Case: SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 , 170 FCR 515
Outcome: cited
provision, it has repeatedly been acknowledged, " suffers from a lack of clarity ": SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 , 170 FCR 515. Spender, Edmonds and Tracey JJ there usefully summarised as follows some of the less contentious matters involved in the construction of that provision: [10] In a series of cases decided under s 91R(3) , it has been common ground that the subsection suffers from a lack of clarity. Before turning to the difficulties to which the drafting gives rise, it will be convenient to mention some uncontentious matters relating to the construction of the subsection. First, the subsection is cast in imperative terms: it obliges a decision maker to disregard conduct in Australia by an applicant for a protection visa subject to the proviso in paragraph (b). Secondly, the stipulation that a decision maker must "disregard" an applicant's conduct in Australia requires that such conduct not be brought into consideration when determining whether the applicant has a well-founded fear of being persecuted for a Convention reason. Thirdly, although the Explanatory Memorandum and the second reading speech both indicate that s 91R(3) of the Act was introduced to deal with sur place claims, it is not, in terms, so confined. Conduct in Australia which is undertaken in order to attract the adverse attention of the authorities in the applicant's country of origin, would support a sur place claim. Other types of conduct may not. Section 91R(3) obliges decision makers to disregard "any" conduct by the applicant in Australia. That requirement is qualified by paragraph (b) which provides scope for an applicant to satisfy the decision maker that he or she has engaged in the relevant conduct "otherwise than for the purpose of strengthening the person's claims to be a refugee ...". Conduct in Australia which attracts adverse attention from a foreign government for Convention related reasons would strengthen a person's claim to be a refugee. So too, however, would conduct in Australia which, in an evidentiary sense, rendered it more likely that an applicant had engaged in conduct in his or her home country which led to persecution in that country. Both types of conduct may be engaged in in Australia. ... Decisions of this Court were the catalyst for the introduction of s 91R(3). Those decisions held that a person could become a refugee as a result of conduct, deliberately pursued in Australia, to attract the adverse attention of the authorities in his or her country of origin: [2008] FCAFC 105 at [24] . Special leave to appeal, it should be noted, has been granted: Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO [2008] HCATrans 404. It is unnecessary to resolve a third contention advanced by the Minister. This contention was that s 91R(3) is not engaged where an applicant does not seek to rely on conduct in Australia to support a well-founded fear of persecution (cf SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648 at [30] per Jacobson J; SZLQX v Minister for Immigration and Citizenship [2008] FCA 1286 at [21] per Jacobson J) or where evidence of conduct is adduced or called by an applicant ( SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 at [16] and [21] to [23] per Spender, Edmonds and Tracey JJ). The contention was that the present Appellant did not seek to rely upon the 1999 or 2000 conduct and did not adduce evidence of such conduct.