MIMA v Respondents S152/2003

Case [2004] HCA 18

HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, KIRBY, HAYNE AND HEYDON JJ

MINISTER FOR IMMIGRATION AND MULTICULTURAL
AFFAIRS  APPELLANT

AND

RESPONDENTS S152/2003  RESPONDENTS

Minister for Immigration and Multicultural Affairs v Respondents S152/2003

[2004] HCA 18

21 April 2004
S152/2003

ORDER

1.   Appeal allowed.

2.   Set aside orders 1, 2 and 3 made by the Full Court of the Federal Court on 23 May 2002 and, in lieu thereof, order that the appeal to the Full Court of the Federal Court be dismissed.

3.   Appellant to pay the respondents' costs of the appeal to this Court.

On appeal from the Federal Court of Australia

Representation:

J Basten QC with S B Lloyd for the appellant (instructed by Sparke Helmore)

N J Williams SC with B M Zipser for the respondents (instructed by the respondents)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Minister for Immigration and Multicultural Affairs v Respondents S152/2003

Immigration – Refugees – Applications for protection visas by de facto husband and wife nationals of Ukraine – Well-founded fear of persecution – Husband claimed to suffer religious persecution as Jehovah's Witness – Refugee Review Tribunal found that incidents of which husband complained were individual and random incidents and did not amount to persecution, and that the chance that he would suffer persecution in future was remote – Tribunal rejected claim that state encouraged or condoned persecution of Jehovah's Witnesses – Whether Full Court of Federal Court erred in concluding that Tribunal committed jurisdictional error in failing to consider a different claim of whether the husband might suffer future harm from private individuals because of religious belief and whether the government of Ukraine was able in a practical sense to stop such harm occurring – Absence of evidence before Tribunal to support a conclusion that Ukraine did not provide level of protection required.

Immigration – Refugees – Applications for protection visas – Relevance of attitude or capacity of state to whether fear of harm well-founded, to whether there is persecution, to whether a person is outside country of nationality owing to well-founded fear of persecution and to unwillingness of person to seek protection of state – Protection theory and accountability theory – Non-state actor – Harm by non-state actors – Persecution by non-state actors – State complicity in persecution – Persecution tolerated or condoned by state – Failure of state protection – Unwilling or unable to provide protection.

International law – Treaty – Interpretation – Refugees Convention – "Persecution" – Different theories of persecution – Meaning of treaty provisions – Proper approach to meaning – Primacy of text – Approaches of courts in countries of refuge – Protection theory and accountability theory – Whether a third theory applicable.

Words and phrases – "well-founded fear", "persecution", "protection".

Migration Act 1958 (Cth), s 36(2).
Convention relating to the Status of Refugees, Art 1A(2).

  1. GLEESON CJ, HAYNE AND HEYDON JJ.   The issue in this appeal concerns the application…

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AGLC
MIMA v Respondents S152/2003 [2004] HCA 18
Case
[2004] HCA 18
Decision Date

CaseChat Overview and Summary

The Minister for Immigration and Multicultural Affairs appealed to the High Court of Australia against a decision of the Full Court of the Federal Court. The Full Court had upheld an appeal by the respondents, who were applicants for protection visas, against a decision of a primary judge. The respondents, nationals of Ukraine, claimed a well-founded fear of persecution based on the male applicant's religious beliefs as a Jehovah's Witness. The Refugee Review Tribunal had found that the incidents of harm suffered by the male applicant were individual and random, not amounting to persecution, and that the chance of future persecution was remote. The Tribunal also rejected the claim that the Ukrainian state encouraged or condoned persecution.

The legal issues before the High Court included whether the Full Court of the Federal Court erred in concluding that the Tribunal committed a jurisdictional error. Specifically, the High Court considered whether the Tribunal failed to consider a claim that the male applicant might suffer future harm from private individuals due to his religious belief, and whether the Ukrainian government was practically unable to prevent such harm. The Court also examined the relevance of a state's attitude or capacity to provide protection in determining whether a fear of harm is well-founded, whether there is persecution, and whether a person is unwilling to seek the protection of their home state.

The High Court reasoned that the Refugee Convention adopts a practical standard of protection, requiring a reasonable, not perfect, level of state protection, taking into account the varying resources and traditions of different nations. The Tribunal had specifically considered and rejected the suggestion that Ukrainian authorities were unwilling or unable to protect their citizens, finding that police responded appropriately when alerted to an assault. The Tribunal classified the harm suffered by the male applicant as individual and random incidents, not persecution, a view that was open to it on the evidence. The High Court concluded that the Tribunal did not fail to consider the relevant matters and that its rejection of the claim of systemic neglect or indifference by the Ukrainian state was open to it on the evidence.

