NALZ v Minister for Immigration & Multicultural & Indigenous Affairs

(2004) 140 FCR 270; [2004] FCAFC 320

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Interrogate

Catchwords

1. Immigration
2. › Refugees
3. › Protection visa
4. › Well-founded fear of persecution
5. › Imputed political opinion
6. › Whether asylum seeker can be expected to modify behaviour to avoid creating perception of membership of protected class
7. › Whether S395/2002 principles confined to actual membership of Convention class
8. › Migration Act 1958 (Cth), s 36(2)
1. Immigration
2. › Refugees
3. › Protection visa
4. › Persecution
5. › Distinction between legitimate law enforcement and persecutory harm
6. › Whether harm exceeding acceptable bounds of criminal investigation constitutes persecution for Convention reasons
7. › Refugees Convention, Art 1A(2)
1. Immigration
2. › Refugees
3. › Protection visa
4. › Modification of behaviour
5. › Whether requiring applicant to cease lawful activity to avoid imputation of political opinion constitutes denial of Convention protection
6. › Appellant S395/2002 v MIMIA [2003] HCA 71

Quick Take

The majority held that the S395/2002 principle (that asylum seekers cannot be required to modify behaviour to avoid persecution) does not apply where the applicant is not a member of a protected Convention class but is merely suspected of illegal conduct through trading activities. A distinction exists between cases where behaviour modification is required to avoid persecution for a Convention reason and cases where it is required to avoid creating a wrongful perception of membership of a protected class. However, [name withheld] dissent provides a strong contrary argument that S395/2002 applies equally to imputed political opinion cases, and the question remains open for higher court resolution.