MIMA v Respondents S152-2003

[2003] HCATrans 379

[2003] HCATrans 379

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S152 of 2003

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Appellant

and

RESPONDENTS S152 OF 2003

Respondents

GLEESON CJ
McHUGH J
KIRBY J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 29 SEPTEMBER 2003, AT 10.17 AM

Copyright in the High Court of Australia

MR J. BASTEN, QC:   If the Court pleases, I appear with MR S.B. LLOYD for the appellant.  (instructed by Sparke Helmore)

MR N.J. WILLIAMS, SC:   I appear with MR B.M. ZIPSER for the respondents.  (instructed by Ben Zipser)

GLEESON CJ:   Yes, Mr Basten.

MR BASTEN:   Your Honours will be aware that the protection visa applicant in this matter was a Ukrainian national who complained of aggressive, indeed criminal, conduct on the part of individuals and apparently motivated by a distaste for his newfound faith as a Jehovah’s Witness.  The State was not complicit in their activities, nor condone them, nor was it tolerant of them.  It was not a case in which the Convention reason was attributable to the State, but there was not a Convention reason, as the Tribunal found, which was attributable to the individual hooligan.

In our written submissions we have formulated the issues which are raised in this factual context as either inquiring as to whether in the particular circumstances the applicant could have a well‑founded fear of persecution or, in the alternative, as to whether it was appropriate to say that he was unwilling to avail himself of the protection of his country of nationality.

KIRBY J:   You do not contest that if the Tribunal was obliged to consider whether, in a practical sense, the State could and would have offered protection to the respondents.

MR BASTEN:   No.

KIRBY J:   And therefore the very small issue in the case is whether or not the Tribunal failed to address that aspect of the matter.

MR BASTEN:   That is one way of looking at it, your Honour.

KIRBY J:   I know in these cases they tend to get blown up into hugely important cases, but I do not think since I have been here I have ever seen a narrower point to be decided.  It is a very small issue.  Did they address it?  If they did, no problem; if they did not, then they failed to address the matter which was raised by their jurisdiction.

MR BASTEN:   The question is whether what the Tribunal did address was the matter raised by its jurisdiction or whether it addressed itself to some other question.  That, I thought, was the issue in dispute in the Full Court, Justice Wilcox having found no error with the way the Tribunal looked at the matter.

KIRBY J:   He said in the Full Court that the issue really emerged in argument in the Full Court for the first time, the applicant having been unrepresented in the courts below.

MR BASTEN:   Yes.  May I come to how the Full Court dealt with it in a moment.  I understand the way that your Honour puts it to me.  I think there may be a more substantial issue involved in the dispute than that, but can I indicate what we want to say about the concept of persecution because it does appear to us that the difference between the parties may well be resolved by dealing with that concept. 

Firstly, may we say that it is a multi-faceted concept and different elements will gain significance depending on the context and, secondly, that it must be understood in the context of the Refugees Convention.  We cannot define persecution in terms which are applicable in all circumstances but we can identify some indicia, although these may not be essential criteria.  The first is that the persecutors have a motive which, of course, is a motive which engages a Convention ground and whilst, as this Court said in Chen, that motive ‑ ‑ ‑

McHUGH J:   Well, is “motive” the correct term?  There is a difference between a reason and a motive.

MR BASTEN:   Yes.  I use the term “motive” because I wanted to suggest that there may be a distinction between a case such as Chen, which involves the State acting for a reason, and the case of individuals, other than people who work on behalf of the State, in relation to which the meaning of “persecution” may connote some element of motivation, perhaps even enmity, towards the person concerned.

I wanted to take that one step further and say that it may be enmity towards a group rather than just an individual and it may connote action by a group rather than just by an individual.  For example, in the sort of circumstances which arise here, an element of the aggressive conduct which the claimant feared might involve his own conduct as a victim.  In other words, it may not be the case that a particular group of religious denomination may generally fear aggression in a particular country but an individual, perhaps a proselytiser who finds it difficult to accept no as an answer, may be the subject of aggressive responses, and we would say in that sort of case ‑ ‑ ‑

KIRBY J:   I am sure that happens to some Jehovah’s Witnesses in Australia. 

MR BASTEN:   Indeed, and one would not say that they are persecuted in Australia, although there may be aggressive responses on occasion.  The other aspect of the question of persecution taken in the context of the Convention is that the person must have a well‑founded fear that is an objectively justifiable reason for declining to accept State protection, protection which might return him to his country of nationality.  That may require something greater than a quantitative assessment of the nature of the fear of harm.  In other words, there must be a reasonableness underlying the unwillingness to accept the protection of his country of nationality. 

I would like to develop those thoughts, if I may, by reference to the authorities, but before I do so may I turn back, in part to answer your Honour Justice Kirby, to note how the Tribunal dealt with this matter. 

KIRBY J:   Could you just help me – and this is not combative, it is simply to understand how you are expanding the case – how is it essential to go into this definition of “persecution” if the complaint is the very narrow one, there was no encouragement, there was no condonation; the issue is whether the State as a practical matter was not able to provide protection, and that was not addressed.  I just do not understand why we have to go into these ‑ I know immigration law and immigration lawyers love to have all these cases, but this is a very narrow point, it seems to me.  It could have been migration law or some other area of the law.  It is just:  did they fail to address this particular aspect of persecution? 

MR BASTEN:   Can I put it in this way, your Honour.  Whether a State is unable to provide protection is an ambiguous phrase because it does not identify the level at which protection is required.  Inability may indicate a failure to guarantee protection against harm at the highest level.  It may indicate a failure to reduce the risk of harm below the real chance, which is sufficient to justify the well‑founded fear test, or one aspect of it, or it may simply involve an ability to provide that which is sufficient to satisfy the State’s obligations to protect its citizenry from violence and assaults on their physical integrity.

GLEESON CJ:   How do you test this as a practical matter?  Every day the criminal courts of this country deal with hundreds of cases in which, as a matter of fact, the State has failed to supply protection to victims.  If it were otherwise, they would not be victims.

MR BASTEN:   Yes.  That, your Honour, is at the heart of the point.  We would say that it is inevitable that the State is not asked to guarantee the safety of all its citizenry.  We would say that it is sufficient that the State provide that level of protection which would satisfy its positive obligations as accepted under international law to protect the life and liberty and physical integrity of its citizenry.  If that means that in a particular case an individual can establish that he or she yet has a fear above the fanciful that he or she will suffer harm, nevertheless that does not constitute persecution for the purposes of the Convention.

McHUGH J:   But your proposition is as ambiguous as the proposition that you criticise.  What do you mean what is required, the State has done what is required by international law to protect the citizen?

MR BASTEN:   The basis of the proposition, your Honour, is that there is a difference between a breach of the domestic law, which occurs, as the Chief Justice says, every time there is a criminal act, and a breach of the obligation of the State to provide protection to its citizens.

It is a bit out of order, but I was going to take your Honours in due course to a case of Osman which we have included in the bundle, which deals with the right to life and which says in substance that there is no breach by the United Kingdom authorities of their positive obligation to protect individuals in circumstances where the widow’s husband was shot and therefore a serious crime occurred.  Perhaps if your Honours have that in front of you, I should just indicate how we deal with it. 

