W229 v Minister for Immigration and Multicultural Affairs
[2002] FCA 476
•16 APRIL 2002
FEDERAL COURT OF AUSTRALIA
W229 v Minister for Immigration & Multicultural Affairs [2002] FCA 476
MIGRATION - judicial review - Refugee Review Tribunal - new claims before Tribunal - Tribunal finding new claims fabricated - applicant contends previous non-disclosure based on legal advice - applicant’s explanation rejected by Tribunal - whether Tribunal obliged to make inquiry of applicant’s lawyer - assessment of persecutory conduct - finding of possible discrimination in relation to employment - whether sufficiently serious to amount to persecution - evaluative assessment open to Tribunal - no error of law disclosed.
Migration Act 1958 (Cth)
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 cited
Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 cited
Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 cited
Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 12 citedW229 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W229 OF 2001FRENCH J
16 APRIL 2002
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRLIA DISTRICT REGISTRY
W229 OF 2001
BETWEEN:
W229
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
FRENCH
DATE OF ORDER:
16 APRIL 2002
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant to pay the respondent’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRLIA DISTRICT REGISTRY
W229 OF 2001
BETWEEN:
W229
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
FRENCH
DATE:
16 APRIL 2002
PLACE:
PERTH
REASONS FOR JUDGMENT
Introduction
The applicant is a national of Iran who was born on 6 February 1962. He is married and has two children aged 8 and 10. With his wife and children he arrived in Australia without lawful authority on 3 November 2000. They lodged an application for protection visas with the Department of Immigration and Multicultural Affairs on 23 November 2000. A delegate of the Minister refused their application on 22 December 2000. On 28 December 2000 they applied to the Refugee Review Tribunal (“the Tribunal”) for a review of that decision. On 3 May 2001 the Tribunal affirmed the decision not to grant protection visas. An application for review of that decision was filed in this Court on 11 June 2001.
Evidence and Claims
From the outset, at his initial post-arrival interview which was conducted on 12 November 2000, the applicant claimed a fear of persecution in Iran based upon his involvement with the Mujahedin organisation which began when he was a prisoner of war in Iraq during the Iran/Iraq war. In a statement in support of his application for a protection visa the applicant said that he had been a prisoner of war in Iraq between 1986 and 1990. During that time he was recruited by the Mujahedin. He joined them because he had spent five years as a prisoner of war. He was sick and distressed by his long period of imprisonment. He wanted to improve his conditions and perhaps find a way of escaping and returning to Iran. A number of his friends also joined the Mujahedin. They studied with them and undertook one of their courses called the Military Educational and Political course. On his return to Iran the authorities were distrustful of him because of his involvement with the Mujahedin. Those POWs who had been so involved were segregated from other returnees. They were made to confess their involvement with the Mujahedin. They were accused of being unfaithful to their country and enemies of it and told that they would be subject to execution.
About 300 returned Iranian prisoners of war were under this cloud of past association with the Mujahedin. Some of the group, but not the applicant, were taken to the Ewin prison. He remained under guard. He told his interrogators he was fed up and could not put up with remaining in captivity any longer. He was gradually losing his mind. He told them that he had thought that if he went with the Mujahedin there might be some way he could escape and return to Iran. Eventually the Iranian government afforded all of these returnees a general amnesty.
The applicant worked for the National Oil Company from April 1991 to September 2000. He said that in 1992 or 1993 he was called by a superior and told he had to go and see the Security Office in Tehran. It is not apparent from the statement whether the Security Office referred to comprised personnel of the company or of a government agency. The security officers there told him they knew everything about him and were waiting for the slightest movement from him. He was told he could not work in sensitive areas such as archives nor could he be involved in handling company documents. He said that when he returned to work after this interview he was suspended for two months without pay. He received neither promotion nor benefits subsequently. Other returned prisoners of war enjoyed privileges such as houses, cars, air conditioners and refrigerators. Those who had been involved with the Mujahedin were given no privileges other than a job with the government.
