- Program in Refugee and Asylum Law
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May 25, 2021
The 1951 Refugee Convention and the 1967 protocol which updated the Convention defines refugee. Article 1 of the Convention defines a refugee as “a person who is outside his/her country of nationality or habitual residence; has a well-founded fear of persecution because of his/her race, religion, nationality, membership in a particular social group or political opinion; and is unable or unwilling to avail himself/herself of the protection of that country, or to return there, for fear of persecution.” This comment focuses its discussion on the first element of the refugee definition: the alienage requirement that a person be located outside their country of nationality or habitual residence.
There is a common belief that all refugees are individuals who flee their home because of some well-founded fear of persecution. But what about those individuals who only later fear persecution after they have already left their home country? That is to say, the conditions in their home country did not compel them to flee in the first place, and they only later had reason to stay away. Refugees “sur place”are people who only become refugees after leaving their country of nationality. There are two main avenues through which people become refugees sur place: first, because of events that happened in a person’s home countries since they left, and second, because of the person’s actions outside of their home countries. The second category has caused controversy. Refugees sur place clearly fit within the definition of refugee in the Refugee Convention Relating to the Status of Refugees, but the second subset of sur place claims have spurred disagreement among courts.
It is clear that both categories of refugees sur place fit within the Convention’s refugee definition because Article 1A(2) of the Convention defines a refugee as someone who “is outside the country of his nationality.” Although it is generally accepted that the Convention covers refugees sur place, there are different approaches to addressing sur place claims where applicants created the circumstances that made them eligible for protection under the Convention, particularly those applicants who did so with the sole purpose of gaining protection. This comment examines a case that was decided in New Zealand, Re HB, which addresses a refugee sur place applicant who created the circumstances that rendered them a refugee sur place. Using Re HB and other cases, this comment considers different countries’ approaches to the second category of refugees sur place, determines whether the approaches comply with the Refugee Convention, and in turn, uses this analysis to suggest how Re HB should have been decided.
Facts of Re HB
In Re HB, the applicant, HB, was a citizen of Iran who was applying for refugee status in New Zealand. He claimed that on a recent trip to Japan, he had purchased a copy of the book The Satanic Verses by Salman Rushdie and that he had then taken it to Iran. He claimed that when he was in Iran, he got the book translated. He further claimed that, after he had obtained the translation, he was stopped by the Komiteh and arrested. He claimed he was able to escape by bribing the guards, at which point he fled to Pakistan. He applied for refugee status in New Zealand but the Court denied his claim as it said he lacked credibility. HB then went to the media with his story. He was interviewed by a local newspaper and a video interview was also conducted. Through these interviews, the applicant’s name, the applicant’s family members’ names, and his fabricated story about fleeing Iran because of his possession of The Satanic Verses were disclosed. In his subsequent application, HB relied on the argument that “[h]e [was] a person who . . . falsely claimed to . . . be in possession in Iran of Salman Rushdie’s The Satanic Verses” and that “[t]here [was] a real chance that the Iranian authorities . . . [were] aware of this,” which would suggest that he has a well-founded fear of persecution for a Convention reason.
In Re HB, the court held that that even if the applicant otherwise met the elements of the refugee definition, including establishing a well-founded fear of persecution, he would be ineligible for refugee status because he acted in bad faith when he “deliberately created circumstances in the country in which he was applying for refugee status exclusively for the purpose of subsequently justifying a claim for refugee status.”
Background on Countries’ Approaches to Refugees Sur Place
Since this comment focuses on sur place applicants who created the circumstances that made them eligible for protection with the sole purpose of gaining refugee status, this comment will now turn to the different approaches that countries have adopted to assess these claims. One approach, which New Zealand’s Re HB case shows, adopts a good faith requirement to sur place claims. Countries that follow the good faith approach say that, even if the applicant meets the elements of the refugee definition, if in an effort to gain protection under the Convention the applicant deliberately created the circumstances that made her eligible, the applicant would not qualify for refugee status. A second approach, which the European Union Qualification Directive adopts, imposes a presumption against refugee status for subsequent refugee applications if the applicant is a sur place applicant who created the circumstances that made her eligible, whether she acted in bad faith or not. A third approach, which England’s Danian v. Sec’y of State for the Home Dep’t case adopts, imposes a more stringent assessment for sur place applicants who acted in bad faith than other applicants. A fourth approach, which the United States’ Bahadori v. U.S. Immigration and Naturalization Serv. case adopts, focuses on whether the applicant can establish a well-founded risk of persecution upon return to her home country, regardless of if she deliberately created the risk for the sole purpose of gaining refugee protection. Each of these approaches will now be explored further.
