• Tessa Meyrick

12 January 2010In APO's High Court Watch series, Tessa Meyrick looks at the Howard government’s legislative legacy in the context of refugee law

TALK of an “Indonesian Solution” to the 78 Sri Lankan asylum seekers on the Oceanic Viking has brought a sharp reminder that the shadow of Howard’s refugee policy still looms large over the Australian political landscape. But the legacy of the Howard government has also recently made itself felt in a quieter manner before the High Court in the cases of Minister for Immigration and Citizenship v SZJGV and Minister for Immigration and Citizenship v SZJXO [2009] HCA 40.

These cases, heard together, deal with s91R(3) of the Migration Act 1958, which prohibits the Minister from taking into account an asylum seeker’s conduct within Australia when assessing their claim for protection if the Minister deems that the conduct was engaged in purely for the purpose of strengthening their application.

The Migration Act 1958 entitles a person to an Australian protection visa if that applicant is a non-citizen who meets the definition of a “refugee” under the 1951 Convention Relating to the Status of Refugees (the “Refugee Convention”). That is, a person who is outside his/her country of origin and “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” is unable or unwilling to avail himself of the protection of his country of nationality.

It is generally accepted that a person can acquire refugee status where, as a consequence of events that have happened since they left their country of origin, they now have a well-founded fear of persecution on return to that country. Such claims are called refugee sur place claims. Typically, a person will become a refugee sur place where the conditions of their country of origin change after their departure. For example, there may have been a change in government, or a change in political system entirely. A person may also become a refugee sur place as a result of their own conduct after departure, particularly if that conduct attracts the negative attention of the home authorities.

In the midst of the Tampa crisis in September 2001, the Howard government passed a series of amendments to the Migration Act. Most of the surprisingly scant attention given to the Migration Legislation Amendment Act (No 6) 2001 was focused on two issues: firstly, the amending Act allowed the Minister to make adverse inferences about a refugee claim in circumstances where an applicant fails to produce identification documents; and, secondly, the Act more strictly defined the term “persecution” – the central criteria for eligibility for protection under the Refugee Convention.

Nestled among these important amendments was the introduction of s91R(3) into the Migration Act, dealing with sur place refugee claims. The provision directs that, in determining whether a person falls within the definition of “refugee” under the Convention, the Minister must “disregard any conduct engaged in by the person in Australia unless…the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee...”.

It is a wordy, relatively minor provision in the scheme of things – particularly considering the context in which it came about – but it is an important one, nonetheless. Since becoming law, s91R(3) has been interpreted in a number of different ways. It is clear that the Minister cannot use conduct engaged in for the purpose of strengthening a claim as grounds for making a positive finding of refugee status, but the main point of contention is whether the Minister can nevertheless use the same conduct to make an adverse finding. A majority of the High Court has just decided that he can, but only once they agreed to depart almost entirely from the literal and grammatical meaning of the provision.

History of s91R(3)

Prior to the introduction of s91R(3), different views had developed about the extent to which an applicant who has deliberately created circumstances within Australia for the purpose of substantially justifying their claim under the Convention is entitled to recognition as a refugee sur place. Concern for the possibility of abuse led some courts to require an element of good faith before the applicant’s conduct within Australia would be taken into account. In other cases, bad faith, while considered relevant to credibility, was not considered to automatically disentitle an applicant to protection.

The first of these views gained momentum largely on the back of the judgment of Justice Gummow in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389. The applicant in this case was an Iranian national who arrived in Australia on a false passport in 1989 and subsequently sought protection as a refugee. Somaghi’s claims were found to lack credibility and his application was rejected in November 1989. In December, Somaghi’s solicitors applied to the Department to have his case reconsidered and, on the same day, a letter signed by Somaghi was sent to the Iranian Embassy in Canberra containing statements critical of the Iranian government. The issue now became whether Somaghi had become a refugee sur place by reason of his action in sending the letter to the Iranian Embassy. Owing largely to the timing of the letter, the renewed application was rejected by the Minister on the basis that “the communication was made for the sole or dominant purpose of enhancing the claims [of the appellant]”.