He referred to an occasion about a year before the date of his application for a protection visa upon which he said there had been riots against the government in Tehran. He said he had been approached by various people afterwards and asked his opinion about the riots and the actions of those involved. He knew his inquirers were security officers and were looking for an excuse to pick on him. He said living like this in Iran had become very difficult for him. He had also received some suspicious phone calls and was frightened, especially for his family. This was why he decided to leave the country. He feared that if he returned he would be executed or put in gaol for a very long time.
The applicant’s advisers made a lengthy submission to the Tribunal reiterating and explaining his fear that he would be executed or imprisoned for a prolonged period upon return to Iran largely because of his association with the Mujahedin which was in opposition to the Iranian government. The submission referred also to country information from Human Rights Watch, the US Department of State Human Rights Reports, Amnesty International and the UK Home Office Country Information assessment on Iran. In addition materials from other Tribunal decisions were cited.
According to the Tribunal’s reasons for decision, the applicant said, at the hearing, that he had recently received documents from Iran and that there were some things he had not been able to talk about previously. He had wanted to talk about his real case and what happened in his life but he had been told that the Australian government did not have a good relationship with the Mujahedin. His lawyer had told him that his case showed he was involved in activities with the Mujahedin and that the government considered the Mujahedin to be terrorists and it would not be good for him to mention his association. Because of this advice the applicant said he was frightened and omitted most matters. He feared he might be thought to be a formal member of the Mujahedin. He said he had told his lawyer the complete story. The lawyer had told him that if he told the full story he might be seen as a member of the Mujahedin. The applicant was interviewed by the Australian Security and Intelligence Organisation about the Mujahedin. He said he had been told by them to tell the whole story to the Tribunal as it would be to his benefit. He did not know the name of the person who gave him that advice. According to the Tribunal the applicant also said that the Tribunal might think he had intentionally fabricated his claim about his involvement with the Mujahedin. He produced an undated letter from his lawyer indicating that raising new matters after the initial departmental decision could cause credibility problems for him in the Tribunal.
The applicant told the Tribunal that whenever there was a riot or demonstration authorities would take him in. He told the Tribunal he had gathered friends who thought about politics and encouraged them to join the Mujahedin. He said he could verify his membership of the Mujahedin through its Australian organisation. He claimed that after he returned from Iraq he was tortured and raped. This was while he was being kept at the stadium in Tehran. It was prior to the general amnesty. He claimed that following his release if there were any trouble he would be taken in by authorities for questioning. He referred to an occasion on which he had been blindfolded and taken to a small dark room where he was kept for some hours. On another occasion he was interrogated for three days without sleep. The occasions to which he refers appear to have been his arrest following unrest at the university dormitory and following riots in Abadan. He said that he had been ashamed to mention the incident of sexual abuse earlier because his interpreter was a woman. His legal representative also being a woman he could not mention this to her either.
The applicant claimed that if returned to Iran he would be executed because of his Mujahedin activities. He said he was shown some photographs of a university meeting and demonstrations at Abadan. He recognised a person that he knew from the Mujahedin but did not give his name to authorities or tell them he recognised that person. This is because this person was an old friend. After his release he felt he was in serious danger and thought the authorities would find out he had lied. He said that following his last detention there had been an increase in the number of suspicious phone calls which he received. On 25 September 2000, a friend who was often taken in by police was arrested again. This was the day before the applicant left Iran. His doorbell rang and he found a note in his friend’s wife’s handwriting stating that his friend had been arrested and telling him to leave Iran with his family. He felt sure that as his friend was arrested everything would be revealed, so he departed Iran. In summary he said it had been proven to authorities that he had connections with the Mujahedin and that he recognised a person who had been involved in the Abadan conflict from photographs and that he lied to the authorities. According to a letter his family said authorities understood his connection with the Mujahedin.
