in fighting and war. [...]"

(From para 13 of the appellant's statement in support of his application for a protection visa.)

* "... [E]ducated Somalis with good minds like myself are persecuted because it is clear that any thinking person would align themselves against the madness and the violence of the clan fighting. I do not imagine that the clan leaders would spare my life for one minute if I was returned to Somalia."

(From para 35 of the appellant's statement in support of his application for a protection visa.)

* "It is an unfortunate fact that educated people are a threat to the clan militias and their "new Somalia". People with little education believe that educated people will try to outsmart them with their knowledge. They would rather use their guns against them and eliminate them. The fact that I began to study in Sudan prior to the war in Somalia will also make them think that I was the recipient of special favours from the Siad Barre regime. How else was I able to leave the country and study, they will ask me? The fact that I am from a minority clan and that I have been educated overseas together with the implication that I have been linked to privileges from the regime will be a serious problem for me."

(From para 8 of the second statement in support of the application.)

* "11. [...] Whilst I was studying in Malaysia, a Malaysian man who was working for a telecommunications company in Malaysia and also had business with Somalia was killed in Somalia. [...] The man's body was returned to Malaysia for burial. Hassan Aidi, the brother of Hussein Aidid, came to Malaysia with another man called Abdul Qadir, as `officials' of the Somali government. [...]

* 12. A number of the Somali students including myself went to give our consolences [sic] to this man's family. [...] After the formalities, a video of Hussein Aided [sic] giving his condolences to the Malaysian government was shown. He spoke on behalf of the `Somali nation'. I interjected and asked how he could speak on behalf of the Somalian government. Hassan Aided and Abdul Qadir became very angry at me. Hassan Aided took me to a solitary place and warned me. He said that he was aware of me and had noted my name. He said that there would be a suitable action against me at a suitable time and at a suitable place. [...] There is a saying in Somalia that a great man will criticise the system, but not an individual. Whilst I cannot be sure what the result of this incident will be for me, I am sure that I will stand out as a well educated Shikal man who has studied in Malaysia. [...]"

(From paras 11 and 12 of the second statement in support of the application; emphasis added.)

49. At first sight the appellant's argument that there were "material" questions of fact about his future expression of political opinion faces a substantial hurdle in that in the "evidence" before the Tribunal the appellant apparently did not deal with any such basis for his asserted fear of persecution. The submissions made to the Tribunal on the appellant's behalf were, however, very directly based upon the material actually before the Tribunal, including the appellant's statements. The submission dated 1 July 1999 written on behalf of the appellant by the Refugee and Immigration Law Centre Inc in support of his claim to be a refugee was quite explicit in stating that the appellant "speaking out" against the segregation of North West Somalia from the rest, was entirely foreseeable and that "the risks he faces should be assessed on the assumption that he will be a dissident and a critic wherever he is in Somalia" (see above at para 15 and see also para 16). We have already drawn attention to the concluding part of the submission which includes the following:

"Firstly, in our submission the evidence indicates that he will continue to express his views, wherever he is." (Para 16.)

Similarly, the submission made to the Tribunal after the hearing raised directly what was said to be the likelihood that the appellant would continue to express his views were he to return to Somalia and that this would bring him to the attention of local militias (see above at para 19).

50. In approaching the matter in this way we should not be taken to be suggesting that every contention raised in submissions on behalf of an applicant will be "material" for the purposes of the Act. The observations of the Full Court in Singh make it clear that this is not so. In the present case there is, however, a sufficiently stated connection between the assertions about the likelihood of future political activity by the appellant and an asserted fear of persecution for a Convention reason to raise, as a real issue, whether the appellant did have a well-founded fear of persecution for a Convention reason based upon what he might do in the future. Most importantly, the submissions made on the appellant's behalf were evidently rationally based upon material about the appellant and his activities as a writer and poet that was before the Tribunal.

51. The essence, in this respect, of the appellant's case before the Tribunal, as it emerges from the submissions made on his behalf, was that he is a person who would "speak out" and that he should be assessed on the assumption that he would be a dissident and a critic, and a person who would continue to express his political opinions wherever he might be. The case thus put forward on his behalf raised as real questions for consideration, and ones (if resolved in accordance with the appellant's submissions) that were capable in law of leading to a decision in his favour. The questions concerned the existence (or otherwise) of a well-founded fear of persecution for reason of the appellant's political opinion having a foundation in the claimed character or attribute of the appellant as a person who would continue to express his political opinions about the situation in Somalia wherever he might be, including Somalia. These were material questions of fact and the Tribunal, in failing to set out findings about them failed to do what s 430(1)(c) of the Act required in the circumstances, and in so doing failed to act in conformity with s 476(1)(a) of the Act.

52. We should add that the Tribunal's rejection of the appellant's claim to prominence as a poet and writer, its finding that he had not in the past come to the adverse attention of those in power in Somalia and the fact that it did not accept that the appellant's views had been disseminated in Somalia did not transform what would otherwise be a material question into one that was not, in any practical sense, material. Although the Tribunal may well have determined that the past activities provided a guide to what the appellant might do in the future, the questions of fact raised in his case about the future were objectively separate and they required findings, one way or the other. This is not to say, of course, that the findings needed to be elaborate.

53. In these circumstances it is not necessary for us to consider whether an error of law has been demonstrated such as to make out the ground provided for by s 476(1)(e) of the Act.

54. It remains to deal with the submission that the Tribunal failed to make a finding in relation to the contention that the appellant was at risk of persecution merely because he was an intellectual and an educated person. This claim was never developed to any extent, however, accepting that it raised a material issue it was, we consider, sufficiently dealt with by the Tribunal. The Tribunal's reasons include the following passage -

"The Tribunal accepts [the evidence in a DFAT cable] and concludes that the applicant would not be at any risk as a result of any association of his clan with Barre or as a result of any failure to assist others in the early part of the war after 1991. Further whilst it appears that the applicant now has a considerable education, and could be perceived as having been favoured in the days of the Barre regime, this information satisfies the Tribunal that he is not in the category of those who would be sought out now for retribution. The Tribunal would add that it has not seen any evidence that would indicate that the applicant would face any risk if he returns because of the education he has received."

Having regard to the way in which this aspect of the appellant's claim was developed we consider that the Tribunal dealt with this matter sufficiently.

55. It follows, however, from our conclusion about the Tribunal's failure to do what s 430(1)(c) required in the circumstances that the appeal must be allowed. The judgment appealed from should be set aside and instead it should be ordered that the decision of the Tribunal be set aside and the matter referred to the Tribunal for determination according to law. The respondent must pay the costs of the application for an order of review and the costs of the appeal to this Court.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black, Justice Ryan and Justice Moore.

Associate:

Dated: 16 October 2000

Counsel for the appellant:

Mr J A Gibson

 

 

Solicitor for the appellant:

Victoria Legal Aid

 

 

Counsel for the respondent:

Mr S G E McLeish

 

 

Solicitor for the respondent:

Australian Government Solicitor

 

 

Date of Hearing:

15 May 2000

 

 

Date of Judgment:

16 October 2000

 

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