When the appeal of the Minister’s decision finally came before the Full Court of the Federal Court, Justice Gummow examined the reasons for the decision provided by the Minister, as well as the findings made by Justice Lockhart in the first appeal. His Honour concluded that “actions taken outside the country of nationality… which were undertaken for the sole purpose of creating a pretext of invoking a claim to well-founded fear of persecution, should not be considered as supporting a claim for refugee status”, since “[t]he fear of persecution, to which the Convention refers, in such cases will not be ‘well-founded’”. This quote from Justice Gummow’s judgment was subsequently used in a number of cases to support the view that an application for sur place refugee status was conditional upon there being an element of good faith in the appellant’s conduct and that any conduct within Australia designed purely to trigger the Convention criteria would be disregarded.

This interpretation of Justice Gummow was challenged, however, in Minister for Immigration and Multicultural Affairs v Mohammed [2000] FCA 576. Mohammed was a Sudanese national who came to Australia by boat from Malaysia in 1997. Two months after his arrival, Mohammed applied for refugee status, claiming that he had refused to undertake compulsory military service in Sudan because he was an active or known opponent of the Sudanese Government and a member of the opposition Umma party. The Minister rejected Mohammed’s application for refugee status on the basis that there were insufficient facts on which to decide whether he was a refugee. Since his Sudanese passport had apparently been lost or destroyed at sea, “there was no objective evidence as to his identity”. This decision was later affirmed by the Refugee Review Tribunal, which accepted that Mohammed was a Sudanese national, but expressed doubts as to whether he was a member of the Umma party and found that, even if he was, he did not have the sort of political profile that would be of interest to the Sudanese government.

The appeal before the Federal Court came about because, after the Tribunal’s decision, Mohammed made a further application for a protection visa on the ground that new circumstances had arisen since his initial application was made and rejected. These new circumstances were that Mohammed had written a letter to one of his brothers in Sudan explaining that he was in a detention centre in Australia, that he had applied for refugee status and been refused, that he had refused military service in Sudan, and that he had engaged in a range of political activities while in Jordan in opposition to the Sudanese government. The letter was intercepted by the Sudanese Securities Authority, resulting – on Mohammed’s account – in the arrest and repeated interrogation of his brother.

The Minister once again refused Mohammed’s application and he once again appealed to the Tribunal. But the Tribunal was not convinced that he had “been acting bona fide”, and found instead that Mohammed had “been acting solely out of a desire to put himself in a position where he could claim to be endangered”. Following the dominant understanding of Justice Gummow’s judgment in Somaghi, the Tribunal found that since the letter represented action “undertaken for the sole purpose of creating a pretext of invoking a claim to a well-founded fear of persecution”, it should not be considered as supporting Mohammed’s application.

For Justice Lee of the Federal Court, however, the imputation of a “good faith” requirement into the Convention criteria was without legal or ethical justification:

<BLOCKQUOTE>[R]ecognition 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.</BLOCKQUOTE>

On appeal, the Full Court agreed with Justice Lee’s finding, commenting that whether or not the circumstances were engineered by the applicant and whether or not they were engaged in in good faith is beside the point: what matters is that the applicant has a genuine fear that they will be persecuted and that, if returned their country, there was a real risk that serious harm would befall them. The Full Court agreed with Justice Gummow that “creating a pretext of invoking a claim to well-founded fear of persecution” would negate evidence that such a fear was genuine, but added that “conduct engaged in for the purpose of establishing the circumstances which might endanger an applicant upon their return does not always involve a ‘pretext’”. If, for example, Mohammed’s letter was perceived by the Sudanese government as merely opportunistic and did not therefore give rise to any real risk of persecution, it would be fair to take the letter as creating a mere “pretext” for his claim. But the fact that his conduct was perhaps designed purely for the purposes of triggering the Convention criteria becomes irrelevant once it is established that he had in fact effectively (albeit, deliberately) put himself at risk of persecution if he was to return to Sudan.

Justice Lee’s view is generally believed to be more consistent with what international refugee law would demand, but Australia’s commitment to the Convention resides in the Migration Act, and it is the wording of that Act that is of central concern in cases.