There was extensive country information before the Tribunal which was referred to by the Tribunal in its reasons.
The Tribunal’s Findings and Reasons
The Tribunal accepted that the applicant felt insecure in Iran following his return from Iraq after a brief association with the Mujahedin. It accepted that he had some, but not a significant, involvement with the Mujahedin as a prisoner of war until returned to Iran by the Red Crescent. It also accepted that authorities did not fully trust him because he had been with the Mujahedin and that he and others like him did not receive the warm welcome and the same benefits accorded to other prisoners of war who had not been associated with the Mujahedin.
The Tribunal found that the applicant had been interrogated by Iranian authorities about his involvement while detained with many others from the same camp. It allowed that he may have been mistreated while in detention but said:
“…if he was this is now remote in time and I am not satisfied that this now gives rise to a fear of persecution.”
In relation to his claim to have been sexually abused after his return from Iraq, the Tribunal said:
“If this did occur it is despicable, however, I am not satisfied that it now gives rise to a fear of persecution, as it is remote in time and occurred over ten years ago.”
The Tribunal said it appeared that the applicant was not considered a threat as he was not taken to gaol like some of the returning POWs but was released after questioning. It referred to the general amnesty granted to the applicant and others from the Mujahedin camp and said it was not satisfied that at that time the authorities considered the applicant to be an enemy of the State. It appeared that they accepted his explanation that his association with the Mujahedin was a way of returning to Iran.
The applicant had obtained employment with the National Oil Company as an equipment operator. The Tribunal referred to his claims that he was not a permanent employee, that he should have been a formal and permanent employee but instead was a worker on daily wage for ten years. It also noted that he was working not continuously but on and off. The Tribunal said:
“No matter what the truth, the applicant was able to work in the government workforce for a substantial period even if he faced some discrimination. He was able to support his family even though he did not have the type of job he wanted.”
It referred to his varied accounts of his work history and his claim that at one time he was suspended for two months without pay. It noted that he also claimed he was never employed as a full time worker and did not receive benefits as others did. The Tribunal did not accept that the difficulties faced by the applicant in his employment amounted to persecution in a Convention sense. It accepted that he faced some discrimination but observed that discrimination per se is not enough to establish a case for refugee status. A distinction was to be drawn between a breach of human rights and persecution. Not every breach of human rights would constitute persecution. The Tribunal said that various threats to human rights and their cumulative effect can deny human dignity in fundamental ways and should properly be recognised as persecution for the purposes of the Convention. It accepted that former POWs from Mujahedin camps and those who were in some way associated with the Mujahedin faced discrimination. While acts of regular petty discrimination are undesirable, the Tribunal said they do not necessarily amount to the denial of, or serious interference with human dignity in the sense of the Refugee Convention. The Tribunal observed the applicant had sought promotion in the government sector and had been denied it. Putting to one side the fact that the applicant had no additional qualifications that would prepare him for promotion, the Tribunal was not satisfied that this treatment amounted to persecution in a Convention sense. The level of discrimination experienced by former POWs like the applicant who came from Mujahedin camps, assessed cumulatively, fell “…well short of the persecution standard …”.
The Tribunal rejected the applicant’s claim that he was specifically questioned by security authorities about the university and Abadan riots and was detained for three days on one occasion. The claim had not been made when the applicant had the opportunity to raise it to the delegate through his solicitor. Even if the applicant were questioned on occasions, the Tribunal was not satisfied that such questioning on and after serious riots or disturbances, would constitute “persecution” for the purposes of the Convention. It was not satisfied that this amounted to any more than discrimination and fell short of what is required for persecution. Given the passage of time since the applicant’s last involvement with the Mujahedin the Tribunal was not satisfied that any chance he would continue to face such discrimination was anything more than remote.