The High Court allowed the appeal, set aside the orders of the Full Court of the Federal Court, and ordered that the appeal to the Full Court be dismissed. The appellant was ordered to pay the respondents' costs of the appeal to the High Court.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside orders 1, 2 and 3 made by the Full Court of the Federal Court on 23 May 2002 and, in lieu thereof, order that the appeal to the Full Court of the Federal Court be dismissed.

3. Appellant to pay the respondents' costs of the appeal to this Court.

Background

Background to the litigation

This is another appeal concerning refugee law. The Full Court of the Federal Court of Australia unanimously[69] upheld an appeal from the primary judge (Wilcox J)[70]. It reversed his Honour's order adverse to the present respondents, who were applicants for protection visas ("the applicants") before the Refugee Review Tribunal ("the Tribunal"). In effect, by its judgment, the Full Court required that the Tribunal reconsider the applicants' claim. By special leave, the Minister for Immigration and Multicultural Affairs ("the Minister") appeals to this Court. She seeks restoration of the orders of the primary judge. If successful, that would close the applicants' legal right to the reconsideration of their application by the Tribunal.[69][2002] FCAFC 145 per Lee, Moore and Madgwick JJ.[70][2001] FCA 652.The background facts The applicants are male and female domestic partners whose country of nationality is Ukraine. Effectively, the matter was determined in light of events that had primarily concerned the male applicant. No point of distinction was made concerning the female applicant. It was accepted by the Tribunal that the male applicant had suffered harm in the course of two beatings and in an attack in or near his apartment[71]. It was clear that these attacks were related to the fact that the male applicant had become interested in the teachings of the Jehovah's Witnesses, a denomination of the Christian religion. The male applicant had promoted that religious denomination, including by handing out relevant literature. It appears that these activities occasioned animosity on the part of the male applicant's assailants. Whether his assailants followed the more traditional religions of Ukraine, whether they were adherents to the former secularist beliefs of that country, promoted during the long period that Ukraine was part of the Soviet Union, or otherwise, is undisclosed.[71][2002] FCAFC 145 at [3]. Background facts are stated in the reasons of Gleeson CJ, Hayne and Heydon JJ at [2]-[16]. The Tribunal accepted that the violence directed towards the male applicant was an "adverse reaction to his religion" and that he had suffered because of his religion[72]. Such violence preceded the departure of the applicants from Ukraine for Australia, their arrival in this country and their claim for protection visas on the ground of refugee status[73], which was promptly made. [72][2002] FCAFC 145 at [3].[73]Under the Migration Act 1958 (Cth), s 36(2). The existence of "fear", in a subjective sense, as claimed by the male applicant, appears to have been accepted. The next question thus became whether that fear was "well-founded", whether it involved a fear of "being persecuted for reasons of … religion" and whether it otherwise attracted the requirements contained in Art 1A(2) of the Refugees Convention as amended by the Refugees Protocol ("the Convention")[74], incorporated into Australian law by the Migration Act 1958 (Cth) ("the Act"). [74]Convention relating to the Status of Refugees done at Geneva on 28 July 1951, [1954] Australian Treaty Series No 5; Protocol relating to the Status of Refugees done at New York on 31 January 1967, [1973] Australian Treaty Series No 37.Rejection of state complicity in the harm to the male applicant