The facts are set out in some detail and I need not take your Honours through them.  Perhaps I should say that this is a decision of the European Court of Human Rights, by the widow of a man who was shot by an accused who had been making threats against the family, though not perhaps quite at the level of what occurred.  At page 108 of the bundle your Honours will see that the right to life as set out in Article 2 of the European Convention is noted in the middle of the page, paragraph 101, and the allegation is noted that the assertion that the State had failed to protect the father from the real and known danger which the accused posed and the authorities had failed to comply with their positive obligation under Article 2 to protect the right to life.

At page 112 of the bundle, paragraph 115 of the judgment, at the bottom of the page, the court identifies what the obligation entails, and says: 

The Court notes that the first sentence of Article 2 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction . . . It is common ground that the State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law‑enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. 

Then – I am on page 113 – if one goes down to the middle of the page, there is a long paragraph beginning “In the opinion of the Court”.  About six lines down, they say: 

it must be established to its satisfaction –

that is, the satisfaction of the court –

that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. 

A little further down, about another seven lines further down, there is a line beginning “that Article”, and it talks about the duty being: 

to secure the practical and effective protection of the rights and freedoms laid down –

terminology which comes up in the current area.  Then, another two lines down: 

For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. 

HAYNE J:   Now, assume that chain of reasoning is sound, which is an assumption I will not pause to consider.  How is it said to be engaged in the present matter?

MR BASTEN:   In the present circumstances?  Well, I think it really requires one to enquire into that chain of reasoning, your Honour, and I was going to do that.

HAYNE J:   Reduced to its essentials, what is the proposition that you advance?

MR BASTEN:   The proposition is that when one is considering the kind of conduct which a claimant for a protection visa must establish in order to justify unwillingness to invoke the protection of the State, it must be conduct, assuming the State is not responsible for it, which the State is unwilling to provide protection against or unable to provide protection against, the protection being that which I have just identified by reference to Osman, in other words, the provision of machinery which would satisfy its obligations towards its citizens.

HAYNE J:   How do you relate that, if at all, to the definition of “refugee”?

MR BASTEN:   I relate it, your Honour, by asking whether there is an objective element in that part of the definition which invites attention to the willingness of the claimant to avail himself of the protection of his country of nationality.  That is not purely a subject matter, because it is unwillingness owing to the fear of persecution.

McHUGH J:   It really does not grasp the problem that Justice Hayne has pointed out to you, does it?  A government may be very well aware of even real and immediate risk to individual’s life and it may be willing to overcome them but it may not have the resources, so it does not seem to me that it helps you in the definition of ‑ ‑ ‑

KIRBY J:   Take Chechnya – assume some people, perhaps Russian people, in Chechnya felt that they could not look to the government.  The government tries to do things but they are just outnumbered, outmanned, outmanoeuvred and they just cannot give protection.  Why would a person in that situation not be entitled to come to Australia and say, “I’m just not willing to go, I’ve suffered too much, I’ve seen too much, it’s too awful.  I want refuge”?

MR BASTEN:   Once one engages the Convention reason in the line of argument, the answer is there is no difficulty and that, I thought, was really what the Court said in Ibrahim’s Case because perhaps Somalia was in a weaker position governmentally than Chechnya, but I do not know.  But the Court accepted that where there was no State able to prevent the civil harm, then that was sufficient, and I do not seek to argue against that.

KIRBY J:   Is there anything in Khawar, which was the Pakistani wife, that suggests that you have to show that in some way the government is complicit or turns a blind eye or is unsympathetic?  I did not think that that was suggested in Khawar, but it may be that in that particular fact situation you might say that is the source of the unwillingness.

MR BASTEN:   Yes.

KIRBY J:   That would distinguish this case, I think, because I do not think it is suggested in any of the evidence that I have read that the government is complicit in what has been done by these hoodlums.

MR BASTEN:   No, that is so.  We would say, your Honour, that there is material which supports that view in Khawar but it is not material that ultimately answers the question, because in Khawar it was necessary for the claimant to establish persecution by the government by tolerating or refusing to intervene at all in circumstances where the government itself had to have the Convention ground as a reason or motive.

GLEESON CJ:   The problem with Khawar is that, as I recollect it, that was a case in which the Tribunal had said because the threatening behaviour was personal, it could not possibly have been a case of persecution and that was identified as an error.

MR BASTEN:   That is so.

GLEESON CJ:   But suppose instead of taking Chechnya, you took the Australian Capital Territory, and suppose you had a school child in the Australian Capital Territory who every day when he went to school had stones thrown at him because of his race by a group of hoodlums and his life was made intolerable.  He was persecuted by a group of hoodlums because of his race.  What is the way in which you test whether or not the response or the lack of response of the authorities in the Australian Capital Territory gives rise to a case of persecution?

MR BASTEN:   Well, you test it in a number of ways I suppose potentially, but basically one asks:  has the protection of the police been invoked by the person?  If it has not, then one gets another set of questions.  If it has been invoked, then have the police taken those steps which might reasonably be expected of them to prevent this behaviour?  It does not necessarily follow that even if they have not, this is persecution for the purposes of the Convention.  One would need to ask some further questions, with respect, in relation to that because it is certainly not, I assume from the example, a case in which the State has any interest in doing other than opposing the activity.

One would therefore not say that this child has been persecuted in Australia.  One would say that he has been subject to aggressive acts on account of his race by individuals for which the State is not responsible, but despite all its efforts cannot protect him from.  He might have to move elsewhere in order to obtain that protection within Australia but it does not involve the kind of activity which would engage this Convention.

GLEESON CJ:   Is this because, to test the question that I raised, you would have to postulate that the child is outside Australia – in the United States, for example – seeking asylum there on the basis that he is unwilling to avail himself of the protection of the Australian Consul ‑ ‑ ‑

MR BASTEN:   Yes, that is so.

GLEESON CJ:   ‑ ‑ ‑ for fear that the Australian Consul might send him back to Canberra.

MR BASTEN:   Yes, or to Australia.  That is so and that is why it is difficult, with respect, to identify what may or may not constitute persecution without accepting that that is the context in which the term must be understood.  It may be that one can separate the two elements out, but if there is separation, then there must be a justification for the unwillingness beyond his own desire not to return to Canberra.

KIRBY J:   In this case, the factual foundation for the suggestion that Ukraine is unable, as a practical matter, to give protection seems, on the face of things, to be a bit flimsy, but the point that the Full Court was making, as I understood it, was that is not a matter for judges exercising judicial review to decide; it is a matter of judges exercising judicial review to insist that the Tribunal decide it and they said, right or wrong, that the Tribunal had not addressed the issue.  The mind goes like quicksilver to the simple solution to a case and it would have seemed to me that the issue in this case is a very simple one.  You just go to the Tribunal’s reasons and say, “There, that is where they did consider this, end of issue” because the Full Court at its passage on page 203 said the jurisdictional error was that they did not address the point, and that is all.