The Tribunal rejected the applicant’s claim that he failed to disclose certain facts to the delegate because of a fear that it might harm his claim. It so found because it did not accept that his lawyer properly instructed would not raise the matter and would not advise the applicant to present full details. It may be that as part of his security interview (with ASIO) the applicant might have raised additional matters about the Mujahedin. However this was following his rejection by the delegate and the Tribunal did not accept that because he raised such matters at a late stage this was an indication that he was being truthful. It did not accept that the applicant would have difficulty if returned to Iran because of encouraging others to join the Mujahedin. It referred to his claim that his friend was arrested and may have identified him and revealed that he had not identified Mujahedin members to security forces when asked. It referred to his claim that if returned to Iran the government would execute him. It also referred to what it called a “new claim” that his brother had been arrested and his house raided and claims that he was associated with the Mujahedin made after he left Iran. The Tribunal said:
“I reject these late claims as fabrications aimed to enhance his claim for refugee status. I reject these claims because they were not made until to the delegate despite ample opportunity to do so.” (sic)
The Tribunal was not satisfied that the claimed suspicious phone calls received by the applicant prior to leaving Iran gave rise to a fear of persecution as it was not satisfied that the calls were Convention related.
The Application for Review
The application for review sets out pro forma grounds which are uninformative. They are as follows:
“1-procedure that were required by the Migrant Act to be observed in connection with the making of the decision were not observed.
2 -that the decisin involved an error of law being and error of law involving an incorrect interpretation of the applican of the law to the facts as found by the person who made the decision.
3 - there was no evidence or other material to justify the making of the decision.” (sic)
The Applicant’s Submissions
The applicant represented himself before the Court and presented his submissions orally through an interpreter. Understandably he complained that he knew nothing about the law and did not know how to formulate a complaint about the Tribunal. He said that when he had explained his case to his lawyer he was told that because the Mujahedin is a well-known terrorist organisation the Australian government would be reluctant to afford residency to him. This, he said, made him fear explaining everything in detail because he said if he explained that he was part of the Mujahedin he was going to be targeted or known as a terrorist. On that basis he narrowed down his claims and said only about ten per cent of the things that happened to him. He made it very brief. He said he had therefore presented a very weak case and been judged on that basis. This is what he had done before the delegate. When his case went to the Tribunal he decided to explain everything but it was too late. He considered that what had happened to him was unfair. His lawyer should not have advised him not to explain everything. Asked whether he had told the Tribunal that part of his story had been withheld on legal advice, the applicant said he had.
I indicated in the course of argument that a possible area of inquiry into error of law related to whether or not the Tribunal was correct in holding that the discrimination which the applicant had suffered did not amount to persecution under the Convention. Counsel for the Minister submitted that although there was discrimination against the applicant in a sense it was not so “fundamental” as to interfere with his right to employment both in government or outside government employment in Iran.
I also put to counsel for the respondent that the applicant said he had proffered to the Tribunal an explanation for his failure to raise incidents of persecution earlier and, that in so doing, he was acting on legal advice. I asked counsel for the Minister whether there was any requirement for the Tribunal to make inquiry about the explanation that the applicant was acting on legal advice in withholding part of his story. It was submitted that the Tribunal’s conclusions on the applicant’s claim adverse to his credibility didn’t in the end turn on the question of what his lawyer did or did not do.
Whether the Tribunal Erred
The Court was provided with tapes of the proceedings in the Tribunal. It appears from those tapes that the applicant told the Tribunal that he had been advised by his lawyer that his case showed his involvement in many activities with the Mujahedin and that if government found out about it he might be considered a major or original member of that organisation. Because the government regarded the Mujahedin as terrorists this would not be good for the applicant. He told the Tribunal that this was why he had not previously advanced his real case with regard to the Mujahedin and that he had omitted or deleted his real story. The Tribunal member asked him whether he thought the Tribunal should get a statutory declaration or a statement on oath from his lawyer telling him that his lawyer had told him not to mention that he was Mujahedin. This question appears to have been asked rhetorically. There was no direct answer. An exchange followed about whether the lawyer was male or female. The applicant said the lawyer involved was a male but the interpreter was female. The following then occurred:
“Tribunal: Okay, you see, so your lawyer did not tell you not to say this but you decided not to say it.