First Approach: Good Faith Requirement
Although New Zealand and Australia have statutorily codified the good faith requirement, the good faith approach is not consistent with the Refugee Convention. To begin, the good faith requirement, which is statutorily codified in New Zealand, is inconsistent with the purpose of the Convention. The Vienna Convention governs interpretation of international treaties. It says that treaties must be interpreted in “good faith” and that the text of the treaty must be interpreted in light of its context, object, and purpose. The purpose of the Convention is to “serve as a back-up to the protection one expects from the state of which an individual is a national.” As articulated in Canada v. Ward, “[the Convention] was meant to come into play only when [state] protection is unavailable, and then only in certain circumstances.” The Convention indicates certain circumstances where the Convention does not apply. Specifically, there are clear exceptions in articles 1D-F that indicate instances where applicants who would otherwise be eligible for protection are excluded from protection under the Convention. Importantly, “[t]here is no reference in art[icle] 1 to a person who has acted in bad faith in relation to his asylum claim.” Including applicants that meet the refugee definition, even those that acted in bad faith, is not inconsistent with the text and purpose of the Convention.
The Re HB court’s reliance on Grahl Masden’s statements about refugees sur place and good faith is misplaced. The court relied on Grahl Masden’s statements delineating between refugees sur place who “unwittingly, or unwillingly” created the circumstances that made them a refugee and those that acted “for the sole purpose of getting a pretext for claiming refugeehood.” Masden said: “[t]he former may claim good faith, the latter may not. The principle of good faith implies that a Contracting State cannot be bound to grant refugee status to a person who is not a bona fide refugee.” However, Masden’s characterization of good faith is incorrect. Although states cannot grant refugee status to a person who is not a refugee, that does not mean that there is a good faith requirement in the refugee definition.
Additionally, the court articulated its reason for imposing the good faith requirement as stemming from its concern that these applicants’ manipulation of the refugee system would hurt the integrity of the entire system. However, imposing a good faith requirement into the refugee definition is an overreaction to this concern. The notion of forcibly returning “a person to such a state in order to show our disapproval of “bad faith” is a gross and unprincipled over-reaction to the cynical manipulator.”
Second Approach: Subsequent Application Presumption
The subsequent application approach adopted in the European Union Qualification Directive (“Qualification Directive”) is not consistent with the Convention. The Qualification Directive recognizes refugees sur place but imposes a presumption against subsequent applications in which the applicant created the circumstances that made her eligible for protection. The Directive says in Article 5 that “[w]ithout prejudice to the Geneva Convention,” Member States can apply this presumption. On one hand, this presumption does not go as far as New Zealand’s statutorily codified good faith requirement because it only deals with subsequent applications. On the other hand, the Qualification Directive goes further than New Zealand’s good faith requirement because its presumption applies to more situations than the ones in which an applicant created the circumstances in order to gain refugee status. Professor Hathaway described this approach as unprincipled since the Convention does not suggest that subsequent applications should be considered differently.
Hugo Storey, an upper tribunal judge in the United Kingdom, has argued that he does not see why, for subsequent applications, a sur place claim should not be presumed to be based on self-created circumstances. But his argument seems to miss the point. The presumption against subsequent applications is not a presumption that the circumstances giving rise to the subsequent applications were self-created. Instead, the presumption against the subsequent applications is a general presumption against granting status. Despite his stance, Storey argues that since this section of the Qualification Directive starts with the phrase, “[w]ithout prejudice to the Geneva Convention,” that this presumption might not apply if it is inconsistent with the Refugee Convention.
