Case: Minister for Immigration and Multicultural Affairs v Mohammed [2000] FCA 576 ; (2000) 98 FCR 405
Outcome: cited
True it is that the example may be extreme and that hard cases can make bad law. True it is also that s 417 provides, at least in theory, a means for dealing with such hard cases (though its practical application seems in recent years to have been uncertain, and a parliamentary preference for the fiat of the Minister over a process that includes recourse to an independent tribunal should not readily be inferred). Nevertheless, the background to the enactment of s 91R(3) was the practice that arose of refugee status applicants participating in demonstrations of protest against the governments of their countries of nationality with the sole or at least dominant purpose of manufacturing evidence for their applications. Decisions of this Court may unintentionally have encouraged this practice, see eg Minister for Immigration and Multicultural Affairs v Mohammed [2000] FCA 576 ; (2000) 98 FCR 405. Such at least was the Minister's view in his Second Reading speech. He said: I am also concerned about court decisions that have recognised the claims of applicants who have deliberately set out to contrive claims for refugee status after they have arrived in Australia. Such action, deliberately seeking to attract hostile attention from a home country government, makes a mockery of an applicant having a real fear of persecution. The legislation will make it clear that any actions by a person taken after arrival in Australia will be disregarded unless the minister is satisfied that the actions were not done just to strengthen claims for protection. The convention was not intended to provide protection to applicants who contrive claims in second or third countries and who have no other basis for claims to refugee status. However, in exceptional cases where a person has acted purely to strengthen their claims, and so as a result needs some protection, my ministerial intervention powers will allow me to intervene if it is in the public interest. (Emphasis added.) 35 In my opinion the problem referred to can be adequately overcome, and the real mischief that concerned the legislation's framers met, by interpreting "the purpose" as meaning "the dominant purpose". The Second Reading speech gives a sharper account of the mischief the subsection was aimed at than the Explanatory Memorandum and it supports the approach I favour. The context generally speaks against giving the statute an over-literal interpretation. There is some textual, as well as contextual, support in the statute for such an approach. The statutory test is whether the person concerned "engaged in the conduct otherwise than for the purpose of strengthening" his or her claim to refugee status. The use of the word "the" rather than "a" suggests that there will be a single purpose that can be regarded as "the" purpose. In a real world where behaviour commonly has multiple motivations and purposes, to fulfil the statutory notion it would be sufficient to read "purpose" in the way I propose (but also in no lesser way). That is obviously not to say, as the appellant would have it, that wherever there are multiple purposes, no matter how strong the purpose of simply aiding one's case, s 91R(3) will not apply. I therefore think that the draconian construction favoured in the court below was erroneous. 36 That error, however, does not in my opinion avail the appellant. In the first place, while his Honour may have erred, it is by no means clear to me that the Tribunal did so. 37 Secondly, as the respondent points out, the Tribunal affirmatively found that it was "not satisfied that the applicant engaged in [the relevant] conduct ... otherwise than for the purpose of strengthening his refugee claims" (emphasis added). That is, s 91R(3) , construed as I conceive that it should be, would still require that conduct to be disregarded. In the necessary exercise of discretion as to whether a constitutional writ should go, I would for that reason decline the relief sought. 38 Again, on a correct understanding of the Tribunal Member's reasons and findings, if there were any error by the Tribunal in understanding s 91R(3) it was, in my opinion, quite immaterial here.