Applicant:He, he told me that it wasn’t good for me and it was up to me if I wanted to talk about it or not so I was scared and I was scared to tell the whole story and after that from the security and intelligence organisations, the Australian Intelligence organisation they came and took me to ask me questions in relationship to Mujahedin. When the person from ministry of information in Australia came and interviewed me he told me to tell him the whole story and he convinced me that if I tell the whole story it would be to my benefit so I told him the whole story all the way through.” (sic)
The Tribunal asked for the name of that person. The applicant said he didn’t know. The Tribunal member then interpolated:
“Tribunal:Well now hang on hang on hang on, you spoke to someone whose name you don’t know. You told someone the whole story and you don’t even know their name?”
Applicant:He had no role in my story. He was a member from the intelligence service that he came and talked with me and he showed me his ID card but I can’t remember his name. But DIMA who is in charge of security here should have his name and you can ask them. And as well there have been other people here who have been questioned by the intelligence organisation here and I am sure they don’t know his name either.”
The applicant identified to the Tribunal those additional matters which were not in the submission that the solicitor had sent to the Department. The first point was that he was among those people who were encouraging others to join the Mujahedin. The second point was that he was subjected to torture when he returned to Iran, not just because he was a member of the Mujahedin but because he had encouraged others to join. The further additional matter was that he was sexually abused when tortured.
The Tribunal returned to the issue of what the applicant had told his lawyer. The member asked exactly what he had had told his lawyer and suggested, rather improbably in the circumstances, that if he had told the lawyer something which the lawyer had negligently failed to include in his statement then he should be reporting the lawyer to the Law Society. The member also suggested, again rather improbably in the circumstances, that the applicant might be able to sue the lawyer. The member said there were all kinds of issues which would arise if the lawyer had been negligent and he needed to know exactly what the applicant told his lawyer that was not in his statement. The applicant then said:
“I don’t want to say that there has been any negligence towards me, negligence in responsibility towards me. What I am saying is that I said my story and he told me that if I write the case as you are saying it the way you saying it it is possible that they don’t like it because they do not sort of like Mujahedin. They don’t consider because Mujahedin to them equals terrorists and that’s why I was scared and I didn’t tell him the whole story. I told him that I went to Mujahedin and I returned to Iran but I didn’t tell him the whole story. I have the documents here that I could show you that my solicitor had told me that it was up to me to say these things or not and this is the exact date on it and it’s a fax from my solicitor I received yesterday and the exact date and time when that intelligence officer had that interview with me is written on this. The intelligence officer wanted me to say those things - if he didn’t want me to I wouldn’t have mentioned them now.
I said to him that if I go to RRT and mention these sort of things, the judge, the member will think I have intentionally added this stuff for the sake of receiving a visa and they won’t accept it. But he said to me that you should definitely say all these things because they are a part of your case and you should tell them that you were ashamed and this is why you didn’t mention it previously. And I am sure that if you contact this intelligence officer he would give evidence in that regard, in this regard. But unfortunately I can’t remember his name. But I am sure both DIMA has the information and I’m sure you could easily find his name. “
The Tribunal member does seem to have evidenced some impatience with the applicant in the course of these exchanges. His reference to complaints to the Law Society and the suggestion that the applicant might sue his lawyer in my view were unhelpful. The applicant’s ability to do either of these things would be severely compromised by his circumstances as a person in detention without any knowledge of the law or regulatory arrangements or the resources to engage a lawyer on his own account to sue anybody. These gratuitous observations by the Tribunal did not accord with the seriousness of its functions, notwithstanding that the Tribunal member plainly regarded the applicant’s evidence on this issue as not credible.