Although Story’s characterization of the presumption might be less harmful than the general presumption as it stands, since it presumes against only one aspect of the claim, rather than on the claim on the whole, it is still very damaging to applicants and, as Story suggests, problematized by the Qualification Directive’s language.
Third Approach: More Stringent Evaluation Approach
The stringent look approach adopted by UNHCR is not consistent with the Convention. In the English case Danian v. Secretary of State for the Home Department, the court discussed a letter that one of the parties received after it requested guidance from UNHCR. The guidance letter discussed the text of the UNHCR Handbook, which states that applicants can become refugees sur place even if they caused the circumstances that led to their status. The Handbook focuses on how an applicants’ actions would be viewed by authorities in their home country and whether the actions would reasonably come to those authorities’ attention. As the letter from UNHCR in Danian pointed out, the UNHCR Handbook does not mention good faith. Going one step further, UNHCR believes that an applicant who can establish well-founded fear on Convention grounds can gain status even if she acted in bad faith. However, the UNHCR letter in Danian also asserted, recognizing that their position could lead to abuse of the system, that “UNHCR would not object to a more stringent evaluation of the well-foundedness of a person’s fear of persecution in cases involving opportunistic claims.”
UNHCR’s guidance at least formally recognized that the refugee definition does not have a good faith requirement, making it better than New Zealand’s good faith approach. UNHCR’s approach does not treat subsequent applications more strictly than primary applications, making it better than the Qualification Directive’s approach. Notwithstanding the fact that UNHCR’s approach appears better than the previously discussed approaches since it only applies a stricter standard to opportunistic claims, its approach still appears to be incompatible with the Convention because UNHCR’s approach, like the Qualification Directive’s subsequent application approach, is unprincipled. Specifically, the Convention itself does not appear to suggest that opportunistic claims should be analyzed differently than other claims. In addition, even given the concern about manipulation of the system, Professor Hathaway responds that, “to return a person to such a state in order to show our disapproval of “bad faith” is a gross and unprincipled over-reaction to the cynical manipulator.” Furthermore, the Danian court says that proving well-founded fear of persecution for a Convention reason will “largely turn on . . . credibility, and an applicant who has put forward a fraudulent and baseless claim for asylum is unlikely to have much credibility left.” This in turn means that, although the UNHCR Handbook correctly focuses on sur place applicants’ ability to establish a well-founded fear of persecution for a Convention reason, it makes it almost impossible for opportunistic claims to result in protection.
Fourth Approach: Well-founded Fear Approach
The approach adopted by the Ninth Circuit in the United States in Bahadori v. U.S. Immigration and Naturalization Service is consistent with the Convention, considering the Convention’s context, object, and purpose. The court in Bahadori focused on whether the sur place applicant, who created the circumstances that made him eligible for refugee protection, whether for the sole purpose of gaining refugee status or not, could establish a well-founded fear of persecution by his home country. The court focused directly on the well-founded fear element. The court neither indicated that a stricter test should be applied nor indicated that an opportunistic claim would hurt the applicant’s credibility and thereby his well-founded fear claim, like the Danian court did in approach three. Instead, the court indicated that on remand, the BIA should look at the well-founded fear element. It instructed the BIA to consider if the applicant would face persecution in Iran because of either his religion or imputed religion, indicating that either would be sufficient. Although the case was remanded, the court points out that the evidence before it indicated that religious minorities have been persecuted in Iran and that “Shi’ite rulers of Iran regard apostasy as a ‘heinous crime punishable by death.” On remand, in order to be consistent with the Convention, the BIA should have looked to whether there was a well-founded fear of persecution, which includes whether the authorities in his home country would reasonably find out about it. Not only is this approach principled, but Hathaway indicates that this approach limits the number of claimants and therefore the abuse of the system.