The present case

There is little doubt that when s91R(3) was included among the amendments to the Migration Act made during the Tampa crisis the Howard Government was attempting to resolve the confusion borne out of the judgment in Mohammed. Nevertheless, by the time the present case went before the High Court, it was clear that the amendments brought the courts no closer to a uniform understanding of how to deal with conduct designed to create sur place refugee claims.

SZJGV and SZJXO are both citizens of China who arrived in Australia in January and April 2006 respectively, and both claimed to have been practitioners of Falun Gong since 1997. The Minister rejected both claims and appeals were separately made to the Tribunal.

In SZJGV’s case, the Tribunal determined that he had never been a Falun Gong practitioner in China. It found that SZJGV lacked the kind of detailed knowledge of Falun Gong that would be expected from someone practising since 1997 and was unpersuaded by evidence of his practice in Australia, which began after the Minister’s decision, but before the case reached the Tribunal. What is crucial to the interpretation of s91R(3) is that the Tribunal, in rejecting the appeal, said that SZJGV’s evidence overall showed a tendency to exaggerate. The Tribunal continued: “In reaching this view the Tribunal has had regard to his lack of knowledge about Falun Gong, his recent attempts to construct a profile of a Falun Gong practitioner for himself and the contradictions, inconsistencies and gradual shifts in his evidence regarding his protest activity in China.”

In other words, the Tribunal refused to take into account SZJGV’s Falun Gong practice within Australia for the purpose of granting him a protection visa, but nevertheless used the same conduct to draw the inference that his evidence lacked credibility and that his reports of persecution in China were therefore not to be believed.

The Tribunal’s treatment of SZJXO ‘s case was much the same. In evidence, SZJXO submitted to the Tribunal photographs of himself participating in demonstrations in Australia, protesting China’s treatment of Falun Gong practitioners. But the Tribunal thought SZJXO’s claims lacked credibility and believed that his involvement in Falun Gong since his arrival in Australia showed only that he was trying to strengthen his claim under the Convention. In its conclusions concerning the risk of persecution, however, the Tribunal found that, given this motive for engaging in Falun Gong practice within Australia, there was no reason to believe he would come to harm if returned to China. That is, SZJXO’s conduct within Australia was to be disregarded in granting a visa, but not in denying one.

Both respondents ultimately appealed to the Federal Court arguing that if s91R(3) required the Tribunal to disregard an applicant’s conduct in Australia in determining whether to grant a protection visa, it must be disregarded for all purposes. The Full Court agreed with their argument and the Minister brought the present appeal to the High Court.

High Court decision

A majority of 4:1 (with Justice Hayne in dissent) found that the Tribunal was correct in its application of s91R(3). Restoring the predominant interpretation of Somaghi, the majority endorsed the Tribunal’s disregard of conduct within Australia in granting a protection visa, but at the same time supported the use of the same conduct to draw adverse inferences with regard to the applicant’s credibility. Referring to the Second Reading speech for the 2001 amendment, Justices French and Bell observed that the legislative purpose of the provision was to  “ensure that an applicant for a protection visa in seeking to demonstrate a well-founded fear of persecution… cannot place any reliance upon, nor gain any advantage from, conduct engaged in within Australia for the purpose of strengthening his or her claim to meet the criteria of classification as a refugee…”.

Likewise, Justices Crennan and Kiefel held that the section “should not be read as requiring that evidence about the person’s conduct be disregarded for all purposes connected with an assessment of their claim” – only for the purpose of strengthening it. It followed, from the reasoning of the majority, that the Minister’s decision to reject the visa applications should be upheld.

In view of the political context in which the amendments to the Migration Act were made, it is perhaps not surprising that the majority of the High Court interpreted s91R(3) in this way. Nevertheless, there are aspects of the reasoning of the Court that disclose important things about the legislative style of the Howard Government and the legacy that this has left. Section 91R(3) is, on its face (and particularly sitting next to the other amendments included in Bill), a relatively minor provision. But the section has some fairly serious implications, not least of which is that it radically limits the way the Minister (and therefore the Court) can interpret evidence put forward by the applicant. Given this, it is worth pointing out that there was a remarkable lack of legislative oversight as the Bill moved through Parliament.