Further on in the hearing the Tribunal member said to the applicant that it didn’t matter whether he told the intelligence officer everything because the fact is that he didn’t make any of those matters public until after the protection visa decision. He told the applicant that if he had told those things to the lawyer there was “absolutely no way” that a lawyer would advise him not to put them in. The Tribunal member told the applicant at the hearing that he did not believe that he had said to his lawyer what he claimed to have said and that his lawyer had advised him not to say anything about them. The Tribunal member said “it’s just not true”. In response the applicant appeared to qualify his earlier position saying that his lawyer had said he would leave it with the applicant. If he wanted to say the sort of things that he was saying or not say them, he could think about that but it was up to him if he wanted to say them or not.
There does appear to have been before the Tribunal a copy of a letter dated 6 March 2001 from the applicant’s lawyers to him in the following terms:
“We refer to our recent telephone discussions with you in relation to the above matter and confirm that you have raised new issues concerning torture and sexual abuse. We note your comments that you had disclosed these matters to the officer conducting the security interview and that the reason you had not previously disclosed these matters was due to females being present on prior occasions.
We advise that we have ascertained that your security interview was carried out on 18 January 2001, whereas your primary decision was received on 22 December 2000. We confirm our advice to you that we believe raising new matters at this stage could jeopardise your credibility with the Refugee Review Tribunal.
We confirm that you were unsure whether you would raise these issues with the Refugee Review Tribunal. Should you wish to discuss this matter further, please do not hesitate to contact us.”
The letter does not go to the question whether the applicant had been advised, prior to his interview with the delegate, not to disclose certain matters on the basis that they might suggest he had terrorist affiliations. The Tribunal did not accept the applicant’s evidence as to his lawyer’s advice. It was entitled to take that view. It was not obliged to undertake any fresh inquiry with the lawyers themselves. There is no ground of review disclosed in relation to this aspect of the applicant’s case.
The only other question which is worthy of consideration is whether the Tribunal properly construed and applied the criterion, derived from the Refugee Convention, that the applicant have a “well-founded fear of persecution” for a Convention reason. The Tribunal accepted that, by virtue of his past association with the Mujahedin, the applicant faced some discrimination but that it did not amount to persecution.
The content of the concept of persecution was considered in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. Mason CJ referred to “… some serious punishment or penalty or some significant detriment or disadvantage…”. His Honour observed that harm or threat of harm as part of a course of selective harassment can amount to persecution. It may include the denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned. Dawson J found it unnecessary to enter the debate whether “…actions other than a threat to life or freedom could amount to persecution”. In that case the delegate had accepted that there may have been “discrimination” against the appellant who had been the subject of exile out of his local area in the Peoples Republic of China by a Local Peoples Committee and repeated detention for violation of the exile order. Toohey J said “given the circumstances of that discrimination no reasonable delegate could have concluded that it did not amount to persecution” (408). Gaudron J left open the possibility that limited discrimination might not constitute persecution (416). McHugh J essayed the most extensive discussion of the idea of “persecution” stating:
“The term “persecuted” is not defined by the Convention or the Protocol. But not every threat of harm to a person or interference with his or her rights for reasons of race, religion, nationality, membership of a particular social group or political opinion constitutes “being persecuted”. The notion of persecution involves selective harassment.
.
.