MR BASTEN:   I was intending to go immediately to the Tribunal’s reasons.  I will come back perhaps to the matters of principle ‑ ‑ ‑

KIRBY J:   You take your own course, Mr Basten, but it just seemed to me that, reading the written arguments of the parties, they want to elevate this into a big case, but, in fact, as presented by the Full Court to us, it is a very narrow point.  Did the Tribunal address the issue of inability, in a practical sense, to give protection or did it not?  If it did, end of issue.

MR BASTEN:   May I go to the Tribunal’s ‑ ‑ ‑

GLEESON CJ:   Well, just before you do, have you finished saying everything you wanted to say about the case of Osman?

MR BASTEN:   Yes I have, your Honour.

GLEESON CJ:   Thank you.

MR BASTEN:   I can come back to it without taking your Honours to it.  The findings of the Tribunal are set out at page 20 of the appeal book.  It commences with the Tribunal accepting that some harm was suffered by the applicant before it.  At line 40 to 45, it was not satisfied that:

every threat of harm . . . for a Convention reason constitutes “being persecuted”.

It refers to:

persecution by private individuals or groups does not bring a person within the Convention unless the Sate either encourages that private persecution or is (or appears to be) powerless to prevent it.

KIRBY J:   Where is this, I am sorry?

MR BASTEN:   This is at line 45, page 20.

KIRBY J:   Line 45, yes.

MR BASTEN:   It then extracts from Applicant A, from your Honour Justice McHugh’s judgment at page 257 to 258, to which I will come – not the Chief Justice – an extract.  It then notes at line 10 on page 21:

The applicant has sought to establish that the State . . . actively encourages persecution of Jehovah’s Witnesses . . . the Tribunal is not satisfied that this is the case.

KIRBY J:   Now, just pausing at that stage, the Tribunal does appear at page 20 at line 45 to address the issue of powerlessness to prevent it.

MR BASTEN:   Yes, it identifies the issue.

KIRBY J:   So they have identified the issues.  They then go to encourage, well, that is knocked out, and that is accepted by everyone.  So we really have to see whether having raised powerlessness to prevent, they went on to address it.  The Full Court felt that they did not.

MR BASTEN:   I appreciate that, your Honour.  At page 23 the Tribunal considers some other material concerning the position of Jehovah’s Witnesses in the Ukraine, notes their increase in number, notes the increase in the membership of the church, and then at line 35 says:

The Tribunal is satisfied that this indicates that the JW organisation does not feel that it is experiencing any problems with the Ukraine authorities at this time.

Then, in the next paragraph:

This independent evidence does not negate the fact that the applicant was assaulted and that he was assaulted because some individuals were affronted by his religious beliefs.  However, these incidents must be seen as individual and random incidents of harm directed at the applicant and not as persecution for a Convention reason.

Your Honours, I will not go through all of the material, but there is discussion ‑ ‑ ‑

KIRBY J:   So far it has not addressed the issue of whether, though the actions originate in individuals, the State is powerless to prevent it.

MR BASTEN:   No, but the Tribunal does not necessarily accept that the acts constitute persecution for the Convention reason if they are simply the “individual and random incidents of harm” directed by individuals.  That is the point I was seeking to draw at 23, line 40.

GLEESON CJ:   What is the meaning of the concept “powerless to prevent harm”?  As I mentioned to you earlier, the criminal courts of Australia are full today of cases pf people who have been harmed.  They have been victims of robbery, rape, beatings, in some cases murder.  What does it mean to ask whether the State of Australia is powerless to prevent that harm?  It has failed to prevent it, manifestly.

MR BASTEN:   Yes.  I do not know, your Honour, because that is not the way in which the Convention test is formulated in terms.  The Convention test asks two question.  Firstly, whether the person has a well‑founded fear of harm.

HAYNE J:   No, well‑founded fear of persecution.

MR BASTEN:   Of persecution, I am so sorry, I accept that.

HAYNE J:   And it seems to me that much turns on what you bind up in that term “persecution”.

MR BASTEN:   I accept that.  Secondly, it asks whether the person is unable or unwilling to avail himself of the protection of the country of nationality.  Inability may exist where the State has no offices which might be relied upon.  This is a case of unwillingness though.  The State exists and operates, operates a police force and a machinery of criminal justice, but cannot guarantee safety.

GLEESON CJ:   But this concept of inability to provide protection must be relative, must it not?

MR BASTEN:   Yes.

GLEESON CJ:   There is no State in the world that can guarantee its citizens safety.

MR BASTEN:   No, that is so, and we would think that the Convention test must be understood with that background.

KIRBY J:   Does this not all just prove that what is involved is a factual determination?

MR BASTEN:   Yes.

KIRBY J:   And as long as the Tribunal addresses the correct question it is for the Tribunal; it is not for the courts to make the factual findings.

MR BASTEN:   If that is so, your Honour, then the Tribunal has addressed it.

KIRBY J:   That is the issue.

MR BASTEN:   I am coming to that.

KIRBY J:   I cannot wait.

McHUGH J:   But, Mr Basten, you are throwing the weight of your argument on the terms “unable and unwilling” in the Convention, but are they not irrelevant, because those terms are directed to the inability or unwillingness of the applicant?

MR BASTEN:   Yes.

McHUGH J:   Whereas the issue that one is concerned with in this context is the ability of the government, which is a very different matter.

MR BASTEN:   Yes, absolutely.  Indeed, one of the points we seek to make in the written submissions is that it is most unfortunate and inevitably leads to confusion that one adopts the terminology of the Convention in relation to the applicant and then puts it into the different context and talks about the government being unable and unwilling. 

HAYNE J:   It seems to me that ultimately you are forced back to the position – which may be the true position, I do not know – that persecution involves participation in or condonation of the conduct by government.  

MR BASTEN:   Yes. 

McHUGH J:   That is a gloss that has been put on this historically about the State.  You could read the Convention and not necessarily come to the view that the State has to be involved in it.  A gloss has been put on by the commentators and later by the courts over the last 50 years. 

HAYNE J:   Otherwise, any unrest in the country of origin which cannot be prevented warrants a claim of refugee status, because there is a well‑founded fear that a car bomb may go off. 

MR BASTEN:   Yes, well, I am not quite sure which proposition your Honour is attributing to me ‑ ‑ ‑

HAYNE J:   Do you say that persecution requires participation in the unwanted conduct by government or condonation? 

MR BASTEN:   No, because ‑ ‑ ‑

HAYNE J:   What content then do you give to persecution? 

MR BASTEN:   Can I just finish – I understand the way your Honour is putting it to me.  To accept what your Honour puts to me is to accept what has been called the German position, because it inevitably leads to the conclusion that if there is no State, there is no claim under the Convention.  Ibrahim is inconsistent with that.  We do not seek to put that.  We are not dealing with that case though.  We are dealing with a case where there is a State, and where the State is willing and, if invoked, will provide protection to an individual who fears harm from hooligans.  In that situation, we say it is sufficient that the State is able and willing to do that much. 