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GLEESON CJ, HAYNE AND HEYDON JJ HUGH J KIRBY J (dissent)
The Convention does not require or imply the elimination of all risks of harm. As Lord Hope of Craighead said in Horvath[100], the Convention adopts a "practical standard, which takes proper account of the duty which the state owes to all its nationals". It posits a reasonable level of protection, not a perfect one[101]. It must apply to the variety of nations in the world with their differing resources, traditions and institutional attitudes. It is not geared to the fears of the supersensitive. By the same token, it is not indifferent to conditions which reasonable human beings should not have to accept and are entitled to escape from and in respect of which they are entitled to seek protection from the international community[102] because they feel that invocation outside their country of nationality of protection from that country will only lead to their being returned to conditions of risk of harm that they ought not to have to tolerate[103].[100][2001] 1 AC 489 at 500.[101]See Williams, "The Correlation of Allegiance and Protection", (1950) 10 Cambridge Law Journal 54.[102]Canada (Attorney General) v Ward [1993] 2 SCR 689; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 231-232 per Brennan CJ, 247 per Dawson J; Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at 307-308 [45]-[47].[103]Fortin, "The Meaning of 'Protection' in the Refugee Definition", (2001) 12 International Journal of Refugee Law 548.Conclusion: there was no such oversight The Tribunal did not fail to consider such matters in the applicants' case. It specifically rejected any suggestion that "the authorities [of Ukraine could] be said to be unwilling or unable to protect their citizens". It concluded that:"The fact that the [male] applicant experienced incidents about which he either did not make a statement, or did not persevere in any way if discouraged from making a statement, cannot be taken as evidence that the authorities condoned such incidents. On the occasion on which the police were alerted to an assault [of the male applicant] by the ambulance officers, they responded appropriately." It was therefore unsurprising that the Tribunal, having rejected the propounded case of systemic or institutional neglect or indifference to protecting the male applicant and having earlier rejected the claim of state complicity in the acts directed against him, rejected the suggestion that what had happened to him was "persecution" within the Convention. The Tribunal, instead, classified that harm as nothing more than "individual and random incidents of harm … and not as persecution". That was clearly a view of the facts open to the Tribunal on the evidence. In accordance with the protection theory, such incidents would not amount to "persecution" without some indication of complicity or condonation and approbation of discrimination and violence against the male applicant on the part of Ukrainian state authorities and agencies. This was an inference which the Tribunal rejected. Such rejection was clearly open to the Tribunal on the evidence. It was not amenable to criticism, or correction, by the Full Court.

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, HAYNE AND HEYDON JJ, HUGH J,

When these qualifications are met, the relevant acts and omissions will arguably fall within the notion of "persecution" as used in this context. They will help establish the necessary link between the "well-founded fear" and the propounded ground, in this case "for reasons of … religion". In the case of an applicant for refugee status who is outside the country of nationality, they will potentially explain why he or she is "owing to such fear … unwilling to avail himself [or herself] of the protection of [the] country [of nationality]"[86].[86]Applying the criteria for "refugee" status in the Convention. See the reasons of Gleeson CJ, Hayne and Heydon JJ at [2]. As to the last criterion, see Fortin, "The Meaning of 'Protection' in the Refugee Definition", (2001) 12 International Journal of Refugee Law 548.Consideration of the issues by primary judge Although the primary judge did not have Khawar available to him, he did not overlook the possibility that the Tribunal had committed an error warranting intervention of the Federal Court on the basis of the inability, as well as the unwillingness, of the Ukrainian authorities to protect their citizens from persecution on religious grounds[87]. His Honour expressly referred to, and considered, an argument of the applicants that "the government [of Ukraine] condoned such mistreatment, or was unwilling to do anything about it in a proper case". On the basis of the Tribunal's conclusions, and the evidence before it, the primary judge detected no error requiring intervention by the Federal Court on this footing. He said[88]:"[T]here was nothing in this case to indicate any general attitude of condonation [of mistreatment] or unwillingness [of police to do anything about it in a proper case]."[87][2001] FCA 652 at [24] where the "ability" of the national authorities is specifically referred to.[88][2001] FCA 652 at [26]. The primary judge went on[89]:"[I]t seems a large jump to infer, from the reaction of one officer in one police station [about which the male applicant complained], that the government of the Ukraine, considering that entity as a whole, was unable or unwilling to protect Ukrainian citizens against assault arising out of their religious beliefs … I can understand the Tribunal's unwillingness to make a finding that the Ukrainian government was unwilling or unable to protect its citizens in the absence of evidence of … other options having been tried [by the male applicant] and proved unsuccessful."[89][2001] FCA 652 at [29] (emphasis added). The primary judge pointed out that the issues belatedly raised by the applicants were ones of fact and merits for the Tribunal[90], and that the Federal Court's powers of judicial review were strictly limited[91]. His approach appears orthodox, careful and correct. Clearly enough, it was expressed in terms of the protection theory hitherto generally adopted as the international approach to the Convention definition. The primary judge did not adopt the narrower accountability theory of persecution that would limit "persecution" to the acts of a state or its agencies or those acts of non-state actors impliedly condoned or tolerated by the state. The accountability theory has not been accepted in this country. In advance of Khawar, correctly, the primary judge appears to have turned his attention to, and considered, the issue of practical neglect and inability on the part of the authorities in Ukraine to protect the male applicant from serious wrongdoing by non-state actors. As his Honour pointed out, partly because of the way the applicants had presented their case before the Tribunal, the evidence did not sustain a case of unwillingness or inability of Ukraine to protect its nationals. On the face of things, this made the case an unpromising one for judicial review within the limited grounds available for the Federal Court to disturb a decision of the Tribunal. [90][2001] FCA 652 at [30].[91]The Act, Pt 8, especially s 476. See [2001] FCA 652 at [31]‑[34].The competing theories of "persecution"