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Moreover, to constitute “persecution” the harm threatened need not be that of loss of life or liberty. Other forms of harm short of interference with life or liberty may constitute “persecution” for the purposes of the Convention and Protocol. Measures “in disregard” of human dignity may, in appropriate cases, constitute persecution.” (429-430)His Honour was of the view that loss of employment because of political activities could constitute persecution for the purpose of the definition and in that context approved of the decision of the Federal Court of Appeal of Canada in Oyarzo v Minister of Employment and Immigration [1982] 2 FC 779 at 783. He said:
“The Court rejected the proposition that persecution required deprivation of liberty. It was correct in doing so, for persecution on account of race, religion and political opinion has historically taken many forms of social, political and economic discrimination. Hence, the denial of access to employment, to the professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution if imposed for a Convention reason…”
Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 involved anticipated persecution against a child born in breach of the one child policy of the Peoples Republic of China. The Tribunal had found that the child, if returned to China, would be denied access to food, education and health care beyond a very basic level. The case involved questions concerning the identification of so called “black children” as a particular social group for the purposes of the Convention and the operation of laws said to be of general application. In the course of the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ at 302, their Honours pointed out that not every form of discriminatory or persecutory behaviour is covered by the Convention definition of “refugee”. The question whether such conduct is undertaken for a Convention reason cannot be entirely isolated from the question whether it amounts to persecution. Their Honours did observe that:
“Ordinarily, denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education involve such a significant departure from the standards of the civilised world as to constitute persecution. And that is so even if the different treatment involved is undertaken for the purpose of achieving some legitimate national objective.” (303)
Their Honours observed that it was clearly open to the Tribunal to find as it did that the treatment the appellant in that case was likely to receive if returned to China, amounted to persecution.
Discriminatory conduct against individuals or a group of individuals unable to protect themselves by resort to law or other means is central to the concept of persecution - Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at 7 (Gaudron J). In that case the question whether the nature of the apprehended harm was sufficiently serious to amount to persecution was not in issue. McHugh J who dissented however revisited his discussion of the concept of persecution observing, at 18:
“Persecution involves discrimination that results in harm to an individual. But not all discrimination amounts to persecution. With the express or tacit approval of the government, for example, some employers may refuse to employ persons on grounds of race, religion or nationality. But discriminatory though such conduct may be, it may not amount to persecution. Other employment may be readily available. The Convention protects persons from persecution, not discrimination. Nor does the infliction of harm for a Convention reason always involve persecution. Much will depend on the form and extent of the harm. Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purpose of the Convention. But the infliction of many forms of economic harm and the interference with many civil rights may not reach the standard of persecution. Similarly, while persecution always involves the notion of selective harassment or pursuit, selective harassment or pursuit may not be so intensive, repetitive or prolonged that it can be described as persecution."
In their joint judgment in Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14, McHugh and Gummow JJ referred to that passage and to the discussion of the concept of persecution by Mason CJ in Chan. In Khawar the relevant persecution was comprised of selective and discriminatory treatment by denial of a fundamental right otherwise enjoyed by Pakistani nationals, namely access to law enforcement authorities to secure a measure of protection against violence to the person.
As is apparent from these authorities the assessment of whether apprehended harm to an individual is serious enough to satisfy the requirement of a well-founded fear of persecution involves an evaluative judgment. There are, of course, some harms such as death, physical injury and deprivation of liberty that will always meet the criteria of seriousness such that a failure to treat them as sufficiently serious would be an error of law in the construction of the Convention. However in the range of less serious harm there may be room for differing judgments none of which would reflect error of law notwithstanding that a court on review might disagree with them. Obviously, if in this case, the applicant were, as he claimed, at risk of execution or lengthy imprisonment or torture or some other form of physical abuse then the level of seriousness would plainly place that within the range of harms contemplated by the term “persecution”. On the Tribunal’s findings however, it accepted that the applicant faced discrimination but that it was not at a level of seriousness sufficient to amount to persecution in a Convention sense.
In my opinion that assessment was open to the Tribunal. It does not involve an error of law on the part of the Tribunal. It cannot be called into question in this Court. There is therefore no ground of review made out in this respect.
Conclusion
For the preceding reasons, the application will be dismissed with costs.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate:
Dated: 16 April 2002
The applicant appeared in person via video link. Counsel for the Respondent: Ms LB Price Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 18 March 2002 Date of Judgment: 16 April 2002
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