The fact that one can still say there is a real chance of harm is not sufficient to invoke a claim under this Convention, and that is because – and there are two ways of looking at it – either the harm does not constitute persecution or the unwillingness of the individual to invoke the protection of the State is not justifiable.  In other words, the State is doing all that is properly should and can, and in that situation the sometimes called “surrogate international protection” is not engaged. 

McHUGH J:   That last proposition puts a gloss on the words “unable or unwilling”, does it not?  I mean ‑ ‑ ‑

MR BASTEN:   Yes, it does, your Honour. 

McHUGH J:   They are just questions of fact.  It seems to me that this case really does throw up a question of first principles about this whole nature of persecution, and it occurred to me, probably for the thousandth time, that when one writes judgments, one should not make any statements outside the particular facts of the case.  I have to say that in the past, in talking about the State being “powerless” to prevent things, I have tended to generally have in mind situations where there are competing forces in the State such that the nominal government just lacks the power to protect its citizens against these forces.  I cannot ever recollect thinking of it in terms of individuals as such. 

MR BASTEN:   But, with respect, there may be something in that analysis, and that is the reason when I started I said that one may need to think about there being a group or entity involved on both sides.  It may not be the State, but if you have no more than random individuals who give in to prejudice or bigotry who are responsible for the acts of persecution, then that may not be sufficient to constitute persecution.  We may look when we talk about persecution to acts of groups, people who have some underlying philosophy or program or intention. 

McHUGH J:   Northern Ireland in recent years is a classic illustration of it, is it not?

MR BASTEN:   Indeed.

McHUGH J:   You have a government act with military, police forces, a network of spies and then you have, in effect, an anti‑State organisation in the IRA.

MR BASTEN:   Yes, that is right.

KIRBY J:   The government is trying to protect the people there.

MR BASTEN:   Yes, but, with respect, that is ‑ ‑ ‑

McHUGH J:   So is there persecution then when the IRA takes somebody out and kneecaps him or her?  Is there persecution for political reason or religious reason?

MR BASTEN:   There may well be, yes, because there is something in the nature of an organised group with a set of principles which leads them to act in this way against another group.

McHUGH J:   But notwithstanding that the State is doing all that it can.

MR BASTEN:   Yes, that may be so.

KIRBY J:   But the difficulty is ‑ ‑ ‑

MR BASTEN:   I am so sorry, can I just finish?  I am going to come to the passage Justice Kirby wants, but the passage at 23 at line 40 is consistent with the Tribunal saying no more than I am putting to your Honour Justice McHugh:

However, these incidents must be seen as individual and random incidents of harm directed at the applicant and not as persecution ‑ ‑ ‑

KIRBY J:   But, Mr Basten, before the Nuremberg laws were passed in Germany you will remember that a feature of Germany in 1933 and 1934 was mobs running rampant.  They smashed windows, they put signs, they assaulted people in the streets and the State did nothing in a State that had prided itself on lawfulness.  Now, that just seems to illustrate that you cannot say just because it is by private individuals that it is not a source of the fear that is the essence of the persecution that leads people to flee their own country of nationality and seek asylum somewhere else and it will range from a case where, as you suggest this case is, it is just a few random people with religious bigotry who are attacking the respondents.

MR BASTEN:   I do not suggest the Tribunal found, but, yes – it is the factual finding.

KIRBY J:   Well, that is one way of looking at this case, that it is just isolated individuals like the Canberra case and you cannot really treat that as persecution for the Convention, and then you will have the case like Nazi Germany in 1934 and then you have the case of Khawar where it might be suggested that maybe the State is a bit complicit in all this and then you will have the case of Somalia where there is just the total breakdown.  But the lesson of all this is that these are really factual decisions, are they not?  They just have to be decided by the body that is entrusted with the factual determination.

MR BASTEN:   Yes and no, your Honour.  In a sense it is a factual determination and we do say that the Tribunal made the relevant findings of fact, but each of the examples that your Honour put to me does not illustrate one point.  Each illustrates a separate point.  Somalia was a case dealt with in Ibrahim in a particular way.  The Nazi situation was discussed in Shah’s Case, as your Honour has referred to on occasion, and in that particular circumstance it was similar to Khawar in that the individual acts were not necessarily motivated by anti‑Semitism, but Lord Hoffmann’s point was that the State held back because it had an anti‑Semitic attitude and the same in Khawar, the acts were private violence of a domestic kind but the State had an attitude that women in domestic situations should not be protected, should not be given the normal protection of the law.

McHUGH J:   I think the generally accepted view about Germany now, in any event, is that these were not spontaneous acts of violence, that they were encouraged by the SS, SA and other groups.

MR BASTEN:   Some of these situations are hypothetical, some are not.  Some we know the history of better than in the past.  But could I say in response to the factual question, if one goes to page 25 at line 20, and I do not take your Honours through the material that leads up to this, but:

On the basis of the above information, the Tribunal is not satisfied that the authorities can be said to be unwilling or unable to protect their citizens.  The fact that the 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 by the ambulance officers, they responded appropriately.

That is one finding.  At the top of page 26, the case put by the applicant, which was one of media manipulation by the government, is rejected - first paragraph on page 26 to the first line of the next paragraph.  Then at the bottom of page 26, the Tribunal summarised its understanding of where it had got to, line 46:

In short, the Tribunal accepts the independent evidence –

including –

the official Jehovah’s Witness website itself, that Jehovah’s Witnesses in the Ukraine do not face State-sanctioned persecution.  It accepts that harm may sometimes befall individual church members probably more frequently when they go out and proselytise – putting themselves deliberately into an interaction with members of the general public – but that this harm befalls them on a one-off, individual basis.

And it turns back to the implication that the State is involved and rejects that, and then says:

that the applicant has not suffered harm amounting to persecution . . . and that the chance that he would so suffer in the reasonably foreseeable future is remote.

GLEESON CJ:   There is a repetition of the finding that the Tribunal rejects the claim that the State is unable to protect its citizens.

MR BASTEN:   Yes, that is so.  As I understand it ‑ ‑ ‑

GLEESON CJ:   I see what you say is the answer to the question.  I would still like to understand the question a little better.

MR BASTEN:   Yes, I agree.

GLEESON CJ:   What does it mean to ask whether the State is unable to protect its citizens?  The State of Australia is manifestly unable to protect all its citizens from all harm.  What is the meaning of the question?

MR BASTEN:   As we would understand it, there are three levels at which the question may be asked.  The first level is:  can it guarantee safety in an absolute sense?  The answer to that must be no, that is not the test, because no State could do that.  The second level is that it can guarantee safety to the extent that an individual will not have a well-founded fear of harm, whatever the assessment that requires may be.  A 10 per cent likelihood is one possibility.

GLEESON CJ:   Is another possible answer to the question, which seems to be the approach being taken in Osman, that in this context, a question whether a State is unable to protect its citizens is a question whether the State is able to comply with its international law obligations?

MR BASTEN:   Yes, it is.

KIRBY J:   What is the textual foundation for that answer?  Is not the textual issue whether or not there is a well-founded fear of persecution?

GLEESON CJ:   By reason of which you are unwilling to seek the protection of your government.

