Re Ramazan Ali Babaei Somaghi v Minister of Immigration, Local Government and Ethnic Affairs

(1991) 31 FCR 100; [1991] FCA 389

Federal Court of Australia

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Interrogate

Catchwords

1. Administrative Law
2. › Natural justice
3. › Procedural fairness
4. › Right to be heard
5. › Adverse conclusions drawn from applicant's own conduct
6. › Whether decision maker required to give opportunity to respond to adverse finding on bona fides
7. › Whether decision maker required to disclose mental processes or provisional evaluation of material
1. Immigration
2. › Refugee status
3. › Determination under Convention
4. › Refugee sur place
5. › Whether person who deliberately creates circumstances to justify refugee claim entitled to refugee status
6. › Whether good faith requirement applies
7. › Migration Act 1958 (Cth), s 6A(1)(c)
8. › Convention relating to the Status of Refugees 1951, Art 1A(2)
1. Immigration
2. › Refugee status
3. › Procedural fairness in refugee status determination
4. › Opportunity to respond to adverse credibility finding
5. › Significance of legal representation
6. › Migration Act 1958 (Cth), s 6A(1)(c)

Quick Take

Where a decision maker proposes to make an adverse finding about an applicant's bona fides based on the applicant's own conduct, procedural fairness may require that the adverse finding be communicated to the applicant for response, particularly where the attribution of bad faith is not the obviously natural response to the circumstances. Actions taken outside the country of nationality for the sole purpose of creating a pretext for invoking a claim to well-founded fear of persecution should not support an application for refugee status. The question of whether a good faith requirement applies to refugee sur place claims was addressed but not definitively resolved, with the Court accepting on a provisional basis that such a requirement exists.