The Howard Government and parliamentary process

In at least cursory recognition that the provisions had far-reaching implications, the Bill was referred to the Legal and Constitutional References Committee (LCRC) by the Senate on 30 August 2001, for report and inquiry by 16 October the same year. The LCRC asked for and received written submissions from the public and planned to hold two oral hearings. But only one of these oral hearings went ahead. Owing to the apparently ”urgent” need for the amendments to be made (think: Tampa and the looming Federal election), the Bill was presented to the Senate before the second hearing could take place. As a result, the report by the LCRC is merely a list of those parties who made submissions. Nothing is said about the content of the Bill and no recommendations are made.

This act of pushing the amending Act through the Senate before the LCRC had an opportunity to properly review it is indicative of the contemptuous attitude on the part of the Howard Government towards parliamentary process and, as the reasoning of the High Court makes clear, it left the amending Act in a bit of a mess.

All members of the High Court pointed out the lack of clarity in the drafting of s91R(3) – a flaw that may had been remedied if the LCRC had been given full chance to do its job. Chief Justice French and Justice Bell, in their joint judgement, commented that s91R(3) “operates as an awkwardly framed command to the world by the use of ‘disregard’ in an imperative sense” and added that avoiding an irrational result may require a departure from “the literal or natural or ordinary meaning of the text”. Justices Crennan and Kiefel also noted that there had been a series of cases in both the Federal Court and the Federal Magistrates Court in which it had been common ground that s91R(3) suffered from a lack of clarity.

All four Justices in the majority found a way to overcome the supposed irrationality of a broad reading of s91R(3) by turning away from the actual terms of the provision and focussing instead on what they understood to be parliamentary intent. For Justices Crennan and Kiefel, the error made by the Federal Court in Mohammed – and the cases that followed it – was the fact that “it concentrated upon [the provision’s] language in determining the extent of its operation”.

It is by no means unusual for the Court to have regard to parliamentary intention when construing a legislative provision, particularly when a literal interpretation of the provision would produce absurd results. As Justice Hayne points out: “the manifest intention of a statute must not be defeated by too literal an adhesion to its precise language”. But it is not absolutely clear in this case that a literal reading of s91R(3) would lead to such absurdity.

This is not to mention the fact that the object or purpose of an Act is generally called upon in aid of broadening meaning, whereas, in this case, the method works to actually narrow it. Further, referring to parliamentary intent is most often used as a way of complementing the literal reading of a provision, not completely replacing it.
It is for this reason that Justice Hayne dissents from the majority. Taking the ordinary meaning of the words, Justice Hayne sates clearly that “[t]he Drafter did not frame the direction to disregard conduct in Australia as a prohibition against using that conduct in aid of one outcome of the determination rather than another”. His Honour goes on: “It is neither capricious or irrational to disregard certain matters whether they would work for or against the visa applicant”. For Justice Hayne, then, there can be no basis for assuming that a literal reading of the provision should be abandoned.

While Justice Hayne’s adherence to the more conventional method of statutory interpretation is compelling, one cannot help but feel that the majority’s understanding of the provision is the more convincing of the two. This is particularly so having mind of the Tampa crisis and the Howard Government’s platform of border protection during the 2001 Election. The point to be made here is that this is not the only example of the Howard Government rushing significant legislation through Parliament without first allowing key stakeholders – let alone the members of Parliament themselves – an opportunity to review its content. In 2005, for example, the Anti-Terrorism Act [No 1] 2005 was expedited through Parliament on the grounds that certain amendments needed to be made urgently to enable police to move on a number of suspected terrorists in Melbourne and Sydney. This is despite the fact that the police investigation had been in train for nearly 18 months by this point and that the Victorian Chief Commissioner subsequently conceded that the amendments were not critical to the Victorian arrests.

Such contempt for parliamentary process is concerning enough when we think of the impact it has on the depth of analysis legislation is subject to. But it becomes additionally concerning when, as a consequence of rushed drafting, the High Court is effectively required to completely ignore the actual terms of a provision in order to give it meaning. Notwithstanding that the majority of the High Court probably got the interpretation right in this case – ignoring, for the moment, the merits or otherwise of Howard’s refugee policy – they should not have had to re-write the Migration Act in order to get there. •

Tessa Meyrick is researcher with the Gilbert + Tobin Centre of Public Law at the University of New South Wales

Other articles in the High Court Watch series

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