MR BASTEN:   Yes, that is so.  So that at the end of the day the question is whether the unwillingness is justified on the basis of the well-founded fear.

KIRBY J:   And one would then say in the Canberra case it is not, because no State provides a guarantee and evidence available shows that the Australian State provides as good a guarantee as any other State.  The issue here is that no State provides a guarantee and Ukraine is not expected to provide a guarantee, but the suggestion is not that it collaborated or condoned or encouraged or participated, but that it did not or could not do what an ordinary State can be expected to do.  Those last words are the problem.  What is the activity that an ordinary State is expected to do?  Answer:  that which does not give rise to a well-founded fear of persecution.

MR BASTEN:   No, with respect.

GLEESON CJ:   It is a bit circular then.  The word “expected” involves a normative element, does it not?

MR BASTEN:   Yes.

GLEESON CJ:   It is not a matter of factual prediction.  If you ask, in Osman, what – when the State of New South Wales introduced a system of apprehended violence orders, there were 50,000 applications for apprehended violence orders in the first year.  That says a good deal about the level of protection that people think they were not being provided with.

MR BASTEN:   Yes.

GLEESON CJ:   The suggestion in Osman appears to be that there is some kind of international norm by reference to which you can judge the capacity of a State to protect its citizens.

MR BASTEN:   Yes.

GLEESON CJ:   Is that your submission?

MR BASTEN:   Yes, it is. 

GLEESON CJ:   Because it is the sort of question that will arise, will it not, when Mrs Khawar gets back to the Tribunal. 

MR BASTEN:   Yes, it is. 

HAYNE J:   That simply poses then a great number of subsequent questions, Mr Basten, if that is your submission.  What is this norm?  What is its content?  Where does it derive from?  How is it engaged in the Migration Act?  The simple answer “Yes, that is the submission” leads us off into ‑ ‑ ‑

MR BASTEN:   I am sorry, your Honour.  I did not mean to be dismissive. 

HAYNE J:    ‑ ‑ ‑ a very great range of questions, which I do not think we find addressed, do we, in your submission? 

MR BASTEN:   In part, but not entirely, no.  I accept that.  May I start then with why it is that one uses this language in the context of the Refugees Convention, and may I go back to one of the earlier cases in this area, Applicant A (1997) 190 CLR 207.

KIRBY J:   What proposition are you citing this to support? 

MR BASTEN:   I am citing it to support the proposition that it is appropriate to look to the international level of protection which is expected of a State in relation to its citizens.  Your Honours will recall perhaps the general area.  This case was involved with the one‑child policy of China and the question of whether the Chinese who opposed it were a particular social group.  The passages I wish to go to are threefold.  Firstly, at page 233 at about point 2, Chief Justice Brennan said: 

The feared “persecution” of which Art 1A(2) speaks exhibits certain qualities.  The first of these qualities relates to the source of the persecution. 

His Honour then sets out, in a paraphrase perhaps, some aspects of the definition and then says at the end of the paragraph: 

Thus the definition of “refugee” must be speaking of a fear of persecution that is official, or officially tolerated or uncontrollable by the authorities of the country of the refugee’s nationality –

and notes that the persecution must be discriminatory. 

GLEESON CJ:   That reference to the Canadian case of Ward, does that throw any light on the meaning of “uncontrollable”? 

MR BASTEN:   It is the illustration which Justice McHugh gave earlier.  Ward was a case in which the claimant was in Canada seeking protection under the Convention on the basis that he was unable to obtain protection from the IRA, I think it was, in Ireland, and the Irish State agreed it could not provide protection from whatever he might fear from the IRA. 

If your Honours have Ward (1993) 103 DLR (4^th) 1, the discussion, relevantly for present purposes, commences at page 12, with a discussion of persecution and State complicity. I am not sure that it is easy to take your Honours to the specific passage. At the bottom of page 14, Justice La Forest returns to the question of State complicity and the summary of his Lordship’s conclusions in this regard perhaps appears at page 17g. After reference to a surrogate or local protection at 17f, he says:

The rationale upon which international refugee law rests is not simply the need to give shelter to those persecuted by the state but, more widely, to provide refuge to those whose home state cannot or does not afford them protection from persecution.  The former is, of course, comprised in the latter, but the drafters of the Convention had the latter, wider purpose in mind.  The state’s inability to protect the individual from persecution founded on one of the enumerated grounds constitutes failure of local protection. 

GLEESON CJ:   I think what we are trying to do is get behind this expression “inability to protect”.

MR BASTEN:   Yes.  Can I take your Honour to page 20e to g where it talks about:

Whether the claimant is “unwilling” or “unable” to avail him or herself of the protection . . . state complicity  . . . is irrelevant.  In the case of “inability”, protection is denied to the claimant, whereas when the claimant is “unwilling”, he or she opts not to approach the state by reason of his or her fear . . . In either case, the state’s involvement in the persecution is not a necessary consideration.

GLEESON CJ:   But what is involved in protection?

MR BASTEN:   What is involved in protection in that case was ‑ ‑ ‑

GLEESON CJ:   Generally.  One of these unfortunate magistrates confronted with warring parties might – a woman might say, “I demand you to protect me from my husband, he is beating me”, and the court says, “We’ll issue an apprehended violence order but I can’t guarantee you that the husband won’t break the apprehended violence order”.

MR BASTEN:   Yes.  Obviously our argument is that that is all that is required of the State in order to satisfy this element of protection which is envisaged in the discussion about unwillingness to avail oneself of State protection.

McHUGH J:   But unwillingness in this context goes to the refusal of the refugee, does it not, to accept?

MR BASTEN:   Yes, it does.

McHUGH J:   An inability has historically been regarded as going to the stateless ‑ ‑ ‑

MR BASTEN:   Yes, that is why I say we are in an unwillingness situation here.  The Ukraine has a government.  He can avail himself of external protection but may be returned.  The question then becomes whether his unwillingness to be returned, in effect, is justifiable in circumstances where the State does everything that the Chief Justice is suggesting it would in this case.

GLEESON CJ:   We do have a textual basis for this question.  The word “protection” appears in the Refugee Convention.

MR BASTEN:   Yes, indeed.

GLEESON CJ:   What exactly does it mean when you are in the context of referring to an inability to keep somebody safe?

MR BASTEN:   I think we would accept, your Honour, in the terms in which it was discussed in Khawar’s Case that the word “protection” in the article refers to external protection but, as your Honour pointed out, that does not mean that internal protection is not a relevant consideration.  The term “internal protection” is not used but when one accepts the need to refer to internal protection, we would say that the unwillingness is not objectively justifiable if the country does take all reasonable steps to provide protection to this person as to others of its citizenry.

McHUGH J:   The definite article “the” in front of the term “protection” makes it clear that the article implies that the State does protect, that there is protection in the State.  The question is:  what constitutes protection in the State?

MR BASTEN:   Yes.

McHUGH J:   You are unwilling to avail yourself of “the protection” in that country, and so it the hypothesis is that if returned you would be protected.  So it implies there is protection.  The question is:  what is meant by this term “protection”?

MR BASTEN:   Yes, that is so.

McHUGH J:   It does not seem to be an absolute guarantee of safety.