Application of the Bahadori Approach to the Facts of Re HB
If the court in Re HB indicated that the lower court should have used the Bahadori approach when conducting its analysis, the lower court ultimately would have ignored whether the applicant created the circumstances that gave rise to his claim. Instead, the court would have focused on whether the applicant satisfied the elements of the refugee definition, specifically, the applicant’s well-founded fear of persecution for a Convention reason. This well-founded fear of persecution could either have been tied to a genuine or imputed political opinion or religious belief. As part of the assessment of well-founded fear of persecution, the court would have considered how having a copy of the book was perceived and responded to in Iran, whether the persecutors would reasonably have become aware of the applicant’s story that he had the book, and, if the government was not the persecutor, whether there would have been a failure of state protection.
Based on the information provided in the case, it seems that on remand the lower court likely would have found that the applicant had a well-founded fear of persecution. In Re HB, the court discusses another case, Re SA, in which the applicant had a translated version of The Satanic Verses like the applicant in Re HB. In Re SA, the applicant was arrested, beaten, and charged with “being in possession of an unauthorized book.” Although the court said that “any connection between that case . . . and the present appeal is entirely speculative,” the factual similarities are illustrative. Under the Ninth Circuit’s Bahadori approach, which would consider imputed political opinions or religious beliefs, the apparent factual similarities would matter in determining how having a copy of the book is perceived and responded to in Iran. In addition, although in Re SA the court said that there is not much known about how Iranian law punishes people for possessing The Satanic Verses, it also said that the justice system in Iran did not meet international standards and that “the Iranian government has gone [to lengths] to enforce the ban on Rushdie’s book and to attack those responsible for its publication and dissemination.” These observations alone would provide support for HB’s establishment of a risk of persecution, which would not be overpowered by the good faith requirement, the subsequent application approach, or the more stringent evaluation approach.
The Ninth Circuit’s approach in Bahadori is consistent with the Convention while the good faith requirement, the subsequent application approach, and the stringent evaluation approach are not. If the Bahadori approach, which disregards whether the sur place claim is opportunistic and instead focuses on whether the applicant can establish a well-founded fear for a Convention reason, was applied to the facts of Re HB,the court would have ignored whether his claim was opportunistic. Instead, the court would have focused on whether the applicant had a well-founded fear for a Convention reason and as a result they likely would have concluded that he did.
 Convention Relating to the Status of Refugees art. 1, July 28, 1951, 189 U.N.T.S. 137. Protocol Relating to the Status of Refugees, October 4, 1967, 606 U.N.T.S. 267.
 UNHCR. Frequently Asked Question About the 1951 Refugee Convention (June 1, 2001), https://www.unhcr.org/en-us/news/stories/2001/6/3b4c06578/frequently-asked-questions-1951-refugee-convention.html.
 UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, UN Doc. HCR/IP/4/Eng/Rev.3 (2011), at  [hereinafter UNHCR, Handbook].
 Convention Relating to the Status of Refugees, supra at note 1, at art. 1(A)(2).
 UNHCR does not have final adjudicatory or interpretive authority over the convention. See JAMES C. HATHAWAY & MICHELLE FOSTER, THE LAW OF REFUGEE STATUS 3 (2d ed. 2014).
 Refugee Appeal No. 2254/94 Re HB  RSAA at  (N.Z.).
 Id. at . The Komiteh were part of the Islamic Revolution in Iran in 1979. They “[b]egan before the revolution as neighborhood defense units against government-backed club wielders who attacked protesters. Ideologically diverse; the Komiteh members who supported a democratic outcome left as the youth of the committees came under religious influence. In 1991 they were incorporated into the police force and ceased to exist independently.”Komiteh, Oxford, Komiteh. http://www.oxfordislamicstudies.com/article/opr/t125/e1316 (last visited April 26, 2021).
 Id. (“The appellant’s story is not credible. We do not believe it. We have no doubt that the appellant has told us lies.”).
 Id. at .
 Id. at .
 Id. at .
 The Convention reason here would be an imputed political opinion. See id.
 See id. at  (N.Z.) (“The degree of bad faith is high . . . “).
 Id. at  (alteration in original). Although the court said that a balancing test must be done to make this determination and that “the good faith principle must be applied with caution, not zeal,” this language does not detract from the significance of the good faith principle generally. See id. at .