MR BASTEN:   No.

McHUGH J:   So it must be something less.

MR BASTEN:   Yes.

McHUGH J:   What is it?

MR BASTEN:   Relevantly for this purpose though, one is interested in only two other lesser levels.  One is that the protection will prevent the chance of persecution occurring being a real chance and will reduce it to a fanciful level, or remote, far‑fetched.  The alternative is simply that the protection is as much as the State can be expected to provide whether or not it prevents the level of a fear of harm being reduced below the 10 per cent ‑ ‑ ‑

McHUGH J:   That would not give much protection in many cases.  Surely you must distinguish between the protection that the United States or Australia could provide than, say, the government of Iraq could provide at the present time.

MR BASTEN:   Undoubtedly, but the question is whether ‑ ‑ ‑

McHUGH J:   So it must take into account resources as well as risks, must it not?

MR BASTEN:   Yes, no doubt it does, but one is not looking for the ideal; one is only looking for the level below which one cannot fall without ‑ ‑ ‑

GLEESON CJ:   Well, I suppose what you might think you know – there are plenty of places in the United States where a proselytising religious person of some particular point of view might have just as many nasty things happen to him as happened in the present case.

McHUGH J:   And Selma, Alabama showed that there were parts of the United States that could not protect you against race.

KIRBY J:   I am not sure that religious minorities would have much difficulty in the United States.  The country is full of them.

MR BASTEN:   Well, we have given refugee status to a person who fled the United States.

KIRBY J:   On religious grounds?

MR BASTEN:   Yes.

GLEESON CJ:   But, Mr Basten, you used that word “expected” again.  You asked what could reasonably be “expected”.  Is that a word that is value free?

MR BASTEN:   No.

GLEESON CJ:   Then where do we find the values?

MR BASTEN:   It certainly evolves a level of evaluation and judgment which must ultimately be undertaken by the Tribunal as a factual matter and I am not sure that one can say very much more than Osman does about the circumstances which would satisfy those values.  In other words, all one can expect the State to do is to provide that which is reasonably available to it, in its obligation to its citizenry, to take the steps it is able to to protect them – sorry, that is circular – but the test cannot be refined more precisely than that.  That is why one looks to see what it is that this Convention is directed to and why it may be significant that the expression of protection is protection of fundamental rights.  In other words, protection of those rights, not a guarantee that they will not be breached, but an attempt to provide that protection which is thought to be reasonable in the circumstances.

The answer to your Honour’s question may be that this is a factual matter which has been given to the Tribunal to assess and until some constraint of a legal nature is identified, one should not be saying that the Tribunal has asked itself the wrong question.  If the Tribunal has directed itself to such questions as, “Did this person seek police protection?  How did the police respond?  Is it the sort of way that one would expect the police to respond?”, then the Tribunal has addressed the kinds of considerations which, on the evidence before it, were appropriate, and that would reveal no error of law on the Tribunal’s part.

McHUGH J:   Without some explanation, I find it rather difficult to understand what is the content of the Full Court’s statement that the right question is whether, in a practical sense, the State is able to provide protection.  I am not quite sure I understand what can be meant by “practical sense”.

MR BASTEN:   It suffers the same ambiguity as “inability” or “unable”.  One does not know what the level is at which the test is being applied.  If it is a guarantee, then we would say it is a wrong level.  They do not say.  Perhaps they do not mean a guarantee.  But if their Honours mean that it is a reduction of any risk this person might face when he throws himself into a proselytising role in the community is to be reduced below a 10 per cent chance of harm, then that too would be in error, because the State cannot be expected to provide police protection to a Jehovah’s Witness who goes around proselytising in areas where he may be unpopular and not wanted.  If that is what is required, that is not what the Convention requires.

KIRBY J:   As I understand it, the decision of the Full Court turned on the fact that although it could not be denied that the Tribunal had referred to “unable to protect”, no doubt responding to the way in which the unrepresented respondents put the matter to the Tribunal, the Tribunal did not really come back to address itself to that issue because it addressed itself to the question of media manipulation in Ukraine of the government, and rejected that.  It addressed itself to the web site and whether the Jehovah’s Witnesses had a bad time in Ukraine and addressed itself on the top of page 27 to the “harm befalls them on a one‑off, individual basis”, but did not then go and say, even if what happens happens on an individual basis for individual thugs, does that indicate that the State is unable to protect and that that justifies the fear that has led to the claim for persecution.  All that I understood the Full Court to say was, “Go back and consider that issue”.  It may be that in the facts of the case the facts are rather weak but it has to be decided.

MR BASTEN:   Your Honour, at page 204 of the appeal book at line 40 the court suggested a possible error, paragraph19.  It said:

The Tribunal erred in law if it understood that harm inflicted for a Convention reason could not constitute persecution within the meaning of the Convention unless inflicted regularly in a coordinated pattern.

That is the court’s words.

KIRBY J:   That is presumably picking up the “one‑off, individual basis” on page 27 of the Tribunal’s reasons.

MR BASTEN:   Yes, and reformulating it though, so apparently it is not a semantic issue and, your Honour, I am reminded that they were represented before the Tribunal.  It was not a case of an unrepresented party, obviously ‑ ‑ ‑

KIRBY J:   I thought I read in the Full Court that they had a friend who turned up at the Full Court.

MR BASTEN:   In the court, I think, your Honour, before Justice Wilcox.

KIRBY J:   Were they represented by a migration agent or a lawyer?

MR BASTEN:   Yes, before the Tribunal.  I am sorry, I am distracting myself.  He appeared in person before the Full Court, your Honour.  That is at page 206.

KIRBY J:   But he had Mr Chilman, a friend ‑ ‑ ‑

MR BASTEN:   Yes, that is right.

KIRBY J:   I do not know whether he hit upon this point or whether that was the court itself.

MR BASTEN:   Sometimes the court thinks up these things for itself, your Honour.

KIRBY J:   I suppose if the position is that on one end of the Bar table there is well‑represented Commonwealth and on the other end there are people who are not represented, that is what courts have to do.

MR BASTEN:   Of course, yes.  I am not being critical of the court.

KIRBY J:   No, I know you are not.  I am just addressing the realities.

MR BASTEN:   Yes, and I accept that, your Honour.

McHUGH J:   But if you look at the bottom of 203 over to 204:

However, the Tribunal did not address the question of possible future harm befalling the appellants or whether the Ukrainian government was able, in a practical sense, to prevent such harm, given the history of violence towards –

it seems to indicate that the Full Court saw the question as whether the State can protect against random acts of violence because his history of violence was a history of random acts.

MR BASTEN:   Yes.

McHUGH J:   So perhaps that is what they meant by it.

MR BASTEN:   And to understand what tests they are applying in that context it appears that they are applying almost a guarantee test if this is what they are looking at, whether the State can protect against random acts, because it would be very difficult.

KIRBY J:   But if random acts become common – we know that the Nazi State adopted the Nuremberg laws, but we also know that the Jehovah’s Witnesses were one of the groups who were persecuted in the Nazi State.  They had a particular badge they had to wear and there were lots of them in the concentration camps, so it is not unusual that they appear to attract this violence.  There would have been a time presumably in the early days when they, like the Jews in Nazi Germany, were the subject of that form of violence. 

MR BASTEN:   Yes.  Can I take ‑ ‑ ‑

McHUGH J:   I do not have any difficulty with the general proposition that Justice Kirby put, but in the facts of this case we seem to be talking about a couple of incidents, not widespread incidents. 

MR BASTEN:   And in circumstances where one of the exercises the Tribunal undertook was to see if there did appear to be widespread attacks on Jehovah’s Witnesses in Ukraine, and it found as a fact that that was not so, to its satisfaction. 

KIRBY J:   I agree that the facts of this case appear rather weak for the respondents, but the issue is not really to be addressed by a court.  A court’s only function is to make sure that the Tribunal addressed those facts and decided them. 

MR BASTEN:   But that is where the Full Court intervened.  The Full Court ‑ ‑ ‑

KIRBY J:   Well, it felt that the Tribunal did not, that it required a pattern, or more than random incidents, whereas if you had random incidents in the Kurfürstendamm in 1935, then they might indicate that if you went back there, it would not be a good career move.  Many people did try to flee.  Most of them were turned back. 

MR BASTEN:   I understand that, your Honour, and, with hindsight, we would say that that was a particular sort of case.  I am not sure that it assists us to understand what the Full Court’s view was in this case. 

McHUGH J:   Well, it may be that this question really never arose in this case.  It might arise in other cases. 

MR BASTEN:   That may be so.  In a sense it did not because, in the passage I took the Court to earlier, the Tribunal thought that the claim was being made out by the applicant in a significant sense by seeking to invoke the State’s involvement in setting up through its own controlled media a hatred of Jehovah’s Witnesses which might account for these things, but which the Tribunal rejected.  If I go down to the bottom of page 204 – and this may be a further discussion of the point that your Honour made in relation to what is said at paragraph 16 – at paragraph 20, the Full Court says that: 

The first appellant’s case was that he feared the continuation of acts of harm . . . That is, such acts reflected an attitude within the Ukrainian populace that a person such as the first appellant should be so treated . . . The first appellant feared such assaults would continue because of the degree of hostility in the community . . . Contrary to the statement of the Tribunal, such events as suffered, or feared, by the first appellant did not fail to constitute persecution if they were “individual attacks with different perpetrators”. 

With respect, the Tribunal rejected in its analysis that there was such a degree of hostility in the community such as might have justified a finding of persecution, and it rejected that this was an attitude within the Ukrainian populace.  It is not every case in which ‑ ‑ ‑

KIRBY J:   Yes, but it did say at 27: 

but . . . this harm befalls them on a one‑off, individual basis. 

MR BASTEN:   That is right.  That is another way of expressing the same conclusion.  It may be that in the circumstances of the case, treating all those factors as relevant, it was open to the Tribunal to say that they were individual attacks with different perpetrators.  The Tribunal did not say you cannot ever have persecution where there are individual attacks with different perpetrators, but it was entitled to say that this case was not one of persecution if it was not satisfied that the Ukrainians generally had this attitude of hostility towards Jehovah’s Witnesses, of which the complainant complained and which formed the basis of his ‑ ‑ ‑

KIRBY J:   I think what the Full Court was saying was that at page 27 what the Tribunal should have said was that on a one‑off individual basis the only way that this could become persecution within the Convention is if in such circumstances there is a practical possibility the State will not be able to defend the applicants against that conduct, and I find that that is not the case here because they went to the police, the police came to them, they responded correctly, and there is no evidence that the police are unable to respond, but it is finding that extra step that is said to be the error of jurisdiction.  It is either good or bad but it is a very short point.

MR BASTEN:   That may be so, your Honour.  Really, the findings of the Tribunal need to be read as a whole because it looks to see if there was any evidence that the police would not come or that they would not do things.  The problem that we have is this, that if the Tribunal is inadequate for some reason - and it is not easy to understand the basis of it and that may be because the respondent had no assistance before the Full Court - but what they appear to be saying is that even if there was a thorough system of apprehended violence orders available in the Ukraine, unless that could reduce the risk of further harm below the 10 per cent cut‑off or whatever it may be, then this person is a refugee, and that, we say, is not correct.  If there is a reasonably effective and enforced system of AVOs, then one cannot ask:  will there still be a real chance of harm?

KIRBY J:   Is that the point of principle that the Minister is concerned with, in that the Court should somehow draw a line or express a rule that prevents people from being refugees if in other countries they are simply the subject of hate campaigns by a few people which do not elevate themselves to condonation or participation or neglect?  They are the three verbs by the State.

MR BASTEN:   Yes, in effect, “neglect” meaning that the State is not providing what might be expected of it to these people.

KIRBY J:   Yes, and that does require you to postulate a notion of what in international law a State can be reasonably expected to do.

MR BASTEN:   Yes, that is so.

KIRBY J:   In the special leave application you said to Justice Gummow and Justice Heydon that this case illustrated some gap in the jurisprudence of this Court and I think there was an English case which addressed the gap and that I think was the point of principle that got up into this Court.  What is the gap you say that is left by Ibrahim and Khawar and which the English courts have addressed?

MR BASTEN:   It is the gap which establishes the principle your Honour just articulated.

KIRBY J:   The last principle?

MR BASTEN:   Yes.

KIRBY J:   That is to say, inability.

MR BASTEN:   Yes.  Khawar was different because it needed a discriminatory persecutory act on the part of the State to get into the Convention.  The individual perpetrators had no Convention reason.  Ibrahim dealt with groups rather than individuals, but in circumstances where the State was unable to provide any level of protection.  It did not need to consider what would be a necessary level of protection to satisfy the international test.  Horvath is the case and I will come to it immediately but I still have open before me Applicant A.  May I simply take your Honours very briefly to two other passages.  One was the passage which the Tribunal itself adverted to in your Honour Justice McHugh’s judgment which commences at about point 8 on 257:

MR BASTEN:   Yes, there are a couple of responses to that, your Honour.  One is that I would adopt what the Chief Justice suggested, which is that really from pages 20 through to 25 there is a single passage addressing the question which has been identified at page 20 and that there are different aspects to that consideration.  When at line 40 the Tribunal talks about the incidents being “seen as individual and random incidents” from individuals that were “affronted”, in the line before, “by his religious beliefs”, that follows on from the discussion of whether the organisation of Jehovah’s Witnesses was experiencing problems with the Ukraine authorities, so it was certainly inviting itself to consider the position of the organisation of Jehovah’s Witnesses vis-à-vis the Ukraine authorities, and the comment about “individual and random incidents” must be read in that regard.

Similarly, with respect, I would read the passage at page 24, line 35, to take an example of the reasoning, as accepting that if there had been general non co‑operation from police officers, a neglect in a general sense, that would have given rise to a legitimate claim.  But that is simply not established on the evidence.