 Refugee Appeal No. 2254/94 Re HB  RSAAat  (N.Z.).
 Council Directive 2011/95/EU, 2011 OJ (L 337/9) art. 5 (EU) [hereinafter European Qualification Directive]
 Danian v. Sec’y of State for the Home Dep’t  EWCA (Civ) (Eng.).
 Bahadori v. U.S. Immigr. & Naturalization Serv., 947 F.2d 949 (9th Cir. 1991).
 HATHAWAY & FOSTER, supra note 6, at 85. New Zealand says that protection officers must reject claims where the applicant didn’t act in good faith and acted with the purpose of meeting the refugee definition. Immigration Act 2009, s.134(3) (N.Z.).
 Vienna Convention on the Law of Treaties art. 31, May 23, 1969, 1155 U.N.T.S. 331.
 See id. at art. 31(1).
 Canada v. Ward,  2 S.C.R. 689 (Can.).
 Id. (alteration in original).
 Danian v. Sec’y of State for the Home Dep’t  EWCA (Civ),  (Eng.). These exceptions were not only narrowly drafted but also should be interpreted restrictively. Guy S. Goodwin-Gill, Damian v. Secretary of State for the Home Department Comment: Refugee Status and Good Faith, 12 INT’L J. REFUGEE L. 663 at 664 (2000).
 Danian  EWCA (Civ) at . In addition, the Convention clearly covers not only refugees sur place generally, but also applicants with “a well-founded fear of persecution on account of political opinions attributed to them by the country of origin” again pushing against the notion of a good faith requirement. Mohammed v. Minister for Immigr. & Multicultural Affs.  FCA 868 (28 June 1999) 407 (Austl.).
 See HATHAWAY & FOSTER, supra note 6, at 84.
 Refugee Appeal No. 2254/94 Re HB  RSAA at [19-20]. (N.Z.).
 Id. at 20.
 HATHAWAY & FOSTER, supra note 6, at 86 n.416.
 Re HB  RSAA at  (N.Z.).
 See HATHAWAY & FOSTER, supra note 6, at 89.
 European Union Qualification Directive, supra note 20, at art. 5(3) “Without prejudice to the Geneva Convention, Member States may determine that an applicant who files a subsequent application shall not normally be granted refugee status if the risk of persecution is based on circumstances which the applicant has created by his or her own decision since leaving the country of origin.”
 HATHAWAY & FOSTER, supra note 65, at 84.
 Hugo Storey, EU Refugee Qualification Directive: A Brave New World, 20 INT.’L J. REFUGEE L. 1, 27 (2008).
 European Union Qualification Directive, supra note 20, at art. 5(3)..
 Danian v. Sec’y of State for the Home Dep’t  EWCA (Civ),  (Eng.).
 UNHCR, Handbook, supra note 3, at 4b.
 Danian  EWCA (Civ) at .
 HATHAWAY & FOSTER, supra note 6, at 84.
 Danian  EWCA (Civ) at .
 See HATHAWAY & FOSTER, supra note 6, at 88 (“[I]s the ‘more stringent evaluation’ approach not really just a ‘good faith’ bar in disguise?”).
 See Bahadori v. U.S. Immigr. & Naturalization Serv., 947 F.2d 949 at *1 (9th Cir. 1991). In the case, it was not clear whether the applicant’s Christianity was his true religious belief or if it was opportunistic. See id. at *4.
 See id. at *4.
 See HATHAWAY & FOSTER, supra note 6, at 90.
 Id. “Because it is the reaction of the home country (in terms either of inflicting harm, or withholding protection) that is critical, the only persons whose contrived actions can give rise to a duty to provide protection are those from a state in which the basic duty to protect the security of its citizenry without discrimination is not respect. And because this is so, it really is not correct to see the assessment of sur place claims grounded in activities abroad as an invitation to abuse. To the contrary, but for the unlawful response of the home country to the contrived taunt, there would be no possibility of refugee status being recognized” (footnote omitted).
 Refugee Appeal No. 2254/94 Re HB  RSAA at [15-16] (N.Z.).
 Id. at 16.
 Id. at 16-17.