McHUGH J:   Is it your argument that, at least by implication or inference, the Tribunal has said that Jehovah’s Witnesses generally are not the subject of individual and random incidents of harm, but this individual happens to have been and therefore there is no question of neglect generally in that sort of situation.  Do you follow what I am ‑ ‑ ‑

MR BASTEN:   Yes, I think that is right, your Honour, yes.  In the sense that ‑ ‑ ‑

McHUGH J:   He might be in a weaker, perhaps in a difficult position if there was evidence that there were a series of individual and random attacks on Jehovah’s Witnesses and the Tribunal had failed to address whether or not ‑ ‑ ‑

MR BASTEN:   Yes.  If the Tribunal had failed to address such an argument, then I might not be here.

McHUGH J:   On the issue of neglect.

MR BASTEN:   Absolutely.

HAYNE J:   Page 23, line 23 seems to bear on that subject matter, does it not?

MR BASTEN:   Yes.

HAYNE J:   The Tribunal’s finding that:

increase in numbers is a clear indication . . . not being suppressed . . . nor are Ukrainians terrified to join or frightened to continue ‑ ‑ ‑

MR BASTEN:   Yes.  That is so.  That seems to be the focus of the Tribunal’s attention.

KIRBY J:   Of course that is a nation‑wide assessment, not specific to a particular area where the respondents lived.

MR BASTEN:   Yes, but it is interesting that the Tribunal was alert to the fact that the two assaults occurred in different areas – in one area he was unknown, in one area he might have been known – and considered the significance of that.  Similarly, at 24, line 35 the Tribunal was alert to the fact that if you met one unco‑operative policeman in one area you could go to police stations within the area but different police stations to seek assistance and that had not been done.

GLEESON CJ:   I am not suggesting this is an answer to your argument, but I think history shows that the number of Christians were increasing when they were having trouble with the lions.

MR BASTEN:   Yes.

McHUGH J:   So was the Communist Party in this country when it was outlawed in 1941.  Membership increased dramatically.

MR BASTEN:   Yes.  Well, there are two ways of looking at figures, but that is a matter for the Tribunal.  It might have drawn an inference either way perhaps, but that is a factual question we would say.

Your Honours, what I was going to say was that this argument does not necessarily deal with the argument based on the concept of persecution.  If I might go back to your Honour the Chief Justice’s Canberra schoolboy example, we would not necessarily accept that what happened, what your Honour described, constituted persecution.  Of course in a colloquial sense one might well say that the boy was subject to persecution on account of his race, but the acts remain the acts of the hooligans.  There was nothing official about them.  On the hypothesis they were not the acts of members of a racist organisation beyond State control.  Canberra is not Germany in 1933, nor is it Somalia in 1991. 

In this case the Tribunal looked for that official element and found neither pervasive hostility, nor did it find encouragement or any other sort of activity which was sufficient to justify a positive conclusion.  But that is all a factual ‑ ‑ ‑

GLEESON CJ:   The formula that was, as I understand it, taken up and adopted in Khawar from Horvath was persecution equals serious harm plus failure of State protection.

MR BASTEN:   Only expressly by Justice Kirby.

GLEESON CJ:   If that formula is correct, then failure of State protection goes not merely to likelihood of harm but also to the quality of the conduct as persecution.

MR BASTEN:   Yes.  You might get to that without dealing with State protection as such.  You might find an official quality to the acts without talking about protection in those terms, but I accept what your Honour says about that formula.  That formula is inconsistent with the respondents’ case if it is accepted.

GLEESON CJ:   The Convention makes it plain, does it not, that you have to have not only a fear of harm, you have to have a fear of persecution?

MR BASTEN:   Yes, indeed.  Although not all members of the Court adopted that formula in Khawar, at paragraph 30 your Honour noted that “tolerance or condonation of the inflicting of serious harm in circumstances where the state has a duty to provide protection” might be sufficient.  Your Honour also noted that mere inability to provide protection was not being considered.  It is that similar element at paragraph 85 in the joint judgment of your Honour Justice McHugh and Justice Gummow that refers to a “denial of a fundamental right otherwise enjoyed by Pakistani nationals”.  So that the concept of protection is not that adopted in terms in those two passages, but the idea of an underlying duty or its correlative right is the language which is adopted in that case and the result, with respect, will come to the same thing in most cases probably - certainly we would say in this case - to provide that element of official or State activity or inactivity which needs to be considered.  Your Honours, the only ‑ ‑ ‑

KIRBY J:   You do not mount a case that suggests that you are entitled to succeed on the basis that it would be futile to send it back in this evidence to the Tribunal?  That is not the way you approach the matter, is it?  You do not say that in the evidence that was adduced that if the Tribunal did not expressly address the point that the Full Court thought had not been expressed, that the order should not have been made because within that evidence it was futile to reconsider the matter.  If there was a slip it was simply a slip, but the reasons are fairly obvious.

MR BASTEN:   I do not think we put it in that way, your Honour.  We would say that if that were the circumstance, the Full Court should not have intervened in the way that it did to set aside the decision.

KIRBY J:   Except that that involves making a factual assessment.

MR BASTEN:   That is what the Full Court did, perhaps wrongly.

McHUGH J:   I understood your point was, rather, that given what the Tribunal found about the attacks on this particular individual and given what it said about the fate of Ukrainians generally, this was a question that did not arise.

MR BASTEN:   It did not arise in terms.

McHUGH J:   In terms, yes.

MR BASTEN:   That is right, yes.

KIRBY J:   It did not actually say that in clear terms.  That is the problem I still have, but I will just have to ‑ ‑ ‑

MR BASTEN:   That may depend, your Honour, on how one reads the first paragraph of its findings on page 20, because if that was the question which it was setting out to answer, namely, that simply suffering serious harm, without State involvement, may not constitute persecution for the purposes of the Convention, then those are the aspects of the test which it would properly focus on, given the evidence before it.

GLEESON CJ:   They did make a finding about the position of Jehovah’s Witnesses generally, which is reflected on page 23, line 35.  As I understand it, they said, if Jehovah’s Witnesses, as a group, are being persecuted in Ukraine, that seems to have escaped their attention.

MR BASTEN:   Yes, that is right.  That, to my mind, is consistent with following through that line of inquiry which requires one to deal with both the nature of the people who are suffering the persecution and the nature of the group, if it be such, or absence of a group, which is inflicting it.

The only other point I wanted to advert to before concluding was that my learned friend took your Honours to a passage in Yasouie 116 FCR, a judgment of Justice Hill, at paragraph 36, in which his Honour adopted what appears to be a position inconsistent with the submissions I am now

putting, namely that the test of the feared harm would suffice if it satisfied the well-founded fear test.  The Minister won that case, but he did not put that submission. 

In that case, the Tribunal had sought a guarantee of absence of harm if the person were returned to his country of nationality.  Justice Hill agreed that that was wrong and then suggested an alternative test which was obiter, but that does not really matter.  The only point I sought to make was that the Court should not infer that the Minister has taken a position which is inconsistent with that suggested there by Justice Hill.  Those are my submissions unless there is anything further.

GLEESON CJ:   Thank you.  We will reserve our decision in this matter and we will adjourn until 10.15 tomorrow morning.

AT 3.06 PM THE MATTER WAS ADJOURNED